United States: Foreign Policy
Debate between Lord Browne of Ladyton and Lord McNally(6 years, 4 months ago)
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Defamation Bill
Debate between Lord Browne of Ladyton and Lord McNally(11 years, 3 months ago)
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Lord Browne of Ladyton
I support of this amendment and do so by adopting the argument put forward by the noble Lord, Lord Lester of Herne Hill, which, I think, in turn adopts what I described as the compelling argument put forward by the noble and learned Lord, Lord Lloyd of Berwick, in Grand Committee on 19 December at col. GC 522. I commend the recommendation of the noble Lord, Lord Lester, to the Minister.
In rereading the debate in Grand Committee, I am reminded that he offered a very similar opportunity to the Minister on that occasion, which the Minister scorned. I think that the noble and learned Lord, Lord Lloyd of Berwick, was awaiting the letter that became the letter of 9 January 2013. I recollect that in col. GC 528 in the same debate the noble Lord, Lord Ahmad, indicated that he might be able, in the same vein as was suggested by the noble Lord, Lord Lester, to give the comfort that the noble and learned Lord was seeking. I have to say—this should not surprise anybody—that we were all, I think, persuaded by the noble and learned Lord’s argument in relation to Telnikoff and why it should not still be considered to be the law in the same circumstances. I hope that the Minister will be able to respond to the opportunity that he has on this occasion to resolve this issue once and for all.
Lord McNally
My Lords, I indeed hope that this will be resolved once and for all. If my noble friend is going to withdraw under the temptation that the noble and learned Lord, Lord Lloyd, can bring this back at Third Reading, I would rather that he tested the opinion of the House. I will try to make as clear as possible on the record the Government’s opinion on this, but I cannot start trying to rerun 20 year-old legal battles.
Clause 3 provides for the honest opinion defence to be available if three conditions are met. Amendment 5 provides that the second condition in subsection (3)— that the statement complained of indicated, whether in general or specific terms, the basis of the opinion—is met if the defendant indicates the subject matter of a letter or article appearing in a newspaper or other publication and the date when it appeared.
On the basis of our discussions with the noble and learned Lord, Lord Lloyd, on whose behalf my noble friend is speaking this evening, we understand that the core issue underlying the amendment relates to what should be taken into account in determining whether the statement complained of is one of fact or opinion. We consider that this goes to the first condition in Clause 3(2)—that the statement complained of was one of opinion—rather than to the second condition in subsection (3).
At common law, when deciding whether a statement is one of fact or opinion, the court can look at the statement only in its immediate context. So if the statement appears in a news story or in a letter to an editor, the court can look only at the particular news story or the particular letter. The intention behind Amendment 5 is to change this so that the court can also look at other documents that provide a context for the statement.
This is a difficult issue, as is evidenced by the varying judicial opinions that were expressed when this was considered by the Court of Appeal and the House of Lords some 20 years ago in the case of Telnikoff v Matusevitch, to which my noble friend has referred. However, on balance, and with the greatest respect to the noble and learned Lord, Lord Lloyd of Berwick, the Government believe that the current law is in the right place. We consider that it should be clear from the document in which the statement appears that the author is expressing an opinion, otherwise a reader cannot know that there is a judgment to be made. They must be entitled to accept as a fact something that is presented as a fact. It follows from this that we cannot accept Amendment 5. Although the Bill abolishes the common law, we can see no reason why the courts would depart from the current approach.
As I have said, a defendant who satisfies the first condition that the statement is one of opinion must also satisfy the second condition that the statement must indicate, whether in general or specific terms, the basis of the opinion. Amendment 4 would replace the word “basis” with the words “subject matter”. The provisions in the Bill reflect the test approved by the Supreme Court in Spiller v Joseph that,
“the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based”.
We consider that the word “basis” more accurately captures the essence of that test.
I hope that, on that basis, not only will the noble Lord withdraw this amendment, but that when the noble and learned Lord, Lord Lloyd of Berwick, returns to these shores and reads Hansard, he will accept that he has had a good run for his money but that this is where the Government’s view is and where it will remain.
Defamation Bill
Debate between Lord Browne of Ladyton and Lord McNally(11 years, 3 months ago)
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Lord McNally
The noble Lord will know that we recently set up a Joint Committee on Parliamentary Privilege. To a certain extent, I am flying blind but I certainly think that his point should be drawn to the attention of that committee. I am a member of the Privileges Committee of this House and I will draw his remarks to that committee’s attention as well. It is a very difficult area. As he said, we have had one or two examples of honourable Members and noble Lords pushing the envelope as regards parliamentary privilege, which is one of the reasons why the Joint Committee was set up. I believe that this is the first example of a member of the public abusing it in that way. The noble Lord’s remarks certainly should be looked at by both committees.
