EU: European Justice and Home Affairs Powers
Lord McNally Excerpts(13 years, 9 months ago)
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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 the other place by my right honourable friend the Home Secretary. The Statement is as follows.
“With permission, Mr Speaker, I would like to make a Statement on European Justice and Home Affairs powers.
Under the terms of the Lisbon treaty, the Government are required to decide by 2014 whether we opt out of, or remain bound by, all those EU police and criminal justice measures adopted prior to the entry into force of the treaty.
The Government are required under the treaty to reach a final decision by 31 May 2014, with that decision taking effect on 1 December. While this may seem a long way off, as with many EU matters the process of decision-making is a complicated one. We wish to ensure that before that point we give this House and the other place sufficient time to consider this important matter.
In total, there are more than 130 measures within the scope of the decision to be considered at this stage. A full list of the measures concerned was provided to the House on 21 December last year, and a further update was given on 18 September this year.
The Government are clear that we do not need to remain bound by all the pre-Lisbon measures. Operational experience shows that some of the pre-Lisbon measures are useful, some are less so and some are now, in fact, entirely defunct. But under the terms of the treaty, the UK cannot pick and choose the measures from which to opt out. We can only opt out en masse and then seek to rejoin the individual measures.
So I can announce today that the Government’s current thinking is that we will opt out of all pre-Lisbon police and criminal justice measures and then negotiate with the Commission and other member states to opt back into those individual measures which it is in our national interest to rejoin. However, discussions are ongoing within government and therefore no formal notification will be given to the Council until we have reached agreement on the measures that we wish to opt back into.
This Government, more than any other before them, have done their utmost to ensure that Parliament has the time to properly scrutinise our decisions relating to the European Union and that its views are taken into account. I can assure the House that the 2014 decision will be no exception. As the Minister for Europe has already told the House, the Government are committed to a vote on this matter in both this House and the other place. We are also committed to consulting the European Affairs, Home Affairs and Justice Select Committees, as well as the European Scrutiny Committee and the European Union Committee, as to the arrangements for this vote.
I fully expect that these committees will want to undertake their own work on this important decision. The Government will take account of the committees’ overall views of the package that the UK should seek to apply to rejoin. So that the Government can do that, I invite the committees to begin work, including gathering evidence, shortly and to provide their recommendations to the Government as soon as possible.
The Government will then aim to bring forward a vote in both Houses of Parliament. The timeframe for this vote will depend on the progress in our discussions with the Commission and Council. An update will be provided to Parliament early in the new year on when we can expect the vote to take place.
I hope that today I have conveyed to the House the Government’s full commitment not only to holding a vote in this House and the other place on the 2014 decision but on the importance we will be according to Parliament in the process leading up to that vote. I am sure that all parties will want to work together to ensure that the final decision is in the UK’s national interests.
It is in the national interest that the Government have taken this decision, and I commend this Statement to the House”.
My Lords, that concludes the Statement.
Lord McNally
I thank the noble Baroness for her response. I suppose I should also thank the Opposition for leaving this measure in the negotiations that they carried out on the Lisbon treaty.
First, on clarity, I do not think there could be a better and clearer declaration of pre-legislative scrutiny—something that I think the House wholly approves of. If I had come here today with a definitive list of measures to be opted into or out of, the House would quite rightly have said, “How can you pre-empt the decision in this way?”. I will borrow the noble Baroness’s phrase: we have put in place a process, not a policy. The process will allow this House, the other place and their committees to look at this matter in a proper, considered way, and to bring forward recommendations that will in turn form the Government’s final decision. That does not sound to me anything like policy on the back of an envelope. It seems a very measured way of looking at matters, and one reason why we are starting early is to make as much progress as possible on these matters so that there is not the gap to which the noble Baroness referred in relation to the opt-out and implementation.
The European arrest warrant is a perfectly good example. No final decision has been taken. The European arrest warrant has had some successes, but there have also been problems, including the disproportionate use of the EAW for trivial offences. As with all the other measures, the point is that it will now be open to scrutiny and consideration by those who have experience of how these things have worked, so that we can make that final decision on these measures in the national interest. As I say, this is one of the clearer Statements I have come across about how a Government intend to develop policy, and one that sets forth for both Houses a process that will give them maximum influence on policy.
Lord Lloyd of Berwick
My Lords, I start by welcoming the fact that the Government are consulting so soon on whether or not to opt out. That seems an entirely good thing. I also welcome the fact that they are consulting the various committees listed in the Statement.
I suggest that those committees, and indeed the Government, could do no better than to start by reading—and, if I may say so, inwardly digesting—a working paper very recently produced by a group of very distinguished academics under the leadership of Professor John Spencer of Cambridge University, entitled Opting Out of EU Criminal Law: What is Actually Involved?. It was the result of much work over the summer and was published only last month. The report starts by disposing of various myths that have surrounded this subject since first it raised its head: in particular, the myth that one can pick and choose what one is going to opt out of. Happily, the Government accept that we simply cannot do that.
However, the Government believe that we can opt out of the whole and then try to negotiate our way back in where it suits us—the so-called Danish solution. But what if we do not succeed? It is quite wrong to suppose that all 130 pre-Lisbon police and criminal justice measures are bad. On the contrary, they are not. We will in any event be bound by all post-Lisbon police and criminal justice measures—that is another myth that is widely believed. So it will be partly one and partly the other. If we opt out, we may in the end get the worst of all possible worlds in deference to the pressure that I think we all understand.
The noble Baroness, Lady Smith, has already referred to the “current thinking” of the Government on this matter being to opt out. I implore the Government to keep their current thinking on this matter under review.
Lord McNally
My Lords, the whole point of the exercise is that the Government can keep their thinking under review and can take on board the kind of evidence and study that the noble and learned Lord referred to. He puts his finger on it entirely. We were faced with the position, as the Lisbon treaty stands, that we could not pick and choose what we opt out of; we can simply opt out and then negotiate on the basis of opting back in. Is that a high-risk strategy? We will take the evidence of the debate that unfolds in both Houses, from the committees of both Houses and from academic, judicial and other advice that we receive. However, I do not think that the Government can be accused of taking an irrational way forward. It seems a very measured way forward that gives us time—the noble and learned Lord welcomed how soon this decision had been made. It is because we are taking this early decision that we are going to be able to make the kind of measured decision in the national interest that I think both Houses will welcome in the end.
Lord Reid of Cardowan
I thank the Minister for repeating the Statement, although I confess that I am not much better informed than I was before it. Will he clarify three things to take us a little bit further in detail, something with which the Statement was not replete? First, during this period when the Government are “minded” to do something—one of those useful words that civil servants taught me—will the present provisions continue to operate until such time as the Government become “minded” to stop things? Secondly, given that law and order is both now an international and transnational phenomenon and among the highest priorities of people in this country, can the Minister tell us whether any impact assessment has been done of the effect of abandoning these regulations on law and order in this country during the interim, between when he becomes minded to do something and the negotiations finish? In particular, has any consultation taken place with the police and the intelligence communities about it? Thirdly, if either has taken place, can he give us a little more detail on the anticipated effects, were such regulations to be abandoned, in particular or wholesale?
Lord McNally
I thank the noble Lord for those questions. I am sure we are going to get this continually. I make the point that the whole merit of this Statement is that it does not present either House with a fait accompli. On the contrary, it offers the House involvement in making these important decisions, which I think would be welcome to the House concerned. That is why this word “minded” is used, because the Government are awaiting advice and having discussions. I cannot imagine that decisions of this importance and magnitude would be taken without the input of those who have responsibility for policing and security matters. They will certainly be involved in giving evidence and advice. However, I am not sure that the process would be helped if Ministers or anybody else dribbled this advice out a little bit at a time. We will get a big picture and all the committees of both Houses will have the opportunity to take advice from a wide range of bodies. We will see that advice emerging when they have had the opportunity to give it.
Baroness Hamwee
My Lords, does my noble friend agree that it is fundamental to the EU that there is freedom of movement and, that being so, that we need the tools to deal with negative consequences, when there are negative consequences? If that is so, will he give the House an assurance that the Government’s decisions will be based on evidence and informed opinion—of which there is quite a lot—because the Statement is not neutral? Does my noble friend further agree that playing hard to get is not always the best way to progress a relationship?
Lord McNally
I shall not go there. Instead, I assure my noble friend that the invitation before the House, and indeed the country, is to let us make these very important decisions on the basis of evidence and informed opinion. I am very confident that if we approach this on the basis of evidence and informed opinion we will make the right decisions for the country.
