Probation Service

Lord Garnier Excerpts

Wednesday 30th October 2013 Commons Chamber

[Sir Edward Garnier (Harborough) (Con)]

I join others in congratulating you on your election to the position that you now hold, Madam Deputy Speaker, and wish you all good fortune. I also congratulate the right hon. Member for Wythenshawe and Sale East (Paul Goggins). This is not the first occasion on which I have spoken immediately after him in a criminal justice debate. I have always found that what he has to say is full of good sense, and that he thinks a great deal about it beforehand.

Like the right hon. Gentleman, I have form. He has experience as—I believe—a Home Office and Northern Ireland criminal justice Minister, while I come to the debate armed, if that is the right expression, with some experience as a Crown court recorder. I sat as a recorder from 1998 until 2010, when I was appointed a Law Officer. Between 2005 and 2009, when I became shadow Attorney-General, I was the shadow justice Minister dealing with prisons and probation. I like to think that, as a consequence of both those functions, I learnt quite a bit about the way in which we run our probation and rehabilitation system.

I would be dishonest if I did not accept that a number of my constituents who work for the probation service in Leicestershire are deeply concerned about what my right hon. Friend the Lord Chancellor and his colleagues in the Ministry of Justice are proposing, but I happen to disagree with them because of what I learnt during my time as a recorder and as a shadow justice Minister. Having visited 65 of the 142 or 143 prisons and other custodial units in the country, and having also visited any number of probation offices and staff throughout England and Wales, I concluded that what we were doing extremely badly was looking after—and I mean looking after—repeat offenders. We were quite good at dealing with long-term offenders who had been given five, six, seven or eight years or life sentences, but we were hopeless at dealing with those who had been given sentences of under a year. Now, at last, my right hon. Friend is pushing forward—admittedly, not with everyone’s approval—a policy that will enable us to look after those people, and looking after them will mean that we look after the victims as well.

When I sat as a recorder, most of those whom I saw were drug-addicted, mentally ill people in the dock, and people who could not understand why they had become victims and, in many cases, repeat victims It was the pathetic story of a carousel of failure, and by the time I had become shadow Attorney-General and, eventually, Solicitor-General, I felt evangelical about it. I am not suggesting that the Lord Chancellor is anything like a saint—he and I have had our differences over all sorts of things—but at last he and I are on the same page, both of us wanting to do something practical about repeat offending.

At Pentonville prison in London, most of the probation work is entirely defensive. Those who go into the prison will probably be there for less than six months, and many are there for a matter of days or weeks. Most of them cannot read, most are on drugs, most do not have a GP, and most do not have a fixed address. The main thing that the Prison Service and the probation service can do in that place is keep them alive. After a few days or weeks, they are spat out on to the street—and what do they do in order to feed their drug habit? They commit burglaries, they commit robberies, and they become street drug dealers.

We cannot continue to permit that. While it is difficult for my constituents who are members of the National Association of Probation Officers and work extremely hard, and very well, in Leicestershire, to accept the structural changes that are required to achieve the improvements that are needed, and while I have great personal sympathy for them, I regret to say that we must do something and do it quickly, because otherwise the situation will simply progress. What people who have been given short and medium-term prison sentences need on release is a job, somewhere to stay, and a strong relationship. Ideally that strong relationship should be with a partner, but it could also be with someone who can supervise and assist them. They need to be caught, not at the gate but before the gate—before they leave prison.

My good friend Jonathan Aitken said the most terrifying and difficult thing for him when he was in prison was worrying about what was going to happen to him when he left, and he was well-off, highly educated and had all the advantages of his class and education. Just imagine what that must be like for a poor drug addict with mental illness. They have a great big cliff to face as they leave prison. Unless we have supervisors, whether in the charitable sector or the probation service, there to catch them and take them to a better life, we will just reinforce failure.

I commend my right hon. Friend, and I urge him and his fellow Ministers to press on with this. Some unedifying remarks will be directed at us by the Opposition, but I say, “Just be strong.” We have got people to save here and it takes courage: get on with it.

Transforming Legal Aid

Lord Garnier Excerpts

Thursday 5th September 2013 Commons Chamber

[Chris Grayling]

The Opposition are obviously finding all this rather difficult, because they agree that we have done the right thing. It is clear to me that the days of beer and sandwiches are long gone, because the Labour party has forgotten how a negotiation works. It works like this: you put forward proposals, you listen to a representation from the other side, you engage in a negotiation, and you reach a settlement. That is what we have done, and this is a good settlement for Britain. It enables us to meet our spending review targets, which is what the country would expect. What the Opposition do not like is the fact that we have done the right thing and arrived at the right objective—and we should remember that they never consulted on anything when they were in government.

The right hon. Member for Tooting (Sadiq Khan) asked me about this yesterday. I should point out that I took the unusual step of briefing the Opposition on our plans 24 hours rather than one hour in advance, because I recognised the importance of talking to the legal profession, whose members are personally affected by this change. I have tried to balance the interests of the House with those who are most personally and individually affected. That is why I shared the information with the right hon. Gentleman well in advance of any norm in the House.

The right hon. Gentleman referred to the concept of debates in the House. I seem to remember his telling the House that he would use a Labour Opposition day to debate this issue, because it was crucial, and the next Opposition day debate would be about legal aid. That never happened, because, in fact, the Labour party does not take this issue seriously at all.

The right hon. Gentleman mentioned magistrates courts, but, as he will know, our proposals were always about Crown courts. He asked about our discussions with the Bar Council. I have had many meetings with the Bar Council and the circuit leaders over the last few months. One of the two options that we have presented today was suggested to me by the circuit leaders and echoed by the Bar Council, namely the option of replicating more closely the way in which the Crown Prosecution Service works. I have received valuable support in relation to all this from the Attorney-General and the Solicitor-General, and I hope that those two options will provide a basis for a clear discussion about the best way forward.

The right hon. Gentleman made a point about small and medium-sized enterprises. The Law Society and I are clear about the fact that we expect these changes to lead to amalgamations in the SME sector. Legal aid services are currently delivered by 1,600 firms, many of which are very small. We will continue to allow those firms to carry out their own client work, but what is most important is that I provide access to justice—to which the right hon. Gentleman referred—in every part of the country. That requires me to be sure that I have firms that are financially sustainable in every part of the country, which is why we need the contracting mechanism that I am going to introduce. It is essential to ensure that there is access to justice, and that is a key part of these proposals.

Finally, the right hon. Gentleman mentioned judicial review. We intend to produce a consultation document on changes to judicial review imminently.

[Sir Edward Garnier (Harborough) (Con)]

As the Lord Chancellor will know, I am a member of the Bar but have no personal interest in legal aid matters.

The Lord Chancellor said that he would propose a floor below which the fees of lawyers dealing with criminal cases could not fall. Is he hopeful that his proposals will not lead to a flight of the best from the criminal Bar and the solicitors’ profession, so that we find that we are not developing the senior barristers and solicitors who go on to become Crown court judges? I am concerned about what will happen to our criminal justice system in future if we do not have the experts—the top professionals—to deal with the most difficult criminal cases.

[Chris Grayling]

We have modified the tapering arrangements so that the least that a junior barrister can be paid for a day in a Crown court trial is £225 plus VAT. We all want talent to be maintained in the Bar. One of the reasons that, together with the Law Society and the Bar Council, we invited Sir Bill Jeffrey to head a review of advocacy was our wish to secure a proper strategy for the future. We are arguably training more barristers today than there are places for them. The balance of the profession and the number of people in the criminal Bar are important issues, and I want someone who is independent, and working in partnership with the two sides of the profession, to establish the best way for advocacy to evolve, precisely so that what my hon. and learned Friend has described does not come about.

Criminal Legal Aid Reforms

Lord Garnier Excerpts

Wednesday 4th September 2013 Westminster Hall

[Karl Turner]

Absolutely. That is correct. Before coming to the House, I was at the Bar with local chambers in Hull, but before that I was a criminal solicitor. I attended police stations and the vast majority of clients I represented had no further action taken against them or were dealt with by an alternative to court, but most often no further action.

[Sir Edward Garnier (Harborough) (Con)]

That may be so, but I am sure the hon. Gentleman accepts that even those who turn out to be guilty are equally entitled to legal representation.

[Karl Turner]

Of course, but the point is to dispel the bonkers notion that old lags cost the money. The reality is that people are entitled to a defence, and I will address that later.

I want to deal briefly with the suggestion that the previous Labour Government were profligate with the system. I have spent years defending my party because many practitioners say that the previous Government cut the system to the bone, but we were careful with legal aid spend. I also want to dispel the myth that only self-interested, fat-cat lawyers are concerned about the changes. I have been lobbied by charities, constituents, colleges and trade unions that do not benefit in any way from legal aid, but want a system that continues to be fit for purpose and protects the most vulnerable at the time when they need access to justice.

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[Sir Edward Garnier (Harborough) (Con)]

I declare an interest as a member of the Bar, albeit that I do not do any criminal or legal aid work at all. Whether that makes me a fat cat, I leave to others, and my tailor, to conclude.

I congratulate the hon. Member for Kingston upon Hull East (Karl Turner) on his marathon performance this morning; he ranged over the full width of the criticisms to be made of the policy. The debate is somewhat reminiscent of the discussions we had in the first Parliament of the Tony Blair Government about the Access to Justice Act 1999, when I was in the position of the hon. Member for Hammersmith (Mr Slaughter), arguing against slashes to legal aid and actions that would deny access to justice, rather than improve it—so much changes and so much does not change. It is a pity that we have got to where we are today because there appears to be intransigence on both sides of the argument. Both sides have good points to make.

The economic constraints that the Government face are obvious and need to be dealt with—that is undeniable, and I think the hon. Member for Kingston upon Hull East is prepared to accept that. Unfortunately, the Whitehall system of government means that everyone works in a silo and nobody pays any attention to the consequences of a cut in one Department on the expenditure of another. We saw that with the closure of magistrates courts.

[Debbie Abrahams (Oldham East and Saddleworth) (Lab)]

Does the hon. and learned Gentleman not concede that estimates from his esteemed colleagues show that there will be an increase in costs? For example, a doubling in the cost of legal aid for prisoners’ cases and an increase of £1.3 million to £4.5 million for judicial reviews are additional costs that will result from the proposals.

[Sir Edward Garnier]

I rather thought that was the point I was making. If we cut one Department or one aspect of expenditure, it has a knock-on effect on another, which is why I referred to the closure of magistrates courts. It saved one Department, through the Courts Service, a certain amount of money, but impacted on the police forces that had to transport defendants from, for example, Market Harborough to Leicester, some 15 or more miles away. Such discussions are perennial. That is not to say that we should not have them, but nobody should be surprised when the Government and the Opposition stand against each other in this way.

The consultation is to be responded to at some stage in the future, whether it is tomorrow, as the hon. Member for Kingston upon Hull East suspects, or some other date, we do not know—the Minister may be able to give us a sneak preview of what is going through the mind of his Secretary of State—but I hope that it has not yet been printed, because there are plenty of things about which the Lord Chancellor needs to think before he responds. I, unlike the chairman of the Criminal Bar Association, have had the joy of meeting the Lord Chancellor: once in his office in Parliament and once in his office in the Ministry of Justice. I have always found him an entirely reasonable person to talk to. It will be interesting to see quite how much of what I invited him to consider ends up in the response to the consultation document; no doubt, in due course, we shall see.

A number of points need to be borne in mind. The first is the important constitutional point the hon. Member for Kingston upon Hull East addressed and my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) mentioned, by implication this morning and on an earlier occasion in the Backbench business debate. Access to justice and representation, particularly in cases against the Government or the authorities, are hugely important. If we deny them, we undermine an aspect of the civilised nature of this country. I am not sure that that is what the Lord Chancellor has in mind, but we are necessarily fearful that it could happen.

Reducing expenditure on prisoners’ cases as a blanket policy is of course worrying, but if we are preventing public money from being spent on people complaining about whether they have one blanket or two or whether they get this or that pornographic magazine, I do not think I will lose much sleep. There will clearly be cases involving prisoners, the downtrodden, asylum seekers and so forth for which legal aid will be essential to see that justice is done and the Government are not oppressive.

