Defamation Bill — Commons Reasons

Part of the debate – in the House of Lords at 3:45 pm on 23rd April 2013.

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Photo of Baroness Hayter of Kentish Town Baroness Hayter of Kentish Town Shadow Spokesperson (Business, Innovation and Skills), Opposition Whip (Lords), Shadow Spokesperson (Cabinet Office) 3:45 pm, 23rd April 2013

My Lords, in moving Motion B1, I start with an extraordinarily warm welcome for government Amendment 2B. There is absolutely no doubt that, late conversion though it may have been by the Government to the arguments of our Benches and of this House, it is a most important and welcome clause. It owes much to the persuasive charms-or energy, in the words of the noble Lord, Lord Lester-of the noble Lord, Lord McNally. The McNally Bill will do us fine.

However, there are still some outstanding issues, not least the one of cost, to which the Minister has just referred. Despite his efforts, and indeed the CJC report on this which was published only last week, we have of course not received the sort of assurance that we had hoped to receive by the time this Bill was enacted, of having agreement on costs. There was clearly a lot of disagreement within the working group, and there is no clear answer in the report as to how, in the absence of CFAs following LASPO, most people will be able to either start or defend a defamation claim. Without resolution on this, the risk of substantial costs remains, which more or less makes either the taking or the defending of an action open only to the super-rich, as the Government have acknowledged.

I turn to the two issues passed by this House but overturned by the Commons, which the Government have not accepted. First, there is the right of public services to sue for defamation. Derbyshire, as the Minister has said, is really shorthand for the democratic principle that government bodies should be open to uninhibited public criticism and therefore have no right to sue for libel. I assume that arm's-length bodies, such as the former Border Agency, English Heritage and the Health and Safety Executive, are already covered under Derbyshire. However, there is a wider and growing ring of organisations contracted or commissioned to provide public services, such as independent treatment centres, opticians, dentists and GP consortia, which are either treating or diagnosing NHS patients. There are private organisations providing care homes, school dinners, public transport, advice agencies, prison management, free schools and DWP assessments. These organisations deal directly with consumers, patients, travellers or users-call them what you will-and are spending taxpayers' money to provide such services on behalf of the state.

Two issues arise if such private bodies can sue for libel. First, there is not a level playing field in tendering. Such organisations can criticise a local authority provider with which they are competing to provide a service completely free from the risk of being sued for libel by that local authority. However, the local authority can be stopped from speaking about a private body in competition with it for the provision of services by the receipt of a chilling letter. Secondly, consumers and users cannot comment on a service they are getting without the risk of that infamous chilling letter.

In a debate in the other place last week, Sir Peter Bottomley reported that Atos, which does disability checks for the DWP, had sent a legal letter which resulted in the closure of a forum for disabled people because of their comments on Atos's performance. This is deeply worrying. It is quite wrong to deny users the right to discuss their experience of what is, after all, a public service paid for by taxpayers. It is this that most concerns me. Mid Staffs hospital patients and their families were able to go to the press and finally get something done, as were the Hillsborough campaigners who were aghast at the police's actions and the coroner's findings. For big effective monopolies, this is the only way of driving up standards or penalising poor services, as consumers cannot shop around for an alternative provider.

It is much the same for other big, albeit now private, providers of public services. Users must be free to voice their concerns. This is what Motion B1, which adds Amendment 2C, is all about. It is about uninhibited users' criticism of their public services, whether their provider is a local authority or a private concern. In the other place, the Minister did not really disagree with the case that we made, only about whether an amendment was necessary. Worryingly-and this has been echoed by the Minister this afternoon-she said that rather than a statutory provision it would be much better for the courts to develop the Derbyshire principle as they consider appropriate and necessary in the light of individual cases. However, this runs completely counter to the whole thrust of this Bill, which has been to codify and set down in one place, rather than in umpteen legal judgments that are effectively unavailable to the layperson, the whole law on defamation, clearly accessible to all and according to the decisions of Parliament on each issue. That is what this Bill and indeed the Minister in working on it have sought to achieve. If we agree that private concerns delivering a public service should be treated as a public body with regard to libel, Parliament should so decide and should write it into law.

The second issue sent by this House but rejected by the Commons concerns prior permission for corporations to sue, or, to put it another way, whether there should be an early strike-out. This is covered in Motion B2, which seeks to add Amendment 2D. The Government's Amendment 2B in lieu, which, to be clear, we welcome, does not include the provision voted on in this House for a judicial filter before a corporate body can sue for libel. However, without such a filter, companies can continue to use the threat of libel even when such threats are ultimately spurious. Without a filter, companies will continue to issue these unmeritorious claims where they calculate that they will frighten the authors or their publishers, and the chilling effect of such threats will persist because defendants will still have to incur the costs, plus the burden of applying to court to strike out the claim. We therefore consider, as did your Lordships' House, that companies should have to apply, showing why publication is sufficiently serious to merit a claim in the High Court.

As we have heard again today, the Minister in the other place, Mrs Grant, reported that the Government had asked the Civil Procedure Rule Committee to consider rule changes to support a new early resolution procedure under which either party could apply at the outset of proceedings for the court to decide key issues. Although this is welcome, it simply does not answer the point and, in any event, risks a delay of some two years, as we understand that work has yet to start on this. However, in any case, it is not really the point. We want non-natural bodies to have to show a court that they have a real case before they send out those threatening and chilling letters which bully, can silence and intimidate, cost a lot in legal fees simply to rebut, and are sent out to warn off criticism rather than seriously to right a wrong. That is why we need a permission stage in the Bill before a corporation can take an action for libel. I beg to move.