Lord Baker of Dorking
My Lords, I was the Home Secretary at the time of the Maastricht arrangements. Let me remind your Lordships of what Maastricht did. It said that matters of criminal justice and police powers should remain matters for independent states within Europe. In fact, John Major described it on coming back from Maastricht as one of the great independent pillars of that settlement. That independence has been eroded over the years by the natural effluxion of powers to the centre, which is remorseless in the case of Europe. Therefore, I very much welcome the statement that we will resile from undertakings and then pick and choose which we think are advantageous to our country. This seems to be an excellent exercise in subsidiarity and may well be the shape of things to come.
Lord McNally
I thank the noble Lord, Lord Baker, for that intervention. I think he would agree that things have moved on from Maastricht, not least in a matter that I think the noble Lord, Lord Reid, referred to—that many of the challenges that we face in these areas are transnational and international. That is why, while looking at the issues with an eye to subsidiarity and the responsibilities of the nation states, we also have to look at them from the realities of the much more international, transnational and global operation of many of the criminal forces that we are trying to counteract. That is why I rely on proper evidence-based examination of the decisions that we are taking forward.
Lord Hannay of Chiswick
My Lords, does the Minister recognise that the thanks for the Statement today would be a great deal more sincere if it was not such a sham? It is a sham because the Prime Minister has stated categorically that he will opt out—no ifs and buts and nothing about reinserting those measures we choose. He has ridden roughshod over the undertakings that were given in this House by the noble Lord, Lord Henley, and in the other place by the Minister for Europe that before the Government came to any conclusions at all on this matter they would consult very fully. The warm words he said about consultation today are, frankly, not very comforting. I can only repeat the words of the chairman of the EU Select Committee of this House, the noble Lord, Lord Boswell, when he wrote to the Home Secretary after the Prime Minister’s statement expressing his dismay. Does the noble Lord agree that it would be completely unthinkable to put the matter for decision to the two Houses until we are absolutely clear what the whole of the reinsertion or reapplication package is? We will not be able to judge what the consequences of the Government’s actions are unless we know not only that they are going to opt but what they are going to opt back into.
Lord McNally
The noble Lord is being unduly cynical about the approach being taken—or let us say pessimistic. When the Home Secretary of the day makes a considered Statement of government policy and I repeat it from this Dispatch Box in this House, we are asking noble Lords and Members in the other place to believe that the Government have not made a final decision on this matter. They have adopted a process which will enable us properly to look at the issues before us. I take note of the noble Lord’s point that the opt-out/opt-in decision is part of a single picture, and I shall certainly draw my colleagues’ attention to the fact that somebody with his long experience of negotiations of this kind is giving what I consider to be wise advice.
Lord Wood of Anfield
My Lords, in the event that we opt out and then persuade 26 other EU countries of the importance of us opting back in on an individual item, would the act of opting back in trigger a referendum under the Government’s own legislation?
Baroness Williams of Crosby
My Lords, can my noble friend assure the House that, in the event that the United Kingdom Government decide to pursue certain elements to opt back into, we would know in advance that the other 26 countries would be willing to negotiate on that basis? It is crucial, if we are going to opt back in, that we have reason to believe that we will be heard and that those issues will be negotiated. Does my noble friend agree that it was under the European arrest warrant that, among other people, one of those who perpetrated the 7 July atrocities was arrested? Will he also assure and remind the House that Europol was at a very advanced position in breaking the dangerous international paedophile ring that until last year operated throughout the whole of Europe?
Lord McNally
My Lords, the European arrest warrant and other measures of European co-operation stand very clearly as benefits to us—my noble friend cited two examples. That will be part of the debate that is unfolding. One of the reasons for our wanting to make the Statement today, which, as I have said, it would have been possible to delay by another year, was to start engaging in exactly the kind of discussions that my noble friend referred to. On both a bilateral basis and with the Council and the Commission, we will explore the very areas that will give us and both Houses a clear indication of prospects for success.
Lord Williamson of Horton
My Lords, I do not think that this is a high-risk strategy as has been suggested by others. We negotiated in the Lisbon treaty the right, if we so decided before the end of May 2014, to opt out en masse of the EU police and criminal justice measures adopted before the entry into force of the treaty. As for the treaty, it is a case of all in or all out. That is what the treaty says. It is the consequences that we are talking about now. The Government have, as I understand it, now decided to opt out. Of course, it is possible to opt in for other individual measures, but does not the Minister agree that one problem there is that the practical consequences of some of these measures are still rather difficult to foresee, because we are talking about a moving target? That is a serious point, but I welcome the Government’s intention to scrutinise the possibilities very carefully, to give Parliament the time to carry out the scrutiny, particularly in this House, and to require a vote in both Houses of Parliament. That is the right way to go and the British public deserve no less.
Lord McNally
My Lords, I welcome from such an experienced source the opinion that this is not a high-risk strategy. As I have acknowledged, there is a danger in taking the opt-out route, but the treaty left us no option other than to stay in en bloc or to adopt this strategy of opting out and then negotiating back in. By adopting a good timescale and involving committees of both Houses, we will have the opportunity to take both external advice and the political opinion of both Houses to keep track of the individual measures and look at the exactly the kind of consequences and movements that the noble Lord referred to. It is certainly not a political ploy, as has been suggested; rather, it is a political opportunity. It may be seen as a political opportunity for Eurosceptics. I urge those who have a belief in the European process and the benefits of European co-operation to use this exercise to argue their case strongly in both Houses and with the intention of a getting a final decision which is truly in the national interest.
Official Secrets Act 1989 (Prescription) (Amendment) Order 2012
Lord McNally Excerpts(13 years, 9 months ago)
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Lord McNally
That the draft Official Secrets Act 1989 (Prescription) (Amendment) Order 2012 be referred to a Grand Committee.
Defamation Bill
Lord McNally Excerpts(13 years, 9 months ago)
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, first, I welcome the noble Lord, Lord Browne, as the lead opposition spokesman on the Bill. I look forward to working with him and with the noble Baroness, Lady Hayter, on it. I also welcome the noble Lord, Lord Ahmad, as my chief aide. He has taken over in the Ministry of Justice from the noble Baroness, Lady Verma, who used to placate me on the Front Bench from time to time and to help me through Bills. I should, perhaps, put on the record that I hope that the noble Lord, Lord Ahmad, will provide a link with Members in all parts of the House—not only on this Bill but on MoJ business in general. I look forward to working with him.
I am delighted to open this debate today as the Defamation Bill begins its passage through the House. The Bill fulfils the commitment in the coalition agreement to review the law of libel to protect legitimate free speech. I would like to begin by thanking those in the other place for their work on the Bill so far—in particular my right honourable friend the Secretary of State for Justice and Lord Chancellor, Chris Grayling, and his predecessor Kenneth Clarke. I also thank the Ministers, old and new, in my department who have assisted in steering the Bill through the other place. However, I consider that today the Bill has come home. Indeed, it was in this place that my noble friend Lord Lester of Herne Hill produced a Private Member’s Bill on this subject back in 2010. I would like to take this opportunity to place on record my enormous thanks to my noble friend Lord Lester, and to his expert team of Heather Rogers QC and Sir Brian Neill, for their advice and assistance to me and to the Ministry of Justice in helping us to develop the provisions that are contained in the Bill here today.
However, my vote of thanks does not stop there. The Defamation Bill was published in draft in the first Session of this Parliament for full public consultation and pre-legislative scrutiny. The Joint Committee of Parliament that was established to undertake that scrutiny was expertly chaired by my noble friend Lord Mawhinney. I am grateful to him and his colleagues on the committee for their very careful consideration of the issues and for their extremely detailed and helpful report. I have also made it part of my responsibilities to engage in discussions with a wide range of interests outside Parliament who have brought this issue to the forefront of public debate, many of whom have provided briefings to this House in advance of today’s debate. It would be remiss of me not to extend my thanks also to the many groups and individuals that responded to our public consultation on the draft Bill.
This Bill was built on a Private Member’s Bill, followed by consultation, pre-legislative scrutiny, a draft Bill and consideration in the other place. It is not a Bill that divides us on party lines. Indeed, I have made no secret of the fact that my intention in bringing this Bill before Parliament has always been to end up with legislation that works. I believe that it is timely because of the mounting concern in recent years that our defamation laws are out of date, costly and over-complicated. They give us the worst of all worlds by damaging freedom of speech without affording proper protection to those who are defamed.
Freedom of expression is the cornerstone of our democracy. In an open society, people should be at liberty to debate a subject without fear or favour, whether the matter is political, scientific, academic, religious or anything else. That is how power is held to account, abuses of authority uncovered and truth advanced. However, freedom of speech does not mean that people should be able to ride roughshod over the reputations of others without regard to the facts. Careers and indeed lives can be destroyed by false allegations that are incapable of properly being answered. The issue for our defamation laws is ultimately one of striking the right balance between protection of freedom of expression on the one hand and protection of reputation on the other.