[Kate Green]

Does the hon. and learned Gentlemen agree that the cases prisoners bring are not necessarily trivial? They may be to do with a prisoner’s mental health, mothers wanting to be with their babies in mother and baby units or children and young people in custody who desperately need legal representation if, for example, they do not have access to proper programmes in their sentencing plan.

[Sir Edward Garnier]

I thank the hon. Lady for that intervention. Her point is not controversial. The argument against it, and perhaps against my points, is often made the basis that there are far too many people taking judicial review proceedings about trivial and silly cases on pornography or whatever it might be. Those cases need to be got rid of, but the cases she mentions need to be dealt with properly.

Constituents drew to my attention a problem that the changes, if they go through as advertised, will cause for not only the future representation of defendants, but the administration of our justice system. At the moment, thousands of criminal barristers, and this may be true of criminal solicitors as well, are doing the most complicated cases, particularly child abuse and sex crime cases, which can in my view be prosecuted and defended only by professionals who have experience of such cases. They are not paid huge sums of money. They are the senior juniors: 35 to 40-year-old juniors at the Bar, who are the potential QCs—silks—and Crown Court judges. If we push those people away from the profession, we will not be able to develop the judges and senior members of the profession of the future. Perhaps that consequence has not occurred to the Lord Chancellor, but I know that it will have occurred to my hon. Friend the Minister, because he is a former criminal barrister of huge thoughtfulness and experience.

If we push those people away, we are in danger of utterly changing how we deliver the criminal justice system. I have had any number of constituency members of the legal profession coming to me, and they do not live in vast houses or drive Bentleys. They live in small houses on little executive estates, drive second, third and fourth-hand cars, and send their children to state schools. They are not rich; they do a difficult job for little money. They do it because they have a vocation and because they think it is right that innocent and guilty criminal defendants alike are represented.

I will stop there because I have overrun my time by far too long. I urge the Minister to take the points that I have gently put to him with the seriousness that the constitution requires.

[Philip Davies (in the Chair)]

We have just less than 20 minutes for three or four people—I am not entirely sure how many at the moment.

Legal Aid Reform

Lord Garnier Excerpts

Thursday 27th June 2013 Commons Chamber

[Sarah Teather]

I would have been delighted to see the Justice Secretary, but I am, in fact, delighted that the Minister is present. I trust that he will listen carefully to what Members say today, and will relay it faithfully.

[Sir Edward Garnier (Harborough) (Con)]

Like the hon. Member for Kingston upon Hull East (Karl Turner), I am a member of the Bar, but unlike him I do not do any legal aid work.

Does my hon. Friend agree that although the debate is important, it would not have had to take place had the Government chosen a better way in which to find their savings? It would have been better to continue with the proposals for further privatisation of the prisons, rather than attacking the legal aid system.

[Sarah Teather]

I certainly think that there are better ways of finding savings. I hope that some Members will refer to the way in which we manage some of the services that we privatise. The way in which contracts are managed is very important. The privatisation of the interpretation and translation services, for example, appears to have led to greater delay and driven up costs.

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[Mr Llwyd]

Undoubtedly so and, as one who used to practise in a small town, I speak with a little authority. The right hon. Gentleman is absolutely right.

[Sir Edward Garnier]

It goes further than the point made by the right hon. Member for Tottenham (Mr Lammy). It goes to the Bar as well, as the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) and I know. If the good barristers leave because they cannot afford to remain within the criminal legal aid system, we will not get the silks and we will not get the circuit judges and Crown court judges. In that way, we will see a diminution in the quality of justice that we all expect to receive.

[Mr Llwyd]

The hon. and learned Gentleman is absolutely right and I could not have put it any better.

One of the most contentious aspects of these so-called reforms is the removal of the client’s right to choose. Instead people will be allocated a provider, regardless of the complexities of the case or whether they have any particular needs or vulnerabilities.

Rehabilitation of Offenders

Lord Garnier Excerpts

Thursday 9th May 2013 Commons Chamber

[Chris Grayling]

The right hon. Gentleman makes an important point. It is always good to hear him make a thoughtful and measured contribution, which is not always true of the rest of his party. We have to be absolutely certain that the organisations we recruit to do the work have the expertise we need, particularly in the field of drug rehabilitation. I reassure him that I have no intention whatever to contract with organisations that cannot demonstrate that they have genuine expertise in delivering the solutions we need.

[Sir Edward Garnier (Harborough) (Con)]

I congratulate my right hon. Friend on his statement. I wrote about these proposals in a November 2007 paper called “Prisons with a Purpose”, and the previous Government should have done the very things under discussion a long time ago. May I urge my right hon. Friend to ensure that not just the big companies, but the smaller providers, such as charities and individuals, can carry people from prison out into the community so that there is no gap between incarceration and coming out into society? Will he also urge the people he deals with to ensure that people are able to read when they leave prison? The average prisoner has the reading age of an 11-year-old and it is not possible for them to get a job if they cannot read.

[Chris Grayling]

I agree with my hon. and learned Friend. One of the elements of the new contracts will be to combine resettlement services in prisons with post-prison support, so it is a genuinely joined-up service. His point about reading is of great importance. One of the encouraging things I saw in Peterborough is the way in which older, more experienced offenders who have gone through a longer process of rehabilitation in prison are starting to provide proactive help to the younger generation. I want to see those prisoners who can read teaching those who cannot to do so.

Defamation Bill

Lord Garnier Excerpts

Wednesday 24th April 2013 Commons Chamber

[The Parliamentary Under-Secretary of State for Justice (Mrs Helen Grant)]

I beg to move,

That this House agrees with Lords amendment 2B in lieu of Lords amendment 2, to which this House has disagreed.

The reasons that this House gave for disagreeing to certain amendments to the Bill have been considered in the other place, and a further amendment has been agreed there that now requires consideration by this House. I ask the House to agree to Lords amendment 2B.

The Lords amendment is to clause 1 and makes it clear that a body that trades for profit will satisfy the serious harm test only if it is able to show that the statement complained of has caused that body, or is likely to cause it, serious financial loss. As I made clear when we originally considered Lords amendments, we recognise the strength of feeling that exists on whether there should be a specific provision in the Bill on the issue. I indicated that I would consider the matter further, and the amendment reflects the outcome of those considerations.

As the Government explained at earlier stages of the Bill’s passage, we amended what was initially a “substantial harm” requirement to one of “serious harm” to raise the bar for bringing defamation claims. The Lords amendment therefore refers to “serious financial loss”, to reflect that aim, and is now linked explicitly with the serious harm test.

We consider that the approach that we have taken is clearly preferable to that in the earlier Lords amendment 2 for two main reasons. First, the use of the words “serious financial loss” makes it absolutely clear that the financial loss required to meet the serious harm test must itself be serious. By contrast, the reference in the earlier amendment to “substantial financial loss” could inadvertently have weakened the requirements of what must be shown to satisfy the test.

[Sir Edward Garnier (Harborough) (Con)]

Why does my hon. Friend say that? What is the difference between “serious” and “substantial”?

[Mrs Grant]

I am sure that my hon. and learned Friend will go into details about the motion that he tabled, but as we have made clear, we think it is helpful that there will be a direct link between serious harm and serious financial loss. That will make the situation absolutely clear to those wishing to bring an action.

The second reason why Lords amendment 2B is preferable to the earlier Lords amendment 2 is that the term that we have used to define those who will be subject to the requirement—

“a body that trades for profit”—

is a much clearer and simpler definition. Those are the bodies about which people have expressed concern, so we have phrased the amendment specifically and directly to meet those concerns.

I believe that the Lords amendment represents an effective and proportionate approach that addresses the concerns that have been expressed in this House and elsewhere. I urge the House to support it.

[Robert Flello (Stoke-on-Trent South) (Lab)]

Thanks to a lot of hard work—especially in the other place, it has to be said—the Bill is now in a much better place. It is still far from perfect, sadly, which is a huge shame. It could have been perfect and a marvel to behold, but sadly the to-do list in the Bill includes early strike-out, website operator regulations and clarification for booksellers of the innocent dissemination rules, about which they were concerned. It also includes costs, which are a strange case, because we are really no further forward on them.

Indeed, we are left in a wholly unsatisfactory place. The last-minute announcement of a consultation on costs over the summer shows how sloppily this Government have treated parts of the Defamation Bill. The mess in respect of defamation, Leveson and the Legal Aid, Sentencing and Punishment of Offenders Act 2012 means in future people in a similar position to the Dowlers, Simon Singh and Peter Wilmshurst who will fight defamation cases will probably be in a worse position on costs than they would have been had the Government not got their hands on this legislation. Despite the promises that were made during the passage of the LASPO Act, costs is a major issue, and it should have been dealt with properly before this Bill returned to the Chamber.

The Minister commented on extending the Derbyshire principle to private companies. It is estimated that, following this Government’s privatisation agenda, in the NHS alone private companies will take over £16 billion- worth of Government contracts to provide services previously carried out by the public sector. Those services will go to private companies that use the law to chill debate in a way that the NHS cannot. Atos frequently suppresses disquiet, and Baroness Hayter cited Serco in the other place yesterday.

I hope the judiciary is listening to this debate and has listened to some of the other debates, because as Ministers both in this House and the other place have repeatedly said, the courts should further develop the Derbyshire principle in line with the will of Parliament. That is an unsatisfactory position, however, and this is on the to-do list of things that would have improved the Bill dramatically, but I hope the courts will now extend Derbyshire to contracts between the private sector and the Government or local authorities, because that is in line with the will of this House. [Interruption.] The Minister has commented on that, as I have said.

It is thanks to Opposition Members that the Bill has been improved. No matter what is claimed on the Liberal Democrat Voice website, not once have the Lib Dems backed us against the Government. Indeed, yesterday in the other place in the vote on the Derbyshire aspect of what was amendment 2—[Interruption.] The Minister keeps chuntering about Derbyshire, but the issue here is clearly that the will of this House has been expressed on many occasions, but thanks to the Liberal Democrats supporting the Government, we are not able to take that forward. It is important to put that on the record. No matter what they say, it is all talk and no action from the Liberal Democrats.

This is now a better Bill, but it is not the best it could be, and we will need to return to it after Labour is re-elected to government in 2015—or sooner, I hope. It is the best we can expect at present, however, and that is a shame. I am disappointed—and also surprised, although perhaps I should not be—that the hon. and learned Member for Harborough (Sir Edward Garnier) has introduced his proposal. We will hear his observations on this matter in a few moments. We will decide whether what is before us is the best we can get today after we have heard the Minister’s final comments.

[Sir Edward Garnier]

I must disappoint the hon. Member for Stoke-on-Trent South (Robert Flello) because I do not think my motion has been selected. None the less, I am not prevented from—and nor shall I be inhibited from—saying a few things about where we are now.

There are plenty of aspects of the Defamation Bill—which has been chuntering away in the background in this House and the other place for a few years now—that are commendable, and other aspects that are utterly harmless; they will not do any good, but neither will they do any harm. I am disappointed as well, however—although I suppose that might partly be to do with my having been first elected to this House 21 years ago and having been here too long—that the coalition Government have allowed themselves to create the law of England through a series of backdoor deals, rather than through any rational and coherent thought.

I think the hon. Gentleman largely agrees with me about where we are now with this Bill, as, I suspect, does my hon. Friend the Minister, but she is in a difficult place and I sympathise with her about that. It is a pity that the Secretary of State for Justice is not here to defend where we are now and to speak up for the Bill for which he has responsibility on behalf of the Government.

Last week my hon. Friend and I were in agreement; this week we are not. Last week the Government whipped coalition Members to support what I and my hon. Friend were advocating—that it is not in the public interest to have a financial damage hurdle for companies to overcome that want to bring proceedings in libel. This week, the Government have changed their mind—or have had their mind changed for them. I am all for people changing their mind if the circumstances or evidence supports that. What I find intolerable—and what I think amounts to a form of incoherence and political feebleness, and which is little short of intellectual dishonesty—is for a Government to march their troops up the hill one week and then to rush down the hill the next week saying, “We didn’t really mean it last week,” or “We had not really thought about it,” or “We are doing this for no other reason than that we are under political pressure from A, B or C, and we have decided to ask our Government troops to do something else.”

