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17 Dec 2008 : Column 87WH—continued

10.40 am

Mr. Edward Garnier (Harborough) (Con): Before I declare a number of interests, let me deal with the Rome II point that the hon. Member for Oxford, West and Abingdon (Dr. Harris) made. That deals with the choice of law, rather than the venue or forum. The Brussels regulation that is now being called the judgment regulation is what we need to concentrate on, as it provides a claimant with the right to sue the defendant in the defendant’s jurisdiction. Under the regulation, if the BBC broadcasts something defamatory of someone in Jeddah, to pick a place at random, that citizen from Saudi Arabia is entitled to bring an action within this jurisdiction even if he has no other connection with it. The regulation modifies, to some extent, the forum non conveniens common-law argument that the right hon. Member for Rotherham (Mr. MacShane) mentioned.

Dr. Harris: I accept what the hon. and learned Gentleman says, but my understanding of the Rome II proposal is that the legislation would be specific to where the damage was done. That might be important, because if the damage was done in a country other than the UK, it would mean that even if the UK courts were entitled to hear the case, they would have to do so in reference to the law of that land.

Mr. Garnier: That is right, but the problem that we face with Rome II—I do not want to get diverted down this line, but it is partly my fault for mentioning this subject—is that the media cannot agree on its application. If they could get their house in order internationally, perhaps we could make some progress.

As has been mentioned, Mr. Cook, I am a member of the defamation Bar, and I have earned my living and paid my mortgage thanks to claimants and media organisations, some of which are represented by right hon. and hon. Members in the Chamber. I have made no value judgments between the rights and attractiveness of my clients, be they defendants or claimants. I have simply given such advice as I was capable of giving. I have won and lost cases, and I have had satisfied and deeply dissatisfied clients in my 35 years at the Bar. I am also a recorder, so I presume that I shall be protected by “Erskine May” if people start hurling abuse at me.

This is too big a subject to deal with in eight minutes, but I want to draw out some threads of the right hon. Member for Rotherham’s speech that were replicated by my hon. Friend the Member for Surrey Heath (Michael Gove) and the absent hon. Member for North Norfolk (Norman Lamb). The right hon. Gentleman might have
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assisted us by declaring that beyond being a member of the National Union of Journalists and a former officer of it, he was also a paid contributor to a number of newspapers. That fact is set out in the Register of Members’ Interests, but it is appropriate that hon. Members present should not miss out on it.

The right hon. Gentleman drew out certain themes perfectly fairly, but some of his arguments were spoiled by a slightly waspish personal attack on individual solicitors firms and, by implication, on Mr. Justice Eady, whom, I am happy to say, the hon. Member for Oxford, West and Abingdon defended. He is a friend of mine—we used to share a room in chambers—and an extremely bright, careful and sensitive man. It is a pity, when he does no more than apply the law, that he is subjected to personal attacks in this Chamber and elsewhere. Judges cannot answer back, and I hope that when we discuss issues to do with the application and implementation of the law, we can leave aside personalities and deal with the relevant principles.

The principles that the right hon. Gentleman discussed, about libel tourism and the extension into statute of the Reynolds defence, are perfectly reasonable arguments to have. These decisions ought to be made by Parliament, because once the courts reach a certain stage, they cannot develop the law further, and it is up to us, in Parliament, to do that. If the United States Congress or the other US state legislatures that he mentioned wish to limit the ambit of their jurisdiction, or to extend it, that is up to them, but, as my hon. Friend the Member for Croydon, South (Richard Ottaway) said, a US law does not impinge on the jurisdiction of the English courts. If a judge issues an order that a book should be pulped, although I have never heard of such an order, it would apply only to the books that happened to be within that court’s jurisdiction. I do not think that we are going to see British judges ordering the pulping of books in California or New York. I would certainly be surprised if that happened.

