Oral Answers to Questions

Robert Buckland Excerpts

Tuesday 5th February 2013 Commons Chamber

[Chris Grayling]

We will always discuss concerns that Members of this House have about their constituencies, but Labour Members must understand that we are dealing with an unprecedented financial crisis. We inherited from them a situation in which this country was borrowing £1 for every £4 that it spent. That inevitably means tough decisions that they may not always like.

[Mr Robert Buckland (South Swindon) (Con)]

Magistrates courts in Swindon and Wiltshire are about to make important decisions about the allocation of crime and family work. Will my right hon. Friend work with me and those on local magistrates benches to ensure that very long journeys in order to access justice do not become the norm?

[The Minister for Policing and Criminal Justice (Damian Green)]

I am happy to meet my hon. Friend to discuss that. Like me, I am sure that he will welcome the work done by the Courts Service to produce alternative ways in which people can give evidence—video links and so on—which mean that some unnecessary journeys and waiting times in courts can be removed.

Freedom of Information

Robert Buckland Excerpts

Thursday 24th January 2013 Westminster Hall

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

It is a pleasure to speak under your chairmanship, Mr Hollobone. We may be suffering today from the fact that two progressive causes are being debated at the same time, in a rather curious upstairs- downstairs situation. Upstairs, in the main Chamber, the franchise and the voting age is being debated, and here in Westminster Hall we are considering an important constitutional issue: freedom of information. I am glad that the Minister is here to reply to the debate, as she used to serve on my Committee, and we look forward to hearing from her shortly.

Many of us campaigned for years for freedom of information and against excessive Government secrecy, believing that openness is an aid to better Government, as well as an enhancement of the rights of the citizen. It was a long and hard battle. In John Major’s time, we achieved a code of practice on access to Government information, but the Freedom of Information Act 2000 was the most important step forward and its introduction is very much to the credit of the then Labour Government. So it was rather surprising that the then Prime Minister, Tony Blair, said in his memoirs that he had been a “nincompoop” to introduce it and that it was

“antithetical to sensible Government.”

The Justice Committee repeatedly asked Mr Blair to appear before us to give oral evidence about his dramatic change of view, and we deplored his failure to do so. We did not think that it was entirely justified to use the House’s powers to compel his presence, although that was a possibility, but it seemed very strange that someone with such strong views and who played such a major role in this matter should not be willing to appear before us to explain his views.

However, the right hon. Member for Blackburn (Mr Straw), who is always extremely co-operative in giving evidence to the Committee, told us that the Freedom of Information Act was Mr Blair’s idea and not his. We are all used to politicians, including Ministers and former Ministers, wanting to claim credit for things, but denying the credit for something as significant as the Freedom of Information Act seems a very strange thing to do.

To complete the chronology, I should mention the Protection of Freedoms Act 2012, which was passed under the present Government, because it extended the effect of the Freedom of Information Act to academies, to the Association of Chief Police Officers and all its public functions, to the universities admission body, UCAS, and potentially to a whole range of other bodies, too. So the extension of the role of freedom of information continues.

The Justice Committee and its predecessor Committees have been closely involved from the start of this process. We reported in 2004-05 on progress towards the then imminent implementation of the Freedom of Information Act; in 2005-06, we reported on the first year’s progress; and in 2006-07, we reported on the Labour Government’s plans to change the legislation in a restrictive way, mainly by the use of charges, which we opposed. The fact that the planned changes did not go ahead might have owed something to the transition from the Blair era to that of the right hon. Member for Kirkcaldy and Cowdenbeath (Mr Brown).

In this Session, we carried out post-legislative scrutiny of the 2000 Act, after the Government had made their own post-legislative assessment in 2011. That is a model of its kind; it is the sort of work that needs to be done in post-legislative assessments. It was thorough, well supported by research and a great help to us in the work that we did. I am happy to say that the Government and the Committee have reached a common view on most of the main issues, although there are some significant points of difference.

Our report on freedom of information was issued in July 2012, after seven evidence sessions, and the Government responded to it in November 2012. In their memorandum, the Government reiterated the well known four main objectives of the Freedom of Information Act:

“Openness and transparency: to help open up public authorities which carry out public functions, both proactively…and reactively… Accountability: to make Government more accountable to politicians, journalists and the public; Better decision-making: an improvement in the quality of decision-making…because those drafting policy advice would be aware that they would have to be able to defend their reasoning… Public involvement in decision-making…public participation…and…greater public trust in that process.”

The first two of those things—openness and accountability—have been achieved, to significant extent. The third thing—better decision making—is quite difficult to decide on, not least because many other factors determine the quality of decision making. The fourth thing—public trust—was a pretty unrealistic aim from the start, and I will refer back to it later because it would be hard to say that it has been one of the consequences of the Freedom of Information Act.

I will start with openness and transparency. We drew a distinction between reactive openness in response to requests made under the Act and proactive transparency in the publication of information by public authorities. On openness, we concluded in our report:

“We agree with the Ministry of Justice that the Act has contributed to a culture of greater openness across public authorities, particularly at central Government level which was previously highly secretive… Our evidence shows that the strength of the new culture of openness is, however, variable and depends on both the type of organisation and the approach to freedom of information of the individual public authority.”

On transparency, we made the point that

“proactive publication…cannot substitute for a right to access data because it is impossible for public bodies to anticipate the information that will be required.”

The beauty of the Freedom of Information Act is that, ultimately, the public, not the public authority, decide what information is needed. However, that is not an argument against proactive publication.

The Act encourages proactive publication, and the Government have a transparency agenda driven by the Cabinet Office, which seems to take the transparency demanded by freedom of information provisions a stage further, by encouraging raw data to be released in an open and reusable format. I welcome and encourage that, but we concluded that the relationship between the two initiatives was a bit unclear. We called on the Government to take steps to ensure that the freedom of information regime and the transparency agenda worked together, including by examining initiatives in different Departments before implementation to ensure that they are effective, as well as by assessing the existing initiatives to ensure that they

“offer value for money and do not have unintended consequences.”

On accountability, the consensus of evidence to us was that accountability had certainly been enhanced. Many examples can be produced of ways in which, for instance, spending can be challenged effectively because the information can be obtained. That has not always been a comfortable process, not least for Members of this House and the other place—I will refer to some aspects of that later—but it is a necessary feature of the control of expenditure that it should not be concealed and that the public should be able to find out what taxpayers’ money is being spent on.

One important issue raised with us by the Information Commissioner was the potential for accountability

“to be undermined if the freedom of information regime did not apply to private providers of public services.”

I will come back to that point and how we intend to deal with it later in my remarks.

Then we come to improving the quality of decision making, which can be achieved not least by creating an awareness that there will be subsequent scrutiny of the decision-making process. We enter an interesting area, because part of the background to the publication of our report was a great deal of noise being made by former senior civil servants and Cabinet Secretaries about the threat to the safe space within which policy discussions take place and the possibility that the Act had a chilling effect, both on the decision-making process and on the extent to which that process was properly recorded. These were serious people making quite serious comments, and it created a fear that the Freedom of Information Act might be threatened by a revolt by top civil servants or former top civil servants against the scrutiny under which they had been placed.

We received a lot of interesting evidence on the subject. We took evidence from former Cabinet Secretary Lord O’Donnell and from Ministers and former Ministers. A lot of it was anecdotal, and views differed among witnesses about the Act’s impact on high-level decision making. The Constitution Unit, which did research on the issue, thought that the chilling effect was negligible or marginal, and it was difficult to find any real evidence for what was sometimes claimed. The Committee recognised the problem. At paragraph 154 of our report, we said:

“Freedom of Information brings many benefits, but it also entails risks. The ability for officials to provide frank advice to Ministers, the opportunity for Ministers and officials to discuss policy honestly and comprehensively, the requirement for full and accurate records to be kept and the convention of collective Cabinet responsibility, at the heart of our system of Government, might all be threatened if an FOI regime allowed premature or inappropriate disclosure of information. One of the difficulties we have faced in this inquiry is assessing how real those threats are given the safeguards provided under the current FOI legislation and what, if any, amendments are required to ensure the existence of a ‘safe space’ for policy making.”

We accepted that some decisions by the commissioner and the tribunal that information should be disclosed have challenged the extent of the safe space for policy making. We also accepted that case law was perhaps not sufficiently developed for policy makers to be clear enough about what space is safe. We called for clarification of the statement of policy on the use of the ministerial veto under section 53 of the Act. The Government refer to the veto being used in exceptional circumstances, but it seemed that it was being used in some cases not because the circumstances were exceptional, but because it was the only way to protect the safe space. We called for senior officials, if they are concerned about the Act’s effect, to state explicitly that the Act already provides for a safe space and for high-level policy discussion. There are provisions in the Act that do that, and there is the backstop of the Government’s willingness to use the ministerial veto if necessary.

[Mr Robert Buckland (South Swindon) (Con)]

I am grateful to my right hon. Friend for fairly encapsulating the arguments that we set out in our report. Does he agree that one problem that case law and the tribunals have set for those who want to guard the safe space is determining where that space exists in the process? From a reading of at least some of the judgments, it seems that the public interest test changes according to where a decision or document comes in the policy-making process. That is a problem for civil servants and Minsters alike.

[Sir Alan Beith]

I am grateful to my hon. Friend, who is a valued member of the Committee. It is true that the agreed extent of the safe space varies according to the stage in the process, but that is right and not unreasonable; some parts of the process require confidentiality more than others, at least for a period. One reason why I and the Committee were reluctant to use any other tool to deal with the problem was that we would be in danger of creating whole areas of restriction where they need not exist. The application of common sense and, as I say, the backstop use of the veto provide for a mechanism to deal with the issue that could be more widely understood. We certainly called on the Government, and we are calling on them now, to ensure that the position is fully understood in government and by officials.