As regards the eagle eye of the noble Lord, Lord Phillips, and possible contradictions, perhaps I may consult the parliamentary draftsmen on whether he is right. We still have time before Third Reading to iron out any wrinkles that he or others have spotted.
On the central issue raised by the noble Lord, Lord Browne, I will try again to see whether he is any more satisfied. As he explained, the amendment is at least in part an attempt to codify the defence of innocent dissemination. We explained in Committee, and previously in the other place, the Government’s concern about a provision such as this, which requires the court, as part of an assessment on jurisdiction, to assess at least to some extent the merits of the case before it. We think that such an approach has the potential to be unnecessarily confusing.
However, I will focus my response on the substantive issue at hand here—the defence of innocent dissemination. We have acknowledged the debate that exists over the terms of Section 1 of the 1996 Act and how this compares to the common law defence. During the Committee stage the noble Lord, Lord Browne, asked me to be “more courageous” in articulating how the Government saw Section 1 and the common law interrelating. When this House was considering what became Section 1 of the 1996 Act in Committee, my noble and learned friend Lord Mackay of Clashfern, the Lord Chancellor at the time, indicated that the Act would “supersede” and “replace and modernise” the existing law. There was debate at the time as to quite what the test for innocent dissemination was and whether Section 1 properly captured it. The Government of the day took the view that it did but the debate continues.
Under Section 1, a secondary publisher is at risk of liability once it is put on notice that a statement is defamatory. It is argued that, at common law, the secondary publisher retains the innocent dissemination defence provided it honestly and reasonably believes that a defence is available in respect of that publication. Carter-Ruck on Libel and Privacy describes the Section 1 defence as generally being more generous to secondary publishers. On this issue, however, it suggests that while the position is not without doubt, the better view is that the Section 1 defence is more easily lost than innocent dissemination at common law. Gatley on Libel and Slander takes the view that it is “possible” that the statutory defence is narrower than the common law in this respect.
The Government’s view is that it is right to say that Section 1 has, in effect, superseded the common law defence of innocent dissemination. As I have tried to illustrate, the position at common law prior to the 1996 Act was not as clear as certain lobby groups would like to suggest. We could have explored the option of extending the Section 1 defence but, as with Clause 5, the Government have taken the view that the better approach is to remove the secondary publisher from the process.
We believe that the approach that we have adopted in Clause 10 will provide effective additional protection for secondary publishers such as booksellers. It is consistent with the approach that we have taken elsewhere in the Bill in that the focus is on directing the claimant towards those who are actually responsible for the defamatory material. In the unlikely event that it is not reasonably practicable to sue the author, editor or publisher, Clause 10 allows a claimant to bring an action against a secondary publisher such as a bookseller. However, nothing in the clause would then prevent that bookseller from deploying any defences that may be available to him. We believe that this is a proportionate approach that is fair to all those concerned.
I will say in addition that in my discussions and evidence regarding the point that the noble Lord, Lord Browne, made about the intimidation of booksellers, the sending of a letter on high-quality, posh paper represents a kind of bullying. I hope that this clause and what I have said will give booksellers the protection to resist that and that they can use the protections in the Bill against such intimidation. I have tried to be as candid and clear as I can to the noble Lord about our approach to this. Whether it is courageous enough, I do not know.
Lord Browne of Ladyton
My Lords, I am grateful to the Minister for engaging with the spirit of the amendment, to the noble Lord, Lord Phillips, for engaging with its detail, and to my noble friend Lord Prescott for seeking the opportunity that it provided for him to exercise another issue. I hope he is satisfied that he has raised an important and serious issue. It is to be hoped that the broader consultation and debate on privilege that the Government are undertaking will deal with that among other things. We certainly should not have a situation where, by our own actions, we defeat the law that we pass.
On this occasion, I say with respect that the Minister has engaged more with the detail of the argument than he has done before. I think that he appreciates that. He and I have been partial in our quotation of the noble and learned Lord, Lord Mackay of Clashfern, from when, as Lord Chancellor, he introduced the 1996 Defamation Bill to this House. There are other quotations from the noble and learned Lord that I could play into the debate, which might get us back to the situation that we were in not so long ago in our deliberations on Report—quotations from the same judge that could be used to support two different sides of the argument. However, I have no intention of trying to replicate that interesting Alice in Wonderland environment that lawyers can sometimes create.
