Fraud Act 2006
Lord Clarke of Nottingham Excerpts(12 years, 6 months ago)
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The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)
I have today laid before Parliament the Government’s memorandum to the Justice Committee on post-legislative scrutiny of the Fraud Act 2006. Copies are available in the Vote Office and the Printed Paper Office.
The Fraud Act 2006 reformed the law on fraud and created a general offence of fraud that can be committed in three ways: by false representation, by failing to disclose information and by abuse of a position of trust.
These reforms have been implemented, in line with the stated objectives of the Act, as detailed in the memorandum.
The memorandum also reviews the use of the common law offence of conspiracy to defraud and concludes that this remains a useful tool in prosecutors’ armouries.
Justice
Lord Clarke of Nottingham Excerpts(12 years, 6 months ago)
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Mr Kenneth Clarke
I am sorry for the delay in responding to the right hon. Member. 24 of the 27 cases referred to concern material related to national security.
The correct answer should have been:
Mr Kenneth Clarke
I am sorry for the delay in responding to the right hon. Member. 26 of the 27 cases referred to concern material related to national security.
Personal Data Directive
Lord Clarke of Nottingham Excerpts(12 years, 6 months ago)
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The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)
The Government have decided not to exercise their right to opt out of the draft Directive on the protection of individuals with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and the free movement of such data under Protocol 19 of the Treaty on the Functioning of the European Union (the Schengen protocol).
The Government have taken this decision in accordance with the commitment in the coalition agreement, which states that we will approach legislation in the area of criminal justice on a case-by-case basis, with a view to maximising our country’s security, protecting Britain’s civil liberties and preserving the integrity of our criminal justice system.
The Government believe that our national interests are best served by participating in this Directive so that we are party to the common framework governing data sharing for policing and criminal justice across the EU. By participating, we can best build trust across member states for the necessary sharing of data to protect our citizens and make the strongest case possible for this to be done within a framework of appropriate and proportionate rules.
Justice and Security Bill
Lord Clarke of Nottingham Excerpts(12 years, 6 months ago)
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The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)
My right hon. and noble friend the Advocate-General for Scotland (Lord Wallace of Tankerness) made the following written ministerial statement:
Today (Tuesday 29 May 2012) my right hon. and learned friend, the Lord Chancellor and Secretary of State for Justice is laying before Parliament the Government’s response to the consultation on justice and security which was published on 19 October, as well as a response to the report by the Joint Committee on Human Rights on the same issue. I have also introduced the Justice and Security Bill which aims to deal with three main problems which have arisen with judicial and parliamentary scrutiny of the security and intelligence agencies.
First, a number of civil cases are not being heard in our courts because they hinge on national security sensitive evidence which the courts recognise cannot be disclosed openly. At present the Government’s only option is to try to settle these cases—often for large sums of money—even where the case has no merit.
Secondly, a damaging form of legal tourism has developed which allows someone fighting a case outside the UK to apply to a court in London to force disclosure of intelligence information held by the British, sometimes provided by our allies. This is seriously undermining confidence among our key allies, including the US.
Thirdly, parliamentary oversight of the intelligence community has been criticised as having too limited a remit.
There were 90 responses to our consultation, and the Government are grateful for the wide-ranging views we received. Many respondents recognised the underlying problems that they are trying to address. However, there was considerable concern that plans on closed material procedures (CMPs) were drawn up in a way that was excessively broad in scope and risked undermining this country’s proud tradition of civil liberties.
The Government’s position has always been that protecting the public should not come at the expense of our freedom. So, we have listened carefully to the views of those responding, including the work of the JCHR. We have extensively revised the measures in order to put beyond doubt that they are proportionate, targeted and include strong safeguards. On our central proposal to introduce CMPs we have now ensured that the judge has a more central role, and will be able to grant a CMP only in relation to civil cases involving national security evidence—not crime or international relations. Inquests have been excluded, and we were never intending to make CMPs available in the criminal courts. The Bill ensures that no evidence currently heard in open court will be heard in secret in future, but that claims such as mistreatment or complicity in torture brought against the intelligence and security services which cannot currently be heard, can be heard.
