Queen’s Speech
Baroness Hayter of Kentish Town Excerpts(11 years, 1 month ago)
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Baroness Hayter of Kentish Town (Lab)
My Lords, for the two Bills on which I will lead for the Opposition —on charities and to create a public service ombudsman —I have nothing but praise, albeit we may want to strengthen them just a little. Had the Government’s programme stopped there, I would have had no complaint. However, while respecting the fact that the electorate chose a Conservative Government, there will be some unforeseen circumstances, which we will seek to mitigate. We will in particular seek to protect the rights of others in the way outlined by my noble and learned friend Lord Falconer.
But there are other important issues, such as the extension of the right to buy to housing association tenants. We will examine the rights of this carefully. The housing Bill will force councils to sell their most expensive—in other words, their best—housing when vacant, and to use the proceeds to compensate housing associations for the loss of their stock, as well as to build new affordable homes in the same area. However, where housing and land costs are astronomically high, such as in Kentish Town in Camden, this will accelerate the emptying out of London’s poor from inner London areas which started in the last Parliament—and, incidentally, where sold-off council properties are back on the market at £800,000, or at three-times affordable rents. Kentish Town did not vote Tory on 7 May, but will have to live with the consequences of other people’s choices. Indeed, this Government could seriously damage Camden. The housing Bill could force it to sell a third of its social housing and to undermine its community investment programme of building 1,400 new homes. Land is simply not available there at affordable prices to rebuild unit for unit sold.
The National Housing Federation has said that extending the right to buy to housing association tenants, funded by selling off high-value council homes, will deepen the current housing crisis. We look forward to the maiden speech tomorrow of the noble Lord, Lord Kerslake, on this very issue. Housing associations fear that the proposals will undermine their wider aim: to provide affordable tenancies for the less well-off or low-rent provision for the homeless, as is recognised in the charities and social investment Bill that the Government published last week. It could even undermine therapeutic communities or sheltered accommodation.
It has also been said that the proposals will undermine the ability of housing associations to build affordable homes in the future. A number of issues have been raised with regard to the legality of interfering in this way with the assets of what are after all independent charities. All such criticisms we will address during the passage of the Bill. The last Parliament was bad enough for charities, gagging them with the lobbying Bill while completely failing to deal with corporate lobbying. Now we see the state interfering in charities’ provision, allocation and funding of housing.
Meanwhile, the state is interfering with independent trade unions, forcing them, as did the Government’s predecessors in the 19th and 20th centuries, to change their rules, deliberately so as to undermine Labour Party funding. A similar provision in the 1927 trade union Act resulted in a fall in the number of political levy payers from 3.5 million to 2 million and a drop in party income of 20%. The equivalent this time could be much more. It is what the Independent reported as a “shamelessly partisan” attack on Labour. This is simply to deal with payments of 5p or 10p a week by trade unionists. For that, we will have to set up the operation for them to be able to opt in. All this will happen while companies will be free to make large political donations without any reference to their employees, their customers or their shareholders. We have seen how much the Tories benefit from such largesse. In the last Parliament, they raised £108 million, with £28 million from hedge funds alone. David Cameron used to say, and I approved, that he wanted to end the “big donor culture”. But with this gracious Speech, we have seen the truth: we will continue to allow big donors to his party but clamp down on those tiny weekly contributions made by millions of trade unions to our party.
As my noble friend Lord Dubs said, the votes for life Bill will end the 15-year rule, allowing millions of Britons overseas, including tax exiles, to vote in UK elections, but perhaps the Tories’ real aim is to allow those people to donate to UK political parties, meaning more rich pickings from non-taxpaying expats.
There is also in the gracious Speech the threat to the independence of the BBC, which stands for free speech and professional, unafraid journalism here and across the world, by the possible undermining of its funding model or finances.
This sounds like an illiberal, politically motivated Government interfering with the legitimate activities of unions, charities and housing associations while extending potential Tory funding from expats. It is not a one-nation gracious Speech; it is not a programme based on rights, on fairness, on equality or on any sort of social justice. It is partisan and mean-minded. It cuts billions from benefits to needy families while ensuring that the Tories’ own income is secure. This is not the gracious Speech that we anticipated.
Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) (Advocacy Exceptions) Order 2014
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The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, the order before the Committee today amends Schedule 1 to the LASPO Act 2012 to maintain the status quo regarding the provision of legal aid for proceedings involving gang injunctions in respect of under-18s and to reflect the expansion of advocacy in special educational needs matters. It also ensures that advocacy is available for new proceedings created by the Anti-social Behaviour, Crime and Policing Act which are in the scope of the civil legal aid scheme generally by virtue of consequential amendments made by that Act to the Legal Aid, Sentencing and Punishment of Offenders Act 2012. This order does not alter means or merits and does not bring any new matters within the scope of legal aid.
Before setting out further details about this order and why the Government are taking this action, I will briefly explain some background. Anti-social behaviour orders on application and anti-social behaviour injunctions will be replaced with “Injunctions” under Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014. Legal aid for advocacy in respect of applications for anti-social behaviour orders under the Crime and Disorder Act 1998 is provided under the criminal legal aid scheme currently, but the Anti-social Behaviour, Crime and Policing Act 2014 brings all Part 1 injunctions within scope of the civil legal aid scheme. For under-18s, Part 1 injunctions, along with parenting orders made in respect of a youth subject to such an injunction, will be heard in a youth court and the route of appeal from the youth court is to the Crown Court.
Schedule 1 to LASPO sets out the matters on which civil legal aid is available. This is subject to the exclusions at Parts 2 and 3 of the schedule which detail the availability of advocacy. Because of the general exclusion of advocacy except for specified proceedings, it is necessary to add the relevant proceedings to the exceptions in Part 3 of Schedule 1, which will expand the scope of civil legal aid to include advocacy in these proceedings.
Section 18 of the Crime and Courts Act 2013 will amend Part 4 of the Police and Crime Act in relation to gang-related injunctions which concern persons under the age of 18 being heard in the youth court and not in the county court, which is where they are heard currently. As I previously mentioned, the appeal route from the youth court will be to the Crown Court. In order to enable civil legal aid for advocacy in such proceedings to remain available, it is necessary to add them to the list of exceptions for advocacy in the magistrates’ and Crown Courts in Part 3 of Schedule 1 to LASPO to reflect the change in venue for these proceedings.
Part 1 injunctions under the Anti-social Behaviour, crime and Policing Act are intended to address the same kinds of behaviour which are currently dealt with by anti- social behaviour orders and anti-social behaviour injunctions for which legal aid, including advocacy, is currently available. It is therefore reasonable that legal aid for the new injunctions, including related parenting orders, should be made available. That intention is achieved in part by the consequential amendment made to Schedule 1 to LASPO by the Anti-social Behaviour, crime and Policing Act.