The Minister has probably been more courageous on this occasion. As regards the Booksellers Association, I accept what the noble Lord, Lord Phillips, said—that this provision applies to other secondary publishers, although I might say in passing that I am not sure that his interpretation of Amendment 17 is correct. However, we will perhaps return to that. I hope that booksellers will be satisfied. I have enormous sympathy for this group of people, who are at the mercy of a collision between two others. They are—if I may say so with respect to website operators—less culpable or less engaged in that process than perhaps website operators could be. There are some website operators whose very business plan encourages them to go to the margins and sometimes beyond the limits of what is allowed without remarks being deemed defamatory. Booksellers are not in that situation. They are one of many groups of people whom we are trying to improve and clarify the law to support.
I shall go back to those whom I have been engaged with to see whether they are satisfied, but, at the very least, we should strive with this Bill to put them in the position that they were in with the defence of innocent dissemination. I think that they will be comforted by the fact that the Minister has made it clear that it was his aim with this—I might say, although it does not sound like it—very welcome provision to codify that defence among other things. They are generally very pleased with the provision but would like it to be perfect—but then would not we all? In those circumstances, I beg leave to withdraw the amendment.
Lord Browne of Ladyton
My Lords, the effect of Amendment 23 would be to disapply the Legal Aid, Sentencing and Punishment of Offenders Act in relation to defamation claims. The roots of this debate go back some time.
The roots of this debate go back some time. The Minister will be very familiar with his contribution to the debate on Legal Aid, Sentencing and Punishment of Offenders Bill on 27 March 2012, when he gave an assurance to the House on the issue of the disapplication of LASPO, as it has become known, and that in relation to defamation claims it would be dealt with in the context of the Defamation Bill. Repeatedly, our party has sought to persuade the Government that the appropriate way in which to live up the assurance given by the Minister was simply to disapply the provisions of LASPO to defamation claims in the Defamation Bill. However, there have been a number of developments. Since we last tried unsuccessfully in the Grand Committee to persuade the Minister to do that, there has been a commencement provision of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which has a saving provision in it in relation to publication and privacy proceedings, defined in the commencement order as including defamation. So far, so good. However, there is still the possibility that a further commencement order may be made at some time in the future to commence the provisions of Sections 44 and 46 of the said Act in relation to publication and privacy proceedings.
The amendment provides the Minister with the opportunity to finish speculation about that possibility for ever by, in this provision, disapplying the provisions of that Act to defamation proceedings. If he cannot do that, second best would be to have an assurance that there will be no commencement order in relation to publication and privacy proceedings and defamation at some time in future. What would reinforce the argument for that are the recommendations of the Leveson report, which specifically deal with that issue. However, since we last met in Grand Committee and since the commencement order was passed, we have had another development—the passing in this House some five or six hours ago of Amendment 1 to this Bill, which not only deals with the issue of costs for defamation but deals with early dispute resolution, introducing arbitration proceedings. That has changed the environment in which this amendment was proposed. It is almost certain now that, whatever else happens, the issue of costs in defamation actions will have to be returned to again in the context of this Bill, either to modify the amended Bill as it presently stands or to do something else. I am not suggesting anything at the moment, having successfully stayed out of that debate thus far and hoped to keep myself in that position. I am minded at this stage to treat this to some degree as a marker, recognising that this issue will have to be debated, considered and legislated on in some fashion or other before the Bill can be completed. In the mean time, as this amendment is the only vehicle that I have to make this point, I beg to move.
Lord McNally
My Lords, I think that it was at an early stage of this Bill that I made it very clear that I was concerned with the matter of costs. The noble and learned Baroness, Lady Scotland, raised that in the debate on Clause 1 today. Everybody has recognised that this has been one of the key issues that have brought our libel laws into disrepute, and editors and journalists as well as ordinary citizens have long warned about the chilling effect of the current libel regime.
Although I do not object at all to the prodding from the noble Lord, Lord Browne, I hope he knows that in this respect he is pushing at an open door. He knows that the way that we have chosen to go was to ask the Civil Justice Council to look at how the Government can introduce a costs protection regime in defamation and privacy cases. The Master of the Rolls will report back to us with its suggestions by the end of March.
In the mean time, the Government have agreed that the provisions of the LASPO Act will not apply until a costs protection regime has been implemented. As the noble Lord indicated, the commencement order for this, which was laid on 18 January, includes a definition of “publication proceedings” and the cases to which the exemption will apply when Part 2 of the Act comes into force on 1 April. I should add that the Government’s definition goes wider than that proposed by Amendment 23.
