Defamation Bill [HL]

Lord Bach Excerpts

Friday 9th July 2010 Lords Chamber

[Lord Bach]

My Lords, I shall begin what I intend, and what I am sure the House fervently desires, will be a fairly short contribution with a number of congratulations. I congratulate, first, our two maiden speakers today, my noble friend Lady Hayter of Kentish Town and the noble Lord, Lord Willis of Knaresborough, who both come to this House with high reputations. After their contributions today, we can all see why. We look forward to hearing much from them in the future. I congratulate also all those who have spoken in this debate, whether lawyers or non-lawyers. The fact that both have been importantly involved in this debate proves perhaps the point, if it needed proving, that the law of defamation affects all of us in society. Above all, congratulations are due to the noble Lord, Lord Lester. While there is clearly a consensus for reform, he has taken matters a step further and produced a serious and compelling legislative proposal in the form of the Bill before us today. For that, he deserves much more merely than the thanks and congratulations of this House; he deserves the congratulations and thanks of the country.

I commiserate with the noble Lord on being so near yet so far from being the Earl of Leicester. What a wonderful thing it would be to be Earl of what to some of us is God’s own city, but, distinguished as he is, he has not quite yet reached that high point.

I hope that it comes as no surprise that we on this side in favour of reform in this area of the law—it was specifically referred to in our recent manifesto. Therefore, it follows that we warmly welcome this Bill and its crucial role, as we see it, as instigator of legislative change—it is not the final word; the noble Lord, Lord Lester, made that absolutely plain. It is quite clear that the impetus for change has been growing and, when in government, we responded. The libel working group convened by my right honourable friend the previous Lord Chancellor produced a report alongside other significant reports and consultations such as Defamation and the Internet, the consultation entitled Controlling costs in defamation proceedings—about which I shall say a little more later—and, earlier this year, the Select Committee report from another place. All those have all strengthened the case for reform.

Some much publicised and shocking cases—the Singh case here comes to mind—have also been instrumental in bringing this campaign to the wider public’s attention. I praise the organisations Index on Censorship, Sense About Science and English PEN for their campaigning and influence.

As to the contents of the Bill, it would be foolish at this stage for any political party to commit itself in detail to a precise view on each clause. That is for a later time but, I hope, not too much later. I can say that, as a whole, the Bill strikes us as being sensible and practical in establishing a better balance between the right to personal reputation, so well argued for in this House today by my noble friend Lord Triesman, the noble and learned Lord, Lord Hoffmann, and my noble friend Lady McIntosh among many others, and the right to free speech; in other words, the balance between Articles 8 and 10.

It is clear that the time has come for the scope of the defence of public interest, as ruled on in Reynolds and Jameel, to be set out in statute. The changes in both words and meaning to the defences of “fair comment” to “honest opinion” and “justification” to “truth” seem at first sight to be reasonable and workable. Similarly, the Clause 9 provision on responsibility for publication and the Clause 10 creation of a single publication rule with discretion for the court seem useful and important proposals. We will want to look closely at Clause 11 dealing with actions for defamation brought by corporate bodies, but the Australian experience and the noble Lord’s draft clause dealing with our own law looks more than interesting.

I listened with great care to what the noble and learned Lord, Lord Woolf, had to say about Clauses 14 and 15 and the issue of trial by jury in defamation cases. We believe that on balance it is right to reverse the presumption very much for the reasons set out by the noble and learned Lord and in paragraph 151 of the Explanatory Notes. It is interesting and encouraging that that excellent organisation, Justice, agrees in principle. Of course, the interests of justice caveat is absolutely essential to that proposition.

A possible addition to the Bill arises out of a concern referred to already on a number of occasions in speeches today, raised by the organisation Mumsnet. It is concerned that the Bill as presently drafted does not provide explicit cover for hosts of third-party comments. I invite the noble Lord to consider that point, not necessarily today but as the Bill progresses.

