Defamation Bill

Public Bill Committee, 19 June 2012.

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

Before we begin, I have a few announcements. First, if Members wish to take jackets off, please do. You are brave—it is not even vest-off day in Wales. Make yourselves comfortable. Please put all your toys away. It would be appreciated if you could switch off phones and anything that rings or makes a noise, or put them on silent.

As a general rule, my co-Chair, Mr Chope, and I have decided not to call starred amendments unless they have been tabled with adequate notice. The required notice is three working days, so amendments tabled for consideration on Thursday should have been tabled yesterday. If you did not do it yesterday, hard luck. If you wish to table amendments for the following Tuesday, they have to be in by Thursday.

Members, however, will note that amendments 27, 26, 28, 29 and 30 have been selected for today’s debate, as they were tabled in time. They should have been unstarred for today; that was a clerical error, and we will discuss them. A reminder about procedure: the Committee will first be asked to consider the programme motion on the amendment paper. A debate on that is allowed for half an hour. We will then proceed to a motion to report written evidence, which is a formal part of our process. Having done all that, we will discuss the Bill clause by clause.

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

Copies of the memorandums that have been received are available to Members. You have the explanatory notes to the Bill and, no doubt, lots of pieces of paper from outside organisations.

Clause 1 - Serious harm

Rob Flello (Labour, Stoke-on-Trent South)

I beg to move amendment 6, in clause 1, page 1, line 3, after ‘unless’, insert ‘the extent of’.

I hope, Mr Havard, that you will allow me just a moment to put on record my brief thanks and comments before I dive into amendment 6. It is a pleasure to serve under your chairmanship, and I look forward to the Committee sittings over the next week or so. I hope that they will continue in the collegiate manner in which the Bill has been tackled to date. I certainly would not dream of even trying to repeat any of the Second Reading observations, even if you allowed me to, Mr Havard, which I know you will not.

It is important that we recognise the work of the Joint Committee on the draft Bill and of everyone involved in the working groups and campaign groups that have brought us to this point. I look forward to expanding on our views during the clause stand part debate.

We begin with a simple, one-sentence clause, which contains one of the fundamental pillars of the Bill: the issue of serious harm. The explanatory notes set out how the clause builds on case law, particularly with regard to the threshold of seriousness. In the Joint Committee report, the original proposal for a substantial harm test was replaced by a serious and substantial harm test. Whatever the test is called, its purpose is the same: to raise the bar before defamation cases may be heard.

I am aware that the Law Society is concerned that the measure could create an unreasonably high threshold to overcome and cause costly pre-action work. I hope that when the Minister responds to the debate, he will explain the types of cases that he considers cause harm but not serious harm, and how a judge might go about making that distinction. Certainly, he and his officials will be aware of previous cases where there was harm. Will he clarify which of those might have failed the higher test? The Libel Reform Campaign, while sharing the Law Society’s concerns about the frontloading of costs, wants the first test to ensure that trivial cases do not proceed. It also makes the point that the clause merely restates the case law position following Thornton. The amendment will provide an additional hurdle, and ensure that only claims that should be brought in England and Wales are brought. It is designed to serve as a probing amendment and I hope that the Minister will offer some vital clarity in his response.

It is worth advising the Committee that I have tabled other measures that look at the ability of the court to strike out trivial cases at an earlier stage. Amendment 6 inserts the words “the extent of” into clause 1 so that the statement on serious harm would read: “A statement is not defamatory unless the extent of its publication has caused or is likely to cause serious harm to the reputation of the claimant.” As it is a probing amendment, tabled in the spirit of trying to encourage the Minister to give some clarification on the nature of serious harm and when serious harm is different from harm, and to expand on current case law, I will leave it at that. I forward to the Minister’s response in due course.

Helen Goodman (Labour, Bishop Auckland)

It is a pleasure to serve under your chairmanship this morning, Mr Havard.

I would like to speak in support of the amendment tabled by my hon. Friend the Member for Stoke-on-Trent South. Free speech and free expression are things that all members of the Committee support. They are enshrined in the Human Rights Act 1998 and the European convention on human rights, and they are essential to the efficient functioning of an open, democratic society. However, free speech is a qualified right, and one of the qualifications is morality. A question of truthfulness is essentially a question of morality. When people are exercising their right to free speech it is essential that they do not trample over the reputation or dignity of others.

There is a lot of work going on across the House that is relevant to our discussions: there have been Select Committee inquiries as well as an inquiry by the Joint Committee on the draft Bill, which was mentioned by my hon. Friend. The Joint Committee on Privacy and Injunctions also looks at the matter. We need to draw on that work and, of course, on the work of Lord Justice Leveson and the evidence that he has heard at the other end of town.

Lord Harries of Pentregarth told the Joint Committee on Privacy and Injunctions that the dignity of the individual was essential in a free society, and was as important as free speech, which is why we are trying to elicit from the Minister a clearer view of what he means by “serious harm”. The framework for law and regulation in this area is quite complex. It is twofold: there is the law, which we are discussing today and which clearly needs updating, and the Press Complaints Commission, which is being examined by Lord Justice Leveson. The two interrelate, so what we decide with respect to defamation in the Bill will read across to the code and the way in which it is drafted and redrafted.

That is why I wished to take part in this Bill Committee. My position is slightly unusual as I am normally a spokesman on the team shadowing the Department for Culture, Media and Sport, but the Opposition believe that this is a subject where there is great crossover and we want to take a coherent approach. I hope the Government are going to take a similarly coherent approach in what they present to us.

As my hon. Friend asked, what is serious harm? It is central to our understanding of the Bill. The objective of the clause is to raise the bar and reduce the number of trivial cases, but the Government need to be clearer. Serious harm to reputation is different for different people and in different circumstances. I am sure that a Member of Parliament can put up with many more negative things being said to and about them than an ordinary person.

I want to give the example of a constituent of mine and ask the Minister whether that instance would fall within his serious harm test. In my constituency, a 12-year-old boy was in trouble with the law, and an antisocial behaviour order was imposed on him. A red-top newspaper published a double-page spread that described him, quite wrongly, as causing “a reign of terror”. He was undoubtedly a naughty child and broke the law, and his behaviour needed to be addressed, but to describe his behaviour as “a reign of terror” in my constituency was totally absurd. It was a defamatory statement.

Nothing was done about that—the child did not take the matter up—and his rights as a minor were ignored. The impact on his need for rehabilitation was also ignored, as was the fact that such statements published all over the newspaper would do serious harm to the boy. [Interruption.] I wish the Minister would attend to what I am saying and not talk to his colleague, because he will not be able to answer my questions if he does not listen to what I am saying.

Jonathan Djanogly (Conservative, Huntingdon)

I was conferring with my Private Parliamentary Secretary about the extent to which the hon. Lady’s point has anything to do with the amendment.

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

Order. The Minister is concerned that the debate is wide-ranging. My intention is to allow some broad discussion at the start so that we can set the scene. However, Members have to speak to the amendment under consideration. I was giving a little bit of latitude at the start, so that we get the right atmosphere and clear one or two bits of the brushwork out of the way, but I would ask Members to address the amendment.

Paul Farrelly (Labour, Newcastle-under-Lyme)

On a point of order, Mr Havard. I have a series of questions for the Minister. I hope that a wide-ranging discussion can happen as part of a stand part debate.

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

Yes.

Helen Goodman (Labour, Bishop Auckland)

My question is whether that case, in which the child’s rehabilitation was damaged by the report which caused, in my estimation, serious harm, would be caught by the definition that the Minister has included in the clause. His intervention suggests that he is utterly dismissive of the point that I am making, which is worrying, even before we have embarked on the debate.

My other worry is that the Minister is setting the bar so high that someone in a situation like the one I have described would not be able to say that the stories written about them were untrue and created serious harm. I therefore emphasise the point made by my hon. Friend the Member for Stoke-on-Trent South: we must have greater clarity from the Minister on clause 1.

Denis MacShane (Labour, Rotherham)

I declare an interest: I was president of the National Union of Journalists some years ago and have taken a lifelong interest in defamation. I have both sued and been sued and have some modest experience. The debate on Second Reading was generalised and wide ranging, and anyone who is a journalist or who has dealt with any aspect of libel knows that the devil lies entirely in the detail, and I hope that the Committee can get things right.

We have only had, I think, three Defamation Bills in a couple of centuries, so this is a golden opportunity to try to move things forward. I would almost rather have the Committee sitting in a hemicycle, than our being arranged for and against, because I do not think there are any partisan or party differences between us. However, there may be substantial differences on how we should set matters right, based on different views within the Committee and later when we go back to the House. Unfortunately, the Bill is being discussed in parallel with the Leveson inquiry and it worries me that we shall either partly pre-empt, or not segue into, what Leveson will finally come out with, which will set both journalism, and the public’s right to have decent and honest journalism, on a much fairer path.

In supporting my hon. Friend’s amendment, I would say that I am very nervous of any Bill in which the first clause has an indefinable adjective set down in law. If any member of the Committee can tell me what “serious” is, I would be very happy. All hon. Members are serious people, some perhaps more serious than others, but seriousness lies in the eye of the beholder and the speaker. That is a substantial conceptual flaw in the Bill.

In other examples of damages litigation, there is a tariff. If someone loses a leg in an industrial or motor car accident, it is worth £100,000; if they lose two legs, it is worth £200,000. If someone plays for England and fails to score a goal, their legs are even more expensive. The point is to define what the damage is, but there is no definition here.

What worries me fundamentally is this: were I Rupert Murdoch or the editors of the Daily Mail or any other rich and powerful paper, this would be my dream clause, together with aspects of the Bill that we shall come on to, particularly the removal of libel insurance, which is one of the biggest safeguards for the ordinary citizen and allows the ordinary citizen to take on the most powerful and mightiest media moguls in our land. We shall discuss that point later, so I do not want to emphasise it right now.

The Bill began with a noble campaign, which many of us were involved in on a completely all-party basis, about abuses of the libel law—about Dr Simon Singh and others. Many of those problems are covered in later clauses. The fundamental issue—again I refer to my previous trade as a journalist and a journalistic trade unionist—is that defamation happens regularly in a continued relationship between our newspapers and the citizens of this land. The many cases that we have dealt with, such as libel tourism, and the problem of Dr Singh and others, are actually important exceptions and hopefully they will be addressed under the Bill.

There are endless examples of people whose lives have been substantially damaged. My hon. Friend the Member for Bishop Auckland said that politicians can look after themselves; that is perfectly true, but our children cannot. I am sure many Members in all parties have been attacked unfairly and dishonestly in newspapers and have not been given any chance for redress or correction or the opportunity to make a protest, and then found it was their children who were spat at and treated abominably in playgrounds. Perhaps hon. Members here have all been lucky enough never to have experienced that kind of defamatory attack in newspapers and their children have not suffered, but I certainly have and I do not think we should say it is not a problem for elected representatives.

Helen Goodman (Labour, Bishop Auckland)

I was not trying to suggest that Members of Parliament or other public figures have no human rights. I was trying to say that for different people, different thresholds of endurance might reasonably be expected, and that for vulnerable people the threshold might be lower than for the rich and powerful.

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

Mr MacShane, may I draw your attention to the fact that we are talking about the extent of publication, so while it is important to set the context could you bear that in mind?

Denis MacShane (Labour, Rotherham)

Very simply, Mr Havard. That is exactly my point. I do not think it matters much if a parish bulletin says something nasty about me, although it might matter to the other members of that parish council. Extent of publication is of the most vital importance, because there is a multiplier effect. When circulation is 2 million, 3 million, 4 million, 5 million or 6 million, the damage is infinitely more serious. We need to tease that out by definition. This is a very poorly worded first clause. That is the point I am trying to get into before we go on to the other clauses, where I think there might be more agreement.

Andrew Slaughter (Labour, Hammersmith)

I suspect the clause is not designed to be poorly worded. I suspect it is designed to be simply worded, but does that not risk setting a platform for endless satellite litigation over the next decade to define what the clause actually means?

Denis MacShane (Labour, Rotherham)

I fear my hon. Friend is right. Were a paper to say something nasty about any one of our fellow citizens, he would go to his lawyers and say, “How do I get an apology? How do I get a quick correction?” We know the PCC is useless, and we know the NUJ code of conduct is unenforceable. We shall see whether Leveson comes up with anything. In many other countries, one could go to a small claims court, which would quickly enforce adjudication and an apology, with very modest damages and a low level of lawyers’ fees.

The provision is an absolute gold mine for our honourable and learned friends who are specialists in libel law. I can see conferences going on, junior counsel being involved, silks being hired, and counsel opinions being drawn upon and given on both sides, in an endless debate about whether there is serious harm. Then it will depend entirely on a single judge. Later in the Bill, the inference is that jury trial for libel cases is to be removed, despite the fact that some of the most famous libel cases in British history, which have upheld both press freedom and the right of individuals not to be defamed, have been decided by ordinary men and women, not judges. Judges come from a particular part of the establishment, and our class relationships, and have their own particular views. I am very concerned that in the Bill we are handing over to one individual the right to work out his own mental interpretation of what is serious, and we are not in any way defining that.

I have a lot of respect for the Minister and do not mean this in any discourteous way. It is not a partisan point. Believe me, I would have thought that many colleagues in both the Conservative and Liberal Democrat parties would be making similar points. The first clause really has to be right. It needs to be much more thoroughly examined. The view may be that we can glide over it and get into the more technical stuff, where we might come to more generalised agreement, but there is a fundamental flaw in the Bill. We must get that adjective out of it, or, if we do not want to, we must define it and elaborate it much more seriously. Our job should be to give the small person the right not to be defamed, and to protect the ordinary citizen from the bullies of the giant media, with their endless legal resources, and their bottomless purse to fight cases that bankrupt people. I could go into personal anecdotes, but I do not want to.

We should not underestimate the extent to which this is a Murdoch and Daily Mail clause 1, which will strengthen their hands against people who are defamed in our country. I know that the Bill has been written with good intentions, but there is an iron law of unintended consequences in much legislation. If we get the provision wrong now, we will pay the price in very expensive cases. People will feel that they are broken on the back of legal fees because they cannot challenge the powerful media proprietors. In substantial cases, there could be endless opportunities for judicial review.

The Committee must look at the matter in much more detail. I politely suggest to the Government that we do not have to make haste; there is not a clamour for the Bill to become law in the next two months, or even in the next year. We must work solidly and consistently, now that we have the language in front of us, which was not the case when the draft Bill was discussed and debated in the Joint Committee, although its proceedings were worth while. Many specialist organisations, campaigning groups and libel reform campaigners who have been helping us over the past two or three years have other points to be dealt with later in the Bill, but the first clause, believe me—well, people do not have to believe me, but I have been a practitioner in the trade—tilts the balance of power against the individual citizen who has no resources and towards the bullies, defamers and people who have endless legal resources to call upon.

Several hon. Members rose—

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

Order. I shall call Mr Turner, but let us be clear: the amendment is about extent. It does not challenge “serious harm” or the definition of what that does to reputation; it is not a redefinition of those issues, which have now been ventilated clearly. I am sure the Minister will address them in his reply and will doubtless come up with whatever he wants about how further iterations may take place as the Bill proceeds through the House. Mr Turner, I ask you to address your remarks to the amendment, which is about extent of publication.

Karl Turner (Labour, Kingston upon Hull East)

I am very grateful, Mr Havard. I hope to stay within the confines of that warning.

I rise to speak to amendment 6, tabled by my hon. Friend the Member for Stoke-on-Trent South. It is fair to say from the outset that as far as I am concerned, the amendment is a probing one. I have some slight reservations, and I seek clarification from the Minister.

I have an interest. I was a criminal lawyer before my election to the House. I was not a highly paid libel lawyer, so I have to confess that my expertise in that area is extremely limited. I was a publicly funded criminal hack, and I am proud of that fact.

I think we all agree with the underlying principle of the clause. As I have said, I am searching for clarity in the face of some possible confusion. Clause 1 aims to introduce a hurdle for pursuing claims through imposing a serious harm test, meaning that a published statement can be defamatory only if it has caused or is likely to cause serious harm. That is, in my respectful submission, a sensible move. The current situation may allow trivial claims to continue at huge expense and has resulted in a contraction in freedom of speech, a point that is generally accepted.

The decision to apply such a hurdle will allow judges to strike out trivial claims—if they can be properly called that—early on, and reduce the expense and time taken by needless and vexatious litigants. Any legal practitioner will say that for a law to achieve its purpose, it should be free of unnecessary ambiguity. That is where my concern lies.

My hon. Friend would like a clearer statement of what is meant by “serious harm”, specifically how it differs from harm. There must be a clear indication of the intended meaning of serious harm, otherwise the clause is likely to fail in its principal aim, which is, as I have said already, to prevent vexatious claims.

The explanatory notes outline that the clause raises the bar for bringing a claim, but the lack of understanding regarding the true meaning of “serious harm” means that we do not know how high the bar is being raised. This is a concern not only for the lawyers and judges who will be required to interpret the law once it is passed, but also for the House, which has to scrutinise the legislation now. Unless we are clear about how high the bar has been set, we shall be unable to understand fully whether the Bill strikes the correct balance between freedom of expression and the protection of reputation, which I think we all agree is what the measure seeks to achieve. It would thus be helpful if the Minister could place on record some examples of what he considers “serious harm”.

Scratching away at the surface exposes the definition of “serious harm” to further ambiguity. The original text placed before the Joint Committee stated that defamation would only occur when there was “substantial harm”. The Joint Committee’s final report recommended that a stricter test should be applied, one that required proof of “serious and substantial harm”. In the Bill now before the Committee, the Government have chosen simply to use the term “serious harm”. As the Bill has progressed through the legislative process, its ambiguity has increased; we have moved from “substantial harm” to “substantial and serious harm” to “serious harm”, which is the current position.

The Government have made clear why they chose to reject the Committee’s recommendations for a test of both substantial and serious harm. As they stated in their response to the Joint Committee, they felt that

“the use of two separate terms alongside each other would be likely to cause uncertainty and litigation over what difference may exist between the two terms, which would add to disputes and costs.”

However, the Government have not been forthcoming in providing a detailed explanation of the practical difference between substantial and serious harm.

Helen Goodman (Labour, Bishop Auckland)

Does my hon. Friend agree that there is a relationship between the level of harm and the extent of publication?

Karl Turner (Labour, Kingston upon Hull East)

I agree with the sentiments of my hon. Friend. It is the issue that concerns hon. Members on both sides of this House, and indeed the other place.

My chief concern is that when the Bill leaves the Committee, we can safely say that we collectively ensured it was in the best possible state. When the Minister responds, could he clarify a number of issues and provide us with a clear statement on the meaning of “serious harm”? Before he attempts to do that, I admit it is potentially a very difficult task. It is probably something that most learned practitioners and judges will struggle with in future, but that is the point I seek to make.

Could the Minister explain how the definition of “serious harm” differs from just “harm”; why he decided to include a test of serious harm but not substantial harm; and the difference between “serious” and “substantial” harm? If I tried hard I could probably come up with an array of explanations, but is the Minister prepared to put on record his interpretation of “serious harm”? What does he feel is the difference between serious harm and substantial harm? Will he place some examples on the record? That is what I am keen to get.

As I have already said, we have an opportunity to assist each other to ensure that the legislation leaves this place in a better state.

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

It might be sensible, given the mood of the Committee, to have the stand part debate now, so that we can put all these things in context. It would be better to do it that way. If Members wish to raise issues, and if they have extra questions about the definition of serious harm—the Hippocratic oath test of “do no harm”—it is probably better to do that now, so that we will not need to do it later. We could handle it that way, if it is agreeable.

Paul Farrelly (Labour, Newcastle-under-Lyme)

On a point of order, Mr Havard. Is it your plan, after having a stand part debate now, to move on to amendments 4 and 5 separately, and then return to a decision on clause stand part?

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

Yes. We will take it formally when we get to it in the order that we originally agreed at the start of the day.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

It is a pleasure to serve under your chairmanship, Mr Havard. Thank you for clarifying that we can have a stand part debate now, given that the debate on amendment 6 has been fairly wide-ranging.

I seek the views of the Minister and the Government on the Libel Reform Campaign’s concerns about the clause, particularly what it sees as the need for an early strike-out clause. It would be driven by two things: extent of publication—a subject of the debate on the amendment—both here and abroad, and how here and abroad interrelate; and an early assessment of the actual serious harm to reputation. That is the only point that I wanted to make. I understand that the LRC considers that it is possible to achieve that through changes to the civil procedure rules, which I believe are set out in the pre-action protocol for defamation.

I would like some clarity from the Minister on, first, the Government’s view of the LRC’s proposals for an earlier strike-out clause and, secondly, whether, if the Government support that, it needs to be achieved through a change to the Bill, or whether it could be achieved through a change to the civil procedure rules.

Paul Farrelly (Labour, Newcastle-under-Lyme)

I have a short series of questions for the Minister. Where there is judicial discretion, and the intent, by and large, is to codify the law, it is important in our debates that Parliament’s intent is made clear.

The clause will introduce a threshold to deter trivial claims. That will be effective, as colleagues have said, only if trivial claims are struck out; they can be brought for a multitude of purposes. Libel cases often go on for much too long, racking up costs. I am sad to say that a small number of judges have allowed that to happen.

Given that the intent is to codify the law, I ask the Minister this basic question: which definition of defamation does he prefer? What definition of “defamatory” are the Government seeking to codify in this Bill? Thornton is mentioned in the guidance notes. Does he prefer the definition advanced by Mr Justice Tugendhat in the Thornton case?

My second question relates to “serious harm” and individuals. I would be very grateful if the Minister told the Committee why the Government have now settled on the term “serious”. Lord Lester, in his private Member’s Bill, had “material”; the draft had “substantial”; the Bill has “serious”; and the Libel Reform Campaign would like “serious and substantial”. To the Minister’s mind, what is the advantage of using the term “serious” to the exclusion of everything else?

My third point relates to the Government’s intention in relation to the test of serious harm as it affects corporates and incorporated bodies. Is the intention to incorporate serious financial harm and not just a fall in the share price, for example? My fourth question is about why the Government have settled on the term “is likely to”, when in Thornton, Mr Justice Tugendhat uses the words

“has a tendency to do”.

My fifth question is the one raised by the Law Society about the fact that the test, although it has a serious point, has a potential to front-load costs, as before trial people go through lengthy processes to demonstrate serious harm or what is likely to cause it. How do the Government propose to meet that point and avoid that situation?

That brings me to my sixth question. What use do the Government envisage the courts making of their existing strike-out provisions? My seventh point is about what use the Government envisage the courts making of early trials to decide meaning or whether matters are fact or comment.

That leads me to my final question—number eight, if I have kept track. When do the Government intend to bring forward the amendment to the civil procedure rules, as recommended by the draft Defamation Bill Committee, so that we and the legal profession can examine them to make sure that those amendments of court procedure give full effect to the intentions behind clause 1?

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

I intend to call Mr Flello as part of the stand part debate, after which the Minister can respond. Then Mr Flello will come back to his original amendment, which we began discussing at the start of the day.

Rob Flello (Labour, Stoke-on-Trent South)

Thank you, Mr Havard. You have thrown me slightly with this different course of things, but I appreciate your understanding on these matters.

We on these Benches welcome the introduction of a clause intended to ensure that trivial and vexatious claims are not allowed to proceed. At the moment, cases in which very little harm has been caused can be pursued at huge expense, chilling free expression as defendants back down, remove content or publish clarifications rather than face huge potential costs and lengthy proceedings, even when the claim has no merit.

An early hurdle, at which judges can strike out claims before costs mount, should reduce that chill effect. The Libel Reform Campaign has also welcomed the clause. As the Secretary of State stated on Second Reading,

“The hurdle is raised a little”—[Official Report, 12 June 2012; Vol. 546, c. 181.]

The LRC goes on to observe:

“However, Clause 1 does not in itself represent an early hurdle that weeds out trivial cases. The shift in the threshold of harm from substantial to serious may mean that at trial some cases that were previously lost by the defence are won, and by extension some out of court settlements predicated on a fear of losing a lengthy case which were previously conceded, are not. But Clause 1 is not in itself a way of ensuring that trivial and vexatious claims are not allowed to proceed in the first place.”

