Defamation Bill
Lord McNally Excerpts(11 years, 3 months ago)
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I always think it is extremely helpful for the courtesy of the House if the Opposition make not only their case but mine as well, but perhaps it will help if I also put forward a few ideas.
This Bill has been two years in preparation. It has been a draft Bill, it has gone through pre-legislative scrutiny, it has gone through all its stages in the House of Commons and it has spent four very full days in Committee. One of my fears over the past two years, and certainly since the Leveson inquiry was set up, has been that this discrete Bill dealing with defamation would be engulfed by the Leveson tsunami. Given the way in which matters are handled in this House, even if it agreed with every word of both amendments, it would be—to put it mildly—impetuous for it to vote for amendments that run to three pages in the Marshalled List, with in one case a weekend and in the other less than 24 hours’ notice of their content. In other circumstances, some of the old barrack room lawyers in this place would have drawn attention to that.
There is no doubt in my mind that we are dealing with one of the most serious challenges to political parties and to Parliament in the past 70 years. I have never been in any doubt that how we respond to Leveson will be a test of how each and every one of us carries out our responsibilities in this Parliament.
To put my own attitudes in context, I have been campaigning for the strengthening of press regulation for 15 years. Some 10 years ago when the noble Lord, Lord Puttnam, and I tabled some modest amendments on press regulation, I was told from this Dispatch Box by the Labour Minister of the day that our proposals were the “slippery slope” to a state-regulated press. I say that because I do not want people to assume that there is total moral rectitude on that side and none on this side. I do not believe that the proposals I made 10 years ago were a slippery slope towards a state-controlled press. I do not believe that the proposals before the House today are a slippery slope towards a state-controlled press. That is not the issue before this House.
There is an issue before the House that cuts many ways. The noble Lord, Lord Stevenson, has summed it up: trust. I hope that my noble friend Lord Black realised, from the reception to some of his remarks, that the media still have a long way to go before there is any sense of trust in what they are doing to rectify the harm that they have done to our body politic. I hope that one of the values of this debate is that each of the party leaders understands the question of trust which hangs over their intent. I am as frustrated as anybody that two months have passed since publication of the Leveson report. There is a strong case for getting things moving. If this debate has helped to stimulate progress, that is certainly a value that it has. There is a value in all three parties putting their cards on the table. This is not a time for secret diplomacy.
I also agree with the noble Lord, Lord Stevenson, that we should still strive for the prize of all-party agreement on this. We want a settlement about the relationship of our media with Parliament to carry all-party endorsement.
My noble friend Lord Elton asked me a question which an old campaigner such as him knows that I cannot answer on behalf of the Government. He wants to know whether the Government would support legislation in this matter if these talks collapsed and my noble friend Lord Hunt failed to deliver. I cannot speak for the Government but I know my party’s policy; namely, that if there is no agreement and we cannot achieve the tripartite agreement that I believe is the prize, we certainly would be in favour of legislation in this area.
Therefore, there has to be some understanding and balance about this almost unique move that we are going through. From our long relationship, the noble Lord, Lord Puttnam, knows that I fully understand where he is coming from. There is power in the Back Benches. This show of Back-Bench power today sends a necessary message which breaks the dreadful silence to which he referred. He perhaps has not studied the rest of the Bill as fully as he might. Other parts of the Bill try to deal with access to justice, including costs, as referred to by the noble and learned Baroness, Lady Scotland, where we are pursuing the Leveson recommendations on qualified one-way costs shifting.
The debate has brought up a number of issues that Members should ponder. Over the years, I have been on the same side as almost every Member who has contributed to this debate, including the noble Baroness, Lady O’Neill, in her call for a cheap, effective and independent answer. I will come to the point about independence in a moment.
When the noble Lord, Lord Lester, was having his skirmishes and the noble Baroness, Lady Kennedy, and my noble friend Lord Faulks were making their points, it crossed my mind that passing these amendments as they are might cause even more work for my learned friends while the judges work out the intentions of Parliament in passing these proposals. As I have said, that is the danger in such matters.
My noble friend Lord Fowler is an old ally. He rightfully called for what I think is the rational approach; that is, to look at the building blocks and at how they can be placed. The suggestions here may indeed be the right building blocks. I agree with the noble Baroness, Lady Hollins, that there is an expectation in the public at large and in both Houses of Parliament for Leveson to be implemented. However, Parliament has a right to look at these matters. I still believe that the tripartite talks are our best way to make lasting progress. That is where I disagree with the noble Lord, Lord Skidelsky. It is always tempting and alluring to say that this is the best chance we have or that “tomorrow never comes”, as the noble Baroness, Lady Boothroyd, said. But sometimes it does come and I do not think that we should abandon hope. I noticed that my noble friend Lord Phillips referred, while supporting the amendments, to the fact that they are defective.
The most reverend Primate the Archbishop of York reminded us about trust. I hope that we can face the question of how we can use the next few weeks—I am not talking about months or years—to restore the trust that clearly has been damaged in the conduct of these talks. There is a danger that passing these amendments today will be a diversion and not progress as regards what I and the House want to see.
It is a matter of judgment, and the noble Lord, Lord Puttnam, and the other movers of amendments will have to make their decision. However, let me comment on the intervention of the noble Lord, Lord Hunt, which I very much welcomed because it brought up to date and put on the record the very detailed work that he has been doing and the real progress that has been made. He was right to remind us that Lord Justice Leveson himself said that the industry has the responsibility to set up the new structure. On the question of independence, I can say only that the noble Lord, Lord Hunt, and I were on the executive of the Atlantic Association of Young Political Leaders— a modest body, as you can tell from its title— some 40 years ago. On the basis of that, I have no doubt that this difficult task is in safe and independent hands.
When Lord Justice Leveson’s report was published, all agreed that the inquiry had uncovered a shocking culture of wrongdoing at the heart of certain elements of the press, which the noble Baroness, Lady Boothroyd, referred to. There was also, as Leveson pointed out, an inadequate system of press regulation—something that I described in this House as a “sweetheart organisation”. The Prime Minister has stated that the status quo is not an option, and the Deputy Prime Minister has said that we must not now prevaricate. We are all agreed that a tough and truly independent new system of self-regulation is required to ensure that real change happens. At the same time we must ensure that there is freedom of expression for the press, which is a cornerstone of our democracy.
To that extent, I understand the intention of the noble Lord, Lord Puttnam, in tabling his amendments, as well as that of the noble Baroness, Lady O’Neill. I sympathise with the concerns that the Leveson report needs to be implemented and with the noble Baroness’s wish to see progress on this important issue. We are all agreed on the need for action and I welcome the noble Lord’s contribution to finding the right solution. However, I remind noble Lords that when the Leveson report was published, the Prime Minister and the Deputy Prime Minister agreed that a cross-party approach was the best way to ensure that a consensus could be reached on these contentious issues—and very few of us in this House would disagree with that. It is right for Parliament to send clear messages to our respective party leaders but, as I said before, the tripartite way forward is the prize that we all should seek.
To that end, the cross-party talks have been taking place over a number of weeks and the Government remain committed to ensuring their success. These discussions are not to be taken lightly. No fewer than 10 meetings have taken place between senior representatives from across the parties, and those representatives include the Secretary of State for Culture, the deputy leader of the Opposition and, from this House, my noble and learned friend Lord Wallace of Tankerness and the noble and learned Lord, Lord Falconer. From what I have heard, the talks have been constructive, although I also accept the point made by the noble Lord, Lord Stevenson, that there seems to have been a certain lack of momentum in recent days, which makes this debate not unwelcome.
Lord McNally
Have I said something that I should not have said?
I should like to update noble Lords on some of the discussions that have already taken place on Lord Justice Leveson’s recommendations. First, recommendations concerning the press and police have been considered by the cross-party group and measures are being developed further by the Home Office, on which the Home Secretary will report to Parliament shortly. Secondly, Lord Justice Leveson’s recommendations regarding the press and politicians have been considered and are now being taken forward by the Cabinet Office.
Thirdly, there have been discussions on the complex issues raised by data protection. As the Minister with responsibility for data protection, I am looking with my right honourable friend the Justice Secretary at the best way to take this forward, preferably once we have a clear idea of what we are doing as far as the tripartite talks are concerned. This is a complex series of decisions. Furthermore, the talks continue to consider, among many other issues, the best way to recognise the new press self-regulatory body. While there are areas of differences, there are also many areas of agreement. There is a widespread desire for a cross-party solution to this issue of fundamental importance to our democracy. A great deal of work has already taken place in talks and these amendments risk pre-empting their outcome.
This brings me to the key issue: whether statute is the most appropriate route to delivering the underpinning that Lord Justice Leveson sets out. This question has been the topic of impassioned debate not only today but across the weeks since the report’s publication. The cross-party talks have considered a number of options, including various draft Bills—among them the Bill prepared by my noble friend Lord Lester. In addition, there have been discussions about a proposed royal charter. To add to the debate and to demonstrate to this House that concrete progress is being made, I can announce today that a draft royal charter proposal will be published next week—the noble Lord, Lord Stevenson, is well informed.
As I hope noble Lords will recognise, I have outlined just a few of the issues that are subject to detailed consideration in cross-party talks and with stakeholders. I am convinced that an approach agreed cross-party, if it can be secured, is the best way to do justice to Lord Justice Leveson’s proposals and to ensure a new system of press regulation which can enjoy secure and real public confidence.
I recognise the strong feelings in this House and the desire to send a message. I am sure that that message has been clearly heard. However, I ask noble Lords to allow those cross-party talks to reach their full and considered conclusion rather than to bring legislative proposals before this House at this stage. The noble Lord was wrong to say that this is the end of the matter; the Bill will have a Third Reading and go back to the other place.
This is, of course, a matter of judgment. However, I feel that with the progress that is being made on the kind of things to which the noble Lord, Lord Hunt, referred, and given that the royal charter proposal will be on the table next week, there will be a chance in the next few days to give some real impetus to these talks. As I said previously, there is no doubt in my mind that the real prize is not a victory or defeat on this amendment today but a successful outcome to the tripartite talks. That would give us the real holy grail here, which is a cross-party endorsement which sticks in parliamentary and legislative terms and has widespread support among the public. I hope that, with those remarks, my old friend will agree to withdraw his amendment.
Baroness O'Neill of Bengarve
My Lords, it has been a very instructive debate. I think that it has become clear to many of us how little many of us who are not close to the cross-party talks know about what is actually being said or discussed. There is, I am sorry to say, and as the most reverend Primate reminded us, a serious question of trust here that is not going to be remedied quickly. A number of issues speak directly to that. Perhaps I may address one which the noble Lord, Lord Hunt, raised. He spoke repeatedly, as he has previously, about independent regulation, and he was reminded by the noble Lord, Lord Puttnam, that independence is not just a matter of one’s belief that one is a person of independent judgment; it is also a question of institutions, structures, how one is appointed and to whom one is accountable. Our debates would be very much clarified if we did not speak of a self-regulation body that lacks an appropriate form of accountability to a recognition body as a form of independent regulation. It is less than that.
I have every faith in the good intentions of the noble Lord and his colleagues in seeking to define a way forward, but without the statutory recognition body which is integral to Lord Justice Leveson’s proposals, we have no reason to expect that that will endure across the vicissitudes of time and self-interest. We have repeated experience that what passes for self-regulation has been self-interested regulation. That is why many of us are extremely anxious on behalf of our fellow citizens who have been victims of intrusion and defamation, and lack remedies.
I will withdraw Amendment 1A, tabled in my name and that of my noble friend Lady Hollins. It is a complex amendment and it is imperfect. Greater clarity will be served if noble Lords make a straightforward decision on supporting the amendment in the name of the noble Lord, Lord Puttnam, and colleagues. That puts the issue squarely. We would all acknowledge that the details of these amendments—Amendment 1 and the amending amendments—are not perfect. They probably cannot be perfect at this stage. However, I hope that noble Lords will feel willing to support the amendment of the noble Lord, Lord Puttnam, knowing that it affords the Government more than one opportunity to reconsider the matter and come back on it. As the Minister indicated in his very interesting reply, it also affords some further time for reflection. I beg leave to withdraw Amendment 1A.
Lord McNally
My Lords, I am unused to getting such unanimous support from all sides of the House. I am grateful for the interventions from my noble friends Lord Lester, Lord Faulks and Lord Marks and the noble and learned Baroness, Lady Butler-Sloss. As has been pointed out, we are being asked here whether there should be provision in the Bill requiring the court to strike out actions that do not meet certain thresholds, unless the interests of justice require otherwise.
The noble Baroness has made clear that the intention underlying the amendment is to make the law as clear as possible for the ordinary citizen. We share that aim, and have tried as far as possible to make the Bill accessible and readily understandable to those who may need to refer to it. However, the provision that she proposes is simply unnecessary, and could itself cause confusion and unnecessary cost.
As the Government have made clear in previous debates on this point, the courts already have a power in Rule 3.4 of the Civil Procedure Rules that permits them to strike out all or part of a claim where there are no reasonable grounds for bringing it or they consider it to be an abuse of process. The courts are very familiar with that power and we have no doubt that they will use it more often in defamation cases once the new higher threshold of serious harm is in place.
The noble Baroness expressed concern that the Civil Procedure Rules were couched in permissive rather than mandatory terms. We do not consider there to be anything in this point. We see no reason why a court would allow a case to continue if the threshold test were not met.
Lord Browne of Ladyton
I support of this amendment and do so by adopting the argument put forward by the noble Lord, Lord Lester of Herne Hill, which, I think, in turn adopts what I described as the compelling argument put forward by the noble and learned Lord, Lord Lloyd of Berwick, in Grand Committee on 19 December at col. GC 522. I commend the recommendation of the noble Lord, Lord Lester, to the Minister.
In rereading the debate in Grand Committee, I am reminded that he offered a very similar opportunity to the Minister on that occasion, which the Minister scorned. I think that the noble and learned Lord, Lord Lloyd of Berwick, was awaiting the letter that became the letter of 9 January 2013. I recollect that in col. GC 528 in the same debate the noble Lord, Lord Ahmad, indicated that he might be able, in the same vein as was suggested by the noble Lord, Lord Lester, to give the comfort that the noble and learned Lord was seeking. I have to say—this should not surprise anybody—that we were all, I think, persuaded by the noble and learned Lord’s argument in relation to Telnikoff and why it should not still be considered to be the law in the same circumstances. I hope that the Minister will be able to respond to the opportunity that he has on this occasion to resolve this issue once and for all.
Lord McNally
My Lords, I indeed hope that this will be resolved once and for all. If my noble friend is going to withdraw under the temptation that the noble and learned Lord, Lord Lloyd, can bring this back at Third Reading, I would rather that he tested the opinion of the House. I will try to make as clear as possible on the record the Government’s opinion on this, but I cannot start trying to rerun 20 year-old legal battles.
Clause 3 provides for the honest opinion defence to be available if three conditions are met. Amendment 5 provides that the second condition in subsection (3)— that the statement complained of indicated, whether in general or specific terms, the basis of the opinion—is met if the defendant indicates the subject matter of a letter or article appearing in a newspaper or other publication and the date when it appeared.
On the basis of our discussions with the noble and learned Lord, Lord Lloyd, on whose behalf my noble friend is speaking this evening, we understand that the core issue underlying the amendment relates to what should be taken into account in determining whether the statement complained of is one of fact or opinion. We consider that this goes to the first condition in Clause 3(2)—that the statement complained of was one of opinion—rather than to the second condition in subsection (3).
At common law, when deciding whether a statement is one of fact or opinion, the court can look at the statement only in its immediate context. So if the statement appears in a news story or in a letter to an editor, the court can look only at the particular news story or the particular letter. The intention behind Amendment 5 is to change this so that the court can also look at other documents that provide a context for the statement.
This is a difficult issue, as is evidenced by the varying judicial opinions that were expressed when this was considered by the Court of Appeal and the House of Lords some 20 years ago in the case of Telnikoff v Matusevitch, to which my noble friend has referred. However, on balance, and with the greatest respect to the noble and learned Lord, Lord Lloyd of Berwick, the Government believe that the current law is in the right place. We consider that it should be clear from the document in which the statement appears that the author is expressing an opinion, otherwise a reader cannot know that there is a judgment to be made. They must be entitled to accept as a fact something that is presented as a fact. It follows from this that we cannot accept Amendment 5. Although the Bill abolishes the common law, we can see no reason why the courts would depart from the current approach.
As I have said, a defendant who satisfies the first condition that the statement is one of opinion must also satisfy the second condition that the statement must indicate, whether in general or specific terms, the basis of the opinion. Amendment 4 would replace the word “basis” with the words “subject matter”. The provisions in the Bill reflect the test approved by the Supreme Court in Spiller v Joseph that,
“the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based”.
We consider that the word “basis” more accurately captures the essence of that test.
I hope that, on that basis, not only will the noble Lord withdraw this amendment, but that when the noble and learned Lord, Lord Lloyd of Berwick, returns to these shores and reads Hansard, he will accept that he has had a good run for his money but that this is where the Government’s view is and where it will remain.