The Government said in their response that they

“were minded to review and, as appropriate, revise the policy on the use of the veto…we propose to consider how the veto policy can be adapted both in terms of the process involved in its use and to offer greater clarity and reassurance on its ability to offer appropriate protection in addition to that which it provides in the context of information relating to collective Cabinet responsibility.”

There is always a political price to pay for using the veto. Any Minister who invokes it will be criticised, challenged and questioned, and rightly so. We have seen a number of instances recently, ranging from the devolution discussions to the Prince of Wales’s letters. No Minister can undertake such a course without facing pretty severe challenge—the hon. Member for Hammersmith (Mr Slaughter) knows about that from his own experience —and that is right, because such things act as a hurdle: politicians will say, “Do I have to do this? I’m going to get a lot of stick for it in the House.” That hurdle is one means by which we ensure that the veto is not lightly used, although it does have a purpose and a potential benefit.

In our report, we made an important point that tends to get overlooked. Frankly, there is much more likelihood of the most confidential and sensitive discussions, and the papers relating to them, being released in major public inquiries, such as the Leveson inquiry or the Chilcot inquiry into the Iraq war, than through the freedom of information process. The ministerial veto does not work for Leveson or Chilcot, and thank goodness, because they dealt with very serious issues, and it is right that an exceptional process was used to probe them. People sometimes attributed to the Act the fact that some things were eventually, and rightly, found out, but in some of the most sensitive cases, that was down to the different processes, against which neither the Act nor ministerial vetoes provide any protection, and nor should they.

[Mr Buckland]

Does my right hon. Friend agree that, as the Committee found, using the Australian approach of a block exemption for Cabinet papers might be superficially attractive, but it could, and probably would, as in Australia, give rise to litigation over what is meant by Cabinet papers? Even worse, it could be used as a device to avoid the freedom of information regime by wrongly classifying papers in that category.

[Sir Alan Beith]

My hon. Friend’s point conjures up the picture of a civil servant armed with a rubber stamp saying “Cabinet Paper”, which can be applied wherever there is a fear that something that they do not want to disclose will be disclosed early. The Committee concluded that a common-sense approach was the way to deal with the issue. All it requires is to be reinforced through clear advice and guidance to civil servants on how the veto backstop and the other provisions of the Act afford them some protection.

In our inquiry, we heard from the Constitution Unit that the Act had not had a significant effect in increasing public participation in decision making, and we saw no great reason to disagree with that finding because other processes that increase participation, such as consultations, fall outside the Act. As I indicated, however, there is little evidence that freedom of information has had a noticeable positive effect on public trust in the Government and other public bodies, and it was always unrealistic to expect anything different. In paragraphs 37 and 38 of the report, we say:

“Evidence of irregularities, deficiencies and errors is always likely to prove more newsworthy than evidence that everything is being done by the book and the public authority is operating well. In these circumstances, the expectation of a substantial increase in public trust…was always going to prove unrealistic… Greater release of data is invariably going to lead to greater criticism of public bodies and individuals, which may sometimes be unfair or partial”,

and I am sure that some hon. Members agree with that. We continue:

“In our view, however this, while regrettable, is a price well worth paying for the benefits greater openness brings to our democracy.”

I speak as someone who, among other things, was criticised in a newspaper article for having a toilet in his constituency office repaired at public expense, so that the staff could use it. I felt like asking the journalist whether he had been asked to contribute to the cost of maintaining the toilets in his newspaper’s offices at his own expense. However, we have to live with these things, and the benefits of expenditure not being concealed outweigh any personal cost that we pay.

Complying with freedom of information requests involves costs, but it can also create savings, which accrue from the disclosure of the inappropriate use of public funds or the fear of such disclosure. Section 12 of the Act provides that public authorities are not required to comply with the duty to publish information if the cost of compliance exceeds the appropriate limit—£600 for central Government and £450 for other public bodies, which translates as 24 and 18 person-hours of work respectively.

We rejected proposals that what we regarded as more subjectively measured activities, such as reading and consideration time, should be included in the time to calculate costs, but we recommended a small reduction in that period. The Government took a different view in their response and said they would make “efforts to reduce burdens” arising from what they call the

“‘industrial’ use of the Act”.

They say that time taken to consider whether information should be released or to redact it before release should count towards the time limit. They say that they will consult on the change and will seek to develop a method of calculation that will be consistent across public authorities.

The Government say that the change will affect a low proportion of requests: 4% of those to central Government and 10% of those to other public authorities, but that is still quite a lot, perhaps more than 1,000 requests. We are concerned about that and particularly about the potential effect on local newspapers. My area has a unitary authority, and if a local newspaper wanted to follow up stories about several different local services—education, highways and social services—it could quickly fall foul of that aggregation. I should be grateful to the Minister if she thought carefully about that.

We examined charging, and we considered that it was not appropriate to go down that road. Any charge designed genuinely to recoup costs would deter genuine requests, and few kinds of charging would deter frivolous requests or, for that matter, what the Government call industrial requests. There are such things—industrial requests from large commercial companies who want to collect a lot of information and could afford to do so if there were charges; or requests from less well funded organisations, including small local newspapers, which are not going through a very profitable period at the moment. Those requests could be made in other ways. If a charging system were introduced, requests from private individuals might well be handed over to media organisations, in pursuit of a legitimate campaign, for example, to find out what was going on in government.

The Government agreed with us about charging, but they have said that they are considering charging people to go to the Information Tribunal. That would be a matter of some concern. I hope that the Minister can say more about it today. It has arisen since we published our report.

We said something about frivolous and vexatious requests. The folklore about the Freedom of Information Act tends to imply that all public authorities are completely weighed down by trivial, frivolous and vexatious requests. In practice, that is not so. A limited number of requests appear frivolous, and vexatious requests can of course be rejected, by following procedures that experienced public authorities use. We were told stories about applications for information about ghost sightings in the town hall and things of that kind, but it is not too difficult for the public authority simply to reply that it has no information at all on the subject. That is not a lengthy process.

Our view, again, was that it would be unwise to transform any aspect of the Act to deal with a problem that is not all that significant or serious:

“It is apparent from witnesses that frivolous requests are a very small problem, but can be frustrating. There is a case for adding frivolous requests to the existing category of vexatious requests which can be refused, but such requests can usually be dealt with relatively easily, making it hard to justify a change in the law.”

We gave considerable consideration to time limits and saw no need for any change to the 20-day response time within which public authorities must respond to freedom of information requests. However, we thought that time limits should be introduced for the public interest extension allowed under section 10 of the Act and that a further 20-day limit should be set in statute, which could be further extended in complex cases. The Government disagreed with us, preferring to rely on the Information Commissioner’s guidance and the code of practice under section 45, to ensure the timely completion of extensions and internal reviews.

We took evidence and made a recommendation on university research. We did not go along with the view of some people in the university world that universities should be exempted from freedom of information legislation. Universities spend a great deal of public money and carry out public functions. All those that are not wholly private in their funding are subject to freedom of information provisions. We think that should remain the case, but we recognise that there is a problem with the premature disclosure of continuing research projects. That has been dealt with in Scotland by different legislation, and we believe that there should be better protection, or pre-publication exemption, under section 22 of the Act, for research carried out by higher education institutions. There should be a dedicated exemption on the lines of the Scottish provisions. We are pleased that the Government have accepted the recommendation, and I should just like clarification of how that will be achieved.

I said that I would mention a significant problem, and it becomes more significant with each new announcement that the Government want to use the private sector as a major provider of public services. The problem is how freedom of information is applied to private organisations, commercial companies or, indeed, voluntary sector bodies that carry out public functions. There was some uncertainty about the interpretation of section 3(2)(b) of the Act, which provides that information held by a private company on behalf of a public authority with which it has a contract is subject to the Act, but other information held by such a company is not. It is quite reasonable that other information should not be covered—the Freedom of Information Act does not apply to the commercial activities in the private sector of a commercial company—but there is a genuine and appropriate concern about what happens when such a company does what would otherwise be done by a public authority.

We favoured the use of contractual terms to deal with the issue, as currently happens in many cases. The body that commissions the services, whether a probation or health trust or a Department such as the Ministry of Justice, should ensure that the contracts that it writes will protect the access that it requires to all material relevant to potential freedom of information requests, so that it can respond to any freedom of information bid.

The Government have broadly agreed with that conclusion and have helpfully gone further by suggesting that they will amend the section 45 code of practice to encourage public authorities and contractors to provide information on a voluntary basis, going beyond the minimum covered by a request to an authority. It seems to us that that openness follows the public money, in just the same way as the Public Accounts Committee wants accountability for spending to follow the public pound, and that the best way to achieve that is not to put a commercial organisation in the rather confused position of being partially subject to FOI, but to put it under contractual obligations that, if it carries out a service on behalf of the taxpayer, it is obliged to the body that commissions it to provide the information.

The Committee will take further evidence in a couple of weeks from the Information Commissioner on the work of his office. We may then follow up some of the issues that I have outlined. We welcome his work and have a good relationship with him. It has long been the Committee’s view that the Information Commissioner should be an Officer of Parliament, like the ombudsman, the health ombudsman or the Comptroller and Auditor General. That is the situation in Scotland, with the Scottish Information Commissioner. That would underline the commissioner’s independence. I was struck by the fact that in yesterday’s debate about blacklisting, which relates to another side of the commissioner’s responsibilities—data protection—my right hon. Friend the Business Secretary stressed the fact that the Information Commissioner is an independent regulatory official, running an independent regulatory body, and not a creature of the Government. That, indeed, is how things work in practice. However, it would be much better to underwrite that position, by making the commissioner fully a creature of Parliament rather than, technically, as he is now, part of the governmental system.

When considering the overall impact of the Freedom of Information Act, we need to bear in mind something that kept coming up in different ways during the Committee’s proceedings. Since the Act was conceived and then passed, a significant change has affected the whole freedom of information issue: the explosion of internet use and the new opportunities created by it. That has made access to published information easier; it has allowed published data to be searched in ways that were virtually impossible with manual searching; and it has posed a challenge to the quality and effectiveness of some public sector databases. Kent county council has explained to us that getting its database to the point at which it could effectively be interrogated by the techniques that are now available would be a major and costly task. The internet explosion has also created internet- based mechanisms for making freedom of information applications, along with organisations devoted to assisting people to make such applications. We must keep the matter under constant review.