The law as it stands has allowed a situation to develop where the threat of lengthy and costly proceedings has sometimes been used to frustrate robust scientific and academic debate, to impede responsible investigative journalism and to undermine the good work undertaken by many NGOs. Nor can it be a matter of pride when powerful interests overseas with tenuous connections to this country use the threat of British libel laws to suppress criticism as part of so-called libel tourism.
It is also a fact that our current libel regime is not well suited to the internet. Legitimate criticism sometimes goes unheard because website operators, as providers of the platforms on which vast amounts of information are published, often choose simply to remove material which is complained of rather than risk proceedings being brought against them. Meanwhile, individuals can be the subject of scurrilous rumour and allegation on the web without meaningful remedy against the people responsible.
We need to refocus and modernise our law on defamation so that it offers effective protection, whether offline or online, for both freedom of speech and the reputation of those who have been defamed. It is my hope that the Bill will do that, but I am well aware that this is new territory for legislation.
I now turn to the detail of the Bill. I see it as a first priority to ensure that the law is reformed so that trivial and unfounded actions for defamation do not succeed and indeed are discouraged from being started. Clause 1 therefore raises the bar for a statement to be defamatory by proposing that it must have caused or be likely to cause serious harm to the reputation of the claimant. Where the draft Bill sought views on a test of “substantial harm”, which was intended to reflect current law, the new clause draws on the views of the Joint Committee on the draft Bill and the balance of opinions received in consultation by nudging up this threshold. Our intention is to give more confidence to defendants such as those in some of the cases brought against NGOs and scientists in recent years.
Alongside a stronger test, we also want to simplify and clarify the defences available to those accused of libel. As they stand, they are unnecessarily complicated and too narrowly focused on cases relating to mainstream journalism rather than the online world, NGOs, academics, scientists and so forth.
The Bill also clarifies that qualified privilege extends to reports of scientific and academic conferences. In a further important step forward for the protection of scientists and academics, Clause 6 creates a defence of qualified privilege for peer-reviewed material in scientific and academic journals—again, as recommended by the Joint Committee.
There are also provisions seeking to address libel tourism, which has damaged this country’s reputation around the world as an advocate of freedom. Although relatively few foreign libel cases ultimately end up in British court rooms, I am concerned about the use of threatened proceedings by wealthy foreigners and public figures to stifle investigation and reporting. Clause 9 of the Bill addresses the issue in a measured and proportionate way while avoiding any conflict with European law. It clarifies that a court will not hear a case against someone who is not domiciled in the UK, another EU member state, or a state which is a party to the Lugano Convention unless satisfied that England and Wales is clearly the most appropriate place to bring the action. It should help to ensure that powerful interests around the world will not easily be able to use British justice to gag their critics, which is a move that I hope will be welcome across the House.
In addition to protecting freedom of expression and reputation, the Bill seeks to modernise the law. Currently, website operators are at risk of action for the content of material that they may host, even if they do not control the content. Most operators are not in a position to know whether the material posted is defamatory or not and very often, faced with a complaint, will immediately remove material rather than face the possibility of defamation proceedings, however real or remote that possibility may be. That leads to an unnecessarily chilling effect on free speech.
The Government want a libel regime for the internet that makes it possible for people to protect their reputations effectively but also ensures that information online cannot be easily censored by casual threats of litigation against website operators. Clause 5 of the Bill sets out a framework for how we wish to achieve this.
As your Lordships know, technology develops apace, and rather quicker than primary legislation. Had we sought to specify the detail of the system that we propose for the internet, we would have risked it being out of date before noble Lords had concluded their considerations. Rather, we propose that much of the detail will be set out in regulations. We will be seeking views on the content of these regulations by the end of the year.
The Bill will make significant changes to the law of defamation—changes that I would argue are very much for the better. However, they should not be seen in isolation. As I have already mentioned, one of the biggest areas of concern in relation to defamation proceedings centres on the costs involved. As the House will recall, earlier this year we had some debates about the costs and funding provisions on what is now the Legal Aid, Sentencing and Punishment of Offenders Act. Part 2 of that Act reforms no-win no-fee conditional fee agreements, or CFAs, to reduce costs and to make them fairer as between claimants and defendants. Those provisions come into effect in April next year, including for defamation and privacy cases. During those debates, particular concerns were raised by a number of noble Lords—the noble Lords, Lord Martin and Lord Prescott, and others—about the effect of our reforms on less well off parties. At that time, I acknowledged those concerns, and I gave a commitment to look at the rules on costs protection for defamation and privacy claims in preparation for when the defamation reforms come into effect.
I have asked the Civil Justice Council to help us on costs protection for defamation and privacy claims by looking at the case for it and options for reform. The council is an advisory body chaired by the Master of the Rolls. I have asked him to report by the end of March 2013. That will allow us to make, if appropriate, any rule changes in time for the Defamation Bill coming into effect.
In addition to the issues on costs, we are developing a new procedure to resolve key preliminary issues at as early a stage as possible, which was something that I know was of great interest to the Joint Committee. Currently, cases can drag on for too long before they reach full trial and that can lead to costs being built up unnecessarily. Getting early resolution of key issues often leads to early settlements. The Government are keen to encourage that. The Government are grateful to the Joint Committee for its recommendations, including those on the use of alternative dispute resolution in defamation cases. However, when looking at procedural reform, we need to be aware of the wider context, and recommendations that impact on this area may come out of Lord Justice Leveson’s report.
While I believe that it is important to wait for the outcome of the Leveson inquiry with respect to the procedural aspects of defamation reform, I am clear that we should not allow that process to impact on the content—or indeed the timescale—of our reforms to the substantive law contained in this Defamation Bill. Leveson is largely focused on issues other than defamation and should not be used as an excuse to delay this Bill. Opportunities to get this area of law right do not come along too often. There was a Defamation Act in 1952 and another in 1996. This is the first opportunity we have had to consider the law in Parliament since the explosion of the internet age and we might wait a long time for another chance. What is more—and with perhaps uncharacteristic modesty—the other place has left scope for this House to apply its expertise to this Bill. My approach has been to listen and apply the dictum of the late President Truman, “Spread a little of the credit and you will be surprised how far you can go”.
In another place, my ministerial colleagues at the Ministry of Justice made it clear that there is one area of the Bill in particular where we are reflecting in the light of the views we receive. This is in the area of the defence of responsible publication on a matter of public interest, contained within Clause 4 of the Bill. I am sure there will be more views forthcoming on that clause during the debate. I will be sure to take note of them and we look forward to further discussions on Clause 4 in Committee.
I believe that the package of measures contained in this Bill meets our aim of rebalancing the law in a fair and effective way, so that free speech is not unjustifiably impeded and so that debate on issues of public importance is able to thrive, while still providing appropriate remedies for those who have been defamed. It is a sound, reforming Bill and one that I hope can command cross-party support. I genuinely look forward to working with all parts of the House to bring forward a Bill of which we can be justly proud. In commencing our work, perhaps we should take on board the warning contained in the editorial in today’s Guardian, which says that,
“weighing free expression against protection of reputation is art as much as science”.
Fortunately, we have an abundant supply of both artists and scientists in this House. I commend the Bill to the House.
Lord McNally
My Lords, in opening the debate I said that I was looking for help in carrying the Bill forward. The tenor and content of the debate have lived up to my expectations. We also have the confidence of the other place, which knowingly passed us a good deal of work. Usually we complain that it does this without acknowledging it. At least this time it does and I hope that we can carry forward these discussions in Committee in a way that will produce the better Bill to which the noble Baroness, Lady Hayter, referred.
I acknowledge what the noble Baroness and others have said: that in many parts this is a consolidation Bill, aimed at clarifying the law and putting it into a place where people can clearly understand it. My intention has always been that, where necessary, we should take the law forward. In particular, as has been referred to, we are setting ourselves a pretty fierce challenge where the internet is concerned because of the speed of change. However, we should not duck away from it simply because we face rapidly changing technologies.
It is also good that there were voices in this debate that were not simply politically correct. It would have been very easy to say that we are all in favour of free speech and that it is very good, but the contributions of the noble Lords, Lord Sugar and Lord Triesman, and my noble friend Lord Phillips were important in saying that this Bill seeks a balance between the freedom of speech and the rights of journalists to pursue the truth and the rights of individuals to protect their reputation and in some circumstances their privacy. This debate had the necessary balance, which takes us forward to Committee.