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[Robert Flello]

Would the hon. and learned Gentleman not accept, however, that what we hear time and time again is that cases do not get to court because of the bullying by corporations at an early stage? People give in straight away or, more often—as in the Serco case, which I think Baroness Hayter raised yesterday in the other place—newspapers face the difficult decision of whether to pursue something that might end up being challenged, even if they are citing the truth.

[Sir Edward Garnier]

The hon. Gentleman no doubt makes a correct factual point, but I think he exaggerates it. The number of cases involving corporate claimants is small and the damages they recover, absent special damages, is low. Damages to trading reputation alone probably attract £20,000 at the top end and usually no more than £10,000, so we are not talking about hugely extravagant damages claims.

Allegations of bullying can be made against anybody who has more money than the person they are suing. Jimmy Goldsmith, now long dead, sued about 100 distributors—I was involved in the case in a junior capacity—such as WH Smith, Menzies and so forth. He issued proceedings in his dispute with Private Eye. It was suggested by those defendants that he was doing it to shut them down—to prevent them from distributing a newspaper.

[Helen Goodman (Bishop Auckland) (Lab)]

He was!

[Sir Edward Garnier]

The Court of Appeal disagreed with that and said—the case is called Sperrings, if the hon. Lady is interested—that there was no basis for suggesting that Jimmy Goldsmith was misconducting himself, albeit that a reasonable person could comment that he was using his financial wealth to bully those defendants. The same could be said of Robert Maxwell, who stole Daily Mirror employees’ money in order to run libel actions against every Tom, Dick and Harry he could lay his fingers on.

What is the difference between complaints about financial wealth or strength in the hands of individuals being used to bully defendants, compared with financial wealth in the hands of corporate claimants being used to do that? If the case is an abuse—if it does not come within the terms of the currently unamended clause 1—the court will stop it. However, what has happened is that a general case has been built up, but on the basis of about two, three or four cases—I congratulate the campaigners and those who have seduced my hon. Friend and the Opposition into believing that what they are doing is in the public interest. That is illogical, although it has been highly effective politically—you can perhaps hear from the frustration in my voice, Mr Deputy Speaker, that I recognise defeat when I see it. I am about to be defeated, because the Government have simply whipped the people who voted one way last week to vote another way this week.

[Sir Peter Bottomley (Worthing West) (Con)]

Will my hon. and learned Friend give way?

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[Sir Edward Garnier]

Although my hon. Friend was not here at the beginning of the debate, I will, if I may, permit him to intervene.

[Sir Peter Bottomley]

My hon. and learned Friend is absolutely right, but as soon as I saw that he was on his feet, I came as fast as I could, dropping everything else. Last week I voted the way I intend to vote this week.

[Sir Edward Garnier]

At least you’re consistent.

[Sir Peter Bottomley]

And I still think I am right. Can my hon. and learned Friend give some examples of where corporations have taken defamation or libel cases that were necessary and could not have been dealt with in another way? As he says, the problem with illustrative cases is that they do not always make good law, but the cases involving Dr Peter Wilmshurst and Simon Singh were examples of how the law did not bring justice within a time scale and for an amount of money that ordinary people or publishers can afford.

[Sir Edward Garnier]

Obviously I cannot give my hon. Friend a catalogue of cases one way or the other. What I can tell him is that if clause 1 is amended as he always wanted and as the Government now want, the case of Wilmshurst, in which he was sued by NMT Medical, would probably pass the “serious financial loss” hurdle. If my hon. Friend thinks that he is helping Dr Wilmshurst or those like him by amending the Bill in that way, I am afraid he is wrong. If he wants to lock future Dr Wilmshursts into satellite litigation about “serious financial loss”, then make my day, as they say. That will be the unintended consequence of what is going to happen.

As I said last week and as was said in the other place yesterday, the great and sadly late Lord Bingham said in the case of Jameel that corporations have trading reputations that ought to be worthy of protection. A corporation’s trading reputation is a thing of value. However, the Government and those who support them on this particular volte face confuse themselves because they have separated out—no doubt for well intentioned reasons—non-trading companies and trading companies for the purposes of the amendment to clause 1. However, trading companies have different types of reputation, as Mr Justice Tugendhat said in the case of Thornton last year. Individuals—and certainly companies—have different segments of their reputation that are susceptible to being defamed.

I used the example of the BBC last night on “The World Tonight”, at about quarter past 10. The BBC is a large trading corporation. It sells things for profit—programmes—but it has another reputation as a source of unbiased and disinterested news reporting. It has another reputation as a supporter of good causes such as Children in Need and another reputation as an employer. I could libel the BBC in its trading capacity and it might or might not overcome the hurdle that clause 1, as about to be amended, would present. However, I could also accuse it of being, let us say, a hotbed of or a magnet for child sex abusers. That would not necessarily cause it serious financial loss, but it would most certainly defame the BBC and undermine its reputation as a place to be employed or a place to go and visit. Despite the fact that that would cause it serious reputational loss, the BBC would be unable to vindicate its reputation, because it would be unable to show serious financial loss.

It strikes me that as I begin to repeat myself and say what I said last week—

[Sir Peter Bottomley]

That’s age.

[Sir Edward Garnier]

My hon. and very elderly Friend says, “That’s age.” Well, he has more experience of—

[Hon. Members]

Ooh!

[Sir Peter Bottomley]

It is true.

[Sir Edward Garnier]

It is true, it is justifiable and I do not even have to—

[Sir Peter Bottomley]

It is privileged, too.

[Sir Edward Garnier]

It is all sorts of things and it will not cause my hon. Friend financial loss, but he will still be able to sue me if I repeat it outside—assuming that accusing somebody of my hon. Friend’s distinction of being elderly were defamatory. But anyhow, I digress—I am amused to be led to digress by my hon. Friend, because he is an amusing and diverting person.

I will not call a Division this afternoon, because I can do a bit of arithmetic and also because by not calling a vote I will create more embarrassment for the Government. I urge them to think carefully about what they think they are doing, why they have done it, and whether they can justify what they have done. Are they able to answer accusations of backstairs deals, and allegations of incoherence or producing a measure that will have huge and unintended consequences of deleterious effect?

--- Later in debate ---

[Mrs Grant]

indicated dissent.

[Sir Edward Garnier]

She is shaking her head to say she did not, but I am not sure that is an answer to the question. The Government should come to the Dispatch Box and have a coherent case to make, but they do not.

Old and ill-tempered Members of Parliament, whether they represent Worthing or Harborough, must draw their remarks to a conclusion at some stage so I shall do that now. I do so, however, with acute disappointment, and I think the Government are letting themselves down.

[Simon Hughes (Bermondsey and Old Southwark) (LD)]

My hon. and learned Friend the Member for Harborough (Sir Edward Garnier) is clearly experienced in these matters, but he is not satisfied by the conclusion reached by the two Houses after a huge amount of consideration over a very long period, with attempts by everybody to achieve maximum consensus. I understand his point that Parliament works by doing a deal at the end of the day. A Government—any Government—have to get a Bill through both Houses of Parliament, and for a long time no single party has had a majority in the House of Lords. The House of Lords has often intervened to say that it does not like what the House of Commons is doing, and there have been one, two or three attempts at the end of the Session to see whether we can reach a point of conciliation. That is what has happened in this case.

My hon. and learned Friend and I might agree that we ought to have a system that always gives the final vote on Third Reading of a Bill to the elected House at the end of discussions. I hope I can persuade colleagues on the Procedure Committee to eventually come forward with such proposals, but that is for another day.

[Sir Edward Garnier]

I do not suggest that what is being done today is unconstitutional; I say simply that it is incoherent and foolish.

[Simon Hughes]

I understood that and I will say why I think the measure is a reasonable last change that the House should support. I wish to pay tribute to several people, including Lord Lester of Herne Hill who introduced a private Member’s Bill to Parliament some years ago and in many ways triggered this reform of our defamation legislation. I also pay tribute to my noble Friend Lord McNally, who has steered a controversial Bill through many stages. He referred in his speech yesterday to the fact that it has been through the pre-legislative stage and the legislative stage. It has been considered by the Liberal Democrat party; there were conference debates and resolutions were passed on it, and there have also been many cross-party conversations.

I was a little troubled that the hon. Member for Stoke-on-Trent South (Robert Flello) was slightly churlish about the point we have reached. His party and mine, as well as the Conservatives and Cross Benchers, have worked together on the threshold for dealing with corporate claims, and we have made progress on that. Therefore, today is progress along the lines that he wanted, and that he knows colleagues from all three parties wanted. He pretends to be naïve—which he is not—about the way these things work, whether or not there is a coalition Government. At the end of a political process in Parliament, negotiations take place in the public light and also behind the scenes. As he knows perfectly well, that has happened with all three parties to try to get to the most agreeable and consensual place. My party has been as much a part of that process as the Labour party and the Conservatives in arriving at this point.

The Minister rightly says that this is not about what is known as the Derbyshire principle. For those outside the House who have no clue what that is, in essence—I do not pretend to be legalistic about this—it is a principle enunciated by the courts in a case to do with a local authority, which effectively stated that local authorities cannot generally sue to protect their reputation because they are public authorities. However, as I think everybody has agreed in both Houses, common law will evolve, which does not stop it being dealt with by further judgments of the courts across the United Kingdom. In light of the Localism Act 2011, there may be further definitions of a public authority that seek to deal with the issue of a private body that does public authority work. That business remains unaltered by the Lords amendment.

The Lords amendment, which has returned to this House in a form I hope will be accepted, would provide one additional hurdle for people who are seeking as companies to use this country’s defamation legislation. It states:

“For the purposes of this section, harm to the reputation of a body that trades for profit—”

therefore not a body that makes no profit—

“is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.”

I heard the previous speech and we can debate whether that is the perfect wording. It is, however, a clear statement that there must be “serious financial loss” before someone gets to a position from which they can win a defamation case. The Government rejected the idea of a pre-hearing. I understand that and think they were right because it would have meant going round the courts twice.

The Government have accepted that the bar for companies should be higher than that for individuals, which I am sure is right. That measure is meant to deal with the sort of cases that my hon. Friend the Member for Worthing West (Sir Peter Bottomley) alluded to where in the past individuals were clobbered by companies with huge resources and assets in a way regarded as totally unfair. As Lord McNally pointed out yesterday in the House of Lords, not only have we now, I hope, protected the little person in financial terms against the big corporate giant, we have also done things to protect academic reputations and academic dispute, and to allow that to go on without the threat of defamation. We have also, I hope, made the law clearer and brought it up to date.

The hon. Member for Stoke-on-Trent South said that if the Labour party returns to government, it may wish to return to these matters, and I suppose any Government may want to do that. In this country, however, we understandably do not reform defamation law—generally a cross-party exercise—very frequently. This is a major piece of legislation and I hope that we have dealt with the last tricky issue in a way that provides greater protection for the individual against the big corporate. I think that is a job well done in both Houses of this Parliament.

[Sir Peter Bottomley]

I apologise for not being present at the start of the debate, and I am grateful to my hon. and learned Friend the Member for Harborough (Sir Edward Garnier) for introducing my interest. I should declare that I have been successful in three major defamation actions, and I hope I shall not have to take another.

I want to tell the story of Richard Doll, who drank too much college beer when applying to study mathematics at Trinity college, Cambridge. He did not get chosen, so he went to St Thomas’ instead. He had an interest in asthma and lung diseases. In 1950, he did a quick study on whether motor fumes or tarmac caused lung cancer, as was suspected at the time. He and his colleague, Bradford Hill, discovered that the common factor was smoking. They did not show until 1955 beyond any doubt what had first been suspected by German scientists in the 1930s, namely that, if a person smokes 25 cigarettes a day, their chances of developing lung cancer or associated serious illnesses increased by 25 or 50 times—I forget the actual figure.