The Freedom of Information Act set out principles that we believe should apply to Government for all time, but precisely how we apply them and the context in which we do so are things that change, and the Information Commissioner’s Office has a significant role in assisting us with that. Because of its data protection responsibilities, the office happens to have a great deal of knowledge within it about mechanisms that are relevant to data protection and to freedom of information and how information is accessed.

More generally, our view is that the Freedom of Information Act has significantly enhanced our democracy. It is working well and achieving most of its main purposes. Rewriting or restricting it and reducing its scope, effectiveness and accessibility would be far too high a price to pay for the convenience of government.

Oral Answers to Questions

Robert Buckland Excerpts

Tuesday 18th December 2012 Commons Chamber

[Mr Speaker]

Well, the plot thickens.

[Mr Robert Buckland (South Swindon) (Con)]

Last year, the number of applications for permission to apply for judicial review in immigration and asylum cases reached a point at which they represent more than three quarters of the total number of such applications. What will my right hon. Friend do about that growing issue?

[Chris Grayling]

Our consultation includes proposals to introduce a series of limitations in the judicial review process, particularly to stop people coming back again and again looking for new legal nuances to launch a new case. I believe, as does the judiciary—this has been highlighted in a number of recent cases—that judicial review is simply being used as a vehicle to delay being deported from the country, which is wrong.

Leveson Inquiry

Robert Buckland Excerpts

Monday 3rd December 2012 Commons Chamber

[Mr Robert Buckland (South Swindon) (Con)]

It is a pleasure to follow the hon. Member for Hammersmith (Mr Slaughter), whose remarks about the carrot and the stick in relation to costs were well made. There is no doubt in my mind that in order to incentivise the major titles and the print media to join a new regulator, there have to be proper incentives—with members enjoying an advantage over non-members in terms of civil actions and not having to pay aggravated damages.

Along with some other Members, I sat on the Joint Committee on privacy and super-injunctions, which issued its report some months ago. In common with my hon. Friend the Member for Camborne and Redruth (George Eustice) and the right hon. Member for Exeter (Mr Bradshaw), I often found myself in a minority on that Committee. There were many divisions and, as we have heard, the final recommendations were the subject of much debate. I found myself in a minority, for example, because of my strong advocacy of a statute of privacy, which I still believe this country needs and which it is incumbent on this Parliament to introduce.

At that stage, I was still thinking carefully about the merits of some form of statutory intervention or underpinning for the print media. I am persuaded now, however, that some form of underpinning is necessary. I do not come to this issue as someone who is an instinctive regulator. I do not support knee-jerk reactions when it comes to the passage of legislation in this House, but I do view the situation now as so serious that only some form of underpinning will do.

I am often accused of being optimistic in my politics to the point of being quixotic, but when it comes to the ability of the major titles of the print media to agree, first, to the principles of Leveson and, secondly, to a mechanism that will deliver them, I am afraid that my optimism leaves me.

Much has been said about the context in which the Leveson inquiry commenced. Some would say that it was based on a very narrow set of circumstances, but that is belied by the wide terms of reference set out at the beginning of the inquiry. We can see from the title that it is “An inquiry into the culture, practices and ethics of the press”, but it is important to remind ourselves in this debate of what the aim of the inquiry was. Part 1 of the terms of reference state that it was to make recommendations

“for a new and more effective policy and regulation regime which supports the integrity and freedom of the press, the plurality of the media and its independence, including from Government, while encouraging the highest ethical and professional standards”.

That part of the terms of reference is extremely important, because the scene was set for a wide-ranging examination of not just telephone hacking or bribery but the entire regulatory regime that has applied so far.

It is agreed in all parts of the House that so-called self-regulation has failed. Indeed, I would go further and say that I agree with Lord Justice Leveson that the Press Complaints Commission was not a regulator as we know it. It was not independent; it did not have powers to summon parties to produce documents or provide sworn evidence; it could not deal with complaints from third parties, or indeed with issues that were not subjects of complaints. Its remit was narrow, and its status was compromised. If we are to embark on a new course, it will be regulation in the proper sense of the word for the very first time.

Those who argue against any form of statutory intervention say that they do not want the work of our free press to be inhibited by statute. Of course I agree with that, but on closer examination, it would be wholly wrong to say that the work of our journalists is in some way uninhibited now. It is already hedged by statute, whether it be rules about reporting when it comes to contempt of court or, for example, provisions of the Police and Criminal Evidence Act 1984 relating to journalistic material that restricts police powers of search. We have existing defamation statutes that allow the defence of responsible journalism that is in the public interest. The Human Rights Act 1998 itself enjoins the courts to have specific regard to the relevant code of conduct when dealing with privacy cases.

[Jacob Rees-Mogg]

Is not the difference that the press has specific protections in law rather than laws that apply, with a specific penal effect, to the press alone? That is a very important difference.

[Mr Buckland]

I take my hon. Friend’s point about the boundaries that are being set. My point, however, is that there is a parallel between existing statute and what I believe is being proposed. I do not view statutory underpinning as somehow creating an entirely new set of constraints within which journalists will have to work. This is not, in my opinion, analogous to the difference between prescribed rights and general liberties that may be defined by their boundaries. My hon. Friend and I often agree about the distinction between different types of law and the tension that exists between them, but I do not believe that we will end up in that situation.

[George Eustice]

Does my hon. Friend agree that it is wrong for the press to support statutory regulation when it protects their commercial interests and oppose it when it protects the interests of civil society?

[Mr Buckland]

I think that the Homer Simpson approach that we often observe—the contradictory approach that is taken to so many issues—is worrying, and demonstrates an inconsistency. I simply ask those who say that existing laws provide adequate protection for members of the public why we allowed ourselves to get into a position in which, in effect, a culture of impunity existed in certain parts of our print media. I think that Lord Justice Leveson deals very comprehensively with the reality of the law as it stands.

As I have said, the press operate within a framework, but when play is made of the criminal law, the context within which that law operates is far too often ignored by those who cite it. First, when it comes to criminal complaints there needs to be a victim and some form of complaint, which will come about either when the complainant goes to the police or when the police themselves have some intelligence or information about an alleged crime.

The problem in the context of, for example, telephone hacking or bribery is that very often the victims do not realise that they are victims for many years. That was certainly true in the case of some of the victims of telephone hacking, who became aware of the emergence of private and sensitive information into the public domain via the newspapers, and then began to suspect even their families and friends of having breached a confidence before realising, or being told about, the grim reality. The same can be said of bribery: those who have lost out as a result of it will not necessarily know of the wrongdoing at the time, and may not know of it for many years.

There are issues relating to the way in which evidence can be gathered. We know, and rightly stress, the importance of exemptions when it comes to journalistic material. Also, the police will naturally prioritise the individual offences, such as violence and dishonesty, while the issues raised in this inquiry have in recent times dropped low down the list of priorities. As Lord Leveson says, the mere fact that we now have lengthy investigations into telephone hacking and bribery does not necessarily mean that the police have always been able to conduct such inquiries. In fact, the co-operation of News International has made all the difference in that respect.

Much has been said about defamation. Like the Versace hotel, the law of defamation is open to all, but it is too expensive, and we as parliamentarians must support the ordinary person to get cheap and effective redress of any grievance through a robust independent regulatory system, which must be underpinned by statute.

--- Later in debate ---

[Jacob Rees-Mogg (North East Somerset) (Con)]

There has been a lot of praise of Lord Justice Leveson today, and I am afraid that I am going slightly to divert from that, because to some extent prolixity has been mistaken for virtue. Verbosity is possibly part of the problem of his report, which not only goes on for much too long, but fundamentally has missed the bus. I say that because it was not set up to deal with the internet. Indeed, Lord Leveson says on page 169 that

“most blogs are read by very few people. Indeed, most blogs are rarely read as news or factual, but as opinion and must be considered as such.”

However, we discover from Saturday’s Financial Times, a very good source of information and not one that has been involved with any of these problems, that 82% of the UK population receive news online, compared with 54% who receive it from newspapers. So the report is about regulating yesterday rather than dealing with tomorrow; it should make King Canute feel proud, because at least he was going to deal with the tide that was coming in, rather than a tide that had receded some years before.

I am delighted to say that Lord Justice Leveson has used online content himself; it was reported in The Sunday Times that he was caught by a spoof on Wikipedia and said that The Independent was founded by one Brett Straub, who apparently is a Californian student and had no association with the founding of The Independent. So, on the one hand, not much notice is taken of the internet, but, on the other, it has actually been used in putting together this report of almost 2,000 pages.

I listened with great interest to my right hon. Friend the Member for Hitchin and Harpenden (Mr Lilley), who said that we should always be very cautious when people say that the status quo is not an option as self-evidently the status quo is always an option. As a Conservative, I would often like the status quo ante, but I shall not dwell on that point. A good deal of the report accepts the status quo. On page 1496, Lord Justice Leveson states that

“I do not recommend that any change is necessary to the substantive criminal law.”

On page 1508, on the civil law, he says that he does not want to go over the ground of the Defamation Bill, because that has already been dealt with, and on privacy he says:

“It does not appear that legislative intervention will do other than generate…litigation”.

On defining the public interest in law, he states that:

“I do not recommend a statutory definition.”

In the criminal law and the civil law, we will maintain that terrible thing, that awful spectre, the status quo. That is rather encouraging because it means that the law of the land is working and has been doing its job.

[Mr Buckland]

rose—

[Jacob Rees-Mogg]

Of course I will give way to my hon. and learned Friend.