However, the amendment made by that Act was partially defective as it failed to take account of an amendment to paragraph 7 of Part 3 of Schedule 1 to LASPO, which had already been made by the Crime and Courts Act 2013 (Family Court: Consequential Provision) Order 2014. It also did not include provision for advocacy in the Crown Court, which is necessary with regard to appeals. The order therefore provides for advocacy in both the magistrates’ court and the Crown Court in relation to injunctions under Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014 and related parenting orders.
The order also seeks to maintain the availability of civil legal aid for under-18s in respect of advocacy related to injunctions to prevent gang-related violence. This is necessary in order to reflect the change of venue for such injunctions made by the Crime and Courts Act from the county court to the youth court, which is, as the Committee will know, a specialist type of magistrates’ court.
I now turn to advocacy in special educational needs matters. Part 3 of the Children and Families Act 2014 came into force on 1 September. Paragraph 96 of Schedule 3 to that Act makes amendments to paragraph 2 of Part 1 of Schedule 1 to LASPO in order to allow for the funding of civil legal aid services in special educational needs matters. However, as I have previously mentioned, Parts 2 and 3 of Schedule 1 allow for advocacy only in certain circumstances and the amendments made by the Children and Families Act do not allow for the availability of legal aid for advocacy in special educational needs proceedings in the Upper Tribunal.
The Government consider it appropriate that legal aid should be available for advocacy in the new special educational needs matters under the Children and Families Act before the Upper Tribunal. Advocacy is already available for similar proceedings arising under Part 4 of the Education Act 1996 and the Government therefore consider that it should be available for these proceedings. It follows that in order for advocacy for such matters to be in scope, an order under Section 9 of LASPO is required to amend Part 3 of Schedule 1.
With that background, I turn to the reason for the order before us today. The injunction under Part 1 will replace anti-social behaviour injunctions and anti-social behaviour orders. The new injunctions under Part 1 will combine the provisions of both previous orders. The order must be made to ensure that legal aid for advocacy is available for injunctions under Part 1 and related parenting orders.
Proceedings relating to gang injunctions have been moved from the County Court to the youth court due, as I said, to the consequential amendment made by Section 18 of the 2013 Act. Although it is yet to be commenced, in the interests of providing for advocacy in the youth court for such proceedings and in the Crown Court for related appeals, we must make appropriate provision in the order. In special educational needs matters, the Government consider it appropriate that legal aid should be available for advocacy in those proceedings.
In summary, in order to achieve the policy intention that I described, it is necessary to make an order specifying that advocacy for such proceedings is in scope of the civil legal aid scheme set out in LASPO. That is achieved by the order before the Committee today. I hope that noble Lords will welcome the order. It makes relatively minor but none the less important changes to the civil legal aid scheme which complement the wider changes made by the Anti-Social Behaviour, Crime and Policing Act 2014, the Crime and Courts Act 2013 and the Children and Families Act 2014. I therefore commend this draft order to the Committee and I beg to move.
Baroness Hayter of Kentish Town (Lab)
My Lords, I thank the Minister for moving and explaining the order. It is always rather worrying when one reads in a background note that, as became apparent in the words the Minister used today, an order that had gone through Parliament was defective. It is hard to know whether that was because the original LASPO Act was so badly thought out that it trickled down to the implementing measures, or because the Ministry of Justice had cut its staff to the bone and was asking too much or simply because it was careless. However, whatever the reason, with regard to this part of the order, will the Minister tell the Committee how many cases have had to be delayed as a result of the defective order or, more worryingly, how many have gone ahead without legal aid being available? Perhaps the legal aid should be used to draft rather better SIs in future.
I hope that the order will be passed today and go through the House and be implemented fairly rapidly because, as the Minister anticipated, we welcome its content. It will ensure that certain young people, particularly those with special educational needs or disability, and people involved in parenting orders will be able to be properly represented at magistrates’ and county courts and in the Upper Tribunal, thanks to civil legal aid being available.
I am sure that the Minister will know that we remain deeply concerned about the types of cases and the number of people affected by having to represent themselves in hearings because of the absence of legal aid. Apart from that policy decision by the Government, it is regrettable that under the Government’s LASPO Act nothing qualifies for legal aid unless it is made an exception. It is a very negative way of describing something. As the evidence today shows, it is rather short-sighted because it means that even quite administrative, de minimis or, in the words of the Minister, minor changes to legal aid, such as these, require affirmative statutory instruments. That does not seem the best way of ensuring that human rights are safeguarded in all our courts. The content today is to be welcomed, but some of the procedures and effects are areas for concern.
Lord Faulks
I am grateful to the noble Baroness for her comments on this. Clearly, I do not accept all that she says about the LASPO Act, which, in the Government’s view, was a necessary correction to reflect the amount of money that was being spent on legal aid. Some difficult choices had to be made, and of course the noble Baroness will remember that on page 5 of the Labour Party manifesto there was an undertaking to make savings in legal aid.
As the noble Baroness quite rightly said, there was an error in the drafting. These things happen. I do not know precisely who is to blame, but I assure her and the Committee that policy and legal teams within the Ministry of Justice are working together closely to put in place clear procedures to monitor all planned changes to legal aid in primary and secondary legislation to prevent any future possibility of conflicting amendments.
As to the noble Baroness’s question regarding how many cases have been affected by this, I am told that the answer is none. New cases in the youth court are possible only after Section 18 of the Crime and Courts Act 2013 is commenced. Current cases are in the county court, and legal aid is directly provided for such proceedings. I understand why the noble Baroness asks that question, but I am able to reassure her on that.
Following from that comes the question of why not very many gang injunctions have been issued as yet. It is a matter for local partners to consider the best way to prevent gang violence and support young people. These gang injunctions are relatively new. We know that local partners regard them as a useful tool, and there is more information and communication to ensure that they are appropriately and properly used. They have become an important, although not oppressive, part of the equipment to deal with the scourge of anti-social behaviour.
Therefore, I hope that I can assure the noble Baroness that this is a necessary change. It will regularise the position and ensure that legal aid is maintained as appropriate. There was an unfortunate slip. Fortunately, however, it has not resulted in any injustice. In those circumstances, I ask that the matter should proceed. I suggest that this is an appropriate amendment and that the special educational needs matters are uncontroversial.
Compensation (Claims Management Services) (Amendment) Regulations 2015
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The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, the Legal Ombudsman provides a route of redress for consumers where they have complaints about the service they receive from regulated legal service providers. There is no charge to consumers for bringing complaints with costs being met by the regulated businesses that fall within its jurisdiction.
Section 161 of the Legal Services Act 2007, once commenced, will extend the remit of the Legal Ombudsman to enable it also to deal with complaints about claims management companies regulated under the Compensation Act 2006. I know that noble Lords will welcome the Legal Ombudsman being able to deal with these complaints. The claims management sector has acquired a reputation for being somewhat unscrupulous as a result of a number of companies engaging in poor business practices. The Legal Ombudsman will provide a new avenue of redress for consumers of regulated claims management companies and will assist the Claims Management Regulator in driving out poor standards and practices in the market. The Legal Ombudsman has a greater range of redress powers, including the potential for awards of compensation which are not currently available.