Under our proposals, defamation and privacy cases will not feature as a permanent exemption from the LASPO Act, as this amendment seeks to apply. Instead, we will ensure that costs protection is in place so that anyone who needs to have security against adverse costs receives it. This will happen later in the year. This costs protection regime will apply to defendants as well as to claimants because defamation and privacy cases can affect academics, NGOs and ordinary people just as much as they can the super-rich and big businesses. The case for costs protection is even greater in these circumstances because an individual of modest means needs the assurance that if they have a good case that they need to pursue or defend, they will be able to do so without the risk of facing unaffordable costs.
The CJC will advise on the details by Easter. When the Government have properly considered the CJC’s proposals, the Civil Procedure Rules will be amended to introduce costs protection. As I say, we hope to be able to do that later in the year, but the current CFA and ATE arrangements will continue in place until then.
I once more reiterate to the House that I understand the concerns about access to justice in these cases. That is why we have taken the action I have outlined and it is why I am confident that we will be able to bring forward fully considered proposals which will ensure a proper and effective costs protection regime. I hope that on that basis the noble Lord will be prepared to withdraw this amendment.
Lord Browne of Ladyton
My Lords, I am grateful to the Minister for the clarity of his response. I think he knows that my view is that the undertaking in relation to costs protection is part of the answer but that this is a bigger problem than just costs protection. It is my ambition that the Government will be prepared to consider the disapplication of the provisions of the LASPO Act in all respects to the other parts of the challenges of defamation costs. Those costs are at the root of the problem of access to justice, which concerns the ability of people who do not otherwise have the resource to find solicitors who are prepared to take these sorts of actions on conditional fee arrangements and other arrangements. That should be reflected in the whole structure of costs.
I understand the effect of Amendment 1 well enough to know that this issue is not dead. I believe that we will need to return to this matter in some detail to deal with the way that the Bill has now been amended. I hope that the Government will apply their mind to that as quickly as possible and that we will see some movement. I am therefore confident that this is not the last word. It may be the Government’s last word but it will not be the last word on these issues. I shall continue to try to persuade the Minister of what I believe he already agrees with, although I have no desire to speak for him.
In the light of the fact that there will be further and probably better opportunities to deal with this issue in a more holistic fashion, I beg leave to withdraw the amendment at this stage.
Defamation Bill
Debate between Lord Browne of Ladyton and Lord McNally(11 years, 4 months ago)
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Lord McNally
In relation to Amendment 40, the Defamation Act 1996 gives a defence of qualified privilege to fair and accurate reports of proceedings at a general meeting of a UK public company and to copies of and extracts from various documents circulated to members of such a company.
Clause 7(7) extends this protection more widely to cover reports in relation to companies listed on recognised stock exchanges worldwide and to summaries of such material. This includes material circulated to members of a listed company which relates to the appointment, resignation, retirement or dismissal of directors of the company. The debate has reflected this. In drawing up this Bill, we have constantly challenged about where we are drawing the line and whether it is the right place to draw the line.
Amendment 40 would in addition extend qualified privilege to material relating to the appointment, resignation, retirement or dismissal of the company’s auditors. We do not consider that this would be appropriate. Extending privilege in this way would give protection to reports on contractual material between companies and their auditors such as issues of appointment and dismissal. We consider that this would be an inappropriate intrusion into how companies conduct their business affairs which could impact on business efficiency, and that it is preferable for the focus of Schedule 1 to continue to be on protecting fair and accurate reports of material which is publicly available.
Amendments 41 and 42 would alter the way in which the Bill extends qualified privilege—
Lord Browne of Ladyton
I am grateful to the Minister for giving away and apologise to Members of the Committee since I did not take part in the debate on this amendment. It occurred to me as he was speaking, and I draw his attention to the provisions of his own Bill, that the place where he seeks to draw the line and the restriction that he seeks to maintain may well already be overtaken by the provisions of new sub-paragraph (2)(a) which subsection (7) seeks to add to the schedule. I cannot think of any circumstances where the kind of document that the Minister is talking about in such a meeting would not be circulated to the members of the company with the authority of the board of directors of the company. That information will already be privileged as far as I can see. I may be wrong, but it seems to me that the Minister’s concern about revealing private commercial business of this nature is already overtaken by the provisions which he seeks to put in the Bill.
