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Defamation Law

I congratulate the hon. Member for Maldon (Mr Whittingdale) on his re-election as Chair of the Culture, Media and Sport Committee, from a shortlist of one. I thank my Labour colleagues for re-electing me, in a rather wider exercise of democracy, to the Committee. I also thank Mr Speaker for agreeing to the debate. He was forthright in his defence of free speech during the Trafigura affair last autumn, in which I played a walk-on part. If I may indulge in a plug, Mr Benton, only last Sunday I gave a talk with David Leigh of The Guardian on Trafigura and the wider issues of libel and media law reform at the excellent centre of investigative journalism at City university London. The debate is certainly timely, allowing us to discuss for the first time the Committee's report on press standards, privacy and libel, which the general election interrupted. It also keeps up momentum for reform in the House of Commons, following the excellent debate last Friday on Lord Lester's private Member's Bill in the other place—the House of Lords, to adopt modern terminology in libel. I shall refer to that at greater length in a moment. We published our report on 24 February. It was a marathon effort, as I am sure the Chair of the Committee agrees, having lasted from autumn 2008. That hints at the complexities and the sheer range of issues involved in reforming that area of law. I was certainly not the only member of the Committee who was glad to clear the decks for the general election, which was looming over us. There was much unfinished business in the field as the general election became all-consuming, such as taking forward in law Sir Rupert Jackson's wide-ranging report on civil litigation costs, to which the Minister referred, which was published in January. There was also the review by the former Justice Secretary, my right hon. Friend the Member for Blackburn (Mr Straw), on libel and the internet. He also produced proposals for reform of conditional fee agreements, about which I shall say more later. We also followed up on the conclusions of the report from the Ministry of Justice's libel working group, which was published at the end of March, just as we were about to go to the polls. The previous Government's response to that included a commitment to a draft libel reform Act, and the House should give a strong vote of thanks to my right hon. Friend the Member for Blackburn for all his work and effort in that area. I was glad that that work was acknowledged by Lord McNally, the new Minister, in last Friday's debate. I am glad that the coalition agreement included the following single-line commitment:"““We will review our libel law to protect freedom of speech.””" However, there is always a danger after an election, with so many competing interests, that action might be stillborn, despite the fine words. The danger of a lack of progress was highlighted before the election by the fate of the statutory instrument that was intended to address the matter of costs in conditional fee agreements. It was mauled in Committee by Members from all parties. It is not necessary to dwell on the ins and outs of that, as it is better in the cause of reform to make as many friends and as few enemies as possible. The proposal was to limit success fees in conditional fee agreements in defamation cases. That was certainly a blunt instrument. In our report, we said that recoverability from the defendant should be limited, meaning that lawyers and clients could haggle. The instrument that came forward, which would have limited that across the board, was always open to the attack that it would give renewed carte blanche to unscrupulous tabloids to print yet again what they liked and that it would limit access for ordinary people without the means to try to salvage their reputations. It was made clear before the election that that instrument was intended to be an interim measure that could be achieved quickly without primary legislation, and in anticipation of wider reform of libel law and costs following the Jackson review. While the newspapers drowned their sorrows after the statutory instrument went down, I suspect that the biggest bar bills were run up by the likes of Carter-Ruck and Partners and the so-called Lawyers for Media Standards—I suspect that it was a good day for those other well known firms: Krug, Bollinger and Dom Pérignon. At the weekend, those of us at the City university London summer school wanted to raise a glass to Lord Lester for keeping up the pressure for reform through his excellent private Member's Bill, and to all the organisations involved in crafting and supporting the Bill, including Index on Censorship, English PEN, Sense About Science and The Guardian, the BBC and The Times from the media community. We also wanted to raise a glass to Lord McNally, who confirmed on Friday that the Government would pick up the ball left by my right hon. Friend the Member for Blackburn and produce a draft Bill for consultation. Furthermore, he set out a timetable: a draft bill will be published early next year for pre-legislative scrutiny; and hopefully a substantive bill will be included in the Queen's Speech setting out the 2011-12 legislative programme. That is the yardstick for reform that has been clearly set out, and by which progress will be measured. It is little wonder that Lord Lester's reaction on Friday was so measured:"““when I hear my noble friend...speak as I did now, I wonder whether I am alive at all or whether I am in heaven.””