Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness O'Neill of Bengarve Excerpts

Tuesday 27th March 2012 Lords Chamber

[Baroness O'Neill of Bengarve]

My Lords, I know that it is Third Reading and at this point I shall speak to process and not to substance. We already have in the Bill two exemptions from certain provisions relating to success fees and cost recovery via insurance—Clauses 44 and 45. The existing exemptions for those two clauses relate to respiratory disease and industrial disease, particularly when there has been a breach of a duty of care.

Amendments 25 and 28, to which the noble Lord, Lord Prescott, has just spoken, and to which I am speaking, seek to establish parallel exemptions for proceedings that include a claim for damages or other relief that relate either to personal information or breach of privacy or defamation. This is simply not the moment to try to alter the costs regime in actions pertaining either to privacy or defamation. The tectonic plates are shifting in this area. We have around us many cases that relate to criminal breaches of existing legal protections of privacy as, after all, not all have been settled. We also have a report by the Joint Committee on Privacy and Injunctions from only a fortnight ago to which nobody has yet been able to give much attention, but it deserves some attention. We have notably Lord Justice Leveson’s ongoing inquiry and we have a number of parallel inquiries going on into other aspects of the phone-hacking scandals that came to light last summer.

In some quarters, it is an expectation that defamation legislation will have a place in the Queen’s Speech. Is that a rumour? I do not know, but in some cases I think that it is a firm assumption. I know that nothing can be said about that, but in short, this is simply not the time to alter the costs and fees regime relating to cases in this area. If defamation legislation is coming forward in the Queen’s Speech, then will be the time to think about that. If not, there will be time to think about these other things that are ongoing.

I believe that there would be one other way that might seem to offer the Government a route for dealing with this difficulty of timing, which I accept is not something that could have been anticipated, but it is a severe difficulty. That would be to take advantage of Clause 152, which permits different parts of the Bill for different purposes—that is an unusual way of putting it—to be commenced at different points. It would be open to the Government to delay commencement on those issues. I accept that that is a way of avoiding making commitments now that might have to be reversed if there were a Defamation Bill. However, that is simply not satisfactory from the point of view of litigants—both claimants and defendants—in privacy and in defamation where the stakes are too high and the uncertainty is too great. At this stage, an exemption parallel to the exemption in Clauses 44 and 45 would be the appropriate way forward.

[Lord Bach]

My Lords, we have heard two powerful speeches on this matter. I say from the Front Bench that we support the amendment in the name of my noble friend. Legal aid has never been available for redress in this field, so no-win no-fee has become an essential bulwark for the impecunious citizen of moderate means against for the main part much more powerful media corporations. Such actions, as the House knows, recently led to the exposure of systematic wrongdoing at News International that saw innocent people’s lives just taken apart. We have heard reference already to the Dowlers and the McCanns, and to Mr Jeffries, too. But even politicians, such as the right honourable Simon Hughes, has been a victim, and have relied on no-win no-fee to get justice.

The Jackson reforms on road traffic accident personal injury cases, which we welcome very much on this side, comprising 75 per cent of all claims, are recognised as having a potentially devastating effect on this area of law. The Liberal Democrats in the other place agreed with us when they tabled amendments exempting privacy and defamation actions. I very much hope that they will be consistent if the matter is taken to a vote tonight. That is what they proposed in the other place, so will they really vote against it tonight? The Joint Committee is looking at the draft Defamation Bill. Everyone owes a huge debt to the noble Lord, Lord Lester of Herne Hill, who I am delighted to see in his place. He is unusually silent on this matter tonight but perhaps I can understand why.

--- Later in debate ---

[Lord Thomas of Gresford]

As a member of the committee that has just reported, I should remind the noble Lord that it advised against a privacy law.

[Baroness O'Neill of Bengarve]

Before the Minister finishes winding, will he explain to the House why he does not think that these exemptions—the noble Lord, Lord Lester, may be entirely right—are the right way to go? Does he not think that two successive changes in the regime are the very worst thing for litigants in this area? In so far as we are leaving the Bill as it is, one change will happen now and another will happen down the road if there is legislation on defamation.

[Lord McNally]

We are talking about a Bill that does not come into effect until 2013. Given that defamation legislation is in process, I do not think the fact that there is a slight lacuna is a major problem in terms of the issues that the Bill will deal with. If it takes a little longer, that is a problem, and I will return to that.

That Bill and associated measures seek to reduce the costs of litigation and discourage unnecessary litigation in the area of defamation. We seek to do so, very broadly, by introducing a range of substantive and procedural changes and also by focusing on alternative dispute resolution, which is quicker, at lower cost, and offers more meaningful redress.

Any exceptions for defamation or privacy cases from the changes in Part 2 are unnecessary because our CFA reforms should not prevent strong cases being brought. I share the concern that individuals who are not wealthy or powerful sometimes need to bring defamation or privacy cases. Nothing in our proposals should prevent that where a case is a good one.

The noble Lord, Lord Bach, sometimes makes me gasp when he starts lecturing our Benches on consistency. The noble Lord, Lord Prescott, asked why this was happening now. Perhaps I may quote an expert on these matters:

“CFAs will remain available for defamation cases; thereby, lawyers will still be able to use them in deserving cases”.—[Official Report, 25/3/10; col. 1157.]

Those were the words of the noble Lord, Lord Bach, as Justice Minister, when he rushed attempts to reduce success fees before this House just before the election. We have already heard what happened in the grand coalition that was the Labour Government when the proposal went down the other end. Nevertheless, the noble Lord, Lord Bach, told this House:

“There is a substantial body of opinion that 100 per cent recoverable success fees should not continue in defamation cases”.—[Official Report, 25/3/10; col. 1156.]

He was backed up by a consultation which said,

“immediate steps are needed in respect of defamation proceedings”.