The fees order enables the Lord Chancellor to impose fees on regulated claims management companies to recoup the costs of complaints handling by the Legal Ombudsman. It sets out the fees payable by regulated claims management companies for this purpose. These fees will be charged on a sliding scale based on the relevant turnover of the regulated claims management company. This will enable the Government to achieve full cost recovery without putting a disproportionate burden on small and medium-sized businesses. The Government will keep the fee structure under review and will consider making changes when more information is available on complaints volumes and the types of complaints that are being considered by the Legal Ombudsman. If this order is approved, we will commence Section 161. It is intended that the ombudsman will commence this new work on 28 January next year, subject to parliamentary agreement.
The amendments to the Compensation (Claims Management Services) Regulations 2006 make the current regulations compatible with the requirements of the Legal Services Act 2007. In order to enable the handling of complaints about claims management companies by the Legal Ombudsman certain changes must be made to the powers of the Claims Management Regulator. These include the removal of the regulator’s power to award redress, the removal of the power to review how a claims management company has dealt with a consumer’s complaint and amendment of the power to issue directions to a claims management company. The amendment regulations also allow for information sharing between the regulator and the Legal Ombudsman in specified circumstances, something that is particularly important in ensuring a robust regulatory regime.
In conclusion, it is right that the Legal Ombudsman’s costs relating to regulated claims management complaints are met by the claims sector in the same way as the costs relating to legal complaints are met by that sector. This fees order will achieve this. The amendment regulations make the relevant claims management regulations compatible with the Legal Services Act and in so doing allow for claims management complaints handling by the Legal Ombudsman. I commend the order.
Baroness Hayter of Kentish Town (Lab)
My Lords, I thank the Minister for introducing these two orders, which, not surprisingly, we warmly welcome. They will allow complaints against CMOs to be taken to the Legal Ombudsman and will enable LeO to raise the necessary money to fund that. My only complaint, for which I gather I cannot get redress, is that it has taken rather a long time. It was actually August 2012 when this rather excellent policy decision was taken, and it was announced by the then Parliamentary Under-Secretary at the MoJ, Jonathan Djanogly. However, as the Minister said, it will not actually come into effect until 2015.
However, the Minister might not know that I have long form on this one. The initial delay after the policy was stated was, of course, not his department’s fault, but the fault of the Treasury, which raised umpteen issues about raising a levy to enable the cost to be met for the work that LeO did. It was therefore in my name that we tabled an amendment to the Financial Services (Banking Reform) Bill in order to implement that. It was an effective intervention by his predecessor, the noble Lord, Lord McNally, together with the noble Lord, Lord Newby that managed to finally unbundle all of this. That enabled the Government to produce the correct amendment, which appeared in the names of the noble Lord, Lord Deighton, and myself. That is why I am so happy that this is finally here today. It is a shame that it has taken so long: even that amendment was in December last year, so it has taken another 12 months for it come here. Given the role of the noble Lords, Lord McNally and Lord Newby, in this, perhaps we should call it the McNally/Newby amendment. It will be important for complaints about those companies, so we wish it well and wish LeO all haste and good work in taking on these complaints.
Lord Faulks
I am grateful for the noble Baroness’s comments. As she says, she clearly has form in this area and has made a contribution to the development of the approach to this issue. In fact, the existing arrangements allow for certain remedies that could refund fees and order that the work be redone if feasible and direct that an apology be made. However, this gives a much greater power to the consumer and it seems to us—and I pay tribute, as she does, to the noble Lords, Lord McNally and Lord Newby, in assisting in this—that it should be financed by those claims management companies and that the complaints are now properly directed to the Legal Ombudsman, who should be able to deal with them in the most effective way possible. I suggest that, while this new route is obviously a little bit late, it is nevertheless the right answer.
Legal Services Act 2007 (Chartered Institute of Legal Executives) (Modification of Functions) Order 2014
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The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I shall also speak to the draft Legal Services Act 2007 (The Institute of Chartered Accountants in England and Wales) (Modification of Functions) Order 2014, the draft Legal Services Act 2007 (the Chartered Institute of Patent Attorneys and the Institute of Trade Mark Attorneys) (Modification of Functions) Order 2014 and the draft Referral Fees (Regulators and Regulated Persons) Regulations 2014.
The first order—for CILEx, the Chartered Institute of Legal Executives—is made under Section 69 of the 2007 Act and modifies the functions of CILEx. CILEx is currently an approved regulator under the Legal Services Act 2007 for the following reserved legal activities: probate activities, the exercise of a right of audience, reserved instrument activities, the administration of oaths and the conduct of litigation. If made, this order will enable CILEx to operate more effectively by modifying its powers to make regulatory arrangements.
Specifically, the order will enable CILEx to make compensation arrangements as defined in the 2007 Act and allow it to make rules authorising it to establish and maintain a compensation fund, requiring CILEx-authorised entities to contribute to it. The compensation fund will protect clients of CILEx-authorised entities who suffer loss in the event of dishonesty or a failure to account.
In addition, this order modifies the provisions of Schedule 14 to the 2007 Act so that the intervention powers there are available to CILEx in its capacity as an approved regulator. For example, these powers would enable CILEx to seek an order from the High Court to intervene into an entity, to enter its premises and seize documents or property. This power will both protect consumers and provide the public with continued assurance that there are mechanisms in place to protect and safeguard their interests.
Taken together, the increased safeguards put in place by this order will enable CILEx to authorise and regulate entities for the first time. This will enable individuals who have been assessed by CILEx as sufficiently competent to carry on one of the reserved legal activities for which CILEx is designated to set up independent businesses for that reserved legal activity. The LSB conducted a public consultation between 23 June and 21 July 2014. No responses were received. This order follows a recent order designating CILEx as an approved regulator for reserved instrument activities and probate activities, bringing the total number of reserved legal activities it can regulate to five.
The Section 69 order for the Institute of Chartered Accountants in England and Wales modifies the functions of the institute in two main ways. First, it enables the institute to make regulations or rules providing for appeals to the First-tier Tribunal against its decisions as an approved regulator and licensing authority. Secondly, and similarly to the CILEx Section 69 order, this order modifies the provisions of Schedule 14 of the 2007 Act so that they apply to the institute in its capacity as an approved regulator. This gives the institute the same intervention powers as an approved regulator that it already has automatically as a licensing authority. This order follows the two orders, made in July and August this year, designating the institute as an approved regulator and licensing authority for probate activities.
This Section 69 order, dealing with appeals and intervention powers, now comes before the House following a public consultation by the Legal Services Board. No responses were received to the consultation. The recent designation of the Institute of Chartered Accountants in England and Wales as an approved regulator and licensing authority for probate activities has been an important step. The institute’s entry to this sector will help to contribute to the growth of the legal services market and bring further innovations, leading to benefits to consumers of legal services.