There will obviously be a great deal of further discussion and debate before the final shape of the reforms is agreed. I do not think that anyone can argue that this is not a huge step forward. However, the Bill does not deal with—and it is not intended to deal with—what in the modern cliché could be described as the elephant in the room. That is the question of costs in defamation actions. I make no criticism of that at all, as this Bill is concerned with the substantive law and the position on costs does not need primary legislation to be changed. The briefing from the Libel Reform Campaign makes the point, already referred to by my noble friend Lady McIntosh, that fighting a libel case can cost 140 times the European average and can routinely cost £1 million. But the maximum 100 per cent success fee allowed under conditional fee agreements is just too high. Alongside the high legal costs anyway, we believe that this has had a harmful effect on freedom of expression and think that the 100 per cent figure should be lowered—and should be lowered now. The reply of the present Government to that proposition is that we should wait, perhaps until the Government legislate on Sir Rupert Jackson’s review of civil litigation costs, which has come up today. Sir Rupert has trenchant views on success fees generally, I think it is fair to say.

The Jackson report is a massive piece of work covering the whole civil law field. Given its length, importance and complexity, it was produced in a remarkably short period of time, and praise has been given to Sir Rupert for his work. However, with the greatest of respect to how government works—and I have a little experience of that—I do not believe that legislation will emerge for some considerable time yet. I would love to be proved wrong, but I fear that I will not be. It is not like waiting for Godot, who of course never came; waiting for Jackson will be rewarded eventually, I am sure—but not soon, and certainly not in the near future, and it is in the near future that we need change to the success fee regime in this field. I know that the noble Lord, Lord Lester, and other noble Lords, agree with that proposition. So I urge the Government to bring forward the necessary secondary legislation, as we did—and, I hope, with more success—as an interim though not the final solution to what is, as many noble Lords have said, a major problem.

Meanwhile, the Bill will of course pass its Second Reading and will then be subject to detailed consideration and discussion. We very much hope that that will be so. We wish it well and pledge to do our part in taking it forward. We look forward to hearing what the Minister has to say.

Immigration: Refugee and Migrant Justice

Lord Bach Excerpts

Monday 28th June 2010 Lords Chamber

[Lord McNally]

My Lords, I will take the last point first. Yes, there is bound to be a certain amount of disruption if an organisation that covers 7 per cent of cases goes into administration. However, I can assure the House that the Government are giving high priority to minimise that disruption. On whether other non-profit-making practitioners are facing difficulty, it is true that there have been complaints about the change in funding and fees, which was made by the previous Administration with an eye to saving taxpayers’ money. The change is not popular but, as my right honourable friend the Lord Chancellor said in another place, the organisations are coping. Trying to balance the good work that these organisations are doing against the taxpayers’ not-bottomless pot is difficult.

[Lord Bach]

My Lords, I am delighted that the Minister has praised those who worked for Refugee and Migrant Justice, which over a number of years did an excellent job. I am also delighted that the Legal Services Commission is ensuring that the existing clients of that organisation continue to have proper advice and representation. Are there estimates of the extra cost to the Legal Services Commission in ensuring that proper advice and representation from fresh providers?

Parliament: MP Numbers and Constituency Review

Lord Bach Excerpts

Thursday 24th June 2010 Lords Chamber

[Lord McNally]

My Lords, my noble friend will know that the sole objective of this exercise is to bring greater fairness to our electoral regulations and equal weight to votes. He is right, of course, that common sense and a sense of history and of geography will have an influence on this, and we will consider the implications for Wales and the other nations and regions of this kingdom when we come forward with our proposals.

[Lord Bach]

My Lords, the noble Lord, Lord Roberts of Llandudno, is quite right; local consultations, representations and involvement in boundary reviews, particularly this boundary review, are vital. The Liberal Democrats have always been proud of their commitment to local democracy. My question is: will this commitment survive? If promises such as the ones on VAT can so easily be shredded, how can the Minister convince the House that this commitment to local democracy will not be sacrificed in due course?

Justice: Legal Fees

Lord Bach Excerpts

Monday 21st June 2010 Lords Chamber

[Lord McNally]

My Lords, we recognise the sense of urgency, but also the complexity of the issue. As my noble friend will know, the proposals made by the previous Government ran into trouble at the other end of the building. We are looking at the Jackson report and we will treat the matter with the urgency that my noble friend said that it deserves.

[Lord Bach]

My Lords, the Minister knows that on 25 March last, this House agreed the statutory instrument that would have given effect to the intention of his noble friend Lord Lester. Will he please use his undoubted great influence in government to ensure that that intention is fulfilled and that that happens soon? It needs to. This is a bit of a scandal. We cannot wait for Jackson. We look forward to the Bill of the noble Lord, Lord Lester, in due course but this needs quick government action. Can the Minister please do his best to ensure that that happens?