Other Ministers, and indeed officials, have made it clear that the intention of this clause is to raise that bar. However, that needs to be restated in Committee debates and clearly stated in the explanatory notes, too, to ensure that the intention of Parliament is beyond doubt. That should assist judges in deciding early cases that come before the courts.

Clause 1 is drafted in a manner consistent with the position set out by Lord Justice Tugendhat in the recent case of Thornton v. Telegraph Media Group Ltd, in which he referred to the threshold as the seriousness of the defamatory statement. However, the courts have generally taken a dual approach when looking at whether a case should proceed, considering both the seriousness of the harm to reputation of the defamatory imputation or imputations and the extent of publication in the jurisdiction. That approach was supported by the Joint Committee on the draft Bill. It seems reasonable to suggest that the approach that has been taken in case law should be adopted in statute for the sake of clarity.

The question of the extent of publication and a proportionality test were set out clearly in the well known Appeal Court judgment of Dow Jones and Co. Inc. v. Jameel. Judgments in recent cases, such as Davison v. Habeeb and Ors, and Tamiz v. Google Inc. and Anor, have considered both the serious harm threshold and the extent of publication.

One of the items set out by the Joint Committee on the draft Bill, with which I agree wholeheartedly, is that there should be core principles. One of those principles is about reducing cost. The Committee states that

“the reduction in the extremely high costs of defamation proceedings is essential to limiting the chilling effect and making access to legal redress a possibility for the ordinary citizen. Early resolution of disputes is not only key to achieving this, but is desirable in its own right—in ensuring that unlawful injury to reputation is remedied as soon as possible and that claims do not succeed or fail merely on account of the prohibitive cost of legal action. Courts should be the last rather than the first resort”.

Clause 1 in itself is acceptable, but it does not address the issue of the early hurdle, which is why I hope later to visit new clauses that might strengthen that point. I would like the Minister to stand up, in this debate on clause stand part and amendment 6, to put on the record why the Bill includes the word “serious”; why the Government feel that “serious harm” raises that hurdle; and why he feels that having “serious harm” in the opening part of the Bill will stop vexatious cases. Will he also give courts a clear steer as to what the Government mean by “serious harm”?

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

I call the Minister. We are dealing with both clause stand part and amendment 6.

Jonathan Djanogly (Conservative, Huntingdon)

I welcome you, Mr Havard, and Mr Chope to the Chair for the next few days; we look forward to you steering us through. I agree with the hon. Member for Stoke-on-Trent South that a high degree of consensus was shown on Second Reading, which I hope we can emulate in this Committee.

We start with clause 1, which introduces the test of serious harm. With the direction of the Chair, I shall speak not only to amendment 6, but to the wider stand part debate.

Amendment 6 would amend the serious harm test so that it reads:

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

That would narrow the effect of the clause by focusing on one aspect of the publication, namely its extent. What that would mean, however, is not clear. Clause 1 takes existing case law, which sets out what is sufficient to establish that a statement is defamatory, and raises the bar to a modest extent by requiring that the harm to reputation must be serious; I will return to that in the stand part debate. The clause will permit the court to consider all the relevant circumstances. That, in the Government’s view, is what is required.

To focus solely on the extent of the publication, as the amendment seeks, would make the law less clear and could open the way to a lengthy argument about what is meant by “extent”. Does it mean, for instance, method of publication or is it a reference to jurisdiction? That is entirely unclear. What is certain, however, is that the amendment would have the effect of preventing the court from considering any other aspect of the publication that may be relevant, such as the impact or likely impact of the statement itself on the claimant’s reputation.

It is important that the court should be able to consider all the relevant circumstances when deciding whether a statement has caused, or is likely to cause, serious harm to the claimant’s reputation. I am concerned that the amendment would narrow the scope of the court’s considerations in an unhelpful way. For that reason, I hope that the hon. Gentleman, who I appreciate put this forward as a probing amendment, will agree to withdraw it.

I move on to the definition of defamation, which was raised by the hon. Member for Newcastle-under-Lyme. Defamation is

“the collective term for libel and slander, the torts which protect a person’s reputation. Defamation occurs when a person communicates material to a third party, in words or any other form, containing an imputation against the reputation of the claimant. Material is libellous where it is communicated in a permanent form, or broadcast, or forms part of a theatrical performance. If the material is spoken or takes some other transient form, then it is classed as slander. Whether material is defamatory is a matter for the courts to determine.”

The introduction of a serious harm test in clause 1 of the Bill reflects the Government’s view that there is merit in legislating to ensure that trivial and unfounded actions do not succeed. To fulfil that aim, the draft Bill sought views on the test of substantial harm, which was intended to reflect the current law as articulated by the courts in a series of cases—and I shall come back to that further soon. However, in light of the views of the Joint Committee on the draft Bill and the balance of opinions received on consultation, we have decided that there is a need to raise the bar for bringing a claim. Clause 1, therefore, provides that for a statement to be defamatory it must have

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

The provision extends to situations where publication is likely to cause serious harm in order to cover situations where the harm has not yet occurred at the time when the action for defamation is commenced.

The question of whether a particular publication has caused or is likely to cause serious harm will, of course, be a matter for the courts to determine in light of the individual circumstances of the case. However, in general terms we believe the test represents a higher hurdle than that which currently applies and it will nudge the threshold up, to a modest extent. I can confirm to the hon. Member for Newcastle-under-Lyme that that will help to discourage trivial claims, but it is not unduly restrictive on claimants’ rights and will still enable them to take effective action to protect their reputation when it is seriously harmed.

Simon Hughes (Liberal Democrat, Bermondsey and Old Southwark)

The Joint Committee recommended “serious and substantial”, as I recollect it. Could the Minister put on the record the Government’s view as to why “serious” is the better choice and what the Government’s understanding is of the difference between “serious” and “substantial”?

Jonathan Djanogly (Conservative, Huntingdon)

I shall come back to that later in my remarks.

The hon. Members for Bishop Auckland, Kingston upon Hull East and Stoke-on-Trent South asked the wider question of how we get to the meaning of “serious harm” and how that is justifiable in the context of previous case history. In a series of cases over the past century, the courts have considered the question of what is sufficient to establish that a statement is defamatory. A recent example that has been mentioned is Thornton v. Telegraph Media Group Ltd, in which an earlier House of Lords decision in Sim v. Stretch was indentified as authority for the existence of a “threshold of seriousness” in what is defamatory. There is also potential for trivial cases to be struck out on the basis that they are an abuse of process because so little is at stake. In Jameel v. Dow Jones and Co., it was established that there needs to be a real and substantial wrong. In Jameel, the Court of Appeal identified that a form of abuse of process exists when it can be demonstrated that the benefit attainable by the claimant in an action is of such limited value that the gain is not worth the candle and the cost of the litigation would be out of all proportion to the benefit to be achieved.

This clause aims to encapsulate the tests applied in these and other cases while raising the bar modestly by requiring actual or likely serious harm to be shown. In Mardas v. New York Times Company and another, the High Court allowed the claimant’s appeal against the Master’s decision striking out the claim, and noted that it would be only in rare cases that it would be appropriate to strike out an action as an abuse on the basis described in Jameel. The Master’s decision in Mardas had been reached on the basis that there had been very limited publication here. This was estimated as approximately 177 hard copies of the New York Times article and approximately 31 hits on the online version of the article and a similar article in the International Herald Tribune. The claim related to matters that had happened some 40 years ago. The High Court considered that there was no basis for concluding that there was no real and substantial tort in this jurisdiction. It commented that,

“a few dozen is enough to found a cause of action here, although the damages would be likely to be modest”.

Of course, in practice, as the right hon. Member for Rotherham pointed out, case law will develop on the clause. I do not think it as the role of this Committee to second-guess judicial decisions as to how the law will develop, or indeed be applied in the constituency case example cited by the hon. Member for Bishop Auckland.

Helen Goodman (Labour, Bishop Auckland)

I am not familiar with all the case histories that the Minister describes, but he was talking about one in which someone was referring to an episode 40 years previously. Does the statute of limitations apply to defamation?

Jonathan Djanogly (Conservative, Huntingdon)

The statute of limitations does apply, but in terms of making a claim, not previous case history.

The right hon. Member for Rotherham also asked whether a substantial amount of evidence would be required to show whether there was serious harm. In many cases, the existence of serious harm will not be a matter of dispute. When it is, there will be a need for some evidence to be provided, but we believe that it is better for this to be resolved at an early stage, and that only cases involving serious harm should proceed.

The right hon. Member for Carshalton and Wallington and the hon. Members for Kingston upon Hull East and for Newcastle-under-Lyme asked whether it should be easier for claims to be struck out when the serious harm test is not met. We do not consider that a provision for strike out is necessary. Our intention is that the normal rules, as set out in the civil procedure rules, will apply. It seemed preferable to rely on those rules than to create a new and unprecedented procedure for mandatory strike out. If the court decides that the serious harm test is not satisfied, it will be able to use its power under the CPR to strike out the claim.

Andrew Slaughter (Labour, Hammersmith)

I am not sure that the Minister is engaging with some of the points made by Labour Members—we are already into déjà vu with the Legal Aid, Sentencing and Punishment of Offenders Bill.

There is agreement on what is good about clause 1, but we have raised the concern that there might be problems—satellite litigation or preliminary points—that involve costs. What will be done to address that? We want definitional points on what serious harm may mean, and it is not good enough for the Minister just to say that that is not the job of this Committee. If we are making such a substantial change to the law, we need to give some guidance. Otherwise, to take the point made by my right hon. Friend the Member for Rotherham, this will become a Murdoch and Daily Mail clause, because it will discourage even those with meritorious cases from going to court because they will not know whether they have any prospects.

Jonathan Djanogly (Conservative, Huntingdon)

The hon. Gentleman’s point is the same as that raised by the right hon. Member for Rotherham. As I said, the Government’s position is that we acknowledge that clause 1 and other provisions of this Bill will lead to judges having to take decisions about how the law will be interpreted. I do not think I can add to that.

The hon. Member for Newcastle-under-Lyme asked why we could not refer to a tendency to cause harm. He also asked about the front-loading of costs. Our core aim through the clause is to discourage trivial claims. Using a more abstract term, such as whether the publication has the tendency to cause serious harm, rather than focusing on whether the publication is actually likely to cause harm, could make it more likely that doubtful claims would be able to proceed.

In Thornton v. Telegraph Media Group Ltd, Mr Justice Tugendhat, when discussing the meaning of defamation and the threshold of seriousness used in both terms, said:

“Definitions (3), (5), (6) and (7)…establish that a tendency or likelihood is sufficient.”

We recognise that the introduction of a serious harm test may involve some front-loading of costs, but we believe that it is better to resolve that at an early stage so that only cases involving serious harm proceed.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I should like to bring the Minister back to the matter of early strike-out. He did not feel that anything needed to be done in the Bill, because it would be covered by the normal civil procedure rules instead. Does that mean that the civil procedure rules will need changing, or will the existing rules suffice?

Jonathan Djanogly (Conservative, Huntingdon)

The existing procedures will suffice, and an application for strike out would be made under rule 3.4 of the civil procedure rules.

The hon. Member for Newcastle-under-Lyme asked about procedural issues and whether there is a need for new mechanisms to resolve defamation cases cheaply and quickly. As I set out clearly on Second Reading, the answer is yes. The Government recognise that we must get that important issue right. Alongside the Bill, we intend to introduce proposals for a new procedure aimed at resolving key preliminary issues as early as possible to help to reduce the length and cost of defamation proceedings.

In addition, we will encourage the use of mediation and other forms of alternative dispute resolution in defamation cases, and support the strengthening of the defamation pre-action protocol, so that parties are more strongly encouraged to use mediation or early neutral evaluation, and so that those unreasonably refusing to do so are penalised if and when it comes to the awarding of costs. We will also give further consideration to how cases that reach the courts can be best dealt with.

Mr MacShane rose—

Paul Farrelly rose—

Jonathan Djanogly (Conservative, Huntingdon)

I give way to the right hon. Member for Rotherham.

Denis MacShane (Labour, Rotherham)

That must be slight seniority—I thank the Minister.

The Minister’s last comments are a helpful move in the right direction, if there is definitional clarity and that is clear in law. When the Minister talks about trivial offences, we are all with him, but I am worried about what the powerful media oligarchs call trivial people, who do not have any strong rights. The Minister was getting into interesting territory in which we can perhaps find a lot more agreement. It has to be in law, however, that somebody who is defamed, and has a totally dishonest and untrue statement made about them—not a politician, but somebody in Rotherham or anywhere—can quickly go and get a correction. That is all; it is not about big costs or damages, but the truth finally being put on record. If we can achieve that through this law, in addition to all the other protective stuff arising from our wider concern that gave rise to the Bill, it will be very welcome.

Jonathan Djanogly (Conservative, Huntingdon)

The right hon. Gentleman makes a fair point with which I do not disagree. What is trivial to one person might not be trivial to another. The court will have to look at individual circumstances to consider what is trivial in any particular case.

Paul Farrelly (Labour, Newcastle-under-Lyme)

I welcome the Minister’s comments on introducing new procedures, but we then get into the question of when, and the definition of the word “alongside”. What did he mean by that? When will the new procedures be produced?

Jonathan Djanogly (Conservative, Huntingdon)

I can confirm that the procedure rules are being addressed as we speak. It is not something that will be starting; it is happening. We have to work in conjunction with the judiciary and those who set the court rules and so forth, but that work is happening.

Helen Goodman (Labour, Bishop Auckland)

How does the Minister envisage that changes to the civil procedure rules will interlink with reforms to the PCC?

Jonathan Djanogly (Conservative, Huntingdon)

Obviously, the Leveson inquiry is ongoing, but so is passage of the Bill. It is unlikely that the Bill will receive its Second Reading in the upper House before the summer recess, so I hope that we will be able to take on board elements of Leveson. There will be an interaction, but the initial decision was taken that we should not delay the Bill until Leveson finalised, because we felt that the defamation element could be separated.

Andrew Slaughter (Labour, Hammersmith)

Am I to understand that there will be some clarification on costs—either ways in which costs can be limited, or how provision can be made for claimants to bring meritorious actions when there is serious harm? Secondly, is the Minister completely set against giving any guidance on what is meant by clause 1? I compare it with clause 4, in which where there is a list of criteria. One element of guidance might be on extent, which is covered in amendment 6, while others might be timing and the characteristics of the claimant. Given that the Bill otherwise maps out defences in quite a detailed way, why is clause 1 alone left as a blank canvas?

Jonathan Djanogly (Conservative, Huntingdon)

I hoped to fill in some of the canvas by giving the Committee a sense of the history of how we got to the concept of serious harm. Perhaps the hon. Gentleman would like to read the report in Hansard . If he then has further comments, I would be pleased to address them.

The hon. Gentleman asked why I had not addressed costs, but I do not believe that they have been mentioned before in this debate. That is an important point. As I said on Second Reading, the Government have committed to review that issue. On the question of the extent to which cost complements procedural change, there is a synergy. As the shadow Secretary of State, the right hon. Member for Tooting (Sadiq Khan), pointed out on Second Reading, if we can improve the procedures such that defamation claims go through the courts quicker, the net result should be lower costs. To that extent, the two points are interlinked, and I can confirm that the Government will look at the question of costs in that context.

Paul Farrelly (Labour, Newcastle-under-Lyme)

I mentioned costs in my questions, and this comes back to procedures. The ongoing work is welcome, but will the Minister give us some idea of the timing? Will the work be complete by Third Reading? Will it be complete when the Bill goes to the Lords? Will it be complete when the Bill perhaps shuttles back to the Commons from the Lords?

Jonathan Djanogly (Conservative, Huntingdon)

We intend that the work will be complete and effected by the time the Bill comes into force.

My right hon. Friend the Member for Bermondsey and Old Southwark asked why we had not adopted the Joint Committee’s recommendation on a test of seriousness and substantial harm. We are worried that the use of two terms alongside each other would be likely to cause uncertainty over and litigation on what difference may exist between them, which would add to disputes and cost while making little or no difference in practice to the outcome of cases. Substantial might, for example connote big, but relatively modest accusations may have serious impacts. We should use a common, well-understood word and rely on the good sense of the courts.

Simon Hughes (Liberal Democrat, Bermondsey and Old Southwark)

I am not at all against the conclusion that it is better to have one word than two. I know that this is difficult ahead of the courts making judgments, but it would be helpful if the Government could set out what they currently understand the definitions of the two words imply so that we can be clear what the test will be, if we pass the Bill as it is.

Jonathan Djanogly (Conservative, Huntingdon)

I hear what my right hon. Friend says and we will take that on board.

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

The debate has included a discussion of costs, which was not strictly relevant to the clause, but I have tried to provide a canvas so that we can clear some of the brush work. We can doubtless come back to such points as our consideration moves forward, but we will now return to amendment 6.

Rob Flello (Labour, Stoke-on-Trent South)

We have had an interesting, wide-ranging discussion about amendment 6, to say the least. The Minister says that the meaning of “the extent of” is not clear, and that the amendment is therefore unclear, but I come back to the point that neither is there clarity about the definition of “serious harm”. Despite everything the Minister said about clause 1, we are still none the wiser as to what “serious harm” means. He says that the Government’s intention behind the clause is to discourage trivial cases but, again, without even a steer as to the meaning of seriousness, the clause moves us no further forward.

We have heard that the civil procedure rules will be changed and that mediation is something that the Government wish to push but, to quote a phrase, warm words butter no parsnips. Unless such changes are actually brought in at the same time as or before the Bill becomes an Act, this will be all meaningless.

We have heard extremely good contributions from both sides of the room, but I want to single out the point made by my right hon. Friend the Member for Rotherham about oligarchs thinking that there are “trivial people”, because that encapsulates the situation well. Sadly, it is not just oligarchs who think that way, because a small number of people in the media also think that there are trivial people. It is incumbent on the Committee—and, indeed, on this House—to make sure that we stand up for those who people think are trivial people. The Minister said that a substantial and serious two-limb test would lead to more litigation, but we are going to get that anyway, because there will be litigation about what seriousness means.

I am disappointed that my probing amendment has not done what I hoped it would: draw the Minister to give the Committee an illustration of what “serious harm” might be and some rationale behind the approach. We have not heard anything to reassure me about clause 1 and although I will not press the amendment, I will have another go at persuading the Minister at a later stage.

Helen Grant (Conservative, Maidstone and The Weald)

Does not the hon. Gentleman accept that common law and precedent in the judicial system will quite quickly sort out the meaning of “serious harm”?

Rob Flello (Labour, Stoke-on-Trent South)

The Bill is designed to prevent the situation in which costs create a chilling effect. My worry is that somebody with very deep pockets will quite happily go off to court to test the meaning of serious harm, but the other party will not be able to sustain the cost of doing that and will therefore cave in. That was why I hoped that the Minister would give the Committee—and therefore courts and parties to possible actions—an early indication of what the test is likely to be. We have not heard that today, but I will try to find another way of persuading the Minister.

Andrew Slaughter (Labour, Hammersmith)

It is slightly worse than that. Libel is already the least predictable and most expensive form of litigation. We are starting with this two-word phrase “serious harm”. The Minister has admitted that there may be front-loaded costs and litigation, which I do not think will be brief, to define what that is over time, which will involve various amounts of case law. We will therefore make the situation worse from the view of justice being done when costs are a barrier to that justice. That is why we need more definition and more clarity before we go ahead.

Robert Flello rose—

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

Order. May I draw your attention, Mr Flello, to the extent to which you were trying to get a definition through the words “the extent of”?

Rob Flello (Labour, Stoke-on-Trent South)

Point well taken, Mr Havard. I will not add to what my hon. Friend said, which was extremely meritorious. I beg to ask leave to withdraw the amendment.

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

We will now move to amendment 4, with which it will be convenient to consider amendment 5. Having completed that debate, we will return formally to the stand part vote that we will be required to undertake.

Paul Farrelly (Labour, Newcastle-under-Lyme)

On a point of order, Mr Havard. Before we move on to the amendments, I seek clarification from you regarding the stand part debate. The Minister said that he believed that he had answered all the questions. What steps can be taken if his belief is mistaken? I asked how the definition of serious harm applied to corporations, but that was not dealt with his reply.

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

There will be discussions later about public interest and the extent to which the Bill may or may not apply and there will be other opportunities for the Minister to give whatever clarification he needs to give us in that regard.

Helen Goodman (Labour, Bishop Auckland)

I beg to move amendment 4, in clause 1, page 1, line 4, at end add ‘or to the reputation of the claimant’s close relative if that close relative died within the year prior to the defamatory statement being published’.

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

With this it will be convenient to discuss amendment 5, in clause 1, page 1, line 4, at end add—

‘(2) For the purposes of this section, “close relative” includes the claimant’s—

(a) spouse or partner;

(b) son or daughter;

(c) brother or sister; and

(d) father or mother.’.

Helen Goodman (Labour, Bishop Auckland)

I hope that the amendments are self-explanatory. They would enable claims to be made by close relatives when statements that would be defamatory against someone if they were still alive are made shortly after they have died. I have included in amendment 4 a one-year time limit. I am not convinced that one year is the right period—I am open to its being two years—but it is important to include a time limit, because I do not intend to prevent or inhibit genuine historical inquiries into things that went on some time in the past. Clause 5 defines “close relative” for the purposes of amendment 4.

We raised this matter on Second Reading last Tuesday and it was taken up by the First Minister of Scotland during his evidence at the Leveson inquiry. When Committee members hear the examples that I shall provide, they will understand that they are not trivial. I am not talking about obituaries that are not quite as adulatory as people might like to read about their good friends. We need to deal with this matter. There was a moral convention in this country once upon a time that people did not speak ill of the dead. That general shared behaviour has collapsed to such a degree since the original law in the 19th century that we need to return to it.

I shall illustrate my remarks by mentioning three people to whom this defamation has happened. First, I was visited by a constituent whose son, a soldier, died overseas in unexplained circumstances. Several years down the track, the inquest still has not taken place, so it is true that the circumstances are unexplained. We know what happened—he shot himself—but not why or whether it was an accident or deliberate. Following his death, unkind and unsubstantiated speculation about his personal life and the reasons for his death, which were, and are, hurtful to his family, were published in a national newspaper. However, the family has no right of redress.

Secondly, the now notorious piece by Jan Moir following the death of Stephen Gately amounted to a homophobic attack. I will not read the whole article, because it would take far too long, but I want to read out a couple of things to demonstrate the seriousness of this piece:

“The news of Stephen Gately’s death was deeply shocking … Fans know to expect the unexpected of their heroes, particularly if those idols live a life that is shadowed by dark appetites or fractured by private vice…Whatever the cause of death is, it is not, by any yardstick, a natural one…the circumstances surrounding his death are more than a little sleazy…For once again, under the carapace of glittering, hedonistic celebrity, the ooze of a very different and more dangerous lifestyle has seeped out for all to see.

It is an extremely unpleasant attack, and many readers protested about it. Everyone could see that this was totally unacceptable.

The third case—and, I feel, the saddest—is the evidence that the Watsons gave about, first, the murder of their daughter, and secondly, the suicide of their son. They gave this in evidence to Lord Justice Leveson:

“On 10 April 1991 our much loved and now sorely missed 16 year old daughter, Diane Watson, was stabbed to death … I cannot describe in this statement the shock and grief that my family and I felt following the tragic death of Diane. It was a harrowing and difficult time for us all. This was made worse by the way Diane’s murder was portrayed in the press and in particular by certain joumalists. On 2 August 1991”—

so, a few months later, the Glasgow Heraldgave

“a false account of the circumstances surrounding Diane’s murder, and contained a number of huge inaccuracies.”

The account

“did not match the evidence the court heard or the findings it made.”

There was a trial of the murderer, and on

“26 June 1992 the Glasgow Herald published a second article by Mr McLean…The comparisons it made again gave a misleading picture of the situation…Then, later that year, in September 1992, a feature … about British children serving life sentences was published in Marie Claire magazine.”

Again, the description was wholly false. The mother of Diane Watson said:

“While I recognise the importance of journalists being able to write freely about such issues, I strongly object to them publishing untrue and defamatory material about the victims of crime in the process.”