If the too-frequent current habit of commercial companies suing for damage had been prevalent when Richard Doll published his material, I suspect that the tobacco companies would have shut him down. When he later came out with the proposed link, which was proved, between asbestos and serious lung conditions, the same thing might have happened. One vital question is how we protect scientific speculation and the publishing of preliminary findings without the risk of action.

I believe we should accept the Lords amendments in lieu because they give conditions in which court authority is necessary if the action is to start. There is one condition by which the court “must” rule action out. I hope the courts realise that they “may” disqualify such action on other grounds. There is a “must”, but the measure leaves open the “may” option for disqualifying cases.

[Sir Edward Garnier]

Beyond clause 1—the serious harm test—we have clause 6, on peer-reviewed statements in scientific or academic journals. Clause 6 comes to the aid of scientists or medical experts such as Professor Doll if they make statements of that nature that are published in a peer-reviewed magazine or whatever, but there are plenty of other ways in which they could be assisted, such as through the common law, other measures in the Bill and earlier Defamation Acts.

[Sir Peter Bottomley]

Indeed—that is why my hon. and learned Friend’s career will not be interrupted by the passage of the Bill. Plenty of people will seek his advice. The condition in the proposed new clause in lieu states:

“(2) The permission of the court must be obtained in order to bring an action…(3) The court must strike out an application under subsection (2) unless”

it can show X, Y and Z. My point is that the courts also have a “may” power, which I hope they use.

The Trafigura event, which involved super-injunctions, was another example of people trying to shut down public knowledge, inquiry, discussion and debate.

[Sir Edward Garnier]

That was a matter of confidence, not libel.

[Sir Peter Bottomley]

I am aware of that—my hon. and learned Friend is guiding me into making my speech longer than I had intended.

When I was appointed to the Joint Committee on the draft Defamation Bill, I had hoped that the Government and their Law Officers would introduce positive proposals that went further than the Bill and that gave more power to people to speculate in public, defend their arguments and themselves. Defamation provides limits in that context.

When I had to take defamation action, I did so as a private individual. What was said about me made such action necessary—I was labelled, in effect, as a paedophile on the front page of a major Sunday paper. It struck me that it was not true, not privileged and damaging, and therefore that it provided justification for action. Auberon Waugh made a living for four years out of calling me all sorts of things under the sun. One journalist said, “Why don’t you sue him?” I said, “First, I don’t mind; secondly, it might be true; and, thirdly, it is not compulsory to sue.” It would be fair if those who take defamation action justified why they were taking it, so that they do not just pile up costs, which can become too great.

I should return to my earlier point. What comes before peer review? Suppose I am a scientist or someone else who suspects that there is a link between a commercial product and a bad consequence. I should not have to keep absolutely silent about it until I have managed to do a research study, which would involve getting the funding for the research study, finishing it, delivering it to the magazine so it can send it to other publications, and getting permission to make it public. Speculation requires people having the ability to speak more openly, but perhaps not always with certainty—they may have to put their views in terms of speculation rather than of direct accusations.

We have had the recent case—it is now finished—of the fraud related to the device that was supposed to detect improvised explosives. If someone had spoken up against that company long before there was evidence for the court case, would they have faced a defamation action? We should remember that many magazines and newspapers do not have a great deal of money.

If we accept the Lords amendment and pass the Bill, we will have done good, but not enough. I therefore make a plea to the Minister—she does not need to answer this point today—to work out how the relevant Departments can, either by themselves or by proxy, monitor defamation actions. They should have studies that report on the kinds of actions that are being taken, the writs that are being issued, the writs that are served having been issued, and the results—whether there is a settlement or whatever.

Defamation Bill

Lord Garnier Excerpts

Tuesday 16th April 2013 Commons Chamber

[Mrs Grant]

I have just explained that we have requested that an early resolution procedure should be looked into, and if we have an early resolution procedure, we do not need a permission stage. As I have explained, having a permission stage and an early resolution procedure would create far too much delay and cost, which is not what anyone wants. I would have thought that the shadow Minister, having been a solicitor, would know the effect that can have on claimants.

[Sir Edward Garnier (Harborough) (Con)]

rose—

[Dr Sarah Wollaston (Totnes) (Con)]

rose—

[Mrs Grant]

I would also like to make the point—I can hear that there are concerns about this issue—that I am, however, aware of the strength of feeling that exists on this matter and on whether the Bill should contain a provision requiring non-natural persons trading for profit to show substantial financial loss. As we have made clear at earlier stages in the Bill, in order to satisfy the serious harm test, such bodies are likely in practice to have to show actual or likely financial loss anyway. However, I can confirm that we are prepared to consider actively that aspect of the Lords amendment further, and we will listen carefully to the views expressed in both Houses.

[Sir Edward Garnier]

I listened with care to what the shadow Secretary of State said just now. Although it is true that clause 1 might be a retrospective application, the ordinary rules of strike-out and the ordinary rules of court that police abusive cases are not altered. If the court is faced with an abusive claim by a company, it will be dealt with. One does not need legislation to police the administration of such proceedings.

--- Later in debate ---

In addition, the Lords new clause aligns the law with the so-called Derbyshire principle. This principle rightly prevents public bodies from bringing defamation actions, and the amendment will mean that private companies delivering public functions are similarly restricted. In the original case of Derbyshire County Council v. Times Newspapers in 1993, Lord Keith of Kinkel’s judgment makes clear the importance of “uninhibited public criticism” of democratically elected and public bodies. The principle is very important, because it means that local authorities—or, indeed, any public authority or organ of central or local government—should be open to uninhibited public criticism and therefore do not have the right to make a claim for defamation for damages.

[Sir Edward Garnier]

rose—

[Sadiq Khan]

I will give two examples, and then I will give way to the hon. and learned Gentleman, as I know he has an interest in this matter.

Let us look at some of the consequences for the Ministry of Justice, the Minister’s Department. The Government amendment means that anyone, including a whistleblower, who wants to criticise the way a private company runs a prison using taxpayer money could face the threat of an action for damages, whereas he or she would not for criticising a public sector prison. This should be about protecting the reputation of the justice system, rather than big corporations. It would also mean that someone wanting to raise concerns about a danger to public safety caused by a private company managing, for example, medium risk offenders, once the Government’s plans for privatising our probation service have been implemented, would face the threat of defamation.

Do the Government really want this unlevel playing field—which the Liberal Democrats will support in about 20 minutes? I remind the House that these are private companies undertaking public functions at taxpayer expense. At a time when the Government are handing over more and more of our public services to private and voluntary groups in education, health care and crime and justice, less and less of taxpayer spend will be subject to the uninhibited public criticism Lord Keith identified as so fundamental.

[Sir Edward Garnier]

First, may I make it perfectly clear to the ignorant person who tweeted about me this afternoon that I have, in fact, declared my interest in relation to this matter on the amendment paper?

Is the right hon. Gentleman aware that in the Derbyshire county council case, while Lord Keith held that the council should not be able to sue, he confirmed that corporations should be able to sue to protect their trading reputation? The heart of the right hon. Gentleman’s argument is that this is about inequality of arms. He thinks rich, very large and hugely well-resourced companies are bullying less resourced individuals, but the same criticism could be made of immensely rich private individuals who bring claims. Robert Maxwell used his millions—perhaps they were other people’s millions—

[Mr Speaker]

Order. I am sure the hon. and learned Gentleman will have an opportunity to catch my eye and make his own speech in due course, but we do not have all that long for this debate and we have got the gist of his point.

--- Later in debate ---

[Sadiq Khan]

The hon. Gentleman might have been in the House in 1993, when Lord Keith made his judgment, but the numbers of private companies undertaking public functions in ’93 were far fewer than they are in 2013. The hon. Gentleman knows that I have huge respect for him, but if his party has its way, with the support of the Liberal Democrats, even more public services will be tendered and will be run by private companies.

Large elements of the Bill show how Parliament should legislate. Political consensus on the overarching need to reform followed by detailed, expert debate on the substance in both Houses, all informed by a dedicated set of campaigners and non-governmental organisations, has helped to turn the original substandard Bill into a better set of proposals. I hope that today the House will agree with us one more time on the importance of retaining the key changes made to the Bill in the Lords. Do you know what? Defamation Bills do not come around very often—this is only the third since 1853. We must grasp the opportunity and deliver the modern, updated defamation laws warranted by our tradition of open and free speech.

[Sir Edward Garnier]

There have been three defamation Bills in my lifetime; I do not know whether that helps the right hon. Member for Tooting (Sadiq Khan)—

[Sadiq Khan]

It shows how old you are.

[Sir Edward Garnier]

It does, and perhaps the right hon. Gentleman will allow me to—

[Mr Speaker]

Order. May I point out that I think the hon. and learned Gentleman was born not in 1853 but, if memory serves me, in 1952?

[Sir Edward Garnier]

On 26 October, and I share a birthday with President Mitterrand and Hillary Clinton. Let us move on, however.

I have already declared my interest, so I hope I do not have to do so again. I want to say that this is not a question of being right or wrong. I am not saying that I am right, that my hon. Friend the Minister is right or that the right hon. Member for Tooting is wrong, but that this is a matter of judgment and opinion. We are perfectly entitled to have different views about how best to order the law on defamation.

It so happens that the right hon. Gentleman and I take a different view on Lords amendment 2 on non-natural persons. I happen to think that Lord Bingham was right in the Jameel case in 2007 to make it quite clear that he thought it was perfectly proper and right for corporations to be able to bring actions for libel without proof of special damage—without having to show money loss. I will not recite all that he said, as there is not enough time, but it is worth bearing it in mind when some of the more hyperbolic accusations are traded about companies that bring actions for libel to terrorise or use their financial muscle to inhibit the defence of those actions or to inhibit free speech.

[Dr Huppert]

Does the hon. and learned Gentleman accept that there is a fundamental difference between non-natural persons and natural persons in terms of aspects to do with feelings, for example? Corporations of any size cannot have feelings that can hurt by defamatory action; there is a fundamental difference that the law should reflect.

[Sir Edward Garnier]

That is not only fundamental; it is highly uncontroversial. Human beings can get damages for hurt to their feelings; companies cannot. One cannot libel a company by accusing it, for example, of adultery, whereas one can so libel an individual. There are plenty of obvious and not very surprising differences between the law relating to individuals and the law relating to companies, but there are examples of things which affect companies’ trading reputations, which should be susceptible to protection.

We should also bear it in mind that there are different types of company. There are not-for-profit companies which are not in the business of making money and which, if they were libelled, would not lose money. It may well be said in response to me that the amendment deals with that. They would get permission from the court to bring that action, but that just creates another hurdle, as the Under-Secretary of State for Justice, my hon. Friend the Member for Maidstone and The Weald (Mrs Grant), made clear.

[Sir Peter Bottomley]

I would be grateful if my hon. and learned Friend could advise briefly on two points. First, at which stage should the courts have said, “We are not going to go further with the claim against Dr Simon Singh or against Dr Peter Wilmshurst”? Secondly, with reference to loss, in 1950 two doctors said that tobacco is very bad for people’s health and asbestos is very bad for people’s lungs. That was not the general view. It was an insight, and the companies involved in selling tobacco and selling asbestos could have sued for loss. That should have been struck out as well. There should be no libel for such cases. How would my hon. and learned Friend stop that kind of thing without the proposed new clause?

[Sir Edward Garnier]

I shall not unwind the case of Singh or the Wilmshurst case; they have been before the courts and have been dealt with. As it happens, the case of Simon Singh became controversial because it was an argument about whether the words complained of constituted allegations of fact or whether they were capable of constituting comment. That is the point on which it went to the Court of Appeal.

There was an action in South Africa brought by a tobacco company which sued and recovered damages on the allegation that its products promoted cancer. Things change. That is the advantage of having an organic system of law which enables the courts to deal with evidence and reach conclusions about whether a company or anyone else has been attacked inappropriately.

As I was saying to the hon. Member for Cambridge (Dr Huppert), it is not all that hard to think of statements which seriously injure the general commercial reputation of trading and charitable organisations. An arms company—

[Dr Huppert]

Will the hon. and learned Gentleman give way?