The order will ensure that the institute’s decisions as both an approved regulator and a licensing authority can be appealed to the First-tier Tribunal, which will help to ensure consistency of regulation. The order will also provide the institute with the same intervention powers as an approved regulator that it already has as a licensing authority, similarly ensuring consistency of regulation.
With regard to the Section 69 order for the Chartered Institute of Patent Attorneys and the Institute of Trade Mark Attorneys, CIPA and ITMA are both approved regulators under the Legal Services Act 2007 for the following reserved legal activities: the exercise of a right of audience, the conduct of litigation, the administration of oaths and reserved instrument activities. CIPA and ITMA have applied to be designated as licensing authorities in relation to the same reserved activities for which they are approved regulators.
The order essentially does two things. First, it harmonises the approach that CIPA and ITMA take in regulating all registrants to undertake patent and trade mark work, whether they are registered bodies—that is, non-alternative business structures—or licensed bodies—that is, alternative business structures. It does this by making various provisions to ensure that the regulatory framework for CIPA and ITMA is the same whether they are acting as an approved regulator or as a licensing authority. Secondly, the order enables CIPA and ITMA to make rules or regulations providing for appeals to the First-tier Tribunal or High Court against decisions made by CIPA and ITMA as an approved regulator and, in certain circumstances, as a licensing authority.
CIPA and ITMA are not yet licensing authorities, but they applied in May 2013 to the Legal Services Board to be designated as licensing authorities in relation to the same four reserved activities for which they are already approved regulators. Following a recommendation from the LSB to the Lord Chancellor, a decision in principle to make such a designation order was made by the Parliamentary Under-Secretary of State on 5 March. The order was laid in Parliament on 20 November. The present Section 69 order modifying the functions of CIPA and ITMA comes before the House following a public consultation by the LSB. No responses were received.
The order puts in place a number of measures to harmonise the approach that CIPA and ITMA take in regulating all registrants to undertake patent and trade mark work, whether they are acting as approved regulators or, eventually, as licensing authorities. This will help to ensure consistency of regulation and will pave the way for the continued widening of the legal services market.
With regard to the CILEx referral fee ban order, the background is that on 1 April 2013 a ban was introduced on the payment and receipt of referral fees in personal injury cases by “regulated persons”. The ban was introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which defines “regulated persons” as solicitors, barristers, claims management companies and insurers. This ban was a response to the concern, highlighted in Lord Justice Jackson’s review of civil litigation costs, that referral fees in personal injury cases contribute to the high costs and volume of personal injury litigation.
As CILEx-regulated practitioners did not fall within the definition of regulated persons at that time, they were not included in those provisions. However, if made, the CILEx Section 69 order being debated here today will bring CILEx-regulated practitioners who are authorised to conduct litigation within the scope of the referral fee ban. Without formally extending the ban to them, they will be able to pay and receive referral fees. This would compromise consumer protection and would give them an unfair commercial advantage over other practitioners in the field.
This order therefore adds CILEx to the list of regulators for the purposes of the ban and specifies the group of practitioners to whom it will be applied. In so doing, it fulfils one of the major objectives of statutory regulation—namely, to protect and promote the public and consumer interest. It will also create a level playing field in relation to other regulated legal service providers.
In conclusion, these orders enable those bodies to strengthen their regulatory powers, leading to greater consistency and greater protection for consumers, and I commend them to the Committee.
Baroness Hayter of Kentish Town (Lab)
My Lords, I rise simply to welcome the first three orders which extend alternative business structures—which, of course, started under the 2007 Act. That change is gradually rolling out and is to be welcomed.
I want to say a particular word of welcome about the first order, on CILEx, because CILEx has gone through part of the process to enable legal executives to carry out reserved or regulated legal activities, which now include litigation, rights of audience, administering oaths, probate and conveyancing. As the Minister suggested, CILEx members are currently not able to set up their own businesses unless they get together with someone else who is regulated by another regulatory body such as the Law Society. In future, however, with this change, CILEx will be able to authorise independent CILEx businesses. That is good for clients. As we know, many local firms, particularly small ones, will not go to a lawyer when they have a legal problem because of the expense. This much broader provision of legal services will therefore be very good. At the moment, only about 12% of small businesses turn to a lawyer even when in difficulties. With this gradual increase in what they can do, as well as a greater availability of CILEx businesses, these specialist firms will be able to offer a service.
I want to say just one other thing. Because of the particular way in which CILEx’s members come up through the institute and become lawyers, CILEx is composed of a far broader mix of people, from a broader range of backgrounds, than is perhaps the case with the traditional lawyer. It has a much more diverse membership in terms of, for example, ethnicity, as one-third of CILEx members are from ethnic minorities; gender, as three-quarters are women; and social background—indeed, 86% did not have parents who went to university, a statistic which is quite different from that applying to some other groups. What is happening with individual lawyers will now also happen with these new businesses. They, too, will be more diverse, and represent the diverse needs of consumers. I therefore thank the Ministry of Justice for getting this through. The Minister indicated that there had not been many responses to the consultation but, as I understand it, that is basically because people were happy with the change. I think that it will be broadly welcomed.
Lord Faulks
My Lords, I am grateful for the contribution to this debate from the noble Baroness, Lady Hayter, and the noble Lord, Lord Kennedy, who I know broadly welcome all these changes by statutory instrument. I shall deal first with what the noble Baroness said about CILEx. She accurately described this as the next step in rolling out CILEx so that its increased role and activities can be used by more people. She rightly pointed out that many people will go to legal executives rather than spend more money on lawyers. There is increasing confidence in the standard of advice that they are giving. I have been to a number of events of theirs, and it is a profession that is in good health. The noble Baroness is also right to point to the range of diversity among their number. Although my figures do not precisely coincide with hers, as there were some CILEx members who chose not to provide information, I confirm that on the figures that the MoJ has, 74% of CILEx members are women and there is a higher than usual percentage of members from black and minority ethnic backgrounds—certainly not less than 16%, which is encouraging.
The noble Lord, Lord Kennedy, asked whether the Government were satisfied that CILEx had put effective and appropriate arrangements in place generally for these arrangements. He will appreciate that under the Legal Services Act 2007 the Legal Services Board was set up as a super-regulator. It was his Government who brought in that legislation, and it is not for the Government to regulate the regulator who then regulates the regulator, so we have to be satisfied that the Legal Services Board is in fact doing its job. Of course, as with all arm’s-length bodies, it is regularly reviewed.
The Ministry of Justice analysed each application made to it by the Legal Services Board before the Lord Chancellor agreed to make the specific orders that are before the Committee today. That included looking at the underlying regulatory framework. I can assure the noble Lord that that additional step was taken. The Ministry of Justice has to be satisfied with the overall framework of regulation that exists in relation to all these professions, whether it is legal executives or trade mark and patent attorneys. The Government are satisfied that effective and appropriate arrangements have been made in respect of the regulation and authorisation of CILEx members, and indeed in relation to compliance with the Legal Ombudsman, although the noble Lord did not specifically ask me about that.