[Mr Buckland]

I am very grateful to my hon. Friend for the elevation he has given me. Does not his point have to be succeeded by a second point? Lord Justice Leveson says that regulation is necessary to cover areas of complaint that do not neatly fit into heads of damage or criminality, such as accuracy, at which the press are not always terribly good.

[Jacob Rees-Mogg]

I am very concerned by my hon. Friend’s suggestion. If we are to legislate for accuracy, I hate to think what that might do to this House or to politicians and the speeches they make in election campaigns.

More important than the fact that the report suggests no changes to the criminal and civil law is the underlying risk to freedom of expression it contains. Let me start with page 1512 and the subject of the possibility of aggravated, exemplary and restitutionary damages. They have been used in some other countries in the world as a means of crushing opposition. When people say things that the Government of the day do not like, the Government bring complaints or actions for damages, sometimes against individual politicians, and bankrupt them. They are then no longer able to criticise the Government. Although it sounds very fair when we are talking about the hard, sad or disgraceful cases we have heard about in this debate, none the less we should allow newspapers to refuse to fit neatly into some regulatory system thought up by a Government-appointed bureaucrat or risk those fundamental freedoms we have been fortunate enough to have for many centuries.

That brings me to the appointment of the first appointment panel. Who is to appoint the panel? We hear that it will be made up of distinguished public servants with experience of senior appointments. We are actually going back to a 1950s view of the establishment. Perhaps I should welcome that, because I might have fitted very nicely into a 1950s vision of the establishment, but I am surprised that this House by and large wishes to see that return. The report suggests that appointment should take place in

“an independent, fair and open way”—

like the appointment of the new Governor of the Bank of England, I am tempted to say, although I thought it was an excellent appointment. It was advertised for the first time, lots of good and qualified people applied and then the Chancellor appointed who he wanted to in the first place. It was a very good appointment, but this reference to a “fair and open way” should make us deeply suspicious.

The key matter—the nub of all this, which brings it all back under state control—is the role of the recognition body. Under Lord Justice Leveson’s proposals, the recognition body is, unfortunately, under the control of a Government appointee. It is a Government quango where the chairman is appointed by a Secretary of State. That is difficult because that recognition body will have the right of first recognition in saying whether a particular set of regulators will be suitable—there could be more than one—and on the second anniversary and every subsequent third anniversary, it will be able to say whether the statutory tests have been met.

Now what if one of those regulatory bodies did not meet the requirements for equality and diversity that Lord Justice Leveson is so keen on? What if it dared to appoint someone from UKIP who might live in Rotherham, for example, to one of its panels to be an investigator? Do we then find that the checking body, Ofcom, would disapprove that body and, by effect if not by immediate law, would be able to choose the detail of the way in which the press was regulated?

There is another concern—that people will seek advice. By their very nature they will go to the recognition body and say, “This is what we propose. Is it all right if we do this? Will you allow us to continue when we come to our next review?” So there is an insidious power in that recognition body which will undermine the freedom of the press and will assert political correctness throughout the land.

[Mr Buckland]

Will my hon. Friend give way?

[Jacob Rees-Mogg]

It is a privilege to give way.

[Mr Buckland]

It is an attractive and seductive argument that my hon. Friend sets out, but in many other walks of life—for example, my profession, the medical profession and the judiciary—there are over-arching bodies of statute that do the job of verification that he is so concerned about. They are independent. Why should not the proposed press regulatory body work?

Voting Eligibility (Prisoners)

Robert Buckland Excerpts

Thursday 22nd November 2012 Commons Chamber

[Chris Grayling]

Seven countries have done so. Most recently, Italy was before the Court and has made an amendment to its system. Of course, each country will form its own decision based on the system it has in place and the sovereignty of its Parliament. There has been some suggestion that ours is the only country that has even contemplated failing to implement a decision of the European Court, but I should tell the House that if we look at the record of different members of the Council of Europe for implementing decisions over the years, we see that this country stands near the top of the list.

[Mr Robert Buckland (South Swindon) (Con)]

Does my right hon. Friend agree that we need to nail the myth about the so-called blanket ban? We do not have a blanket ban in this country; remand prisoners, contemnors and fine defaulters retain the right to vote. Will he assure me that it is for this Parliament to consider a range of options, which I hope the Joint Committee will consider carefully?

[Chris Grayling]

My hon. Friend makes an important point about those in our prisons who vote, including fine defaulters, people on remand and people who are between verdict and sentence. I can give him an absolutely clear assurance that it will be for Parliament to decide whether it wishes to see more prisoners with the vote or simply to retain the number at that level.

Oral Answers to Questions

Robert Buckland Excerpts

Tuesday 13th November 2012 Commons Chamber

[Damian Green]

I am happy to assure my hon. Friend that we are already investing more than £1.5 million to help build capacity in dealing with restorative justice throughout the criminal justice system and, in particular, for pre-sentence restorative justice, which is what his question refers to. I am also delighted to report that over 18,000 police officers have received training in restorative justice techniques. This is contributing to the greater success of our restorative justice measures.

[Mr Robert Buckland (South Swindon) (Con)]

Will my right hon. Friend come and visit Swindon, where we are piloting neighbourhood justice panels, involving the community in making decisions about wrongdoers and having a real sense of control for the first time in relation to crimes that affect a large number of people in my community?

Policing

Robert Buckland Excerpts

Wednesday 24th October 2012 Commons Chamber

[Mr Robert Buckland (South Swindon) (Con)]

It is a pleasure to take part in this afternoon’s debate and to follow the hon. Member for Lewisham East (Heidi Alexander). I acknowledge that different parts of the country face different challenges. Some of the issues she outlined have been with us for some time, and some police authorities some time ago took a more long-term view of the likelihood that resources would start to decrease, rather than continue to increase. Wiltshire police, in which police authority area my constituency sits, took some difficult decisions a few years back, and although, like the rest of the country, the force is having to bear its share of a reduction in income, it is right of me to point out, with some pride, that its commitment to neighbourhood policing remains unabashed. In fact, the number of police community support officers, who form a key part of the delivery of neighbourhood policing, has increased in the past year by 14.2%, or 19 officers, which is testament to Wiltshire police’s commitment to neighbourhoods such as the one in Swindon that I represent.

The right hon. Member for Delyn (Mr Hanson), who is no longer in his place, mentioned his visit yesterday. I am sure that he heard those encouraging statistics and would join me in paying tribute to the work of the police authority, one of whose members, Angus Macpherson, is the Conservative candidate in the police and crime commissioner election next month. I have been working hard with that candidate to get the message across about the importance of the elections and to give as much information as possible to local residents about what the new commissioners will do—not just dealing with police strategy, but commissioning services that I believe will lead to greater use of crime prevention and diversion techniques. I hope they will also lead to the extension of the principles of restorative justice further into our communities, on which much work is already being done in the Swindon area, although time does not permit me to speak at length on that subject today.

I rise primarily to raise a case that has already been mentioned—one that resulted last Friday in the conviction and life imprisonment of the murderer Christopher Halliwell. He murdered Sian O’Callaghan in Swindon last year, after picking her up in his taxi outside a nightclub. He has been dealt with properly for that heinous crime, and I pay tribute to Sian’s family for their dignity throughout the proceedings and for the way in which they coped with the awful reality confronting them after Sian’s abduction and the subsequent discovery of her body.

The case does not end there, however. During the course of the police investigation, a second murder was disclosed by the defendant, Christopher Halliwell. He has not been brought to justice for that murder because of errors made in relation to the Police and Criminal Evidence Act 1984 guidelines to be followed by all police officers during criminal investigations. That means that the family of Becky Godden, whose body was discovered by police officers during the search for Sian O’Callaghan, have not received justice or any degree of closure and are facing that awful reality day by day.

I will not comment on the conduct of the individual police officer. He is a senior officer. There is an Independent Police Complaints Commission inquiry into his conduct. Putting myself in his shoes for a moment—putting aside my legal hat, having been a criminal barrister for 20 years—I can entirely understand that in the heat of the moment, when it was thought that Sian O’Callaghan may still be alive, that officer thought he was acting in the best interests of the safety of Sian and in the interests of finding out more from Halliwell.

In the light of the grim experience of this case, it would be timely for the Police and Criminal Evidence Act, code C in particular, which applies in this case, to be looked at again by the Home Office to make sure that it is fully up to date and has taken into account developments in technology that could well have assisted the police in the conduct of the investigation of the case. The codes of practice are not tablets of stone. They are regularly updated in the light of experience, and I believe that after this particularly serious case with serious consequences not only for the family of Becky Godden, but for the wider community who are so concerned and were so traumatised by what happened, it is time that we had another look.

I pay tribute to Becky Godden’s family for their dignity, and I pledge my support to them to do whatever it takes to make sure that they can find justice for the loss and the murder of their daughter.

Prisons (Property) Bill

Robert Buckland Excerpts

Friday 14th September 2012 Commons Chamber

[Stuart Andrew]

This debate is already demonstrating that there will be a lot to talk about in Committee. Indeed, I hope that my hon. Friend will consider joining me on that Committee. He is absolutely right: items that are illegal would never be returned. They would be sent to the police to deal with.

To return to the point I was making, it is frankly astonishing that items seized by the governor are held in safe keeping simply to enable prisoners to claim them back on their release. That is not only a perverse part of the law; it is frankly wrong. It is also astonishing to discover that the system is having a huge impact on the public purse in what are very difficult times.

[Mr Robert Buckland (South Swindon) (Con)]

The possession of unlawful articles such as drugs and firearms are separate criminal offences that are capable of prosecution. There are provisions in the relevant pieces of legislation—for example, the Misuse of Drugs Act 1971 and the Firearms Act 1968—that would allow for the forfeiture and destruction of those items. My hon. Friend is rightly seeking to deal with an anomaly. Items such as mobile telephones need to be confiscated because they are becoming a menace.