Closed Material Procedures
The Government are strongly committed to open and transparent justice. However, courts have long accepted that highly sensitive intelligence material—for example, the names of security agents or information about the techniques used by the intelligence agencies—cannot be disclosed in open court. Under current rules, the only way of protecting this sort of material is to remove it from the courtroom entirely by applying for public interest immunity (PII). A problem arises in a tiny number of cases which hinge on secret intelligence material, where—if a PII application is successful—all, or most, of the material central to the case is excluded from consideration. The result is that these cases are not heard in court at all, meaning that cases have to be settled with no independent judgment on very serious allegations.
The settlement of the civil damages claims brought by former Guantanamo Bay detainees is an example of the inadequacies of the PII system. The evidence the Government needed to rely on in order to defend themselves was highly secret intelligence material, which could not be released in open court. The only option would have been to claim PII for the material. This process could have taken up to three years to complete, but there would still have been no judgment on the claims made: if a PII claim was successful the very material the Government needed to rely upon to defend their actions would have been excluded. The Government’s only practical option was therefore to settle the claims, for significant sums, without admitting liability.
The Government are therefore bringing forward proposals to allow this material to be heard in court in what is known as a “Closed Material Procedure” (CMP) which provides the safeguards needed to ensure that sensitive material can be taken into account by the court, while ensuring that the damage to national security that would arise if it were openly disclosed can be prevented. CMPs are already available in a number of other areas of the civil law, in these cases the CMP would work as follows:
the Minister must first consider whether to make a claim for public interest immunity or whether to advise another to do so;
the Minister would then apply to a judge who will determine whether the CMP can go ahead on the grounds that there was some material relevant to the case, the disclosure of which would damage national security;
even where a CMP is granted, all evidence currently heard in open court would continue to be heard in open court, including all allegations against the state;
only the particular pieces of national security evidence would be heard in closed court, and in relation to these pieces of material the judge will decide whether a summary of the evidence must be made available to the other party for the proceedings to be fair. And, in all cases, a special advocate will have access to material on behalf of the claimant that would currently be precluded. The overall effect for the claimant will be that they receive at least as much information as they would following a PII exercise;
as recommended by the JCHR, judicial reviews of naturalisation and exclusion cases will be heard by the Special Immigration Appeals Commission (SIAC).
Many respondents to the consultation on these proposals made the point that closed material procedures are a departure from the tried and tested fundamentals of open justice. I entirely agree with them in principle—no Government propose measures in this area lightly. But CMPs are already available in a number of areas of law for the good reason that where the courts have recognised that the best option of hearing evidence in open is not available, they provide a fairer outcome than the alternative which is no justice at all. This is recognised by both the domestic and international courts. Lord Woolf finding for example that,
“it is possible.. .to.. .achieve justice” in a CMP (M v SSHD).
Norwich Pharmacal
The Bill also aims to ensure the protection of our intelligence sharing relationships and our domestically generated intelligence through reform of what is known as the “Norwich Pharmacal” jurisdiction—which has recently been used to allow someone fighting a case outside the UK to apply to a court in London for access to intelligence information held by the British, sometimes provided by our allies.
The aim of a Norwich Pharmacal application is to force a third party to disclose information which the claimant feels may be relevant to a case they are bringing elsewhere. Although developed in the intellectual property sphere, in the last three years there have been no fewer than nine attempts to use this jurisdiction in relation to secret intelligence which either belongs to the UK Government, or which our allies have shared with us. No other country in the world has such a jurisdiction. Indeed, there is not even a parallel jurisdiction in Scotland.
As the purpose of the proceedings is solely to gain disclosure of material, the Government do not have the option to withdraw from or settle these proceedings. If disclosure is ordered, and the Government do not succeed in an application for PII, the Government must release secret intelligence into the public domain.
We expect our allies to protect intelligence material we share with them from disclosure, and they expect the same from us. The inadequacies in our current ability to properly protect classified information provided by foreign Governments has already seriously undermined confidence among our key allies, including the US. Robust legislative measures are essential to restore confidence among our allies, which is vital to our national security.
Therefore the Government intend to make the following changes to the Norwich Pharmacal jurisdiction:
For agency held material—The Government intend to legislate to exempt material held by or originating from one of the agencies from disclosure under a Norwich Pharmacal application.
For national security or international relations material—The Government also intend to legislate to allow a Minister to sign a certificate in Norwich Pharmacal cases to protect non-agency material which would cause damage to national security or international relations if disclosed. That certificate can be reviewed on judicial review principles. If upheld, the information could not be disclosed.