Lord McNally
I doubt that. We are moving the extra line to where a company has made a decision to change its auditors, which will be reported to the members of the company. There may be a number of reasons for that, but the report will be suitable for the annual general meeting, and other issues, personal or related to performance, may be covered by it. As I have said, in a number of these areas, we are drawing lines. Where there is a relationship between a company and its auditors, I just wonder whether it would be entirely conducive to good working relations between them if a reason for dismissal which was extremely damaging to the auditors was privileged in this way.
Lord Browne of Ladyton
In the interests of clarity, I am not very pleased with how I put the argument earlier. I can put it much more simply. With respect to the noble Lord, Lord Phillips of Sudbury, I think that his amendment is unnecessary. The circumstances that he envisages in this sort of environment are already covered by the provisions of the government amendment that we all support. I cannot imagine that what he seeks to allow to be reported and to attract privilege would be circulated other than with the authority of the directors to the members of the company. I think that it is unnecessary but it may be an issue that needs to be thought about. I am concerned that perhaps in telling the Committee the line that has been adopted and to hold the line at a particular point, the Minister may already have crossed that line in any event by these provisions.
Lord McNally
I will reflect on that but I am also very concerned and do not want to enter a field regarding the professional relationship between auditors—or, perhaps I may respectfully suggest, lawyers—and companies, where there is a barn door left open. I understand, as indicated by the noble Lord, Lord Browne, that the intention of the proposal is to give protection. I am willing to reflect on whether where we have drawn the line is exactly right, and I will listen to expert opinion in this Committee. As a layman, I also feel a slight tingle between the shoulder blades about where we are going in terms of the relationship of professions such as auditors and lawyers with their clients. I, too, would like advice on these matters.
Lord McNally
My Lords, it has taken me till the fourth day of this Committee to rumble the noble Lord, Lord Browne. Beneath his metropolitan, urbane and sophisticated exterior, there is a canny Scot. My absolute copper-bottomed assurances on dealing with costs are met with a clear assurance that that will not be delivered without him battering us on to deliver. Now he notices a bandwagon on county courts that was rightfully set rolling by the Committee and he immediately claims it as his own. I can see him now, ticking off in his memoirs the influences that he has had on the Bill. I hope that when he gets home tonight he will read to his wife the passage about “metropolitan, urbane and sophisticated”.
Let me be clear that defamation cases can be started in a county court at the moment, although both parties must agree to this in writing. That is the position under Practice Direction 7A to the Civil Procedure Rules, but I freely acknowledge that it may be that we should revisit those procedure rules. We will give the issues involved very careful attention, and I sincerely welcome this very useful debate and the suggestions that have been made. The Lord Chancellor already has broad powers to allocate business between the High Court and the county courts. When the noble Lord, Lord Faulks, raised the matter earlier in our proceedings, I think I mentioned that the Lord Chancellor has expressed his interest in this idea. The Lord Chancellor’s broad powers are under Section 1 of the Courts and Legal Services Act 1990. The provisions in the Crime and Courts Bill to establish a single county court, which the House has approved, will preserve this power.
I therefore assure noble Lords that we are very interested in this idea, but it does not need primary legislation to carry it forward. If we consider the use of county courts to be appropriate, the necessary procedural changes to enable that to happen can be put in place. I hope that that is a firm enough indication of direction of travel. I tore up my notes and changed them to that very positive response because of the persuasive case that the noble Lord, Lord Browne, made in opening this debate. In the mean time, I hope that he will withdraw his amendment.
Lord Browne of Ladyton
My Lords, I am grateful for the support of the noble Lords, Lord Marks of Henley-on-Thames and Lord Mawhinney, but I am not surprised by it because the amendment draws support already from the report of the Joint Committee. I am grateful also for the overt support of the noble Lord, Lord Phillips of Sudbury.
I have to thank the Minister for his flattering if somewhat inaccurate and probably libellous description of me. It is unworthy of him to suggest that I am a bandwagon-jumper in any sense. I will privately produce evidence to him that this is an issue which I have been discussing with members of the legal profession in England in various guises for some months now, because it is not entirely what he and the noble Lord, Lord Faulks, described and discussed. This very specific provision is presented in this fashion, taking advantage of the specialist Patents Court, to make another criticism that I think the Minister will have to face should he seek our shared ambition of moving these cases to the county court—that is, there are already specialist judges who do these cases, but they are in the High Court. There will be, I predict, resistance on the part of the judiciary, among others, who will say that this difficult, complicated work, which requires High Court judges, has to be kept there.
The reason why I presented the amendment in this fashion, having thought about it for some time—since long before the exchange between the noble Lord, Lord Faulks, and the Minister took place—is that I cannot think of a more complicated area of law and fact than patent law. If a specialist court at county court level, with specialist judges, works for that area of the law, then I believe it can work for defamation.