The second or third article was based on

“contemporaneous press cuttings of the argument put forward by the defence at trial…The articles…had a devastating effect on our whole family at a time when we were struggling to come to terms with the murder of our daughter. It was extremely distressing and traumatic to read these misleading and defamatory accounts in the press. Tragically, it was all too much to bear for our dear son Alan and he took his own life on 5 December 1992. He was found holding copies of the articles referred to above. We are in no doubt that the way Diane’s murder was misreported by Meg Henderson, Jack McLean and others contributed directly to his tragic death…As a family, we sought the advice of a solicitor, who explained that we could do nothing to hold the journalists or publishers to account given that Diane was deceased.”

Alan, her son, also found this impossible to come to terms with. She continued:

“To make matters worse, on the day of Alan’s funeral, 11 December 1992, a third article by Jack McLean was published in the Glasgow Herald. It made scathing reference to a House of Commons debate which had taken place shortly after Alan’s death and during which our local MP, Michael Martin”—

known to many hon. Members—

“criticised Mr McLean about his insensitive articles. We never thought that he would sink to such a low and publish a further deeply offensive article at this time. It was an unethical and unforgivable intrusion into our grief…A full apology and retraction would have helped rectify the damage done to the good name and reputation of our dear daughter Diane and would have done something to ease the added trauma inflicted on our…son…While I fully endorse freedom of expression, it seems to me that journalists should have to behave responsibly when exercising this right, especially when they are intruding into the private grief of the families of victims of crime.”

That final story is shocking. All hon. Members will agree that we need to look again at the freedom to write what would be defamatory statements if the person were alive when they are deceased. As is evident in the story, such articles can have serious consequences. The events show that vicious character assassination based on lies is often more damaging to someone after death than to a living person, because they cannot answer back. It adds to the grief and sense of injustice felt by close relatives. It is time Parliament addressed the issue.

The final case that I raised was a Scottish one, and the First Minister has said that he wants to make some changes to Scottish law. The Under-Secretary has tabled some amendments himself that will enable part or all of the Bill to apply to Scotland. I would like to know why Ministers have not dealt with the issue. In the Scottish Parliament, the Public Petitions Committee has looked into it and consulted on it. I do not know why the issue was not included in the Minister’s consultation. The discussion on defamation has been going on for many months. Unless the Minister says that he is going to carry the matter forward, which I hope he will do, because I do not think party politics is involved—I am sure that all hon. Members are as shocked as I am after hearing about the terrible episodes—and unless we secure progress from the Minister, I shall push the amendment to a vote.

Ben Gummer (Conservative, Ipswich)

The hon. Member for Bishop Auckland has raised a fascinating and troubling series of cases. There are extra dimensions to the problems that she has identified—not just cases of defamation of the dead, but of gross intrusions of privacy of those who have died. It need not just be in the first year after someone’s death, but for many years after, while their relatives are still living. The hon. Lady will know of many cases where articles have been written 20 or 30 years after someone’s death that have caused enormous hurt and harm to other people.

The problem with the amendment is that it could introduce into English law, although I am no expert, one of the first instances in which action may be taken on behalf of someone who is dead. I wonder whether the correct forum for that is Lord Leveson’s inquiry. Perhaps a proper submission could be made on issues of privacy and defamation and the practices of the press, especially when someone is unable to defend themselves because they are dead, and not introduce into English law a concept that I think will be difficult to sustain in this and in other fields, where action is brought on behalf of someone who is unable to testify because they are not living.

Denis MacShane (Labour, Rotherham)

I want to support what my hon. Friend the Member for Bishop Auckland said. The principle of “de mortuis nil nisi bonum” is a good one, but in my view, it does not extend through eternity. We say no ill of the dead immediately after they die, but after that, I am not sure that that can be extended. There are a few politicians about whom, perhaps when they die, people will have some hard things to say.

We have the odd case in Parliament of the late Gwyneth Dunwoody, the former hon. Member for Crewe. She was the daughter of Morgan Phillips, who was general secretary of the Labour party for many years after the war. Mr Phillips and Richard Crossman went on a Socialist International trip to Venice in the late 1950s and enjoyed the fine wine that Venice has to offer. A report in The Spectator hinted that that gathering of distinguished socialists from all over Europe was fluent and well oiled late into the night. Mr Phillips died shortly afterwards, and Mrs Dunwoody tried to sue The Spectator to restore the reputation of her dead father. Richard Crossman’s diaries then came out, and he revealed that it was a stonking, 10-bottle evening and that they were well away, discussing socialism late into the night.

Many people felt that Mr Phillips’s reputation as a great general secretary of the Labour party, a great international socialist and a great drinker had been well and truly established and that perhaps Mrs Dunwoody, observing the filial duties that we all owe our father— I hope my three daughters owe those duties to me—was going a little beyond the grave in insisting that, somehow, that which was true should be declared not to have happened.

The amendment limits such claims to only one year, after which the sluice doors are opened. We are into the territory of journalists’ behaviour and code of conduct. In that sense, the PCC has let us down grievously. The code of conduct for the National Union of Journalists is non-enforceable, so I would like it to be included in the Bill as a reference point for judges. That also touches on Leveson, on which, to some extent, I share the view of the hon. Member for Ipswich.

Paul Farrelly rose—

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

Before you begin, Mr Farrelly, inevitably there will be references to the Leveson inquiry and everything else. I do not intend to try to do the Leveson inquiry here, you will be glad to hear. Discussions about Bollinger Bolsheviks are very entertaining, but the amendment seeks to set a time limit, so I appeal to Members so that, as we proceed, we address the technicalities, as well as the context.

Paul Farrelly (Labour, Newcastle-under-Lyme)

Thank you, Mr Havard. I do not intend to take a year to make my remarks, which will be short.

I sympathise greatly with the points made by my hon. Friend the Member for Bishop Auckland, but I also agree with the hon. Member for Ipswich and, to some extent, my right hon. Friend the Member for Rotherham that this is a question of press standards.

One of the unfortunate consequences of our libel law’s restrictiveness is that quite often the truth only comes out when a person is dead. I invite the Committee to think about what may or may not have been reported after Robert Maxwell’s death. Had the amendment been in force, the full truth might not have come out for another year. Although I sympathise with my hon. Friend the Member for Bishop Auckland, I encourage her not to press the amendment, because doing so would make the Committee and Parliament appear not to sympathise with the cases she has brought to our attention.

Rob Flello (Labour, Stoke-on-Trent South)

If my hon. Friend the Member for Bishop Auckland decides to press the amendment, Opposition Members should support her simply to put on record the importance of the issue. I suspect that the Minister would not join us, but we shall not imply any criticism of the Government for not supporting the amendment. I fully understand why he would not do so, but we will press the amendment to put down a marker that this is an important issue that needs to be addressed.

Jonathan Djanogly (Conservative, Huntingdon)

Amendments 4 and 5 would allow certain categories of close relatives to bring defamation actions in respect of statements made about a deceased person up to a year after that person’s death. A long-established principle of common law is that a deceased person cannot be defamed because reputation is personal. A defamatory statement about a deceased person accordingly does not give rise to a civil action for defamation on behalf of his or her estate. Relatives of the deceased also have no right of action, unless the words used reflect on their own reputations. That reflects the central principle in civil proceedings generally, which is that a claim for damages can be brought only by the person who has suffered the injury, loss or, in this case, damage to his or her reputation as a result of the act or omission of another person.

The Government believe that there would be significant difficulties with attempting to allow relatives to bring defamation actions on behalf of deceased persons, even to the limited extent proposed in the amendments. As I have indicated, it would go against the long-standing and fundamental principle of the law that reputation is personal. That could create a precedent for further extensions to the law that would have a broader impact on the media and publishing industries, and create difficulties for those involved in historical analysis and debate.

In addition, practical difficulties would arise. For instance, it would be unfair to bar the defendant from using the defences that exist for a defamation action, and that could result in arguments over the truth of allegations about the deceased’s character, which would inevitably be distressing for the family. My hon. Friend the Member for Ipswich, the right hon. Member for Rotherham and the hon. Member for Newcastle-under-Lyme suggest that this is more an issue for Leveson and a matter of privacy, and I believe that that is a good observation. I understand that Mr and Mrs Watson have given evidence to the Leveson inquiry.

Although restricting claims to situations where the alleged defamatory statement is made within a year of the deceased’s death would mitigate the broader impacts and mean that only a limited number of claims could be brought, it would not in itself prevent potentially defamatory articles about the deceased person from being published and could have the effect of simply delaying publication until the one-year period had expired. In light of those difficulties, I hope that the hon. Member for Bishop Auckland will agree to withdraw her amendment.

Helen Goodman (Labour, Bishop Auckland)

I thought that the drafting of amendment 4 made it absolutely clear that the claimant is not the deceased person but their close relative, so I feel that the point raised by the hon. Member for Ipswich has been dealt with.

Some hon. Members have said that there could be a problem if someone waits for 12 months and then the articles appear, but I suggest that a pause and a period of time for checking the facts would probably make a substantial difference to the sorts of articles that are written. In some cases, it is quite clear that articles have been written within an incredibly short time and before the person’s funeral has been held, and that the stories have not been properly checked.

The Maxwell case was raised and the point was made that had we had these laws, we would not have found out the truth—but that is the whole point. The point about the stories that were written about ordinary people who did not have a lot of money or clever lawyers is that they were untrue, and it is because they were untrue that there is a problem.

It is all very well to say that the issue is about press standards and we are not concerned with that, but the whole Bill is about press standards and a set of legal rules that will impact on how the media operate. That is why a large number of people in the media have been begging us to bring forward parts of this Bill. It is simply absurd to say that press standards are one thing and the law is another.

Ben Gummer (Conservative, Ipswich)

May I clarify my point because I feel that the hon. Lady did not understand what I was driving at and I did not make it entirely clear? Although the claimant is the relative, the claim is on behalf of the reputation of someone who has died. The point of the Bill is to protect someone’s reputation so that the defamation that has taken place will not impinge on their future life. The person who has been defamed has died, so there is no reputation to protect; that is the point of the common law being such. What the hon. Lady proposes would mean that no one would be there to testify in court and the truth of the evidence could not be tested.

The hon. Lady is entirely correct to raise those cases; there might well have been some great travesties. But people who have brought libel cases have often been found to be untruthful themselves. It would not be possible to test that in court if they were dead; it would be possible only to hear from those who knew them. The amendment would fundamentally unbalance justice.

Helen Goodman (Labour, Bishop Auckland)

I am sorry, but I do not think the hon. Gentleman is right about that. If he were, there would be no point in having inquests to find out why people had died—but we do have a system of inquests and they do inquire into precisely the kind of issues that the articles, which have so hurt families and relatives, are about.

I agree with the hon. Gentleman that privacy is also an issue—I shall say something about that when we get to another clause—but it is really not good enough for the Committee to shuffle the matter off, as with so many other problems, on to Lord Justice Leveson and say that he can deal with it. As I pointed out during the earlier debate, there will then be an argument that goes, “Oh, so we have got to have standards that relate to behaviours where there is no legal framework”, and the whole thing will sort of float around, not rooted in anything. That is why I wish to press amendment 4 to the vote.

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

We now move to stand part for clause 1, as we discussed earlier.

Rob Flello (Labour, Stoke-on-Trent South)

I may have misheard the Minister; I think he said a moment ago that on Second Reading he set out the history of how the Government had reached their current position on “serious harm”—

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

Is this a point of order, Mr Flello?

Rob Flello (Labour, Stoke-on-Trent South)

It may well become one if you feel that that would be more appropriate, Mr Havard.

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

Well, if it is not a point of order, I will have to ask you to sit down.

Rob Flello (Labour, Stoke-on-Trent South)

On a point of order, Mr Havard. I may have misheard, but I thought I heard the Minister say that on Second Reading he set out the history of how the Government had got to the current position. I will check the Hansard for this morning later, but I cannot see in the Hansard from last Tuesday any such explanation in the Minister’s closing speech. Perhaps he will write to the Committee before Thursday, setting out the history that he thinks he mentioned on Second Reading.

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

Thank you, Mr Flello. I am sure that the Minister has heard what you have said and will provide adequate clarification at a later date.

Clause 2 - Truth

Rob Flello (Labour, Stoke-on-Trent South)

I beg to move amendment 12, in clause 2, page 1, line 14, at end insert—

‘(3A) The defence under this section does not fail on the basis that one or more of the imputations is not shown to be substantially true, if that imputation would not materially injure the claimant’s reputation in the light of what the defendant has otherwise shown to be substantially true.’.

I will try not to detain the Committee long on clause 2. As I am sure you will be delighted to hear, Mr Havard, I will not be reading the amendment out, because it is as it appears on the amendment paper.

Subsection (3) covers the position in which there is more than one defamatory allegation. For example, saying someone is a liar is a lesser allegation than saying that someone is a thief, which is a higher allegation. Obviously, if it was shown to be true that the claimant was a thief, it would not matter that the defendant could not prove the lesser allegation. The effect of subsection (3) is that if the claimant proves the lower meaning, then even if he cannot prove the higher meaning, it is open to the court to decide that there has been no serious harm to reputation.

My amendment, which would insert proposed new subsection (3A), is best considered in relation to a case in which there is only one defamatory allegation. In fact, it would be better if it referred to a single imputation. For any defamatory allegation, there has evolved in case law a ranking stemming from a series of cases—most specifically, Chase v. News Group Newspapers. In the judgment in that case, at paragraph 45, Lord Justice Brooke said:

“The sting of a libel may be capable of meaning that a claimant has in fact committed some serious act, such as murder. Alternatively it may be suggested that the words mean that there are reasonable grounds to suspect that he/she has committed such an act. A third possibility is that they may mean that there are grounds for investigating whether he/she has been responsible for such an act.”

He went on to say that that distinction was first made, in 1964, by Lord Devlin in his speech in Lewis v. Daily Telegraph at page 282, when he said:

“I do not mean that ingenuity should be expended in devising and setting out different shades of meaning. Distinct meanings are what should be pleaded; and a reasonable test of distinctness would be whether the justification would be substantially different. In the present case, for example, there could have been three different categories of justification—proof of the fact of an inquiry, proof of reasonable grounds for it, and proof of guilt”.

I understand that those levels of meaning have come to be known as Chase level 1—allegation of commission—Chase level 2, for an allegation of reasonable grounds to suspect, and Chase level 3, for an allegation that there were grounds for investigation. It is also recognised that there could be distinct levels between those—for example, Chase level 1.5, for “cogent grounds to suspect”.

The court has to decide what the single meaning for each imputation is—that is, the meaning that would be understood by the average reader of the words—and that is what the defendant has to justify. That is the “single meaning” rule. The amendment would not change the “single meaning” rule or the Chase categorisation, but would allow the court to decide on a case-by-case basis that when the court fixes the single meaning as a higher one, such as Chase level 2, if a lower meaning, such as Chase level 3, were shown to be true, then in the circumstances of the case, no serious harm to reputation would be done, given that a lower meaning has been shown to be true. It would not mean that the defence would succeed in proving a lower meaning than that found by the court, but it would leave open that possibility on a case-by-case basis.

Those in favour of the amendment—Lord Lester’s team, for example—believe that what matters is the facts of the case. Those who might oppose it prefer the rigidity of Chase level meanings, which the proponents regard as merely a useful but not determinative common law artifice.

The Libel Reform Campaign, for example, supports the amendment because it believes that all the facts and circumstances of the case—not artificial constructs consequent on the “single meaning” rule, which is itself artificial—should be decisive. I hope that the Minister is completely clear about that. I am sure he is, like the rest of the Committee.

I am trying to get from the Minister some examination of whether Lord Lester’s proposal should be in the Bill.

Jonathan Djanogly (Conservative, Huntingdon)

We move on to the defences to defamation. Clause 2 deals with the defence of truth. Under amendment 12, that defence would not fail where one or more of the imputations made against the defendant was not shown to be substantially true, provided that the imputation would not

“materially injure the claimant’s reputation in the light of what the defendant has otherwise shown to be substantially true.”

The amendment appears largely to reflect subsections (2) and (3) of clause 2. As the hon. Member for Stoke-on-Trent South said, the intention was to reflect a provision from Lord Lester’s private Member’s Bill. That related to cases in which a single imputation would have different shades of meaning, such as where there had been an accusation of money laundering and the defendant could not prove the substantial truth of that allegation, but could show that the claimant had been involved in fraud or large-scale tax evasion.

We have given careful consideration to whether a provision dealing with single allegations with different shades of meaning should be included in the Bill, and have decided that it would not be appropriate. We are concerned that allowing the defendant to succeed where he or she is unable to establish that the meaning of the allegation is substantially true would undermine the clarity of the defence and create uncertainty over what the defendant must prove to succeed.

Denis MacShane (Labour, Rotherham)

Perhaps I am an obsessive, but whenever I see adverbs in legislation my nerves start to tingle. What does “substantially” mean? Something is either true or not true. Are you substantially a virgin? Are you substantially wet when it rains? What is the word doing in the clause?

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

The Minister is not required to answer in detail.

Jonathan Djanogly (Conservative, Huntingdon)

Thank you, Mr Havard, for giving me that latitude.

It is right that a defendant should be protected if he can prove the substantial truth of what he says. If, however, he cannot, he should not succeed in his defence. What he has proved may affect damages awarded against him, and may well mean in some cases that no award is appropriate. That, however, is another matter. That, in the Government’s view, is the right balance. If the defendant cannot prove the substantial truth of what he has said, he should not succeed in the defence.

The provision could also undermine the effectiveness of new measures in and alongside the Bill, designed to enable the court to resolve key issues, such as the meaning of the words complained of, early in the proceedings. It could mean that the meaning would remain in doubt until trial, because, despite the court’s having determined what meaning applied, it would continue to be uncertain exactly what the defendant would have to prove to succeed in the defence.

On that basis, I hope that the hon. Gentleman will agree to withdraw the amendment.

Rob Flello (Labour, Stoke-on-Trent South)

I am not sure that I entirely agree with the Minister, but in a spirit of trying to move forward with the Bill and on to clause stand part, I beg to ask leave to withdraw the amendment.

Rob Flello (Labour, Stoke-on-Trent South)

Truth is indeed, as was said earlier, the oldest defence in defamation, as stating the truth ought to be a justification even if it damages an individual’s reputation. Current case law has established that the defendant must show that what he or she published is substantially true, as opposed to each and every word being true. In Chase v. News Group Newspapers Ltd, the Court of Appeal said that

“the defendant does not have to prove that every word he or she published was true. He or she has to establish the ‘essential’ or ‘substantial’ truth of the sting of the libel”.

Statute should reflect that; if not, there is a risk of confusion about whether previous case law should be followed.

I can do no better than to refer to what the Joint Committee said about the issue of truth and protecting the truth:

“In defining one of our Report’s core principles as the protection of freedom of speech we emphasised that the law should encourage this right to be exercised responsibly. Having respect for the truth is fundamental to what we mean by this. From the perspective of free speech, any person who publicly states a matter that is substantially true should never be liable to pay damages for defamation, irrespective of the harm or embarrassment that may be caused. The courts have for many years recognised the common law defence of ‘justification’ which protects publications that are substantially true. Where multiple allegations are made, the 1952 Defamation Act ensures that a claimant will fail if, having regard to those allegations proved to be substantially true, the claimant’s reputation is not materially injured by those allegations that are not. This is a fundamental defence in this area of law.”

The Committee also recommended that

“the name of the ‘truth’ defence be changed to ‘substantial truth’ which better describes the nature of the test”.

I go along with that, although I understand that it is not possible to change clause titles.

Obviously, I would have preferred my proposed new subsection (3A) to be in the clause, but I have withdrawn my amendment. In many respects, clause 2 does the job and it is an important clause.

Simon Hughes (Liberal Democrat, Bermondsey and Old Southwark)

I have a couple of brief points. First, on the question of substantial truth and following the comments of the right hon. Member for Rotherham, there is an argument for having a defence called “substantial truth”, meaning that there is a real element of truth, even though everything may not be entirely true. That is what that means and that is where the law has got to, as the hon. Member for Stoke-on-Trent South has just said. If that is so, the case made by the shadow Minister and the Joint Committee—that that should be the technical name for the defence—is the right place to arrive at.

At the moment, the clause title is “Truth” and the defence is the truth defence, but someone’s defence would succeed even if the statement was not entirely truthful. If it was mainly truthful, that would get them home with their defence. It seems to me that, in the interests of clarity, it would be better to reflect the offence, as it will be defined, in the clause title.

Denis MacShane (Labour, Rotherham)

The right hon. Gentleman has been involved in many vexatious and disputatious political statements during his career, as we all have—he perhaps more than most. What happened to the old statement that “The greater the truth, the greater the libel”?

Simon Hughes (Liberal Democrat, Bermondsey and Old Southwark)

That is almost a philosophical or rhetorical question. The honest answer is that I do not think that that works. Like the right hon. Gentleman, I have occasionally been involved in libel cases, both at the receiving end and the giving end. People’s experience is that if what they say is pretty accurate and can be backed up, it is not a libel, but if it conveys a message that cannot be backed up, they are in trouble. We have all understood the parameters, so that is not a philosophical question but a very real practical one.

The hon. Member for Bishop Auckland mentioned some examples. We all have constituency examples of when, bluntly, a statement has been made that was proved to be not generally true. It is much more important for our constituents than for us, but whoever that involves, they expect—we are not there yet—a bigger statement to be made in the same place stating that the original was not true. At the moment, that is not done and we need to pursue that through the Leveson inquiry and other routes.

The second point is more general. I speak as a lawyer who has tried, in all my time here, to ensure that Bills are as well drafted as possible. I understand that it is slightly complicated, but will the Minister reflect after Committee stage whether we can draft the clause better with the help of parliamentary draftspeople? It starts by stating that the defence is that

“the imputation…complained of is substantially true.”

“Imputation” is not the only word that we could use—it is not a terribly user-friendly one, but we may have to stay with it. Then we get into the explanation of imputation, and subsection (3) will lose anyone who is not a lawyer pretty easily. I have not written a redraft, but I cannot believe it would be impossible to do so in a more user-friendly way.

I see the shape of the Bill, which gives the definition of defamation and then goes through the different defences. That structure is fine, but the truth defence, which I hope will be changed to the “substantial” truth defence, might be set out and qualified differently. It could be redrafted to make it easier for ordinary people who are not lawyers so that they do not have to take legal advice to understand it.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

Does my right hon. Friend agree that the word “allegation” might be more suitable than “imputation”?

Simon Hughes (Liberal Democrat, Bermondsey and Old Southwark)

The Minister has the benefit of the advice of civil servants and others. I am just keen that we look at this particular defence and its wording. First, I want us to use words that are more commonly used in the English language, and my right hon. Friend makes a good suggestion. Secondly, we should look at the structure, because when we get into qualifications and exceptions, it becomes very difficult for lay people to follow.

We are trying to make the law clear. We are taking it from judge-made law to statute law and putting it all in one place. We therefore want the Bill to be one that people can read, so that even if they do not get all the answers, they will at least know where to start.

Paul Farrelly (Labour, Newcastle-under-Lyme)

Broadly, the clause is welcomed by people to whom I have talked in the media world and the legal sphere, but I want to pose three questions to the Minister that have arisen from those discussions. The first goes back to the point that has been made regarding the word “imputation”, which is hardly plain English. What consideration have the Minister and his team given to other words? For example, the Lester Bill uses the term “allegation”, and other people have suggested that the word “meaning” be inserted. I should be grateful if the Minister would be clearer on the choice of words.

Secondly, why is section 2(3), in conjunction with section 2(2), to be preferred to section 5(4) of the Lester Bill, which we could amend by excluding “materially injure” and replacing it with “seriously harm”? Does the Minister intend any difference in effect between the two types of drafting?

My third question goes back to procedure. We retreated from the word “alongside” to “procedures will be enforced when the Bill completes its passage”, which is against the recommendation of the Joint Committee on the draft Bill, which recommended that the House have time to consider those procedures. How does the Minister envisage the courts operating to have early discussions on the meaning of an article—what is the sting?—so that defendants know what they have to prove or disprove, the truth of which they will have to establish or otherwise?