[Stuart Andrew]

I am grateful to my hon. Friend. His background in law and his experience are showing far more than mine, as I have not been in the law. He is right. Indeed, I am sure the House would be amazed to learn that the real problem is mobile phones. Some 41,000 mobile phones alone are currently being held in storage by the Prison Service. They are all waiting to be claimed by people who frankly should not have had them in the first place. All those mobile phones are being stored and administered by staff who are already busy in their day-to-day jobs. Furthermore, there is a genuine concern that the legal position might not enable prisons to deal with unauthorised property, such as that which has been adapted for unauthorised use—for example, radios with the mechanics removed to enable drugs to be smuggled into the prison.

As I said earlier, the current position is considered perverse. It is remarkable that although a prisoner can be prosecuted for smuggling a mobile phone into prison, under the Offender Management Act 2007, or for possessing a mobile phone in prison, under the Crime and Security Act 2010, that item is retained at the taxpayer’s expense and then returned to the prisoner when they leave. What sort of message does that send out, particularly to the victims of crime? That is why there is a genuine need for this Bill.

--- Later in debate ---

[Mr Robert Buckland (South Swindon) (Con)]

I shall be brief, because the Bill is short and because the context has been well set out by hon. Members.

On the scourge of mobile telephones, these phones are very often used as a communal resource by prisoners. They will obtain SIM cards, which, as hon. Members know, are very small and are sadly brought into prison very easily. The SIM cards are then inserted into a communal phone secreted in a cell, which will be accessible to prisoners during free association time, which is during the day. Of course, I am talking about category A to C prisons rather than open prisons. During the evenings, when there is a lockdown, if the phone is wanted, it can be swung on a piece of cloth out of the cell window to an adjoining cell or to a lower floor. That is what is happening in our prisons currently.

We know about wing phones, but the communal wing mobile phone has been with us for far too long. Although the Bill cannot deal with the problem of getting phones and items into prison—nobody is pretending it can—I believe it gives another resource to the prison authorities to deal effectively with contraband items when they are found.

I should like to raise two points on the Bill, the first of which is on the definition of “prisoner”. I see no definitional clause on whether the definition covers remand prisoners. There are two types of prisoner: convicted prisoners who are serving a sentence, or who have been convicted after a trial or pleaded guilty and are awaiting sentence, and remand prisoners who have not yet been dealt with by the court or convicted of anything. So some clarification of the term “prisoner” would be helpful, although it might well be that the Interpretation Act 1978 covers the definition and that the extra clause is not needed. I would be grateful, however, if my hon. Friend the Member for Pudsey (Stuart Andrew) and my hon. Friend the Minister could deal with that question.

Secondly—this might not be a matter for prison legislation or rules—there is another category of custodial area: the cell area of a court building, where a prisoner will be detained either while awaiting their court hearing or during the day in court. I understand that the prison legislation and rules probably would not apply to a court building, but I seek some clarification and reassurance from my hon. Friends on the arrangements for dealing with unauthorised articles found in the possession of prisoners in the retaining or custody area of a court building.

I see that the prison escort vehicle is covered. That, of course, is within the jurisdiction of the governor and the prison rules.

[Dr Thérèse Coffey]

Does my hon. Friend think that there is a difference between somebody who is being held in custody but who has not yet been convicted of a crime, and somebody visiting court for an offence perhaps committed while in prison?

[Mr Buckland]

My hon. Friend is right to raise a potential issue about the distinction between remand prisoners and those who have been dealt with and convicted. It is important that we uphold the rights of remand prisoners. They have not been convicted of an offence, but are awaiting the resolution of the allegation against them, so their rights have to be respected. Nevertheless, withholding the right to bail has its consequences. When people are held on remand in custody, they must surrender their personal effects. The authorities will collect those items in the custody area of the court, bag them up, and record and retain them in the normal way.

The Bill deals with the position of unauthorised articles where there is no reasonable explanation or excuse for them to be held.

[Jacob Rees-Mogg]

I am interested in what my hon. Friend is saying about remand prisoners. Would he be concerned if the law allowed for the destruction of something found in the possession of a remand prisoner that was legal but unauthorised, in the event that he was then found not guilty?

[Mr Buckland]

That is the point, and a very important one too, and yes it would concern me. Therefore, the question of the destruction of an item properly taken from a remand prisoner should not be resolved until the status of that remand prisoner has been dealt with by the court.

[Philip Davies]

I am slightly concerned by the direction that my hon. Friend is going in. If a remand prisoner is not allowed a mobile phone in prison, but we do not threaten the same destruction, it might encourage other prisoners to target remand prisoners to help them with their criminal activity. If somebody is not allowed a phone in prison, it should not matter whether they are a remand prisoner or not. The solution is in their own hands: do not have a phone in prison.

[Mr Buckland]

I am grateful to my hon. Friend, but I am referring to the specific power to destroy the phone, rather than to confiscate it. I entirely support moves to confiscate contraband from prisoners, whether they be on remand or convicted. The point that my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) made concerned the question of destruction, and I think he was right to make it. If we are to respect the rights of people not convicted of any criminal offence, issues of destruction should await the resolution of the case.

[Philip Davies]

I want to press my hon. Friend on this point. Many people on remand are on remand for very short periods. The loss of their mobile phone for a day or so will not be much of a punishment at all, but they might be deterred from engaging in any other criminal activity within the prison, if they know that their phone will be destroyed.

[Mr Buckland]

I hear what my hon. Friend says; I do not agree with him. I think the mischief is cured by the confiscation of the telephone. At the same time, we can balance that with respect for the rights of people who are acquitted of the offence they are facing.

I do not want to detain the House unduly. I hope that I have illustrated two legitimate questions that should be answered during the passage of the Bill, which I fully support, and I am grateful for the House’s indulgence.

Oral Answers to Questions

Robert Buckland Excerpts

Tuesday 3rd July 2012 Commons Chamber

[Mr Blunt]

Yes.

[Mr Robert Buckland (South Swindon) (Con)]

The failure to bring criminal prosecutions against those who have wrought such havoc to our banking system continues to cause huge public concern. Has my right hon. and learned Friend had any discussions with ministerial colleagues about how the proposed fresh investigations will be properly supported and resourced?

[Mr Kenneth Clarke]

On reading what I have of these cases, it seems to me quite plain that possible crimes are involved in what has been described. I am glad to say that the Serious Fraud Office is, I am assured, investigating. It is properly a matter for it and not in the end a matter for Ministers whether anybody is prosecuted for anything. I think we are all reassured to know that this is being inquired into, as anybody guilty of crime must be brought to justice.

Defamation Bill

Robert Buckland Excerpts

Tuesday 12th June 2012 Commons Chamber

[Mr Clarke]

I agree. I stress that it will be for the courts to determine what amounts to serious harm in an individual case, but I agree that someone whose business is damaged—albeit by a local allegation in a local newspaper—could almost certainly demonstrate serious harm. Any citizen against whom a serious and unfounded allegation of personal misconduct is made will probably be able to demonstrate that it has done serious harm to his reputation. The hurdle is raised a little, but I trust that it will not bar any plaintiff who has had serious problems as a result of a publication.

I was moving on to deal with the defences. Clauses 2 and 3 replace the common law defences of justification and fair comment with new statutory defences of truth and honest opinion. These are areas where the law has become increasingly complicated and technical over the years. In our opinion, the revised approach should simplify the situation, ensuring that the defences are available without so many endless and costly disputes over detail and interpretation. Alongside the new defences of truth and honest opinion, we are introducing, for the first time, a statutory defence of responsible publication in the public interest. This is based on the common law defence that has been developed by the courts in recent years following the case of Reynolds v. Times Newspapers but expressed in clear and flexible terms. It provides a defence where the defendant can show that the allegedly defamatory statement is, or forms part of, a statement on a matter of public interest, and that he or she acted responsibly in publishing it.

The relevant clause identifies specific factors to which the court may have regard in deciding whether the defendant has acted responsibly, based on current case law. However, we do not want those to be interpreted as a checklist or a set of hurdles for defendants to overcome, and the list is intended to set out factors in an illustrative, non-exhaustive way so courts will retain flexibility. It is not our intention to change the Reynolds defence; we have sought to set it out in statutory form in a way that we hope will help.

[Mr Robert Buckland (South Swindon) (Con)]

I am listening carefully to what the Lord Chancellor is saying about the dangers of the non-exhaustive list setting a series of hurdles. Does he not think that a catch-all clause allowing the courts to look at all the circumstances of the case would cure that potential mischief?

[Mr Clarke]

As I said, we are not intending to fetter, as it were, the discretion of the court in the end to apply reasonable judgment to the particular circumstances of a particular case; this is meant to be illustrative. This is work that we have set out, and we will reflect on my hon. Friend’s point as we continue to scrutinise the legislation as it goes through this House.

Finally in this area of defences, we are extending the circumstances in which absolute and qualified privilege can be asserted. The defence of privilege is based on the principle that there are certain situations in which it is for the public benefit that a person should be able to speak or write freely, and that this should override or qualify the protection normally given by the law to reputation.

Clause 7 extends privilege to summaries of material as well as to reports and copies; broadens the international scope of the circumstances in which privilege applies; and clarifies that qualified privilege extends to reports of scientific and academic conferences and of press conferences. In a further important step forward for the protection of scientists and academics, clause 6 creates a defence of qualified privilege for peer-reviewed material in scientific and academic journals, as recommended by the Joint Committee on the draft Bill. The clause defines key elements of the peer-review process to ensure that publications with appropriate procedures will now be given the protection of this new defence.

All told then, I would argue to the House that the Bill is introducing sensible reform to protect freedom of expression by raising the bar for a claim and bolstering the defences available, with specific benefit for scientists and journalists. But we want to go further in some of the main areas of public concern, in particular by addressing libel tourism, which has sometimes caused damage to this country’s reputation around the world, as we are normally regarded as advocates of freedom of expression, in particular. Relatively few foreign libel cases ultimately end up in a British courtroom, but I am concerned by the use of threatened proceedings by wealthy foreigners and public figures to stifle investigation and reporting. Clause 9 addresses the issue in a measured and proportionate way, although it has had to be drafted to avoid any conflict with European law. It clarifies that a court will not hear a case against someone who is not domiciled in the UK or an EU member state unless satisfied that England and Wales is clearly the most appropriate place to bring an action. It should help ensure that powerful interests around the world will not so easily be able to use British justice to gag their critics —a move that I hope will be welcomed across the House.