I am also told that it is in the nature of the legal profession that our very senior judges tend to have been in the profession for a period of time and retire. I am not entirely sure what further lifespan on the Bench—that is the wrong phrase—what further time on the Bench the judges in the High Court who are specialists on defamation have. Although I do not know this, the suggestion was made to me that there is a probability that they will retire, or at least that a significant number of them may, within a comparatively short time. I am not sure whether that is right but they will have to be replaced sometime, and it should not be beyond the ability of the legal profession to produce judges at county court level who have this specialism.
I am not entirely sure whether the Minister is right that the creation of a specialist court or courts, such as the patent courts, does not require primary legislation. If it does not then I am interested to know why the patent courts were created by primary legislation if we can create specialist county courts without it, but maybe the law has been changed since they were created.
Lord Browne of Ladyton
I am grateful for that intervention from the noble Lord, Lord Phillips. The best that I can say is that I am sure the Minister has heard that suggestion, and when he is deliberating further on this potential development I am sure that he will take into account.
I am reassured that this is sufficiently high among the Government’s priorities to be a possibility—that is the best that we can expect at this stage. We will continue to keep an eye on this issue while the Bill is before the House.
Lord McNally
The noble Lord asked a specific question on the powers to create a court in this area. The amendment is clearly based on the provision for the Patents Court in the Copyright, Designs and Patents Act 1988, which is being repealed as part of the provisions of the Crime and Courts Bill for establishing a single county court. It is superfluous because powers already exist to allocate jurisdiction as between county courts or, in future, in the single county court and the High Court under Section 1 of the Courts and Legal Services Act 1990.
This also gives me the opportunity to withdraw my scandalous assertion; I was just getting a bit demob happy in asserting that the noble Lord jumps on bandwagons. I stick by “metropolitan, urbane and sophisticated”, though, because I know how much trouble that will give him back home in Scotland.
Defamation Bill
Debate between Lord Browne of Ladyton and Lord McNally(11 years, 5 months ago)
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Lord McNally
First, I have already pointed out that my noble friend’s concerns about costs are being addressed in parallel with the Bill. Secondly, as we go through the Bill, we need to look at it as a cohesive whole. There are other factors and proposals that deal with some of the problems he is concerned about. It may help the Committee, and the way that I want the Committee to work—we are in the Moses Room and so we will not divide at the end of these debates—if I say that I will listen very carefully to the contributions made by Members, look at the legal advice, whether unanimous or conflicting, and take the advice of my advisers. I see that as the best and most fruitful way of using this Committee. At this stage, I am trying to give the Committee an idea of the Government’s thinking thus far and what the background is to any particular proposal. That is not the final word on these matters, although it should not be taken as an encouragement that there is a concession in the offing. As an old hand, I hope that the noble Lord, Lord Browne, approves of the balance and that it will encourage my noble friend Lord Mawhinney, although not too much. We will see how these debates unfold.
The courts already have the power under Rule 3.4 of the Civil Procedure Rules which permits them to strike out all or part of a claim where there is no reasonable ground for bringing it or they consider it to be an abuse of process. The courts are very familiar with that power, and we have no doubt that they will use it more when this is in place.
Other lawyers have said to me that this will all be tested in the courts. Indeed it will but, to answer a point made earlier by the noble Lord, Lord Mawhinney, we are trying to lift the hurdle but are consciously trying to keep the balance right in what we are doing. I hope that noble Lords will be prepared to withdraw the amendment in accordance with the procedure for Committees in this Room. To take the point made by the noble Lord, Lord Browne, once people have had a chance to look at Hansard and at our thinking on any particular area, if they want further clarification, I would be very happy to talk to them. I hope that the noble Lord will be prepared to withdraw his amendment.
Lord Browne of Ladyton
My Lords, with all respect—a phrase that lawyers use when they have no respect—to all noble Lords and noble and learned Lords and to the Minister who boasts that he is not a lawyer rather than disclaims that he is, the most important contribution to our short debate, for which I am very grateful, was by the noble Lord, Lord May of Oxford. He reminded us that we are changing the law and that will significantly affect the way in which lawyers, be they judges, barristers or solicitors, work in advising. We have set ourselves the task of trying to make the law in this area clear to affect the way in which people behave. Most of those people are not lawyers, and nor should they have to be lawyers in order to understand the limits of behaviour that will put them at risk.