It is fair to point out that there has been a rash of foreigners coming to our country and making use of our libel laws regarding quite small publications—for example, if three, four, five or six issues of a foreign newspaper were published here. In order to do that, however, they had to demonstrate some connection with this jurisdiction, otherwise the common law would not have permitted them to do so. The decisions that permitted them to sue in this country in relation to small numbers of publications were always appealable, but in many cases they were not appealed. Indeed, Mr. Justice Eady’s decision in the Ehrenfeld case that has been mentioned was a default judgment, which means that the defendant, Ehrenfeld, did not appear, through either lawyer or letter, to raise any objection to the jurisdictional point or any other. The damages that were awarded in that case were within the summary limits, and there was no fine.

I do not intend to repeat the libels in any of the cases that have been mentioned. Neither do I think it appropriate to defame firms of lawyers—I confess that I have been instructed by both of the firms who have been defamed this morning—who are doing no more than their trade, which is to advise clients on the law of England and to enable them to gain access to the courts.

Mr. MacShane: Will the hon. and learned Gentleman give way?

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Mr. Garnier: Will the right hon. Gentleman excuse me, because I have got to—

Mr. MacShane: He has just accused me of defaming somebody. That is a serious accusation.

Frank Cook (in the Chair): Order.

Mr. MacShane: On a point of order, Mr. Cook. Is it in order for an hon. Member to accuse another right hon. Member of defamation?

Frank Cook (in the Chair): On that point of order, I heard no explicit accusation of defamation.

Mr. Garnier: If the right hon. Gentleman is upset about something, perhaps we could discuss it outside—then we can get on with the debate in here.

Some serious points have been made about internet libel. There have been calls from the judiciary and from practitioners for an international instrument to deal with it. If the current British Government or any future one, encouraged by Parliament, wished to enter any such international agreement, we could get on with negotiating it, but we should not complain when judges apply the law as it stands.

On the Reynolds defence, yes, it was an advance on what previously existed, but the House of Lords did not go as far as the New York jurisdiction and other US jurisdictions on public interest defences. If we want to do something about that, we should do so, rather than whingeing about it. We could do something in Parliament, perhaps by persuading the Government to introduce a law. It is strange that we have within our power, allegedly, the ability to influence Government, but that all we do instead is be rude—if I may use that expression—about lawyers who are applying the current law and about judges who are implementing it. If we are big enough and grown-up enough to praise, as we rightly do, the freedom of the press and the ability of journalists properly to investigate those who need investigation and to expose their inequities, we should also be big enough to admit that it is our fault if we do nothing.

Over the years, we have had any number of inquiries, Government and otherwise, into the state of privacy laws and the relationship between the citizen and the fourth estate, but we have done nothing about it, because we lack the bravery and the political will to influence the press through legislation. We should either do it and get on with it, or stop whingeing and allow the judges and lawyers to do the job that they are perfectly lawfully entitled to do.

I was prevented in 1995 from sitting on the Committee that scrutinised the Defamation Bill, later the Defamation Act 1996, on the basis that I would talk too much and because I knew too—well, too little, actually. That is what the deputy Chief Whip told me at the time. I have learned a lot in the past 35 years about human nature, the desire of newspapers to do their job and the harm that is inflicted on individuals when the newspapers sometimes get it wrong. There is a balance to be found, and it is up to us as parliamentarians to engineer such a balance.

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10.50 am

The Parliamentary Under-Secretary of State for Justice (Bridget Prentice): Thank you, Mr. Cook, for your wise advice at the beginning of the debate. I might as well begin by declaring an interest: I am not a lawyer, I am not a journalist and I am not dealing with any libel procedure in the courts at the moment—thank heavens. I hope that during the course of today’s debate, I do not end up in that position either.