Helen Goodman (Labour, Bishop Auckland)

The clause raises philosophical questions. What is truth? As I am sure the Minister knows, “beauty is truth, truth beauty”, but I suspect that he is taking a more Cartesian approach to the measure. He is obviously looking for a direct correspondence between what is written and the facts. I am unclear whether he is trying to make a distinction between true beliefs and knowledge. Is he saying that people can write things that they believe to be the case, which turn out to be true on subsequent examination, or—this is perhaps what clause 4 is driving at—is he saying that they must show that they have acquired the view that they have written through a method that can be relied upon to produce knowledge? I think it is the latter, but he needs to be clearer about what he is aiming at.

I want to return to the issue of privacy, as raised by the hon. Member for Ipswich, and ask the Minister how the defence of truth relates to arguments about privacy. For example, how will a case be handled where the claimant and defendant both agree that the statements made are harmful, where the claimant says that they are not true, and where the defendant proves that what has been said is true, but it is a truth that may have breached the defendant’s privacy? Will the person simply lose their defamation case and be regarded as foolish for having brought it, or will there be some way of addressing the fact that, in writing something that was true, the author breached the person’s privacy? This is all quite tricky, and I wonder whether the Minister has given any thought to the inter-relationships between the different things.

Ben Gummer (Conservative, Ipswich)

I feel that we have slightly over-complicated things. It is difficult to draft the proposal in a simpler way, but an example may help. An allegation that someone visited a prostitute on a Monday being shown to be true in that he visited a prostitute, but on a Tuesday, shows the nature of the substantial truth that we are dealing with. Given the fact that the date was found to be wrong, I believe the clause to be saying that the substantial truth still holds and that the defence, if it is found to be true, still stands. We need an anecdote to be made available to lawyers for them to explain the measure to clients. I am not quite sure how the language could be simplified, but the Minister may be more fluent than I.

Denis MacShane (Labour, Rotherham)

The hon. Gentleman cites a good example. The person visited a prostitute on a Monday, which is true, but it is only important and defamatory if he did something with the prostitute. [ Interruption. ] No, no. The hon. Member for Spelthorne explodes, but the point is that a newspaper can publish something that is technically true—the person was seen going into a massage parlour or whatever—but unless it can actually show that an act with a trafficked girl or something took place, the publication of a statement that is technically true can actually be defamatory unless it can be shown that a crime or something that is defamatory took place.

Kwasi Kwarteng (Spelthorne) (Con) rose—

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

Before the hon. Member for Ipswich continues, I remind hon. Members that they cannot intervene on interventions. If they want to speak, I am here and available to see them.

Ben Gummer (Conservative, Ipswich)

Whatever the nature of the defamatory comment, there is something that is defamatory and something that is not true could be contained within the statement, which is to say the date when the action took place.

Kwasi Kwarteng (Conservative, Spelthorne)

Let me use another example. It is clear that there is a difference between truth and substantial truth. For example, if I were to accuse a gentleman of stealing a million pounds when he in fact stole £900,000, my initial statement would be false, but it could be interpreted as being substantially true in that he stole a lot of money. That would be considered comprehensible to a 10-year-old, and we are getting ourselves tied up into awful and needless complications by defining this particular distinction.

Ben Gummer (Conservative, Ipswich)

I am not sure that I can add anything more to my hon. Friend’s comments.

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

It is simple enough for lawyers to understand.

Jonathan Djanogly (Conservative, Huntingdon)

Clause 2 replaces the common law defence of justification with a new statutory defence of truth. Essentially, this is intended to reflect the current law but make it simpler and clearer. It will be a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true. This reflects recent case law and ensures that the defendant does not have to prove that every word he or she published was true. What the defendant has to do is establish the substantial truth of the sting of the libel. In any case in which the defence of truth is raised, the court will need to consider what imputation or imputations are actually conveyed by the statement complained of, and whether they are substantially true.

Subsections (2) and (3) deal with the situation where the statement complained of contains two or more distinct imputations. The defendant will not lose the defence if, looking at the imputations that are shown to be substantially true, those that are not shown to be substantially true do not seriously harm the claimant’s reputation. These provisions replace section 5 of the Defamation Act 1952, which is repealed by subsection (4). The approach that is taken here reflects that taken in the 1952 Act, but is expressed in more modern terminology. Subsection (4) also formally abolishes the common law defence of justification as it would be unnecessary and confusing to retain it.

Subsection (4) also repeals section 5 of the 1952 Act. That means where a defendant wishes to rely on the new statutory defence, the court would be required to apply the words used in the statute and not in the current case law. In cases where uncertainty arises, the current case law would constitute a helpful but not binding guide to interpreting how the new statutory defence should be applied.

In the wider context, I can say that in preparing a draft Bill, we reached the conclusion that it was preferable for reasons of clarity and certainty to replace the common law defence with a new statutory defence rather than simply to rename it. Two-thirds of the responses to the consultation on the draft Bill supported that approach.

The consultation paper also proposed formally to abolish the common law defence and a similar proportion of responses supported that. The rationale for it was that otherwise the common law defence would continue to exist and defendants would potentially be able to use it as a separate defence either instead of or in parallel with the new statutory defence. That would undermine our aim of simplifying and clarifying the law and would create a risk of uncertainty and confusion in practice and more lengthy court cases.

The effect of the approach taken in the Bill is that where a defendant wishes to rely on the new statutory defence, the court would be required to apply the words used in the statute and not the current case law. That does not mean that in reality the case law will have no future impact, and it will ultimately be for the courts to decide. In cases where uncertainty arises, the case law would constitute a helpful but not binding guide to interpreting how the new statutory defence would be applied.

My right hon. Friend the Member for Bermondsey and Old Southwark asked whether we should call the defence “substantial truth”. I can say to him that we did not consider that it would be necessary to rename the defence as we believe that the substance of the clause already makes it sufficiently clear that the defence will succeed where the defendant can show that the imputation conveyed by the statement complained of is substantially true. We will look at his drafting points on the Bill, and I will write to him on the matter and on subsection (3), which was also of concern to the hon. Member for Newcastle-under-Lyme.

Clause 3 - Honest Opinion

Rob Flello (Labour, Stoke-on-Trent South)

I beg to move amendment 13, in clause 3, page 2, line 8, at end insert ‘or’.

Amendment 13 relates to what I suspect is simply an error in the wording of the Bill. It is important that the word “or” is inserted in the clause to ensure there is clarity about the circumstances in which there is a defence to an action for defamation. Subsection (4) states:

“The third condition is that an honest person could have held the opinion on the basis of—

(a) any fact which existed at the time the statement complained of was published;

(b) anything asserted to be a fact in a privileged statement published before the statement complained of”,

and I would insert an “or” before paragraph (b), because in the absence of that word people might think that there was an imputed “and”, and that someone would have to show both limbs—(a) and (b).

I hope that that is a simple drafting error, and that the Minister will be able to indicate whether that is the case. If it is such an error, I am sure that he will accept my amendment because, massive and extremely changing to the Bill that it is, it does have a substantial impact. If for some reason the Minister feels that it is not appropriate to have an “or” or an “and”, or anything else for that matter, I am sure that he will enlighten the Committee as to why.

Jonathan Djanogly (Conservative, Huntingdon)

The amendment makes a small drafting change in subsection (4) of clause 3, which is on the new defence of honest opinion. Under the subsection, one of the conditions that must be satisfied for the defendant to succeed in a defence of honest opinion is that they must show that an honest person could have held the opinion either on the basis of any fact that existed at the time the statement complained of was published, or on the basis of anything asserted to be a fact in a privileged statement published before the statement complained of.

I can confirm that the defendant will succeed in the defence if they can show that either of the limbs is satisfied; they do not have to show that both are. That will be the effect of the subsection as drafted, and we do not therefore consider the amendment to be necessary. On that basis, I hope that the hon. Gentleman will agree to withdraw the amendment.

Rob Flello (Labour, Stoke-on-Trent South)

I had a feeling that the Minister might say that, but I am disappointed, because the addition of “or” sets the matter beyond any doubt. Acceptance by the Minister of what is a slight amendment to clarify the Bill would have been a positive thing, but in the spirit with which I think we have conducted this morning’s sitting, I beg to ask leave to withdraw the amendment.

Rob Flello (Labour, Stoke-on-Trent South)

I beg to move amendment 7, in clause 3, page 2, line 11, leave out

‘did not hold the opinion’

and insert ‘acted out of malice’.

I have a feeling that, with all this speaking, I will be drinking a large amount of liquid at lunch time. The amendment seeks to clarify ambiguous wording that could produce a weakness in the Bill’s implementation. The Joint Committee on the draft Defamation Bill expressed its concern that although it was happy to see the introduction of the defence of an honest opinion, a number of changes were required to make the law clearer, simpler and fairer to the ordinary person. I am still not convinced that the Bill has satisfactorily done that in this provision, despite the changes made since the early draft Bill was published.

Denis MacShane (Labour, Rotherham)

Does my hon. Friend accept that his “or” might come in at this stage, so that the text read: “did not hold the opinion or acted out of malice”? I wonder whether the Minister might consider that when he responds.

Rob Flello (Labour, Stoke-on-Trent South)

My right hon. Friend makes a good point. It is always important to stick one’s “or” in at every opportunity.

The issue here is about honest opinion and whether someone is acting out of malice or being reckless with the truth. The explanatory notes helpfully go through the clauses in a way that gives some guidance, but they are not strong enough in explaining what subsection (5) means. It states:

“The defence is defeated if the claimant shows that the defendant did not hold the opinion.”

What does that mean? Does the claimant have to trawl through a huge amount of paperwork to find an article written by the defendant, saying that a contrary opinion was held? My amendment would sharpen the wording up and tries to show that the truth was being handled in a reckless way or with reckless disregard, or, as the amendment states, that the opinion was pushed more from a point of malice.

As the explanatory notes acknowledge, the existing law states that

“the defence of fair comment will fail if the claimant can show that the statement was actuated by malice.”

Again, no explanation has been given about why it was considered necessary to make the change from the defendant being shown not to have held such an opinion. Naturally, that the defendant held the opinion is at the crux of that defence, but it is also crucial to consider the reasoning behind the statement’s publication. Did the defendant wish generally to put their opinion out in a positive and measured way, or did they seek to do so in a manner that did their best to disguise a deliberately intended, malicious motive?

It is vital, as stated in the Joint Committee report, that a defendant is not simply allowed to dress up a personal attack as an expression of opinion and ride roughshod over the law. The Bill needs to be absolutely watertight in that area, or we might soon find ourselves legislating once more to close a loophole in the provisions.

As well as commenting on those points, will the Minister explain whether a reckless disregard to the truth, currently considered to be a lack of honest belief, would still defeat such a defence under the current drafting? I hope he will explain why he feels that simply stating that the defendant did not hold the opinion is sufficient when the rest of the clause relates to honesty and honest persons. Is my proposal to substitute the word “malice” not a better way of being clear about what the Government mean in subsection (5)?

I have tabled this probing amendment to try and get to a point where the Bill, when it leaves the Committee, is extremely strong and clear about what is meant. So far this morning, we have not had as much clarity through the Bill process as I would like, and I encourage the Minister to respond to the points I have raised. I look forward to hearing his comments.

Jonathan Djanogly (Conservative, Huntingdon)

The amendment relates to circumstances in which the defence of honest opinion is defeated. It would change clause 3(5), which provides for the defence to be defeated if the claimant shows that the defendant

“did not hold the opinion”,

instead providing for the defence to be defeated if the claimant shows that the defendant “acted out of malice”.

The right hon. Member for Rotherham would be right about sticking in his “or”—I think that was where we got to—if I agreed with the amendment, but that is not the case. As the explanatory notes state, and as the hon. Member for Stoke-on-Trent South pointed out, the provision in subsection (5) is a subjective test that reflects the current law, whereby the defence of fair comment will fail if the claimant can show that the statement was actuated by malice. We consider that the drafting of the clause, in conjunction with the explanation provided by the explanatory notes, is sufficiently clear, and that the clause will be interpreted appropriately by the courts.

The courts have adopted different tests for what amounts to malice in the context of both honest opinion and qualified privilege. The term “malice” is used in clause 6(6), which extends qualified privilege to peer-reviewed material in scientific and academic journals, and use of the same term here could create confusion over the interpretation that should be applied. On that basis, I hope that the hon. Gentleman will withdraw his amendment.

Rob Flello (Labour, Stoke-on-Trent South)

I fear that we are not getting the clarity in the Bill that we were hoping to see. It was welcomed across the House and on Second Reading it was looked at as being a positive step forward. Organisations and groupings such as the Libel Reform Campaign have welcomed the Bill and the Secretary of State’s enthusiasm behind it, but I feel that we are not getting clarity from the Minister. I know that this morning’s session is not too far from being drawn to a conclusion, and I hope that the Minister takes the opportunity over the next few hours to be able to come back to the Committee this afternoon with a renewed vigour and explain what is meant by some of the points in the Bill to ensure that we get that clarity.

This was intended as a probing amendment and I am disappointed that the Minister has not used the opportunity to expand on things in the way that I hoped he would. I will withdraw this amendment, but if we do not see more clarity from the Minister, I will be less inclined to withdraw later amendments as the Committee continues. I beg to ask leave to withdraw the amendment.

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

Before I call the hon. Member for Stoke-on-Trent South, we will finish at 1 o’clock and we will reconvene at 1600 hours—that is 4 o’clock, for those of you who work in 12-hour time.

Rob Flello (Labour, Stoke-on-Trent South)

I beg to move amendment 14, in clause 3, page 2, line 27, at end insert—

‘(e) a defence under common law qualified privilege.’.

The amendment would insert a fifth point to the list of four points under subsection (7) of clause 3. That subsection clarifies what “a privileged statement” means under subsection (4), which provides one of the four conditions for an honest opinion defence.

Currently under the subsection, a privileged statement is a privileged statement if it has

“a defence under section 4 (responsible publication on matter of public interest)”.

Fair enough; that seems quite reasonable. It includes

“a defence under section 6 (peer-reviewed statement in scientific or academic journal)”,

which the Bill brings forward. Then at paragraph (c) we have

“a defence under section 14 of the Defamation Act 1996 (reports of court proceedings protected by absolute privilege)”.

Again that is quite reasonable. At paragraph (d) we have

“a defence under section 15 of that Act (other reports protected by qualified privilege).”

The provision that jumps out is the one that relates to common law qualified privilege. Indeed, subsection (8) talks about the common law defence of fair comment being abolished and section 6 of the Defamation Act 1952, which relates to fair comment, being repealed, but there does not seem to be any mention that I can see— I am sure that the Minister, when he gets the opportunity, will leap to his feet to explain why it is in there—of the common law qualified privilege.

The amendment, which would put common law qualified privilege into the clause, would ensure that the defence is complete. In other words, the opinion could have been held on the basis of a statement made which was privileged, no matter how the privilege came about. That would be consistent with both current statute and case law. Common law qualified privilege exists to protect people acting in the public interest or out of a duty more generally or between those with a common interest, for example between professions.

It is obviously an omission, because honest opinion has always been allowed to be founded on a factual matter set out in common law. That is evidenced by the fact that the subsection includes a statutory Reynolds defence under paragraph (a), which covers a defence under responsible publication. That has always been a form of common law qualified privilege. It may be that the Government are choosing deliberately to only list the statutory forms of qualified privilege, without meaning to exclude common law privilege. If that is the line that the Minister intends, why are they doing that?

Clause 3 - Honest opinion

Rob Flello (Labour, Stoke-on-Trent South)

We had reached my final run at the amendment, although I am sure that the Committee, the Official Report or, not least, you, Mr Havard, will soon correct me if I start repeating what I have already said.

The amendment corrects an omission, because common law qualified privilege has always been considered. The various tests in the Bill, in paragraphs (a) to (d), already set out the different forms of what makes a privileged statement, so perhaps the Government are choosing to list only the statutory forms of qualified privilege deliberately, without meaning to exclude common law privilege. If so, why are they doing that? The Government run the risk of confusing the courts as to their intention.

I hope that, as with my reasoning for moving amendment 13, there might have been a genuine error in the failure to include the defence under common law qualified privilege in the list in subsection (7), but the explanatory notes have little information. I looked for an explanation as to why it might have been excluded, but in fact the explanatory notes jump straight from subsection (6) to subsection (8). Despite my best endeavours, therefore, I have been unable to locate an explanation. However, I am sure that the forensic eye of the Minister will have spotted it if it is in the notes or, failing that, that his officials will be soon passing him the appropriate information.

The notes state that

“a statement is a ‘privileged statement’ if…the defence of absolute privilege under section 14 of the 1996 Act; the defence of qualified privilege under section 15 of that Act; and the defences in clauses 4 and 6 of the Bill relating to responsible publication on a matter of public interest and peer-reviewed statements in a scientific or academic journal.”

It therefore seems strange that while those four defences are mentioned specifically, common law qualified privilege is not. I think it is another oversight, so I hope that the Minister will get to his feet in a moment and give an excellent explanation of why it has been deliberately left out or, if an oversight, when he will ensure that it is corrected, in Committee, on Report or in another place.

Paul Farrelly (Labour, Newcastle-under-Lyme)

I should like to make a brief contribution. My hon. Friend’s suggestion is entirely sensible, and there is such a defence at common law. Indeed, until I saw my hon. Friend’s amendment, I was going to table a similar one myself, drafted only a little differently—“a defence of qualified privilege at qualified law”—but I will leave it to the Minister to consider which is the better drafting.

Denis MacShane (Labour, Rotherham)

I hope that the Minister will accept the amendment tabled by my hon. Friend the Member for Stoke-on-Trent South, because it would clarify in the Bill the high importance of common law qualified privilege. If it is not in the legislation, when judges come to interpret the meaning of what Parliament decided, they might find that they do not have sufficient guidance.

The Defamation Act 1996 lists a lot of statements of absolute qualified privilege. For example:

“A fair and accurate report of proceedings in public of a legislature anywhere in the world...A fair and accurate report of proceedings in public before a court anywhere in the world.”

We sometimes think that the only absolute privileges are based on what is said in a court or indeed in the House of Commons. There has been discussion in recent years about whether even the privilege that we all thought we had as Members of Parliament to say anything in the Chamber may now be challenged, but that is perhaps a subject for another debate. However, it is important for people and journalists to understand that provided the report is accurate and reasonably contemporaneous, they have considerable protection. For example, we have qualified privilege for a

“fair and accurate copy of or extract from a notice or other matter issued for the information of the public by or on behalf of…a legislature in any member State or the European Parliament…the government of any member State, or any authority performing governmental functions in any member State or part of a member State, or the European Commission.”

We have qualified privilege for a

“fair and accurate report of proceedings at any public meeting or sitting in the United Kingdom of...a local authority, or local authority committee.”

That is of very high importance, because often in the smaller committees of local authorities things are said that are of deep importance, perhaps on planning issues, or, in an area of great public concern at the moment, how we look after children in care. Local papers must have the privilege to report so that the local public—local citizens—are aware of what the people they elect or who are placed in positions of legal and state authority over others, such as social service workers and the police, are up to.

Again, it is important to understand that qualified privilege extends to the publication or extract

“from any document circulated to members of a UK public company...by or with the authority of the board of directors of the company...by the auditors of the company, or...by any member of the company in pursuance of a right conferred by any statutory provision.”

Of course it might now extend to e-mails. In some recent public inquiries and court cases, we see that e-mails are now fully in the public domain and have to be submitted to authorities when legal proceedings start, and whatever is in those e-mails—however embarrassing and however difficult—is protected by qualified privilege when reported by the media in the newspaper or on the BBC or whatever. That is why I think that adding the line on protection that my hon. Friend has proposed is important.

Most of the qualified privilege protections are defined by statute, but there are common law ones, the most famous one being the Reynolds case. The classic case of a common law qualified privilege would be that of a lecturer writing a reference for a student. He would have a duty to tell the truth about the student even if that truth were per se defamatory, but there would be protection of qualified privilege as long as the reference was written without malice and the necessary steps had been taken to make sure that it was factually accurate. There are quite a lot of circumstances in civil life when people have to make defamatory statements. In fact, they have a duty to do so, because it is wrong to give a reference or to issue a report, say, on the quality of someone in their charge—a student in the case of a lecturer, or perhaps a work colleague—and then send them on elsewhere with a reference that is factually inaccurate. Qualified privilege, provided that the report is made without malice and is factually accurate, extends to that case.

Helen Goodman (Labour, Bishop Auckland)

My right hon. Friend is right. One is bound to give truthful references to other employers. Sometimes that may involve imparting negative information, but surely that is not being defamatory, because although the statements are negative they are true. Is my right hon. Friend saying that the statements must be protected from claims for the same reason that we want to avoid other trivial claims?

Denis MacShane (Labour, Rotherham)

I really wish we could expunge the notion of trivial claims. I may be a trivial person, but if something that is said about me is defamatory and lowers my reputation in the eyes of ordinary people, it does not matter how trivial I am, or that the statement was made in a parish magazine; it is still defamatory, and people must understand that. Qualified privilege is about the person who cannot accept that a judgment has been made about his or her character that has been necessarily circulated and then reported, but without malice, on the basis of evidence and facts. It is necessary to read into our record that that is protected under common law qualified privilege. That is why I urge the Minister to accept the amendment of my hon. Friend the Member for Stoke-on-Trent South.

Another more obvious example is that one doctor might say to another that a named person had a certain disease, which might carry with it negative social connotations. Again, that could be defamatory per se, and might indeed be slander, but if it is true and was said without malice, and if in the course of an investigation the information was made available to a journalist, that journalist would have the right under common law qualified privilege to publish it, provided that its publication was on the basis of public interest.

I could cite other examples, but I do not want to take up too much of the Committee’s time, although I am tempted to read as many examples of common law qualified privilege as possible into the record. Believe me, I have been there, and sat in front of judges who have asked what Parliament meant by something. We all generally agree that in the Bill we are tidying up lots of bad aspects of libel law, so we are saying, “Let’s get it over and done with fairly quickly.” But we should take a little time, and read stuff into our record that may be of some use in 10, 20 or 30 years, so that judges will understand that we did not seek to limit journalism, certainly on the basis of existing practice. Qualified privilege is not just about what we say in the House of Commons or what a judge says; we all know what can be reported. There is absolute privilege in the House of Commons, but qualified privilege is a very important defence of accurate reporting in the public interest.

Rob Flello (Labour, Stoke-on-Trent South)

I am thoroughly enjoying my right hon. Friend’s contribution, which is extremely important. When he spoke about Parliament’s absolute privilege, I wondered whether one of his examples would be the duty interest when a Member of Parliament corresponds with a constituent or a local authority, and whether he would put on the record the common law privilege around that.

Denis MacShane (Labour, Rotherham)

That remains to be tested. I am sometimes concerned about the extraordinary nature of confidential information that I receive, and I am sure that that is true of all right hon. and hon. Members. We must look after it carefully, shred it, or classify it in case our offices are ever raided, and material is removed, or in case someone breaks in and steals old correspondence from the bins. Some of the material that we receive is stronger than anything that a lawyer, a doctor or a priest in the confessional hears.

I do not know whether the point has ever been tested in law, but it is important. I know that anything held in the House is protected under privilege. We had a problem when the police raided the offices of the hon. Member for Ashford (Damian Green) who is now the Minister for Immigration. I wrote at the time saying how outrageous it was that anyone had given technical permission for the police thus to do.

To return to the substantial point, the Bill will be the defining legislation on libel, slander and defamation for perhaps a generation or more, so it is extremely important to underline common law qualified privilege. There is a duty to say unwelcome things about people perhaps philosophically in our country, because on the whole we like to be nice to each other, and at times we forget that solemn duty to tell the truth, however painful and difficult it may be, so that we can make proper judgments about what course of action to take. That is not only at the high level of Minister or the honourable duty that we must all try to discharge as Members of Parliament, but goes right down to teachers, public sector employers, and public health authorities that at times have to say hard and difficult things to their local citizens in order to ensure that public health is protected.