—[Official Report, House of Lords, 9 July 2010; Vol. 720, c. 483.]" I first met Lord McNally shortly after my election in 2001 when we sat together on the Joint Committee on the Draft Communications Bill, the so-called Puttnam Committee. I was aware of his good work on the Labour Benches in Harold Wilson's day, before wrangles with the left in our party led him to his present berth. He is a sound man and we look forward to working with him on reform. We look forward to the Minister today confirming the Government's intentions and perhaps giving more detail on what is proposed. I will not discuss all the complexities and controversies involved in defamation reform today, but I will single out a few areas. The devil will, of course, be in the detail. Despite the forces of reaction gathering to oppose reform—it reminds me of a scene from ““The Lord of the Rings”” in which Sauron summons his ““Carter-U'Ruck-hai”” and the Orcs, those ““Lawyers for Mordor Standards””—a great deal of consensus has built up on the way forward in several areas, which is encouraging. For example, with regard to libel and the internet, the previous Government, the Select Committee, the Ministry's libel working group and Lord Lester's Bill have all agreed that the measure should relate to single publication, limited to a year after appearance, aligning the online law with the law dealing with publication in print and giving more certainty to people who maintain online archives and databases. Libel tourism is another area on which there is increasing consensus, and that is increasingly connected to the law on the internet. The consensus from all those bodies is that we should tighten the legal procedure rules and throw out the abuse of our courts and laws. The role of parliamentary privilege in protecting free speech is also an area of consensus. That was highlighted in the Trafigura affair, and not for the first time, but nothing was done on each occasion. Lord Lester's Bill addresses that simply and agrees with the Select Committee that we need a modern statute. We also look forward to the conclusions of the review of practices on super-injunctions being carried out by the courts. Where there is disagreement, it seems to centre, refreshingly, on not rushing to judgment and instead consulting, as our report recommended, so that changes in the law do not have harmful, unintended or unforeseen consequences. I will mention a few major examples. We should consider statutory backing for the public interest defence to protect decent investigative journalism while maintaining the protection needed for individuals whose reputations are wrongly and irresponsibly traduced. The Committee was inclined first to put into statute a widened definition for court decisions on responsible journalism—the so-called Reynolds defence. I took the precaution of consulting former newspaper colleagues who are at the coal face of investigative journalism, and they advised taking care and consulting. That was our recommendation. That caution on getting the change right was reflected in the debate on clause 1 of Lord Lester's Bill last Friday. However, there is an urgent need to protect legitimate scientific and medical inquiry and honest opinion and comment. It was good to see the Court of Appeal in the Simon Singh case recently decide that libel courts are not the forum in which to settle issues of scientific or medical proof or controversy. The other major area on which we urged wide consultation was that of corporations and defamation. There was a concern that deep-pocketed litigants could afford to mount libel cases—it is of little consequence to major corporations that the costs could run into millions. In part, the actions were designed to chill investigative journalism and take good journalists out of the game—it takes so much time and effort to counter libel actions. In our report, we highlighted what I describe as the most flagrant abuse of libel laws in recent years in this country: the case that Tesco brought against The Guardian. The substance of The Guardian's allegation about tax avoidance was true, but the newspaper made mistakes along the way and, even though it was later proved that Tesco was avoiding the tax in question, The Guardian felt compelled to settle out of court simply because the costs were mounting inexorably. In his Bill, Lord Lester does not propose any reversal of the burden of proof for corporations, but requires them simply to demonstrate likely financial loss, which they do not have to do now. I, and I think many people who were in the debate in the House of Lords, do not believe that that goes far enough. Determining what constitutes likely financial loss might, in itself, be a recipe for more costs. For example, should that include shareholders? In the Select Committee report, we made recommendations, and urged the Government to consult widely and consider the experience of other countries, such as Australia, where the law in this respect has been reformed in recent years. The big elephant in the room, which Lord Lester's Bill does not address, is cost. Cost is the overriding issue. Many of the problems with our libel laws would not be so pressing if it were not for the cost. We are aware that the Government are considering taking forward the Jackson review, but that might take years. We need some indication from the Government as to when the cost issues will be addressed. They are deliberately not addressed in Lord Lester's Bill, but they are the major issue for responsible investigative journalism in this country. My right hon. Friend the Member for Blackburn tried unsuccessfully to achieve progress in the previous parliamentary session. It is imperative that we get some progress now.