[Lord McNally]

I can give assurances that we will treat the matter with all due seriousness. Whether we will follow the same path as the previous Administration is more questionable. As the noble Lord will know, Lord Justice Jackson has made a different recommendation about how to deal with this problem. We will weigh up what he has argued in his report and consider the debate in this House and other views on what the previous Administration was proposing to do.

Parliamentary Constituencies: Boundaries

Lord Bach Excerpts

Tuesday 15th June 2010 Lords Chamber

[Lord McNally]

That is our intention.

[Lord Bach]

My Lords, will the noble Lord confirm that the Conservative-Liberal coalition’s plans to reduce the size of the Commons will make it smaller than at any time since the passing of the Great Reform Act in 1832? I remind him that the population is now 61 million; in 1832 it was 17 million. Does he, as a former Member of Parliament, as he mentioned, and as a Liberal Democrat really believe that the citizens of the United Kingdom have suddenly become overrepresented in the House of Commons?

[Lord McNally]

The size of the constituency is a matter for discussion. In the present House of Commons, as is well known, it ranges from around 100,000 people to just over 20,000. There are reasons for those extremes but within them there is plenty of room for discussion of what would be a reasonable size of constituency for a Member of Parliament to look after. As well as the differences in population since 1832, there have been great changes in the communications and facilities open to Members of Parliament, and to the staff and assistance that Members of Parliament get.

Elections: Fraudulent Registration

Lord Bach Excerpts

Monday 14th June 2010 Lords Chamber

[Lord McNally]

My Lords, I share the aspirations of my noble friend, but it is fair to put the case into perspective. There were problems at 27 polling stations out of 40,000. That was a bad piece of public relations and terrible pictures went around the world, but in fact represented a very small percentage of the actual turnout.

On the powers of the Electoral Commission, I think it is true to say that it has few teeth; whether it should be given more teeth or its powers transferred elsewhere is a matter for discussion and examination after we have its report on the recent general election.

[Lord Bach]

My Lords, all sides agree that individual registration is the way forward. However, does the Minister agree that the danger is that if we move too quickly, it is a near certainty that many of our fellow citizens will drop off the register, thus adding to the 3.5 million people whom the Electoral Commission estimates are currently unregistered? Does not the Northern Ireland experience, where 10 per cent of the population immediately fell off the register following a sudden switch to individual registration, show us how careful we must be?

[Lord McNally]

My Lords, it is quite clear that the noble Lord, Lord Bach, is holding on to his old briefs. Yes, that is exactly why the implementation of the new form of registration has been taken at a measured pace. The experience in Northern Ireland was of a very large drop. However, again, we have got to get into perspective the fact that 91 or 92 per cent of people are on the electoral register. We are trying to balance the need for a clean and credible register against the points of caution the noble Lord has pointed out.

Children: Criminal Responsibility

Lord Bach Excerpts

Thursday 10th June 2010 Lords Chamber

[Lord McNally]

One of advantages of the coalition is that I am now able to look at the wide body of research that comes from all the parties. I do not think that it is a party political issue; nor is there a simple, ideological solution. However, as a complete newcomer to this issue, I think that some solutions have been found. As I have said previously, we fully intend to follow the direction of travel of the previous Administration, while of course taking into account the experience of our sister coalition party as well.

[Lord Bach]

I thank the Minister for his generous comments; the comments that we received from around the House when we were in government were not always quite so generous. Will he ensure that, when the cuts come, the important work being done in this field which he has been generous about is not cut? It is crucial that it remains, whether voluntary or statutory.

[Lord McNally]

We shall certainly do our best, because the figures also show that making short-term cuts often leads to government expenditure such that it would be cheaper to send young people to Eton than to keep them in custody.

Prisoners: Voting

Lord Bach Excerpts

Wednesday 9th June 2010 Lords Chamber

[Lord Bach]

My Lords, as the Minister will recall, this question has been asked many times in this House during the past 18 months. Before the election, the Conservative Official Opposition were strongly in favour of the steps taken by the then Government to implement the ECHR ruling. The Liberal Democrats were equally strongly against our approach, accusing the then Government of dragging their feet, so I think that the House would be grateful to know the view of the present Government. Why is there no mention of this issue in The Coalition: Our Programme for Government? Is the issue not important enough for the document, or is it just too difficult?