In conclusion, I invite the Minister, even this afternoon, to accept the amendment tabled by my hon. Friend the Member for Stoke-on-Trent South. I know what it is like to be in government when civil servants have worked jolly hard and think that they have prepared an absolutely watertight case. They sincerely believe that and I do not disparage them. I know that all civil servants in this Committee Room are in the upper tier and are not those whom the Minister for the Cabinet Office and Paymaster General (Mr Maude), who is making a statement downstairs in the Chamber, proposes to eliminate from the civil service. We have the crème de la crème and we are very lucky, and they have an excellent Minister to convey their words to the public.

I know and have great confidence in the Minister’s ability. I have skied with him; he is a fast, swerving skier and he is capable at times of saying to his civil servants, “Thank you for your brilliance. I am just going to be a more humble person, and I think that writing common law qualified privilege permanently into the Bill would be a good thing.” I hope that he will accept my hon. Friend’s amendment without any more reference to his left.

Jonathan Djanogly (Conservative, Huntingdon)

I should just say, particularly in response to the previous valuable contribution, that we will come on to the issue of privilege under clause 7.

Turning to the amendment, the Joint Committee recommended that the Bill define a “privileged statement” for the purposes of subsection (4). Although I take point made by the hon. Member for Stoke-on-Trent South that the explanatory notes are slightly on the light side, we believe that subsection (7) does that by listing the defence of absolute privilege under section 14 of the Defamation Act 1996, the defence of qualified privilege under section 15 of that Act, and the defences in clauses 4 and 6 of the Bill that relate to responsible publication on a matter of public interest and peer-reviewed statements in a scientific or academic journal.

Amendment 14 would add to that list

“a defence under common law…privilege”,

and would mean that a defendant could rely on any common law privilege to support a defence of honest opinion. There are two main categories of common law privilege: common law reporting privilege, which attaches to the fair and accurate reporting of various types of public proceedings or notices; and common law duty and interest privilege, which attaches to statements in private communications where the publisher and recipient have a reciprocal duty and interest in making and receiving the statement. Even within those categories, however, there is a wide range of particular circumstances in which privilege arises.

The Joint Committee took the view that the definition of privilege should be confined to the absolute or qualified privilege that presently attaches at common law or by statute to the fair and accurate reporting of various types of public proceedings or notices. It was concerned that a broader definition would protect opinions on statements contained in private communications where the publisher and recipient have a common law defence of privilege based on a reciprocal duty and interest, and that that could result in protection being given to comments expressed on wholly false statements contained in private communications. We share the Joint Committee’s concerns, and that is reflected in subsection (7) as drafted.

Common law reporting privilege has, effectively, been superseded by the statutory provisions in the Defamation Act 1996. On that basis, I hope that the hon. Member for Stoke-on-Trent South will agree to withdraw his amendment.

Rob Flello (Labour, Stoke-on-Trent South)

Here we are again. The Minister has talked about the two strands of common law privilege and has mentioned in particular duty and interest, which my right hon. Friend the Member for Rotherham and I raised. It is all very well to say that the Joint Committee had a view and the Minister will therefore follow it, but as we heard this morning and I am sure we will hear over the course of the next few sittings, the Joint Committee’s views on other points have been disregarded. Some members of the Joint Committee are also members of this Committee and I am not sure how they feel about the Government picking and choosing from the report.

It is important that, under that that common law qualified privilege of duty and interest, private correspondence between two parties should have that protection. What if, as my right hon. Friend asked, a Member of Parliament’s constituency office was broken into? Heaven forbid, but what if there was a fire at an office that resulted in papers being dispersed around the car park while the fire service were doing the sterling work of putting out the flames? What if an item of correspondence was picked up and subsequently published? That item is not one that should be in the public domain, so one would expect it to have a privileged nature. Is it so wrong that the person who produced it would be unable to rely on the defence that it was a private matter and should never have been in the public domain?

Not for the first time today, I am disappointed with the Minister’s response. However, I hope that there will be other opportunities for me to continue to lobby him on this point. I hope that, between now and when the Bill goes to the other place to be considered, the Minister will see fit to correct that anomaly. On that basis, I beg to ask leave to withdraw the amendment.

Rob Flello (Labour, Stoke-on-Trent South)

We have had some interesting discussions about our proposed amendments. The Libel Reform Campaign broadly supports the clause. It believes that the intention behind the drafting is to clarify, simplify and widen the defence, The LRC believes that that has been achieved by, among other things, dropping the reference to public interest, which always had a different and wider meaning from a Reynolds-type public interest anyway, and by dropping the need for the person making a comment to know the fact on which it is based—that is, to have it at the front of their mind—as well as by various other elements. The LRC recognises that there will be fresh litigation attempting to set out what the effect of all that will be, but interestingly it believes that that is a price worth paying for the widening and clarification. It does not feel the same about other clauses—it is important to make that clear—but it supports the change in the title of the defence from “fair comment” to “honest opinion”, as set out by the Court of Appeal case BCA v. Singh, as the “comment” was intended to mean a matter of opinion and did not have to be fair.

Clause 3 abolishes the defence of fair comment, replacing it with the new defence of honest opinion, and it accordingly repeals section 6 of the Defamation Act 1952. The new defence will be available to a defendant if they are able to show that three main conditions were met. The first is that the statement complained of was the defendant’s opinion—that is made clear in subsection (2). Subsection (3) lays out the second condition in a straightforward and helpful manner:

“The second condition is that the statement complained of indicated, whether in general or specific terms, the basis of the opinion.”

It will be interesting to see in practice whether articles and matters for publication come forward where the basis of the opinion is clear in the statement that has been complained of. The third condition is that

“an honest person could have held the opinion”

on the basis of a fact that existed at the time of the statement’s publication or anything asserted to be fact in a privileged statement prior to it. I will return to the interesting question of “honest person” in a moment, and I am disappointed that the qualifier “or” has not been included between subsection (4)(a) and (b).

The House of Commons Library research paper on the Bill explains that the first condition has been included to reflect current law, accepting the requirement previously established in case law that there should be a clear distinction between comment and imputation of fact. Condition two attempts to clarify an area of law that has become somewhat complicated, as explanation of how the law should apply has become ever more difficult and the extent to which the opinion should be fact-based has come under much debate. As with so much of the Bill, I am concerned that there is a degree of clarity missing from the subsection, especially given that such a complex area is being boiled down to a simple sentence. I have previously said that I would appreciate clarification from the Minister on a number of issues. I hope on this one he will able to inform me exactly how general these general terms have to be for a defendant to meet the conditions.

The third condition provides a test as to whether an honest person could have held the opinion stated based on facts that existed at the time. I remain concerned that the lack of any sort of clarifying word between subsection (4)(a) and (b) leaves room for an enterprising lawyer—someone equally adept at skiing between the trees and swerving—to take advantage from its absence. As a non-lawyer, I am sure there are plenty of lawyers around who would relish the opportunity to find a way of inserting an “and” rather than an “or” that seems to be imputed there. However, I do not want to revisit an area that we have already discussed, so I will simply urge the Minister once again to make that small but important amendment.

It is also worth mentioning the wording of subsection (4) whereby the condition is dependent on the sort of opinion that could be held by an honest person. That definition is open to interpretation. I know that “honest opinion” has a generally recognised meaning, but the Minister might want to say a word or two about that. It is not beyond the realms of possibility for an individual who was considered honest to be capable of being reckless with the truth or, for that matter, malicious—two further definitions which were briefly touched on this morning. It is reasonable to say that a person who is otherwise considered to be honest and upstanding might have the occasional lapse.

Subsection (5) states that a defence is defeated if it can be shown that the defendant did not hold the opinion. I believe that the Government should consider whether this condition would be better expressed using the wording suggested in my amendment. The Minister may wish to rebrand it and bring it forward at a later date. The right hon. Member for Rotherham raised a third option: a defence could be defeated if it was proven that the defendant either acted out of malice or did not hold the opinion. I hope that the Minister might be more willing to consider the addition of that particular “or”.

Subsection (6) clarifies the fact that subsection (5) does not apply in a case in which the statement in question was published by the defendant, but was in fact made by a third party. I am pleased to see that particular clarification, as it ensures that a publisher is required to bear in mind its responsibilities. For example, a particular newspaper group decides to publish something, and the author does not have that opinion. Somebody decides to sue the newspaper group rather than the author, and obviously a whole different clarification is added if that claimant can show that the newspaper group, in this case, knew or ought to have known that the author did not hold the opinion.

Finally, subsection (7) provides the exact circumstances in which a statement is considered to be a “privileged statement”, that is, the defence of absolute privilege under section 14 of the Defamation Act 1996, the defence of qualified privilege under section 15 of the 1996 Act, and the defences, which we will discuss later, in clauses 4 and 6 of the Bill. For clarity, those circumstances are responsible publication on a matter of public interest and peer-reviewed statements in a scientific or academic journal.

I urge the Minister to consider the proposal in amendment 14 before it was withdrawn. Again, perhaps a little rebranding exercise would be fine, if the improvement could be made to the Bill in another place. I will not go over old ground once more, and I am sure, Mr Havard, that you would rightly stop me from doing so anyway. I feel however that it is a notable omission that raises questions that we may simply end up debating again in future legislation. We may well simply confuse the courts as to the intention of that particular part of the legislation.

It is important to point out that, broadly speaking, we welcome the abolition of the defence of fair comment and its replacement with the defence of honest opinion. There are numerous examples of where the current defence of fair comment has failed to protect individuals expressing an honestly held opinion. For example, the Owlstalk case is often spoken about. Exacerbated by the amount of money often involved in such proceedings now, the defence of fair comment, as it stands, leaves a lot of room for interpretation. I will be grateful if the Minister talks a little about how he feels the possible widening of the interpretation is not the case.

A defence of honest opinion is fundamentally fairer than one of fair comment, if only because it moves the focus from what is considered a reasonable thing for an individual to say to the individual’s motivation for saying it. That should, if we get the legislation correct, remove a grey area, which has increasingly been used to weaken our defamation laws, and replace it with a far more reasonable consideration that will hopefully make it less onerous for defendants.

I am also pleased that the requirement for the opinion to be on a matter of public interest has been removed from the defence. It is a definite improvement, and I am glad that the Government acted on the recommendation of the Joint Committee on that issue, citing the clear trend towards courts interpreting the public interest extremely broadly in recent years. It would also clearly have been incompatible with other aspects of the Bill as it stands today.

I am glad that the Minister responded to some concerns that I have with the clause. As I previously stated, although there has been some clarification of the points in the clause that were unclear, there is still much more that needs to be done. I hope that he will take on board the concerns and address them as appropriate. We remain wholly committed to ensuring that the much-needed reform to our defamation legislation is passed, but only in such a way as to ensure that we do not have to revisit it to close loopholes and tidy the legislation.

As has already been said many times at this early stage of the Bill, such Bills do not come around every day, week, year or decade. We have to look back quite a long way to find the previous Defamation Acts of 1996 and 1952. It is important that we get the Bill right; that we do not allow it to leave this Committee, the House of Commons or the other place until it is as right as it can possibly be, no matter how seemingly small the flaw might be.

I hope that my observations and comments on the clause have been taken on board by the Minister. I hope that he will consider them and allow an opportunity before the Bill moves to the next stage to see what can be done about taking on board the simple amendments to tidy and correct some apparent anomalies. In order to ensure that we move forward on the Bill, with the strong reservations I have highlighted, I will conclude my remarks. I look forward to hearing what the Minister has to say and hope that clause 3 will be much tidier by the time it is incorporated in a Defamation Act.

Helen Goodman (Labour, Bishop Auckland)

I should like to ask some questions about subsection (5) and subsection (6). Subsection (5) says,

“The defence is defeated if the claimant shows that the defendant did not hold the opinion.”

I want the Minister to explore the question of who is the defendant. Subsection (6) goes on to spell that out in more detail. The explanatory notes say:

“Subsection (6) makes provision for situations where the defendant is not the author of the statement (for example where an action is brought against a newspaper editor in respect of a comment piece rather than against the person who wrote it). In these circumstances the defence is defeated if the claimant can show that the defendant knew or ought to have known that the author did not hold the opinion.”

My concern is that comment and news are not so neatly and tidily distinguished in newspapers. They are all jumbled up. I would like to know the approach the Minister will take when there is conflict between journalists, editors and proprietors on what is written in newspapers.

To illustrate the problem, I want to refer to the evidence that Richard Peppiatt gave to the Leveson inquiry. He said,

“I have admitted that some stories I wrote at the Daily Star were wholly inaccurate, often written under pressure from superiors to distort the facts at hand….They couldn’t care less what the PCC thinks, or about having to occasionally print a three-paragraph correction. The transaction between newspaper and reader has already occurred, and the effect of that story is rarely diminished by a retraction months later. Getting the occasional slap on the wrist was just a cost of doing business.”

He goes on to say:

“Stories which sell well…had to be sourced on a daily basis whether there was a tale to tell or not. This naturally led to fabrication in order to fulfil an unrealistic quota. Much more insidious was when this same philosophy was applied to stories involving Muslims and immigrants, when yet again a top-down pressure to unearth stories which fitted within a certain narrative (immigrants are taking over, Muslims are a threat to security) led to casual and systemic distortions.”

I think he meant “systematic”.

“In short, ethical concerns were always subservient to financial ones.”

He is describing a situation in which it is not clear whether the views expressed in the news stories are in fact the honest opinions of either editors or proprietors, but they are clearly not the honest opinions of the newspaper journalists. He goes on to say,

“Other stories still are concocted from PR content…in a highly competitive market in which agencies are competing…there is an obvious financial incentive in making your stories stand out from the crowd, and so the temptation to spin or embellish a story always exists. One obvious consequence of reporters cannibalising the work of other journalists is that the former is often wholly unaware of the veracity of their information. Sometimes the maxim that a story is ‘too good to check’ comes into play, and in this manner falsehoods can easily become propagated across the media… Another way stories appear in the Daily Star…are when they are simply made up, or based on such scant, dubious evidence as to essentially be untrue. I list in my resignation letter (attached) a number of stories that I wrote via this method, in the full knowledge, and on occasion request, of superiors.”

He talks about—[Interruption.] The hon. Member for Broxtowe says that I do not understand, but will the Minister explain why that is a misunderstanding and why my concerns are not real? I believe that they are real concerns. Unless we have a system to ensure that papers have some integrity—I want to know what the Minister’s system will be—it is not clear how such defences will be used or, indeed, challenged.

Richard Peppiatt goes on to say:

“Failing this, a story was often concocted off the back of flimsy evidence e.g. Katie Price appearing in public without her wedding ring meant her ‘marriage was over’… Another ethically dubious technique used by the Daily Star…is the overplayed headlines that misrepresent the truth of the story beyond… Reporters, including myself, were often unhappy about some of the stories we were pressured to write. Certain executives would often overplay the strength of a story in editorial conference to please the editor, but would then lean on the reporter tasked with writing it to make the story fit what they’d pitched.”

He describes instances of that and goes on to say:

“It seemed to me that reporters’ employment contracts were structured specifically to limit the possibility of any ethical protest…The spectre of being ‘let go’ at any moment is a powerful deterrent against sticking your head above the trench if you disagree with something that is occurring. Even if someone was bold enough to complain, no channel existed for employees to raise concerns about ethical or journalistic practices… I recollect one day there being just myself and two other reporters to write the whole newspaper. We were forced to use pseudonyms just to make it appear to readers there were more of us. Any fact checking etc goes out the window when you have such a heaving workload.”

In such a situation, where the journalist is clearly not giving their honest opinion—the journalist has been directed to write something defamatory by the editor, the proprietor or senior executives in the organisation—how will the defences operate? Is the Minister saying, in effect, that he agrees with the proposal from the National Union of Journalists for a conscience clause?

Rob Flello (Labour, Stoke-on-Trent South)

I am immensely enjoying my hon. Friend’s contribution. I am sure that Government Members are also doing so, given that some concerns have been raised. Subsection (6) refers to the claimant having to show that the defendant, perhaps the newspaper in question,

“knew or ought to have known that the author did not hold the opinion.”

I am curious to know her view about how, in the example she cited, the claimant could show that the defendant newspaper knew that.

Helen Goodman (Labour, Bishop Auckland)

My hon. Friend makes a good point because, in the absence of proper corporate governance and of the NUJ conscience clause, the claimant has no way of unearthing such facts. It is clear that, if that cannot be done, there will be crazy distortions and dishonesties within institutions. I have asked the Minister this already, but how does he think the policy fits with other policy work that is going on in other parts of the Government about the corporate governance of newspapers and the position of journalists? If the issue is not taken seriously, we are then in the realm of the “I don’t remember, I don’t recall, I don’t know” defence, which will be put by the defendant even when the reality is something very far removed from the honest opinion of the author of the piece.

Paul Farrelly (Labour, Newcastle-under-Lyme)

A question that I raised on clause 2 is also relevant to the question that I want to ask the Minister on clause 3. Before I do so, I would like to point out that in his prepared remarks the Minister did not answer any of the three questions I asked, one of which was exactly the same as one asked by the right hon. Member for Bermondsey and Old Southwark. That is not meant as a personal comment—this is my first Public Bill Committee since the election, and not departing from a prepared text was an affliction that was rampant on the Labour side, too. I ask the Minister to read Hansard and, as is the normal practice, to write to members of the Committee where he feels that he has not answered a question.

Simon Hughes (Liberal Democrat, Bermondsey and Old Southwark)

I am not going to go into the history. Just to defend the Minister, he was kind enough afterwards to say that he was conscious that he had not answered one of my questions. Therefore, Ministers sometimes spot these things and realise it.

Paul Farrelly (Labour, Newcastle-under-Lyme)

Perhaps I should linger longer after Committee sittings.

My third question was essentially what regard he envisaged courts having in making provision to hold early hearings on meaning that would cut costs and speed cases. Here, on the defence of honest opinion, it would be wrong not to mention the Simon Singh case. It would be beneficial if the Minister made clear that, when honest opinion is an issue, the court should determine very quickly whether the piece is an opinion, as a first step, and then move swiftly on to determining meaning. I would welcome his comments on that.

Jonathan Djanogly (Conservative, Huntingdon)

Clause 3 replaces the communal defence of fair comment with a new statutory defence of honest opinion. We seem to have consensus that this is the right thing to do, so this is more a question of detail and interpretation. This is an area where the law has become increasingly complicated and technical, leading to considerable uncertainty about how it applies in different situations. The result is longer and costlier disputes over points of detail, and the clause aims to retain key aspects of the current legislation that make the law simpler, clearer and easier to apply.

Subsections (1) to (4) prescribe three conditions that the defendant has to satisfy in order to succeed in a defence of honest opinion. The first of these requires a statement complained of to be a statement of opinion. This reflects the requirement, established in case law, that the statement must be recognisable as comment, as distinct from an imputation of fact. It is implicit that the court’s assessment of whether the condition is satisfied will be made on the basis of how the ordinary person would understand the statement.

Rob Flello (Labour, Stoke-on-Trent South)

Following on from what my hon. Friend the Member for Bishop Auckland said, many news stories now so mix up fact, comment and opinion. Does the Minister feel that as time goes on it will become far more difficult for cases of this nature to separate out what is a statement of opinion?

Jonathan Djanogly (Conservative, Huntingdon)

I shall come on to that later in my remarks.

The second condition requires a statement complained of to have indicated, in general or specific terms, the basis of the opinion. That reflects the test that has been approved by the Supreme Court in the recent case of Spiller v. Joseph. An explicit provision has been included to address the concern of the Joint Committee on the draft Bill that unless an indication of the subject matter on which the opinion is based is included, it is difficult to assess the real nature of the criticism that has been made.

The third condition focuses on whether an honest person could have held the opinion on the basis of any fact that existed at the time the statement was published, or anything that was asserted to be a fact in an earlier privileged statement. That is intended to reflect the requirement in case law that the defendant must prove a sufficient factual basis for the opinion. The provision focuses on “any fact” to make it clear that any relevant fact or facts will be sufficient, and the defendant does not have to prove the truth of every single allegation of fact set out in the statement complained of. Section 6 of the Defamation Act 1952 contains provisions dealing with that point; subsection (8) will repeal those provisions, as they will no longer be necessary.

The hon. Members for Stoke-on-Trent South and for Bishop Auckland asked various questions regarding opinion. The first was: why are we not amending the clause to require the statement to be recognised as an opinion? We believe that that would not add anything of substance, as, in considering the defence, the courts would inevitably ask themselves whether an ordinary person would have recognised the statement as one of opinion. We have, however, sought to make the position clear in the explanatory notes.

The other question that arose was: should not the person expressing the opinion have at least some knowledge of the facts when doing so? The clause currently requires that a fact must have existed

“at the time the statement complained of was published”,

but not that the person expressing the opinion must necessarily have known it. In addition, the defence may be defeated if the claimant can show that the defendant did not honestly hold the opinion. We think that that strikes the right balance.

The reference to “an honest person” reflects the requirement in case law that there be a sufficient factual basis for the opinion. If the fact relied on by the defendant was not a sufficient basis for the opinion, then an honest person would not have been able to hold it.

Subsection (5) reflects the current law in relation to malice, providing that the defence will fail if the claimant can show that the defendant did not hold the opinion expressed. The situation could also arise where the defendant is not the author of the statement—for example, where an action is brought against a newspaper in respect of a comment piece, rather than against the person who wrote it. Subsection (6) provides that in those circumstances, the defence will fail if the claimant can show that the defendant knew or ought to have known that the author did not hold the opinion. We have dealt with subsection (7) through amendments, and subsection (8) will formally abolish the common law defence of fair comment.

As is the case in relation to clause 2, while the new statutory defence replaces the common law, we expect that the courts will continue to seek guidance from their earlier decisions in interpreting how the new defence should be applied.

Rob Flello (Labour, Stoke-on-Trent South)

The Minister looked as though he was coming to the end of his comments, so I wanted to dive in quickly. He went quickly through subsection (5), which states:

“The defence is defeated if the claimant shows that the defendant did not hold the opinion.”

He cantered through that one—slalomed through it, even. I am slightly concerned at the matter-of-fact way that he said it will replace malice and then moved on to the next item. There is a big responsibility on the claimant to show that the defendant did not hold the opinion. Will he return for a moment to that subsection and provide a little more meat as to his thinking on that point?

Jonathan Djanogly (Conservative, Huntingdon)

I will see if I am able to do that before I sit down. If I am not, I will write to the hon. Gentleman.

The hon. Member for Newcastle-under-Lyme asked whether, when the opinion defence is an issue, the court will deal up front with the question of whether something is a fact or an opinion. The answer is yes. We envisage that the new early resolution procedure will include determining whether a statement is one of fact or of opinion, where that is an issue, as well as the meaning of the words complained of. I hope that that explains points for hon. Members. It seems that I will have to write to the hon. Member for Stoke-on-Trent South on his final point.

Clause 4 - Responsible publication on matter of public interest

Rob Flello (Labour, Stoke-on-Trent South)

I beg to move amendment 27, in clause 4, page 2, line 33, after ‘interest’, insert

‘unless the claimant can show that the defendant acted irresponsibly in publishing the statement complained of’.

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

With this it will be convenient to discuss the following:

Amendment 26, in clause 4, page 2, line 33, leave out from ‘interest’ to end of line 35.

Amendment 28, in clause 4, page 2, line 34, after ‘defendant’, insert

‘, having regard to the nature of the publisher, the publication and its context,’.

Amendment 29, in clause 4, page 2, leave out line 39.

Amendment 30, in clause 4, page 3, line 7, at end insert—

‘(j) the reasonable judgement of the author or editor, having regard to what was known at the time of the decision to publish the statement.’.

Amendment 8, in clause 4, page 3, line 11, leave out ‘this section’ and insert ‘subsection (3)’.

Clause stand part.

New clause 6—Publication on matters of public interest—

‘(1) The publication of a statement which is, or forms part of, a statement on a matter of public interest is privileged unless the publication is shown to be made with malice.

(2) In defamation proceedings in respect of a publication under subsection (1) there is no defence under this section if the claimant shows that the defendant—

(a) was requested by him to publish in a suitable manner a reasonable letter or statement by way of explanation or contradiction (the “response”), and

(b) refused or neglected to do so.

(3) For the purpose of subsection (2), “in a suitable manner” means in the same manner as the publication complained of or in a manner that is adequate and reasonable in the circumstances, having particular regard to—

(a) the need for the response to have equal prominence as the publication complained of,

(b) the promptness of the publication of the response, and

(c) where appropriate, the extent and promptness of the removal or clarification of, or correction to, the publication complained of.