Lord Lester of Herne Hill
I am grateful to the Minister for his reply. The further the Bill proceeds through this House, the more I am convinced that he would have made a superb Queen’s Counsel. Maybe as a result of his experience, that will be his next career.
I have no idea whether the noble and learned Lord, Lord Lloyd of Berwick, will be satisfied by the Minister’s answer. I cannot control or fetter him in any way. As I understand it, the Government’s position is that the second condition—
“that the statement complained of indicated, whether in general or specific terms, the basis of the opinion”—
was based on the judgment of the noble and learned Lord, Lord Phillips of Worth Matravers, in Spiller v Joseph, in which he held that it is not a prerequisite of the defence that readers should be in a position to evaluate the comment for themselves. My understanding is that the Government’s position is that Clause 3(3) has been prepared on that basis, and that the amendment of the noble and learned Lord, Lord Lloyd, is therefore unnecessary.
I see the Minister nodding. I hope that the ministerial nod, which I now record in Hansard, will cause the noble and learned Lord, Lord Lloyd of Berwick, to treat it as sufficient for his purposes and for those of Pepper v Hart. On that basis, I beg leave to withdraw the amendment.
Lord McNally
My Lords, I am grateful to the contributors to the debate. The noble Lord, Lord Taverne, expressed the concerns of Sense about Science, and the noble Baroness, Lady Bakewell, spoke on behalf of, or was briefed by, PEN. These are organisations that I have listened to, and have had contact and dialogue with, throughout the two years’ gestation of the Bill. My aim remains to get as close as possible to the aspirations of those organisations. I suspect that in the end they will still say that we have fallen short but, particularly in Clause 4, we have tried to move in a direction that makes the law better and clearer. I am grateful to the noble Lord, Lord Browne, for his comment on our work on recasting it.
Amendment 8 is a government amendment that owes its authorship to the noble Lord. I am grateful for that and I hope that our acceptance of it is a demonstration of my willingness to listen as the Bill has proceeded. Our amendment provides for the court to have regard to all the circumstances of the case in deciding whether the requirements for the public interest defence under Clause 4 to be satisfied have been met. This amendment responds to concerns raised by the noble Lord, Lord Browne, in Committee that following government amendments to Clause 4 which, among other things, removed the list of factors for the courts to consider, there was a risk that the courts would simply invent a new checklist in interpreting and applying the new defence—a point made by the noble Lord, Lord Taverne.
In the context of that debate, I indicated that we did not believe that a provision requiring the court to consider all the circumstances was strictly necessary, because the courts would do this in any event. I also indicated that in developing a body of case law the courts may inevitably decide that particular factors are relevant in determining whether the defence has been established in a case. That remains our view. However, on reflection, I believe that it would be helpful to send a signal to the courts and practitioners to make clear the wish of Parliament that the new defence should be applied in as flexible a way as possible in light of the circumstances.
Amendments 6 and 7 would change the second limb of the test for establishing the public interest defence under Clause 4, whereby it would be satisfied if the defendant could show that he could reasonably have decided that publishing the statement was in the public interest, rather than that he reasonably believed that that was the case. This is intended to make the test more objective, as noble Lords have indicated. It reflects concern that the provision as currently drafted could lead to claimants seeking to introduce arguments relating to the defendant’s motive, which the courts have indicated is not relevant in relation to the common-law defence. While a claimant might seek to introduce arguments about the defendant’s motive, given the strong signal given by the courts in cases such as Flood to the effect that such considerations are usually irrelevant, we think it highly unlikely that the courts would entertain them.
Let me say here—the noble Lord, Lord Browne, has indicated that he is listening carefully to this—that my absolute intention is for this part of the legislation to embrace and reflect Flood. We are concerned that adopting the wording of the amendment could shift the focus more towards what a hypothetical defendant might have known or what steps they might have taken. This would not reflect the Flood judgment. In Flood, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said that the courts were examining whatever the defendant,
“knew (and did not know) and whatever they had done (and had not done)”.
To paraphrase, the courts have to focus on what the defendant’s state of knowledge was and what steps they took prior to publication. We consider that the current wording in Clause 4(1) better captures this test and better reflects Flood.
Lord Lester of Herne Hill
Perhaps the Minister could be referred by his officials to what the noble and learned Lord, Lord Brown, actually said in paragraph 113 of the judgment, where he said that there was a single question, which was,
“could whoever published the defamation, given whatever they knew (and did not know) and whatever they had done (and had not done) to guard so far as possible against the publication of untrue defamatory material, properly have considered the publication in question to be in the public interest?”.
As I read that, it is very close to Amendment 6. I mention it because this is a question purely of what was meant, as the noble Lord, Lord Browne, indicated.
Lord McNally
I shall certainly draw that intervention to the attention of my officials. My briefing poses the question: does the new reasonable belief test reflect the current law or change it? It then goes on to say that our intention is to reflect the current law as articulated in cases such as Flood and we believe that it does so. It states that the test draws in particular on the way in which the noble and learned Lord, Lord Brown, approached the question in Flood. It then quotes exactly the same section of the judgment. As an innocent in this jungle of legal jargon and judgments, it does not surprise me that two sides of the case should quote the same judgment. We think that we have got it right and that what we have reflects the view of the noble and learned Lord, Lord Brown. We were doubly blessed in our Committee because we had both the noble Lord, Lord Browne, and the noble and learned Lord, Lord Brown, to give us wise legal advice. It is interesting that, in anticipating a question on that, my briefing should draw on exactly the same quote from the noble and learned Lord, Lord Brown, to defend what we have done as my noble friend Lord Lester claims for his amendment.
On Amendment 9, my noble friend Lord Phillips joined my noble friend Lord Lester in general castigation, and the noble Lord, Lord Browne, gave them some qualified support. I have warned my noble friends to be wary of qualified support from the noble Lord, Lord Browne; it leads them only into bad ways.
The amendment would remove Clause 4(2), which deals with reportage. “Reportage” has been described by the courts as,
“a convenient word to describe the neutral reporting of attributed allegations rather than their adoption by the newspaper”.
Subsection (2) is intended to catch the core elements of reportage as articulated by the courts. These are that where the defendant publishes an accurate and impartial account of a dispute between two or more parties, the defendant does not need to have verified the information reported before publication. This would not, however, absolve the defendant from the need to satisfy the court that, in all the other circumstances of the case, it was reasonable to believe that the publication was in the public interest.
Lord McNally
“(1A) Subject to subsections (2) and (3), in determining whether the defendant has shown the matters mentioned in subsection (1), the court must have regard to all the circumstances of the case.”
Defamation Bill
Lord McNally Excerpts(11 years, 3 months ago)
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Lord McNally
Lord McNally
“(6A) Regulations may make provision about the circumstances in which a notice which is not a notice of complaint is to be treated as a notice of complaint for the purposes of this section or any provision made under it.”
Lord Lucas
My Lords, I was hoping to get some explanation of Amendment 15 as we have not debated it. I rather wonder why it was moved formally.
The Minister of State, Ministry of Justice (Lord McNally)
Because we want to get home before 3 am.
Lord Lucas
Well, let me delay things a little—but not for long.
We have had a long debate and a great deal of discussion about this but it appears to me that the regulations as they are will not allow the Government to give website operators, such as myself and others, the comfort we need to be able to keep postings in place when we are challenged as to whether they should be and we think that they are fair comment. We need some way of discovering whether the law is on our side or against us. The amendment is intended to allow the Government to frame regulations that would give us that comfort and allow us to allow others freedom of speech. I beg to move.
Lord McNally
“(9A) The defence under this section is defeated if the claimant shows that the operator of the website has acted with malice in relation to the posting of the statement concerned.”
Lord McNally
Lord McNally
I note what my noble friend said. I remind him of the very thorough examination that we gave to Clause 5 in Committee, but I take his strictures; I will stay as long as he likes.
During discussion in Committee on amendments tabled by the noble Lord, Lord Hunt of Chesterton, relating to the defence under Clause 6 for peer-reviewed material in scientific and academic journals, uncertainty arose as to whether the reference to journals in Clause 6 includes journals published in electronic form. As I indicated in my response to the amendment of the noble Lord, Lord Hunt, it does. However, to avoid any uncertainty on the point and to ensure that the position is clear, Amendment 18 confirms that that is the case.
I have had helpful discussions with the noble Lord, Lord Hunt, and the noble Lord, Lord May, who unfortunately cannot be with us today, on the amendments that the noble Lord tabled in Committee. In the light of that discussion I would like to make clear, for the avoidance of doubt, that the term, “scientific and academic journals” embraces journals in the very important fields of engineering and medicine and that any peer-reviewed material published by scientific and academic bodies in the form of a journal, whether electronic or otherwise, is covered by the clause.
We think it right that the defence under Clause 6 should be carefully controlled and not extended to discussion on scientific or academic issues more generally. However, we are confident that, in addition to the specific protection provided by the clause, other provisions in the Bill, such as the serious harm test in Clause 1 and the public interest defence in Clause 4, will provide more effective protection of the scientific and academic debate, as well as encouraging freedom of expression in other areas. I beg to move.
Lord Hunt of Chesterton
I thank the Minister for his remarks. I support the amendment. I just want to explain that there are important organisations in, for example, engineering and medicine. I trained as an engineer and had discussion with the Institution of Civil Engineers and the Institution of Mechanical Engineers. They have electronic journals, which are used for highly peer-reviewed discussion of important technical issues. Similarly, there are in medicine. The way that the Minister has explained the application of the law will be very useful for those organisations which currently have to spend significant time and money on legal clarification before they publish technical commentary on current issues. That will be useful for many professional bodies, including academic bodies. I warmly welcome the Minister’s remarks and the amendment.
Lord McNally
Lord McNally
My Lords, Amendment 19 relates to an issue raised in Committee by my noble friend Lord Phillips of Sudbury. The Defamation Act 1996 gives a defence of qualified privilege to fair and accurate reports of proceedings at a general meeting of a UK public company, and to copies of and extracts from various documents circulated to members of such a company. Clause 7(7) extends this protection more widely to cover reports in relation to companies listed on recognised stock exchanges worldwide and to summaries of such material. This includes material,
“circulated to members of a listed company which relates to the appointment, resignation, retirement or dismissal of directors of the company”.
Amendment 19 would, in addition, extend qualified privilege to material relating to the appointment, resignation, retirement or dismissal of the company’s auditors. When my noble friend raised this issue in Grand Committee, it was suggested that the existing provisions of Clause 7(7) might already cover it. We considered that in circumstances where this information was contained in documents circulated to members of a company by or with the authority of the board of directors or by the auditors, it would be covered by paragraph 13(2) of Schedule 1 to the 1996 Act. However, circumstances where the information was published without the authority of the board of directors would not be covered so, on reflection, we consider it desirable to extend the provision to cover these additional situations. This would be in line with the more general government policy to increase the transparency of interactions between companies and their auditors. I am grateful to my noble friend for his suggestion in this respect and I beg to move this amendment.
Lord McNally
Perhaps I may try to deal immediately with the intervention of the noble Lord, Lord Prescott. I am not quite clear which committee received this evidence.
Lord Prescott
It was the Joint Committee on Privacy and Injunctions chaired by Mr Whittingdale.
Lord McNally
The noble Lord will know that we recently set up a Joint Committee on Parliamentary Privilege. To a certain extent, I am flying blind but I certainly think that his point should be drawn to the attention of that committee. I am a member of the Privileges Committee of this House and I will draw his remarks to that committee’s attention as well. It is a very difficult area. As he said, we have had one or two examples of honourable Members and noble Lords pushing the envelope as regards parliamentary privilege, which is one of the reasons why the Joint Committee was set up. I believe that this is the first example of a member of the public abusing it in that way. The noble Lord’s remarks certainly should be looked at by both committees.
As regards the eagle eye of the noble Lord, Lord Phillips, and possible contradictions, perhaps I may consult the parliamentary draftsmen on whether he is right. We still have time before Third Reading to iron out any wrinkles that he or others have spotted.
On the central issue raised by the noble Lord, Lord Browne, I will try again to see whether he is any more satisfied. As he explained, the amendment is at least in part an attempt to codify the defence of innocent dissemination. We explained in Committee, and previously in the other place, the Government’s concern about a provision such as this, which requires the court, as part of an assessment on jurisdiction, to assess at least to some extent the merits of the case before it. We think that such an approach has the potential to be unnecessarily confusing.
However, I will focus my response on the substantive issue at hand here—the defence of innocent dissemination. We have acknowledged the debate that exists over the terms of Section 1 of the 1996 Act and how this compares to the common law defence. During the Committee stage the noble Lord, Lord Browne, asked me to be “more courageous” in articulating how the Government saw Section 1 and the common law interrelating. When this House was considering what became Section 1 of the 1996 Act in Committee, my noble and learned friend Lord Mackay of Clashfern, the Lord Chancellor at the time, indicated that the Act would “supersede” and “replace and modernise” the existing law. There was debate at the time as to quite what the test for innocent dissemination was and whether Section 1 properly captured it. The Government of the day took the view that it did but the debate continues.
Under Section 1, a secondary publisher is at risk of liability once it is put on notice that a statement is defamatory. It is argued that, at common law, the secondary publisher retains the innocent dissemination defence provided it honestly and reasonably believes that a defence is available in respect of that publication. Carter-Ruck on Libel and Privacy describes the Section 1 defence as generally being more generous to secondary publishers. On this issue, however, it suggests that while the position is not without doubt, the better view is that the Section 1 defence is more easily lost than innocent dissemination at common law. Gatley on Libel and Slander takes the view that it is “possible” that the statutory defence is narrower than the common law in this respect.
The Government’s view is that it is right to say that Section 1 has, in effect, superseded the common law defence of innocent dissemination. As I have tried to illustrate, the position at common law prior to the 1996 Act was not as clear as certain lobby groups would like to suggest. We could have explored the option of extending the Section 1 defence but, as with Clause 5, the Government have taken the view that the better approach is to remove the secondary publisher from the process.
We believe that the approach that we have adopted in Clause 10 will provide effective additional protection for secondary publishers such as booksellers. It is consistent with the approach that we have taken elsewhere in the Bill in that the focus is on directing the claimant towards those who are actually responsible for the defamatory material. In the unlikely event that it is not reasonably practicable to sue the author, editor or publisher, Clause 10 allows a claimant to bring an action against a secondary publisher such as a bookseller. However, nothing in the clause would then prevent that bookseller from deploying any defences that may be available to him. We believe that this is a proportionate approach that is fair to all those concerned.
I will say in addition that in my discussions and evidence regarding the point that the noble Lord, Lord Browne, made about the intimidation of booksellers, the sending of a letter on high-quality, posh paper represents a kind of bullying. I hope that this clause and what I have said will give booksellers the protection to resist that and that they can use the protections in the Bill against such intimidation. I have tried to be as candid and clear as I can to the noble Lord about our approach to this. Whether it is courageous enough, I do not know.
Lord Browne of Ladyton
My Lords, I am grateful to the Minister for engaging with the spirit of the amendment, to the noble Lord, Lord Phillips, for engaging with its detail, and to my noble friend Lord Prescott for seeking the opportunity that it provided for him to exercise another issue. I hope he is satisfied that he has raised an important and serious issue. It is to be hoped that the broader consultation and debate on privilege that the Government are undertaking will deal with that among other things. We certainly should not have a situation where, by our own actions, we defeat the law that we pass.
On this occasion, I say with respect that the Minister has engaged more with the detail of the argument than he has done before. I think that he appreciates that. He and I have been partial in our quotation of the noble and learned Lord, Lord Mackay of Clashfern, from when, as Lord Chancellor, he introduced the 1996 Defamation Bill to this House. There are other quotations from the noble and learned Lord that I could play into the debate, which might get us back to the situation that we were in not so long ago in our deliberations on Report—quotations from the same judge that could be used to support two different sides of the argument. However, I have no intention of trying to replicate that interesting Alice in Wonderland environment that lawyers can sometimes create.
The Minister has probably been more courageous on this occasion. As regards the Booksellers Association, I accept what the noble Lord, Lord Phillips, said—that this provision applies to other secondary publishers, although I might say in passing that I am not sure that his interpretation of Amendment 17 is correct. However, we will perhaps return to that. I hope that booksellers will be satisfied. I have enormous sympathy for this group of people, who are at the mercy of a collision between two others. They are—if I may say so with respect to website operators—less culpable or less engaged in that process than perhaps website operators could be. There are some website operators whose very business plan encourages them to go to the margins and sometimes beyond the limits of what is allowed without remarks being deemed defamatory. Booksellers are not in that situation. They are one of many groups of people whom we are trying to improve and clarify the law to support.
I shall go back to those whom I have been engaged with to see whether they are satisfied, but, at the very least, we should strive with this Bill to put them in the position that they were in with the defence of innocent dissemination. I think that they will be comforted by the fact that the Minister has made it clear that it was his aim with this—I might say, although it does not sound like it—very welcome provision to codify that defence among other things. They are generally very pleased with the provision but would like it to be perfect—but then would not we all? In those circumstances, I beg leave to withdraw the amendment.