--- Later in debate ---

[Mr Robert Buckland (South Swindon) (Con)]

It is a pleasure to take part in this Second Reading debate about a Bill that has been long and careful in the making, and I pay particular tribute to the pre-legislative scrutiny process that has been used. There is an increasing tendency in this Parliament to use that mechanism, which I welcome, because it gives not just parliamentarians but interested members of the public and experts outside the House ample opportunity to have the fullest input into the development of important legislation.

In Public Bill Committees there are already sessions that allow for the giving and taking of evidence, but, admirable though they are, one is always left feeling that more time was needed, far too many things were left unsaid, far too many questions were left unasked and unanswered, and, however good the sessions were, more were needed.

The pre-legislative process allows for valuable time to be allocated, for more evidence to be submitted, for freer debate and discussion and for the Government to listen maturely, to reflect and to respond. It avoids the striking of false positions, the entrenchment of unsustainable positions and the to-ing and fro-ing that is sadly all too often associated with the passage of Bills through this House.

In this Session a number of other pieces of legislation will be subject to the procedure, and that is good and welcome, particularly in areas where consensus and a striking degree of cross-party co-operation, understanding and support are needed. In this area, where we are talking about the reputation of the individual versus the right to freedom of expression, it is essential that this House speaks as much as possible with one voice.

[Amber Rudd (Hastings and Rye) (Con)]

Does my hon. Friend agree that it is testament to the need for this Bill, and to the way in which it has been handled and prepared, that there is so much unity among Members and among parties on the need to do something and to address the issue urgently?

[Mr Buckland]

Very much so. As I said, the Bill has been long in the making—some would say, generations. The right hon. Member for Tooting (Sadiq Khan) reminded us that in the 160 years since the Common Law Procedure Act 1852 there have been only two subsequent pieces of legislation—pieces of legislation that have dealt with the law in a piecemeal way.

The Defamation Act 1996, as some who were Members when the measure was passed will recall, dealt with a particular context and a particular case. A former Member, Neil Hamilton, found that his case was stayed by the court because it was felt that the defendant newspaper could not prepare its defence adequately without infringing parliamentary privilege. That resulted in section 13 of the 1996 Act, allowing a Member of either this House or the other place to waive for the purposes of the defamation proceedings

“the protection of any enactment or rule of law which prevents proceedings in Parliament being impeached or questioned in any court or place”—

parliamentary privilege.

At the time, I was a little uncertain about the passage of that provision, which seemed to represent yet another piecemeal approach to a fundamental right that has been exercised ever since article 9 of the Bill of Rights of 1689—parliamentary privilege. Another Committee of this House has considered parliamentary privilege carefully, and there may well be legislation to deal with it. In doing so, I would urge the utmost caution. Reform and refinement of such a basic and well-understood principle could lead to further confusion and potential court interference. It is essential that all of us in this place and in the House of Lords understand that changes to parliamentary privilege, whether in the context of the 1996 Act or subsequent proposals, could lead to the erosion of that privilege, which would be a regrettable and undesirable outcome.

In my view, section 13 of the Act should be repealed, and we should consider instead a more general right of waiver that not only would apply to defamation but to a range of court actions in which Members of Parliament or Members of the House of Lords may become involved. This Bill could have taken that step, but I quite understand Ministers’ desire to get on with the job in hand and to avoid being potentially sidetracked by questions of privilege that may have to be returned to.

[Michael Ellis]

Does my hon. Friend recognise that Her Majesty’s Government intend to work on a Green Paper that will deal in a lot more detail with parliamentary privilege, and that by separating the issue and giving it the advanced status of its own Green Paper and potentially a separate Bill, they are showing that they are giving it a high priority?

[Mr Buckland]

My hon. Friend is right to outline, in a better way than I could, the intended progress of any reform to the law of privilege. However, I reiterate that we tamper with article 9 at our peril and should listen carefully to those who urge caution.

I raise this issue to illustrate the piecemeal way in which defamation law has been dealt with. We have let the courts, in their wisdom, develop common law, and that has happened in what many of us would regard as an acceptable way that reflects evolving views about reputational damage but is fundamentally not as directly accountable to the people we serve as it should be. That is why introducing primary legislation of this nature is the right and just thing to do. It shows the people of this country that Parliament is prepared to take a lead on an important issue such as defamation.

[Neil Carmichael]

My hon. Friend is making a good point in connection with the whole basis of the Bill. One of the dangers that we can enter into is to talk too much about technologies and systems, which will move on, change and develop as we go along. I hope he agrees that we need not necessarily just common law but primary legislation that will give us a sound legal footing to deal with defamation.

[Mr Buckland]

My hon. Friend is right. However, we must always bear in mind the ineluctable fact that primary legislation, however useful it is, can often be seen as setting in stone, or setting in a particular moment in time, the law as it then stood. Because of the inevitable pressures in this place of the other priorities that we have to deal with, there is a danger that legislation does not keep pace with change and is not as flexible as judge-led law.

[Helen Goodman]

Surely the point made by the hon. Member for Stroud (Neil Carmichael) was that if we have the right architecture in the legislation, we can change the secondary legislation in a more flexible way as technology changes. I think that we can deal with technological development and that we should not be so nervous about it.

[Mr Buckland]

There is always tension in the minds of parliamentarians between wanting, quite naturally, to see as much detail as possible in primary legislation, because not only is that an accountable and democratic way of dealing with things, but it allows for full and fair debate, and the need to allow for flexibility through the use of secondary legislation. The hon. Lady’s point is an important one. Often in this place, in our enthusiasm to make primary legislation as prescriptive as possible, we fall foul of the danger that I highlighted just before her intervention.

The evolution of the law of reputational damage is interesting to note. In the 19th century, damage to reputation was seen as a very significant factor indeed. Reputation was seen as part of the property of an individual and something to be highly valued. It is interesting to note that at that time, when the privacy of the rich and powerful was easily protected—much more easily than it is now—the only windows into the private lives of the rich and influential were trials for libel. The evidence would be heard, sometimes by a shocked jury. Notable members of society would be brought to court to give evidence. The Prince of Wales gave evidence in a trial in the 1890s during the famous baccarat scandal. That arose from a libel action.

We have a somewhat romanticised view of libel, which stems to a large degree from the Oscar Wilde trials. It is important to remember that the first trial involving Oscar Wilde was the prosecution for criminal libel of the Marquess of Queensberry. It was not a civil case, but a criminal one. Through what would be regarded, on any objective analysis, as the clever advocacy of Sir Edward Carson, that criminal prosecution failed and, famously, the tables were turned on Oscar Wilde. We all have views about the injustice that was meted out upon that gifted poet and author. His words echo down the years and are a reproach to a generation that sought to criminalise the acts that were the subject of those trials. Those trials have contributed to the romance that surrounds libel trials and the involvement of juries.

That is why, although the interventions on my right hon. and learned Friend the Lord Chancellor about the right to trial by jury were interesting, I believe that clause 11 is an overdue measure that reflects the reality of the modern situation when it comes to civil libel trials in England and Wales.

[Amber Rudd]

What can my hon. Friend say to reassure us that the noble and proud tradition of trial by jury, which is held so much to heart by British people, will not be lost through this proposal?

[Mr Buckland]

I am grateful for that question. I think that we can reassure ourselves and the people whom we serve by saying the following: when the liberty of the individual and the criminal law are involved, the right to trial by jury should be preserved and enhanced. That is why I was pleased by the provision in the recently enacted Protection of Freedoms Act 2012 that rolled back restrictions on the right to trial by jury in criminal fraud trials. However, we are dealing here with the civil context. If damage to reputation is so important as to merit trial by jury, why is not physical personal injury equally worthy of it? There is a utilitarian argument that demands a system using scant resources and taking scant time, which means that we should be very cautious about extending jury trials to a whole range of civil cases.

I believe that the removal of libel cases from the right to trial by jury leaves us with only malicious prosecution, false imprisonment and a limited number of other civil cases in which one can argue that there is a legitimate public interest in still involving juries in making decisions about the acts or omissions of public authorities. Malicious prosecution cases could involve an act of a prosecuting authority, and we should bear in mind the power that such an authority has vis-à-vis the individual. False imprisonment cases may involve the acts of police officers or a police force in unjustly imprisoning an individual.

[Neil Carmichael]

The question of trials with juries is interesting, because it is about whether a judge is the right person to define and decide what constitutes defamation. He is likely to reach a swifter decision than in a jury process. Surely the quicker that cases about people’s reputation are resolved, the better.

[Mr Buckland]

My hon. Friend is right, and one has to draw a distinction between matters of law, which are always the province of a judge irrespective of whether a jury is involved, and matters of fact. The Lord Chancellor made the point that there may well be cases in which there are classic conflicts of account between individual witnesses. Such cases may require the shrewd judgment of a randomly selected jury of members of the public, who use their experience of the world and their good sense to judge whether, on the balance of probabilities, the claimant’s case is made.

[Michael Ellis]

My hon. Friend is conscious of the fact that the Bill envisages not removing the right of jury trial in defamation actions but simply lessening the presumption that jury trials will take place. It will be for the judge to decide. Does he believe that judges are likely to decide on jury trials very frequently? What criteria does he think a judge might use, or what common law does he think might evolve, for deciding on the use of jury trials?

[Mr Buckland]

The Bill is silent on that. Clause 11 merely amends the relevant parts of the Senior Courts Act 1981 and the County Courts Act 1984, which allow a trial by jury unless the trial requires prolonged examination of documents and so on. The practice could develop in secondary legislation, but I doubt whether that would be seen as an appropriate mechanism to guide judges. I rather think that it will evolve as a matter of judicial discretion. I would be cautious about supporting secondary legislation that sought to prescribe the circumstances in which a jury trial ought to be ordered.

