Schedule 17

ELECTION CAMPAIGNS AND PROCEEDINGS: MISCELLANEOUS AMENDMENTS

Dr Julian Lewis: I beg to move amendment No. 1, in page 160, line 30, at end insert –

'8A-(1) Section 106 (false statements as to candidates) shall be amended as follows.

(2) In subsection (1) after the words "character or conduct" there shall be inserted the words

"or fails to take reasonable steps to withdraw from circulation and public availability a false statement previously made or published".

(3) After subsection (1) there shall be inserted –

"(1A) 'For the avoidance of doubt, a person who makes or publishes a statement on the Internet or by other electronic means, or who causes a statement to be so made or published, makes or publishes a statement for the purposes of this subsection; and a person who fails to remove or cause the removal of a statement from the Internet shall be regarded as having failed, for the purposes of this subsection, to take reasonable steps to withdraw that statement from circulation and public availability'.".'.

Mr Deputy Speaker: With this it will be convenient to discuss amendment No. 2, in page 160, line 30, at end insert – 

'7B.–(1) Section 106 (false statements as to candidates) shall be amended as follows.

(2) In subsection (1), the words "(b) for the purpose of affecting the return of any candidate at the election" shall be omitted.'.

Dr Lewis: The amendments deal with the telling of deliberate lies during an election campaign about a candidate in that campaign, with the intention of damaging his vote. Amendment No. 2 is a probing amendment.

Amendment No. 1 is more substantive; it is aimed at closing a specific loophole. I declare an interest because the loophole was exposed in a case that affected me. Deliberate lies were told about me during the previous general election campaign. I was able to secure the sevenfold conviction of the person responsible, but the conviction was overturned on appeal on a legal technicality. The purpose of the amendments is to try to close the loophole illustrated by my case.

I mentioned the matter briefly on Second Reading and in much greater detail in Committee on 10 February. I shall not take up the time of the House by rehearsing those points. I was gratified by the interest and by the support in dealing with the problem that were shown by Conservative Front-Bench Members and by the hon. Member for Hazel Grove (Mr Stunell) on behalf of the Liberal Democrats. I was especially touched by the sympathy and concern shown by Labour Members – most notably the hon. Member for Ellesmere Port and Neston (Mr Miller), who has probably forgotten more about the internet than I shall ever manage to learn. I have also received sympathy and encouragement – although, as yet, no guarantee of action – from no fewer than three Home Office Ministers. I am sure that they want to close the loophole and I shall be happy to co-operate with them in negotiating the minefield of the knock-on problems that might affect other legislation if my proposal were accepted.

Section 106(1) of the Representation of the People Act 1983 is short and clear. It states:

A person who, or any director of any body or association corporate which –

(a) before or during an election,

(b) for the purpose of affecting the return of any candidate at the election,

makes or publishes any false statement of fact in relation to the candidate's personal character or conduct shall be guilty of an illegal practice, unless he can show that he had reasonable grounds for believing, and did believe, the statement to be true.

In order to secure a conviction under that provision, one has to show that what was told was a deliberate lie. It is not enough to show that it was false – one must show that the person who made the allegation against the candidate knew that he was lying when he made it. One also has to show that the person's motive was to affect the result by damaging the candidate's vote. Furthermore, as the section makes clear, it applies only to the period of the election campaign and to polling day itself.

In the case of the allegations on the internet made against me, it was held by the Crown Prosecution Service that the continued broadcasting of those allegations on the internet throughout the period of the election campaign amounted to a continuous process of republication. That view was not upheld on appeal. If deliberately false allegations are placed on the internet even before an election campaign begins, if they are made with the intention of affecting a candidate's vote and if they are not stopped during the campaign, amendment No. 1 would make it clear that that would amount to publication during the election campaign.

I shall not go through the points that were put to me in an extremely helpful letter that the Minister sent to me yesterday. It outlined the difficulties that might arise if we closed the loophole in the way that I suggest. I assure him that I will take up his offer of commenting on those points, and I am convinced that there are answers to every one of the possible objections to closing the loophole that have been made and that he has helpfully gathered together in his letter.

The normal way to deal with deliberate defamation is through the civil courts, but that breaks down in certain circumstances. The first is when the defamation's damage cannot be undone by the subsequent payment of financial damages. For example, if an election result is decisively affected, no payment of money after the event can compensate for that. It also breaks down if the defamer cannot repay the victim's costs even if the victim succeeds in obtaining an injunction and subsequently wins a civil case.

What are the ways forward? I have three possible suggestions. First, we could adopt something similar to amendment No. 1 with the added proviso that the deliberate liar should have been challenged to remove the deliberate lie for the entirety of the election campaign, and have failed to do so. Secondly, there is the possibility of adopting the civil route, but indemnifying the candidate who is the victim of the defamation against legal costs if his case against the defamer is proved and the deliberate liar declares his inability to pay his victim's costs after the event. Finally, we could consider adopting the methods used by the Internet Watch Foundation but lay a statutory duty on internet service providers to block access to the sites throughout the campaign.

I shall not take the argument any further at this point, but I look forward to hearing what progress the Government have made in finding their way through the labyrinth that confronts us in this new technological age.

Mr Andrew Miller (Ellesmere Port and Neston): I shall be brief. I thank the hon. Gentleman for his kind remarks. There is universal agreement that the principle that he has outlined is correct.

I suggest to my hon. Friend the Minister that perhaps the solution that he should consider is not to think of the internet service provider as the publisher, but more as the post office. He should concentrate on the authors of such libels, because these problems will face many Members in the future. The matter must be resolved.

Sir Patrick Cormack (South Staffordshire): Although truth is frequently a fugitive and a casualty in general election campaigns, impugning the character of individuals is a very serious matter. We are all grateful to my hon. Friend the Member for New Forest, East (Dr Lewis) for the way in which he has approached what has been a distressing matter for him. We are also grateful to the hon. Member for Ellesmere Port and Neston (Mr Miller) and to all the others who have given support.

We on the Opposition Front Bench wish to associate ourselves wholeheartedly with my hon. Friend's remarks. I have seen the Minister's letter, and we are grateful for his expression of sympathy. However, it is important that these so-called loopholes are plugged and it is crucial that we reach a proper solution. We shall not press the issue tonight, but we want a solution that provides the answer that my hon. Friend seeks.

The Parliamentary Under-Secretary of State, Home Office (Mr Mike O'Brien): The Government note the broad support on both sides of the House for dealing with this issue, and the strong sympathy that exists for the proposition made, on this occasion, by the hon. Member for New Forest, East (Dr Lewis). I have already indicated to him my personal sympathy for his view. There are, however, practical difficulties to overcome. I have set those out in a letter to him, and I offer him another meeting if he wants to discuss the matter further. I am happy to discuss the issues with him. I make it clear that at this stage I can give him no assurance that we will be able to support him, but the door to dialogue is open and I hope that, on that basis, he will feel able to withdraw his amendment.

Dr Lewis: In view of that expectedly helpful response from the Under-Secretary, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.