The intention, by setting up the compensation fund and giving rights to intervention, is clearly to put such professionals in the same, more established position applying elsewhere and to provide additional security for consumers. That has been done, in so far as one can ever be 100% sure of these things.
Baroness Hayter of Kentish Town
Before the Minister sits down, I want to apologise: his figure was right and mine was wrong. The one-third figure refers to new CILEx students, so I got that wrong. His figure of 16% is right. However, up to one-third of new CILEx students are from black and minority ethnic groups.
Assisted Dying Bill [HL]
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Baroness Hayter of Kentish Town (Lab)
My Lords, we have heard today the views of some doctors, but we know that their views are not unanimous. Indeed, the position of the Royal College of Surgeons was decided by just 26 members of its council, not by a ballot of its members. The BMA is against, but the BMJ is in favour. The churches have helpfully supplied their views but, as we have just heard from the noble and right reverend Lord, Lord Carey, they are also not unanimous.
I say, with enormous respect, that whatever the position of medics or clergy, the decision is not for them, much as we welcome their input and advice. Medicine has let us plan our families and, mercifully, medicine has helped our coming into the world, making it much less painful for our mothers. For our departing this world, are we really to be denied the help of health medicine—as it was, for a time, denied to women in childbirth? Historically, some Christians believed, as Genesis says:
“In pain you shall bring forth children”.
Early medics thought that chloroform could complicate births, with a very respected professor, Professor Meigs, saying at the time that painful contractions during labour were,
“natural and physiological forces that the Divinity has ordained us to enjoy or to suffer”.
Luckily, Queen Victoria would have none of that and gratefully accepted chloroform for the birth of her ninth child. The rest, as they say, is history.
The lesson, of course, is that it is the patient—in this case, the dying and their families—who we should hear: those such as Grace Hall, who saw her granddad and aunt suffer, so wants people to have life-ending medicine to self-administer when they choose; Joanna Carrie, who would like to have it there for herself; Kathleen Muir, herself a devout Christian, who does not want to hear of people having to throw themselves down stairs in order to die; Don Lane, who saw his father suffer terribly; Mr Hood, whose wife Camilla died of lung cancer; Pearl Prisley still, in her words, “torn apart”, by not having helped her father,
“the strongest and bravest of men, a war hero”,
when he begged her to end his misery; and Garth Weston, haunted by memories of his mother’s final pain as she prayed each night not to have to face another day. The lesson surely for us is to listen to those voices.
Commonhold and Leasehold Reform Act 2002
Baroness Hayter of Kentish Town Excerpts(12 years, 2 months ago)
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Lord Faulks
I hope I understand the noble Lord to be referring to commonhold as one of the options that was made available by the 2002 Act. It is true that it was thought by all those involved with the legislation that there would be much greater take-up than there has in fact been in commonhold, which is popular in other parts of the world. However, the Government do not feel that it is appropriate to force people to go into commonhold arrangements. We welcome any attempt to bring it to people’s attention as an option. It is interesting that it is not taken up by any of those who write about the subject or by practitioners who should be advising their clients on whether it is appropriate. The Government stand ready to encourage it, in so far as it is appropriate for the Government to intervene in private arrangements.
Baroness Hayter of Kentish Town (Lab)
The noble Lord the Minister must surely know that there are delays occurring between an application for a hearing relating to a right to manage and the First-tier Tribunal hearing the case. There is then another delay in getting an outcome. However, when I asked a Written Question on that, the noble Lord, Lord Newby, replied that such information on timings was not available. Surely the Government need to know things like that, to know how this Act is working. Will the Minister put the research in hand so that we can have such information?
Lord Faulks
As the noble Baroness will know, the question goes across departments—that for housing and the Ministry of Justice. I do not have the details available but I will certainly ask for inquiries to be made along the lines of the question.
Assisted Suicide
Baroness Hayter of Kentish Town Excerpts(12 years, 4 months ago)
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Baroness Hayter of Kentish Town (Lab)
My Lords, this is about giving people choice in what must be the hardest decision of their life. I respect those who would not want assistance to die if they were terminally ill and in pain, but I hope that they do not prevent others having that option.
Suicide is legal, but without professional assistance we risk uncertain or painful suicide attempts, such as the throwing down the stairs that we have already heard about. If I were in that position, I would want to die with the safety and security of family or medical professionals by my side and without their being at risk of prosecution. If I want that, I want others to have that right.
The DPP’s policy has helped by indicating that assistance motivated by compassion is “unlikely” to be prosecuted. However, there is still a risk at the time of the act and an interview under caution, as we have heard. The current law is not working. About 250 Britons have travelled to Switzerland to get help, hundreds are illicitly given overdoses without any safeguards in place and countless people are helped to die by family members behind closed doors. These should not be the only options for dying people. We need assisted dying to be legalised, albeit with robust safeguards, so that the terminally ill can take control of their own ending but with society ensuring that there are strict criteria to prevent abuse.
Housing: Commonhold
Baroness Hayter of Kentish Town Excerpts(12 years, 5 months ago)
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Lord Faulks
The noble Lord is right about the degree of success. The House might like to know that only 16 commonholds have been registered in England and Wales, and the legislation came into force in 2004. None of them is particularly large. The largest, which has 30 units, is apparently a caravan site and only one with four units seems to be a conversion from leasehold.
During the passage of the Bill to which the noble Lord referred a number of increased rights were given to leaseholders, in particular of flats, to allow them to take over management of the building; to make it easier for leaseholders of flats to buy, collectively, the freehold of their building; and to allow unreasonable service charges to be reviewed by leasehold valuation tribunals. Part of the reason for the lack of take-up may be because other advantages accrued to leaseholders as a result of that legislation.
I am afraid that I am not in a position to give any of the assurances that the noble Lord required from me, but of course this is a matter that goes across different government departments and all his observations will be taken back to the Secretary of State.
Baroness Hayter of Kentish Town (Lab)
My Lords, this group of leaseholders is very lucky that it has the noble Baroness, Lady Gardner of Parkes, speaking on its behalf. But does the Minister accept that there is absolutely nothing in the Consumer Rights Bill currently going through Parliament to help this group or any other group of consumers in any meaningful way on a group issue such as this? Will he agree to try to work with BIS to strengthen that Bill to help these and other issues where a group of consumers is not getting the requirements that it wants?
Lord Faulks
The noble Baroness is no doubt right, although I cannot confirm that there is nothing in that Bill that adds to the rights of potential commonholders. The position is that, although it has been available, it simply has not been taken up by professionals who might be considered to be aware of it—solicitors or surveyors. It has not been the subject of articles in journals. There simply does not seem to be genuine enthusiasm for it. That is regrettable, but it is a fact and the Government do not believe that people should be forced to go into these arrangements if they do not want to.