[Sir Edward Garnier]

If the hon. Gentleman will forgive me, this debate stops at 7.13 pm.

Arms companies can be accused of bribing foreign officials. Oil companies can be accused of damaging the environment. International humanitarian agencies can be accused of wrongfully succumbing to Government pressure. Retailers can be accused of exploiting child labour, and so on. As the right hon. Member for Tooting said, the directors or the leading members of those companies may also have a parallel course of action, but the company itself should not be shut out from pursuing a course of action if that is available to it.

The good name of a company, as that of an individual, is a thing of value. A damaging libel may lower its standing in the eyes of the public and even of its own staff and make people less ready to deal with it and less willing or less proud to work for it. If that were not so, corporations would not go to the lengths they do to protect and burnish their corporate images. There is nothing repugnant in the notion that this is a value which the law should protect, and it is not an adequate answer that the corporation can itself seek to answer the defamatory statement through press releases or public statements, as protestations of innocence by the impugned party necessarily carry less weight with the public than the prompt issue of proceedings which culminate in a favourable verdict by a judge or a jury.

Furthermore, why should one have to accept that a publication, if truly damaging to a corporation’s commercial reputation, will result in provable financial loss, since the more prompt and public a company’s issuing of proceedings, and the more diligent its pursuit of a claim, the less the chance that financial loss will actually accrue? It may be argued against me that all these matters will be dealt with in the permission hearing, but when is the permission hearing to take place? Will the corporation have to wait right until the end of the limitation period? Will it have to wait for weeks and weeks while the next set of accounts comes out, so that it can work out whether financial loss has occurred as a consequence of the libel? There might be any number of causes of a company suffering an economic downturn, particularly in a recession.

I return to the point I made about not-for-profit companies and charities.

[Dr Huppert]

Has the hon. and learned Gentleman seen that the amendment that I hope the Government will bring forward specifically refers to trading-for-profit organisations, as the Joint Committee recommended? It specifically excludes charities.

[Sir Edward Garnier]

I am discussing the amendment to the Bill, not the one somewhere else that the hon. Gentleman was happy to talk about.

I agree with my hon. Friend the Minister in relation to subsection (4) of the new clause proposed in Lords amendment 2. It seems to me that procedurally we can only deal with the amendment as one; we cannot chop and change it. Subsection (4) states:

“Non-natural persons performing a public function do not have an action in defamation in relation to a statement concerning that function.”

It seems to me that the common law, as expressed through Derbyshire, is there. If we legislate, we will create sclerosis. Indeed, I think that there are some disadvantages in legislating to put the Reynolds defence into statute. We will no doubt make lots of work for our learned friends, but we will make the process of amending the law of libel, particularly in relation to public interest statements, all the more difficult as we lock it down into statute.

I urge the House to think carefully before deciding on whether to agree to their lordships’ amendment. I urge Members to give my hon. Friend the Minister and the Government the time and space to get this right with mature consideration and not to be seduced by the siren calls of the pressure groups, no matter how well motivated they might be, into producing what would be a deleterious and damaging end to this affair.

[Paul Farrelly]

I wish to speak briefly to Lords amendment 2, which would be a major change to the Bill, and to amendment (a) to Lords amendment 3, which stands in my name and that of the hon. Member for Worthing West (Sir Peter Bottomley). I will curtail my remarks, because I want to give other Members the opportunity to speak.

Lords amendment 2 would be a major change. The issue here is not just about big corporations wanting to bully and intimidate the little people, as McDonalds did years ago, simply because they can. The Culture, Media and Sport Committee’s report highlighted a more recent case of almost flagrant abuse of our libel laws by a large corporation: Tesco’s libel action against The Guardian—some people’s favourite paper, and some people’s hate paper—in 2008. We can generalise from that case.

It has recently been in vogue to condemn aggressive and widespread tax avoidance, and that was what The Guardian story was all about. It made a mistake in that story and referred to the wrong tax. It turned out that Tesco was avoiding not only the wrong tax but the tax that it said it was not avoiding. The Guardian, as any newspaper would, apologised, made a clarification and offers of amends and ensured that it used all the procedures of the law, as set down the last time this House looked at reform of libel law, but Tesco was just not interested.

The reason Tesco turned everything down, stalled for time and racked up the costs was not just that it could, but that it, like so many corporations, wanted to chill. It wanted to take the newspaper and its journalists out of the game. It wanted to send a message. The Guardian—it could have been any newspaper—faced a bill of up to £5 million if the case went all the way to the House of Lords, or now to the Supreme Court, because the issue in libel is cost, not damages, so it settled for a nominal sum. The costs were massive.

Lords amendment 2 would have cross-party support not only in the Lords but here, if Members had a free vote. The only people who oppose it are those organisations that like to chill and those firms that make massive amounts of money out of the libel industry. The amendment would not stop companies suing; it just asks that they demonstrate significant damage when they can fight back by other means.

The Lords amendment also asks that the court approve a writ. Currently people can just go to court, a writ is rubber-stamped and then one is obliged to spend one’s time and money fighting it. The refusal of Rachel Ehrenfeld, an American, to go thorough that procedure led to the Americans introducing their laws to stop our libel judgments being enforced in the United States.

[Sir Edward Garnier]

I ask the hon. Gentleman to have a look at new clause 2(3), which says:

“The court must strike out an application under subsection (2) unless the body corporate can show that the publication of the words or matters complained of has caused, or is likely to cause, substantial financial loss”.

What happens to a charity or non-profit-making company that is not in the business of making a financial gain or a financial loss if it is defamed? The case would have to be struck out under the clause.

[Paul Farrelly]

The hon. and learned Gentleman has forgotten that the proposal does not apply to non-profit-making organisations.

This is the only part of the Bill, until we see the civil procedure rules, that provides for early strike-out. That would have helped Peter Wilmshurst, sued by NMT, who could not ultimately pay the bills that he had racked up, leaving aside the worry for his family in putting everything on the line. The amendment would get around the distinction drawn in the Simon Singh case—the artificial discrimination between corporate bodies and non-incorporated bodies that allowed the British Chiropractic Association to sue him in the first instance.

The Lords amendment is sensible and proportionate. It would not prevent individuals in companies, particularly private companies, from suing if they felt defamed by an article that attacked their company. It would also, as the hon. Member for Worthing West said, extend the Derbyshire principle to contracted-out firms where they are providing public functions—Atos, for example. In short, it keeps up with the times.

I put my name to Lords amendment 3, tabled by the hon. Member for Worthing West, partly, again, on the grounds of reducing costs. Beliefs are very subjective and decisions are more objective if the courts interpret them sensibly. I also wanted to tease out from the Government why, having rejected all our concerns in the Bill Committee about having another tick list, as the Reynolds defence had proved so costly, they had so radically changed their mind. The Minister has not elucidated that. However, by virtue of the fact that the matter was uncontested in the Lords, I am happy that a court can consider all circumstances of the case. I hope that in a spirit of cross-party truce, my colleague the hon. Member for Worthing West will speak to his amendment.

[Dr Huppert]

It is a pleasure to follow the hon. Member for Worthing West (Sir Peter Bottomley), with whom I have had many promising discussions on the issue. I am delighted that the Bill is back in the Commons. There was a period when, due to the actions of the Labour peer Lord Puttnam, there was a risk. I am glad that that risk did not eventualise and that it turned out not to be a problem.

This Bill will make a significant change to the costs of libel and to free speech and it will reduce libel tourism. I am particularly pleased about clause 6, which provides specific protection for peer-reviewed academic and scientific publications. That is something that I value greatly and I am delighted that we will be able to make those protections, because we have heard of too many cases of learned journals being silenced.

The issue remains, however, of corporations and non-natural persons. As I argued earlier, they are different. They do not have feelings. They are categorically separate and there should be different rules for what happens when they wish to bring libel actions. Significantly, we have heard that they can abuse power, as in the cases of Peter Wilmshurst and Simon Singh. I was going to talk more about them, but a number of speeches have covered them.

There is, largely, cross-party agreement, with the notable exception of the hon. and learned Member for Harborough (Sir Edward Garnier).

[Sir Edward Garnier]

Does the hon. Gentleman accept that “a body corporate” in subsection (1)(a) of the new clause proposed by Lords amendment 2 does not restrict it to money-making corporations?

[Dr Huppert]

The hon. and learned Gentleman is correct. I understand that that is the intention and that is what was recommended. I eagerly anticipate a Government amendment and hope that it will address that issue. None of us wants to put constraints on charities. This relates to profitable or profit-making organisations, or at least those that are trying to make a profit.

I heard the Minister make a commitment to actively consider such amendments. My understanding is—I am still new to parliamentary procedure—that that is as far as a Minister is able to go at this stage. I would be grateful if it was not her intention to set high expectations for such an amendment being tabled in the Lords. She is welcome to clarify the issue now; otherwise, I am very happy with what she said and look forward to the amendment.

We will get cross-party agreement on corporations having to prove that they have suffered serious financial harm. Simon Singh has correctly said that that would have saved him. Such a provision is still missing from the Bill, but I believe that the Government have now said that they will address it. I trust the Government on that and I look forward to the amendment and to the Bill finally changing.

As John Kampfner, the former chief executive of Index on Censorship, said:

“When we launched the Libel Reform Campaign in 2009, only the Liberal Democrats backed change. Now the cause has cross party support.”

I look forward to seeing this Bill become an Act.

Crime and Courts Bill [Lords]

Lord Garnier Excerpts

Monday 18th March 2013 Commons Chamber

[Maria Miller]

I understand the sentiment behind my hon. Friend’s question. I can reassure him that we have been working directly with representatives of the local press to ensure that the new system does not, as he suggests, burden them unnecessarily. Perhaps the right hon. and learned Member for Camberwell and Peckham (Ms Harman) will remark on that further; I will do so in my comments later.

Exemplary damages will be awarded only in the most serious cases, in line with both the Leveson report and the report of the 1997 Law Commission. The test for the award will be: where the defendant’s conduct has shown a deliberate or reckless disregard of an outrageous nature for the claimant’s rights; where conduct is such that the court should punish the defendant for it; and where other remedies would not be adequate to punish that conduct. The supplementary new clauses ensure that the new exemplary damages system works in practice.

New clause 22 sets out factors that the court must take into account in deciding whether an award of exemplary damages is appropriate, and whether membership of an improved regulator was available to the defendant at the time of the events giving rise to the claims. If so, what reasons the defendant had for not being a member are factors that can be considered. The court must also have regard, so far as it is relevant, to whether the defendant has internal compliance procedures of a satisfactory nature in place and how they are adhered to.

[Sir Edward Garnier (Harborough) (Con)]

I wonder whether my right hon. Friend could provide me with some clarification. She says that the exemplary damages regime will apply as per the new clauses and so on. One of the exclusions from the definition of a “relevant publisher”, which she will find in new schedule 5, is:

“A person who publishes a title that relates to a particular pastime, hobby, trade, business, industry or profession”.

Maybe the “hobby” relates to the point made by my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg). What is the position of an irrelevant publisher, if I can describe him as that, who publishes a magazine or some other publication about a pastime, hobby or trade, but who none the less behaves within the terms of Rookes v. Barnard? Would the court still be able to award exemplary damages in that circumstance?

[Maria Miller]

My hon. and learned Friend raises an issue in which he is well versed. If I do not provide a complete answer, then I will get back to him with all the details. Clearly, if somebody is not a relevant publisher then they are not drawn into the self-regulatory scheme. They would not be subject to exemplary damages or be eligible for the scheme. Therefore, they would not be caught within this remit. We have so drawn the definition of “relevant publishers” to ensure that the scheme does not catch people we do not need to catch, and that is why we have been careful to set out the three tests in new clause 29—to ensure that we are clear about who is covered. Some individual organisations might well fall close to the line, but then it would be for the courts to decide.

New clause 23 sets out matters to which the court must have regard in deciding the amount of exemplary damages appropriate, and the key principles governing the court’s consideration are that the amount should be no more

“than the minimum needed to punish the defendant for the conduct complained of”

and that it should be “proportionate”. New clauses 24 and 25 ensure that those provisions will operate effectively in cases involving more than one claimant or defendant.