The point that my hon. Friend the Member for Stroud (Neil Carmichael) made about streamlining procedures is important. As the Joint Committee on the draft Bill pointed out, whether or not there are jury trials, there has to be proper reference to alternative dispute resolution methods such as mediation and neutral evaluation by a third party—all the mechanisms that serve to deliver justice and the redress of grievance not just to the millionaire in his Belgravia townhouse but to Mrs Trellis of 22 Acacia grove, who does not have the means to spend a lot of money on expensive litigation but who has been the victim of a wrong that needs to be corrected.

[Paul Farrelly]

Does the hon. Gentleman agree that because we need speed, which reduces costs, and because we need streamlined procedures and better case management, it would be useful to adopt the draft changes to the civil procedure rules that the Joint Committee recommended? They would give effect to the changes proposed in the Bill and could be amended further as the Bill progresses.

[Mr Buckland]

Such changes to the civil procedure rules could, and I think should, take place. They would not affect the passage of this primary legislation, so they would not require amendments to the Bill, but I agree with the hon. Gentleman’s point about the need for minds to be concentrated so that the Joint Committee’s noble aspirations can be translated into reality. That point is well made and entirely relevant in the context of the Leveson process. If Leveson achieves nothing else, I want it to provide a mechanism by which the ordinary person in the street can obtain redress of grievance with the minimum cost and at the maximum speed.

Before I was slightly diverted by interventions, I was making a point about the changing context of libel. In the 19th century, the only window into the private lives of the rich and famous was often through the device of the libel trial. How the world has changed. We live in a world in which we have an open door into celebrities’ private lives for the instant gratification of millions of readers, in many cases by the choice of the celebrity concerned. For many celebrities, that is a means by which they make a living. I do not seek to make any pejorative comment about that, but it is a simple fact of modern life.

Not only does the risk to reputation continue to be important, but joined with it is intrusion into people’s private lives. The two issues are different, and I accept that privacy cases are not about correcting falsehoods, as defamation proceedings are. However, they become inextricably linked in many ways when we examine the issues that characterise the debate in both scenarios.

I was part of the Joint Committee on Privacy and Injunctions, along with the hon. Member for Newcastle-under-Lyme (Paul Farrelly) and others. We were grateful to have among our number the noble Lord Mawhinney, who chaired the Joint Committee on the draft Bill, and his input was invaluable in informing us speedily of the progress and deliberations of the latter. The outcome of the investigation by the Joint Committee on Privacy and Injunctions was somewhat less co-ordinated than that of the Joint Committee on the draft Bill. There were a number of views and a multiplicity of divisions, but at the end of the process I believe that our contribution to the debate about privacy was important. We characterised some of the issues that have been raised today.

The hon. Member for North Antrim (Ian Paisley), who is not in his place now, made remarks about changing and codifying the law. I would not go so far as to support his assertion that we need statutory regulation of the press, but I thoroughly agree with his observation that now is the time for Parliament to take a lead on codifying the law of privacy. Indeed, I put that proposal to the Joint Committee on Privacy and Injunctions at the end of its deliberations. I was not successful in persuading the majority of members of its merits, but I make no apology for returning to the subject today. I believe not only that the law of defamation should be codified, as it is in this welcome Bill, but that Parliament should take a lead and do likewise to the law of privacy. We should bring together data protection legislation and all the other areas of legislation that deal with intrusion into individuals’ private lives.

[Neil Carmichael]

I am grateful to my hon. Friend for giving way for the third or fourth time. I want to talk about an important aspect of the Bill—

[Neil Carmichael]

Thank you, Madam Deputy Speaker. I apologise. The point I was going to make—it is relevant—is that the Bill is not just about defamation and privacy, but about protecting freedom of speech. Does my hon. Friend agree that that must be considered in the debate?

[Mr Buckland]

I shall not disagree, because my hon. Friend supports my point that, in many ways, privacy and defamation are inextricably linked.

I made the point about support for codification of the law on privacy because I believe in Parliament. I come from a legal background and have spent many years dealing with cases in the courts of this land, but I believe it is incumbent on legislators to take a lead and to represent the people of this country by saying, “The law needs updating. It needs to be brought into the 21st century and it needs to reflect the reality of life.” On a daily basis, individuals—famous, infamous or obscure—find that their fundamental rights to privacy are being interfered with, intruded upon and trampled over, not just by an over-mighty press, but by individuals who use social networking tools and the internet, as we have heard.

[Amber Rudd]

Does my hon. Friend agree that the Bill will help to protect the privacy of Mrs Trellis of Acacia road, to whom he rightly referred? Does not the Bill partly cover such issues?

[Mr Buckland]

There is an element of crossover, but the Bill does not go far enough in addressing fundamental issues of privacy. Some provisions of the Human Rights Act 1998 give a nod to the law on privacy, but the Act comes to a rather inelegant conclusion by allowing freedom of expression to have a greater priority over the right to privacy. I defend to the death the freedom of expression—that is why I came to Parliament, thanks to the good grace of the people of my constituency, who have given me this opportunity—but we must get the balance right. The Act does not faithfully reflect the reality of human rights: there is no hierarchy of rights, and each right must be balanced against others. Certain rights are unqualified, but most rights have qualifications. There is no hierarchy of public rights—

[Madam Deputy Speaker (Dawn Primarolo)]

Order. This is a very long nod to human rights. Perhaps the hon. Gentleman can come back to the Bill.

[Mr Buckland]

I was trying to illustrate the point by saying that there is a fine balance to be struck between freedom of expression and the rights of individuals to protect not only their privacy, but their reputation.

It has been said that reputation is a question of taste, but it is also a question of approach. Some take a very relaxed approach to attacks on their reputation. For example, when in his old age the Duke of Wellington heard about a book that was to be published about his private life, he famously said: “Publish and be damned.” That might well have been because he realised that most of the allegations in the book were true—I can say that only because the noble duke is long gone. Some take Groucho Marxs’s attitude. To Confidential, the infamous magazine published in the US from the ’50s onwards, he wrote:

“If you don’t stop printing scandalous articles about me, I’ll be forced to cancel my subscription.”

Sometimes, however, when there is no alternative, the only reasonable response to defamatory or libellous representations is for the individual to seek legal advice and to take action. That very much depends on the individual, the circumstances and the context. The Bill addresses, as well as primary legislation can, the nuances and the infinite range of contexts within which libel and defamation actions can be brought.

On alternative dispute resolution, to which many hon. Members have referred, no matter what we do to reform the law, the question of the cost of the legal procedure will remain. Like the Ritz, the law remains open to all, to adapt a well-worn phrase. The Jackson reforms were much criticised in the context of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, but they will not serve to change significantly access to justice in libel cases. Legal firms seeking to build their reputation will always be interested in taking the cases of well known individuals who have had their reputations besmirched, such is the way of practice.

[Guy Opperman]

Does my hon. Friend agree that the practice of libel is such that a potential claimant will be massively dissuaded from seeking to bring an action without some degree of cover for the costs they could incur? Does he also agree that the way out of that situation is to institute protective costs orders for actions brought in the public interest?

[Mr Buckland]

I am grateful to my hon. Friend for his constructive suggestion on what—I concede—is a problem. Jackson has recommended an uplift in damages to help to deal with the non-recoverability of after-the-event insurance and success fees. I accept that that will not be enough in some cases to deal with the loss to the individual that the recouping of costs and the plaintiff’s damages will mean. That is why alternatives such as the one he suggests have great merit. I would like to think that we will see a more sophisticated development, such as a before-the-event insurance market. Perhaps a person who becomes a celebrity or goes into public life could gain an advantage by taking out before-the-event insurance, but I accept that we are in the early days of such a market, if one can exist.

On the public interest defence in clause 4, I support the understandable reluctance of the Joint Committee on the draft Bill and the Government to seek to define the term in law. The Joint Committee on Privacy and Injunctions found that what “public interest” means evolves from year to year and from case to case. It is far better to leave the term to be defined according to the case in which it is invoked.

The question of determining whether the defendant has acted responsibly in the public interest is dealt with in the Bill; the Bill suggests that the court may have regard to a non-exhaustive list of factors. My right hon. and learned Friend the Lord Chancellor dealt with that in his speech, but in my intervention on him, I highlighted the danger of such a list becoming a set of hurdles over which defendants would have to jump before establishing their defence. My view is that if the Bill contained a catch-all consideration—namely, a provision that allowed the court to consider all the circumstances of the case—the danger of that non-exhaustive list becoming a set of hoops through which defendants had to jump would be adequately addressed. With that caveat, therefore, I support clause 4.

Much has been said about the internet. I do not need to rehearse those arguments, so I will turn instead to clause 12, an interesting clause that gives the courts the power to order publication of the summary of a judgment made in a defamation case. That is a welcome change, which is a reflection of the public interest not only in allowing damages to be claimed by people whose reputations have been unjustifiably besmirched, but in obtaining proper restitution for that individual—in other words, in restoring, as much as possible, the reputation of the person aggrieved to its previous state. However—coming back to dear old Mrs Trellis—let us face it: that is what the object of the law should be all about. It is not just a question of damages; sometimes—I would say in most cases—damages should be a secondary consideration. It is all about trying to restore the wronged reputation of the individual concerned, although in privacy cases, once the secret has been brought out into the public domain, it is impossible to put the cat back into the bag, so to speak. Nevertheless, the question of intrusion remains and, in that context, there can be proper redress of grievance for the individual concerned. Once again, the two issues come together in an inevitable way.

This Bill is the product of much careful consideration. It is the better for it, which is why I am happy to support it on Second Reading. I commend the Bill to the House.