(b) any person who was not the author, editor or publisher of the defamatory statement to stop distributing, selling or exhibiting material containing the statement.(1A) In this section “author”, “editor” and “publisher” have the same meaning as in section 1 of the Defamation Act 1996.”
Lord Browne of Ladyton
My Lords, the effect of Amendment 23 would be to disapply the Legal Aid, Sentencing and Punishment of Offenders Act in relation to defamation claims. The roots of this debate go back some time.
The roots of this debate go back some time. The Minister will be very familiar with his contribution to the debate on Legal Aid, Sentencing and Punishment of Offenders Bill on 27 March 2012, when he gave an assurance to the House on the issue of the disapplication of LASPO, as it has become known, and that in relation to defamation claims it would be dealt with in the context of the Defamation Bill. Repeatedly, our party has sought to persuade the Government that the appropriate way in which to live up the assurance given by the Minister was simply to disapply the provisions of LASPO to defamation claims in the Defamation Bill. However, there have been a number of developments. Since we last tried unsuccessfully in the Grand Committee to persuade the Minister to do that, there has been a commencement provision of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which has a saving provision in it in relation to publication and privacy proceedings, defined in the commencement order as including defamation. So far, so good. However, there is still the possibility that a further commencement order may be made at some time in the future to commence the provisions of Sections 44 and 46 of the said Act in relation to publication and privacy proceedings.
The amendment provides the Minister with the opportunity to finish speculation about that possibility for ever by, in this provision, disapplying the provisions of that Act to defamation proceedings. If he cannot do that, second best would be to have an assurance that there will be no commencement order in relation to publication and privacy proceedings and defamation at some time in future. What would reinforce the argument for that are the recommendations of the Leveson report, which specifically deal with that issue. However, since we last met in Grand Committee and since the commencement order was passed, we have had another development—the passing in this House some five or six hours ago of Amendment 1 to this Bill, which not only deals with the issue of costs for defamation but deals with early dispute resolution, introducing arbitration proceedings. That has changed the environment in which this amendment was proposed. It is almost certain now that, whatever else happens, the issue of costs in defamation actions will have to be returned to again in the context of this Bill, either to modify the amended Bill as it presently stands or to do something else. I am not suggesting anything at the moment, having successfully stayed out of that debate thus far and hoped to keep myself in that position. I am minded at this stage to treat this to some degree as a marker, recognising that this issue will have to be debated, considered and legislated on in some fashion or other before the Bill can be completed. In the mean time, as this amendment is the only vehicle that I have to make this point, I beg to move.
Lord McNally
My Lords, I think that it was at an early stage of this Bill that I made it very clear that I was concerned with the matter of costs. The noble and learned Baroness, Lady Scotland, raised that in the debate on Clause 1 today. Everybody has recognised that this has been one of the key issues that have brought our libel laws into disrepute, and editors and journalists as well as ordinary citizens have long warned about the chilling effect of the current libel regime.
Although I do not object at all to the prodding from the noble Lord, Lord Browne, I hope he knows that in this respect he is pushing at an open door. He knows that the way that we have chosen to go was to ask the Civil Justice Council to look at how the Government can introduce a costs protection regime in defamation and privacy cases. The Master of the Rolls will report back to us with its suggestions by the end of March.
In the mean time, the Government have agreed that the provisions of the LASPO Act will not apply until a costs protection regime has been implemented. As the noble Lord indicated, the commencement order for this, which was laid on 18 January, includes a definition of “publication proceedings” and the cases to which the exemption will apply when Part 2 of the Act comes into force on 1 April. I should add that the Government’s definition goes wider than that proposed by Amendment 23.
Under our proposals, defamation and privacy cases will not feature as a permanent exemption from the LASPO Act, as this amendment seeks to apply. Instead, we will ensure that costs protection is in place so that anyone who needs to have security against adverse costs receives it. This will happen later in the year. This costs protection regime will apply to defendants as well as to claimants because defamation and privacy cases can affect academics, NGOs and ordinary people just as much as they can the super-rich and big businesses. The case for costs protection is even greater in these circumstances because an individual of modest means needs the assurance that if they have a good case that they need to pursue or defend, they will be able to do so without the risk of facing unaffordable costs.
The CJC will advise on the details by Easter. When the Government have properly considered the CJC’s proposals, the Civil Procedure Rules will be amended to introduce costs protection. As I say, we hope to be able to do that later in the year, but the current CFA and ATE arrangements will continue in place until then.
I once more reiterate to the House that I understand the concerns about access to justice in these cases. That is why we have taken the action I have outlined and it is why I am confident that we will be able to bring forward fully considered proposals which will ensure a proper and effective costs protection regime. I hope that on that basis the noble Lord will be prepared to withdraw this amendment.
Lord Browne of Ladyton
My Lords, I am grateful to the Minister for the clarity of his response. I think he knows that my view is that the undertaking in relation to costs protection is part of the answer but that this is a bigger problem than just costs protection. It is my ambition that the Government will be prepared to consider the disapplication of the provisions of the LASPO Act in all respects to the other parts of the challenges of defamation costs. Those costs are at the root of the problem of access to justice, which concerns the ability of people who do not otherwise have the resource to find solicitors who are prepared to take these sorts of actions on conditional fee arrangements and other arrangements. That should be reflected in the whole structure of costs.
I understand the effect of Amendment 1 well enough to know that this issue is not dead. I believe that we will need to return to this matter in some detail to deal with the way that the Bill has now been amended. I hope that the Government will apply their mind to that as quickly as possible and that we will see some movement. I am therefore confident that this is not the last word. It may be the Government’s last word but it will not be the last word on these issues. I shall continue to try to persuade the Minister of what I believe he already agrees with, although I have no desire to speak for him.
In the light of the fact that there will be further and probably better opportunities to deal with this issue in a more holistic fashion, I beg leave to withdraw the amendment at this stage.
Criminal Procedure Policy: EUC Report
Lord McNally Excerpts(11 years, 3 months ago)
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, clearly the noble Lord, Lord Beecham, had got his Monday morning grumpy hat on in his final tirade against the Government. I will come back to the points that he made in a minute.
I know a little about the House’s European Union Committee and I pay tribute to it. This report is in the great tradition of a committee at this end of the building which has always produced evidence-based reports in a considered way. This inquiry has been helpful in that
I concede one point to the noble Lord, Lord Beecham: the response and debate timetable seems to be leisurely, to put it mildly. I am not sure who takes the blame for that. Nevertheless, we have had the benefit of a good report.
I make no complaint that a number of references have been made to the Government’s decision to adopt an opt-out/opt-in approach to the 2014 decision. I shall take up the invitation of the noble Lord, Lord Bowness, not to pre-empt that debate. I am aware that Sub-Committees E and F of the European Union Committee are looking at this matter and I look forward to the report. I suspect that it will be in the great tradition of the European Union Committee in terms of an evidence-based analysis and wise recommendations. I shall not pre-empt that debate today.
It was interesting that the contributions to the debate endorsed the findings of the report that co-operation in this area is not the great danger to our beloved criminal justice system that might be suggested. The noble Baroness, Lady O’Loan, made the point that, in practice, it has worked extremely well and to the benefit of British citizens to have a policy of co-operation and of trying to set minimum standards. I understand the point of the noble Lord, Lord Hodgson, about national amour propre. I always find in our papers there is always scepticism that any country could have a justice system as fair as ours and that foreigners are not to be trusted with such matters. However, the more serious reality is that we have different forms of systems and that that sometimes makes it difficult to get complete cohesion. However, I take the point of the noble Lord, Lord Hodgson, that it is important that we carry public opinion and understanding with us on these matters.
A number of references have been made to the European arrest warrant. Again it is a matter of balance. The noble Baroness, Lady O’Loan, made a number of telling points about the effectiveness of the European arrest warrant and the fact that it is an important weapon in the armoury against organised crime, cross-border crime and other matters in what the noble Lord, Lord Maclennan, referred to as an increasingly mobile continent.
However, I do not think that it is fair to say that we have taken a negative view on that. We have pointed out, and a number of contributors have raised the fact, that there are issues about proportionality, dual-criminality and pre-trail detention that we wanted to discuss to try to get the arrest warrant improved. That has been our approach. The Home Secretary has responsibility for the European arrest warrant and it has been considered as part of the Scott Baker review. The Government’s response to that review is to take the opportunity of the 2014 opt-out decision to work with the European Commission and other member states to reform the European arrest warrant and to improve its operation.
The noble Lord, Lord Maclennan, warned and underlined that, in these areas, we cannot have complete harmonisation and that the case-by-case approach that the Government have taken has been right but that EU legislation adds value. My experience in the Ministry of Justice over the past two and a half years, as the report itself reflects, is that we have taken a very pragmatic and positive view in decisions in this area. The idea that somehow we were sitting out European co-operation in this area simply is not true.
The noble Lord, Lord Hodgson, asked whether we felt that existing limitations are sufficient to protect the criminal justice systems of member states. We believe that they are. There are a number of safeguards in the treaty to protect the criminal justice system of member states, including the existence of the emergency brake. The UK and Ireland have the additional safeguard of the opt-in. We agree that it is a difficult issue; that is why we scrutinise any new proposals to ensure the appropriate balance. Again, I take on board the noble Lord's argument that we must make sure that EU theory and its practice on the ground match up.
On the question of the directive on access to lawyers, it is too early to say what our final decision will be. We would want to consult Parliament were we minded to opt in and a series of further trialogue meetings is scheduled to take place in the next few months. However, we are participating in the negotiations. If the Government are satisfied that the final text represents an appropriate balance between the rights of defendants and the wider interests of justice, we will give serious consideration to applying an opt-in to it. We will consult Parliament about that before any decision is made.
The noble Lord, Lord Beecham, asked whether there was an assumption that UK citizens resident abroad could not benefit from these measures. The right should be afforded to all EU citizens resident in the relevant member state. He also asked what progress has been made on the victim directive. The directive was adopted on 4 October 2012 and is due to be implemented in 2015. The directive is aligned with the aims and objectives of our domestic criminal justice policies to ensure that the needs of the victim are put first.
Lord Beecham
Can the noble Lord enlighten me and other noble Lords as to why such a long time has elapsed between adopting the directive and implementing it? There may be a good reason for it but it would be interesting to hear what it is.
Lord McNally
No, I cannot give an explanation, but I will write to the noble Lord about that.
On the implementation of the European supervision order, we take our international obligations seriously and have implemented the vast majority of the measures, subject to the 2014 decision. Any further implementation of these measures will be considered on a case-by-case basis as part of the wider 2014 decision. In practice, the European supervision order is unlikely to help to avoid lengthy pre-trial custody in cases where an EAW has been used to secure the return of the suspect. That is for the simple reason that, the EAW having been needed to secure the return, the suspect has shown himself to be a flight risk, having already resisted voluntary return. In those circumstances, it is difficult to see the same suspect persuading the court to allow him to return home again.
The Government welcome the report. As I said, it shows the committee’s practice of employing detailed scrutiny and careful analysis. Criminal procedural rights reflect long traditions which have been developed carefully and with close consideration by both courts and Parliament, and now the devolved Assemblies. They reflect matters of considerable public policy concern, ensuring that offences can be properly and effectively investigated and prosecuted and that criminal proceedings are fair.
A number of safeguards are built into the treaty to ensure that the differing legal traditions of member states are respected. In addition, the UK opt-in applies in this area. We think that, in principle, minimum rules concerning the rights of individuals in certain areas of criminal procedure and the rights of victims of crime can help to facilitate judicial co-operation and mutual recognition—a point made by my noble friend Lord Maclennan. These measures are intended to build greater trust among the competent authorities of the EU member states which are charged with acting on decisions made in other member states by giving them greater confidence that the decisions were made against a background of minimum standards.
In order to ensure that all legislation in this area is appropriate and effective, we think that it is important that EU legislation is brought forward only in accordance with the treaties; where there is a convincing evidence-base for the need for such legislation; and where it is a proportionate response to an identified problem. This is an area in which there has been progress within the EU in recent years. The criminal procedural rights road map was agreed at the end of 2009 and subsequent legislative proposals have been brought forward by the European Commission. Furthermore, the Budapest road map, agreed in June last year, focuses on strengthening the rights and protection of victims of crime. So far, the Commission has brought forward six legislative proposals in this area and four directives have been adopted. We expect up to three further instruments to be proposed this year.
As the committee notes in its report, the UK already has a high standard of criminal procedural rights. This has been noted by the Commission, which has taken inspiration from our systems and procedures. The directive on the right to information clearly draws upon the PACE notice of rights and entitlements provided to suspects in England, Wales and Northern Ireland. The directive on the rights of victims of crime was also inspired by our practice. We have found that we can participate in most proposals in this area without having to make substantial changes to UK law and practices. The changes that we need to make to implement the victims directive are largely aligned to our domestic reform objectives—that the needs of victims are put first across the criminal justice system. We welcome the committee’s consideration of the potential added value of EU legislation in this area. The committee notes that in certain areas the EU legislation can be of real practical benefit to UK nationals travelling abroad if they become subject to the criminal justice systems of other member states, either as victims or as suspects. My noble friend Lord Maclennan and the noble Baroness, Lady O’Loan, made that point.
We also welcome the committee’s examination of the potential disadvantages of measures in this area: namely, the disruption to diverse and sensitive national criminal law systems. The Government have set out our approach to proposals for further EU legislation in the justice and home affairs area, including criminal procedural law, in the coalition agreement. The Government approach proposals on a case-by-case basis with a view to maximising our country’s security, protecting Britain’s civil liberties and preserving the integrity of our criminal justice system. This approach has been applied in respect of all criminal justice measures that have been brought forward since 2010 and we have opted in to all the criminal instruments in this area.
As I said at the very beginning, this has been an extremely useful debate on the basis of a very helpful report. Despite the rather intemperate rant of the noble Lord, Lord Beecham, at the end of his remarks, I think that the way in which we have gone about these areas has been pragmatic and analysis-based—where the Government have been more in keeping with the traditions of your Lordships’ European Union Committee than the noble Lord suggested. We have a good practical record. Where we have questioned, looked for amendments or waited before making a final decision, those actions have been based on good policy grounds, not on any kind of ideological motivation or hostility to the process. In that respect, I look forward to further work with the European Union Committee.
Legal Services Commission
Lord McNally Excerpts(11 years, 3 months ago)
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the Legal Services Commission decided to cease the Community Legal Service grants programme following careful consideration of all the issues involved and a public consultation exercise. These grant-funded projects and activities do not necessarily provide direct advice to the individuals eligible for legal aid. Following the Government’s legal aid reforms, the commission’s focus must be on providing advice to clients who qualify for legal aid through its contracted providers.
Lord Bach
My Lords, I thank the Minister for his Answer, but is it not rather depressing that these three highly respected and proven organisations are no longer to receive any public funding and are being put at some risk, and all for £650,000 per year? I am sure the Minister will agree that they all have a superb record over many years of helping often poor and disadvantaged people to obtain access to justice. Is it just coincidence that these changes to legal aid are coming at precisely the same time as radical reform of the welfare system is about to begin or is it, as seems much more likely to some of us, deliberate government policy to link these two things together so that if mistakes are made as a result of welfare reform—as they will be—there will cease to be any effective legal remedy for many people?
Lord McNally
My Lords, I am always fascinated by the way in which the noble Lord dismisses £650,000 as a mere bagatelle, but let us also look at the facts. This scheme for funding such bodies was introduced in 2000 and the three bodies in this consultation were awarded three-year contracts at the end of the previous Administration. Since then, we have twice extended their contracts by one year so that what was originally a three-year contract became a five-year contract. However, as I have explained to the House before, I am afraid that we have to concentrate limited funds on bodies that are giving sharp-end legal aid advice. These three bodies, particularly the Advice Services Alliance and the local Law Centres Network, are umbrella bodies that do not give such advice. Therefore, although in happier days they could win such contracts and do such work, there is simply no money.
Baroness Butler-Sloss
My Lords, is the Minister aware or does he appreciate the significance and importance of the Royal Courts of Justice citizens advice bureau? Having been a judge in that court for many years, I had personal experience of the advantages of the citizens advice bureau looking after unrepresented families in my court. Does the Minister realise that taking away the core funding at this moment, when the Government are also taking away legal aid for private family cases, is going to leave the public and the courts in absolute disarray?
Lord McNally
The CAB at the Royal Courts of Justice is able to apply for legal aid contracts in the normal way for the part of its work that is directly legal aid work. As regards broader CAB work, the Government have carried out a number of initiatives to provide funding while voluntary organisations make the transition to a much more difficult economic climate. I very much appreciate the record and work of the Royal Courts of Justice CAB in providing legal advice to individuals. However, I can only say to the House—as I have done frequently as we have gone through this exercise—that we are concentrating our resources on the sharp-end providers and will continue to do so.
Lord Mackay of Clashfern
My Lords, does my noble friend know of any organisation that provides legal advice more cost-effectively than these bodies do? Has the Legal Services Commission worked out what the effect would be in respect of their former clients if the funding were withdrawn from them?