These measures have no impact on claims that the Government, or the security and intelligence agencies, have been directly involved in wrongdoing, nor do they prevent someone enforcing their convention rights.
Oversight
Finally, and very importantly, the Bill will improve parliamentary oversight of the security and intelligence agencies, most notably giving the Intelligence and Security Committee (ISC) the power to oversee the agencies’ operations, not just their administration, expenditure and policies—as is the case now. The ISC will be given a wider remit, and will in future report to Parliament as well as the Prime Minister. Parliament will be given the power to vote to reject the ISC’s membership. The power to withhold information from the ISC moves from the heads of the intelligence and security agencies to the Secretary of State responsible for that agency.
The Bill deals with issues of profound importance which go to the heart of our democratic values. The proposals it brings forward aim to improve executive accountability, equip our civil court system to handle sensitive intelligence material, and improve parliamentary scrutiny of the security and intelligence community.
Defamation Bill
Lord Clarke of Nottingham Excerpts(12 years, 6 months ago)
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The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)
I beg to move, That the Bill be now read a Second time.
I am confident that everybody in this Chamber agrees that 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 be political, scientific, academic or anything else. That is how power is held to account, abuses of authority are uncovered and truth is advanced. But freedom of speech does not mean that people should be able to ride roughshod over the reputations of others without regard to the facts. Life and career can be destroyed by false allegations that go unanswered. 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.
I share the mounting concern of recent years that our defamation laws are becoming out of date, costly and over-complicated, and that they are at risk of damaging freedom of speech without affording proper protection. No one can be satisfied with a situation 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 non-governmental organisations. The practice of issuing gagging writs has been resorted to by many people over the years. I once had the privilege of receiving one myself from Mr Robert Maxwell, but we must make sure that the practice is not encouraged to spread further. Nor can it be a matter of pride when powerful interests overseas with tenuous connection to this country use the threat of British libel laws to suppress domestic criticism in cases of so-called libel tourism.
Turning to what is the most innovative and difficult part of the Bill, I am also very concerned that our current libel regime is not well suited to dealing with the internet and modern technology. Legitimate criticism sometimes goes unheard because the liability of website operators, as providers of the platform on which vast amounts of information is published by users, puts them in the impossible position of having to decide when to defend or censor information. Meanwhile, individuals can be the subject of scurrilous rumour and allegation on the web with little meaningful remedy against the person responsible. We need to refocus and modernise the system so that it offers effective protection, whether offline or online, both for freedom of speech and the reputation of those who have been defamed.
Those are the main reasons for the introduction of the Defamation Bill. It fulfils the commitment in the coalition agreement to review the law of libel while protecting legitimate free speech. It also, of course, draws heavily on the draft Bill published last year. I do not want to tempt fate, but I must say that I think that thus far producing a draft Bill and consulting has proved to be a very good way of proceeding on what could otherwise have been an extremely contentious issue.
The draft Bill benefited from detailed, and very helpful, scrutiny by a lot of interested people. We were particularly helped by the Joint Committee, and I am grateful to all who contributed to it, especially my old friend and colleague Lord Mawhinney and his fellow Lords for their extremely helpful contribution, which we have reflected in the Bill.
Sir Peter Bottomley (Worthing West) (Con)
On the subject of that Committee, may I say that it was my experience—which I think was shared by others who served on it—that the attitude of the Minister, Lord McNally, especially in answering questions and being very open about what was in his mind and in the mind of the Department, was very useful? Such openness brings results.
Mr Clarke
I am grateful to my hon. Friend for those comments, because it is one of the ironies of this Bill starting in the Commons that the member of my ministerial team who has devoted the most time to producing it is unable to introduce it. My ministerial colleague, my hon. Friend the Member for Huntingdon (Mr Djanogly), will wind up this debate, and both he and I would acknowledge that our noble and right hon. Friend Lord McNally played a leading part in the whole consultation and scrutiny process.