First, I congratulate my right hon. Friend the Member for Rotherham (Mr. MacShane) on securing the debate and on jetting in from the United States to open it today. It is, as the hon. and learned Member for Harborough (Mr. Garnier) said, a very complicated, complex and important topic. Clearly, from this morning’s contributions, it is one on which very strong views are held, and I shall very much take on board some of the ideas that people have put forward. However, I must emphasise that this Government firmly support the right to freedom of expression and its protections under article 10 of the European convention on human rights. Freedom of expression and a press that is free from state intervention are a fundamental part of our democracy and our way of life in the United Kingdom, so the hon. and learned Gentleman, who talked about getting the right balance, is absolutely correct: there is always the need to ensure that we have a balanced response.

We believe that we have demonstrated our commitment to freedom of expression by including specific provisions in section 12 of the Human Rights Act 1998, requiring the courts to have particular regard to the convention’s right on freedom of expression when deciding any case brought under the Act which might affect that right. But, of course, article 10 rights are not absolute. The exercise of the right carries with it duties and responsibilities, and it may therefore be subject to restrictions provided by law—for example, the interests of public safety, the prevention of crime, or, the protection of the reputations or rights of others, which is particularly relevant to today’s debate.

In that context, it is important that people have an effective right to redress through the civil law when their reputation has been damaged as a result of the publication of defamatory material. The determination of individual cases is a matter for the courts, and, in each case that arises, the courts must strike an appropriate balance between the competing interests of the parties based on the circumstances of the case. It is important to emphasise that point, because, during today’s debate, there have been occasions when it may have been lost in the heat of the argument.

In the short time that I have, I shall respond to some of the issues that Members have raised. The hon. Member for North Norfolk (Norman Lamb) talked about investigative journalism and its importance, and, were he still here, I would tell him that, for example, my Department only yesterday announced plans to increase the media’s right to report family proceedings cases. The Government are showing that they are committed to the openness and transparency that people want.

I regularly read with great pleasure in The Times the articles by the hon. Member for Surrey Heath (Michael Gove). They are well written and full of enjoyment, at least from my perspective when reading them, and I shall take on board his questions about the Reynolds
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defence. If, after consideration, there is a suitable piece of legislation and we feel that the defence needs to be put in statute, and I am not saying that we do, I shall certainly look at the issue again.

The civil law on defamation currently provides a range of defences. The hon. Member for Oxford, West and Abingdon (Dr. Harris) was concerned about whether there were sufficient defences, but there are a range of defences: justification, whereby the material is true; fair comment—whether the statements are matters of public interest; absolute privilege, which guarantees immunity from liability in situations such as parliamentary and court proceedings; and qualified privilege.In the case of secondary publishers, the defendant would not be liable where he or she is not the author, editor or publisher of the statement complained of; had taken reasonable care in relation to its publication; and did not know, and had no reason to believe, that what he or she did caused or contributed to the publication of a defamatory statement.

In addition, section 2 of the 1996 Act provides a procedure by which a defendant can make an offer of amends to enable a valid claim to be settled cheaply and quickly without the need for court proceedings. The hon. Member for—

Bob Spink: Castle Point—

Bridget Prentice: The hon. Member for Castle Point (Bob Spink) referred to that. I beg his pardon.

My right hon. Friend the Member for Rotherham expressed concern about several aspects of current law and procedure. He described “libel tourism”, whereby someone with a tenuous connection to this country uses our courts to bring defamation proceedings. Let me explain in further detail—along the lines that the hon. and learned Member for Harborough took—how the jurisdiction of our courts works. If a court in this country is to hear a defamation case, it must have a ground of jurisdiction, and the rules on jurisdiction vary depending on whether the case is covered by European Community legislation. If it is, as the hon. and learned Gentleman said, the Brussels I regulation provides European-wide rules on jurisdiction in defamation matters. When Brussels I applies, particularly in cases whereby a defendant is domiciled in a member state, it will have precedence over national law, and English courts do not have a capacity to refuse jurisdiction or even to stay proceedings under Brussels I.