Lord McNally
My Lords, again, I emphasise that the RCJ CAB was able to apply to the Advice Services Transition Fund and this has helped it to continue. How many times can I say this? I look at a budget each day and I see that hard decisions have to be made. Hard decisions are being made by charities and we have tried to give them help in the transition. Quite simply, the days when large amounts of government funds were available for these bodies are over and we all have to face that fact.
Baroness Hollis of Heigham
My Lords, why do those hard decisions have to be at the expense of the very poor and those needing help and advice? As my noble friend Lord Bach said, from next April, and particularly from next October, a brand new architecture of benefits—universal credit—will roll out to people who will, simultaneously, be losing large sums of money. Moreover, their claims will not be paper-based but will have to be online, even though something like a fifth of claimants do not even have access to a computer. As a result, they are going to need extensive help, support and advice at the very same time as the noble Lord is taking 40% of funding away from CABs across the country.
Lord McNally
The legal aid welfare spend will still be some £50 million. We are also in talks with the legal profession and with charitable organisations to help them with adjustments. The noble Baroness is right that we are talking about the poorest. Two years ago, when I announced this exercise, I said that if you cut a programme designed to help the poorest in our society then you will hurt the poorest in society. We are doing what we can to concentrate limited funds on the needy, but it is simply not good enough for the Opposition continually to be willing to sign every blank cheque and never tell us how they would save the money.
Arctic Report Card
Lord McNally Excerpts(11 years, 3 months ago)
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, there is time for both sides. Perhaps we can hear first from the noble Viscount, Lord Hanworth.
Viscount Hanworth
My Lords, an example of extreme folly is the manner in which we are allowing petroleum companies to pursue the exploration of oil and gas in the Arctic as the reduction of ice cover renders this more practical. Can the Minister tell us what steps, if any, the Government are taking to restrain such activities?
Defamation Bill
Lord McNally Excerpts(11 years, 3 months ago)
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The Deputy Chairman of Committees (Lord Geddes)
My Lords, it is now 2 pm. I have to start the proceedings as usual by saying that in the event of a Division in the House, which is extremely unlikely, the Committee will adjourn for 10 minutes. Before we come to the first amendment, the noble Lord, Lord McNally, has a statement to make which is not debatable.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, at the beginning of the Committee’s discussions on Tuesday, the noble Lord, Lord Browne of Ladyton, raised an issue in relation to legal advice which had been given to Rutland County Council. It suggested that the general powers given to local authorities in Section 1 of the Localism Act 2011 had overturned the bar on them suing in defamation, which was established by the House of Lords in Derbyshire County Council v Times Newspapers.
My officials have explored the issue with officials at the Department for Communities and Local Government, which is responsible for the 2011 Act. The Government are in no doubt that if a case were brought, the courts would still find that local authorities cannot bring action in defamation. The decision in Derbyshire was reached on public policy grounds, which we considered remain compelling. The House of Lords found that it would be contrary to the public interest for organs of government to be able to sue in defamation, and that it would be an undesirable fetter on freedom of speech. It must be borne in mind that Derbyshire was decided before the enactment of the Human Rights Act 1998. Consideration of Article 10 would only bolster the reasoning of the House of Lords in Derbyshire.
In any event, I can reassure the Committee that even if the issue was brought before the court and found to the contrary, the situation could be remedied by way of a statutory instrument under Section 5(3) of the Localism Act 2011. The power allows the Secretary of State to prevent local authorities using Section 1 powers to do anything specific in the order. In this case, an order could be made preventing any action being brought in defamation. I have already indicated in earlier debates our view that it is preferable for the courts to have the flexibility to continue to develop the Derbyshire principle, rather than to attempt to prescribe rigid boundaries in statute. That remains our view. In the unlikely event of any difficulty arising as a result of the provisions in the Localism Act, prompt action can be taken to address that without any need for primary legislation.
Clause 7 : Reports etc protected by privilege
Amendment 39
Lord McNally
When a Front-Bencher stands up, that is usually a signal that it is the end of the debate.
Lord Phillips of Sudbury
It is only a short point. Will the Minister confirm that the amendment will not affect a situation where a constituent writes to a Member of Parliament a brazenly vicious and malicious letter designed to cast some other constituent in the most deplorable of lights? I think that I am right in saying that malice would destroy the qualified privilege. On that basis, it might be worth having on the record that we are not by this amendment upsetting the law in that kind of situation, because it should not go that far.
Lord McNally
My Lords, the noble Lord, Lord Phillips, is the most frustrating of colleagues, because, the moment that I am tetchy with him about his cavalier approach to procedure, he then intervenes to make a very helpful comment. The question that he has asked, as well as the one asked by the noble Baroness, Lady Hayter, are ones on which I would be interested to hear the view of the noble Lord, Lord Mawhinney, because my reply is going to be to preach caution to the Committee.
I know that the noble Lord, Lord Mawhinney, unusually for him, expressed a degree of cynicism about how long the path ahead was for us on this, but I think that we should proceed with caution at this stage. It is an issue of relevance in a wider context than just defamation proceedings.
As noble Lords will be aware—and this is partly an answer to the suggestion of the noble Lord, Lord Mawhinney, that the Government were somehow dragging their feet—the Government published a draft Bill and Green Paper on parliamentary privilege in April last year. This sought views on a range of issues, including, in the broad context which I have mentioned, those which form the subject of this amendment and those in subsequent groups. Consultation on the draft Bill and Green Paper closed at the end of September, and a Joint Committee of both Houses has recently been established to consider the issue further. Therefore, in these circumstances we consider that it is clearly preferable for the issues relating to parliamentary privilege to be left to the Joint Committee to consider and take forward rather than pre-empting its considerations by including the provision in the Bill. No doubt, the deliberations of the pre-legislative scrutiny committee to which the noble Lord, Lord Mawhinney, referred and, indeed, these contributions will inform the deliberations of the Joint Committee, but on that basis I hope the noble Lord will be prepared to withdraw the amendment and leave the matter in the hands of the Joint Committee that has been established.
Baroness Hayter of Kentish Town
My Lords, the amendment in my name and that of my noble friend Lord Browne of Ladyton would extend the privilege set down in Clause 7(4) to local government. This is probably the existing intention of the clause; we can see no reason why it would not be. It is really simply for the avoidance of doubt that the suggested wording would give comfort to those local journalists who play rather an important role in propagating the work of local councils.
It would also be useful to seek some clarification from the Minister, to whom we gave some notice, about whether this clause covers the Welsh and Northern Ireland Assemblies—although the Bill does not cover Northern Ireland, reports of that Assembly could well appear in our newspapers and affect people here—and the Greater London Authority. I am fairly sure that it covers all of those and is about government in its broadest sense, but we want the wording to make that clear. I beg to move.
Lord McNally
My Lords, as an afterthought on my noble friend Lord Mawhinney’s approach to amendments, I can confirm that officials do wonderful work. However, his approach also reminds me of a story that the noble Lord, Lord Healey, told. When he was Minister of Defence, a man came to him with a solution to the Russian submarine menace: you boil the North Sea, and when the water has evaporated you can see where the submarines are on the seabed. Denis said to the man, “That’s fine, but how do I boil the North Sea?”. The man said, “Look, Mr Healey, I’ve had a good idea. Surely you and your officials should work out the practicalities”. That is just a passing thought.
I understand why the amendment has been tabled. I hope that my reply will clarify matters; I am not sure, given the presence of some very informed noble and learned friends. What I say at this Dispatch Box is of assistance to judges and courts when they make such decisions. I think so anyway, as a non-lawyer. Is it called Pepper v Hart? You see, I am learning on the job here.
Clause 7(4) extends the provision in paragraphs 9 and 10 of Schedule 1 to the Defamation Act 1996 on qualified privilege attaching to information published by legislatures, Governments and authorities exercising government functions. The changes ensure that the provisions also cover fair and accurate summaries of material and that the scope of the defence is extended to the relevant publications no matter where in the world they occur.
Amendment 39A amends the definition of governmental functions used in subsection (4) and in the 1996 Act to include a reference to local authorities as well as to police functions. We do not believe that this is necessary. We consider that local authorities are already covered by the reference to,
“any authority performing governmental functions”.
The Defamation Act 1952 covered information published,
“by or on behalf of any government department, officer of state, local authority, or chief officer of police”.
The 1996 Act was intended to extend this coverage. We are in no doubt that the reference to,
“any authority performing governmental functions”,
should be read as embracing the specific bodies referred to in the 1952 Act.
There is no indication that the absence of a specific reference to local authorities has caused any difficulty in practice. However, to take the specific point, we also believe that the devolved administrations would fall within the term “legislature”, which is used in the amendment to the 1996 Act made by subsection (4) of Clause 7 and elsewhere in relation to qualified privilege.
The Deputy Chairman of Committees
It is unusual to speak after the Minister, but there is nothing to prevent any noble Lord speaking.
Baroness Hayter of Kentish Town
There is no answer to that. On the first point, on the face of it, it appears to be not a bad idea. I think that some of us feel that half the problem is that auditors are not sacked often enough. On the Financial Services Bill, we went through many of the things that they somehow failed to notice. I cannot resist saying that the people who would be most likely to sue are, of course, auditors. Auditors are firms. If we were to get our way about resisting non-natural persons having the same rights as natural persons, perhaps we could get around it that way. That is partly because I cannot resist reminding the Minister of that.
On conferences, my fellow members of the Joint Committee said that we felt that the peer-reviewed nature of the documentation or the speech is important. However, in many of the cases of scientific conferences where action has been taken, it has been taken by a corporation. That is not wholly so, but very frequently, so there may be more than one way to skin this cat. We would support the rightful emphasis on peer-review.
Lord McNally
In relation to Amendment 40, the Defamation Act 1996 gives a defence of qualified privilege to fair and accurate reports of proceedings at a general meeting of a UK public company and to copies of and extracts from various documents circulated to members of such a company.
Clause 7(7) extends this protection more widely to cover reports in relation to companies listed on recognised stock exchanges worldwide and to summaries of such material. This includes material circulated to members of a listed company which relates to the appointment, resignation, retirement or dismissal of directors of the company. The debate has reflected this. In drawing up this Bill, we have constantly challenged about where we are drawing the line and whether it is the right place to draw the line.
Amendment 40 would in addition extend qualified privilege to material relating to the appointment, resignation, retirement or dismissal of the company’s auditors. We do not consider that this would be appropriate. Extending privilege in this way would give protection to reports on contractual material between companies and their auditors such as issues of appointment and dismissal. We consider that this would be an inappropriate intrusion into how companies conduct their business affairs which could impact on business efficiency, and that it is preferable for the focus of Schedule 1 to continue to be on protecting fair and accurate reports of material which is publicly available.
Amendments 41 and 42 would alter the way in which the Bill extends qualified privilege—
Lord Browne of Ladyton
I am grateful to the Minister for giving away and apologise to Members of the Committee since I did not take part in the debate on this amendment. It occurred to me as he was speaking, and I draw his attention to the provisions of his own Bill, that the place where he seeks to draw the line and the restriction that he seeks to maintain may well already be overtaken by the provisions of new sub-paragraph (2)(a) which subsection (7) seeks to add to the schedule. I cannot think of any circumstances where the kind of document that the Minister is talking about in such a meeting would not be circulated to the members of the company with the authority of the board of directors of the company. That information will already be privileged as far as I can see. I may be wrong, but it seems to me that the Minister’s concern about revealing private commercial business of this nature is already overtaken by the provisions which he seeks to put in the Bill.
Lord McNally
I doubt that. We are moving the extra line to where a company has made a decision to change its auditors, which will be reported to the members of the company. There may be a number of reasons for that, but the report will be suitable for the annual general meeting, and other issues, personal or related to performance, may be covered by it. As I have said, in a number of these areas, we are drawing lines. Where there is a relationship between a company and its auditors, I just wonder whether it would be entirely conducive to good working relations between them if a reason for dismissal which was extremely damaging to the auditors was privileged in this way.
Lord Lester of Herne Hill
My Lords, I am sorry to say that I cannot understand that. We are dealing with a public listed company; we are dealing with the resignation or removal of directors, which is a very serious step; we are dealing with qualified privilege, quite rightly, to give a fair and accurate report of that. The auditors are officers of the company performing a vital role. If they are mixed up with some wrongdoing that needs to be reported, we are dealing not with some private, contractual, sensitive matter, but with what is in the report to the shareholders about the public listed company. That is already there. I cannot therefore see any good reason for not including the auditors in that. It is nothing to do with an ordinary, private commercial relationship, so I agree with the noble Lord, Lord Browne.
Lord Browne of Ladyton
In the interests of clarity, I am not very pleased with how I put the argument earlier. I can put it much more simply. With respect to the noble Lord, Lord Phillips of Sudbury, I think that his amendment is unnecessary. The circumstances that he envisages in this sort of environment are already covered by the provisions of the government amendment that we all support. I cannot imagine that what he seeks to allow to be reported and to attract privilege would be circulated other than with the authority of the directors to the members of the company. I think that it is unnecessary but it may be an issue that needs to be thought about. I am concerned that perhaps in telling the Committee the line that has been adopted and to hold the line at a particular point, the Minister may already have crossed that line in any event by these provisions.
Lord McNally
I will reflect on that but I am also very concerned and do not want to enter a field regarding the professional relationship between auditors—or, perhaps I may respectfully suggest, lawyers—and companies, where there is a barn door left open. I understand, as indicated by the noble Lord, Lord Browne, that the intention of the proposal is to give protection. I am willing to reflect on whether where we have drawn the line is exactly right, and I will listen to expert opinion in this Committee. As a layman, I also feel a slight tingle between the shoulder blades about where we are going in terms of the relationship of professions such as auditors and lawyers with their clients. I, too, would like advice on these matters.
Lord Lester of Herne Hill
We are not supporting the amendment. We are urging the Government to accept that the amendment is not necessary because the matter is well within its scope.
Lord McNally
You can see, Lord Chairman, that this is a very interesting Committee. Amendments 41 and 42 would alter the way in which the Bill extends qualified privilege to certain types of material. Again, I was interested in the interventions and understand some of the concerns expressed. We thought about whether we should try to define “conference”, and perhaps we will have another think about that. If anyone has a suggestion, they know my address.
As the Committee will know, we had a lot of discussions with editors of a number of scientific and academic journals. They were keen to stress that qualified privilege for peer-reviewed articles was seen as the most important priority by them. I very much agree with the point that the noble Baroness, Lady Hayter, made in her intervention. We should hold close to the protection of a proper peer-review process in the changes that we are making to the law.
As the noble Lord, Lord Bew, indicated in his recollection to the Committee, these editors and others were not opposed to the extension of qualified privilege to fair and accurate reports of proceedings of scientific and academic conferences, or to fair and accurate copies of, extracts from or summaries of matters published at such conferences. Our impression was that the scientific community has welcomed this extension.
We do not agree with this amendment. The protections set out in subsection (9), along with the protection in Clause 6 and a number of other measures in the Bill are an important step forward and reflect our aim of ensuring that scientific and academic debate is able to flourish.
Lord Mawhinney
We are all agreed on the importance of peer review. As my noble friend is going to think further about conferences—he has just said that he will—will he do so in the context of peer review? That is the principle that we are all hanging on to. The Joint Committee could not find to offer to him a satisfactory way which enshrined peer review in the context of conferences, partly because peer-reviewed papers are peer reviewed ahead of publication. Peer review in conference would be subsequent to whatever was being said. Will my noble friend at least assure the Committee that when he reflects further on conferences, he will do so specifically in the context of peer review?
Lord McNally
Most certainly. That was the point that the noble Baroness, Lady Hayter, made, with which I heartily concur. It is interesting that when the Bill was debated in the other place, the move in the direction of conferences and other gatherings was warmly welcomed. I will reflect, but these proceedings will of course also be read by the scientific community. Perhaps it will help me. I have made this point time and again: I want to be able to look the scientific and academic community in the eye and say, “Look, this is the best that we can do in giving scientists and academics the maximum of freedom to indulge in proper debate and criticism in their areas of expertise”. I certainly accept that suggestion by my noble friend Lord Mawhinney. There has been a general welcome for our attempt to extend this more widely than the very narrow context of peer-reviewed articles in magazines of repute.
Amendment 42 would extend qualified privilege, subject to explanation or correction, under Schedule 1 to the Defamation Act 1996 to peer-reviewed articles and fair and accurate copies and reports of material in an archive where the limitation period for an action against the original publisher of the material has expired. In speaking to the amendment to Clause 6 tabled by the noble Lord, Lord Hunt of Chesterton, I expressed concern about extending the protection for peer-reviewed material more widely than in respect of articles in scientific and academic journals. This amendment would extend that protection even more widely to any peer-reviewed material, wherever it appears, and, as a result, would serve only to increase the risk of the defence applying in instances where the peer-review process had not been applied in a sufficiently robust way.
In respect of extending qualified privilege to archives, this is something that I know the Joint Committee on the draft Bill, chaired by the noble Lord, was in favour of. We indicated in the government response to the committee that we would consider this proposal. However, after considering the position further, we came to the conclusion that extending qualified privilege to archives would potentially make the defence available to a very wide range of material. There would also be considerable difficulties in defining what types of archive should or should not be covered. We believe that this would risk not providing adequate protection for claimants, and therefore we do not consider this amendment to be appropriate. There is no generally agreed definition of what constitutes an archive, and this amendment would potentially cover a very wide range of material.