Before I discuss the detail of the Bill, let me say that parliamentary debate always elicits a broad spectrum of opinion, and defamation reform is no exception. At one end of the range of views are still some who would like this country to move towards the United States’ model, with free expression always trumping other considerations and with little or no legal redress for those who have been defamed. I find that idea unattractive and think that the current process of American electioneering shows the dangers. The well-financed production of untrue or dubious personal allegations can be taken to great length if there is no adequate protection. At the other end of the range are a few people who think, particularly in light of recent media excesses, that we should teach newspapers a valuable lesson by encouraging anyone whose feelings have been hurt to sue them. I am not sorry to say that the Bill will disappoint those with either extreme of opinion, which I hope will be echoed very little by hon. Members on any Benches in this House.
Ian Paisley (North Antrim) (DUP)
I agree that no one wants to see the Americanisation of our libel and slander laws. However, the right hon. and learned Gentleman referred to Lord Mawhinney’s report and chairmanship of the Joint Committee. Lord Mawhinney made it very clear that access to justice was critical for the ordinary citizen. Does the Secretary of State agree with me that raising the “substantial harm” test raises the bar so high that the ordinary citizen will never go into the libel courts to defend themselves?
Mr Clarke
No; I shall try to address that issue throughout my remarks. The package that we have produced is aimed at reducing costs and producing more effective remedies for a wide range of people, as well as at reducing the burdensome cost for those trying to defend themselves against actions. I shall keep making remarks that address the hon. Gentleman’s concerns, because I am anxious to ensure that we are not making things more expensive or difficult for any litigant.
Our intention is to correct the worst excesses of our current system in which, particularly for the powerful and wealthy, the law makes it rather too easy to menace responsible publishers with libel proceedings. However, we do not want sensible mainstream reform to come at the cost of giving further licence to parts of the media to publish whatever they like without regard for the truth. Equally, we want to ensure—this is relevant to the point made by the hon. Member for North Antrim (Ian Paisley)—that it is possible for ordinary people to get a remedy, but only where their reputation has been seriously harmed. We do not want to open the floodgates to endless litigation in our courtrooms by people whose feelings have been hurt but who have not suffered any particular damage. Of course, the Bill is only part of the story. No doubt the conclusions of Lord Justice Leveson’s inquiry will inform broader reforms to press regulation in due course.
Zac Goldsmith (Richmond Park) (Con)
It seems that a person would be able to take action only if a single statement caused serious harm to their reputation, but it is usually the case that people find themselves being mercilessly bullied, harassed and hounded by newspapers over a long period. There might not be a single statement that would definitively destroy their reputation, but they nevertheless find themselves being dragged through the mud without there being any individual act meriting the kind of action that the reforms would allow. In those circumstances, what kind of defence would an individual have against a £100-million organisation that is committed to shredding their reputation?
Mr Clarke
I think the law of libel offers equal protection in both situations. One single statement can be very defamatory, but so can a series of statements as my hon. Friend rightly says. That has always been the case and I do not think that anyone has ever drawn such a distinction in the law of defamation. The test will be applied to the total conduct of which the plaintiff is complaining and against which he is seeking a remedy. I have alongside me my hon. and learned Friend the Solicitor-General, who used to practise privately in this particular field. He seems to agree with my judgment on this matter, so I think we can put that fear to rest.
Let me deal with the point made by the hon. Member for North Antrim, because the next part of what I have to say is very relevant here. As I have said, alongside the Bill we are seeking to bring about a significant reduction in the sometimes punitive costs in libel cases by introducing a series of procedural changes. Those changes come on top of the Jackson reforms—this involves the Legal Aid, Sentencing and Punishment of Offenders Act 2012—to the no win, no fee conditional fee arrangements. The reforms will reduce the burden on both plaintiffs and defendants and help to reduce overall legal bills, without preventing claimants with strong cases from finding lawyers to represent them.
Our first priority has been to reform the law so that trivial and unfounded actions for defamation do not succeed. Clause 1 therefore raises the bar, by a modest extent, 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.”
That was carefully considered in consultation by a lot of respondents. Whereas the draft Bill sought views on a test of substantial harm, which was intended to reflect current law, the new clause drew on the views of the Joint Committee on the draft Bill and the balance of opinions received in the consultation by nudging the threshold up by a modest extent. It will be for the courts to determine, in the light of the individual circumstances of a case, whether the test has been met. However, we hope it will give more confidence to defendants in, for example, the sorts of cases brought against non-governmental organisations 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, the defences are sometimes unnecessarily complicated and too narrowly focused on cases relating to mainstream journalism, rather than the online world, NGOs, academics, scientists and so forth.