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Two particular provisions of the regulation are relevant to the debate. The first is article 2, which lays down a general rule that persons domiciled in a member state may be sued in that state. The second relevant provision is article 5(3), which provides an additional rule of jurisdiction for torts, on which the claimant can rely in place of article 2. Article 5(3) allows claimants to sue in the courts of the place where the harmful event occurred, leaving to the laws of the member states the definition of what constitutes a harmful event. Under English law, the harmful event is publication, which is defined as the communication that constitutes the defamation.

I shall briefly turn to the question of the internet. We hope to publish a consultation as soon as possible.

Mr. Garnier: If the Government are proposing to look at the issue of conditional fee agreements, as I think they are, will the Minister ensure that any changes to them permit equality of arms? There are some very rich newspaper organisations that use their financial might to prevent impoverished people from getting to court, but equally, if CFAs are being abused, there needs to be that balance—that equality of arms.

Bridget Prentice: I take very seriously what the hon. and learned Gentleman says, and I agree. We will publish as soon as possible in the new year a consultation paper on defamation and the internet, and later, as part of the proposed consultation, we will also seek views on the abolition of criminal libel in respect of defamatory material. On the issue of conditional fee agreements, some important points have been made about opportunities for people with very little means, and we are therefore very keen to ensure that the current situation continues. We are also concerned about the disproportionate cost of defamation proceedings, we are considering whether additional measures might be necessary to control those costs, and we will consult on that shortly.

My right hon. Friend the Member for Rotherham mentioned the possible use of small claims procedures. We have had a look at that idea, and we think that, because defamation can be complex, the small claims court may not be the most appropriate place for such procedures, so I am not convinced that that is the right way forward. However, we will look at whether civil law reform might be necessary, although I must say that I am not yet convinced. If it is, however, we will certainly look at the issue.

Frank Cook (in the Chair): Order. We must respond to the constraints of time and move on. [Interruption.] Will Members please conduct their conversations outside the Chamber?

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Palestinian Territories (Settlements)

11.1 am

Martin Linton (Battersea) (Lab): I am glad to have this opportunity to discuss the Israeli settlements in the occupied territories. The object of the debate is not to persuade the Minister that a freeze on settlement building is desirable, as I am sure that that is not necessary. He, and indeed the Foreign Secretary, have repeatedly expressed at the Dispatch Box the Government’s view that all building must cease. Indeed, the Prime Minister said this week not only that settlement building must cease but that existing settlements must be dismantled. He said:

the settlements—

When I last asked the Foreign Secretary about a freeze on settlement building, he had just returned from a visit to the west bank and could be in no doubt that settlement building was still going on. He had seen the bulldozers and cranes only a few days before, building new houses at Ma’ale Adumim, on the road between Jerusalem and Jericho. He mentioned that a hopeful sign had been an announcement the previous weekend by the Israeli Prime Minister that the Government would stop the expansion of settlements. On closer examination of the small print, however, it emerged that the Prime Minister was promising only to stop expanding the boundaries of settlements and that building could continue within them. Since many settlements contain large areas already set aside for further development—Ma’ale Adumim, for instance, has the E1 area, on which it is intended to build 5,000 houses—the promise was pretty empty.

Since the Annapolis agreement, in which the Government of Israel accepted an obligation to

there has actually been an acceleration of house building in settlements in the west bank. Official figures released by the Israeli Ministry of Construction and Housing identify current construction projects in nine settlements in the west bank. They range from one of 106 dwellings in Ariel, which is a big Israeli settlement deep in the northern west bank, to one of 144 units at Alfei Menashe, which is a settlement near the Palestinian town of Qalqilya. Some 642 units are currently being constructed in two different settlements in Bethlehem, and 944 units at Ma’ale Adumim, which I have just mentioned. The Foreign Secretary saw the work going on there. Nearly 2,000 units are being built at Har Homa, a hill in Arab East Jerusalem overlooking Bethlehem. That is a total of 4,554 units.

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