On the question of defending the rights of business, the noble Baroness is right; this was raised in the Committee and I gave an opinion then. The Government’s considered view is that businesses have reputations that can be defamed and damaged and that they have a right to defend their reputations. There has been no great bullying by big business—the noble Baroness is getting into conspiracy theories. However, we can look at this in Committee. She also talks about the various organisations trying to hold business to account that can be bullied. Over the months that I have been working on this, I have heard enough hearsay evidence about the willingness to fire off lawyers’ letters and rack up costs or implied costs. I hope that some of the things that we are doing—the threshold and the reform of defence, particularly the public interest defence—address this.
Something that has also come up time and again in debates, which we will look at, is the cost issue and case management. I shall go back to the Ministry of Justice to find out how speedily we can respond, but I understand that when the House goes into Committee it will want information about some of the issues that we have said, quite rightly, that we want to manage by secondary legislation or by consultations with the judiciary. However, I also take the point that we need to give the House as early as possible the thinking and direction of travel in which we want to go in these areas. I take on board what the noble Lord, Lord Browne, asked me at the beginning: whether we would be able to publish some kind of timetable for bringing forward this further information. I will do my best.
When so much is to be discussed in Committee, I hope that colleagues will understand that summing up like this and dealing with the detail of some of the questions would probably run for about an hour. Here are the notes that my officials in the Box sent me to answer detailed questions. I also made 25 separate notes myself. I can try doing so if noble Lords want, but what I have taken out of this is that we have certainly got a number of things right, which people have welcomed. I notice the point that the noble Viscount, Lord Colville, made: that the Reynolds defence is too restrictive. That is partly why we have invited more comment. It is admitted that the clause that we have put forward will need further work. That is what I look to do in Committee, and I hope that this work will avoid the kind of back-street bullies that he described. We will also look at Clause 4, certainly in the light of the Flood judgment but also after a number of other comments made during the course of this debate.
There was interest during the debate—we shall probably discuss this further—about where to get satisfaction in these cases. A number of speakers referred to the wisdom of making sure that judges can order suitable corrections. Others warned us against putting judges in the editor’s seat. It is part of the nature of this debate that we have those differences. I was grateful for the kind comments of the noble Lord, Lord Mawhinney. I did not know that “serious and substantial” was the contribution of the noble and learned Lord, Lord Mackay. I always take very seriously anything suggested by the noble and learned Lord. A number of other people have given warnings. When we come to Clause 4 we shall look at this difference between those who want some guidance for those looking at the law and those who want to avoid a tick box. Again we can explore the best that we can get between ticking boxes and giving guidance.
A variety of people have commented on costs. I take them all on board. It was interesting that a number of speakers—the noble Lord, Lord Mawhinney, among them—referred to the case for putting arbitration and mediation into the process. This is a great desire, but how we do it, I am not quite sure. On some of this we may have to wait to hear what Lord Leveson is going to say. However, this Bill is not just newspaper-specific, of course, and I was very interested in the comments on the way in which arbitration is being offered on the internet. I take the point made by the noble Lord, Lord Lester, that we should not get blown off course by Leveson. We can deal with defamation without that being a cause for delay.
I am extremely grateful to the noble Baroness, Lady O’Neill, and indeed to all the scientists who contributed. One of my driving motivations has been to try to get something that would deal with the undoubted problems that scientists, academics and others face. The noble Baroness, Lady O’Neill, was realistic enough to realise that these are complex issues. As she said, this is the central piece in the jigsaw of legislation. I was pleased by the favourable comments of the noble Lord, Lord Bew. We are trying to provide legislation that gives genuine protection to the scientific community, and I look forward to working in Committee. If there are improvements that give that protection, we will certainly look at them.
The noble and learned Lord, Lord Morris, gave us the wise guidance again that, while protecting freedom of speech, we have to give adequate protection for reputation. He advised me to bring forward the promised regulations as soon as possible. I was interested as well that the general opinion was that we had got it right as far as jury trial was concerned. That is extremely welcome. The noble and learned Lord, Lord Morris, asked me whether there was any insidious read-across to criminal trials. Unless they are not telling me something, and unless he gets an urgent letter from me tomorrow morning, the noble and learned Lord can take this as an assurance from the Dispatch Box that there is no read-across to intentions about jury trials. The noble and learned Lord, Lord Morris, himself made the point that, with the internet, we must put flexibility into this legislation. I remember that when we debated the Communications Data Bill we kept on talking about “future-proofing”—much good that it did us. Future-proofing may be impossible in the modern technological age, but we can build in flexibility.
I much appreciated the contribution from the noble Lord, Lord Black, about the serious-harm test being good, and his comments that the Clause 8 single-publication rule is much needed but perhaps should be clarified.
I should perhaps say to the noble and learned Lord, Lord Lloyd, that I have conflicting advice on his point about Lord Ackner’s judgment. My officials have sent me a note saying that we will look at this and write to him, but the noble Lord, Lord Lester, passed me a note saying that of course we got it right. One of my great feelings of loss about this House is that Lord Ackner is not here, ready to tear whichever Minister happened to be at the Dispatch Box to small pieces with his analysis of the legislation. My view is that the noble Lord, Lord Lester, is probably right and that Lord Ackner got it right. We hope that we have got it right in this legislation.
The spirit of the debate, from the response of the noble Lord, Lord Browne, to the closing speech of the noble Baroness, Lady Hayter, reflects that we have been given a serious task to do and that this House will now set about that task. Once every so often—this time after 16 years—the House gets a chance to look at this very important area of law and we intend to do our job responsibly, seriously and with due pace.
I was not sure whether this had been agreed by the usual channels, but I think that the Bill has been moved to Grand Committee, which will be very useful for doing the work that we have set ourselves.
Justice and Security Bill [HL]
Lord McNally Excerpts(13 years, 9 months ago)
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Lord Foulkes of Cumnock
This is in order. Surely the Deputy Leader of the House can answer.
The Minister of State, Ministry of Justice (Lord McNally)
You are not in the other place now and you are abusing the procedure of this House. That matter is not before the House at the moment.
Lord Foulkes of Cumnock
With respect, we are considering the business of the House, and when my noble friend Lord Barnett raised the matter previously, he was abused by the Leader of the House for doing so. My noble friend was told by the Leader of the House that consideration of the business of the House—currently relating to consideration of the Justice and Security Bill—was the point at which to raise these matters. Surely the Deputy Leader of the House can give us an answer. Will we get an answer to a PNQ if it is tabled later this week?
Baroness Royall of Blaisdon
My Lords, perhaps I may explain to my noble friend and other noble Lords that to date we do not have business questions in this House. It is very difficult to raise them and we must ask the Procedure Committee to look at the matter. I agree that there should be space to ask business questions. I should also explain that PNQs are a matter for the Lord Speaker of this House, but I advise the Government that tomorrow I will certainly table a PNQ on the west coast main line for consideration by the Lord Speaker, because it is imperative that we receive answers to these questions.
Lord McNally
That was an extremely helpful intervention from the Leader of the Opposition. Let us move on.
Lord Barnett
My noble friend Lord Foulkes referred to me and the Leader of the House. I should explain to the House that I have since had a personal apology from the Leader of the House, although I cannot help thinking that it should have been in the House.
Lord McNally
I take note of that. If we go down the route of business questions, perhaps without the abuse that goes on in the other place, we could have discussions in the usual channels.
Criminal Injuries Compensation Scheme 2012
Lord McNally Excerpts(14 years ago)
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Lord McNally
That the draft scheme laid before the House on 2 July be approved.
Relevant documents: 6th Report from the Joint Committee on Statutory Instruments, 8th Report from the Secondary Legislation Scrutiny Committee.
The Minister of State, Ministry of Justice (Lord McNally)
I shall speak also to the draft Victims of Overseas Terrorism Compensation Scheme 2012.
Our vision for the criminal justice system is that it is able to respond in a flexible way to the needs of victims and the communities it serves. This must include proper protection and support for victims to help them recover and to overcome the effects of crime. In some instances, financial assistance will play a part in this recovery process. Successive Administrations have grappled with these schemes. Our system of criminal injuries compensation goes as far back as 1964 when awards were made on the basis of common law damages. When the then Home Secretary, Michael Howard, broke the link with common law damages some 30 years later by introducing the first statutory scheme, based on a tariff of injuries, it cost the Government £179 million a year, or more than £250 million at today’s prices. The previous Administration sought to reform the tariff scheme in 2005 by refocusing payments on the most seriously injured and removing less serious injuries. In the end these proposals were never implemented.