(4) Nothing in this section shall be construed—

(a) as protecting the publication of matter the publication of which is prohibited by law, or

(b) as limiting (or bridging) any privilege subsisting apart from this section.’.

Rob Flello (Labour, Stoke-on-Trent South)

We have finally reached a clause where there are almost as many amendments and variations to the clause as subsections in it.

A common theme throughout the amendments that have been tabled is the concern that the Bill seems to have been drafted before The Timesv. Flood judgment was published; that is the perception. Therefore it captures the old interpretation—the pre-Flood interpretation—of the Reynolds defence. It is worth putting on record a summary of what was in Flood:

“The Supreme Court considered the elements necessary for a successful claim of Reynolds privilege in a defamation claim, in particular, whether it was in the public interest to report allegations of police corruption whilst an investigation was ongoing, and the steps that a reasonable journalist should take to verify the information…

Appeal allowed in part. (1) Reynolds privilege protected the publication of defamatory matter where it was in the public interest that the information should be published, and the publisher had acted responsibly in publishing it. A claim for Reynolds privilege was often determined as a preliminary issue. However, that could raise a practical problem since in order to perform the balancing act between the desirability of the public receiving the information in question and the potential harm caused if the individual was defamed, it was necessary to determine the meaning of the publication. Meaning was normally a matter for the jury. However, the parties could agree to trial by judge alone. It would then be open to the trial judge to resolve any issues that arose… a responsible journalist should have regard to the full range of meanings that a reasonable reader might attribute to the publication.”

That last sentence is worth emphasising, particularly in light of the learned and informed comments of my hon. Friend the Member for Bishop Auckland on the subject.

Paul Farrelly (Labour, Newcastle-under-Lyme)

I should like to point out to my hon. Friend and the Minister that some very sensible balanced, experienced people have made the point that the way this clause, for all its good intentions, is drafted not only does not take account of Flood but is in some respects retrograde and not as advanced as the Jameel case.

Rob Flello (Labour, Stoke-on-Trent South)

My hon. Friend and neighbour makes an absolutely accurate point to which I will return. The tests listed in this clause do not reflect the existing common law and therefore need to be improved. The Joint Committee also says so; its recommended changes to the draft Bill state:

“The Reynolds defence of responsible journalism in the public interest should be replaced with a new statutory defence that makes the law clearer, more accessible and better able to protect the free speech of publishers. The Bill must make it clear that the existing common law defence will be repealed.”

Well, we have that, but then there is the point about a new law that is clearer, more accessible, and better able to protect the free speech of publishers.

Overall, the Joint Committee supported the approach that was taken in the clause on responsible publication in the draft Bill. In particular it agreed that the term “public interest” should not be defined. The list of factors that is used to determine whether a publisher has acted responsibly should be amended, in its view, as follows:

“a) A new factor should be added that refers to the ‘resources’ of the publisher.”

Again, I will return to that point shortly. The list goes on:

“b) A reference to the statement and context should be added…

c) The term ‘urgency’ should be removed… and replaced with the more general test of whether ‘it was in the public interest for the statement to be published at the time of publication’

d) The reference to whether the publication draws ‘appropriate distinctions between suspicions, opinions, allegations and proven facts’… should be removed; and

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

That is what the Joint Committee felt.

Not surprisingly, I will refer to the Libel Reform Campaign’s comments—I am sure my hon. Friend the Member for Newcastle-under-Lyme will be particularly attentive to this:

“Clause 4 is not a new public interest defence. It is the codification of an out-of-date version of the ‘Reynolds Defence’ of responsible publication. The Libel Reform Campaign, and the thousands of writers, citizens and organisations affected by the chilling effect of libel, have called for a new public interest defence. Reynolds has been of use to large newspaper groups, but even for them it has been expensive, unpredictable and time consuming to establish. It is ill-suited to the natural discourse of citizens, such as patient group forums and has been of no use to the ordinary man on the street, to scientists such as Simon Singh and Ben Goldacre, nor to human rights organisations such as Global Witness.”

Huge concerns are already being raised about clause 4. The Joint Committee said that the draft Bill’s original clause was not suitable, and that a new clause was needed. The Libel Reform Campaign is saying that the revised clause 4 is not a new public interest defence and is not doing what the Joint Committee suggested.

For balance, because getting balanced views from all quarters is important, let me cite the British Medical Association’s parliamentary briefing:

“The BMA has been concerned for some time that English libel law may be inhibiting free and open discussion of matters of critical public concern in the sciences. Although individuals who have been defamed should have proper recourse to procedures to defend their reputations, this should not be allowed to inhibit the reasonable expression of opinion, or the critical discussion of matters of evidence.”

That is the BMA’s starting point.

Specifically on clause 4, which deals with responsible publication on matters of public interest, the BMA says:

“There is a strong public interest in ensuring safe and effective medical treatment. In the BMA’s view, codifying the Reynolds defence in this way will help support free, open and informed debate relating to medical procedures, products and innovations.”

The BMA clearly has high expectations and high hopes that clause 4 is the positive move that the Joint Committee advocated, but given the Libel Reform Campaign’s concerns, I fear that those high hopes and expectations will be dashed.

We all appreciate the work of Which?, the consumer champion, which has also, quite understandably, raised that point:

“We strongly welcome the stated objectives of the Bill. However, our view is that in many cases the Bill is codifying the existing common law rather than reforming or re-balancing it. There are…areas in the Bill in need of expansion or clarification”.

Which? goes on to say:

“Clause 4 should be amended to require the court to have regard to all the circumstances of the case in addition to the considerations set out in 4(2) when determining whether the defendant had acted responsibly in publishing the statement complained of.

Some of the considerations in clause 4(2) used to determine whether the defendant has acted responsibly in publishing the statement complained of relate to action likely to be taken pre-publication (for example 4(2)(e), (f) and (g)). These considerations will often not be appropriate in deciding whether fast breaking news stories can benefit from the defence.”

That reminds me of the observation of my hon. Friend the Member for Bishop Auckland. On fast-breaking news stories, modern newspapers will undoubtedly have the pressure of wanting to be the first on the scene and wanting to get the scoop, but those are not the same things.

Helen Goodman (Labour, Bishop Auckland)

Exactly.

Rob Flello (Labour, Stoke-on-Trent South)

My hon. Friend helpfully brought to the Committee’s attention the fact that there is a perverse pressure from less responsible editors, who are weaker on journalistic values. They will also be putting the pressure on—never mind the fast-breaking news stories.

Which? continues:

“As drafted, it could be difficult for contemporaneous news coverage to benefit from the defence because many of the considerations in clause 4(2) place an emphasis on verification and reflecting the claimant’s views without a balance of the urgency of the publication.”

It believes that the problem can be dealt with by amending subsection (2)(a)

“to include a reference to whether the statement complained of was part of a report of current events the reporting of which was in the public interest and including a reference to the urgency of that reporting.”

It states that, as in clause 2, the word “imputation” is used in clause 4 where “meaning” would be clearer. Which? thinks that “neutral” is preferable to “impartial” in subsection (3) because it better describes the situation covered by the measure,

“namely the reporting of disputes between parties without supporting either party in that dispute.”

It highlights

“a typo in clause 4(4), which should refer to 4(3) rather than to ‘this section’.”

I, too, picked up on that and have referred to it in my amendments.

My amendments 27 and 26 are intended to provoke a debate about where the burden of proof should lie in proving whether publication was made responsibly. Amendment 27 would amend clause 4 (1)(a). After the word “interest”, it would insert

“unless the claimant can show that the defendant acted irresponsibly in publishing the statement complained of.”

Amendment 26 would leave out paragraph (b).

The purpose of the amendments is to reverse the burden of proof—of irresponsibility—for the Reynolds defence by putting it on to the claimant, who, under the proposals would have to show that the publication was made irresponsibly. Commenting on my amendments, the Libel Reform Campaign said:

“The responsible journalism defence should also require the claimant to show that the defendant has been irresponsible if the statement is on a matter of public interest, rather than requiring the defendant to show he has acted responsibly. This would ensure that a person who has made a statement in the public interest would benefit from a rebuttable presumption that they have acted responsibly. They would still have to act responsibly to benefit from this defence, but would not have to carry out the expensive task of proving this in a court claim unless specifically challenged on this point by the claimant.”

Interestingly, its view is slightly different from mine. It does not think that the change would represent a reversal of the burden of proof, which, it says,

“stays on the defendant to show that an allegation of fact is justified”.

However, in a non-malicious publication on a matter of public interest, it would

“put the initial onus on the complainant to argue irresponsibility against the same criteria as currently exist.”

From discussions, the thinking behind that is that if there is a challenge, both sides would have to begin getting their evidence together. There is a cost to both sides anyway, whether they are making the allegation or mounting a defence. There is push and pull. The amendments might make the Reynolds defence less daunting for a public interest publisher. It has been suggested that without such changes, the defence would prove to be too high-risk and too expensive to make a significant difference to such publishers.

Amendment 28 would amend clause 4, inserting the words,

“having regard to the nature of the publisher, the publication, and its context.”

Amendment 29 would basically leave out line 39.

These are probing amendments, intended to make it clear that the nature of the publisher and the publication, as well as the context of the publication, are an essential element in the defence, and not just one of several factors to be weighed up. That is what is sought by deleting subsection (2)(a), and effectively inserting it into subsection (1)(b). The purpose of doing so is to address the view held by many people that smaller publishers, or rolling news publications, cannot be expected to undertake the same level of due diligence on responsible publication as larger publishers, which can also be done when there is time to consider the issues between publications.

This is an interesting point in many respects because, as we have discussed, if there is a situation in which a large newspaper publisher claims that they do not have the time or resources to undertake due diligence, perhaps we would question whether that was correct. However, looking at some of the smaller publishers—some of the bloggers, for instance, or people who occasionally publish items of interest, perhaps on a back-bedroom computer set-up—would we expect the same level of due diligence to be undertaken by them?

This probing amendment is designed to draw a response from the Minister on whether he agrees or disagrees with that view. Commenting on this group of amendments, the Libel Reform Campaign observed:

“The factors determining responsibility should always be considered against the nature and context of the publication and the resources of the publisher, rather than these points merely counted on among all the other factors. This would make what is and would remain a rich man’s defence”—

I think it might also interpret it as a newspaper group’s defence—

“at least more accessible to the little man. Perhaps case law might show that—for example in the case of a single-handed publisher—the requirements to show responsibility when publishing non-maliciously on a matter of public interest are not onerous.”

My intention is to test the view of the Committee as to whether that is correct, or indeed if it is felt that the same level of diligence should be required of all publishers. Should we have the same hurdle for a newspaper group with hundreds of employees and a turnover in the millions?

Helen Goodman (Labour, Bishop Auckland)

Is my hon. Friend thinking of the difference between, let us say, a national newspaper looking at the tax avoidance scheme of a large national company, and a local newspaper looking at corruption in a local authority? Is that the kind of distinction he is trying to make?

Rob Flello (Labour, Stoke-on-Trent South)

Indeed, that is one of the distinctions I am looking at. What I am trying to do is test the clause. We need to dig deeply into some of the clauses. With the greatest respect to the Minister, I feel that in some of his responses we have had a sort of downhill slalom approach: if you get in the way, you are swept away by a sweep of snow. I would rather have the warming sun melting those snowy peaks to reveal what lies beneath.

With that lovely thought on this summer’s day, my intention is to test the view of the Committee: is this the correct thing? Should we require the person sitting on the settee with a laptop, playing on the Xbox and on the mobile phone to their friends while gathering news stories, to have the same level of due diligence as the experienced and, hopefully, sufficiently well-paid journalist working for a big media organisation with all the resources available to them?

Simon Hughes (Liberal Democrat, Bermondsey and Old Southwark)

The reality of modern media is that somebody who sends a Twitter response or an e-mail, or who writes a little article on a blog, might end up getting far better local, national and international circulation than somebody writing a column for a serious broadsheet newspaper. There is no logic in saying that there should be a different standard for each person in this day and age, although experience and so on should be taken into account. People have to take responsibility for what they put up for other people to read.

Rob Flello (Labour, Stoke-on-Trent South)

The right hon. Gentleman makes a good point.

Helen Goodman (Labour, Bishop Auckland)

The issue that the right hon. Member for Bermondsey and Old Southwark raised is epitomised by the nine-year-old Scottish schoolgirl blogging about school meals. There is a question about whether one expects the same level of diligence from a nine-year-old, a 19-year-old and a 90-year-old, for example. Her blog went viral, as they say, and 2.5 million people read her reports on her school meals.

Rob Flello (Labour, Stoke-on-Trent South)

I am grateful to my hon. Friend for picking up on the point made by the right hon. Member for Bermondsey and Old Southwark, which is a good one. A lot of well-respected media commentators and reporters, and journalists more widely, use Twitter to try to get their stories into the blogosphere and taken up more widely. We have to take account of the different media in existence in our discussions, but given that it may be another 20 years before the next Defamation Bill is discussed in the House, we must also think about what media might exist five, 10 or 15 years’ time.

Simon Hughes (Liberal Democrat, Bermondsey and Old Southwark)

Last night, along with colleagues from all political parties, I attended the first awards ceremony held by PoliticsHome. Today, Paul Waugh, the editor, reckoned that they had 1 million followers from different Twitter feeds—people like Lord Prescott, and so on—as a result of that event. A Member of the House of Lords or of the House Commons who decided to put something out as a result of that event should realise that they have a different obligation from the young woman in Scotland, who was just making an innocent, childish comment on her school food. We may not be professional journalists, but we know that if we send something out into the ether it could be just as libellous, damaging and problematic as anything written by a responsible journalist from an international newspaper.

Rob Flello (Labour, Stoke-on-Trent South)

I am grateful for the right hon. Gentleman’s powerful intervention. Those 1 million followers cast my paltry number of Twitter followers in a different light. That is a good point and it brings me back to amendments 28 and 29, which were tabled to allow Committee members to consider the nature of publication. It is essential that a court considers who the publisher is. Is it a nine-year-old girl or a widely respected blog site? Is it somewhere between the two or is it something different? Is the publication a 140-character Twitter stream, as opposed to a double-page spread in The Times? The context of publication must be considered. Is it a nine-year-old schoolgirl reporting on school meals, a well-read newspaper or a Twitter user with a following of 1 million-plus?

Denis MacShane (Labour, Rotherham)

This is an interesting point, because possibly the most famous example of libel law in our history, with huge political and literary consequences, is that involving Oscar Wilde. The publication was a visiting card that read: “For Oscar Wilde posing as a sodomite”.

Christopher Pincher (Conservative, Tamworth)

And a poseur.

Denis MacShane (Labour, Rotherham)

Well, it was less than the 140 characters of a tweet, on a tiny bit of card, yet it ruined one of our greatest writers and made the name of one of the most odious QCs ever to leave Ulster.

Rob Flello (Labour, Stoke-on-Trent South)

They are long since dead, so let us return to amendments 4 and 5. The calling card was, in a way, the Twitter of the day, and, returning to my point, we must be careful, because what we do in this Committee will have ramifications for technology that has not been invented yet. I will not incur the wrath of Mr Havard by saying that these sorts of things really will become matters of grave concern when we come to debate clause 5, because we do not know what the equivalents of Twitter and Facebook will be in 15 years’ time. We probably do not know what they will be in five years’ time.

Simon Hughes (Liberal Democrat, Bermondsey and Old Southwark)

I shall make final point linked to new clause 6, which my right hon. Friend the Member for Carshalton and Wallington will speak to if he catches your eye, Mr Havard.

Putting right something that is false is much more difficult in the viral world. It is one thing to argue, as I have done for a long time, that if someone is libelled on the front page of The Sun, it should put the correction in equal-sized characters—that has never been done, but there is strong case for doing so. However, if somebody is libelled in a tweet that goes viral, how can that be corrected in the same way and with the same sort of probable guarantee that the people who got the first false message will get the second correct message? It is much more difficult to deal with.

Rob Flello (Labour, Stoke-on-Trent South)

Absolutely. That is, again, an extremely good point, and I will return to the topic when we consider the other amendments and new clauses, and when we consider clause 5. There is the whole issue around getting a name cleared and getting some recompense for the damage done by a tweet—I will allude to a case—where information is made available that is subject to a super-injunction and that turns out to be damaging. The defence of truth starts to come into play, but if something of the same nature that was not true was put out there, the damage is done. How can it be undone? I will park my observations and return to them later.

I move to amendment 30. As I have mentioned briefly already, the existing case law following the Gary Flood ruling has moved beyond where the Bill is currently. The amendment’s intention is to give the courts the clear ability to consider what an editor or author might have considered at the time of the decision to publish and what is a test of reasonableness and judgment in the mind of the court. I again refer to the comments of the Libel Reform Campaign. It stated that clause 4

“should be amended to reflect the more recent responsible journalism defence as outlined”

in Flood v. Times Newspapers, when Lord Mance held that journalistic judgment and editorial freedom were entitled to weight when considering how much detail should be published. That is reflected in amendment 30, which adds reasonable journalistic judgment to the list of factors to which the court may have regard when considering whether the defendant acted responsibly in publishing a statement. It is an objective test by the court of what was a reasonable decision for the editor to make in the circumstances, and is relevant, for example, to rolling news coverage where there is little chance for extensive checking. That is a good point, and it is why I moved the amendment. Without the amendment, clause 4 is actually worse than the existing common law position established in Flood v. Times, which is the point that my neighbour and hon. Friend the Member for Newcastle-under-Lyme was making earlier.

I look forward to hearing the views of the Committee and the Minister as to whether the clause as drafted comes close to replacing the Reynolds defence that it seeks to strike out.

Paul Farrelly (Labour, Newcastle-under-Lyme)

The Minister must be pleased that we have got to page 3 of the Bill so speedily, notwithstanding the heroic efforts of my hon. Friend the Member for Stoke-on-Trent South in tabling so many probing amendments in such a short space of time. He will be the first to recognise that his list of amendments is by no means exhaustive. Indeed I have some additional proposals to discuss under stand part and some alternatives, which may have the same effect or an even better result than those of my hon. Friend. I hope that he and the Minister will consider them in due course.

Rob Flello (Labour, Stoke-on-Trent South)

I am grateful to my hon. Friend. Obviously, with stand part being taken as part of the group, I look forward to the contribution that he is itching to make. With his experience of these matters, which is far greater than mine, his amendments probably would have been far superior, even though I had the interesting job of staying up till the wee small hours to try to get them in. I return now to my observations and amendments.

Amendment 8 tidies up a drafting error. Hon. Members have heard me say that a few times today. The amendment is intended to show that subsection (4) cannot be used in isolation from subsection (3). I cannot recall whether it was Which? or another organisation that spotted that point. Amendment 8 would

“leave out ‘this section’ and insert ‘subsection (3).”

If members of the Committee turn to page 3 of the Bill, I will touch on some of my concerns.

Before I do so, I am reminded that my hon. Friend the Member for Newcastle-under-Lyme made the slightly jovial point that we have managed to get to page 3. I want to put it on record that the Bill is important. We should not see it as some sort of exercise in how quickly we can race through it. That is not why the House convenes its Committees. I do not need to tell right hon. and hon. Members that the House convenes Committees to ensure that the legislation that goes through them is the best it can possibly be. It is also important to point out that there are only 16 clauses in the Bill, so to get to page 3 of a very short Bill on the first day does not seem too much of a problem.

Subsection 3 states:

“Subsection (4) applies in relation to the defence under this section if the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party.”

That seems reasonable, so we then expect to jump to subsection (4). I will pause, because if we do not read through the Bill sequentially, but decide to go straight to subsection (4) having not read the previous subsection, we read:

“In determining for the purposes of this section whether the defendant acted responsibly in publishing the statement complained of, the court must disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it.”

We then start to get worried, thinking, “Hang on, what does that mean?” Does it mean, as the Bill states:

“In determining for the purposes of this section whether a defendant acted responsibly in publishing”?

Clearly it does not mean for the purposes of the clause, but what does “this section” mean? It is a wide get out of jail free card, if it is not clarified and qualified:

“In determining for the purposes of”

subsection (3)

“whether a defendant acted responsibly in publishing the statement complained of, the court must disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it.”

We return to the points that my hon. Friend the Member for Bishop Auckland has repeatedly made about taking the time to verify that what is being said is true.

The purpose of the amendment is to show that subsection (4) cannot be used in isolation from subsection (3). If, as I hope, the amendments are agreed to, we will get a more robust clause 4.

Helen Goodman (Labour, Bishop Auckland)

A clause 4 moment.

Rob Flello (Labour, Stoke-on-Trent South)

Indeed. Moving swiftly on, subsection (1) would then read:

“It is a defence to an action for defamation for the defendant to show that the statement complained of was, or formed part of, a statement on a matter of public interest, unless the claimant can show that the defendant, having regard to the nature of the publisher, the publication and its context, acted irresponsibly in publishing the statement complained of.”

Subsection (2) would read:

“Subject to subsections (3) and (4), in determining for the purposes of this section whether a defendant acted responsibly in publishing a statement the matters to which the court may have regard include (amongst other matters), first, the seriousness of the imputation conveyed by the statement; secondly, the relevance of the imputation conveyed by the statement to the matter of public interest; thirdly, the importance of the matter of public interest concerned; fourthly, the information the defendant had before publishing the statement and what the defendant knew about the reliability of that information; fifthly, whether the defendant sought the claimant’s views on the statement before publishing it and whether an account of any views the claimant expressed was published with the statement; sixthly, whether the defendant took any other steps to verify the truth of the imputation conveyed by the statement; seventhly, the timing of the statement’s publication, eighthly, the tone of the statement; and finally, the reasonable judgment of the author or editor, having regard to what was known at the time of the decision to publish the statement.”

Subsection (3) would then go on to say:

“Subsection 4 applies in relation to the defence under this section if the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party.”

Subsection (4) would then say:

“In determining for the purposes of subsection (3) whether the defendant acted responsibly in publishing the statement complained of, the court must disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it.”

Denis MacShane (Labour, Rotherham)

I am genuinely confused, because of the defences in subsection (2). If I sue a paper for libel, saying that it told untruths about me, the newspaper would be asked whether it took any other steps to verify the truth of the imputation conveyed by the statement—the nasty things that were said—and it would have to show that it had checked the facts. My hon. Friend then skips down to subsection (4), which says that

“the court must disregard any omission of the defendant to take steps to verify the truth”

of the nasty things said about me.

On one level, the court is being told that if nasty things are said about me it is important that the truth of those things is verified, but on another, that it can disregard any omission, so if the newspaper that said the nasty things about me has omitted to take the necessary steps, the court can ignore that. I do not know whether that is due to the drafting or whether it is because of the difficult problem that different learned friends have different forms of words.

I do not know whether my hon. Friend can help me through this, but the trouble is that when we get to the Minister’s reply, it is almost too late. He will undoubtedly have an explanation, and if he does not, one is being written very quickly now, but it will be too late to find the correct words for what seems, on the face of it—I might just be an extremely ignorant layman—to be a clause with an internal self-contradiction.

Rob Flello (Labour, Stoke-on-Trent South)

I am grateful to my right hon. Friend. His point returns to amendment 8, because if subsection (4) sits there in splendid isolation, becoming a reason for disregarding the

“omission of the defendant to take steps to verify the truth of the imputation conveyed by it”,

that is very powerful. The court must disregard it, as my right hon. Friend rightly says. It is only safe to allow it when it is linked to subsection (3), which talks about

“an accurate and impartial account of a dispute.”

I take my right hon. Friend’s point because if we are not careful, there is a danger. If the clause is not amended and improved, I will have serious doubts about whether we can support it, but I will return to that point in a moment.

Subsection (5) would state:

“For the avoidance of doubt, the defence under this section may be relied upon irrespective of whether the statement complained of is a statement of fact or a statement of opinion”

while subsection (6) would state:

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

That is what the clause would look like if those amendments were accepted.