I am have to say again—and I am not opening any gates for reconsideration on this—that I was, until a few weeks ago, the Minister for the National Archives. I am extremely proud to have held that position because it is one of the jewels in our crown in terms of a national asset. As I said to the noble Lord, we are again worrying about where to draw the line. On this occasion, we draw the line, as far as he is concerned, on the wrong side of his amendment, but I hope he will agree to withdraw it.
Lord Phillips of Sudbury
I am grateful for what the Minister said and for the contributions to the debate on this amendment which have prised out a matter not hitherto appreciated. However, rather than prolong this debate, I suggest that there be a conversation with the Minister hereafter and perhaps a return on Report.
Lord McNally
It might be an indication of how confused the Minister gets that it was subsequently clarified to me that the noble Lords, Lord Lester and Lord Browne, were both supporting me—something that I was not aware of when I heard their speeches.
Lord Phillips of Sudbury
That does not change my reply. I beg leave to withdraw the amendment.
Lord McNally
My Lords, just to give some sense of momentum on this, I can tell your Lordships that the Joint Committee that has been established on parliamentary privilege is asked to report by 25 April 2013.
I listened carefully to what my noble friend said. As always, he made an extremely well informed and well researched contribution, but can I just put to the Committee a political reality? We are dealing with probably one of the most sensitive areas of the functioning of our parliamentary democracy; that is, parliamentary privilege. There is not a snowball’s chance in hell of the Houses of Parliament in an area, which is so sensitive and so important, allowing this Committee and this Bill to make decisions which go ahead of what the Joint Committee is going to do.
As the Government’s Green Paper pointed out, the point of parliamentary privilege is not defamation or what is published in the newspapers; it is the right of Members of Parliament to conduct their business in Parliament. That is why parliamentarians are so careful and so jealous about how we should handle this.
Therefore, I am sorry to say that I can give my noble friend no other response than the one that I gave to the noble Lord, Lord Mawhinney: that the Joint Committee is now in being. Certainly, my noble friend’s contribution today will be well worth reading by that committee, but it is a matter for that committee and I urge my noble friend to withdraw his amendment.
Lord Lester of Herne Hill
I am grateful. I learnt this appalling word from Europe, comitology, which is the study of committees, and I have gone too much into the past committees. Although I am not surprised by the Minister’s reply, I am deeply disappointed by it, because what my amendments seek to do is extraordinarily important but modest. The first would clarify the 1840 Act on a completely non-controversial issue so far as that Act, which is all about reporting proceedings in Parliament, is concerned. The second amendment would remove what everyone has always agreed was a gross anomaly. We apparently will have to wait for yet another committee to look at this, but I am liable to return to it on Report, because I am not satisfied by the stonewalling. On that basis, I beg leave to withdraw the amendment.
Lord Phillips of Sudbury
My Lords, I briefly comment on what the noble Lord, Lord Singh of Wimbledon, said. I have to stick to my earlier analysis, but after hearing what he said, if his amendment had incorporated the purport of that I would have been very sympathetic to it—notwithstanding what my noble friend Lord Lester said, because his clause would address a different issue. The only question I have is whether the security for costs arrangements that can be invoked here might not come to the aid of the person to whom he refers.
Lord McNally
My Lords, this has been an extremely useful debate. From the beginning there has been a question of whether libel tourism exists, and there are varying views on this. Indeed, without breaking too many confidences, when I explained to a very senior member of the Government that we were trying to curb this so-called libel tourism, he said, “Are you sure? Should it not be the more the merrier?”. He had the idea that if foreigners wanted to come and use our excellent legal and judicial services they should be welcomed. In another respect, of course, we make a great play of the excellent facilities at the Rolls building for doing just that. However, there was a problem not only with the numbers but in the use of threats to stifle publication or opinion—the so-called chilling effect—and it is right that we have had this debate.
Amendment 48 would mean that the effect of the provisions on libel tourism reflected in Clause 9 would be narrowed as cases where the claimant is domiciled in England or Wales would no longer be caught even if the main impact of the alleged libel was outside England and Wales. The Government do not consider that narrowing the scope of Clause 9 is appropriate. It would mean, for example, that a Russian oligarch domiciled in England and Wales could sue a person outside the UK/EU in the English courts in circumstances where the alleged main harm to his reputation has occurred in, say, Uzbekistan.
Although I am sure the hearts of my colleagues behind me will sink, I have listened to the debate and I will study again the remarks made and the example given by the noble Lord, Lord Marks.
Lord Marks of Henley-on-Thames
Perhaps I may correct something that I have said. My example, which was off the cuff, of Italy was wrong: it ought to be the United States or somewhere outside the Brussels and Lugano conventions.
Lord McNally
I was just thinking that myself, but I did not want to raise it.
Broadly, at the moment we consider it is right that these cases should be caught by the test and therefore not automatically take place in our courts. Where a claimant in a case where the defendant is domiciled outside the UK, EU or Lugano convention states is unable to satisfy a court that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place to bring the action in respect of the statement, then he or she should be refused access to our courts and should be required to seek redress abroad. Such cases are not likely to arise with any frequency but, when they do, they give rise to legitimate concerns about libel tourism which uses up the time and resources of our courts.
We do not believe that the requirement to show that England and Wales is clearly the most appropriate place to bring the claim will cause undue inconvenience to claimants domiciled here who legitimately wish to bring an action in this jurisdiction to protect their reputation. It is likely that in most cases where a claimant is domiciled in England and Wales the Clause 9 test will be satisfied as the main harm to reputation will have been caused here and, in those circumstances, a claimant will readily be able to show that this is the most appropriate place to bring the claim. However, claimants should not be able to use our courts to pursue libel actions which are more appropriately heard elsewhere, even if they are domiciled here.
Amendment 49 would make a small amendment to Clause 9, but would have an undesirable impact on its effectiveness. Clause 9 provides that a court does not have jurisdiction to hear and determine an action to which the clause applies unless it is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.
Amendment 49 would remove “clearly”. We do not believe that this would be appropriate. Great concern has been expressed in Parliament and elsewhere about libel tourism. The amendment would reduce the strength of the test to be applied by the courts and could have the effect of leading to their allowing more claims to proceed in this jurisdiction in instances where the question of whether this is the most appropriate place to bring the claim is more marginal. We believe that most people who have commented on these issues would agree with us that it is important to give a signal to the courts that Clause 9 should be applied robustly, and that claims should be allowed to proceed only where this is clearly the most appropriate jurisdiction.
Turning to Amendment 50, I understand the point made by the noble Lord, Lord Singh, about drafting. Perhaps I may say in passing that as soon as he starts speaking my mind comes to mornings when I feel tetchy, down-at-heart and at war with the world, and his mellifluous voice comes on “Thought for the Day”, and, at the end of it, I always feel a little bit better about the world. The amendment would require an organisation or individual bringing an action against a person domiciled in the United Kingdom to provide evidence that it or he has funds in the UK to meet any costs that might arise were the action to be unsuccessful. As the amendment is drafted, this would apply where both parties are domiciled in the UK as well as where only the defendant is domiciled here. This would put potential claimants with limited resources at a serious disadvantage, as has been said by a number of those who have spoken in this debate. For example, it would mean that if an individual wished to bring an action against a national newspaper based in the UK, he or she would have to show that he or she had sufficient means to pay the newspaper’s costs, which could be substantial, in the event that the action was unsuccessful. This would considerably restrict access to justice.
However, the point that the noble Lord, Lord Singh, raised and the specific examples that he gave should give us pause for thought. As with the other points made about the way in which our laws are being used, the ability of those from abroad with resources to intimidate those making legitimate criticism of their behaviour should give us pause. The noble Lord, Lord Lester, gave assurances on that matter. As always with advice from the noble Lord, I wish to take it away and consider it, and ask my advisers whether the assurances that he gave are sufficient to protect against the abuses. How we protect against the kind of threat and intimidation that comes short of reaching court, I do not know, but perhaps one of the defences is that, when the Bill becomes an Act, people will be more aware of the protections in our law against such intimidation.
We recognise the concerns that exist about the costs of defamation proceedings for both claimants and defendants, and are firmly committed to reducing them. As I have mentioned in debating earlier amendments, the provisions on costs protection which we have asked the Civil Justice Council to consider, together with changes to the Civil Procedure Rules to support early resolution of key issues, will help claimants and defendants of limited means to bring and defend claims.
I have given noble Lords an assurance that I will look at this debate and see whether we have got the balance right. I am not sure that I can give any idea that we are going to give up “clearly”; I am going to defend that to the very last. I can see us at some future date on Report voting at 11.20 pm on whether “clearly” should stay in the Bill, with the noble Lord, Lord Browne, seeing an opportune moment to defeat the Government. Until that moment, I ask noble Lords not to press their amendments.
Lord Lester of Herne Hill
I shall explain in case I was not clear. I was trying to say that all the defences—the requirement of serious harm, the public interest defence, qualified privilege—will be able to be used as a shield against an unscrupulous claimant, and the double actionability rule would require that too.
Lord Mawhinney
My Lords, I listened carefully to what my noble friend said, and he generated in me a little surprise; I was under the impression that he and I were singing from the same page of the hymn sheet on this one. I shall suggest to him why he and I may appear to be thinking differently and invite him to reconsider one thing that he said.
I incorporated into the amendment the view of the Joint Committee about “serious and substantial harm”. We have already debated that and the Government have a view. If their view turns out to be as we suspect it to be from this debate, I am not chasing on “serious and substantial”; I used it merely because the Joint Committee did, but I am not sure that anyone is going to get too precious about that aspect of the amendment.
As I said at the beginning, the amendment was designed to protect those who live in this country so that they would not get excluded. My noble friend chose to interpret that—perfectly correctly; I have no complaint—by citing a Russian oligarch who lived here and who had been libelled in Uzbekistan, I think he said, and the damage was in that country.
This is the point that I would like my noble friend to think about: if you take this amendment as a freestanding amendment, it allows itself to be interpreted in the way in which my noble friend interpreted it. However, if the amendment became part of the Bill then it would sit just a few lines above Clause 2, where the court has to make a decision as to whether this is the most appropriate location for a legal case to be heard. Given the example that my noble friend used, an English court would be asked to decide whether or not this was the most appropriate place for a Russian oligarch living in Kensington to take action against someone who slandered or libelled him in Uzbekistan. I yield to no one in my admiration for British justice and I am guessing that, if you put together the amendment and Clause 2, judges would say, “No; the fact that you are here allows you to come and ask us, but it doesn’t mean that this is the most appropriate place for you to do this”. When my noble friend says that he will reflect further on this debate, I invite him to look at his example against the pairing of the amendment and Clause 2, which would both be an integral part of this overall clause, and invite him to accept that Clause 2 has a mitigating effect on the amendment. If he buys the general argument that I am encouraging him to think about, and if he says that in order to clarify this we need to tweak the new amendment to make crystal clear what we are trying to say, then I am free and easy with that; in fact, I would be delighted were he to do so.
Given that caveat, because I think that we are not very far apart and that a drafting tweak might clear that up, I thank my noble friend for his response. I note that he is nodding in thoughtfulness—I attribute nothing else to him other than thoughtfulness—and in that spirit, I beg leave to withdraw the amendment.
Baroness Hayter of Kentish Town
My Lords, when coming back to this it is helpful to have been a member of the Joint Committee and heard the evidence. Before I address the amendment, given that it is the only one on the clause, it is worth saying how important the clause is; the removal of the presumption in favour of a jury is one of the most important parts of the whole Bill. I thought that we ought to get that on the record. While juries are very rarely used, the fact that they can be used at all is what has added to cost with regard to the extension of time in this. They drag out action, mostly because they deny the ability of the judge to take early views on issues that, quite properly, they feel must wait in case there is a jury trial, so they have not been able to take an early view until the doors of the court swing open. It was our view on the Joint Committee not only that this was important for the reduction of costs but that we hoped that judges would seize the opportunity for some really good case management, and tried to pull this stuff back as much as possible to get the time and therefore the money reduced. I do not think that we will ever go quite as far as the American system of case management, but I think that we were mentioning an urge to be as early and robust as possible.
The Joint Committee did not go as far as saying that there should be no jury trials, although some people suggested that. As the noble Lord, Lord Mawhinney, has said, it seemed that there were cases, such as a judge, where, for reasons of public confidence, a jury would need to be there to ensure that it was not one judging their own, if you like. Again, as much for public confidence as for anything else, that could also mean people who were involved in appointing judges, or people who were very senior in Government. In such cases an independent jury is there as much to give the public confidence in the hearing as for any great insight that the jury may bring.
The feeling of the Joint Committee, which I support, is that such cases should be few and far between. Most importantly, the Bill, and I think that this is the purpose of the amendment, should signify that we are talking about a very few cases in exceptional circumstances. This does not really relate to a TV star or a celebrity, in the word of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, or an athlete or the head of a business. We were looking more at those people who are involved in the broadest sense in the judicial and legislative process who, to the outside world, perhaps seem a bit cosy. Those are the sorts of cases that would be the exception.
We were looking for some indication to be given, because otherwise the fact that there could be a jury will have exactly the effect that has been suggested—possibly more cases, and people arguing that they should have a jury. We therefore want to try to shut that off as early as possible. A final decision still has to be made by a judge. Whether it is easier or harder for the judge to do that, it is important that they are given some guidance. Those in our Lordships’ House who have been judges know better than I whether it is easier or harder to do that without guidance. In a sense, guidance needs to be given to those who might be either claimants or defendants about whether they have a small or a large chance of getting a jury trial. They need to know that the circumstances are very limited.
We were partly searching for some indication to be given that we are talking about a very small number of cases. Cases where public confidence would almost demand that they were heard not simply by a jury should be few and far between. We look forward to the Minister’s response on this.
Lord McNally
My Lords, perhaps I should say at the outset that both my party and the coalition Government are more attached to jury trial than perhaps some of the comments about the quality of juries in this debate. Part of the coalition agreement is about our support for jury trial. However, we as a Government also accept the strong arguments made by the Joint Committee. The contributions from my noble friend Lord Mawhinney and the noble Baroness, Lady Hayter, put this amendment in context, but for me the extremely helpful intervention by the noble and learned Lord, Lord Brown, removes any reason for lengthening this debate. He explained clearly the dangers of going along the lines of the amendment. We believe that under the terms of Clause 11 as drafted, the courts will have a wide discretion in deciding whether jury trial is appropriate.
I take the point made by the noble Baroness, Lady Hayter, in her closing remarks. Part of what we are hoping is not to open the gates to more jury trials or to create any special class of person who should be put into jury trials. Much of what we are hoping for, as a result of this legislation and other actions taken, is much more robust case management by judges to make cases more easily and cheaply dealt with. However, I have to tell my noble friend that, although I understand his loyalty to the committee of which he is chair, the Government would not find his amendment acceptable.
Lord Mawhinney
My Lords, I do not need to take too much time. I thought it was interesting that all three distinguished lawyers who took part in the debate with very impressive political sleight of hand got us into celebrities extremely quickly. The Joint Committee did not discuss celebrities; I did not mention celebrities; the Bill does not mention celebrities; and the amendment does not mention celebrities. But celebrities are easier to attack than generals, admirals, members of the Cabinet or senior judges, so I am not surprised that they went for celebrities, but we might at least have the record straight.
Normal behaviour now does not do juries. It has not for the past 18 to 24 months. There has not been one, we were told. I carefully said in my opening remarks, “exceptionally” and “occasionally”, and that was the view. It remains my view precisely because—and I think the noble Baroness, Lady Hayter, said it better than I did—wrapped up in all this is an element of public confidence. It is easy to squander public confidence. If you have ever been a Member of Parliament, you know it is extremely hard to get it back once you have squandered it, so I wish my noble friend well. He has the lawyers on his side, there is no question. I look forward to listening to him defending to the rest of the country how doing away with jury trials in defamation cases enhances the coalition’s commitment to jury trials. I beg leave to withdraw the amendment.
Lord Phillips of Sudbury
My Lords, I cannot clearly say whether I do or do not support these two amendments as they have all sorts of ramifications and implications. What is common ground between the noble Lord, Lord Browne, and the noble Baroness, Lady Hayter, is that the position of not only the impecunious would-be litigant, but that of the not-well-off would-be litigant in relation to defamation, whether as plaintiff or defendant, is astonishingly unsatisfactory. It makes this branch of law, more than any other, one in which equality before the law is frankly mythical, unless one finds an extraordinarily public-spirited solicitor who will in effect act for nothing if his client’s case collapses. Even then, there would be costs possibilities for the poor litigant, whether as defendant or plaintiff, in that he or she may end up having to pay the other side’s costs. All I am doing is sympathising with my noble friend Lord McNally in having to answer these two issues. At the moment, there is no ready answer, although the idea of changing the recently passed LASPO legislation for defamation has its own problems if one believes, as I do, that the methods of paying lawyers under the conditional or contingency fee system have led to great problems of public interest. That is a rather ineffectual contribution to the debate on these two amendments.