Mr Edward Leigh (Gainsborough) (Con)
Everyone wants a vigorous press commenting robustly on matters of public interest. Too much of our press, however, has sought to earn a living in recent years by destroying people’s reputations. Will the Secretary of State reassure the House that his new defences of “honest opinion” and “in the public interest” will not allow the likes of the Murdoch press to drive a coach and horses through any person’s private life?
Mr Clarke
I agree with some of what my hon. Friend says. No doubt we all get infuriated by much of what appears in the newspapers. I personally find that much of the popular press express views that I regard as ridiculous, right-wing and extremely annoying to my view of political debate, but it is important in a democracy that people such as me are subjected to that. Our test of whether we live in a society where free speech is allowed is whether we allow free speech to people with whom we disagree. That can involve matters of taste. Some of what my hon. Friend complains about concerns the ridiculous offshoots of the celebrity culture in which we now live. We can all freely express opinions about these things, but I would be hesitant indeed if any Government came to the House to legislate on such matters. In my judgment, if our press wish to be scurrilous and irresponsible, up to a point they are entitled to be so.
Kevin Brennan (Cardiff West) (Lab)
Is the Secretary of State’s position, then, that an ordinary citizen who has had an untruth published about them should have no remedy unless they can prove that it has caused substantial harm to their reputation?
Mr Clarke
It must be a serious matter causing serious harm to their reputation. Most Members have things printed about them twice a week that cause them annoyance and which they would vehemently start arguing about if they had the opportunity to do so in front of readers. It is serious matters that must be subject to the serious process of defamation law in the pursuit of a remedy—a financial remedy, an apology or whatever—in a court of law.
Mr David Lammy (Tottenham) (Lab)
Will the Secretary of State say a little more about this matter? He will understand that once the law is codified, judges will interpret what he has said. Does he recognise that for ordinary members of the public—for example, someone running a small business to whom harm can be caused if a local paper runs a particular story—what is serious is quite different from what is serious for celebrities and those in public life?
Mr Clarke
I agree. I stress that it will be for the courts to determine what amounts to serious harm in an individual case, but I agree that someone whose business is damaged—albeit by a local allegation in a local newspaper—could almost certainly demonstrate serious harm. Any citizen against whom a serious and unfounded allegation of personal misconduct is made will probably be able to demonstrate that it has done serious harm to his reputation. The hurdle is raised a little, but I trust that it will not bar any plaintiff who has had serious problems as a result of a publication.
I was moving on to deal with the defences. Clauses 2 and 3 replace the common law defences of justification and fair comment with new statutory defences of truth and honest opinion. These are areas where the law has become increasingly complicated and technical over the years. In our opinion, the revised approach should simplify the situation, ensuring that the defences are available without so many endless and costly disputes over detail and interpretation. Alongside the new defences of truth and honest opinion, we are introducing, for the first time, a statutory defence of responsible publication in the public interest. This is based on the common law defence that has been developed by the courts in recent years following the case of Reynolds v. Times Newspapers but expressed in clear and flexible terms. It provides a defence where the defendant can show that the allegedly defamatory statement is, or forms part of, a statement on a matter of public interest, and that he or she acted responsibly in publishing it.
The relevant clause identifies specific factors to which the court may have regard in deciding whether the defendant has acted responsibly, based on current case law. However, we do not want those to be interpreted as a checklist or a set of hurdles for defendants to overcome, and the list is intended to set out factors in an illustrative, non-exhaustive way so courts will retain flexibility. It is not our intention to change the Reynolds defence; we have sought to set it out in statutory form in a way that we hope will help.
Mr Robert Buckland (South Swindon) (Con)
I am listening carefully to what the Lord Chancellor is saying about the dangers of the non-exhaustive list setting a series of hurdles. Does he not think that a catch-all clause allowing the courts to look at all the circumstances of the case would cure that potential mischief?
Mr Clarke
As I said, we are not intending to fetter, as it were, the discretion of the court in the end to apply reasonable judgment to the particular circumstances of a particular case; this is meant to be illustrative. This is work that we have set out, and we will reflect on my hon. Friend’s point as we continue to scrutinise the legislation as it goes through this House.