Defamation Bill
Baroness Hayter of Kentish Town Excerpts(13 years, 3 months ago)
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Baroness Hayter of Kentish Town
As an amendment to Motion B, after “2B” insert “and 2C”.
“Non-natural persons performing a public function
Non-natural persons performing a public function do not have an action in defamation in relation to a statement concerning that function.”
Baroness Hayter of Kentish Town
My Lords, in moving Motion B1, I start with an extraordinarily warm welcome for government Amendment 2B. There is absolutely no doubt that, late conversion though it may have been by the Government to the arguments of our Benches and of this House, it is a most important and welcome clause. It owes much to the persuasive charms—or energy, in the words of the noble Lord, Lord Lester—of the noble Lord, Lord McNally. The McNally Bill will do us fine.
However, there are still some outstanding issues, not least the one of cost, to which the Minister has just referred. Despite his efforts, and indeed the CJC report on this which was published only last week, we have of course not received the sort of assurance that we had hoped to receive by the time this Bill was enacted, of having agreement on costs. There was clearly a lot of disagreement within the working group, and there is no clear answer in the report as to how, in the absence of CFAs following LASPO, most people will be able to either start or defend a defamation claim. Without resolution on this, the risk of substantial costs remains, which more or less makes either the taking or the defending of an action open only to the super-rich, as the Government have acknowledged.
I turn to the two issues passed by this House but overturned by the Commons, which the Government have not accepted. First, there is the right of public services to sue for defamation. Derbyshire, as the Minister has said, is really shorthand for the democratic principle that government bodies should be open to uninhibited public criticism and therefore have no right to sue for libel. I assume that arm’s-length bodies, such as the former Border Agency, English Heritage and the Health and Safety Executive, are already covered under Derbyshire. However, there is a wider and growing ring of organisations contracted or commissioned to provide public services, such as independent treatment centres, opticians, dentists and GP consortia, which are either treating or diagnosing NHS patients. There are private organisations providing care homes, school dinners, public transport, advice agencies, prison management, free schools and DWP assessments. These organisations deal directly with consumers, patients, travellers or users—call them what you will—and are spending taxpayers’ money to provide such services on behalf of the state.
Two issues arise if such private bodies can sue for libel. First, there is not a level playing field in tendering. Such organisations can criticise a local authority provider with which they are competing to provide a service completely free from the risk of being sued for libel by that local authority. However, the local authority can be stopped from speaking about a private body in competition with it for the provision of services by the receipt of a chilling letter. Secondly, consumers and users cannot comment on a service they are getting without the risk of that infamous chilling letter.
In a debate in the other place last week, Sir Peter Bottomley reported that Atos, which does disability checks for the DWP, had sent a legal letter which resulted in the closure of a forum for disabled people because of their comments on Atos’s performance. This is deeply worrying. It is quite wrong to deny users the right to discuss their experience of what is, after all, a public service paid for by taxpayers. It is this that most concerns me. Mid Staffs hospital patients and their families were able to go to the press and finally get something done, as were the Hillsborough campaigners who were aghast at the police’s actions and the coroner’s findings. For big effective monopolies, this is the only way of driving up standards or penalising poor services, as consumers cannot shop around for an alternative provider.
It is much the same for other big, albeit now private, providers of public services. Users must be free to voice their concerns. This is what Motion B1, which adds Amendment 2C, is all about. It is about uninhibited users’ criticism of their public services, whether their provider is a local authority or a private concern. In the other place, the Minister did not really disagree with the case that we made, only about whether an amendment was necessary. Worryingly—and this has been echoed by the Minister this afternoon—she said that rather than a statutory provision it would be much better for the courts to develop the Derbyshire principle as they consider appropriate and necessary in the light of individual cases. However, this runs completely counter to the whole thrust of this Bill, which has been to codify and set down in one place, rather than in umpteen legal judgments that are effectively unavailable to the layperson, the whole law on defamation, clearly accessible to all and according to the decisions of Parliament on each issue. That is what this Bill and indeed the Minister in working on it have sought to achieve. If we agree that private concerns delivering a public service should be treated as a public body with regard to libel, Parliament should so decide and should write it into law.
Lord McNally
I have no doubt that my noble friend is right. What I would prefer to do, as we have been arguing throughout this, is to leave that matter to a judge and a court, when it comes before it. Where I do think there is a relevant question—not that my noble friend’s question was not relevant, it is just that I did not want to answer it—is on the question of charities. I can confirm to my noble friend Lord Phillips that it is not our intention to catch charities. We think that it is very unlikely that a court would find that a charity was a body trading for profit. There is a clear distinction between trading for profit and simply making a profit to reinvest as part of the more general purposes of the organisation. I hope that will give comfort to my noble friend.
He was another one that was concerned about bullying, and I have just made the point about balancing. I was pleased to hear about Bill McNally, not least that he was a successful poacher.
The points made by the noble Lords, Lord Bew and Lord Lester, about Northern Ireland are worrying, and I will take up the point about whether there can be some cross-party demarche to our fellow parliamentarians in the Northern Ireland Assembly, because it would be a great pity if Northern Ireland were to be out of step on this.
I understand why I am being asked to make definitions. However, the fault lines are moving and we will have to trust the courts with this strengthened Bill for them to make the right decision in this area. I take the point made by the noble Lord, which is very valid. Although I and Parliament have made clear our desire for a direction of travel here, there is a danger that the Derbyshire principle may be eroded because of this new configuration. However, trying to put the Derbyshire principle into statute at this time is not the way forward. The common law can be trusted to develop in the right direction. As I have said previously, no law on earth can prevent a speculatively threatening letter from a solicitor.
The Bill has been the work of many hands. If a piece of legislation were to be subject to a paternity test and DNA testing, this Bill’s DNA would be far more likely to be that of my noble friend Lord Lester than me. However, I have enjoyed—I think that that is the right word—taking the Bill through with the help of many hands and some very constructive contributions. I hope that the House’s last and most constructive contribution will be to accept the Government’s amendment and reject the amendment in the name of the noble Baroness, Lady Hayter.
Baroness Hayter of Kentish Town
My Lords, I am grateful to the Minister for making reference to my noble friend Lord Browne of Ladyton, who has just talked about surrogate parentage. Perhaps we can all claim a little of that. However, the contributions of the noble Lords, Lord May of Oxford, Lord Lester of Herne Hill, Lord Bew, Lord Faulks and Lord Phillips of Sudbury, and the noble Viscount, Lord Colville, actually reflected what was going on in Committee and on Report. The Minister used the tactful words, “development of thinking”; we are therefore not going to talk about u-turns, but simply welcome the development of thinking behind the new government clause.
I thank the noble Lord, Lord Bew. It sounds as if Northern Ireland in itself is a bad example, let alone the suggestion that this House or Parliament should make our laws on the basis of something decided in that Province. No matter how important that Province is, that is not the right way to make our laws here.