We are still resolving claims from before 1996 that were made under the pre-tariff system. When this Government came into office there were estimated liabilities of nearly £400 million. This Administration are now tackling this and are allocating funding to cases so that awards are paid as these remaining cases come to an end. Last year about £237 million was paid in such cases. A total of £449 million was paid in compensation last year—the largest ever in a single year—after the Criminal Injuries Compensation Authority was provided with additional funding. This includes payments to cases under the current scheme and also to pre-tariff cases.
However, despite this cash injection, total liabilities currently stand at around £532 million. This includes an estimate of the cases that are likely to fall due in the future but have not yet been lodged with the Criminal Injuries Compensation Authority. It also includes the remaining rump of pre-tariff cases. Nevertheless, with new liabilities arising at around £200 million each year under the 2008 scheme, this simply is not sustainable in the current economic climate. The revised domestic scheme will focus, as the Government were considering focusing in 2005, scarce resources on those victims most seriously affected by the injuries they suffer as a result of deliberate, violent crime committed in England, Wales and Scotland. This is part of a long-term aim to put this scheme on a more sustainable footing.
We envisage that the cumulative effect of these changes should help deliver savings of an estimated £50 million a year to the taxpayer. This does not mean we are reducing the overall spend on victims. The Government are committed to substantially increasing the amount offenders contribute to victims’ services. In England and Wales, we intend to raise up to an additional £50 million a year through the victim surcharge and other financial impositions, investing this money in support services for victims.
The noble Baroness, Lady Royall of Blaisdon, will speak to her amendment shortly but I would like to make it clear that our proposals will protect injury payments to victims with the most serious injuries. In addition we are protecting payments to the bereaved, to all rape victims, to victims of any other sexual assault and to those, including victims of domestic violence and children, who are subjected to a repeated pattern of abuse. We are removing payments from those with less serious injuries.
The additional money that we will raise from offenders will be used to pay for new services for victims. We believe that it is much better to use this money quickly to support victims who are trying to cope with the impact of crime than to give people small amounts of money for minor injuries some time after the event.
Noble Lords will have seen a number of briefings about the reforms to the scheme including on behalf of postal workers and shop workers. I want to acknowledge the valuable job that these people do, often in very difficult circumstances. However, as with any other applicant to the scheme, if their injuries are sufficiently serious they will still be eligible and I hope that the additional services funded by offenders will better support those with minor injuries.
We have listened to those who responded to our consultation and have made changes to some of our proposals as a result, as set out in the Government’s response. Notably we have changed our original proposals relating to payment for those with criminal convictions and to establishing a connection to the UK.
Let me make the House aware of the changes that we are making—first, on eligibility. Eligibility is tightly defined in the draft scheme so that only those direct and blameless victims of crime who fully co-operate with the criminal justice process may obtain compensation under the scheme. We will continue to pay secondary victims under the scheme in certain circumstances. Applicants will need to be able to demonstrate a connection to the UK through one of a number of factors, though as a result of consultation responses, we have removed the original requirement that an applicant be resident in the UK for six months prior to the incident that led to their injury. Bereaved relatives of victims who die as a result of their injuries will also continue to be able to apply as long as they meet the revised eligibility criteria. Those with unspent convictions will not be able to claim if they have been sentenced to a community order or have been imprisoned. Those with other unspent convictions will be able to receive an award only in exceptional circumstances. This is a change from the options put forward at consultation, following comments made by respondents. These changes to eligibility are in line with the core purpose of the scheme of compensating blameless victims of violent crime.
Secondly, on the tariff, we want to strike the right balance between protecting the most seriously injured and making reductions to the overall cost of the scheme. So tariff payments will be available only to those most seriously affected by their injuries and for those who have been the victim of the most distressing crimes. What this means in practice is that bands 1 to 5 of the current scheme have been removed; bands 6 to 12 have been reduced; and bands 13 and upwards—to band 25—are protected in their entirety at their current levels. Tariff awards for fatal cases, sexual offences, patterns of physical abuse and loss of a foetus are also being protected at their current levels—no matter where they currently appear in the tariff. As a result of a consultation response from the First-tier Tribunal we have also broken down some of the payments made for degrees of paralysis with the aim of ensuring that we avoid both over and undercompensation in these very difficult cases.
Thirdly, let me turn to loss of earnings. These payments do not currently reflect actual loss for all applicants, being capped at a salary of one and a half times the median gross weekly earnings but already making up a significant proportion of the costs of the scheme. The new calculation will be a flat rate based on statutory sick pay which should be simpler to administer. Payments will no longer be subject to deductions for benefits. These payments will be available only to those who can no longer work or who have very limited capacity to do so, in line with the focus on those most seriously affected by their injuries.
Fourthly, there are no major changes to these special expenses payments. They will continue to be available for the same categories as under the current scheme, with the exception of private healthcare. We chose to retain these payments because they are generally awarded to those who suffer the most serious injury. However, we have made it clear that the scheme should be one of last resort in relation to special expenses, and that payments will be made only if the claim is reasonable. Fifthly, with regard to payments in fatal cases, we are protecting the awards for bereavement and parental services payments. In the interests of consistency and fairness, dependency payments in fatal cases will be made in line with the revised plans for loss of earnings. The scheme can never compensate someone fully for the death of a loved one but we believe that some financial compensation is appropriate in these cases. Reasonable funeral payments will be made up to a maximum of £5,000.
Finally, I turn to the process. One of the aims of this reform is to make the scheme easier for applicants to understand. For the first time the evidence required to make a claim is being put on the face of the scheme. We are tightening the circumstances in which the authority will meet the costs of obtaining medical evidence and reducing the timescales for submission of review and appeal applications.
Lord Christopher
My Lords, I am anxious not to repeat what has been said, but there is little doubt that we have, day by day in recent months—indeed for a year or two—heard nothing but sad news for those who are represented by the people that this order will affect. There is a callousness about so much legislation at the moment that is very hard to believe. Perhaps there has been a little hope raised by the noble and learned Lord, Lord Howe, that the heart of the party is not wholly stone. Having heartily enjoyed a number of years negotiating with him across a table, usually, I think, to mutual benefit, my feelings are, come back, Geoffrey, all is forgiven.
What is the benefit that has been received by the country for all these cuts? The news at one o’clock was that we are now in the third quarter of recession. There is no sign at all that what is being done by the Chancellor is having any material helpful effect. It is extremely sad that we are now dealing with what, in money terms, is a minority issue to the Treasury, but is a very significant issue to those affected by these cuts. We have a useful audience in the Gallery, but I think it is important for the record that we have some indication of what we are talking about, because there is no precision, as things stand.
There have been two broad groups affected by attacks. I was surprised that the number is as high as it is in the USDAW field. We certainly had them in the days when I was responsible for the staff in the Revenue. They could be serious and every attempt was made by the department to ensure that these were kept to a minimum. What sort of injuries are we talking about for those who are receiving the higher award? We are talking about significant facial scarring; permanent brain injury resulting in impaired balance and headaches; penetrating injury to both eyes; fractured joints including elbows, both knees and vertebra, resulting in continual significant disability; and a punctured or collapsed lung. This is the nature of the injuries for which there is now to be significantly reduced compensation.
I conclude with one of three examples provided by USDAW of the kinds of practical changes which will take place. I shall read about Simon, aged 33, the manager of a convenience store in Stoke on Trent who risked his own safety when he disarmed an axe-wielding man during an attempted robbery. He says:
“I saw a man at the till waving an axe and shouting at the checkout assistant. As I went to grab the handle of the axe there was a bit of a tussle and it fell to the floor. I managed to kick it out of the way. Two customers came to my aid and we held him down until the police arrived. He became more aggressive and started lashing out, then he bit my leg”.
Simon received £1,250 compensation for his injuries and the mental trauma he suffered, which, I suspect, was considerable. He received a public bravery award from the local police. Under the new proposals, he would receive nothing. I regard this as utterly outrageous, as I am sure does the Gallery, and it is high time that there was a rethink and that these sorts of changes were removed from your Lordships’ agenda.
Lord McNally
My Lords, first, I say to the noble Lord, Lord Christopher, that the reality, which apparently still takes time to sink in across the House, is that we are all a lot poorer than we thought we were four years ago. Whichever Government had come in would have carried out drastic cuts in public expenditure. That has been acknowledged by the Opposition in their moments of candour. Therefore, every time that the Government come before the House with some saving in public expenditure, the Opposition say, “These are not the kind of cuts that we would have made”. The Liberal Democrats have neither the resources nor the inclination to do this, but I know of parties who keep a running total of cuts in expenditure which the Opposition would not have undertaken, and it adds up to something that questions their economic competence.