Finally in this area of defences, we are extending the circumstances in which absolute and qualified privilege can be asserted. The defence of privilege is based on the principle that there are certain situations in which it is for the public benefit that a person should be able to speak or write freely, and that this should override or qualify the protection normally given by the law to reputation.
Clause 7 extends privilege to summaries of material as well as to reports and copies; broadens the international scope of the circumstances in which privilege applies; and clarifies that qualified privilege extends to reports of scientific and academic conferences and of press 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, as recommended by the Joint Committee on the draft Bill. The clause defines key elements of the peer-review process to ensure that publications with appropriate procedures will now be given the protection of this new defence.
All told then, I would argue to the House that the Bill is introducing sensible reform to protect freedom of expression by raising the bar for a claim and bolstering the defences available, with specific benefit for scientists and journalists. But we want to go further in some of the main areas of public concern, in particular by addressing libel tourism, which has sometimes caused damage to this country’s reputation around the world, as we are normally regarded as advocates of freedom of expression, in particular. Relatively few foreign libel cases ultimately end up in a British courtroom, but I am concerned by the use of threatened proceedings by wealthy foreigners and public figures to stifle investigation and reporting. Clause 9 addresses the issue in a measured and proportionate way, although it has had to be drafted to avoid any conflict with European law. It clarifies that a court will not hear a case against someone who is not domiciled in the UK or an EU member state unless satisfied that England and Wales is clearly the most appropriate place to bring an action. It should help ensure that powerful interests around the world will not so easily be able to use British justice to gag their critics —a move that I hope will be welcomed across the House.
Ian Paisley
I appreciate the Secretary of State’s generosity in giving way on this point. He said that our courts are becoming—or could become—a laughing stock as regards libel tourism. Does he not agree that if someone is libelled or slandered by a British person or a British publication, the victim of that libel or slander has the right to seek remedy in this jurisdiction given that they have been victimised by that publication? Indeed, the accusation of libel tourism amounts only to about a dozen cases over past years and it really is not as big a problem as some people are suggesting.
Mr Clarke
I did not say that I thought our courts would be a laughing stock; I think that our libel and defamation laws are rather good and that is no doubt one reason people try to access them. We are trying to improve them. I do not think that our standards of justice are being hurt, but different societies will form slightly different judgments of where the balance lies between freedom of expression and giving a remedy to people who are defamed. I have already said that the United States of America, which resembles this country in some ways, takes a very different view of what is actionable and defamatory if it is produced in that country.
The problem arises when people come to this country because our system is more generous to their point of view to bring cases that have little or nothing to do with the United Kingdom. I give the example of a Saudi business man, say, threatening an American publication with an action because of an article that has had tiny circulation in the United Kingdom. That is a hypothetical case, but the Saudi would be using the nature of British law to threaten a publication in an entirely different jurisdiction. That is the evil we are trying to address. We are not trying to stop British publications being sued by anybody who can come here and show that we are the right jurisdiction.
Ian Paisley
I again appreciate the Secretary of State’s generosity. The Saudi gentleman does not exist, as the Minister has said, so let us consider the cases that do exist. A governor of the state of California sued a British newspaper because it carried inaccuracies about him and sued the publisher of a British book that claimed he was a Nazi sympathiser. Other prominent individuals come to this country who have been seriously slandered by publications; surely they have the right to seek a remedy here.
Mr Clarke
If anybody is defamed by a publication in this country or wants to act against a defendant who is domiciled in this country, they will be able to bring an action. I do not regard that as libel tourism. The problem arises when two people in the same country start suing each other because half a dozen copies of some foreign language publication have in theory been available on some bookstall in London and this jurisdiction is chosen to try to get a remedy. I hope that what we have done will ensure that people with powerful interests around the world will not so easily be able to use our courts.
Mr John Whittingdale (Maldon) (Con)
Can the Secretary of State confirm that the Saudi business man almost certainly exists? The Rachel Ehrenfeld case was heard in this country when there was no connection other than the 23 copies of her book that were sold, yet it resulted in the passage of the Libel Terrorism Protection Act in New York. It is a mark of shame against this country that New York state thought it necessary to pass an Act specifically aimed against this country.