With respect to the noble Lord, Lord Lester of Herne Hill, who knows that I have an enormous degree of admiration for him, his response to the intervention by the noble Lord, Lord May of Oxford, was—I hate using this phrase—technically correct, but it missed the point. The point I am trying to make in this part of the debate is that we have an opportunity to give an explanation of what we think we are achieving here. We have a perfect example in this short debate because of the very concise and helpful interventions by a number of lawyers about just how that could be confused. I am extremely grateful for that. In a simple sentence, the noble and learned Lord, Lord Scott, supported my amendments and then made well made point that was not in any way undermined by the amendment tabled by the noble Lord, Lord Mawhinney, because neither he nor I—and I support his amendment for the purpose that I explained—think that judges are incapable of doing this. We know that judges are capable of looking at this test and applying it to the facts, having listened to the legal argument. We know because—although I have never practised in England, I have had to bone up on the procedure—there is a process whereby the issues in dispute become apparent by the process of pleading and the exchange of arguments and facts. I do not think that any of us have any doubt that judges will be able to do that.
Actually, if that is the point at which decisions are made in relation to the tests that we set, we will have failed because we want these decisions to be made much earlier in the activity. We do not want people to have to go to the court at all, if that can be avoided. We do not want people to have to run off to very expensive lawyers who are capable of doing what we lawyers have just done in this debate, which is taking the advice of a former Lord Chancellor, the noble and learned Lord, Lord Mackay of Clashfern, who we all admire, which is that there is a distinction between “substantial” and “serious”. However, we had a very clear, lucid and believable explanation of why “serious” includes “substantial” from the noble Lord, Lord Faulks, using his experience and practice in the law. He was supported by the noble Lord, Lord Lester of Herne Hill, who said that this simpler, one-word test is the most appropriate way to move forward because the justice system can cope with it much better.
Lord McNally
My Lords, I may have been rather hasty in saying that the Lord Chancellor is in favour of county courts, but I am going to rush back to the MoJ and tell him to get it on the record quick because there seems to be so much support for them. It is an interesting point and again I can see the value in the recommendation as just read out by my noble friend Lord Mawhinney. Along with other matters, I will ponder on it. I did not say that we could not legislate for case management, but I want to hear the arguments. As for my noble friend’s suggestion that the Lord Chancellor might be afraid of doing this because of a fear of offending the judiciary, that is not something I have heard said about the Lord Chancellor very often in recent weeks.
Amendment 6 deals with the issue of strike-out. It would put a new strike-out power into the Bill that would require the courts to strike out actions that do not meet a certain threshold unless the interests of justice require otherwise. We do not consider that there is any need for this provision. As I indicated when responding to Amendment 3, the serious harm test in Clause 1 and the new early resolution procedures will ensure that the court has at the forefront of its mind the need to make sure that trivial and unfounded claims do not proceed. As the noble Lord, Lord Browne, anticipated, I will also argue that the courts already have a power in Rule 3.4 of the Civil Procedure Rules which permits them to strike out all or part of a claim where there are no reasonable grounds for bringing it or they consider it to be an abuse of process. The courts are very familiar with that power, and we have no doubt that they will use it more in defamation cases once the new higher threshold is in place. As I have said before, one of the aims of this Bill is to make the law simpler, so unnecessary duplication such as that proposed in this new clause would conflict with that aim.
As we have explained in the note recently provided to Peers, we intend to make changes through the Civil Procedure Rules to ensure that the key preliminary issues are determined at as early a stage in the proceedings as possible. Where the question of whether the claimant has suffered or is likely to suffer serious harm is in dispute, this is one of the main issues that the court could be asked to consider under the new procedure. On that basis, I hope that the noble Lord will agree to withdraw his amendment.
Lord Browne of Ladyton
My Lords, I shall do my best to get my words in the right order, something that I am learning to do every day in your Lordships’ House. I thank the Minister for a response which to a degree I anticipated when moving the amendment. I am grateful to the noble Lord, Lord Lester of Herne Hill, for complicating quite considerably my deliberations on this issue. I think I understood his point about the absence of the serious harm test in his Bill, and I know that the Government have prayed that in aid as part of the reason it is not necessary to provide for a strike-out procedure in this Bill. I shall also interrogate the Lugano Convention argument to see whether it has a significant effect on the existing rules of court that the Government are also praying in aid as part of their argument for why this is not necessary.