For completeness, I shall also mention new clause 26 and amendment 121A. New clause 26 implements recommendation 71 in Lord Justice Leveson’s report and confirms that, in cases under the new system, aggravated damages should be awarded only to compensate for mental distress and should have no punitive element. Amendment 121A provides that the provisions on exemplary damages come into force one year after the date on which the body is established by royal charter. That will be a powerful incentive to the press to establish the new regulator on a timely basis. For all their rarity, the availability of exemplary damages should send a powerful signal to publishers.

I turn to the provisions relating to costs in new clause 27A. The proposals are designed to give further real and powerful incentives and give effect to Lord Justice Leveson’s recommendation that the award of costs should be another tool to encourage publishers to join the regulator. The new clause would provide a clear presumption that where a claimant took a publisher inside the regulator to court, even if the claimant was successful, the normal rule that their costs would be met by a losing publisher would not apply. In other words, a defendant publisher that had joined the regulator should pay a claimant’s costs only in limited circumstances—if the issue could have been resolved at arbitration, had the defendant agreed to its being referred, or if it was just and equitable for the defendant to pay the claimant’s costs.

--- Later in debate ---

[Ms Harman]

The royal charter requires the regulator to provide for an inexpensively run arbitration service which will impose no costs on complainants. As the hon. Gentleman will know, things can happen further along the chain after arbitration has been agreed to, but the essence of arbitration is that both sides embark on it agreeing that the arbitrator will settle the issue.

I think that this will be a great step forward, because it will deal with the problem of inaccessibility. Most people who are defamed, or whose privacy has been invaded in what is termed a media tort, would never dream of being able to go to court, although many lawyers are prepared to act on the basis of conditional fee arrangements. A free-to-use arbitration service is therefore an important component of the Leveson package contained in the royal charter. It is good news for claimants, but it also means that newspapers will be well and truly incentivised not to remain outside the regulatory body. If they are not in the regulatory body and arbitration is therefore not available to those who may complain about them, it is possible that when the case goes to court, costs will be awarded against them even if they win.

[Sir Edward Garnier]

rose—

[Ms Harman]

That is how we understand that the system will work. May I invite the hon. and learned Member for Harborough (Sir Edward Garnier) to answer his question at the same time as asking it? I suspect that he thinks he knows the answer better than I do. He does not, but he probably thinks he does.

[Sir Edward Garnier]

What a charming way of allowing an intervention! I should have thought that a fellow member of the former Solicitor-Generals’ club would be a little more polite to me. I shall have to take our dispute to arbitration as soon as possible.

There is no doubt that the proposal presented by the Government, and agreed to by the Opposition, to encourage people to become members of the regulatory body and to make use of an arbitration scheme has its attractions, but I think that the right hon. and learned Lady and my right hon. Friend the Secretary of State should be careful not to be seduced into thinking that arbitration equals no expense, no time, and simplicity. The sorts of cases that go to arbitration can be just as complicated as those which go to court and the expense involved in a fully tuned-up arbitration is no less than that of a piece of litigation. So this is a jolly good idea and let us all say how wonderful it is, but let us not seduce ourselves into thinking that arbitration is some magic answer, because there will be plenty of cases where the interlocutory procedures will be far too complicated for speedy mediation or arbitration under the regulatory scheme.

--- Later in debate ---

[Sir Edward Garnier]

I thank the Secretary of State for Culture, Media and Sport, my right hon. Friend the Member for Basingstoke (Maria Miller), and the right hon. and learned Member for Camberwell and Peckham (Ms Harman) for introducing this section of the debate. It is clear that Members on both sides of the Chamber have worked extremely hard to bring the matter to a head. As I said in the debate opened earlier by the Prime Minister, everyone must be congratulated, but we must not oversell it or exaggerate the claims for the solution that may have been found.

I was interested in looking at some of the new clauses and new schedules to see that the statutory framework that seems to have been set down for the Crime and Courts Bill makes some changes to the law, but only up to a point. If one looks at new clause 21A, provision is made for the award of exemplary damages unless the defendant was a relevant publisher. But that is cancelled because the court can disregard subsection (2), and that is cancelled because under subsection (4) the court is not prevented from making an award of exemplary damages for other reasons. It rather disappears up its own grammar—I was about to use a rather unparliamentary term. We might need at some stage to reconsider the English used in the new clause if it is to be understood by the people we wish it to attract.

The other point we ought to think about—something my hon. Friend the Member for Hexham (Guy Opperman) and I were discussing only a moment ago—is that we must be careful not to set up two regimes for exemplary damages. There already exists a common law regime for exemplary or punitive damages. Broadly, it is available where a state actor has behaved in an unconstitutional or high-handed fashion, for example when the police or the Prison Service grossly misbehaves in relation to someone in custody. That example is perfectly easy to describe: the court will award punitive and exemplary damages to mark society’s disapproval of the behaviour of that arm of the state.

[Guy Opperman]

Does my hon. and learned Friend agree that there appears to be, in effect, almost a mirror image of the common law system of exemplary damages? Under the present system, which he rightly describes, for an unlawful arrest involving a police officer verballing an innocent defendant, for example, a judge would give exemplary damages. Surely that would be mirrored in exactly the same way in the provisions proposed in the new clause. All that might be good, but surely those provisions would apply on an ongoing basis in any event. Does he agree that the concern is that the provision on exemplary damages does not necessarily change the common law?

[Sir Edward Garnier]

I think that I largely agree with my hon. Friend. The first limb relates to unconstitutional state behaviour, which he described and I mentioned, but the second limb relates to situations in which, under the common law, the defendant has calculated that the gain he could make from the civil wrong he commits will lead to greater profit for him than any potential damages he might have to pay as compensation to the wronged person. The court can recognise that by punishing the defendant, and deterring others from doing the same thing, through the separate and additional award of exemplary damages. Those two limbs of the exemplary damages regime are well described in the 1964 case of Rookes v. Barnard, but I will bore the House no further on that.

What we are creating is a regime that will be similar to the common law regime but not exactly the same and that will be limited to “relevant publishers”. We need to think carefully about whether we are setting up two systems that are close, but not quite parallel, for securing exemplary damages. While we are legislating to adjust exemplary damages for the perfectly sensible and understandable motive of encouraging newspaper publishers, or those who will become “relevant publishers”, to enter a scheme under a regulator, I wonder whether we ought to bring together everything relating to exemplary damages under one statutory umbrella. I say that not simply because I think that it would be neater, but also because of what is said in subsection (4) of new clause 30, which defines a relevant claim. It states:

‘“Relevant claim” means a civil claim made in respect of any of the following—

(a) libel;

(b) slander;

(c) breach of confidence;

(d) misuse of private information;

(e) malicious falsehood;

(f) harassment.’

Under the common law, libel, slander and malicious falsehood are already susceptible to punitive and exemplary damages, but as we know from Max Mosley’s case against Mirror Group Newspapers—I will not rehearse the facts of the case—the judge, when asked to award exemplary damages to the claimant in respect of the behaviour of the defendant newspaper, said, “Under the common law I do not think that I can extend the ambit of exemplary damages beyond the categories of libel and slander and so forth to a claim involving a breach of confidence or the misuse of private information.”

In the Bill we are extending by statute what that judge could not do, but we are extending it only to cases involving “relevant publishers”; we are not extending it to what I will crudely call “irrelevant publishers” or individual defendants who might misbehave in such a way that brings them within the regime of either of the two limbs of exemplary damages. I do not want there to be two separate types of exemplary damages. One statutory system should govern the consideration and awarding of exemplary damages, not one and a half or two systems. I urge the Government to consider this when they are thinking about how to take these matters forward. Perhaps having done so they will think that my concerns are of no importance or account, but I raise them nevertheless, admittedly in the light of having seen the document only during the course of this afternoon.

New clause 27A on the award of costs mirrors the arguments about exemplary damages. I entirely understand that the policy behind exemplary damages and the statutory costs regime as described in this set of manuscript amendments is intended to incentivise relevant publishers to come within the regulatory scheme. That is understood and perfectly sensible. However, we are in danger of misleading ourselves if we think that that is going to lead to easy and early resolution of media disputes. A moment ago I had a brief discussion with the right hon. and learned Member for Camberwell and Peckham (Ms Harman) on arbitration and so forth. New clause 27A(2) —I will read it, if I may, because it might be helpful—says:

“If the defendant was a member of an approved regulator at the time when the claim was commenced (or was unable to be a member at that time for reasons beyond the defendant’s control or it would have been unreasonable in the circumstances for the defendant to have been a member at that time), the court must not award costs against the defendant unless satisfied that…the issues raised by the claim could have been resolved by using an arbitration scheme of the approved regulator, or…it is just and equitable in all the circumstances of the case to award costs against the defendant.”

That involves a bit of saying, “On the one hand but then on the other.” It is not quite clear which is the desired policy because there is a bifurcation.

On the question of whether

“the issues raised by the claim could have been resolved by using an arbitration scheme of the approved regulator”,

we would of course first have to see what that arbitration scheme looked like. Going back to the days of the now-no-longer-regretted Press Complaints Commission, that organisation, because of how it was set up and staffed and how the panels of adjudicators were composed, was wholly incapable of dealing with hugely complicated factual issues or with matters that required quite a nice calculation, or a nice discussion, of matters of law.

One might think that it would be very sensible that if a series of grossly defamatory allegations were made in a front-page article in a tabloid newspaper, or any other newspaper, that would lead to a dispute resolution process of the sort envisaged under this regime. Of course, it has a spurious attraction: “Let’s mediate, let’s settle, and let’s get it all dealt with quickly and cheaply and with the least possible intervention by lawyers.” As a matter of theory, that is a jolly good idea, but disputes come in different shapes and sizes. One can have the simplest possible dispute that does not require evidence or looking at complicated documents. I give the example of the meaning of words. If an article is defamatory on the face of it, a professor of English does not need to come and give a lecture about what this word means or that word means. The judge, if he is the arbiter, or the arbitration panel, can say, “This, in its natural and ordinary meaning, bears the following defamatory meaning”—end of story. Then the defendant, or the respondent to the arbitration, can say, “Okay, I accept what you say and I apologise—I didn’t mean that.” If meaning is the only question that has to be considered, some form of early, non-court dispute resolution, assuming that the panel is competent, would be a perfectly sensible way to do it.

Let us assume, however, that four contended meanings can be derived from the words under discussion. The defendant newspaper, be it a relevant publisher or otherwise, may say, “We don’t think that the words have those two highest meanings, but we do think that they have the two lower, less serious and less defamatory meanings. In so far as those meanings are to be derived from the words, we say they are true and we intend to justify them. We will also go further by saying that those meanings are not only true as a matter of fact, but that, in so far as they comprise or include comment, they are honest comment.” That will require the proposed system’s mediation procedure to go into all sorts of complicated questions with regard to the disclosure of relevant evidence, documents and so on.

--- Later in debate ---

[Mr Speaker]

Order. The hon. Gentleman’s intervention is exceptionally lengthy. I know that he has a distinguished record at the bar. If he were being paid by the word he would be greatly enriched, but I trust that he has made his point to his satisfaction. If not, he can always have another go in a moment.

[Sir Edward Garnier]

What the PCC was good at was dealing with unfairness—the hideous intrusion on private grief, the doorstepper, the camera coming through the letter box, the knock on the door demanding a photograph of the dead child and so on. The PCC dealt with that extremely well, but what it could not deal with was the multi-issue disputes that I have outlined.

It is not just a question of assessing the truth or falsity of words or of whether they are defensible and honest comment. On honest comment and certain forms of qualified privileged defence, the judge or the arbiter has to consider the question of malice and the respondent newspaper’s motive when it published the words complained of. I do not think, even with the best will in the world, that the proposed arbitration system for relevant publishers, under a recognised regulator, good though it will be, will be sufficiently well breeched and resourced to substitute itself for a disinterested judge when dealing with the case.