Lord McNally
My Lords, I will not, at this hour, reopen the debate on LASPO except to say that what we were addressing, following the advice of Mr Justice Jackson, was the inflationary effect of the no win, no fee regime that we have replaced. How it will work out in terms where any success fees will be paid from damages we will have to see. But let us not be in any doubt that there was a problem that was generally agreed had an extremely inflationary effect on the cost of justice in this country.
Lord McNally
My Lords, it has taken me till the fourth day of this Committee to rumble the noble Lord, Lord Browne. Beneath his metropolitan, urbane and sophisticated exterior, there is a canny Scot. My absolute copper-bottomed assurances on dealing with costs are met with a clear assurance that that will not be delivered without him battering us on to deliver. Now he notices a bandwagon on county courts that was rightfully set rolling by the Committee and he immediately claims it as his own. I can see him now, ticking off in his memoirs the influences that he has had on the Bill. I hope that when he gets home tonight he will read to his wife the passage about “metropolitan, urbane and sophisticated”.
Let me be clear that defamation cases can be started in a county court at the moment, although both parties must agree to this in writing. That is the position under Practice Direction 7A to the Civil Procedure Rules, but I freely acknowledge that it may be that we should revisit those procedure rules. We will give the issues involved very careful attention, and I sincerely welcome this very useful debate and the suggestions that have been made. The Lord Chancellor already has broad powers to allocate business between the High Court and the county courts. When the noble Lord, Lord Faulks, raised the matter earlier in our proceedings, I think I mentioned that the Lord Chancellor has expressed his interest in this idea. The Lord Chancellor’s broad powers are under Section 1 of the Courts and Legal Services Act 1990. The provisions in the Crime and Courts Bill to establish a single county court, which the House has approved, will preserve this power.
I therefore assure noble Lords that we are very interested in this idea, but it does not need primary legislation to carry it forward. If we consider the use of county courts to be appropriate, the necessary procedural changes to enable that to happen can be put in place. I hope that that is a firm enough indication of direction of travel. I tore up my notes and changed them to that very positive response because of the persuasive case that the noble Lord, Lord Browne, made in opening this debate. In the mean time, I hope that he will withdraw his amendment.
Lord Browne of Ladyton
My Lords, I am grateful for the support of the noble Lords, Lord Marks of Henley-on-Thames and Lord Mawhinney, but I am not surprised by it because the amendment draws support already from the report of the Joint Committee. I am grateful also for the overt support of the noble Lord, Lord Phillips of Sudbury.
I have to thank the Minister for his flattering if somewhat inaccurate and probably libellous description of me. It is unworthy of him to suggest that I am a bandwagon-jumper in any sense. I will privately produce evidence to him that this is an issue which I have been discussing with members of the legal profession in England in various guises for some months now, because it is not entirely what he and the noble Lord, Lord Faulks, described and discussed. This very specific provision is presented in this fashion, taking advantage of the specialist Patents Court, to make another criticism that I think the Minister will have to face should he seek our shared ambition of moving these cases to the county court—that is, there are already specialist judges who do these cases, but they are in the High Court. There will be, I predict, resistance on the part of the judiciary, among others, who will say that this difficult, complicated work, which requires High Court judges, has to be kept there.
The reason why I presented the amendment in this fashion, having thought about it for some time—since long before the exchange between the noble Lord, Lord Faulks, and the Minister took place—is that I cannot think of a more complicated area of law and fact than patent law. If a specialist court at county court level, with specialist judges, works for that area of the law, then I believe it can work for defamation.
I am also told that it is in the nature of the legal profession that our very senior judges tend to have been in the profession for a period of time and retire. I am not entirely sure what further lifespan on the Bench—that is the wrong phrase—what further time on the Bench the judges in the High Court who are specialists on defamation have. Although I do not know this, the suggestion was made to me that there is a probability that they will retire, or at least that a significant number of them may, within a comparatively short time. I am not sure whether that is right but they will have to be replaced sometime, and it should not be beyond the ability of the legal profession to produce judges at county court level who have this specialism.
I am not entirely sure whether the Minister is right that the creation of a specialist court or courts, such as the patent courts, does not require primary legislation. If it does not then I am interested to know why the patent courts were created by primary legislation if we can create specialist county courts without it, but maybe the law has been changed since they were created.
Lord Browne of Ladyton
I am grateful for that intervention from the noble Lord, Lord Phillips. The best that I can say is that I am sure the Minister has heard that suggestion, and when he is deliberating further on this potential development I am sure that he will take into account.
I am reassured that this is sufficiently high among the Government’s priorities to be a possibility—that is the best that we can expect at this stage. We will continue to keep an eye on this issue while the Bill is before the House.
Lord McNally
The noble Lord asked a specific question on the powers to create a court in this area. The amendment is clearly based on the provision for the Patents Court in the Copyright, Designs and Patents Act 1988, which is being repealed as part of the provisions of the Crime and Courts Bill for establishing a single county court. It is superfluous because powers already exist to allocate jurisdiction as between county courts or, in future, in the single county court and the High Court under Section 1 of the Courts and Legal Services Act 1990.
This also gives me the opportunity to withdraw my scandalous assertion; I was just getting a bit demob happy in asserting that the noble Lord jumps on bandwagons. I stick by “metropolitan, urbane and sophisticated”, though, because I know how much trouble that will give him back home in Scotland.
That said, we do not consider the amendment necessary. The rule committee does not operate in a vacuum and civil procedure rules are made by a process that requires the approval of the Lord Chancellor for rules made by the committee. I take it on board; I have been in this job long enough to realise that you have to be careful in the separation of powers that we have in our system between the responsibilities of the judiciary, the Government and Parliament. But that does not mean that Parliament or the Government cannot send the clearest messages to the judiciary. That is why I agreed with the noble Baroness, Lady Hayter, earlier that case management is a major responsibility now for judges, and in this case in particular.
The Government can and do put before the committee proposals for amendments to rules of court. The Lord Chancellor is also able by virtue of Section 3A of the Civil Procedure Act 1997 to notify the committee that he thinks it expedient that rules should achieve a specified purpose, and in such a case the committee must make rules as it considers necessary to achieve the specified purpose. Ministry of Justice officials have discussed the contents of the Bill and related procedural issues with members of the senior judiciary on a number of occasions during the period in which the Bill has developed. Most recently, a meeting has taken place to discuss these issues with the Master of the Rolls, Lord Dyson, who heads the Civil Procedure Rule Committee. The Government will put proposals for procedural changes to support the new Act before the Civil Procedure Rule Committee shortly. Our intention is to ensure that these are in place when the Act comes into force. I hope on that basis that the noble Lord will be prepared to withdraw this amendment.
Lord Mawhinney
My Lords, I offer warm thanks to my noble friend for what he has said. He pointed out that arrangements already exist for the interrelationship between government and the judiciary. That was the point that I sought to make in moving the amendment. No one on the committee, and no one I know, is trying to challenge the separation at the very heart of our democracy; that was not the issue. However, having been told that there are ways in which those who are elected can relate to those who sit in judgment, we took the view that the more that people understood that those ways existed, the more they would be used, the more the Government’s arm would be strengthened and the more people would benefit in their advocacy and involvement.
I reassure my noble friend that he and I are approaching this in exactly the same way. He will notice that I did not table any amendments on arbitration and mediation, which were very much parts of the committee’s report. I did not do so because they are all wrapped up in this question of cost; I mention them now so that he will not forget them when he reflects further on how best to reduce costs. Very much in the spirit that he has outlined the issue, in which I wish to share, I beg leave to withdraw the amendment.
Lord Phillips of Sudbury
I associate myself and these Benches with the most recent remarks of the noble Baroness, Lady Hayter.
Lord McNally
A few weeks ago in the House I tried to make a Churchillian quote and got it completely messed up. I shall have another go.
“This is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning”.
I have got it right this time.
The only doubt I have had is about how vigorously the Committee have taken up my invitation for discussion. I will not make that mistake again. Next time, I will be utterly Stalinist in ramming the Bill through.
Our considerations of the Bill have been extremely useful. The constructive way in which the Opposition have approached the Bill and brought their experience to it, and the fact that the noble Lord, Lord Mawhinney, has seen his duty as chairman of his committee not ending with the delivery of the report but has helped and guided us on the thinking behind so many of the recommendations, have been extremely helpful. My colleagues on these Benches have been extremely helpful and it has been great to have the help of some distinguished judges.
We now move on to Report and it is rather sad that I cannot accept the final amendment tabled by the noble Lord, Lord Mawhinney, as it stands. He was an experienced Minister and will know that the two things that I have been told to avoid, even in my brief ministerial career, are annual reports to Parliament and sunset clauses, which are usually the stuff of Opposition amendments. I cannot accept an annual report because, as the noble Lord will know, arrangements already exist for post-legislative scrutiny. The Ministry of Justice is committed to fulfilling the requirements of post-legislative scrutiny in relation to this legislation.
However, taking up the point which was partly implicit in what the noble Lord, Lord Mawhinney, said and in the final remarks of the noble Baroness, Lady Hayter, I cannot make commitments on spending money in the Ministry of Justice because we have not got any. The noble Baroness is absolutely right that once this legislation is passed, a simple guide for laymen and laywomen on what we have done, how we have done it and how it will be applied, both on our website and in printed form, would be extremely useful. In that spirit I will take away the amendment and hope that the noble Lord will withdraw it.
Lord Phillips of Sudbury
Would it not be possible to think of what was done in the Charities Act 2006? This is landmark legislation in defamation. Could there not be a review within four or five years, which would not impose, obviously, the obligation of an annual review but would ensure that this did not go by the board because there was another Government with other priorities?
Lord McNally
But, my Lords, that is exactly what will happen. There will be post-legislative scrutiny within three to five years of this Act passing.
Lord Mawhinney
My Lords, I salute my noble friend the Minister. I thank him and the noble Lord, Lord Ahmad. We as a Committee have been well served by the Ministers. They have undertaken to reflect on what has been said, and I have the confidence to believe that a little of what was said that initially did not please them may turn out eventually to be slightly more persuasive than originally they may have thought. I look forward to Report and I make a promise to colleagues that I shall not be as visible then as I have sought to be here. I seek leave to withdraw the amendment.
Property: Leasehold Valuation Tribunal
Lord McNally Excerpts(11 years, 3 months ago)
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Baroness Gardner of Parkes
My Lords, in asking the Question in my name on the Order Paper, I declare that my interest is recorded in the register.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, we have no plans to review the working of the leasehold valuation tribunal. However, later this year, the tribunal will transfer into the newly established property chamber in the First-tier Tribunal, in line with our recently published administrative justice strategic work programme. In addition to improved deployment of judicial resources, the tribunal will operate under new procedural rules, which will continue to ensure that all parties will have greater access to an efficient, proportionate and fairer system of justice.
Baroness Gardner of Parkes
Is the Minister aware that in the Housing Act 1996, when the leasehold valuation tribunal was set up, the aim was to make it within the reach of every leaseholder to be able, for the amount of £500, to bring his case to the tribunal? Is he aware that now many landlords—whether they win or lose, even if they have no hope of costs—are charging their heavy legal expenses back through the management schemes in the blocks of flats?
Lord McNally
I pay tribute to the noble Baroness’s long campaign on this issue. She was an active participant in the Bill that became the 1996 Act. She is absolutely correct that the right of the managing agent to claw back costs of litigation can be written into leases. This can be countermanded by an application to the court under Section 20C of the Landlord and Tenant Act 1985, but that has to be a proactive action by the leaseholder. We are looking at ways to make leaseholders more aware that, if such a clause is written into their lease, they have this power to take action to have it set aside by the tribunal.
Defamation Bill
Lord McNally Excerpts(11 years, 4 months ago)
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the reason I buried my head in my hands is that the noble Lord, Lord Lester, explained before the Committee started that ill health was going to prevent him from intervening very often in our proceedings today—a resolution that lasted all of five seconds. I am grateful to the noble Lord, Lord Browne, both for the intervention and for drawing this to my attention. I will have the matter examined and report back to the Committee.
The Deputy Chairman of Committees
We now resume debate on Amendment 23A.
Clause 5 : Operators of websites
Lord McNally
Lord McNally
My Lords, I do not in any way want to provoke the Committee, but I am pleased to see that my noble friend Lord Lester is leaving, due to the stimulus of the debate.
Lord McNally
No, I do not want him to stay; I really think that he should go back to his sickbed, although his recovery during the course of the debate was significant. He said, “This short debate” but I humbly refer the Committee to the fact that our two debates today on a single clause of the Bill, which we have still not yet completed, have taken us two hours and 40 minutes in a 17-clause Bill, of whose Committee stage we are on day three of four.
Lord McNally
I hope that Hansard noted that comment from a sedentary position and the general approval from the non-lawyers in the Committee for that observation.
At some stages during those debates, as a non-lawyer, I thought of John Wilkes, the famous radical. When he was about to publish his newspaper, the North Briton, he was asked by a French acquaintance, “Is the press free in your country?”. “I am about to find out,” said Wilkes. I think, having listened to this debate, that in some respects the internet is going to find out whether or not it is free. My noble friend Lord Mawhinney asked me where we were with regard to balance. It is not a question of balance between right and wrong, but the debates that we have had today show that there is a balance.
One of the great things about continuity in this House is that I was on the pre-legislative scrutiny committee that looked at the Communications Bill, where we deliberately advised against trying to legislate for the internet. On reflection, I think that we were right. My noble friend Lord Phillips said that he was on the side of the little man. On reflection, one of the greatest boons to the rights of the little man over the past decade or so has been the worldwide web and its freedoms. While I hear the passion and the righteous indignation of those who have been defamed and hurt, we as a Committee have to be careful not to overlegislate something that on the plus side has some considerable benefits for the little man.
That was a complete abuse of procedure, because I am moving a government amendment of some simplicity. It was also because I am wracked by guilt: at one point during the debates, the noble Baroness, Lady Hayter, helpfully sent me a note saying, “Are you on holiday?”. The truth is that when we were setting out who was going to handle what, I thought, “Clause 5 will be a nice snappy debate, since my noble friend Lord Ahmad—although he is learning disturbingly fast—should be given some experience of Bill-handling”. Little did I realise that he was going to have such a baptism of fire.
Amendment 28 provides for the affirmative resolution procedure to apply to the scrutiny of the regulations to be made under Clause 5 of the Bill, rather than the negative resolution procedure as the Bill currently provides. That is in the light of views put forward on this issue by the Delegated Powers and Regulatory Reform Committee, the Joint Committee on Human Rights and others. The affirmative procedure will ensure that the regulations receive more thorough parliamentary scrutiny. I hope that, as such, it will be acceptable to this Committee and to the House. I beg to move.
Lord Lucas
My Lords, I am very grateful to my noble friend for that explanation. Our noble friend Lord Ahmad has been doing a superb job, and I have been immensely impressed. I had assumed that my noble friend Lord McNally was silent because he was serving time in the penalty box after voting against the Government yesterday.
Baroness Hayter of Kentish Town
This is an interesting one, particularly in respect of the use of the word “unattributed”, as opposed to “anonymous”. It seems to signify that you are looking at attribution, which may be to a group or something like that, and that it is about trying to find out who was responsible for this without necessarily naming them; I mean that it is about method, not necessarily the actual name. We are interested in the Government’s response to this, because it clearly highlights an ongoing view that what we do not want from the Bill—any more than we want what the noble Lord, Lord Lester, is afraid of—is to give a signal that the more anonymous the better.
Lord McNally
My Lords, I am grateful for this debate. The more I listen to it, the more I realise that we are, consciously, going into unknown territory. As I said previously, we are taking a different approach from that we took 10 years ago with the Communications Bill, when the Government of the day, and Parliament as a whole, took the view that the internet should be left free for us to get the full benefits. Within the judgment of history that was probably the right thing to do. It allowed the massive growth of initiative and new companies and services, and the liberating effect I referred to for the individual citizen.
The most hopeful thing that I have heard today, because I respect his knowledge of this sector, is my noble friend Lord Allan’s comment that we should not follow a counsel of despair. That gives me great encouragement. There are, as has been said a number of times, those who say that the internet is beyond any single parliament or jurisdiction to control, and it is a global phenomenon that will just roam free. I do not believe that there are any man-made institutions which cannot be brought within the realm of governance, particularly democratic governance.
We face balances and different arguments. I have been in debates where the whistleblower has been the hero. The noble Lord, Lord May, has pointed out that, quite often when talking or trying to criticise, it is the powerful vested interests—not just the internet companies—that will try to close down criticism by intimidating the means of that information being disseminated. I am determined to try and get this right, but I am aware that we are going into areas where there are upsides and downsides to whatever we do.
I know of my noble friend Lord Phillips’s lifelong commitment to defending the rights of the little man, but I fear overlegislating in this area. We are just emerging from a debate in which it was suggested that our libel laws have become a bonanza for lawyers. I am worried that, in the concern to deal with some of the problems that have been raised, we might create another bonanza for lawyers. I sincerely believe that the contribution of lawyers to this debate has been extremely helpful, but I ask for time to study this debate in Hansard. As my noble friend Lord Phillips said, we have spent nearly five hours on this clause, and rightly so. It is the one in which we are going into untested territory. I want to see how it stands up to the criticisms that have come from both sides.