As for my noble and learned friend, Lord Howe, I hear his story. I have been in a few small parties myself, but the Aberavon Conservatives, which he led, must have been almost of Liberal Party size in its gatherings. The scheme that he pioneered in the 1960s cost £6 million. We are debating a scheme that costs more than £200 million. Also included in his long and distinguished career was a period as Chancellor when, like me, he must have stood at Dispatch Boxes listening to the impact of cuts that were necessary at the time. That is one of the responsibilities of government.
Lord Stoddart of Swindon
I have a simple question. What would £6 million be in today's money?
Lord McNally
That is in current prices. The actual scheme cost less than half a million pounds when first introduced, so I was not trying to belittle it. We have all known schemes which have been introduced with the best of intentions but have had long-term consequences. As the noble Baroness acknowledged, the previous Government took a hard look at this in 2005 and then backed off from making similar decisions.
Lord McNally
I suggest that some of the roots of the economic problems that we later faced was that they backed off too many difficult decisions—something that we are not doing.
The noble Baroness asked me how the ex gratia schemes compare. People who are victims of terrorist attacks which took place between 1 January 2002 and 16 October 2012 will, in general, have until 16 October 2012 to claim. The scheme is based on equivalence to those in tariffs under the existing domestic scheme. Eligibility is restricted to those with an ongoing disability as a direct result of an injury sustained in a designated act. Only injury payments are available, in accordance with the tariff of injuries; bereaved relatives are not eligible for an award. Tariff payments are in line with those in Criminal Injuries Compensation Scheme 2008. The maximum payment for a single injury on the tariff of injuries which forms part of the scheme is £250,000.
The noble Lord, Lord Davies, raised the issue of the impact on shop workers, as did other noble Lords. Shop workers, and all trade unionists who have been named, are still covered by the scheme, but not for small payments for minor injuries. I heard the example given by the noble Lord, Lord Christopher. Perhaps those in the Gallery also ask whether £1,250 for a very noble, brave act is not enough. Should we build into a scheme which is supposed to address real victims of crime pay-outs of significant sums—not life-changing but, for low-paid workers, significant sums—for injuries that also are not life-changing? We are removing the lower end.
Lord Christopher
The examples, which the noble Lord says that he has read, are life-changing.
Lord McNally
My Lords, those are examined by CICA under the scheme and some of them, frankly, I cannot believe would be outside the scheme, but that is something that the authorities take account of.
The reforms that we have discussed today not only put the criminal injuries compensation scheme on a more sustainable financial footing but will achieve our aim of focusing compensation on those most seriously injured as a direct result of deliberate violent crime.
I touch on a couple of other points made. The noble Baroness, Lady Royall, asked what happens with multiple injuries. The situation will remain as now: 100% for the most serious injury; 30% for a second-rated injury; 15% for the third most serious injury. The noble Lord, Lord Davies, and others mentioned shop workers. They are treated as other victims are, but where they suffer long-term mental injury lasting for more than six weeks, they will still be able to claim. The noble Lord, Lord Davies, heard the cost of running CICA. The time to process claims is seven to eight months for a first decision and about five months to review a decision.
I heard what the noble Baroness, Lady Royall, said: that somehow the backlog is not real. What is real is that we paid £480 million—the largest sum ever—in compensation this year in part to deal with claims that go back beyond 1996.
Lord Brookman
I say to the noble Lord, Lord McNally, that it is quite evident to me and, I am sure, to the whole Chamber and the Gallery, that you have not had one voice from the coalition government Benches in support of what you are saying. It is obvious that in this Chamber there is strong resentment about the changes proposed, even from your Benches.
Lord McNally
You may make that assumption. We will see what happens when we come to a vote. I am fully aware, as has been readily acknowledged, that the trade unions, which have been readily represented on the opposition Benches—and rightly so—today have argued against the changes. I understand that. I understand less the willingness of those on the government Benches—sorry, the opposition Front Bench—to leap on this passing bandwagon.
It is no use pretending. We are dealing with relatively small payments from the scheme for temporary injuries. In return for that change—I notice that the noble Baroness did not mention this—we are substantially reforming the amount of money that will go into victim support. I think that I will have support in this House for this concept that rather than paying small amounts here and there—small penny-packet amounts to various minor injury claims; some maybe justified, some very much less so—it is better to devote that money to real victim support and to dealing with the trauma of crime at the sharp end, when it happens, in a way that is effective. That is the basis of these reforms.
I understand where the trade union members are coming from, but I do not know where the noble Lord, Lord Stoddart, is coming from when he throws in overseas aid. One of the things I am very proud of is the way that this Government have sustained overseas aid.
Lord Stoddart of Swindon
I gave that example because I had just received an Answer that we are going to spend a further £178 million in Afghanistan—that is, after billions and billions of pounds for our military presence there. I raised this amount because we have people who need to be looked after in this country. We are talking about some of them now. If we can afford to spend £178 million to help people in Afghanistan, which is fine, surely we can find an extra few million to help unfortunate people in our own country.
Lord McNally
We are finding it for unfortunate people in our country, but Afghanistan remains one of the poorest countries in the world. I am proud of our aid programme there. If the noble Lord rereads what he said he will probably find echoes of that great conservative sentiment of “hang ’em and flog ’em” and “don’t give it to foreigners”.
Lord McNally
Noble Lords know exactly what I am talking about. In the past, in some of the battles over civil liberties, human rights and the way that we treat people in overseas aid I would have relied on the Labour Party. The Labour Party has gone a long way from the one that I remember in many of these areas.
Lord McNally
We have had the whole gamut today of the Labour Party never supporting a cut and never facing up to a responsibility. I listened to what the party opposite has said, and we have taken the tough decisions. Not only have we done that; in this case we have also made the sensible decision to move victim support to where it is needed, at the sharp end. We are finding the resources by these reforms and I commend them to the House.
Baroness Royall of Blaisdon
My Lords, I answer this debate as the Leader of Her Majesty’s Opposition, a very responsible Opposition. I am also a proud trade unionist. I am not leaping on a bandwagon that was put together with a bunch of trade unionists. I am doing what I believe to be right and I am proud that the trade unions have sought to support the workers whom they represent. However, I have to say that many of the representations that I received prior to today’s debate were from lawyers who are also concerned about victims.
Today we are talking about victims. Yes, we are living through a financial crisis; we are living through a double-dip recession which one might say was made in Downing Street. However, as noble Lords will know, my party is rightly being extremely careful in relation to financial commitments, precisely because we are entirely realistic about the financial situation that this country faces.
The Minister says that we are against all cuts. That is not true. We simply believe that some of them are too far and too fast. When making financial decisions one is also always faced by a choice. We believe that the choice that the Government have made in relation to victims is the wrong one. Victims do not choose to be victims. They have suffered through no fault of their own. In proposing the Draft Criminal Injuries Compensation Scheme 2012, the Government seem to be putting deficit reduction before victims. I wish to test the opinion of the House.
Victims of Overseas Terrorism Compensation Scheme 2012
Lord McNally Excerpts(14 years ago)
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Lord McNally
That the draft scheme laid before the House on 10 July be approved.
Relevant document: 6th Report from the Joint Committee on Statutory Instruments.
Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2012
Lord McNally Excerpts(14 years ago)
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Lord McNally
That the draft orders laid before the House on 7, 10 and 14 May be approved.
Relevant documents: 2nd and 3rd Reports from the Joint Committee on Statutory Instruments, 2nd, 3rd and 4th Reports from the Secondary Legislation Scrutiny Committee, considered in Grand Committee on 18 July.
Data Protection (Processing of Sensitive Personal Data) Order 2012
Lord McNally Excerpts(14 years ago)
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Lord McNally
That the Grand Committee do report to the House that it has considered the Data Protection (Processing of Sensitive Personal Data) Order 2012.
Relevant documents: 2nd Report from the Joint Committee on Statutory Instruments, 3rd and 4th Reports from the Secondary Legislation Scrutiny Committees
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the order before us today specifies circumstances in which sensitive personal data may be processed in accordance with the Data Protection Act 1998. This is a technical order but the work it relates to is of the utmost importance. The circumstances set out in the order relate to arrangements put in place for disclosure of information about the Hillsborough disaster, and in particular the work of the Hillsborough Independent Panel. This order removes any doubt that sensitive personal data relating to the Hillsborough disaster can be disclosed to the panel and publicly, where disclosure is necessary to give effect to the disclosure protocol which guides the panel’s work.