As regards two further issues, the first was on whether permission should be sought by corporates before they start an action. I am sure that the noble Lord, Lord Lester of Herne Hill, made a slip of the tongue, for which he is not renowned, when he said that in order to bring an action, companies would have to show serious financial loss. Of course, that is not right with the Bill at the moment. Corporates do not have to show financial loss in order to bring an action, but only to succeed in one. That is the crux of the matter in terms of whether permission should be given before they are able to start an action.
Lord Lester of Herne Hill
I am very sorry to intervene, but Clause 1 has to be read with what we are talking about.
Baroness Hayter of Kentish Town
It was the word “bring”. What we are trying to say regarding permissions is that permission of the court should be required in order to bring that action. In a sense, the most effective speech about permissions was, of course, made not by me but by the noble Lord, Lord May of Oxford. He discussed the case of Wilmshurst, which involved four years, £300,000, a risk to patients and actually of course no serious case at the bottom of it, because what he said was true. That is what we are trying to get rid of.
To turn to the main issue of Derbyshire, in a sense this is quite a simple judgment. It is a judgment about whether the noble Lords, Lord Faulks, Lord Lester and Lord McNally, are right that we should leave it to the courts and to judges to decide on whether the Derbyshire principle should now apply to other organisations providing public services, or whether we as Parliament want to take that decision. My fear about leaving it to the courts is how on earth users—patients, Travellers, people who are receiving those public services, the disabled who go to Atos—are to know what their rights are if we have to wait for the court to develop the Derbyshire principles. How are parties going to know? Who will fund the test cases? What message does it give to users and patients, and indeed to journalists wanting to report their complaints, if they must wait to know what the outcome is?
Lord Faulks
I am very grateful to the noble Baroness for giving way. I understand her desire not to encourage unnecessary litigation, but perhaps she could help me and the House with this. Even under the amendment it will be necessary for a court to decide whether a non-natural person is performing a public function. That of itself may be the question of a judicial decision, so even her amendment is not going to preclude any involvement of the judges.
Baroness Hayter of Kentish Town
It is interesting, but performance of public function will be under either a contract or a commission given out by the DWP or the local authority. They will be able to define that, because they do not simply stand up and say, “I am now providing a hospital”. A contract will exist with what used to be a PCT and is now a GP commissioning group. There will be a contract and it can be defined in that way. If that was the only problem and the Government wanted to concede other than on that, I would happily take that. No, the offer is not coming. I would like to conclude, if possible—
Lord Lester of Herne Hill
I am very grateful. The problem is that Section 6 of the Human Rights Act talks about functions of a private or public nature. That is fact-sensitive and cannot be codified, and has not been codified by Parliament in the Human Rights Act. That is why one cannot simply brush it aside and say, “Well, now Parliament must do so”, because Parliament has not done so in the Human Rights Act and cannot do so here. It has to be left to the courts to apply the test.
Baroness Hayter of Kentish Town
Parliament can decide that the organisations contracted to do those public functions should have the same restrictions on them, whether that be FOI or anything else, as a corporate body. That can be part of the contract. In a sense, it is a simple issue, and I mean this with absolute respect. I know that lawyers much prefer that these issues are decided in court. I think non-lawyers prefer it to be clear in law, and that is what we believe should happen. We do not want the Derbyshire principle to be eroded, in the words of the noble Lord, Lord Bew, by the threats continuing until a case is brought. For that reason we would like this to be in the Bill, and I would like to test—
Lord McNally
Before the noble Baroness sits down—no, she is absolutely right—and before she lures Lord May and others into her Lobby, would she confirm that what we are doing in this Bill would have significantly assisted both Simon Singh and Mr Wilmshurst? We have not left the situation as it was. We have made significant changes and built in significant protections, which should be taken into account before people decide which way to vote.
Baroness Hayter of Kentish Town
If they read my article, they would see that it says that this Bill has gone a long way towards what we want and it is only a shame that it is not perfect. As somebody who likes perfection, I am going to ask the House if, particularly on the first amendment, we should ensure that organisations carrying out a public service should not have the right to sue for libel.
Defamation Bill
Baroness Hayter of Kentish Town Excerpts(13 years, 5 months ago)
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“(3A) Where a complaint is received by an operator under subsection (3), the operator must publish on their website a notice of complaint alongside the relevant statement and, if the operator fails to do so within seven days of notice of the complaint, the operator will only be entitled to rely on the standard defences available to a primary publisher, if sued for defamation.”
Baroness Hayter of Kentish Town
My Lords, this amendment simply asks that where a properly constituted complaint is received, the website operator must post a notice alongside the allegedly defamatory material within seven days, signifying that it is being challenged. Should the website operator fail to do so, he or she would forfeit their particular defence under this clause, although they could still rely on the standard defences available to the primary publisher.
The amendment arises from a recommendation of the Joint Committee on the draft Bill, in response to which the Government seemed to cite only “issues of practicality”. In Committee, the Minister said that internet organisations,
“identified significant practical and technical difficulties with the proposal relating to the posting of a notice of complaint alongside defamatory material”.
He did, however, have the good grace to add that noble Lords may be saying,
“‘Well, they would say that’”.—[Official Report, 15/1/13; col. GC192.],
although he did not quite add, “wouldn’t they?”. However, when we met with Yahoo, it did not see a problem with our proposal. If it is so easy for an operator to post a comment, it should be no more difficult for it to add a rider simply stating that it is being challenged as defamatory by the person concerned.
Within this group we very much welcome government Amendment 17, which the Minister tabled and will no doubt shortly move. The aim of Clause 5 is simply to ensure that a claimant can find out from the web operator the name and contact details of the person who posted the comment so that they can sort it out between themselves. Provided that they do this, the operator has the defence that the author is the person to be sued. The exception for malice would cover where the operator in some way connived or encouraged the trouncing of someone’s reputation. I take this opportunity to congratulate the noble Lord, Lord Phillips, on his work in Committee, which I think led to this provision.
For the purposes of time, we did not speak to the amendment just before the dinner break but we were similarly concerned that that might detract from the centrality of this clause, which is to allow the operator to stand back and let the two primary parties resolve the dispute between them. Therefore, although we very much welcomed parts of that amendment, which incorporated the idea of a code, we hope that the operator will wash their hands of the matter unless and until the court finds the defamation proved, when the operator will have to take down the defamation or, assuming that the Government accept our amendment, they will have to put up a note reflecting the fact that there has been a challenge.
I hope very much that the Minister will put the excuse of practicalities to one side and accept Amendment 11. Certainly, we have received no lobbying from any operator arguing against it. It would contribute to dealing with these matters openly, as well as speedily. I beg to move.
Lord Allan of Hallam
My Lords, in speaking to Amendment 11, I declare an interest in that my day job is working for Facebook—a company that operates a website.
I think that there are some challenges around this proposal. In Grand Committee, in response to amendments proposed by the noble Baroness and her colleagues, we discussed the variety of web services and websites that exist today, and that is where I think there may be a challenge. There are indeed a number of websites that would be amenable to the posting of a notice and where that would be quite straightforward. However, when we consider the vast scope of speech that may exist across the internet, it is clear that we are dealing with a wide variety of services.