In evidence to the Select Committee on Culture, Media and Sport, defamation lawyer Mark Stephens said:

“The cost of a Reynolds defence is somewhere between £100,000 and £200,000, plus of course the risk of losing. You have got an adverse cost risk as well on top of that. That is the sort of sum of money which NGOs just cannot afford to spend. Although they have a very good defence—and invariably that is the advice we are giving—they are not able to deploy it.”

That was during the Committee’s inquiry into press standards, privacy and libel, which was its second report of the 2009-10 Session.

As it stands, the defence is also ill-suited to the natural discourse of citizens, such as patient group forums, and it has been of no use to the ordinary man on the street, to scientists such as Simon Singh or Ben Goldacre, or to human rights organisations such as Global Witness. In my view, and that of the Libel Reform Campaign, the fundamental case is that even an amended clause 4 will never be the public interest defence that is required, which is why, regardless of what happens to the clause, a new defence is needed.

New clause 6 is proposed as a means of speeding up the resolution of public interest-related defamation claims. I will take a moment to go through what new clause 6 says, because it is important that we have that in front of us.

Subsection (1) should be read as a way of providing a defence where a statement is made that is, or forms part of, a statement on a matter of public interest where no malice is involved. Having drafted the new clause and speedily rushed it to the Table Office, I had my own concerns about using the word “privileged” with all its attendant meaning. The meaning I am after, however, is one of providing a defence. Although the subsection states:

“The publication of a statement which is, or forms part of, a statement on a matter of public interest is privileged unless the publication is shown to be made with malice”,

my intention is that it is a defence. Therefore, a statement which is, or forms part of, a statement on a matter of public interest has a defence, unless it is shown to be made with malice. Subsection (2) deals with the case in which the claimant asks the defendant to publish a response, but they refuse to do so. I am sure that the right hon. Member for Bermondsey and Old Southwark is now starting to see where his earlier comments around the front-page splash come in, and I am sure he will make an extremely valuable contribution on this point shortly.

Subsection (3), perhaps unsurprisingly, explains what is meant in the preceding subsection. It broadly establishes that a front-page story must require a front-page response, and that a response a year later is frankly not good enough. I suspect that hon. and right Members will raise questions about the new clause. Indeed, I would want to consider whether such a clause could be open to manipulation by an unscrupulous publisher or author, despite the requirement that no malice be involved.

A concern has already been expressed to me outside the Committee about whether there is a danger under the new clause that somebody gets the restitution of having a front-page response printed, but then is not able to get any recompense for the damage that has been done to their reputation. I fully accept that there is that danger with the new clause as I have tabled it. However, I think it is important that we start to dig in and ask whether it is a remedy for someone who feels that, although the money would be very nice, but what is important is getting that front-page response in a timely manner in a way that is equal to the harm that was done to them in the first place. The speed of that restitution would be sufficient to mean that they were less concerned about any pound notes that may flow from that.

I want to highlight what I consider are the four fundamental points that let down the clause. First, it is not worth putting the common law on to a statutory basis unless the law is changed and improved. Otherwise,all that is done is a freezing of the status quo at a particular point in time, even though the case law itself has continued to evolve, as has happened with Reynolds following Flood. Secondly, the way in which the clause is drafted does not improve the common law and therefore, in my humble opinion, achieves nothing. Thirdly, the clause reflects a worse version of an already unwieldy, inaccessible and expensive defence than exists in common law. The fourth point is that people’s expectations of clause 4 are that this really will finally deal with the issue of responsible publication on a matter of public interest. They feel that organisations will feel let down by the clause before too long.

Denis MacShane (Labour, Rotherham)

Subsection (6) states:

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

That takes quite an important weapon out of the armoury. The Reynolds defence is not perfect, as we know, but it helps journalists responsibly to investigate serious malpractice by politicians. An example dear to many of us was when a newspaper paid a criminal more than £200,000 for a stolen disk relating to MPs’ expenses, but most of us, even those who suffered the lash of the public coverage of that, think that that was actually in the public interest. I am nervous of just, with a flick of a pen, booting the Reynolds defence not into the long grass but out of any legal consideration. Whose interest does that really serve? It is part of the problem.

Despite the well-meaning and bipartisan intentions of the Bill, the wording does not seem to match with all the desires of both the journalistic community that wants to be defended in its proper course of duty and, on the other hand, the members of the public—the trivial people—who find themselves without any recourse to m’learned friends. The Reynolds defence cuts both ways. My hon. Friend is making an important point. Going to ask lawyers to take up a libel case is unbelievably expensive.

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

Order. Mr MacShane, that was supposed to be an intervention. You will be able to speak in the stand part discussion and the discussion that follows.

Rob Flello (Labour, Stoke-on-Trent South)

My right hon. Friend makes an extremely good point, and it was worth testing the patience of the Chair, in my humble opinion, to hear its extent, because it is exactly right. We are getting rid of the Reynolds defence and replacing it with something inferior. The Reynolds defence has continue to grow since the Bill was drafted—I refer to my opening comments on the Flood case—and yet we have in the Bill something that is far weaker and does not do the job, despite the best hopes and aspirations of an eager public waiting to see clause 4 come forward in all its glory. I am sure that the Minister will say that it is not a problem, because case law will build up on clause 4, but case law has to start from an earlier point, rather than where it is currently. That cannot be satisfactory.

I hope that, in answering this debate, and dealing with the amendments, the new clause and the stand part, the Minister will accept that clause 4 is flawed and provide sufficient reassurance to the Committee that the Government will go away and come back with much better thought through proposals. I will await and listen with a great deal of interest. It may well be that although I do not press the amendments. I reserve the decision on whether we will vote against the clause, because it is at best misdirected and at worst sets us back hugely in dealing with the issue of responsible publication on a matter of public interest.

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

Order. Before I call Mr Brake, a general point. I appreciate that there are lots of interconnections and overlaps with this, but there are later clauses about websites and process. This clause is about responsible publication on a matter of public interest. If people could bear that in mind when making their contributions, it would be helpful, just so that we can make some progress.

Paul Farrelly (Labour, Newcastle-under-Lyme)

On a point of order, Mr Havard. For clarity, we are taking the stand part debate in the general run of things.

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

That is correct. Yes is the short answer to your question.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I intend to direct my remarks to new clause 6, and I hope that they will be perfectly in order and to your satisfaction, Chair.

One thing that is clear about the clause—it was clear from the discussions that were effectively organised by the hon. Member for Newcastle-under-Lyme and the briefings from the Libel Reform Campaign—is that it is perhaps the most significant clause in the Bill and the one that requires the most attention. It was clear from the meeting organised by the hon. Gentleman, which was attended by lawyers who represented both claimants and defendants and investigative journalists, and also from the Libel Reform Campaign that those people do not believe that the clause represents a strong enough public interest defence and that there are various ways in which that could be addressed.

As this Committee is consensual in nature, the shadow spokesman has lifted Liberal Democrat policy word-for-word for new clause 6. According to Evan Harris, the new clause is a thing of beauty, although I accept that things of beauty may be imperfect, and that the Minister may have detected some things in the new clause that require amendment. It seeks to improve the present situation by providing a new public interest defence. My right hon. Friend the Member for Bermondsey and Old Southwark and I would like the opportunity to discuss the new clause with the Minister in the near future.

The hon. Member for Newcastle-under-Lyme has organised a rally on 27 June in support of a new public interest defence. Dara O’Briain, Professor Brian Cox, Dave Gorman and Simon Callow, among others, will be in attendance, and a petition of 60,000 signatures will be presented. I am sure that it would be in the Minister’s interest to attend that rally as a conquering hero who has delivered exactly what those personalities are campaigning for, namely a new public interest defence.

Simon Hughes (Liberal Democrat, Bermondsey and Old Southwark)

Colleagues should remember the previous Government’s experience when Miss Joanna Lumley got involved in a debate and the media came out of it better than Ministers.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I thank my right hon. Friend for that intervention and I am sure that the Minister has logged that fact. I do not want to delay the Committee further, only to say that new clause 6 encapsulates a significant proposal that, certainly according to the variety of groups and individuals who have lobbied us, would present a stronger public interest defence. I hope that the Minister will be willing to meet me and my right hon. Friend to discuss the matter in the near future.

Helen Goodman (Labour, Bishop Auckland)

I draw the Minister’s attention back to clause 4(1). We all understand why he does not want to include a definition of the public interest. On Second Reading, I argued that he should set out, for the guidance of the courts, an indication of what he believes the public interest to be, if only so that we could once and for all squash the ludicrous conflation between the public interest and what interests the public. I asked him specifically whether he agreed with the definition of “public interest” in the Press Complaints Commission’s code of practice, which states that it

“includes, but is not confined to…Detecting or exposing crime or serious impropriety…Protecting public health and safety…Preventing the public from being misled by an action or statement of an individual or organisation”,

or whether he adheres to the Crown Prosecution Service’s longer definition, which, unfortunately, I do not have to hand. Will he say something about the public interest?

Clause 4(1)(b) states that it is a defence for defamation if it is shown that

“the defendant acted responsibly in publishing the statement complained of.”

How does that relate to a completely different area of legislation, namely the Official Secrets Act? For example, it could no doubt be claimed that parts of the WikiLeaks publications were in the public interest, but others, such as those showing where and how terrorists might attack installations, were clearly not. Has the Minister given any thought to the issue of acting responsibly in publishing and what it means in relation to other issues? It seems that it could pass the defamation test, but not another test. Has he thought about that?

My hon. Friend the Member for Stoke-on-Trent South has said a lot about subsection (2). It is important to remember just how revolutionary the Reynolds judgment was. It was a sea change in defences for journalism, because we moved from the truth and harm criteria to issues about whether a journalist had, in investigating stories, behaved in ways that might reasonably have led him to believe that a story was true. That is the difference between true belief and knowledge, which I spoke about when dealing with clause 2.

I am not clear what the Minister intends to do with clause 4. My hon. Friend has set it out clearly that that does not reflect the law at the moment, as it does not take account of Flood. Is the Minister simply trying to reflect the current state of case law, or is he trying to pull it back or move it forward? For example, the Bill includes

“the nature of the publication and its context”.

“Context”, I think, is an addition. It also includes, in paragraph (d), “the importance”, which is also in addition to Reynolds. However, there were things in Reynolds that are not in the Bill, such as the nature of the information and whether the paper had affirmed whatever claims it made as a statement of fact or had called for an investigation on it.

The explanatory notes did not help me much in trying to understand that matter. Paragraph 31 of the explanatory notes state that

“subsection (2) sets out a non-exhaustive list of matters…broadly based on the factors established by the House of Lords in Reynolds and subsequent case law”.

The Minister should respond in detail to my hon. Friend’s points. Will he set some context? What is he trying to do here? That would help the Committee to understand the clause and where we are going with it.

Paul Farrelly (Labour, Newcastle-under-Lyme)

Clauses 1 to 3 have been relatively uncontroversial, subject to a small number of clarifications that have been requested. There are, however, real problems with clause 4, and I want to rehearse two main concerns.

First, as has already been said, the clause does not reflect the current common law position following the Supreme Court decision in Flood v. Times Newspapers Ltd. It is more restrictive regarding responsible journalism and puts judges firmly back into the editorial chair, which a series of Supreme Court cases have said should not be the case.

Secondly, and importantly, the list of matters in subsection (2) runs the risk, again, of becoming a defined tick list of hurdles over all of which a publisher has to jump to use the defence. That remains a worry, despite the inclusion of the words “may have regard” and “include”, which the Minister will no doubt state naysays the concerns. The reason why it is still a worry is that in both Reynolds and Jameel, which gave rise to the defence, even though the judges emphasised that the factors that they had listed should not constitute a set of hurdles, lower courts interpreted them in that way.

For that reason, some experts in the legal field whom we have talked to and some newspapers would like to see the list deleted entirely. That would also cover concerns about the cost of running a Reynolds defence across the tick list, in terms of lawyers and court time. Opinions on that, though, differ. A list has the advantage of clarity, as long as it is made abundantly clear that it is not a tick list, and that the court will have regard to all the circumstances applicable in a particular case and will look objectively at the conduct of the publisher in the round at the time. Serious investigative journalists with whom I have worked in the past do not want a charter for sloppy journalism, because that would destroy the craft in the trade. I encourage the Minister to steer a middle way, and I will offer some sensible suggestions for amendments to the list.

First, I will rehearse the Flood case. The judgment in Flood v. Times Newspapers was delivered by the Supreme Court on 21 March 2012. The hearing took place on 17 and 18 October last year, and it would no doubt have helped the drafters of the Bill if the judgment had come sooner. The case concerned an article in June 2006 about Gary Flood, a detective sergeant of the Metropolitan police against whom investigations of corruption had been made that led Scotland Yard to start an investigation against him.

That investigation found no evidence that Sergeant Flood had acted corruptly, but the case hinged on whether The Times could report the fact of an investigation in the public interest without risk of losing a case for defamation. I reassure the Committee that the judgment in favour of The Times was not a licence to libel by any means; it contained many safeguards about content, tone and approach to reporting. The history of the case speaks volumes about the lack of clarity surrounding the current “responsible journalism” defence. In 2009, in the High Court, Mr Justice Tugendhat ruled that Times Newspapers was protected by the Reynolds defence. In 2010, the Court of Appeal reversed that decision, only for it to be reversed again by the Supreme Court in March this year. That is the sort of uncertainty with which newspapers acting in the public interest have had to contend until now.

The contention of defamation experts in law and in the newspaper industry—there seems to be real consensus about this—is that clause 4 does not take Flood into account. I would like the Minister to respond to that contention, and to tell the Committee whether he is prepared to table amendments to the clause on Third Reading to ensure that it codifies existing common law, if that is the intention. I suspect that he does not want the clause to be a retrograde step, and that the answer lies in the timing of the Flood case. The Bill was published on 10 May, however, which meant that there were some weeks for thought following the case. As my hon. Friend the Member for Bishop Auckland said, if the Bill intentionally disagrees with the Supreme Court and Flood, the Minister must say so and explain the reasons why.

If the list of matters in subsection (2) is to remain, I urge the Minister to consider the merits of some further changes. I have tabled amendments for this Thursday to introduce some of those changes, but given the speed with which we are considering the Bill I am conscious that they will be overtaken. These are some suggestions for the Minister to consider in addition to those made by my hon. Friend the Member for Stoke-on-Trent South and the right hon. Member for Carshalton and Wallington.

I will not make again the point about the Minister responding to concerns about the use of the word imputation rather than a clearer word such as allegation; I will address the list in subsection (2). To take account of the nature of rolling news, will the Minister consider adding, as amendment 35 suggests,

“including whether it was part of a report of current or developing events”

after the word “context” in paragraph (a)? We do not want a charter for sloppy journalism, and I would like him to consider how we can strike a balance.

Will the Minister consider deleting paragraph (c) or, if not, will he explain what it means and why it was included? Some of the legal experts I have spoken to say that it introduces a potential source of confusion and uncertainty. As a tidying amendment, and for clarity, will the Minister consider inserting, before the second mention of “views” in subsection (2)(f), the word “such”?

Subsection (2)(g) is my main concern, given the ruling in Flood. That subsection is more restrictive than the position confirmed in Flood v. Times Newspapers by the Supreme Court. If the word “invitation” refers to meaning, in cases where there is a Chase level 1 meaning—these are not my words, but those of an eminent QC; in other words, guilt—the newspaper may in the Flood case have been required to prove the truth of the allegations themselves. Will the Minister consider the deletion of that subsection or, at least, its replacement by the phrase “whether the defendant took steps to verify what was published”?

Will the Minister consider the deletion of subsection (2)(h) and the insertion instead of “the urgency of the matter”? That would replace the current words with those actually used by Lord Nicholls in Reynolds v. Times Newspapers. That would also address the concern that comment is quite often deliberately withheld to delay publication, which is especially relevant to weekly, fortnightly or monthly publications and television news programmes. Will the Minister clarify what is meant by “tone” in subsection (2)(i)?

On subsection (3), which relates to neutral reportage, will the Minister consider the deletion of the words

“to which the claimant was a party”?

I am not sure why that is so restrictive. The word “dispute” in that subsection is also questionable. Lord Lester had the term “pre-existing matter”. My question is why should a dispute be all that can be reported by way of neutral reportage, as the subsection implies?

On the non-exhaustive nature and clarity of the list, many commentators preferred the drafting in Lord Lester’s private Member’s Bill. May I refer the Committee to how he handled that matter in his Bill? He made it explicit that the list was not exhaustive, stating in clause 1(3):

“The court when deciding for the purposes of subsection (1)(b) whether the defendant has acted responsibly must have regard to all the circumstances of the case.”

That is very clear, and the beginning of clause 1(4) states:

“Those circumstances may include (among other things)—”

That drafting is preferable and clearer than the current drafting of this Bill. Will the Minister consider including that drafting and, indeed, any of Lord Lester’s drafting that would make the Bill better and clearer?

Finally, I draw the Committee’s attention to another suggestion regarding the judgment in Flood. An eminent QC wrote to me to say that two members of the Supreme Court in Flood thought that the Reynolds defence came down to this single question:

“Could whoever published the defamation, given whatever they knew (and did not know) and whatever they had done (and had not done) to guard so far as possible against the publication of untrue defamatory material, properly have considered the publication in question to be in the public interest?”

This, the QC suggested, could be usefully reflected in statute with a new subsection that I would ask the Minister to consider. It might be drafted as follows:

“If the court considers that, having regard to all the circumstances of the case, the defendant could properly have considered that the publication of the statement complained of was in the public interest, it shall find that this defence is established.”

The reason for suggesting that as an alternative to one of the amendments that my hon. Friend the Member for Stoke-on-Trent South has advanced about editorial judgment is that it applies to everyone and not just the media. Editorial judgment will apply to the media, but not to other people, so this is a broader test. It would involve looking at the judgment of the person who published it, and it would exclude cavalier, slipshod or reckless statements.

In summary, the recognition of the defence of responsible journalism in the Bill is very welcome. There are always dangers in codification; if it is not right it will become retrograde, which is why the Select Committee for Culture, Media and Sport, of which I am a member, was very cautious in that regard. I ask the Minister to be flexible enough to consider improvements to reflect what has been discussed in our debate when we come to Third Reading.

Simon Hughes (Liberal Democrat, Bermondsey and Old Southwark)

We owe a debt of gratitude to Lord Lester who started this ball rolling. He was very clear that the law needed to be changed, and put a proposition before Parliament. We are also grateful to our colleagues on the Joint Committee, who did the work that prepared the Bill, in the draft Bill procedure—Lord Mawhinney, who chaired the Committee, and our colleagues, my hon. Friend the Member for Cambridge (Dr Huppert), Lord Marks of Henley-on-Thames, and Members from other parties, and no-party Cross Benchers—as well as to our noble Friend Lord McNally, who is leading on the Bill for the Ministry of Justice. A lot of work has been done, and I acknowledge that, and we are grateful for it. It has taken us a long way.

However, my right hon. Friend the Member for Carshalton and Wallington made the point that this clause is the one that needs the most work to get it right. It is very important. The question of how to define the public interest, the justification, and the defence, is not easy, and we have had a proposition put by the hon. Member for Stoke-on-Trent South in the form of the new clause.

Whether it is a work of art or a beautiful creation is for each of us to form a judgment on. I am sure that no clause is so wonderful that it cannot be improved. No amendment is so wonderful that it cannot be bettered, but we have put down a marker that we need to address the provision.

I want to make two substantive points. The first is that there is a debate, understandably, for the Minister and Ministers in the MOJ, about how much to legislate in the context of the Bill’s reform of the law on defamation. It has waited for a long time, and as colleagues have said, it is not something we would want to do often, nor should we. There is a question of how far we should make changes here, or whether Parliament should wait for the Leveson inquiry to report on matters that are also within the compass of the measure, and covered in it. There is an obvious issue in new clause 6 that is central to that debate. In all my lifetime, when somebody is libelled in a publication, I do not think there has ever been a requirement on the publisher to correct it in a similar way.

Often people do not want to go to court or to have millions of pounds of damages. They just want it to be put right when their local Friday morning paper, or the daily evening paper in London, or the national tabloid that people pick up in the newsagent, has said something about them on page one, three or eight, with a big headline and a big article, which was clearly untrue and not checked out. The hon. Member for Bishop Auckland gave a good example about allegations about youngsters in her constituency that were not justified. That is the claim of most people when things go wrong in life. Most people who have complained about their local hospital do not want £1 million damages; they want somebody to own up and say “We were wrong,” and they want an apology.

Rob Flello (Labour, Stoke-on-Trent South)

I am enjoying the right hon. Gentleman’s contribution. When drafting my new clause, I considered situations in which someone is defamed to such an extent that their life is completely changed. Revisiting that, I am slightly concerned about someone in that position, having been defamed in front-page splashes across all those papers, being unable to get any financial restitution to put their life back in order.

Simon Hughes (Liberal Democrat, Bermondsey and Old Southwark)

An example relates to a gentleman who gave evidence recently to Select Committees. The gentleman, who is from Bristol, was arrested in relation to the murder of his neighbour, and he was absolutely slated in all the press. In the event, he was proved to have nothing to do with the crime; somebody else was later arrested, charged and convicted. For that gentleman to restore his reputation must be almost impossible. He has tried hard and, because he has been willing to go on the front foot and take on the situation, he has done better than most people would have done, but not everyone is in a mental, emotional and psychological position to do that.

To take the obvious historical example from the tabloids, if a school keeper, a teacher, or whatever, is branded a paedophile in a tabloid, the chance of their being able to restore their reputation fully is pretty nigh impossible. The weaker their character, or the more damaged they are, the more difficult that is.

Helen Goodman (Labour, Bishop Auckland)

There is another reason why we need to leave open the possibility of people getting financial recompense, as well as the important apology that the right hon. Gentleman has mentioned: in practice that might take time, and the person might suffer real financial loss—they might lose their job, for example. We do not want to rule out the possibility of recompense and redress.

Simon Hughes (Liberal Democrat, Bermondsey and Old Southwark)

I absolutely agree. I am not arguing that that should not be a possibility, but I am making the general point that most people want a correction in the public domain of the injustice done to their reputation, rather than the money. Of course, there are people who lose their job, whose relationship breaks down or whose family life is disrupted.

My key point is that I would like the Minister to be open and honest with the Committee on whether Ministers have decided that the issue should not be addressed here and now in the Bill because they want to wait for Lord Justice Leveson to report—he will no doubt address it, because it is one of the issues bouncing around his inquiry—and, therefore, the view of the Ministry of Justice is that we will come back to the question in the near future, in light of Lord Justice Leveson’s recommendations.

I do not have an absolute view, but given the mood of the nation and of Parliament, across parties, last year when the Prime Minister rightly set up the Leveson inquiry, which was agreed by the coalition parties, it is imperative that we do not think that we will not need a space in the legislative timetable, almost certainly in the next Session, to address Lord Justice Leveson’s recommendations. My worry, to be absolutely honest, is about consensus across the House. I remember the debate we had downstairs, when everyone said something must be done, and the Prime Minister came to the House and said, “We will have the inquiry.” The inquiry is doing a good job, but I worry that the momentum may start to dissipate because as we get near the general election, there will be the usual unwillingness to be strong towards the press. People may be a bit more worried, and a little keener to get the press barons and baronesses on board.

My core question to the Minister is this: is it his current view that we need not address the question here and that we can leave it till later, or are he and his colleagues willing to address it now? I hope the answer is the latter, that we could and should address the question here. If that is the case, new clause 6 would set out in the Bill that a publisher may correct a libel in similar form, allowing them to exculpate themselves and giving them a defence, “Okay, we made a mistake, but we have corrected it.” That is the central debate.

The proposition is that we effectively get rid of juries for libel cases. In future, there would be fewer libel cases and people would not bring their libel and defamation cases to courts in this country from other parts of the world. Juries are expensive and complicated, but there is one area where juries probably do a job that is more in tune with the public view than judges do, not through any fault of the judiciary, but because the jury is a cross-representative group of the British public. That job is to judge what is in the public interest.

Public interest varies according to time. Committee members might remember the Tisdall case and other cases about whether to convict people of spying. Sometimes juries decide that it is not in the public interest to have a conviction in such a criminal case, because they think that is inappropriate and that the state is being over-mighty. My one reservation—it is not a party position that I am arguing on behalf of my right hon. Friend the Member for Carshalton and Wallington and me—leads me to ask whether, in the public interest debate, it is wise to exclude in all or most cases testing a case through a jury of some sort.