Amendment 30 goes much wider than issues of defamation, and is therefore beyond the scope of the Bill. It relates to broader issues concerning how the internet could and should be regulated. However, even if this new clause were to be limited only to defamatory material, it has been suggested that there has always been a tradition of being able to publish comment under pseudonyms or anonymously. My noble friend Lord Mawhinney has suggested that we should try to build some change in that culture, so that people are willing to put names to their criticism, and that that is a way forward. However, the practice is widespread. Like my noble friend Lord Lucas, I quite often go on to sites about hotels and restaurants where you get the most insulting comments about the levels of service, and sometimes they are very helpful when you are making your decision. It is also true that in the vast majority of cases it is entirely unproblematic; the hotels and restaurants live with the good and the bad, and leave it to common sense.
My noble friend Lord Mawhinney said that this was a probing amendment. It has produced strong arguments on both sides. I would like to study this issue. I also take the point about the consultation. The paper that noble Lords have received is not going to be very different from the consultation, but I understand the point made by the noble Lord, Lord Browne of Ladyton, that he would like to join the game as well. I am going to look at what we can do in that respect.
It is obvious that we have to get this into better shape by Report. We have only four or five months until the end of this parliamentary year and, at the pace that we are going, we will need every day of that. I will take this amendment away in the probing spirit in which it has been moved; indeed, I will take the whole debate away. I have already agreed bilateral discussions on specific issues of concern with a number of colleagues, but I will see if there is some other way of bringing together a fuller debate on the contents and direction of the guidance. In that light, I hope that my noble friend will agree to withdraw his amendment.
Lord Mawhinney
My Lords, I thank my noble friend for his helpful response. I would like to start where he finished. I particularly welcome the fact that he said that after he had given it serious consideration, he would produce something relatively definitive by Report. That is absolutely right, and it is extremely helpful. If I have learnt anything about this issue, it is that if we get it right in one go, we will be lucky rather than seriously impressive. That means something reasonably definitive on Report, which would allow for a second bite of the cherry at Third Reading, were that to prove necessary. I welcome what he has said, and I encourage him to continue with that thought.
We have had an interesting debate. I am grateful to my noble friend Lord Phillips; part of our experience as a committee was that it was hard to find people to identify with the little man. The organisations were well organised, powerful, articulate and pressured, so part of our work was always to try for the elusive balance that we have talked about today. He has helped us enormously, as did the suggestion from my noble friend Lord Lucas about some sort of intermediate step, and I hope that he will think further on that.
I admit to being surprised that the Joint Committee should have taken China into consideration, and I apologise to those who feel that we were too constricted in our view. I have never been called a little Englander, nor even a little Irelander, so I apologise. I understand the point that my noble friend Lord Lester, was making, but I have to be honest and say that this is complicated enough without worrying what other countries are going to use as an excuse if and when we come to a judgment. That is not meant to be in any sense a little Englander type of comment.
At the end of the day, people’s reputations are on the line. We have already established that the cost of trying to get behind anonymity or lack of attribution goes against one of the principles of the work that the Joint Committee did, the work of which is shared by Members on all sides of this Committee. I thank my noble friend for his response and I beg leave to withdraw my amendment.
Lord Phillips of Sudbury
My Lords, I strongly support this group of amendments in the name of the noble Lord, Lord Hunt. I am sure that all the academics at the University of Essex, of which I am chancellor, would be cheering on their stools if they could hear this.
I just have one question for my noble friend Lord McNally, which may seem rather an odd one. This is all built around scientific or academic journals. That seems an odd pairing to me because I would have thought that most scientific journals were academic journals, although not vice versa. If there is to be a careful consideration of the terminology in the amendment tabled by the noble Lord, Lord Hunt, which I think is necessary and indeed essential, the Minister might consider whether or not “scientific or academic” is the happiest wording, as if one excluded the other.
Lord McNally
My Lords, the more that I hear about academia from the noble Lord, Lord May, and about the law from other Members, I am glad that I am in such a straightforward profession as politics.
This debate, again, has been extremely helpful. I worry, as I think a number of contributors have, that if the concept of “journals” includes those online, there is a question of how and where it stops. That is why we have tried to consult on this issue. It is interesting that when the legislation was first put forward by my noble friend Lord Lester, he did not make any provision for the protection of scientific journals, but particular concerns were expressed about the impact of the threat of libel proceedings on scientific and academic debate. We therefore believe that the addition to the general protections offered by the Bill of a specific defence of peer-reviewed material is appropriate. Other aspects of the Bill and work associated with it, such as the serious harm test and actions on cost protection, will also help to support free speech in these areas.
Let us be clear: right from the start, I wanted to provide protection for genuine academic and scientific debate. I have to say to my noble friend Lord Phillips that “academic and scientific” is a term that is generally understood—it does not mean the Beano. People know one when they see one. Within that, there is also the important context that we are looking for genuine peer review, which, again, is understood. I worry, as I think the noble Lord, Lord Bew, does—I will also be interested in the response from the noble Lord, Lord Hunt, to the specific questions—that we must not push the envelope too far on this, otherwise we will run into some of the problems that the noble Lord, Lord Browne, raised. We are right to be cautious.
As I say, the issue featured prominently in our discussions with the scientific community. We also held discussions with the editors of all the key journals to ensure that appropriate conditions were attached, so that the clause applied only where responsible peer-review process was used. We shared the relevant aspect of the clause with those editors to confirm that this was achieved.
Amendment 31 would extend the defence to peer-reviewed material on,
“a website edited and controlled by a chartered professional or learned body”.
We are concerned that this would make the defence too widely available. We believe that it is important to ensure that only bona fide publications with appropriate procedures are given the protection of the new defence. That is why we have focused the clause on scientific and academic journals, where there is a well established process for peer review. I can confirm that the existing clause would cover peer-reviewed material that was published by such a journal in an electronic form. However, a potentially wide range of bodies may fall within the categories proposed by the noble Lord, and we are concerned that this would extend the defence into areas where peer review is not a common practice. That may lead to the defence being available in instances where it is more likely that the peer-review process will not have been applied sufficiently robustly.
The other substantive amendment in this group, Amendment 35, would privilege any assessment of a peer-reviewed statement’s scientific or academic merit if it was written by one or more persons with expertise in the scientific or academic matter concerned and was approved by the editor of the journal or website. This would appear to be aimed at extending the defence to statements such as replies to or commentaries on peer-reviewed material without the requirement that they themselves be peer-reviewed. Again, we consider that this would extend the scope of the defence too widely.
I was asked a couple of specific questions. The noble Lord, Lord May, was worried about the meaning of “malice”. We would expect courts to use the same test as applied in other forms of qualified privilege; that is, a defendant would forfeit the defence if they could be shown to have acted with ill will or improper motive. On the points made by my noble friends Lord Phillips and Lord Lucas about the term “scientific and academic journal”, we believe that the term is widely understood and that a definition of “journal” is unnecessary.
I think that I have covered the points raised; indeed, I think that some of the most pertinent questions were addressed to the noble Lord, Lord Hunt, who may take the opportunity to make a brief reply. However, as the noble Lords, Lord Browne and Lord Mawhinney, invited us to do, we will look at this matter. As I said in discussion with the noble Lord, Lord May, I genuinely want to get this legislation right for the scientific and academic community; indeed, it is one of the most important challenges for the legislation. I am certainly willing to examine whether we have got our definitions and our scope exactly right, and I welcome the debate that the noble Lord has provoked with his amendment. I ask him to withdraw it.
Lord Hunt of Chesterton
I thank noble Lords for their very constructive response. I want to emphasise the respective memberships of the institutions which wrote to me. The Institution of Civil Engineers has 80,000 members; the Institute of Physics has 45,000 members; the Institution of Chemical Engineers has 35,000 members; the Institution of Mechanical Engineers has 100,000 members; the Institution of Engineering and Technology has 150,000 members; the Royal College of Physicians has 30,000 members; and the Institution of Agricultural Engineers has not so many.
I have published papers in the scientific literature and for those institutions, and I can tell your Lordships that the standard of refereeing in most of our engineering institutions is extremely high. There are excellent scientific journals, but there are an awful lot of scientific journals with peer review in them that are pretty poor. That is why I was surprised that the clause as originally drafted set no quality level for the journals; no quality level has been supplied. It is not as if these are journals of institutions. The quality level that I want to introduce for the websites—“chartered”—is a great deal higher than is the case for the journals.
Transforming Rehabilitation
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Lord Chancellor and Secretary of State for Justice.
“This Government are committed to an ambitious programme of social reform, even at a time of financial constraints. Major changes have already been delivered in welfare and education to tackle the challenge of endemic welfare dependence and educational underperformance, particularly in deprived areas. In the coalition agreement, the Government also promised to introduce a ‘rehabilitation revolution’ to tackle the unacceptable cycle of reoffending, and today I am publishing a consultation paper entitled Transforming Rehabilitation: a revolution in the way we manage offenders. We need a tough but intelligent criminal justice system that both punishes people properly when they break the law and also supports them to get their lives back on track so that they do not commit crime again in the future.
Despite significant increases in government spending on offender management during the past decade, reoffending remains consistently and unacceptably high. In 2010 nearly half of prisoners were reconvicted within a year of release. This rate is even higher for short-sentenced prisoners, the great majority of whom currently receive little or no support.
Failing to divert offenders away from crime has a wide impact. The Ministry of Justice alone spent more than £4 billion on prisons and offender management in 2011-12 and the wider cost of this failure is considerable. The National Audit Office estimated that the economic cost of reoffending by recent ex-prisoners was as much as £13 billion in 2007-8. I am clear that we cannot continue as before. In difficult economic times, delivering real reform requires a dramatically different approach. We cannot afford not to do this.
My proposals seek a new emphasis on life management and mentoring support for offenders in order to address the problems that lead them to turn to crime again and again. For the first time, all offenders, including those serving less than 12 months, will be subject to mandatory supervision and tailored rehabilitation on release from prison. These offenders have some of the highest reoffending rates but currently no statutory provision after the halfway point of their sentence. I want to ensure that persistent offenders do not walk out of the prison gates with £46 in their pockets and little or nothing else.
My vision is very simple. When someone leaves prison, I want them already to have a mentor in place. I want them to be met at the prison gate, have a place to live sorted out and to have a package of support set up, be it training or drug treatment or an employability course. I also want them to have someone they can turn to as a wise friend as they try to turn their lives around.
I intend to open up the market for probation services so that we can combine the expertise that exists within the public sector probation service with the innovation and dynamism of private and voluntary providers. These radical reforms are underpinned by the principles of the big society. Enabling voluntary sector organisations fully to participate in transforming rehabilitation, harnessing their expertise and making the most of existing local links will be vital to delivering the reoffending reductions we need to see.
Providers will be commissioned to deliver community orders and licence requirements for the majority of offenders and will be paid by results to reduce reoffending. They will be expected to tackle the causes of reoffending and help offenders to turn their lives around. And through the introduction of payment by results, providers from all sectors will have a clear incentive to rehabilitate offenders. We will pay in full only for services that successfully reduce reoffending.
Services will be commissioned nationally and delivered across broader geographical areas. I am committed that the new system will continue to make best use of local expertise and to integrate into existing local structures. Potential providers will have to be clear as to how they would sustain local partnerships in contracts and commissioning which will be informed by local intelligence.
Extending rehabilitation to more offenders will introduce new costs to the system and I believe that these can be balanced by drawing more providers into the system. Through increased use of competition we can generate efficiency savings and drive down unit costs across the system, allowing our funding to go further.
The public sector probation service does an important job in protecting the public and the Government are very clear about the value and expertise it brings. We want to use that expertise as we transform our approach to rehabilitation. There will be a continuing critical role for the public sector, which will include advising the courts and assessing the risk an offender poses to the public. Offenders who pose the highest risk of serious harm to the public will continue to be managed directly by the public sector and the public sector will retain ultimate responsibility for public protection.
These proposals will make a significant change to the system, delivering the Government’s commitment to real reform. They will fulfil the coalition commitment to introduce a ‘rehabilitation revolution’ and will realise our ambition to apply payment by results across offender rehabilitation services by the end of 2015.
Transforming rehabilitation will help to ensure that all those sentenced to prison or community sentences are properly punished while being supported to turn their backs on crime for good, meaning lower crime, fewer victims and safer communities. I commend this Statement to the House”.
Lord McNally
My Lords, first, I thank the noble Lord for those closing remarks of welcome for the initiative. As he quite rightly said, the devil will be in the detail and it is quite right that now and subsequently the House and the public will probe and test these proposals.
The word “professionalise” was in no way a pejorative statement by my right honourable friend—quite the contrary. I think I have mentioned before in the House that I would like the probation service and its work to be recognised as a profession, perhaps ultimately by a chartered institute of probation. It was in that context that the Secretary of State was talking about a professionalised service—the recognition of probation work as a proper profession, which indeed it is.
I took on board points that should be recognised: we are building on existing patterns of partnership that were first established by the previous Government, both in the legislation that we are using—the 2007 Act—and the various pilots that they initiated in their closing years. This question of pilots is very difficult. On my first day in office in 2010, I was told about the Peterborough and Doncaster pilots. Two years later, whenever one was asked about progress in these areas, one would say: “Well, we are still piloting”. There is a danger in policy development that you pilot for ever. You learn lessons as they go along, but at some time there is a need for Ministers to take a decision and develop a policy, and that is what we are doing here.
There is always a kind of elephant trap in any programme of reform. If you claim that there is a need for reform, are you being condemnatory about those who are carrying out the existing policy? The answer is no, as the noble Lord said, and I have been on record in this House about my admiration for the probation service as it is and the work that it does. My noble friend has proposed changes that we believe will bring a combination of greater efficiency and effectiveness and new ideas into the treatment of offenders. That is the thrust of the policy. Whether offenders who are taken under the wing of private and voluntary sector providers have committed “burglary and domestic violence” or something else, what is certain is that whoever comes within that assessment, their risk assessment will have been carefully carried out by professionals before they move into that sector. That risk assessment will be part of the ongoing role of the professional probation service and will be taken into account when it is decided whether a person is suitable for rehabilitation work that involves payment by results.
The noble Lord also asked whether existing resources would be used. The answer is yes; this is the plan, this is the whole point. As I pointed out, we are spending £4 billion—no small amount—per year on keeping people in prison and in keeping people supervised by probation. What the document suggests—and we hope that the debate that it initiates will develop this—that the £4 billion will be spent a lot more effectively than at the moment. We can do so more effectively within prisons and more effectively outside prisons.
One of the things that the Secretary of State was very much influenced by was his work at the DWP—the noble Lord referred to that experience. The DWP was one of the first government departments to take the initiative of going into prisons to enable prisoners to prepare for release and to go on to the Work Programme. That certainly convinced my noble friend that what are termed “through the gate” policies are extremely effective in making rehabilitation possible.
I remember talking to a young ex-offender on her rehabilitation programme in Birmingham, who said to me, “Lord McNally, you cannot imagine the feeling of fear and foreboding when you stand at the prison gates, the gates close behind you, and you have £46 in your pocket and nowhere to go and no friends and you don’t know what to do next”. It is not surprising that we get this high rate of offending.
One thing that has struck me in the two and a half years that I have been in this job is that, when you go around prisons, you find lots of initiatives and ideas that work—for example, a small charity going into prison and helping prisoners to find accommodation before their release, banks being willing to help prisoners to get their finances right, and private sector employers who are willing to put training programmes into place in prisons and then offer work when prisoners are released. It has been put to me before that the best guarantees against reoffending are somewhere to live, a job and a relationship. In a way, what we are trying to do in a holistic way is to bring in other departments to meet those needs and to make sure that there are alternatives.
On freedom of information, the Secretary of State made it clear in answering questions that it will be the providers’ responsibility to set out in contracts a clear commitment to transparency, but this will be considered as part of the consultation. In that respect, the noble Lord made a very valid point.
As I have said before, I hope that the probation service remains intact as a key part of our offender management arrangements, with responsibility for the most serious offenders and with oversight of the performance of those from the private and voluntary sectors who will be involved in this. I hope that the service will see it not as a threat but as an opportunity for it to play an important role in rehabilitation and to work in the kind of partnerships that the noble Lord referred to, bringing out the best of both the voluntary and private sectors and the qualities that already exist within our public sector.
I hope that the House and indeed the country will take this document as an invitation to have a serious debate about a serious problem. I have always believed that prison works but so do a lot of other things, and it is ridiculous for us as a country to spend £40,000 a year on keeping people in prison and for that to be a revolving door process whereby they go back into prison time and again. That is what this document and this debate will be about.
Lord Marks of Henley-on-Thames
My Lords, a major contributor to reoffending in the past has been the lack of support for prisoners on release, who at present often come out with very little money, as my noble friend has pointed out, nowhere to go and usually no work to do. Will the Minister ensure that the really welcome new commitment to mentoring and support for all prisoners on release is quickly implemented, properly resourced and thoroughly monitored by government?
