What the hell just happened with the Defamation Bill?

There’s a little bit of confusion over what happened during the Defamation Bill debate in the House of Lords yesterday afternoon, and today in the House of Commons. This is understandable, as the ‘ping-pong’ process is confusing, with ‘motions to agree amendments’… and amendments to those amendments.
The only issue at stake was was hurdles should be placed before companies wishing to sue. The pre-exising law allows corporates to bully critics with libel threats and a legal ‘reputation management’ industry has emerged, with websites and bloggers receiving threats unless they remove critical content. Which?, the consumer magazine that reviews products, often receives a legal threat after they give a product a poor rating!
In an earlier parliamentary debate, Labour succeeded in adding a significant clause to the Defamation Bill. It introduced a permissions stage for companies (you can’t sue without leave of the court) and asked them to show financial loss. It also extended the Derbyshire principle, so private bodies delivering public services could not sue when they are criticised by citizens questioning how taxpayers money is spent. Three measures in one clause.

The oscillating fortunes of this clause, and the confusion over what had been voted in or out, is down to the parliamentary procedure. Measures voted through in one House are not really ‘banked’ and ‘in the Bill’ unless they are accepted in the other House. The way the Commons and the Lords vote on each others’ additions technically means that the three corporations hurdles were never really ‘in the Bill’. So it is actually shorthand to say (above) that “Labour succeeded in adding a clause to the Bill”. In fact, they won the vote in the Lords to include an amendment to be sent to the Commons for consideration. Equally, it is shorthand to say that the Commons ‘removed’ the clause – what they actually did was decline to consent to its inclusion!
Technicalities aside, it looked like the Government would reject the clause wholesale. Many people cried “Lib Dem betrayal” because limits for corporate libel was in their 2010 manifesto. However, following heavy campaigning from the Libel Reform Campaign, and some negotiation with Justice Ministers by Lib Dem MPs Tim Farron and Julian Huppert, the Government agreed to keep only the provision that would insist companies show financial loss before they sue.
Procedurally, that meant that the Commons had to agree to remove the entire Labour clause, and then the Government would re-table an appropriately worded substitute. The Liberal Democrats, as members of the Government, were therefore required to vote against Labour’s 3 point corporations clause (all this happened last week on 16 April).
Whether you believe there was a “Lib Dem betrayal” therefore depends on whether you think the stand-alone provision on financial loss adequately reflects their manifesto commitment, and whether you think they fought hard enough to win the policy point against Conservative opposition. Securing all three prongs of the clause would have meant breaking the principles of coalition government and voting with Labour MPs. The Liberal Democrats chose not to do this.
That was last week. Yesterday in the House of Lords, the Government did indeed table it’s financial loss provision as promised, and peers unianimously agreed to it. However, the Labour Party re-tabled the other two provisions on a ‘permissions’ stage, and the measures to stop private bodies spending taxpayers money from suing, but neither of those provisions were voted through.
That meant that today in the Commons, the only thing to be agreed was the Lords’ amendment on financial loss. That was nodded through without a vote, although Sir Edward Garnier QC expressed dissent. The provision becomes part of the Bill and will be in the Act.
Whether you think yesterday was the day when the Government ‘U-turned’ on corporations, or the day the House of Lords ‘put companies before citizens’ depends on the angle of your political lens. Are you looking at it long-term or short term?
Yesterday, there were three provisions to limit corporate libel before Parliament – only one was accepted, so that feels like mostly a loss. And last week, there were three provisions in the Bill, and MPs voted for their removal. That feels like a big loss.
But widen the lens. In February, there were no limits for corporations in the Bill. None at all, and the Government had stonewalled any discussion of the idea. But now there is a financial loss provision locked into the law. That feels like a win.
The Libel Reform Campaign will shortly issue a statement and analysis of the Bill as a whole. But I thought I would make notes on this particular bit of procedure, and how it can be spun to mean different things, depending on your point of view.

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