When it comes to disciplinary measures or the incentivisation of costs to bring people into this scheme, either as claimants or defendants—this goes back to a point that I made in the earlier debate—it will not be possible to deal with many expensive cases cheaply and quickly. They will need to go to a more formal, court-like, if not court, system. They will require proper arbitration with qualified arbiters, the sifting and assessment of evidence, the judging of witnesses and the reading of lots of documents. Those are functions of any form of arbitration dispute and it will not be quick or cheap.

[Richard Drax]

Is my hon. and learned Friend saying that this proposed policy is a complete waste of time and that the system we have is perfectly workable, so long as it is more accessible to the many people who are not well off and cannot afford a listening?

[Sir Edward Garnier]

I most certainly am not saying that it is a complete waste of time. I am saying that we should not seduce ourselves into thinking that it will do more than it can. It will be a far better system, all being well, than the PCC. It will have real teeth. It will have the ability to discipline respondent newspapers that are within the scheme by awarding costs and penalties of one sort or another.

The cases in which the new system will award a penalty of £1 million will be so rare as to be unthinkable. I imagine that it will deal with cases rather similar to those that are dealt with under the provisions of the Defamation Act 1996 on summary decisions, for which there is a limit of £10,000. I suspect that many of the cases that at the moment go to the High Court under those provisions will, if people are sensible, go into the new scheme. It will look at low-level damages, low-level punitive sanctions and cases that do not involve lots of complicated factual and legal issues.

Just because the new system will not look at many cases and just because the cases will not be hugely complicated does not mean that we should not do it; we should. We need access to some form of arbitration system for the people who have been bullied and disturbed by tabloid newspapers sticking their lenses through people’s letterboxes and so on. However, I urge the House not to think that we have suddenly waved a magic wand and that all future disputes will be resolved between victims or individual claimants and large media organisations through a cheap and speedy system; they will not. We ought to be a little cautious about that.

[Mark Reckless]

I have been enjoying my hon. and learned Friend’s speech for the past 20 minutes and I believe that the House benefits greatly from his exposition of these concepts. However, I am still unclear whether he supports or opposes what is proposed.

[Sir Edward Garnier]

I do apologise if I did not make myself clear. I will try to do so again, but perhaps rather more speedily. I support what is in the measures. It is easy to understand that point, I suspect.

[Mark Reckless]

indicated assent.

[Sir Edward Garnier]

The second point is that, although I support the measures, I suspect that they will be of limited availability and limited use. However, that they will not solve every problem does not mean that we should not deploy them to solve some problems. As I said a moment ago, the sorts of problems that I think they will be used to solve are those that are currently dealt with summarily under the Defamation Act 1996 with a damages limit of £10,000. There is no suggestion of a damages limit here, but I think that it is in that area of dispute that the system will work. It will be broadly in disputes over meaning, unfairness or beastly behaviour by a newspaper that it will work.

The new system will also bring into the exemplary damages regime, to go back to my first set of arguments, causes of action for which punitive damages cannot currently be received under common law, such as breach of confidence and misuse of private information.

There is a lot to be said in favour of what is proposed. I just urge Members not to get excessively excited about what we are achieving. There will come a time when we have to look at the guts of the regulatory system, including at who is to be on the panels that decide the cases and so on. There is therefore a lot more work for the Minister for Government Policy and the Secretary of State for Culture, Media and Sport to do, with co-operation, I hope, from the Opposition parties and our coalition partners.

I am probably going to the church by way of the moon, but I really do think that much of what has been said today is commendable, but that much of it is too overexcited. Yes, we should celebrate the consensus, but let us not be misled by it.

--- Later in debate ---

[The Secretary of State for the Home Department (Mrs Theresa May)]

I beg to move, That the Bill be now read the Third time.

The Bill has undoubtedly been enhanced by the process of parliamentary scrutiny, so I would like to pay tribute to all right hon. and hon. Members who served on the Bill Committee and to those who spoke on Report, as well as to the Clerks and the Bill teams in my Department and the Ministry of Justice for their advice and support. In particular, I would like to commend the work in Committee of the Minister for Policing and Criminal Justice, my right hon. Friend the Member for Ashford (Damian Green), and the Minister of State, Home Department, my hon. Friend the Member for Taunton Deane (Mr Browne), who is unable to be here this evening owing to the imminent—it might even have happened in the past few hours—arrival of the baby that his partner has been expecting.

The Bill already had many excellent features when it was first introduced in the other place last May, but it now returns to that House with a number of important new additions to which I shall refer. I welcome the broad measure of support for many—indeed, for most, I think it fair to say—of the provisions in the Bill. Over the two days on Report, the Government have, quite properly, been probed on a number of detailed aspects of the Bill, but the approach of the official Opposition, in Committee and again on Report, has been to seek to weigh down the Bill with a litany of requirements to produce impact assessments or to undertake reviews. Of course, we must properly assess the impact of these important measures, but the Government are determined to get on with the task of implementing these much-needed reforms to our justice system, not to procrastinate and delay by undertaking review after review.

I commend the efforts of all those who work with professionalism and dedication in our criminal and civil justice systems, but reforms are undoubtedly needed if we are to continue to see further reductions in crime, including serious and organised crime, and drive further improvements in the efficiency, effectiveness and responsiveness of the police, prosecutors, the courts, and prisons and probation services. Our reforms must be judged, first and foremost, by whether they help us to cut crime and lead to a reduction in harm to our communities and to fewer victims of crime.

For too long, too many organised criminals have managed to stay one step ahead and beyond the reach of law enforcement. That will be the case no longer. The new National Crime Agency will have the capabilities, powers and authority to bring about a step change in our response. It will have a global reach and a local impact. It will lead the fight against the gangs that traffic drugs, people and guns; who abuse and exploit children; and who corrode and subvert our institutions and cost our economy billions of pounds a year. It will not do this alone, but in partnership with others. We are redrawing the policing landscape, with the NCA at the centre. The public will be better protected, as will our national security, for its establishment

The introduction of the new drug-driving offence will bear down on those who put other road users at risk of death and serious injury by taking illegal drugs and driving, and the enhanced protection for householders who honestly act in self-defence, and in the defence of their loved ones, when faced with an intruder in their home will ensure that the criminal justice system treats them as the victim, not as the perpetrator, of a crime. Furthermore, in helping the NCA and its law enforcement partners to tackle serious, organised and complex crime, the Bill provides for an innovative new tool—the deferred prosecution agreement—that will enable more organisations that commit economic and financial crimes to be brought to justice.

Among the important changes made to the Bill in this House is the provision to strengthen the civil recovery regime. As well as seeking to prosecute and convict those who commit crimes for financial gain, we must also ensure that we use all legitimate means to deprive such individuals of their ill-gotten gains wherever they may be. The Bill plugs a significant gap in the Proceeds of Crime Act 2002 that had opened up as a result of the Supreme Court’s judgment in the case of Perry. It cannot be right that someone who commits crimes in this country should be able to escape the reach of our courts by siphoning off the profits of their criminal activity to buy property and other assets in another jurisdiction or to hide away cash in some foreign bank account. The Bill makes good the damage done to the civil recovery regime by the Perry judgment and ensures that, provided there is some connection with the United Kingdom, the reach of our courts continues, as before, to extend worldwide.

We have also made another important change to the 2002 Act. The system of restraint orders under that Act is designed to ensure that someone suspected of profiting from crime cannot squander or squirrel away their assets while the proper legal processes leading to the forfeiture of those assets is under way. However, it cannot be right that those with significant restrained assets can then qualify for publicly funded legal aid, free from any contribution. Those who can afford to pay towards their defence costs should do so, even if their assets are frozen. I am pleased that the House has today agreed to add provisions to the Bill to end this abuse. In implementing the scheme, we will want to be assured about the potential impact on the moneys paid as compensation to victims or to the police and prosecutors to fund further enforcement activity. Our aim should be to ensure that more is received from criminals, rather than simply to redistribute funds around the criminal justice system.

The Bill also includes some important reforms to the system of immigration appeals. There are two drivers for these reforms. The first is to ensure that the limited resources available in this tight financial climate are focused on those immigration decisions, such as a refusal of asylum, that have the more significant impact on the persons affected. The refusal of a family visit visa simply does not fall into that category of seriousness. No other category of visit visa attracts a right of appeal and the costs of the appeals process in such cases simply cannot be justified, particularly when the more timely and cost-effective option is to submit a fresh application.

The second driver underpinning the reforms to the immigration appeals system is to ensure that those who are a threat to our national security are removed from this country as quickly as possible. It simply makes no sense for those whose presence in this country the Home Secretary has personally deemed not to be conducive to the public good should then be able to return to the United Kingdom to challenge the cancellation of their leave, nor should someone who is being deported on national security grounds be able to delay their removal from this country by raising any and all objections on human rights grounds, which must then be determined before the deportation can be effected. Following an amendment in Committee, such a person will now be entitled to an in-country appeal only where they would face a real risk of serious, irreversible harm if their deportation were to go ahead before the appeal had been heard.

Finally on this issue, I thank my hon. Friend the Member for Esher and Walton (Mr Raab) for his implacable resolve that the qualified right to respect for private and family life under article 8 of the European convention on human rights cannot be allowed to stand in the way of the will of Parliament on the deportation of foreign nationals who commit serious offences. Last June the House gave its unanimous support to changes to the immigration rules for this purpose. I have already indicated that I now intend to bring forward primary legislation as soon as parliamentary time allows to establish the correct approach to article 8 in immigration cases. I am determined that the will of Parliament on this issue will prevail.

My hon. Friend has also been assiduous in seeking to strengthen the safeguards in our extradition arrangements. It is vital that we have effective extradition arrangements with our European partners and countries further afield. This country must not become a safe haven for those who commit offences abroad, nor should those who commit crimes here be able to escape justice by fleeing our shores. However, I will be the first to accept that our extradition arrangements must not only be fair, balanced and proportionate, but be seen to be such. That is why I have brought forward a significant change to the arrangements—namely, to introduce a new bar on extradition on grounds of forum, so that wherever possible decisions about where a trial should be held must be made in open court, where they can be challenged and explained. We will continue to examine whether we can make additional changes to the Extradition Act 2003, both to add further safeguards where they are needed and to improve its effective operation. I am determined to bring forward such changes as soon as parliamentary time allows.

[Sir Edward Garnier]

I want to press the Home Secretary further on that point. When does she think parliamentary time will be allowed? Will it be before the end of this Session, or are we talking about later in the year or just some time in the future? [Laughter.]

--- Later in debate ---

[Sir Edward Garnier]

I congratulate all those who have had rather more to do with this Bill than I have on getting to this point, and I hope that it will have fair passage in the other place next week. I am particularly pleased that, after a great deal of to-ing and fro-ing, the Bill still contains clause 32 on deferred prosecution agreements. I have a bit of a one-track mind on the subject, but I suspect that this piece of the Bill is going to earn, rather than cost, the Treasury some money—acting as a criminal justice weapon that will be to the advantage of the Chancellor. I hope that as he thinks about this Wednesday, he will remember clause 32 of this Bill.

I urge my right hon. Friend the Home Secretary—and the Justice Secretary, who is temporarily absent—to get on with the underlying secondary legislation, Crown court rules and so forth, which will allow the deferred prosecution agreements to be implemented. I hope that we can prosecute the first deferred prosecution agreement before the end of this year and, if not before Christmas, very shortly after it. It will be a valuable addition to our criminal justice armoury.

I heard what my right hon. Friend the Home Secretary said about further consideration of extradition matters. It was, if I may say so, pretty dreadful that we did not have an opportunity to discuss any aspect of extradition this evening. This was an entirely self-inflicted wound, and I suspect that with a little more flexibility it could have been achieved—but there we are. I know that my right hon. Friend has said that something will be done about it later in the year. I am sure she will be as good as her word. I shall certainly be watching to see that she is.

Leveson Inquiry

Lord Garnier Excerpts

Monday 3rd December 2012 Commons Chamber

[Maria Miller]

I will just finish my point, and then I will give way to a few of my hon. Friends who have been trying to catch my eye.