Before setting out further details about this order it may be helpful for noble Lords if I set out some of the background to the work of the Hillsborough panel. As noble Lords will be aware, 96 people were killed and 766 other people injured as a result of this tragedy, which remains the deadliest stadium disaster in British history. Since 1989, there have been a number of investigations and inquiries into the tragedy, but a sense has remained on Merseyside and beyond that the full story of Hillsborough has not been told. Because of the enormous strength of public feeling, the previous Government established the Hillsborough Independent Panel, with a remit to ensure maximum possible disclosure of records relating to the disaster. I want to reiterate that the current Government fully support the panel and its work. Indeed, this order has very much been made in that spirit.
One of the roles of the panel, chaired by the right reverend Prelate the Bishop of Liverpool, is to oversee and co-ordinate the disclosure of records from public agencies including the police, and from government, including Cabinet documents. Some of this material consists of “sensitive personal data”, as defined by the Data Protection Act 1998. It is the sharing during the panel process and possible subsequent public disclosure of this material which concerns us today.
In the context of the Hillsborough Independent Panel’s disclosure of records, much sensitive personal data, such as medical records of survivors, will quite properly not be placed in the public domain. But the publication of other records would clearly add significantly to the public’s understanding of the events surrounding Hillsborough. Although I am, quite rightly, not aware of the details of these records, I understand that they include, for example, papers relating to various legal processes which arose as a consequence of the disaster. For these records, organisations within the scope of the panel’s work agreed that publication is in the public interest but want to be absolutely clear that such disclosure is capable of meeting the requirements of the Data Protection Act 1998.
The Data Protection Act 1998 gives individuals several rights in relation to their personal and sensitive personal data. It also places obligations on all organisations to ensure that, where personal data is processed, the impact of processing on the individual is appropriately considered. The Act also allows for the making of an order to create conditions that will enable disclosure where those existing conditions in the Act are deemed insufficient.
The order before us today specifies the circumstances where the processing of sensitive personal data may take place where that processing is disclosure of information relating to the Hillsborough disaster and that disclosure is necessary to give effect to the disclosure protocol which governs the work of the Hillsborough panel. The order and the protocol work in tandem and will, in effect, act as a two-stage process to determine disclosure. In considering whether processing sensitive personal data is necessary to give effect to the panel’s disclosure protocol, an organisation will have to look at the facts of each case and balance the benefits of disclosure against any impact that disclosure might have on an individual. The order helpfully ensures that this balance can be assessed with particular reference to the overall aims of the Hillsborough panel.
The order will not guarantee that any and all disclosures of sensitive personal data contained in documents relating to the Hillsborough disaster will automatically be lawful. Because of the way the Data Protection Act 1998 works, it will be for the organisations concerned to decide, once the order is made, whether the new conditions it sets out are met, so an organisation or the panel will need to look at whether the proposed disclosure is truly necessary to give effect to the panel’s arrangements. If it is met, the relevant organisation would also need to satisfy itself that the disclosure will comply with the rest of the Act and its principles, and any other relevant law.
It is clearly not the intention of the Government in making this order, or the Hillsborough Independent Panel in requesting it, that sensitive material is disclosed inappropriately or in a way that might cause distress to the families of the bereaved and those injured in this disaster. Therefore, I would like to assure noble Lords, in response to a concern raised in another place, that where sensitive personal information which is not otherwise publicly disclosed as part of the panel process is placed into the National Archives or local archives, all the safeguards which protect personal data will apply to this material. This includes the requirements of the Data Protection Act itself. That means, in particular, that it will not be disclosed to the general public, or at least until it can be guaranteed that its release would not cause distress or harm.
The Ministry of Justice and the Home Office have worked with the Information Commissioner’s Office and officials from the Hillsborough panel to seek a resolution to the data protection issues which have been raised. The order under discussion today is the result of that work. All parties are content that the order, if agreed by Parliament, provides a suitable legal channel for disclosure and is a proportionate response to the issue.
I am sure that I speak for all sides of the Committee when I say that the promise made to those affected by the Hillsborough disaster must be honoured, and that this Government have made a clear statement that we are committed to facilitating the fullest possible disclosure. I commend this draft order to the Committee and I beg to move.
Lord McNally
My Lords, I am very grateful to the noble Lord, Lord Beecham, for that intervention. The Hillsborough disaster is one of those events where you know where you were on the day. I was in Rochdale and I can remember hearing the tragedy unfurl on the radio. As an avid soccer fan I thought then, “Never again”. To be fair, much has changed in the way that football treats its fans in terms of ground safety so perhaps we can say never again. Also, successive Governments have realised that there are still open wounds in Liverpool and there are questions that need to be answered. Again, successive Governments have responded to that fact by the determination to carry through this very thorough inquiry under the very distinguished and trusted leadership of the Bishop of Liverpool.
On the question of the title, it is probably true to say that it would have been better to have had a title that stated the intention exactly. However, there were contrasting opinions on whether the panel and the bodies giving evidence to the panel were protected under existing legislation. In a way, this order is a little bit of belt and braces in terms of giving assurance so that the panel could do its work. Could it have been better described in the Data Protection (Processing of Sensitive Personal Data) Order 2012? In hindsight, perhaps it could and it could have made a specific reference to the specific case that it was there to address. However, we considered the views of the committee carefully and concluded that to deal effectively with its concerns might have brought potentially damaging delay into bringing this order forward. We have taken such action as possible with local media and others to make it clear that people will be able to locate this order. I would ask noble Lords to bear in mind that to have accepted the committee’s recommendations would have meant that the order would have had to have been withdrawn, re-laid and to have gone through the scrutiny process again. That might have pushed the House’s approval for the draft order—if it is forthcoming—back past the Summer Recess and would have had a knock-on effect on the expected delivery time of the panel’s findings.
The fact that there is no specific reference to Hillsborough in the title is not, I think, a catastrophic error. We have taken measures to try and guide people who wonder what it is and what it is for. I hope this explanation clarifies that.
Lord Beecham
I understand that and am grateful to the noble Lord. I am just wondering whether the pathway will be signalled on the website and so on, so that people looking at the Hillsborough website will be directed to it rather than having to comb down through long lists of statutory instruments. I have not looked at the website myself and so do not know how it is set up at the moment, but I assume there will be a website for the independent panel. If it is clear from there what this document is about and where it can be found, that would be sufficient. I assume that is what is happening but I would be grateful if the Minister could confirm that.
Lord McNally
I think I can confirm that that is what is happening and that anybody who goes to the Hillsborough website will be directed to it. The draft order has been discussed with the families at all stages and those discussions will continue. I note the point that the noble Lord made about Ministers but the Government have taken the decision that all material, including Cabinet minutes, will be published. I can understand that, as it is not just an inquiry into what happened in or around the ground—people will want to know about a range of issues. Over these 25 years, I have taken an interest in the follow-up to Hillsborough and, as such, one of the statements that I found most reassuring was the one by my right honourable friend the Home Secretary, when she made clear that the Government’s attitude would be full disclosure, within the limits that I referred to about due care and not putting the families through the trauma again by careless or unneeded disclosure.
One has to make a judgment about the protection of junior officers and lower-rank officials. It is a judgment call and if the panel brought forward events or findings that meant that a particular individual warranted being named for some action or lack of action, that would be a matter the panel would have to take into account. I also think that, if you are publishing, it is fair in terms of responsibility to have a certain redaction policy. We have made the judgment that it is, in fairness, right not to publish all the names concerned. I think those were the points that the noble Lord raised and I ask the Committee to approve the Motion.
Public Bodies (Abolition of Crown Court Rule Committee and Magistrates’ Courts Rule Committee) Order 2012
Lord McNally Excerpts(14 years ago)
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Lord McNally
That the Grand Committee do report to the House that it has considered the Public Bodies (Abolition of Crown Court Rule Committee and Magistrates’ Courts Rule Committee) Order 2012.
Relevant documents: 3rd Report from the Secondary Legislation Scrutiny Committee; 3rd Report from the Joint Committee on Statutory Instruments
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the purpose of this order is to abolish two of the Ministry of Justice’s public bodies: the Crown Court Rule Committee, which I shall hereafter refer to as the CCRC, and the Magistrates’ Courts Rule Committee, which I shall hereafter refer to as the MCRC. This omnibus order provides for the abolition of these bodies, with no transfer of functions in the case of the MCRC, and in the case of the CCRC, with a transfer to the Lord Chief Justice of the function of making rules for the Crown Court.