I thank the Minister for the detail set out in his response, and as I have said before, I am willing to have faith in an holistic approach in our deliberations, as it has become known. If we can have some transparency in the other elements of the holistic approach and be satisfied that they will meet our collective desire to offer the opportunity for people to reach early resolution in disputes of this kind in an affordable way and in a timescale that makes sense in relation to the issues, I am content to beg leave to withdraw my amendment. However, I am sure that we will come back to this issue later, if not in the form of an amendment, at least as part of our further debate.
Parliamentary Voting System and Constituencies Bill
Debate between Lord Browne of Ladyton and Lord McNally(13 years, 3 months ago)
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Lord McNally
Again, I hope that people read Hansard as I deliberately did not make that mistake but I understand the noble Earl’s sensitivity on this. The other point was that not only does this amendment have another of those amazing fractions in it but, in my brief, there is the Gaelic name for the Western Isles. I was happy to notice that the noble Lord, Lord Foulkes, did not try the Gaelic name, so I will be excused as well.
The noble Lord, Lord Rooker, gave me some wise advice. In fact, I was trying to encourage him to be my adviser for the rest of the Bill but he wanted to protect his amateur status as an adviser to the Government. However, he said that you should not be afraid to take decisions at the Dispatch Box. The noble Lord, Lord Lipsey, is making a very valid point: the final calculation of exclusions may not be what is in the Bill. On the other hand, they may be, because the other place will have to look at what we send back to it. This is not an empty gesture; I really would like to take this back with the intention of bringing something back on Report.
Lord Browne of Ladyton
If I have understood the effect of this amendment and the existing drafting of the Bill, an amended clause of this nature could persist in the Bill even if the other place overturned any additional constituencies that were added to the list. In fact, this amendment creates a Bill that is proofed against any changes, whether they persist or not. This is actually a better piece of drafting than the original, which had a figure in it, because it is a calculation that will persist in any set of circumstances.
Lord McNally
I hear what the noble Lord says and I hear my noble and learned friend Lord Mackay behind me saying that he is right. All that I am asking, being a simple Lancashire lad, is to take this back with a firmness for Report. If what the noble Lord is saying is absolutely right, I assure the Committee that this will go in at Report.
Parliamentary Voting System and Constituencies Bill
Debate between Lord Browne of Ladyton and Lord McNally(13 years, 5 months ago)
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Lord McNally
If the Lord Chancellor said it, he must have been speculating.
Lord Browne of Ladyton
Taking into account the very wise advice from the Minister’s noble and learned friend Lord Mackay of Clashfern, I think that the Committee is entitled to ask the noble Lord for an assurance that the Government will promote legislation according to a timetable that does not leave this country in the ridiculous position of agreeing to allow prisoners the vote when the referendum is imminent but denying them the vote in the referendum.
Lord McNally
My Lords, if there were a general election next January, prisoners would not get the vote even if the Government had announced their intentions in December. The two things are separate. The Government will announce their intentions on prisoner voting and it will be handled in the proper way with a Statement in both Houses. As I said, the usual channels will find an opportunity for a full debate and in due course legislation will probably be brought forward. However, that legislation is separate from the legislation currently before the House, which is why—
Parliamentary Voting System and Constituencies Bill
Debate between Lord Browne of Ladyton and Lord McNally(13 years, 5 months ago)
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Lord McNally
I would suggest that you have the threshold debate on Clause 8. The threshold debate that I have just quoted, however, was in fact a device of an opponent of devolution to delay devolution. Let us not pretend that a threshold does not turn every abstention into a no vote. We will have that debate under Clause 8, and an interesting debate it will be. These three amendments seek to turn it into—
Lord Browne of Ladyton
I am grateful to the Minister for giving way, and I am sorry if I exasperate him by intervening. Perhaps I may return to the point that my noble friend Lord Campbell-Savours put to him. I do so because I have experience of campaigning in referendum campaigns both in Scotland and in Wales and it is helpful to be equipped with the arguments on the doorstep. I have read every single word that has been said in these Houses of Parliament on this issue. I cannot find one explanation of why this form of voting is the best of the alternative forms of voting available. Will the Minister please point me to where I can find that qualitative assessment of this form of voting?
Lord McNally
That is for the voters to judge. If you want this reform to fail, you do all the kind of things that the Opposition are putting forward. The coalition, on the basis of the coalition agreement, has put forward a simple proposition that we believe provides for fairer voting.
I can go on like this: we have all been in the House of Commons and seen the wind-up speeches. The last time there were 23 interventions, but I am okay—we’ve got many a long time. Of course you don’t like it, but the coalition agreement is for a fairer voting system based on fairer constituencies. We are willing to take our case to the country, and we have already had the approval of the House of Commons for that.