[Lord McNally]

That comes from a Minister who did not even get “afresh” into any of his answers over a long period of time. He will be well aware that the court slightly moved the goalposts, in its decision of 8 April on Frodl v Austria, which narrowed even further the terms under which votes could be denied to prisoners. Given that and the fact that Ministers have just come into office, I think it perfectly reasonable that we be given some time to look at this. At the meeting of the Council of Europe in September, we intend to fully update the council on our thoughts on this matter.

Queen's Speech

Lord Bach Excerpts

Thursday 27th May 2010 Lords Chamber

[Lord Bach]

My Lords, we have enjoyed a valuable debate on several critical issues that face the country—constitutional reform, crime and justice and local government. Some major themes emerged. To try to get some easy popularity, let me tell noble Lords that I intend to be fairly short in my response tonight. I am sure the House will want rather more to hear what a new Minister has to say than to hear from an ex-Minister whose voice it may have heard rather too much over the last few years.

[Noble Lords]

Never!

[Lord Bach]

That is precisely the response that I was looking for. I am tempted to sit down now but I cannot before saying how much I enjoyed, as did the House, the maiden speech of the noble Lord, Lord Bichard. He was and still is an outstanding public servant. I first knew him—I do not think he knew who I was—when he was Permanent Secretary at the Department for Education and Employment. More recently, he left his position as chairman of the Legal Services Commission at almost precisely the moment that I became the Minister for Legal Aid. I do not think that was anything other than coincidental.

I welcome the two Ministers, as have all other noble Lords on all sides, and congratulate them on their appointment. The noble Lord, Lord McNally, is in a great department of state and has inherited the best private office in Whitehall—I mean the personnel rather than the building. He is much admired in this House for his wit, his intelligence and, not least, his experience. He is much appreciated, not least by me, who, alongside the former Leader of the House, my noble friend Lady Ashton, worked very closely with the noble Lord on the Lisbon treaty Bill, ensuring that the Conservatives made no amendments to it. How well we pro-Europeans work together; how well we resisted the Conservatives who were out, as the noble Lord will well recall, to wreck the Bill. A little more seriously, I remember how politically brave the noble Lord was within the confines of his own party. I think he will know what I mean by that.

Now, less than two years on, the scene is very different and the noble Lord—I hope that he will forgive me for describing him as always having been a politician of the centre left—now sits on the government Front Bench. He is surrounded—that was certainly the case earlier this week—some might say smothered, by the Conservatives. There he is, Tories to the left of him, Tories to the right of him, into the valley of Tory scepticism, the noble Lord—I am afraid for the moment, at least—charges on. Where are his Lib-Dem colleagues? They are certainly not within his sights. They have remarkably said rather less in this debate than they normally do in debates of this kind and I think that they have looked a little glum. Does the noble Lord sometimes in the watches of the night—perhaps not yet, but soon—think to himself, “What have I and my party got ourselves into?”? Even the thought of seeing his beloved Blackpool football club playing in the premiership for at least one season cannot be a complete panacea to the noble Lord for the position in which he finds himself, or soon will find himself.

I am sure there is nothing in all this that causes any concern to the noble Baroness, Lady Neville-Jones. As a true Conservative, she knows where she stands, and that is certainly not shoulder to shoulder with the Liberal Democrats. Her job as Security Minister is, as the House recognises, a crucial one for all of us and for all the citizens outside and we wish her the very best of luck with it. She will have to face—I am sure that she has already in her few weeks in the job—the real dilemma that anyone holding that post has of reconciling security with civil liberties. We hope that she will be every bit as robust in the way in which she approaches her job as was her predecessor, my noble friend Lord West.

I wish to deal briefly with two or three major issues that have arisen. The first is security. It is central to what people expect from their Government. That is why the Labour Government’s achievement in reducing the crime rate is so important a part of our record. It was down by 36 per cent and violent crime by more. We were the first Government since World War Two to achieve this. In the past few years, there was less chance of being a victim than there had been for many years previously. There were many factors in this, a number of which came up in the debate. Of course, one of them was policing policy, about which the noble Baroness will speak in this House. Others included giving extra money and resources to poorer parts of our country. It should not be forgotten how many communities have been completely restored by the efforts that have been made, led by the previous Government. Even during the recent recession there has been up till now no evidence of an increase in acquisitive crime, as there was in the previous recessions of the 1980s and 1990s. But there is another reason too and although it is sometimes hard to say it, I will do so. The fact that more serious criminals are in prison for longer is another factor in the crime rate going down. Although we must of course look carefully at the relationship between prison sentences and community sentences—we expect the new Government to look carefully at that—there will always be people who are bad, who have to serve prison sentences. Everyone has to accept that. We look forward very much to hearing the new Government’s policy on that matter.