The Public Bodies Act 2011, which received Royal Assent in December, was the legislative vehicle resulting from a 2010 government-wide review of all public bodies. Its overriding aims were to increase transparency and accountability, cut out duplication of activity and discontinue unnecessary activities. In conducting individual reviews of their own public bodies, departments were asked first to address the overarching question of whether a body needed to exist and its functions to be carried out at all and, following from this, whether it met specific tests that would justify its retention. In the case of the two court rule committees, it was considered that their functions needed to be carried out but that they could be effectively carried out by, or in consultation with, other rule committees. The Ministry of Justice felt that retention of the committees was therefore unjustified, and they were included in what was then the Public Bodies Bill, now the Public Bodies Act 2011.
I will give some background on each committee, beginning with the CCRC. The Crown Court Rule Committee was created by the Supreme Court Act 1981 to examine any proposed amendments to Crown Court rules and, together with the Lord Chancellor, to make the necessary rules for the court. However, the committee’s role in making criminal rules has been superseded since that time by the creation of the Criminal Procedure Rule Committee in 2003, leaving it with a role in relation to only a few civil rules. Due to this reduced role, the committee is now rarely used and the Ministry of Justice therefore proposes that it be discontinued.
The Government recognise that the committee’s limited residual functions, though few, should still be carried out and require both technical expertise and impartiality. This order therefore transfers these functions to the Lord Chief Justice, who will be free to consult the other court rule-making committees, and any other person or body as he sees fit, before making rules in relation to the Crown Court. This transfer of function removes the need to maintain a separate committee for such a small workload, which reflects the wider aims of the Public Bodies Act to cut out unnecessary bureaucracy. It also means that a greater range of expertise will be available to the Lord Chief Justice, which is a more effective way to make court rules. This approach has been agreed in principle by the Lord Chief Justice.
The abolition of the CCRC and the transfer of its remaining functions to the Lord Chief Justice formed part of a Ministry of Justice consultation that took place between July and October 2011. Nine responses were received regarding the proposal, of which only a few opposed abolition, with the chief concern being that abolition would lead to a loss of people with appropriate expertise whom the Lord Chief Justice could consult before making rules.
However, as I have spelled out, the order will allow the Lord Chief Justice, after abolition, to consult any rule committee and any other person or body as he sees fit when making rules. As these committees have considerable rule-making experience, I am satisfied that there will be more than ample expertise on which the Lord Chief Justice will be able to call—indeed, there will be a wider range than is currently the case. For this reason, the Government see no reason to alter their proposal to abolish this committee.
The Magistrates’ Court Rule Committee is the second body addressed within this omnibus order. The MCRC was established under the Magistrates’ Courts Act 1980 as a body to be consulted by the Lord Chief Justice before he makes rules in relation to these courts. The MCRC is also consulted, along with other rule committees, before certain rules are made under the Courts Act 2003 relating to justices of the peace and justices’ clerks. The committee does not itself make rules but exists as a consultative body alone.
However, since the MCRC was established, the creation of the Criminal Procedure Rule Committee and the Family Procedure Rule Committee has greatly reduced its remit. The only remaining function of the committee is to be consulted on rules relating to civil non-family proceedings in the magistrates’ courts. There are relatively few such proceedings, and the need for amendments to the rules is very infrequent. The committee was called upon twice in 2009, not at all in 2010 and twice in 2011. This does not justify the retention of a dedicated committee.
Lord Beecham
My Lords, I have no problem with the substance of this order. However, the Secondary Legislation Scrutiny Committee does have a problem with the form; indeed, it had a problem with the form of the order we have just discussed, and they are not unrelated. The report on the previous order stated that:
“The content of the ED was adequate to explain the draft order but the Committee found its presentation confusing. The ED, like the draft Order, covers the abolition of two evidently unrelated public bodies, and rather than dealing with them separately and sequentially, it jumps between the two throughout. This presentation did not aid clarity when considering the draft Order. We recommend that in future the Explanatory Document laid with any omnibus Order that contains provisions about unrelated public bodies deals with each body separately and sequentially”.
The committee made much the same point in relation to this order, saying:
“The content of the Explanatory Document was adequate to explain the draft Order but the Committee found its presentation confusing and repetitive”.
Of course, I am being repetitive at the moment but that is because it is necessary to be so.
The committee does not have any quibble with the substance, but will the Minister ask those involved in the preparation of these documents to bear these strictures in mind so that clarity is served and what are potentially somewhat different bodies are dealt with separately rather than run together in a rather confusing way? However, we have no objections to the order itself.
Lord McNally
I am very grateful to the noble Lord, Lord Beecham, for drawing that to my attention. I am sure that the officials responsible for the drafting are not outraged by the suggestion. I can assure him that we always take note of such strictures, and if we can make orders clearer and less repetitive, that will be to the benefit of all concerned.
Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2012
Lord McNally Excerpts(14 years ago)
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Lord McNally
That the Grand Committee do report to the House that it has considered the Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2012.
Relevant document: 2nd Report from the Joint Committee on Statutory Instruments
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, as noble Lords will be aware, the Rehabilitation of Offenders Act 1974 exists to support the resettlement of offenders into society where they have demonstrated that they have put their criminal behaviour behind them. After a specified period of time the Act declares most convictions spent and an ex-offender need no longer declare them. When they apply for most jobs, or seek insurance, they need not disclose this information and subsequently not suffer potential discrimination as a result of it.
The Committee will recall that we recently brought forward the first reforms to the Act for more than 40 years following a thorough and evidence-based review of the Act in the light of current sentencing practices. The amendments extend the scope of the ROA so that custodial sentences of up to and including four years can become spent, and in most cases reduce the time before which convictions can become spent. We will commence the reforms as soon as the necessary changes to procedures and processes have been put in place. This is likely to be spring 2013. The Government’s reforms restore the balance between the need for public protection and the freedom for an ex-offender to put their past behind them.
The exceptions order to the Act is a key part of maintaining this balance. The order lists certain activities that are exempt from the Act, such as work that involves significant contact with children or vulnerable adults. This means that where an individual is applying for a job within a specified activity, their full criminal record history is available to the employer. If an individual has a conviction that has been declared spent, the prospective employer can then see it.
We must be careful not to jeopardise the operation of the Rehabilitation of Offenders Act. The activities listed on the exceptions order are only those that present an opportunity for people involved to cause harm to the public where there is evidence that there is a real—rather than potential—risk to children, vulnerable individuals or some other particularly sensitive area of work. It is important to note that for the vast majority of purposes and employments, the Rehabilitation of Offenders Act still applies.
The careful balance between maintaining public protection and allowing offenders to lead law-abiding lives by removing barriers to employment needs to keep pace with the present. The exceptions order must therefore remain up to date with developments elsewhere. The order presented today is an illustration of the Government seeking to maintain this balance in line with recent changes to legislation and does not represent a significant extension to the scope of the order.
The first amendment adds the role of police and crime commissioner to the order, ahead of the first elections for this office in November. Police and crime commissioners will set the budget and priorities for the police force within their local area and will hold the local chief constable to account for performance and delivery. During the passage of the Police Reform and Social Responsibility Bill, now an Act, there was cross-party support in both Houses for the role of police and crime commissioner to be held to a higher standard in terms of disqualification on the grounds of previous convictions. Members of the police force are themselves held to a higher standard and it is crucial for a police and crime commissioner, who has oversight of the force in their local area, to be able to command public trust.
An individual is ineligible to hold the post of police and crime commissioner if they have any conviction for an imprisonable offence, whenever incurred and regardless of whether a sentence of imprisonment was actually imposed. The amendment to the exceptions order ensures that all candidates for the role of police and crime commissioner have to disclose all convictions when signing a declaration of eligibility to stand for election. Criminal records checks can then be made to verify this information. If a candidate is found to have given false information, they will be removed from post. Although this amendment extends the scope of the order to include police and crime commissioners, the numbers affected by the change are very small. The Electoral Commission will publish guidance to candidates and returning officers to include specific advice on disqualification and eligibility.
Lord Thomas of Gresford
My Lords, I only wish to raise one point, on guidance notes for police commissioner candidates. I want an assurance from the Minister that those guidance notes will be translated properly into Welsh. He may, or may not, know that there was considerable embarrassment following the elections to the Welsh Assembly last May when there was no proper translation into Welsh. As a result of that, one candidate did not divulge that he held a post that, between the previous election and that election, had disqualified a candidate from standing in those elections. He, being Welsh speaking, had only read the Welsh-language version and, accordingly, there was no problem. But another candidate, who did not speak Welsh, could only have read the English guidance notes, and he was disqualified by the Welsh Assembly although he was successful in the election.
Lord McNally
My Lords, I am assured that the Electoral Commission is responsible for publishing guidance, but I say to my noble friend that I will check with the commission on whether it plans such a Welsh-language edition. I cannot believe that it will not, given the normal practice in such elections, but I will make inquiries and write to my noble friend with, I hope, suitable assurances.