The intention behind Clause 5—and it is one that I support—is to make sure that we maximise the opportunities for people to speak freely. There may be cases where we need to interfere but we do not want to overly restrict the opportunities to speak freely and, as we discussed in the previous debate, the intention behind the clause is to ensure that a defence is widely available to such services.
My concern is that, while Amendment 11 would work perfectly well for a number of web services—I suspect the larger, more mature and more sophisticated could implement a system of posting notices in a relatively straightforward manner—there is a whole host of web services of varying shapes and sizes for which this would present a barrier. That would effectively mean that those services would lose the defence—a defence which I think we agreed in a previous debate is important to sustain the notion of free speech.
I understand the noble Baroness’s intention behind the amendment and I imagine that, as a matter of good practice, operators should post such notices where it is reasonable for them to do so. Indeed, Wikipedia has implemented a good practice system so that when content is contested, people are able to discuss it. That kind of good practice is reasonable but I think that restricting the scope of the defence only to services that are able to do that goes further than is sensible if we are to maintain a broad ecosystem of services in which a citizen of the United Kingdom can speak freely without excessive interference from people bringing complaints.
The only other point that I would note from an operator perspective is that every system that is put in place is abused. My noble friend Lord Phillips of Sudbury has talked about the interests of the “little man” or individual who wishes to make a complaint of defamation. That is absolutely right. However, the experience of web service operators is that some people will try to use any system that you put in place for their own purposes, and I can immediately see the scope for that when I look at this amendment. If you can guarantee that a notice will be published on a website simply by filing a complaint, I can see huge scope for it to be used by those who wish to be aggressive towards people who post content on the internet that they do not like, irrespective of whether there is any kind of substantive defamation claim. Given that the individual filing the complaint faces no penalty in this regime, a complaint can be found groundless but there will be no comeback on the individual who filed it. It would effectively create an avenue for that person to have their content posted alongside that which they do not like. I can certainly imagine that there would be significant instances when it was used in that manner. For those reasons, Amendment 11 would not be helpful to fulfilling the intention of Clause 5.
Lord Ahmad of Wimbledon
My Lords, again I thank all noble Lords who took part in the debate. I will turn first to government Amendment 17 in the name of my noble friend Lord McNally. I shall speak also to Amendment 11 in this group.
Amendment 17 provides for the defence under Clause 5 to be defeated if the claimant shows that the website operator has acted with malice in relation to the posting of the statement concerned. We tabled this amendment in response to the concern raised in Committee by my noble friend Lord Phillips of Sudbury that situations might arise in which a website operator acts maliciously, for example by inciting the poster to make the posting or otherwise colluding with him. While we consider that these situations are unlikely to be common, on reflection we agreed that in circumstances where a website operator acts maliciously it is right that the defence should be defeated. I thank my noble friend for bringing this issue to the fore.
Amendment 11 was also tabled in Committee. It would require a website operator who wished to rely on the Clause 5 defence to publish a notice of complaint alongside the material complained of within seven days of receipt of the complaint. The amendment also provides that if the website operator fails to post a notice within the set period, they will forfeit this defence and will be able to rely solely on the standard defences available to a primary publisher.
The basis for this amendment is a recommendation of the Joint Committee on the Bill that website operators should attach notices to online material when complaints are received. The Government’s position on this proposal was first set out in our response to the Joint Committee’s report. We repeated our position during the passage of the Bill in this House and the other place. The issue is one of practicality. Ministry of Justice officials received representations from internet organisations following publication of the Joint Committee’s report, highlighting the practical and technical difficulties with the proposal relating to the posting of a notice of complaint alongside defamatory material.
I will go through some obvious concerns that were raised, which may underline the practical issues. First, the point was raised that complained-about content might be embedded in a number of different sites, making it unclear who should be responsible for attaching the notice, where it should be placed and how it could be transferred across to other sites on which the material might subsequently appear. Again, as I said in Committee, I fully appreciate that the argument presents itself as one that it is in the interests of internet organisations.
In Committee we heard various arguments on both sides. My noble friend Lord Allan of Hallam highlighted practical issues from his own experience in the field. The noble Earl, Lord Erroll, talked about his daughter’s experience as a graphic designer for websites, and of the complexities of an operator attaching additional content without going back to the original programmer. I also acknowledge fully that my noble friend Lord Lucas expressed the view that it was far from impossible for website operators to attach such notices.
However, I will repeat on the Floor of the House what I said in Committee. The Government’s concerns around the practicality of this proposal have been clear from the publication of our response to the Joint Committee report almost a year ago. In that time nobody has presented to us any persuasive evidence to suggest that those concerns are not warranted.
On the issues raised by my noble friends Lord Allan and Lord Phillips about regulation, perhaps I may come back to them in writing to clarify the position. I have made a note of the suggestions that have been made.
I have listened, as ever, to all of the noble Baroness’s contributions and I am sure that she will say that our position has not changed since Committee stage, which I accept. However, we are where we are on this proposal. I repeat that no one has come to us to present a counterargument. Certainly if they have come forward, their arguments have not been of a persuasive nature. For those reasons, the Government cannot support Amendment 11 and I hope that the noble Baroness will see fit to withdraw it.
Baroness Hayter of Kentish Town
I thank all noble Lords who have spoken and, obviously, particularly the noble Lord, Lord Phillips, for his support and the interesting suggestion about it being in regulations. I congratulate the Government on their consistency. If that is all they have to offer, they may wish to look further.
The amendment relates only to subsection (3). In a situation where it was not possible for the claimant to identify the person who posted the statement, the claimant has given the operator a notice of complaint and the operator failed to respond to that in accordance with regulations, we ask that a notice is posted—it could be just a little red spot—that says “challenged by”.
I am concerned that the Government have met with the internet operators and, with no one else coming forward—we did not know that the meetings were taking place and were not asked to produce extra information—that they have taken the internet operators’ view on this as the one which will guide their hands.
Lord Hunt of Chesterton
In today’s International Herald Tribune there was a long editorial about the great superiority of the European approach to dealing with privacy on the internet compared with how the American Government were dealing with their internet operators. I support the noble Baroness, Lady Hayter. Just talking to internet operators suggests that you are not agreeing with even the opinions of the New York Times.
Baroness Hayter of Kentish Town
I am always happy to have the New York Times on my side. Clearly, however, the Government value internet operators and particularly value being consistent. On that basis, I fear that I must withdraw the amendment this evening.
Baroness Hayter of Kentish Town
I cannot be briefer than that, my Lords. We also welcome the amendment. It is small and sensible, and it reflects the Government’s willingness to listen to the House. In case I do not have the time to say that on another occasion on this Bill, I would like to say that there has been a lot of listening. More should be expected of auditors and their records should be open to scrutiny, so anything which allows wider discussions of their shortcomings can only be a good thing.