CCTV and DNA are two different ways in which a great deal of crime has been stopped. I say to the noble Baroness, please be careful how you approach the whole issue of DNA. This has actually caught many very serious criminals, and also some who were not prosecuted at the time but whose DNA was taken and kept for a period. It proved later to be absolutely crucial in putting them where they belong—behind bars. Perhaps I may advise the new Government to walk cautiously in that field.

As far as constitutional and House of Lords reform is concerned, the House will be pleased that I shall say very little now. The House felt that my noble friend Lord Hunt set out the Labour Opposition’s views with great clarity and power. Many noble Lords on all sides have commented; not least my noble and learned friend Lord Falconer of Thoroton. I agree with everything that he said.

We can place on one side the absurdly overhyped announcement by the Deputy Prime Minister a few weeks ago, and his lack of graciousness—if I may use that phrase—in not accepting, as the Prime Minister himself did, that the Labour Government left behind a more open society. Perhaps the Deputy Prime Minister was a little carried away by his new and perhaps unexpected position. This side will look carefully, but fairly, at proposals when they emerge in legislative form. However, any quick fixes will be resisted with all the powers available to us.

I shall give one example which may seem small, but we think that it is important—the intended outrageous, anti-local Bill to stop Norwich and Exeter becoming unitary authorities. I say from this Dispatch Box that we will fight that Bill with all the powers that we have.

On the police, it is extraordinary that the coalition is pushing through the idea of elected police commissioners in the face of practically near-universal opposition. It is even more extraordinary that the Liberal Democrats are going along with this, because they forcefully spoke out against it in the past. Very effective on this was the right honourable Chris Huhne, who only last year said:

“The last thing the British police need is an elected sheriff leading the shootout at the OK Corall. Accountability must come from a broad-based police authority elected to represent all strands of the local community”.

The Government should listen to the president of the Police Superintendents’ Association. He said:

“We, the professionals, know about policing. There is no support for directly elected Commissioners within the Police Service. Make consultation your priority; do not adopt an entrenched and predetermined position and above all do not recklessly abandon the British model of Policing that is admired and respected across the world for short term political dogma and theory”.

I implore the Government to think again and I strongly advise the Liberal Democrat part of the coalition to stand by what it stood for so recently.

The Labour Government had much to be proud of in the fields that we have discussed. It included a more open society at home—for example, gender equality, sexual orientation equality and race equality. I have to say that much of the legislation was opposed by the Conservatives. There was the dramatic fall in crime, including violent crime. From comprehensively tackling domestic violence, which has not been spoken about enough, to many constitutional changes—many made with the help of the Liberal Democrats—we have tried, not always successfully, to look for political consensus, rather than trying to ram through constitutional change, which, taken in the face of great opposition, will never succeed.

We will suspend judgment on the new Government, of course, but their opening moves have not been entirely auspicious. First, there is complete confusion about their policy on the building of prison places and on allowing prisoners the right to vote. On that, I have two questions to ask the noble Baroness. What is the Government’s policy on the prison building programme? What is the Government’s policy on prisoners’ right to vote? Secondly, the coalition has also agreed to push ahead with elected police commissioners in the face of almost universal opposition, including from the Liberal Democrats. Thirdly, the cap on non-EU immigration is to be implemented, supported by the Liberal Democrats, even though, during the recent general election, their leader was more than eloquent in his total opposition to that policy. Is that a sacrifice that the Liberal Democrats are prepared to make for a cap policy on immigration, crude as it is, which they opposed so thoroughly at the last election? Let us be fair and see what comes next.

On this side of the House, our concern is that those who will suffer will be the poor and the vulnerable, who are the people who are always the main victims of crime and are always the ones to pay when the public sector contracts too quickly or too much. This side of the House, along with many other Members all around the House, will see it as our duty and our imperative to protect those people against the ravages that seem certain to come.