Lord McNally
Yes, I hope so. I hope that one thing that is seen as a real breakthrough in these proposals is that we will be extending support services to those sentenced to less than 12 months. As many studies have shown, those short sentences have often been the source of most reoffending. Again, to make the point that there is a more holistic approach than that, in the Crime and Courts Bill we are trying to make community sentencing more acceptable to the public by putting a kind of punishment element into them so that they are not seen as the soft option to prison. That is another part of what we are trying to do, as is involving other departments such as the DWP and those dealing with health and social services. It is clear that a more holistic approach to rehabilitation is going to get the most results.
Lord Morgan
The statement very properly deals with some very important issues in our society, such as the high rate of reoffending. The great bulk of offences are committed by people who have already offended and this is adding to the pressure in our prisons; there is also the absence of an integrated system to deal with offenders who, as the noble Lord has said, are immediately thrust back into the community with £46 and no other help and very often no hope. The proposals have important merits which we should recognise right across the House. There is a programme for the rehabilitation of prisoners when they are released; they are not just thrown into the community. There is also an integrated proposal for mentoring them in relation to their problems and particular needs; for example, dealing with drugs or alcohol. There are already examples of this kind of approach, notably the Parc prison in Bridgend, south Wales, and this is very welcome.
I would like to ask the Minister two general questions. The policy of payments by results by private institutions is not one, as my noble friend said, that has been universally successful or indeed effective. Perhaps we could be told a bit more about these geographical regions which will be used to assess whether or not the policy of rehabilitation has been successful. Will there be any uniformity of definition about these regions? What will be deemed a successful result? If someone committing a very serious crime is then back in prison for committing a somewhat lesser crime, is that a successful result or not? I would also ask for reassurance for the probation service at a time when it is experiencing great dislocation and demoralisation. Thank you.
Lord McNally
I thank the noble Lord for those questions. He is quite right: of the three parts of this initiative that attract me most, one is the idea of a proper mentoring programme; another is a real acceptance of “through the gate” as a concept of dealing with prisoners; and the other relates to how to deal with prisoners with less than one year’s sentence. This is a consultation; the actual size and shape of the geographic regions have still to be determined, and will be determined in part by the outcome of the consultation. I suspect that my right honourable friend has in mind some fairly large regions to ensure that we get the kind of benefits of scale that large regions can provide. I cannot be firmer on that but we already have some experience of commissioning in London, where a community services contract has recently been signed that is over a four-year period and £20 million less than the existing contract. I think that they will be largish regions but we are open to consultation.
What is success? This is partly a testing of the market to see what kind of organisations are interested and what problems they foresee. It is not easy; is it one year free from reoffending, is it never reoffending and how do you prove that? It is not so simple but that is part of what the consultation process is about.
The Lord Bishop of Liverpool
My Lords, we on these Benches very much welcome the engagement of what is described in the Statement as the voluntary and community services. As the Minister knows, faith groups are already very involved in the rehabilitation of offenders, both inside and outside prison. Can the Minister tell us how the Government will ensure that, by opening up the probation services to the market, the local, voluntary and community sectors will not be eclipsed by the private sector with its much greater resources?
Lord McNally
First, I pay tribute to the right relevant Prelat for both the leadership and the contribution that the churches make to prison chaplaincies and for their support in the wider community. In previous debates I have referred to visits I have made to St Albans and Norwich, where the cathedrals are the centre of community efforts in rehabilitation. He makes a very relevant point about the voluntary sector. A new commitment within the group is that we will make available £500,000 of seed corn to help voluntary groups prepare proper business cases for participation. We will also build into the system for awarding contracts that organisations which include voluntary and local groups, and can clearly demonstrate that they are making full use of their expertise, will probably have a much better chance of winning contracts.
I hope that those two parts of the package—help in preparing a proper business case and a contractual advantage if they are included in bids by larger groupings—will ensure that local and voluntary organisations have a proper participation. Indeed, we would be disappointed if this was not one of the results of what we are doing. We want the ideas, initiatives and commitment that voluntary and local groups can bring to this as part of what we have termed a revolution.
Lord Ramsbotham
My Lords, like the noble Lord, Lord Rosser, I welcome the commitment to reducing the dreadful rate of reoffending. As an aside, I notice that the Minister did not add to his list of the factors that prevent reoffending the one that is said to mean most—a 30th birthday.
I would like to take up two points; first, the point that the Minister made at the end of the Statement—namely, that this is a very serious subject and needs a very serious debate. Will the Government be prepared to allow that debate? So far, we have not had an opportunity to debate the previous consultation which is swept up in this one. There is so much involved that it is terribly important that the issues contained in this should be properly debated in the House, whether at the end of this consultation period or not. I ask him for that.
Secondly, this business of “through the gate” and picking people up is not new. The previous Government introduced a programme called custody plus which was designed to do exactly that, but it was dropped because of fears that it would result in too many people being given short sentences which would be accompanied by this sort of follow-up. I wonder whether that same sum has been done here. The figures at present show an 8.3% success rate above the short sentence in prison rate being achieved by the probation service with short-sentence prisoners, but what we are seeing is a proposal for a complete change, not the reinforcement of success.
My second question to the Minister is this. We are dealing with offenders and offenders are dealt with by people, so offender management must be made the responsibility of someone. We have talked about responsibility for high-risk offenders and the fact that the probation service will be responsible for the initial risk assessment, but we have not had any indication of what will happen during the sentence if a medium or low-risk offender changes the level of risk. Who will be responsible for that? Will the probation service remain responsible throughout this process for the overall management of offenders on community sentences?
Lord McNally
I thank the noble Lord for those questions. I will certainly have a look at what he refers to as the “through the gate” experience and if the Minister responsible is now in this House, I might ask him or her about their experience. Nevertheless, there is overwhelming evidence that through-the-gate help and preparation before prison, along with being met at the gate and helped afterwards, has an impact.
The probation service will continue to have oversight across the piece. Part of the consultation will be about how light-touch that will be in terms of the day-to-day management of offenders, but we are conscious of the evidence that risk can change during the process of supervision and that there may well be a need to move certain individuals from the areas being managed by the private and voluntary sectors back into the public sector. However, that will be built into the oversight provisions that are to be part of the outcome of these consultations.
On the question of a debate, it is a matter for the usual channels, but if the Government prove difficult to persuade, I am sure that my noble friend Lord Dholakia will be able to persuade the Liberal Democrats to give one of their debate days to such a discussion. One way or another, we will have a debate in this House on this matter.
Lord Faulks
I welcome this Statement, particularly its focus on those with sentences of less than 12 months and its identification of that period of vulnerability as young offenders leave prison. One of the particular areas of vulnerability is those offenders who have a previous history of drug addiction who are then prone to taking large doses of drugs which can result in death. I therefore welcome the role of a mentor, although I recognise what the noble Lord, Lord Ramsbotham, has said about the perception of custody plus because I was sitting as a recorder at the time. However, the role of a mentor seems to me to be potentially very important. Can the Minister help the House by identifying who exactly is going to perform this mentoring role and what its scope might be so as to assist in avoiding those traps that I have attempted to identify?
Lord McNally
My Lords, as part of the consultation, we will be looking at the structure of mentoring. However, in the specific terms that my noble friend has referred to—in relation to those who leave prison with problems still associated with drug addiction—one thing we are trying to do, with the co-operation of the health service, is to make sure that people who are on programmes in prison continue to receive those programmes when they leave. One of the barmier aspects of the current system is that people who have been on treatment leave prison and, surprise, surprise, their addiction returns. Part of the programme of release will be to continue programmes like that.
As for mentoring, we will just have to wait to see the response, what kind of organisations come forward with suggestions, and where we build into any mentoring programme the proper training that will enable mentors to be effective in their work.
Baroness Corston
My Lords, given that we are in nearly the third year of this Government and still have no published strategy for women offenders and those at risk of offending, I ask the Minister a short question and hope that his answer will be both short and positive. Will he confirm that the current network of women’s centres, which have done such splendid work in turning women’s lives around and which have spectacular results in reducing reoffending as well as working well with probation trusts, will be an acknowledged part of the new system which he is describing today?
The Earl of Listowel
My Lords, in relation to the question of the right reverend Prelate and also regarding mentors, will the Minister recognise the concern about the continuity of care for these people, and consider whether in his consultation there might be preferred providers? For instance, if a small voluntary body proves to have a good track record, they would not have to renegotiate after three years and spend a lot of money and time to keep that ability. The mentors that they develop would also be kept on and not left in suspense as to whether their contract will be renewed in a year or so. Certainly, in my experience, good mentors can be undermined by the lack of certainty about their future and the future contract for their organisation.
Lord McNally
I take that very wise advice and will do my best to ensure that there is continuity.
Lord Phillips of Sudbury
My Lords, will my noble friend give an assurance to the House that in the consultation—for which we are all very grateful—the Government will be open-minded about the issue of the private sector, and the notion that it is appropriate that this extremely difficult task be dealt with by competition and the profit motive? Are the Government open-minded to the prospect that after the consultation this be omitted from the new scheme?
Lord McNally
That is always a possibility. In a way, we are all on payment by results, even Ministers—fortunately, we have to wait until 2015. Obviously, we are bringing forward a programme which builds on initiatives from the last Government and which suggests that some kind of payment-by-results incentive programme encourages efficiency and innovation. We do not bring forward proposals with the anticipation that they are either going to be rejected or are going to fail. I hope that they will bring forward really constructive responses. There has been a good and constructive response from the Opposition today. I am sorry that we squeezed out the noble Lord, Lord Myners, because I am delighted that he is the new chairman of the Howard League and I look forward to working with him on this and other areas. As always, almost by default as a Liberal Democrat, I enter this period of consultation with optimism.
Charging Orders (Orders for Sale: Financial Thresholds) Regulations 2012
Lord McNally Excerpts(11 years, 4 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
That the Grand Committee do report to the House that it has considered the Charging Orders (Orders for Sale: Financial Thresholds) Regulations 2012.
Relevant document: 13th Report from the Joint Committee on Statutory Instruments
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the purpose of this draft order is to introduce a financial threshold of £1,000 for the enforcement of charging orders by an order for sale where the charging order was made to secure the payment of money owed under an agreement regulated under the Consumer Credit Act 1974. A charging order made in such cases may not be enforced by way of an order for sale where the amount owing, including interest, is less than £1,000.
Before I go into greater detail about the order, let me briefly provide background on charging orders and orders for sale. When a creditor has not received payment for a court judgment, they may apply to the court to enforce that judgment. They have several enforcement options open to them, including applying for a charging order on a debtor’s property or asset. While the majority of charging orders are made against property, the provisions themselves also cover land and stocks and shares.
The purpose of the charging order is to secure the debt. It does not, in itself, lead to repayment of the debt until the debtor sells their asset. The creditor may also choose to pursue other enforcement options or make a further, separate application for an order for sale. This application seeks the court’s permission to enforce the existing charging order by ordering the sale of the property, or other asset, either immediately or at some point in the future if a suspended order is made.
Both the application for a charging order and the further application for an order for sale are always listed for hearing before a judge and so are subject to case-by-case judicial discretion and case law. In each case the judge will consider, among other things, the proportionality of the debt as set against each of the parties’ assets and commitments; whether—if it is a property in question—it is the primary residence of the debtor or a secondary residence or a commercial property; who else may reside within the property, including children; the balance of rights between the creditor and the debtor; and whether the debtor should be granted additional time to pay, resulting in a suspended order.
Evidence shows that under the existing arrangements only a very small proportion of charging orders—some 0.5%—result in an order for sale, and some of these may be suspended orders. This is in part due to the fact that the process of applying for, calculating potential equity in and administrating the sale of a debtor’s property is economically risky for creditors. This, together with case-by-case judicial discretion, means that it is very rare for debtors to lose their homes as a result of a charging order.
With that background, I turn to the reason for the regulations before us today. Although it is indeed very rare for debtors to lose their homes as a result of a charging order, it is important that the Government ensure that all appropriate safeguards are in place to ensure that this does not happen as a result of what might have originally been relatively small, unsecured borrowing. The coalition commitment to introduce a threshold for orders for sale applications reflects this. However, it is also essential that protection for debtors is balanced against the rights of creditors. The Government believe that responsible creditors who are owed money and have gained a judgment in court have the right to enforce that judgment. Without effective enforcement we risk jeopardising the authority of the courts and public confidence in our justice system, as well as there being a negative impact on the economy if lenders are not confident that they can recoup money that is rightly owed to them.
Following extensive public consultation, we intend to introduce a £1,000 financial threshold, as set out in the draft regulations. While this differs from the £25,000 threshold set out in the coalition agreement, it was concluded to be the most appropriate level at which the necessary balance between the rights of debtors and the rights of creditors could be most effectively struck. While stakeholder opinion was, perhaps predictably, split between creditors and debtors, there were other groups who also held strong opinions—for example, the legal profession and the judiciary.
A number of arguments against a high financial threshold, or even any threshold, were given. With a high threshold, such as £25,000, there is a risk that creditors may seek to recover their debt by initiating bankruptcy proceedings as an alternative to enforcement. This would be a more draconian outcome for debtors than an order for sale. As many noble Lords will be aware, bankruptcy often results in debtors losing their homes, whereas the protections which are already in place within the enforcement system—and which will continue to be in place if these draft regulations are approved—protect most debtors from losing their homes.
Lord McNally
My Lords, I am very grateful to the noble Lord, Lord Beecham, for that constructive response. I know from our exchanges during the Crime and Courts Bill of his long-standing interest in this area and I understand why he continues to probe on the matter. The Government remain committed to providing more protection for debtors and we are taking appropriate action to ensure that that happens. When we debated this on the Floor of the House, and again today, the noble Lord pointed out that the coalition agreement talked about a £25,000 limit and we now talk of £1,000. I suppose that the honest answer is that that was the outcome of the consultation. We now feel that the balance of what we wanted to do is better met by the guideline of £1,000 rather than £25,000, not least because we were advised that the higher limit could steer creditors more in the direction of bankruptcy solutions, with the impact that I indicated on house ownership, rather than a settlement under these regulations.
We were also very much influenced by the judiciary, which believes that a very low threshold, with a great deal of judicial discretion, provides a far more guaranteed protection for the creditor than the protection afforded by a higher level—
Lord McNally
For the debtor, yes; I am sorry.
With these things it is always a matter of judgment. The judgment that we have come to, and the level we have set it at, is the result of consultation, with the aim of striking a right and proportionate balance that will give power and flexibility to the judiciary and a degree of protection for the lower levels of debt.
The noble Lord asked about early enforcement of parts of the Tribunals, Courts and Enforcement Act 2007. Following the Solving Disputes consultation paper we implemented Section 93 of the TCE Act. It closes an existing loophole, providing a greater degree of security to creditors and encouraging debtors who are in financial trouble to make more reasonable yet affordable offers to pay.
The Government consulted on introducing this section in 2010 in their Solving Disputes in the County Courts paper. Some 74% of respondents supported its introduction, arguing that it offers protection both for creditors, for whom a charging order is often the only effective long-term solution to recovering a liability, and for the debtor. By commencing Section 93 of the Act we have given creditors a certain ability to convert unsecured loans to secured loans. I am sorry—I had better clarify that. One of the criticisms that has been made is that we have given creditors the ability to convert unsecured loans to secured loans by extending the use of charging orders in this way. We do not believe that that is true. Charging orders are used to secure an unpaid judgment debt, not a loan. Legitimate judgment creditors who have obtained a valid judgment through the courts should have the right to enforce the judgment by the most appropriate means available.
Lord Beecham
My Lords, I would be grateful if the Minister could clarify a couple of matters. He referred to the order allowing charging orders to be applied for, but is he aware that under the regulations enacted last October it would be possible to do that without the debtor having at that stage defaulted? That would seem to convert an unsecured loan into a secured one.
My second question relates to responses. Am I right in thinking that the balance of responses reflects the fact that most of those responding were creditors rather than debtors, their representatives or organisations interested on behalf of debtors?
Lord McNally
My Lords, the balance reflected the interests of the responders. The noble Lord is quite right: the creditors had one set of priorities and those speaking out of concern for debtors had others. That is the nature of consultations, as the noble Lord will be aware. I also pray in aid the strong view of the judiciary that it wants to retain as much judicial discretion as possible. In my remarks I listed the clear considerations that a judge takes and the fact that these matters come before a judge.
On the issue of whether it is pre-emptive, as it were, under the measures that we took last October, as I explained, it gives debtors who are in financial trouble the opportunity to make more reasonable and affordable offers to pay. The noble Lord appears to be saying that adjustments can be made only after disaster has struck, but that is not my reading. If I am not right in my interpretation I will write to the noble Lord. However, it seems to me that it provides an opportunity to intervene in a constructive way when people are running into difficulty.
Lord Beecham
My Lords, I am grateful to the Minister. However, as I understand it, the order does not require the debtor to be in any difficulty or to have made any default at all before the charging order can be applied for. That does not mean, of course, that the order for sale would automatically follow, but it is a precursor to that and can arise even before any default has taken place. We are unable to take this much further today, but I invite the Minister to look at the situation in due course.