The police and crime commissioners took office on 22 November and the college of policing will come into being this week. The Independent Police Complaints Commission is being given new powers and Her Majesty’s inspectorate of constabulary has greater independence and a new non-police chief to head it. Increased transparency will support stronger systems for whistleblowing and both will contribute to a culture of openness and responsiveness, and will increase public confidence in the police. Those are all important actions that have already been taken. My right hon. Friend the Home Secretary will report to Parliament on all that in January.

[Sir Edward Garnier (Harborough) (Con)]

I thank my right hon. Friend for giving way so generously. It is becoming difficult to follow the thread of her argument. That is not her fault, because it has been interfered with by so many people seeking to intervene. I plead guilty to that myself.

Will my right hon. Friend confirm something that Lord Justice Leveson said on any number of occasions? I will quote paragraph 6.1 on page 1771:

“I will say again, because it cannot be said too often, that the ideal outcome from my perspective is a satisfactory self organised but independent regulatory body, established by the industry, that is able to secure the voluntary support and membership of the entire industry and thus able to command the support of the public.”

We are not talking about—and Lord Justice Leveson is not talking about—the statutory control of the press. Can we try to move away from the hyperbole that suggests that Lord Justice Leveson is demanding some form of Stalinist control of the press?

[Maria Miller]

I understand my hon. and learned Friend’s intervention, but I carefully draw his attention to the fact that the issue is about making the new system effective, and that is where the discussion lies. I gently remind him that what the Prime Minister set out last week was very clear: the Government absolutely agree with the principles in Lord Justice Leveson’s report, and we are looking at how they will work in practice.

--- Later in debate ---

[Mr Whittingdale]

I think I have already dealt with that, but the right hon. Gentleman is right. Lord Hunt himself suggested that there should be some statutory recognition of the body in the context of, for instance, defamation cases, so that it can be taken into account when damages are awarded. However, that is not the same as setting up a body by statute, or statutory underpinning. It is all very well for the right hon. Gentleman to laugh, but there is a massive difference between the law recognising the existence of a body and the law somehow having power over that body.

[Sir Edward Garnier]

Does my hon. Friend agree that the hon. Member for Vauxhall (Kate Hoey) may have slightly misquoted Lord Justice Leveson—wholly unwittingly, I am sure? Lord Leveson identified the Daily Telegraph investigation of parliamentary expenses as an example of investigative journalism coming to the point, but surely the central fact is that there are aspects of privacy law that protect and enhance freedom of expression—for example, the right of journalists to protect their sources.

[Mr Whittingdale]

I have very little time left. I could probably spend another hour discussing the whole issue of privacy law, but I shall merely tell my hon. and learned Friend that I hear what he says.

I am absolutely at one with those in the Chamber who believe that we need to establish—

--- Later in debate ---

[Sir Edward Garnier (Harborough) (Con)]

May I begin by declaring an interest as a practising member of the defamation and media law Bar? I speak here, however, as a Member of the House and not as a barrister representing any particular client, claimant or defendant. The fact that I am currently acting for a well-known claimant whose reputation has been grievously damaged in the recent past has no bearing on what I want to say—

[Dr Thérèse Coffey]

By TV.

--- Later in debate ---

[Sir Edward Garnier]

As it happens, I have over the past 35—[Interruption.] Does my hon. Friend the Member for Suffolk Coastal (Dr Coffey) wish to intervene?

[Dr Coffey]

Yes. I would just like to point out that in the case of the person for whom my hon. and learned Friend is rightly working, it was television making references to that allegation, not the press.

[Sir Edward Garnier]

I think I might be permitted to know a little more about that case than my hon. Friend does. As it happens, I have over the past 35 years or so—[Interruption.] Would she stop mumbling?

Over the past 35 years or so, I have acted for and advised both claimants and defendants in more or less equal measure. Unsurprisingly, many of the defendants were newspaper publishers, editors and journalists and their broadcast media equivalents.

The House and the public as a whole owe a huge debt of gratitude to Lord Justice Leveson. His report is long but comprehensive. It is thorough and analytical. It contains opinion and recommendations, but they are based on fact, founded on the evidence he heard and read. Neither he nor his report can be described as “bonkers” and the report does not resort to hyperbole, make hysterical criticisms of the media or demand state control of the press. It is, in my view, a fair and balanced report that has exposed and tackled some difficult, if not entirely novel, questions.

I say that the questions were not entirely novel, because in this House in January 1960, a Mr Leslie Hale, who was then the Member for Oldham West, moved to repeal the Justices of the Peace Act 1361, among whose provisions was one to outlaw eavesdropping. A predecessor of mine as Solicitor-General, Mr Peter Rawlinson, then the Member for Epsom, said:

“Translated into ordinary terms, the Bill which the hon. Member seeks to introduce, dressed up like a radical bird of paradise, is nothing less than a modest charter for peeping Toms and eavesdroppers…It is also a charter for other strange people who pester law-abiding citizens and persons of that kind.”

He went on to say:

“The modern use of the Bill is mainly to prevent the ordinary citizen from being pestered by those unbalanced eccentrics who, with an imagined grudge, patrol the outskirts of houses, terrifying families by constant use of the telephone, or by those people who are unbalanced and usually malevolent but who do not break the law by means of assault or trespass. Therefore, there is no weapon which the law-abiding citizen has against them except the use of these powers which may be the only effective one which rests in the hands of such citizens.”—[Official Report, 26 January 1960; Vol. 616, c. 54.]

So over a period of about 600 years the issue of intrusion into the private lives of others by use of illegal listening devices, be it the human ear or electric surveillance machinery, has been current. This is one of the reasons why the inquiry by Lord Justice Leveson was initiated.

At heart, it seems to me that we are discussing the age-old problem now described as the tension between articles 8 and 10 of the European convention on human rights. Very often, people seem to remember the rights, but they do not seem to remember the exceptions to those rights. Article 8 says:

“Everyone has the right to respect for his private and family life, his home and his correspondence”,

but it goes on to say:

“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”,

so it is very much a qualified right, as is article 10, which provides the right to freedom of expression. It states:

“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.”

But paragraph 2 says:

“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

There are the tensions between articles 8 and 10, and there also are the exceptions to those two great rights which nobody in the House or elsewhere would find in the least bit controversial.

The issue that we are confronting—my hon. Friend the Member for Maldon (Mr Whittingdale), the Chairman of the Select Committee, drew this out, as have other Members this afternoon—is not whether we should have state regulation of the press. We are not talking about state regulation of the press in the sense that Mugabe, Putin or the Chinese politburo control the press. What we are talking about is whether the press needs to have a self-regulated body which is recognised by the state as being a competent authority to regulate the press’s activities.

The distinction is important. Much of the argument that one has seen in the press and elsewhere, and to some extent in discussions in and around the House, has been utterly off the point. It is to traduce the work of Lord Justice Leveson to suggest that he wants state control of the press. He has said on any number of occasions—I shall quote one or two examples—that the ideal that he is looking for is that

“the industry should come together to create, and adequately fund, an independent regulatory body, headed by an independent Board, that would: set standards, both by way of a code and covering governance and compliance; hear individual complaints against its members about breach of its standards and order appropriate redress; take an active role in promoting high standards, including having the power to investigate serious or systemic breaches and impose appropriate sanctions; and provide a fair, quick and inexpensive arbitration service to deal with any civil complaints about its members’ publications.”

As a member of the Bar, I would of course like people to litigate—that is how I pay my mortgage—but the short point is that if a system can be devised that has the approval of Parliament and which carries with it public approval and confidence, it seems to me that that mechanism, just as the Financial Services Authority is a body given permission by statute, could allow the press to inhabit a world of free expression, subject to articles 8 and 10, that would not interfere with its rights but would also adequately protect, by self-regulation, the rights of the victims of press intrusion and other forms of activity that are subject to the criminal or civil law. Of course many of the activities that led the Government to set up the Leveson inquiry were already against the criminal law, as my right hon. Friend the Member for Hitchin and Harpenden (Mr Lilley) correctly spotted. It is illegal to hack, blag and interfere with other people’s telecommunications under various statutes going right back to the 1361 Act that outlawed eavesdropping.

[Sir Gerald Howarth]

Did not Lord Justice Leveson say that criminality on an industrial scale was itself part of a persistent culture of abusing private individuals, in particular, who have no recourse unless through my hon. and learned Friend, notwithstanding his modest costs? We in this House at least have a forum, but they have none at all, and that is why the report is so important. It revealed that there was a culture, and the press must deal with that, not just the criminality.

[Sir Edward Garnier]

rose—

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order. Shorter interventions would be helpful. I know that two knights want to exchange views, but I worry about the costs that might be charged.

[Sir Edward Garnier]

I agree with the premise of my hon. Friend’s point but think that we perhaps draw different conclusions from it. Lord Justice Leveson has stated, as did our right hon. Friend the Secretary of State at the beginning of this debate, that the status quo is not an option, so if we learn nothing else from Leveson, we should learn that what went before cannot go on. It seems to me to be uncontroversial that the PCC is dead, for example. We need some other form of disciplinary body or regulatory system that matches public concern but also has parliamentary approval. We could approve through parliamentary procedure a body that is not statutory, but we could also approve a regulatory body that is not the creature of Parliament but that would be recognised and saluted by statute. There are plenty of other bodies that discipline the professions or other public bodies but that are not controlled by the Government.

[Mr Dominic Raab (Esher and Walton) (Con)]

Lord Justice Leveson’s approach is to argue that regulation must be independent not only of the press, but of Parliament, but he then calls for a statute, drafted by Parliament, detailing the criteria for recognition of the regulations, and that covers everything, from membership of the regulator to the content of the new rules and its powers. How does my hon. and learned Friend reconcile what strikes me as a fatal paradox in that approach?

[Sir Edward Garnier]

I do not have to reconcile it, because I find the answer on page 1,780 in part K of the report. I will not read it out because I do not have enough time, but I suggest to my hon. Friend that it repays reading. He should look at paragraphs 6.38 and 6.39. If I was a member of an appellate court, I would simply ask the shorthand writer to transcribe it into my judgment, but I cannot—I say to the Hansard reporter, have a go. Essentially, my hon. Friend’s point is one that is often made. If I may say so, with a little thought and study of the report, he will find that it is not strictly necessary to have the concerns, genuine though they are, that he displays and that they are dealt with by Lord Justice Leveson.

Time is running short and I have galloped through the points I wanted to make, no doubt inadequately and in a somewhat garbled fashion. There is plenty in the report that touches on the police, the conduct of the press and the appalling treatment meted out to victims, such as the Dowler family and others. That is all a given. It is also a given that the status quo ante must finish.

The debate that we are having, in this House and outside, is about what we mean by statutory regulation. To me, statutory regulation means no more and no less than what Lord Justice Leveson says: that a statute will recognise as an effective way of dealing with press conduct—and wider media conduct, including the internet—the disciplinary system to which the press must adhere. Clearly, we need buy-in from the widest possible section of the media, including the ordinary traditional press—the newspaper groups—and television and broadcast media through to the local press and others. I recognise that there will be difficulties over individual bloggers and so forth.

If we concentrate on what this report is not about, we miss a trick. Let us concentrate on what it is about, which is the democratic and constitutionally proper regulation of a disciplinary system.

Oral Answers to Questions

Lord Garnier Excerpts

Tuesday 18th September 2012 Commons Chamber

[Chris Grayling]

The key issue related to last week’s criminal injuries debate is that I want to ensure that we prepare for the unexpected. I do not see that there is a case for targeting resources at minor injuries that do not have a significant effect on the lives of those affected. I want to concentrate resources on people who suffer life-changing circumstances as a result of crime. However, I want to ensure that we have enough flexibility to deal with unexpected lower-level cases that do not conform with the overall norms of the scheme.

[Mr Edward Garnier (Harborough) (Con)]

My right hon. Friend will know that the Royal Society for the Prevention of Cruelty to Animals is a non-state organisation that can bring prosecutions in its own name. Unlike the Crown Prosecution Service, however, when it loses cases because it has got either the law or the facts wrong, costs orders are never made in favour of the successful defendant. Will he investigate why the courts never award costs orders against the RSPCA and in favour of successful defendants?