I believe that juries are capable of hearing a debate about whether it was or was not in the public interest for something to be published, and capable of forming a view about whether the published correction was sufficient. I ask my right hon. Friend the Minister whether there has been deliberation in Government about whether more than just judges could be used to determine those matters. The measure might have more credibility and might be more accepted by people if such decisions were made by a jury. It need not be a 12-person jury—it could be a smaller jury—and this is not an argument for juries across defamation litigation.

My central questions are: first, are Ministers keen to get this matter dealt with in the Bill or will they leave it until after Leveson? I hope that it is the former. Secondly, is there a case for thinking about whether the public interest might usefully be, in some way or other, a jury matter and not just a judge matter?

Jonathan Djanogly (Conservative, Huntingdon)

In response to the hon. Member for Newcastle-under-Lyme, the right hon. Member for Rotherham and the hon. Member for Stoke-on-Trent South, the analogy of downhill skiing and speeding through the Bill and the implication that we have not given it enough time are not accepted by the Government. We agreed a programme motion and we believe that we have gone overboard to work with all parties to set up the time needed for the Bill and to take on board various national events and give leeway to accommodate hon. Members. I am not moving from that point of view.

Andrew Slaughter (Labour, Hammersmith)

The Minister is seeing an argument that is not there. It was clear on Second Reading that there was broad agreement that the Bill moves the law in the right direction. Our aim is to avoid creating new problems in legislation by defining what the Government mean—in clause 1 and subsequent clauses—and being more accurate about the criteria, for example, the common law qualified privilege. It would help if the Minister did not try to pick a fight on the main issues, but answered some questions from Opposition Committee members on some of the detail.

Jonathan Djanogly (Conservative, Huntingdon)

I shall move on.

Paul Farrelly (Labour, Newcastle-under-Lyme)

I fear that the Minister misunderstood my remarks regarding speed. They were made tongue in cheek, because we have proceeded diligently through the Bill today.

Jonathan Djanogly (Conservative, Huntingdon)

I thank the hon. Gentleman for his clarification.

The amendments would make a number of changes to clause 4, dealing with the responsible publication defence on matters of public interest. Amendments 26 and 27 would remove the requirement under subsection (1)(b) for the defendant to show that he or she acted responsibly in publishing a statement on a matter of public interest, replacing it with a requirement that the claimant show that the defendant has acted irresponsibly. That would reverse the burden of proof to put the onus on the claimant.

As I think was recognised by the right hon. Member for Rotherham and the hon. Member for Bishop Auckland, the Reynolds defence on which clause 4 is based has been developed by the courts in recent years to provide an additional protection for defendants in circumstances where defamatory material that is not necessarily true on a matter of public interest may have been published, but where the defendant can show that he or she has acted responsibly in publishing it. That defence has developed in recognition of the importance of ensuring that a proper degree of protection is given to publications that are in the public interest.

The Government consider that to go further and to put the onus on the claimant to prove that the publisher had acted irresponsibly would unfairly tilt the balance against the claimant. The onus is already on the claimant to show that the statement complained of is defamatory; and in doing that, under the terms of clause 1, he will have to show that he has suffered, or is likely to suffer, serious harm as a result of its publication. It is right that the onus should then rest with the defendant to show that he has a defence to the action. In addition, it may be difficult for the claimant to adduce evidence to demonstrate irresponsibility: for example, he is unlikely to be in a position to know what information the defendant had before publishing the statement, what he knew about the reliability of that information, and what steps he took to verify it.

Amendments 28 and 29 would remove

“the nature of the publication and its context”

from the non-exhaustive list of factors in subsection (2) to which the court may have regard in deciding whether a defendant has acted responsibly in publishing a statement on a matter of public interest, and would instead insert a provision in subsection (1)(b) relating to the nature of the publisher, the publication and its context. To make out the defence, a defendant would have to show that the statement complained of was, or formed part of, a statement on a matter of public interest, and that

“the defendant, having regard to the nature of the publisher, the publication and its context, acted responsibly in publishing the statement complained of.”

The intention appears to be to make that consideration an overarching factor for the court to consider, rather than merely one of the range of factors in subsection (2). The nature and context of the publication already features in the non-exhaustive list of factors to which the court may have regard in deciding whether the defendant has acted responsibly in publishing the statement complained of. As the explanatory notes to the Bill make clear, the provision reflects the flexible way in which the clause is to be applied and the need for the court to bear in mind the circumstances in which the publisher was operating and the resources available to it: for example, the context of a national newspaper is likely to be different from the context of a non-governmental organisation or a scientific journal.

The Government do not consider that elevating the nature of the publisher, publication and context to the status of overarching factor is appropriate. It is of the utmost importance that the court has as much flexibility as possible when considering whether the defendant has acted responsibly. The considerations that are most relevant will differ depending on the circumstances of the individual case and the courts should be able to apply the factors in the list and any others they consider relevant factors flexibly. Elevating one factor above all the others would encroach on that flexibility.

Amendment 30 would insert an additional matter into the list of factors in subsection (2) to which the court may have regard in deciding whether a publisher has acted responsibly. As the list is not exhaustive, the amendment would draw to the court’s attention that they may wish to take into account the reasonable judgment of the author or editor of the statement complained of, having regard to what was known at the time of the decision to publish the statement.

Concerns have been expressed in the light of the recent Supreme Court judgment in the case of Flood v. Times Newspapers—concerns raised again today by various right hon. and hon. Members—that clause 4 may not adequately reflect the terms of that judgment in relation to the weight to be given to editorial judgment in deciding whether the publisher acted responsibly. That decision came after the draft Bill was published, but I can confirm to the hon. Member for Stoke-on-Trent South that we have considered its impact in terms of clause 4. I do not believe that a specific amendment of this nature is necessary or appropriate. The question whether the defendant has exercised his judgment responsibly goes to the essence of the new defence, and it would be very difficult and potentially confusing to include a specific reference to editorial judgment in the clause, as the amendment would do. It would effectively be saying that in deciding whether the defendant had exercised judgment responsibly in publishing the statement, the court should have regard to the judgment of the defendant. There is also the need to ensure that the defence is clearly applicable in a wide range of circumstances beyond mainstream media cases, and focusing specifically on editorial judgment in this way might cast doubt on that.

The hon. Member for Bishop Auckland asked whether the clause is intended to reflect or change the current law. I can tell her that it is intended to reflect the current law, but to make it more readily applicable in circumstances beyond mainstream journalism. The list of factors does not repeat the Reynolds factors word for word, but encapsulates them in a flexible and non-exhaustive way.

The hon. Member for Newcastle-under-Lyme and, I think, my right hon. Friend the Member for Bermondsey and Old Southwark queried Flood and asked for my views on it, specifically in relation to the timing of addressing the issue. I can tell them that the Bill is intended to and does reflect current case law. More important, it is clear about the core principles in such cases, but flexible enough to meet changing demands. In the Flood case, the Supreme Court did the very thing that the clause does: it asserts the principles of the public interest and acting responsibly, leaving the court to consider a non-exhaustive list of relevant factors, which was referred to by Lords Nicholls and Cooke. The court confirmed, as the clause does, that the weight to be given to such factors varies from case to case.

Our judges are sensible people. It is very unlikely that the courts will cease to consider and give weight to the existing case law in interpreting the new statutory defence where they consider it appropriate to do so, and as such we would expect that they will continue to want to have regard to the Flood judgment. In addition, the explanatory notes accompanying the Bill explain that the court does not have to determine whether it would have acted in the same way as the defendant, but merely whether the defendant acted responsibly, and that this means that an allowance will be made for what has been referred to in the case law as “editorial discretion”. That should, I believe, provide sufficient clarity and reassurance that editorial judgment will continue to be taken into consideration by the courts without the need for a specific provision.

Amendment 8 would make a drafting amendment to the provisions in clause 4 dealing with reportage. In instances where this doctrine applies, the defendant does not need to have verified before publication the information reported, as long as the way that the report is presented gives a balanced picture: it must be, or form part of, an accurate and impartial account. The amendment would replace the words “this section” with “subsection (3)”. We consider that the provision in the Bill is correctly drafted and that it will achieve the intended effect that subsection (4) will apply only in the circumstances referred to in subsection (3).

New clause 6, which was tabled by the hon. Member for Stoke-on-Trent South, but also discussed by my right hon. Friend the Member for Carshalton and Wallington, would introduce a form of qualified privilege for any statement on a matter of public interest. The defence would fail only if the claimant could show that the statement had been made with malice, or that he had requested the defendant to publish in a suitable manner a reasonable letter or statement by way of explanation or correction, and the defendant had failed to do so. It is not clear whether that new defence would operate alongside the one in clause 4 or replace it. I do not consider that there is any need for an additional defence of this type, and firmly believe that the clause 4 provision is preferable.

The Reynolds defence itself originated as a form of privilege and subsequently evolved into a more free-standing defence. Clause 4 reflects that by providing for a clear, flexible, free-standing defence that provides effective protection for defendants publishing responsibly on matters of public interest. The provisions relating to publication of a reasonable letter or statement by way of explanation or contradiction would cut across the existing offer of amends procedure under the Defamation Act 1996. Under that procedure a person who has published an allegedly defamatory statement can already make an offer of amends in the form of a correction, an apology and, where appropriate, a payment of damages. From our discussions with stakeholders and the consultation process, it is clear that there is a broad consensus that the offer of amends procedure provides a valuable means of settling cases promptly where the defendant accepts that he is wrong, and that the procedure is working effectively and does not need alteration. Introducing further measures relating to the publication of statements of explanation or contradiction would undermine the effective working of the current law and procedures to no discernible benefit.

The terms of the new clause could also create confusion: for example, it may be very difficult for a publisher to assess exactly how it should publish an explanation or contradiction to satisfy the requirement for it to be “in a suitable manner”. The Government therefore consider that clause 4 strikes the right balance by providing effective protection for defendants who responsibly publish material on issues of public interest, while ensuring the claimants have a remedy where the defendant has not acted responsibly.

For the reasons I have outlined, I hope that the hon. Gentleman will agree to withdraw the amendment.

Paul Farrelly (Labour, Newcastle-under-Lyme)

I was an investigative journalist before coming to the House. I have been pursuing libel reform for many years, and let me say, without sounding too pompous, that in my experience it is rare that investigative journalists, newspaper lawyers, newspapers, and lawyers for claimants and for defendants, who often face each other across the court, are unanimous on anything. From the discussions that I and others have had, the unanimous view is that the effect of clause 4 is not to incorporate Flood. I urge the Minister to take advice on that.

Jonathan Djanogly (Conservative, Huntingdon)

We will of course consult further on that; I am prepared to hear further points. The implication of what the hon. Gentleman says is not, of course, that all those different stakeholders who say that Flood has not been represented in the Bill would therefore say, “This is what we should do.” They would all have different answers to that.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

The Minister may be about to address this point, but as part of that consultation, I assume he would be happy to meet colleagues who have concerns about clause 4 and the public interest defence.

Jonathan Djanogly (Conservative, Huntingdon)

Of course. I have had representations from and meetings with a number of right hon. and hon. Members.

Many points were raised on stand part; I will do my best to work through them. If I do not get to them all, presumably hon. Members will remind me and I will drop them a line later.

The hon. Member for Newcastle-under-Lyme asked why the reportage provision applies only in relation to a dispute to which the claimant was a party, and not to any kind of dispute. We consider it right to ensure that the claimant was a party to the dispute because, where he is a party, one can expect him to have had an opportunity as part of the dispute to put his side of the story or say why what the other person has said is wrong. A fair and accurate report of that dispute would generally include the two sides and, where the claimant is a party to the dispute, there is a safety mechanism built in that does not exist where the claimant is not a party.

He also asked why the reportage provision focuses on a dispute. That provision is intended to reflect core elements of the current law as articulated by the courts, which focus on whether the publication was of an accurate and impartial dispute between the claimant and another party. He also raised the risk that the list of factors in the defence will be used as a check-list by the courts. I think he described that as a series of hurdles. We recognise the need to provide as much flexibility as possible. The Bill, therefore, sets out specific circumstances to which the court may have regard in considering whether the defendant acted responsibly in publishing a statement in an illustrative and non-exhaustive way, if the courts consider it appropriate within the overall circumstances of the case.

The hon. Member for Bishop Auckland and my right hon. Friend the Member for Bermondsey and Old Southwark asked for the meaning of “in the public interest”, and that the clause should define that to ensure that issues are covered. We believe that, in view of the very wide range of matters of potential public interest and the sensitivity to factual circumstances, attempting to define it in statute would be fraught with problems. For example, there would be the risk of missing matters which are in the public interest, resulting in too narrow a defence. The risk of this would prove a magnet for satellite litigation over the terms of the matters specified in the definition. We believe that in the context of defamation this should be a matter for the courts to decide in all circumstances, rather than apply a definition used in other contexts such as the PCC code or CPS guidance.

The hon. Member for Stoke-on-Trent South and the right hon. Member for Rotherham asked how clause 4(4) would work in practice. Subsection (1) sets out the defence that applies generally, including in relation to reportage. The statement complained of must be on a matter of public interest and the defendant must have acted responsibly in publishing it. In working out whether the defendant did act responsibly, the court may consider the factors referred to in subsection (2), along with anything else that it considers relevant. But where the particular statement was reportage—an accurate and impartial account of a dispute to which the claimant was a party—one of those factors is switched off via subsection (4). The factor is any omission by the defendant to take steps to verify the truth of the imputation conveyed by the statement. In relation to reportage, for the defence to apply, the statement must still be on a matter of public interest, but so long as it was part of an accurate and impartial account of the dispute in question, the defendant need not verify its truth. That would of course require the defendant to consider the merits of the dispute.

The hon. Member for Stoke-on-Trent South asked why we do not just stick to the common law, which provides greater flexibility for the development of what is a recent defence.

Rob Flello (Labour, Stoke-on-Trent South)

Perhaps I did not come across as succinctly as I intended. My point was why get rid of the common law defence of Reynolds unless the intention is to reflect the entire Reynolds plus Flood defence in clause 4, or indeed improve on Reynolds.

Jonathan Djanogly (Conservative, Huntingdon)

I thank the hon. Gentleman for that clarification. Of course, I have already discussed that particular issue.

The hon. Gentleman also referred to the concern of Which? about drafting and its belief that “neutral” would be a preferable word to “impartial” in clause 4(3) because it better describes certain situations covered by that subsection, namely the reporting of disputes between parties without supporting either party in that dispute. We consider that the drafting of the provision accurately reflects the current law. He also said that clause 4 should be amended to require the court to have regard to all the circumstances of the case. We do not consider that to be necessary, because the clause as drafted already makes clear that the list of factors, to which the court may have regard in deciding whether a publication has been made responsibly, is flexible and non-exclusive.

The hon. Gentleman also asked whether reference should be made to whether a report was of current events, and the urgency involved. The clause already refers to the timing of the statement’s publication as one of the factors in relation to the responsible publication, and the court will be able to take that issue into consideration where it is appropriate. The specific reference to urgency was removed on the recommendation of the Joint Committee which was concerned that it would narrow the defence by focusing unduly on whether the publication could have been delayed to enable further investigation, rather than considering whether it was published at an appropriate time.

The hon. Gentleman also asked whether the clause should refer to the resources of the publisher. The Bill already contains a provision to enable the court to consider the nature and context of publication, and I can confirm that resources would fall within that consideration, as the explanatory notes confirm. He also suggested that the Government should adopt an approach that protects any publication on a matter of public interest, unless the author was acting maliciously or recklessly. I believe that that suggestion came from the Libel Reform Campaign. As the Joint Committee recognised, such an approach would dramatically widen the scope of the defence, and we do not consider that that would offer sufficient protection to people whose reputations had been defamed.

My right hon. Friend the Member for Bermondsey and Old Southwark asked about the need for recompense, such as apologies and corrections. Clause 12 will extend the ability of the court to order publication of a summary of its judgment. It will also offer an amends procedure under the terms of the 1996 Act, which already allows the publication of an apology or correction where defendants accept that they are in the wrong. We will, obviously, look carefully at any recommendations from the Leveson inquiry.

Rob Flello (Labour, Stoke-on-Trent South)

It is not often that we hear the words “thing of beauty” and “Lib Dem policy” in the same paragraph, let alone the same sentence. Even if these amendments—which, in my view, are good and sensible—were to be included in the Bill, I still would not think that clause 4 was good enough.

I am not entirely happy with the slightly flawed beauty of new clause 6. Sadly, we will not get a chance this afternoon to vote on it, but it would probably be a good thing for the strength of the coalition not to test new clause 6. I will seek to divide the Committee on clause stand part, but I beg to ask leave to withdraw my amendment.

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

The programme order that we agreed says that we have until 7 pm. We have agreed that we will carry on and try to deal with amendment 17. We will probably adjourn after we have done that. It might take us a few minutes past 7 o’clock, and I am in your hands in that regard.

Clause 5 - Operators of websites

Rob Flello (Labour, Stoke-on-Trent South)

I beg to move amendment 17, in clause 5, page 3, line 23, at end insert—

‘(2A) The defence provided in this section is not affected by the operator having a policy of amending content (“moderation”) after it has been published provided that any changes made as a result of the actions of the moderator—

(a) do not significantly increase the defamatory nature of the words complained of;

(b) do not remove a relevant defence to an action for defamation in relation to the words complained of; and

(c) do not significantly increase the extent of the publication of the words complained of.’.

Mr Havard, can I confirm that we will not take clause stand part until we have dealt with both amendment 17 and the subsequent group of amendments?

Dai Havard (Labour, Merthyr Tydfil and Rhymney)

That is correct.

Rob Flello (Labour, Stoke-on-Trent South)

Amendment 17 is the first of a number of amendments and new clauses tabled to try to make sense of what is, sadly, the worst part of the Bill. I said on Second Reading that I thought clause 5 was ill-thought out, shoddy and incomplete, and does the Minister and his officials no credit. It is extremely disappointing that such an important part of the Bill should be in the state it is in. I had hoped that the Minister would have taken time between Second Reading and now to come forward with something more than the letter sent to you, Mr Havard, and your co-Chair, Mr Chope.

The last time a Defamation Act was passed, the internet was in its infancy, trolling was rare and relatively unknown, and Twitter, Wikipedia, Google and Facebook were all years away from being launched. For all the benefits it has brought, the internet has therefore provided a heap of new challenges to our legal system, perhaps none more than defamation legislation, which has to keep up with an ever-moving target and increasingly varied and complicated means by which people are able to post or spread statements that may, or may not, be defamatory. This is where my amendment comes in. We will, of course, be able to debate those issues more widely on clause stand part, but I am keen to keep in this specific amendment. It is useful to refer to the Law Commission’s report Defamation and the Internet, published in 2002, which is why this section of the Bill is so important and why I have tabled my amendment.

The Commission report states:

“There is a strong case for reviewing the way that defamation law impacts on internet service providers. While actions against primary publishers are usually decided on their merits, the current law places secondary publishers under some pressure to remove material without considering whether it is in the public interest, or whether it is true. These pressures appear to bear particularly harshly on ISPs”—

that is, internet service providers—

“whom claimants often see as ‘tactical targets’. There is a possible conflict between the pressure to remove material, even if true, and the emphasis placed upon freedom of expression under the European Convention of Human Rights. Although it is a legitimate goal of the law to protect the reputation of others, it is important to ask whether this goal can be achieved through other means”.

Amendment 17 seeks to introduce measures to better protect those internet intermediaries—internet service providers, search engines, discussion boards—from action. I hope that the reasoning for introducing this amendment is startlingly clear. I will however explain why it is necessary that these measures are in the Bill. This amendment is backed by the work of the Joint Committee and it is to ensure that someone who subsequently moderates a post does not open themselves up as an intermediary to any action, provided they have not made things worse or done anything that takes away somebody else’s defence. Post moderation is something that should be encouraged. Many consider it best practice and so it would be a great shame if this Bill ended up creating a chilling effect of its own while failing to protect those who moderate posts.

As with many of my amendments, this does not run counter to anything which the Government are trying to achieve with this Bill. It would simply strengthen the Bill to ensure that, as I continue to warn, an enterprising lawyer does not consider that this is a loophole, leading to further debate and legislation being required in the years ahead in order to close it. I am sure members will be delighted to hear that I will not detain the Committee this evening more than necessary, but I would stress that this amendment 17 is one of a series that tries wherever possible to bring some sense back to clause 5, which is wholly inadequate. Amendment 17 would ensure that moderators do not find themselves stumbling into problems simply because, for example, they take out offensive language, tidy up a posting, or moderate a posting in a way that fits in with the particular style of the account on which the posting has been made. It is something that needs to be in here and I hope—perhaps in vain—that when the Minister rises, he will at least say some warm words about it, although I fear that we are not going to agree about clause 5.

Helen Goodman (Labour, Bishop Auckland)

I strongly agree with what my hon. Friend has just said. The editors of local newspapers, which frequently have websites where people can comment alongside the articles, tell me that if they moderate those comments, they open themselves up to such claims, with the law in its current state. It is important, because—I do not know how often you look at such websites or whether you have ever posted anything, Mr Havard—such comments are frequently followed by a lot of abuse, and that abuse needs to be stripped out. The abuse content is quite separate from the defamatory claims, so if we are to have a reasonable tone on the web in general, we need to enable newspapers to carry on moderating and not to fear that there is any risk in doing so. It is a particular issue for women, whose web articles far more frequently attract abuse, which has nothing to do with anything defamatory at all. If we are to get a tone on the web that will enable it to be a genuine network that people can use to exchange ideas, we need to offer some protection to participants. My hon. Friend’s proposal would help to achieve that.

Jonathan Djanogly (Conservative, Huntingdon)

We are now on clause 5, which deals with the operators of websites, and hon. Members will appreciate that I have now provided them with a note on the proposed procedure, which will be the subject of regulations relating to the clause.

Amendment 17 would insert a general provision into clause 5 relating to situations when a website operator moderates material posted by third-party users on a site that it hosts, which is one where it monitors and amends the content of the material. We share the view expressed by the Joint Committee on the draft Bill that responsible moderation of content should be encouraged. However, we do not consider that the amendment is necessary or appropriate to achieve that aim. Under the provisions in the Bill, a website operator will be able to rely on the defence under clause 5—provided it follows the prescribed process—regardless of whether or not it moderates the site in question, and we do not consider that a specific provision is needed.

Rob Flello (Labour, Stoke-on-Trent South)

It strikes me that having to rely on the other provisions in the clause increases the level of effort, whereas a simple clause that just sets out the situation for moderators would mean that they would not have to rely on all the other defences.

Jonathan Djanogly (Conservative, Huntingdon)

I am explaining why that would not necessarily simplify the case at all.

If the operator moderates content on the website so much as to change the meaning of what the author had posted in a way that made it defamatory or increased the seriousness of the defamation, that would be a factor that the court might want to consider as part of the question in subsection (2) of whether it was the operator rather than the author who could properly be said to have posted the material. Any dispute as to whether the operator had actually posted the material itself would be a matter for the court to determine in all the circumstances of the case. The Government do not consider it helpful to prescribe particular circumstances under which the operator should be regarded as having amended the material to a sufficient extent to be regarded as having posted the material. In any event, it is our view that the conditions contained in the amendment would provide an inappropriate level of protection for operators, given the need for the defamatory nature of the words and the extent of their publication to be significantly increased.

On that basis, I hope that the hon. Gentleman will agree to withdraw the amendment.

Rob Flello (Labour, Stoke-on-Trent South)

I have continued to be disappointed throughout the day, and it will be a sad day in the Flello household. Despite our best efforts and the lateness of the hour, we really feel that reassurances and information are not coming through from the Minister. With the greatest respect, the Minister should perhaps have a word with his officials after this sitting in order to get some more detail into the briefings. That would be most welcome.

I shall not push the amendment, and I will ask the Committee to agree to withdraw it, not because the amendment is not good—it is—but because even if it were accepted, it would be a beauty spot on what is otherwise an ugly clause. I beg to ask leave to withdraw the amendment.