--- Later in debate ---

[Stephen Phillips]

I should like to say that I am grateful to my hon. Friend, who has put me on the spot with a point that I do not think that the Government would like. I suspect that whatever legislation is in place, we will need to look at it from time to time to ensure that it correctly balances the right to free speech with the right to reputation in the light of the technological developments that will take place over time. How the Minister and his colleagues will want to do that, and whether it will be dealt with in the winding-up speech, is a matter for them. However, I see the force of the point that has been made by my hon. Friend and, indeed, other Members.

[Mr Buckland]

Might not a possible solution be for the Justice Committee to conduct some post-legislative scrutiny of the Act a couple of years down the line, as is currently happening with the Freedom of Information Act?

[Stephen Phillips]

What a fine idea. I am sure that my hon. Friend the Minister will be able to tell us whether that is the Government’s preferred solution—as, given the quality of my hon. Friend’s intervention, it may well be.

In 1996, Larry Page and Sergey Brin were still at Stanford university. They had met only the previous year, and Google was still two years away from being incorporated. For what it is worth, Mark Zuckerberg was 12 years old at the time. If any Members foresaw what the internet would do for the instantaneous communications that we now have, they were entirely silent in the debates that led to what became the Defamation Act 1996. I know that, because I have read the reports of those debates. We, however, are in a different position. We have the benefit of subsequent events, and—with the possible exception of my right hon. Friend the Member for Louth and Horncastle (Sir Peter Tapsell)—not one of us can now contemplate life without the technologies on which we rely for our daily existence. Perhaps it was ever thus with technological change, but, by the same token, change brings specific issues that must be addressed.

Chief among those issues here has been the ability not only to create defamatory material that is instantly accessible to millions of people with internet access, but to disseminate that material anonymously. Even this week, the common law has demonstrated the flexibility of existing mechanisms to assist those who are determined to protect themselves, but, as always, that has come at a cost. I believe that when Parliament intervenes in an area such as that addressed by the Bill, we must do what we can to help, and the Bill does that—although, like my hon. Friend the Member for Mid Bedfordshire (Nadine Dorries), I have not the slightest doubt that it is another area that we will have little option but to address again, certainly within the next decade, as user-driven change in internet and other technological architectures develops further.

The scale of the problems—the need to balance free speech against other competing rights, the need to address the costs associated with striking that balance correctly, and the need to deal with technological and other changes—is vast. In those circumstances it might well be thought that ambitious reform was called for, but, again, that sort of understandable reaction must be balanced with the caution that good legislators enjoy, and which has been the hallmark of the House from time immemorial. Too frequently, ambitious legislative change reveals itself not only to have unintended consequences, but to stultify the development of appropriate solutions by the courts to problems of which no one has yet dreamt. That point was made earlier by my hon. Friend the Member for South Swindon. Incremental change has been the hallmark of good legislation in this and other areas, and the Bill is rightly no exception. The Government are to be commended on that.

I want to deal with three specific aspects of the Bill: the provisions that seek to codify existing substantive law in a manner that is readily accessible and understandable to the layman, the provisions that deal with the defences for which free speech calls in a modern society, and the provisions that seek to bring reputational protection within the reach of those who have not the funds with which to instruct expensive lawyers.

As for the first—the attempted codification of parts of the existing common law as it has now developed, particularly in recent years—my colleagues who sat on the Joint Committee with me are aware that I and others, notably Lord Morris, had our reservations. The difficulty Parliament faces in this area is that our attempts to reduce the nuances of the common law to writing are on occasion ineffectual. The Marine Insurance Act 1906 was a codifying Act prepared by Sir Mackenzie Dalzell Chalmers when he was permanent under secretary at the Home Office. He was subsequently chief justice of Gibraltar. As the draftsman of both the Bills of Exchange Act 1882 and the Sale of Goods Act 1893, if anyone could achieve the codification of four centuries of common law, he was the man. Yet subsequent events tell us that he got things wrong, such as the test in relation to loss, which now differs between marine and non-marine insurance. Can he be criticised? No, but the experience teaches a valuable lesson: that codification is not always successful in reflecting either the existing law or its nuances or flexibility.

Attempted codification can, through drafting error, lead to uncertainty, change and stultification, all of which can lead to increased costs for litigants. However, I am persuaded that it is desirable in clauses 1 and 2—as well as in part of clause 3—only for two reasons: first, because the codification is modest in scope; and, secondly, because, as Lord Mawhinney, who chaired our proceedings, persuaded those of us who were sceptical about either the necessity or desirability of pursuing this path, if the protection of the law of defamation is to be made more accessible, it must be written down as simply as possible in a manner that most can understand. That point was made well by the right hon. Member for Tottenham. While I had reservations, therefore, I am now persuaded that these clauses have their rightful place in the Bill. Better and more erudite minds than mine will have addressed the question of whether or not they do what they are supposed to do. If they do not, it will not be for want of trying.

The second area I wish to discuss is the defences with which the Bill deals. One clause at least—clause 3—involves a slight amendment to the existing defence of fair or, as the Supreme Court seems to have taken upon itself to rename it, honest comment. We are now renaming “honest opinion”. It is my understanding that the change is minor—I would be grateful for confirmation of that from the Minister—and merely removes the necessity for it to be shown that the matter on which the opinion is expressed is in the public interest. If so, there seems to have been little justification for any such limitation in the first place. Any such limitation between public interest and private interest is unjustifiable and unprincipled.

That step is therefore to be welcomed, as is the new defence—in so far as it is a new defence—based upon, or clarifying, Reynolds v. Times Newspapers: responsible publication on a matter of public interest. That does much to clarify what would no doubt have been clarified by the common law in due course, but at vast expense and inconvenience to litigants and those defamed.

The third area on which I want to touch is those parts of the Bill that I perceive to be addressing substantive matters that affect cost and accessibility. Among those is the removal of the presumption of jury trial. In no other significant area of civil litigation has jury trial been retained, at least in practical terms, and the evidence that the Committee received appears to demonstrate that, even in the field of defamation, trials have increasingly been conducted before judges alone. However, the threat of jury trial—with the processes it involves and the reluctance of judges to intervene early to remove matters from a jury, with the consequent prolongation of litigation and considerable increase in cost—has long exacerbated the chilling effects of the existing law, and many of us are only just persuaded that it should even be possible to retain a discretion to permit a jury in a libel or slander case.

--- Later in debate ---

[Guy Opperman]

I am delighted to say that to a certain extent such advice does exist. There more developed citizens advice bureaux and victim support organisations are able to provide such assistance, as are the Bar Pro Bono Unit and the Free Representation Unit. I have represented individuals in libel cases as part of the Bar Pro Bono Unit, and there will certainly continue to be such accessibility. However, my hon. Friend identifies one of the fundamental flaws in the Bill, which I hope will be remedied in Committee.

The Jackson report that was instituted by reason of the Legal Aid, Sentencing and Punishing of Offenders Act 2012, which we passed on 1 May, ensured that there is no ability to recover the cost of insurance for the litigation. The consequence of that is that individuals who wish to bring such litigation against a newspaper would have to risk a great deal were they unsuccessful. There is a way round that. The way forward is for the courts is to develop what they have developed in other branches of the civil litigation arena—a protective costs order. In the case of Compton v. Wiltshire primary care trust, the protective costs order was extended to a local group of individuals to make the case a matter of public interest. This means that were someone to wish to bring a civil action against a public organisation or a newspaper and it was in the public interest for them to do so, they would be protected were they to lose the case because the very fact of bringing that action constituted something that was in the public interest. I suggest that we will see that development in libel and defamation law. As my hon. Friend the Member for Northampton North said, common law will develop to accommodate the fact that, sadly, there is no legal aid and precious little to assist the individual litigant in taking a case against the newspaper or public institution that has defamed them.

The nature of this Bill is such that there is general agreement that we need to move forward and have a better understanding of such access to justice, which is patently not there at the moment. I should make a declaration as a trained mediator and as someone who was at the Bar and has earned a moderate living as a barrister. [Interruption.] I was not a very good libel lawyer, I hasten to add. The shadow Minister just said that I used to practice extensively at the Bar in this field, but I assure him that I was of no quality whatsoever in libel cases; I got far too irate. A greater use of mediation at an early stage can only assist. Looking at the various problems that arise in libel, the mediation and the apology at the early stages are most important, not necessarily the damages that are ultimately sought, but we get so enmeshed in the process of litigation that we end up with a case that has mushroomed way beyond the reality of the loss entailed. I therefore welcome the extra mediation and alternative dispute resolution processes that the Bill will bring about.

I warn that there can be a sad tendency to have a great deal of discussion at the early stages of the litigation process. I have witnessed that in many a case. One has to clear hurdles at the outset to prove that the nature of one’s case gets over a certain threshold and it would be not unheard of for a newspaper or a public organisation with deep pockets suddenly to attack the individual and say, “We don’t accept the judge’s finding that you’ve got over this hurdle—we shall appeal this.”

I represented Mrs Compton in the case of Compton v. Wiltshire primary care trust, which concerned the health services in the constituency of my hon. Friend the Member for South Swindon (Mr Buckland). There were 14 separate pieces of litigation involving the primary care trust that went all the way to the House of Lords on seven separate occasions. Her original hurdle was overcome and tested all the way to the House of Lords. These early hurdles must have a finite end. If one has a preliminary hurdle to get over in a defamation case, as is now set by the Bill, there should be one single right of appeal and then the matter moves on. Without that sort of process, an individual may find themselves enmeshed in ever-deeper litigation before the case has even got off the ground. By that stage, years have passed, their reputation is gone, and their ability to respond to the libel or defamation has totally dissipated. I warn the Minister that there needs to be strict guidance on the maintenance of the alternative dispute resolution process as it goes through.

I am glad that my hon. Friend the Member for South Swindon has returned to his seat. I sat through his lengthy and impressive speech, in which he said, if I remember correctly, “The law, like the Ritz, is always open.”

[Mr Buckland]

I said that it is open to all.