Mr Clarke
I made my remark about the case being hypothetical to avoid being drawn into arguments about that case, which is rather familiar to people who know this subject. There are arguments about how far the plaintiff had connections with this country and a reputation here, but as it happens I was producing the example of a Saudi and an American purely hypothetically and I do not think I should get drawn into the merits of a past case. My hon. Friend, who is an expert in this field, rapidly understood why those particular nationalities had leapt to my mind when I gave the example.
Alongside these adjustments in the law to help support freedom of expression, I want to ensure that effective remedies are available for those defamed. Often what most concerns claimants is not financial compensation, but meaningful public clarification that a story was wrong. We have therefore included provisions in clause 12 extending existing powers to enable the court to order publication of a summary of its judgment. Parties will be encouraged to reach agreement, where possible, on the contents of the summary and issues such as where, when and how it is to be published. However, in the absence of agreement, the court will be empowered to settle the wording of the summary and give directions on those other matters.
In addition to protecting freedom of expression and reputation, the Bill seeks to modernise the law. Our biggest difficulty has been in relation to the web, the internet and so on. Currently, website operators are in principle liable as publishers for everything that appears on their site, even though the content is often determined by their users, but most operators are not in a position to know whether the material posted by their users is defamatory or not, and very often, faced with a complaint, they will immediately remove material. The Government want a libel regime for the internet that makes it possible for people to protect their reputations effectively, but which ensures that information online cannot be easily censored by casual threats of litigation against website operators.
Steve Rotheram (Liverpool, Walton) (Lab)
Will the Secretary of State give way?
Steve Rotheram
I broadly support the Bill, especially clause 5, which the right hon. and learned Gentleman is explaining. Can he give any comfort to the parents of Georgia Varley, a Liverpool youngster who was tragically killed and whose family and friends set up an RIP website, which trolls then used to abuse and disparage her death in a sickening and vile way? Can he outline specifically the proposals to tackle such abuse by internet trolls who hide behind the anonymity of a computer to abuse those remembered on RIP websites?
Mr Clarke
I cannot possibly comment on an individual case and individual possible action. I anticipate that the difficulty may be that the defaming of a deceased person always gives rise to questions of whether any action is possible. Trolling is an extremely unpleasant, curious activity which some very nasty people appear to be going into. There have already been quite a lot of prosecutions for trolling, but we think the public are entitled to proper protection against it.
Our proposed approach, under clause 5, will provide website operators with a defence against libel, provided they follow a procedure to put complainants in touch with the author of allegedly defamatory material. This will strengthen freedom of expression by ensuring that material is not taken down without the author being given an opportunity to defend it. Conversely, it will strengthen protections by enabling people who have had their reputation seriously harmed online to take action against the real author and bring proceedings against them if the matter cannot be resolved by other means.
Dr Julian Huppert (Cambridge) (LD)
This is indeed a complex issue. Can the Justice Secretary confirm that this is an optional defence and that web operators would be entitled not to follow those regulations and not to use the defence, and that they would still be covered by the defences available under the e-commerce directive if they so chose?
Mr Clarke
That is entirely correct, but of course those web operators would also be vulnerable to possible action because they had not availed themselves of the process, which would give them one way of proceeding if they chose to do so. We are not replacing other remedies which might well be available against a publisher who took no steps to inform the defamed person of where the defamatory matter was coming from.
It will be very important to ensure that these measures—clause 5 and those associated with it—do not inadvertently expose genuine whistleblowers, and we are committed to getting the detail right to minimise that risk. We will continue to consider that and eventually some of it will have to be covered by regulation.
Concern has also been expressed about the impact of the current law on secondary publishers more generally, including booksellers and newsagents. In accordance with our aim of ensuring that secondary publishers are not unfairly targeted and action is taken against the primary publisher wherever possible, clause 10 removes the possibility of an action for defamation being brought against a secondary publisher except where it is not reasonably practicable for the claimant to bring the action against the author, editor or commercial publisher of the material.
A further related proposal to modernise the libel regime is the introduction of a so-called single publication rule. Information online can be copied instantly, stored indefinitely and accessed long after physical forms of publication, yet the current regime allows additional claims for such cases of “republishing”. The proposed rule seeks to reconcile the need to protect individuals from repeatedly having to face the same defamatory comments with the need to avoid open-ended liability for publishers when old material is accessed years later, which has the potential severely to inhibit freedom of expression. Therefore, the Bill includes a provision that will prevent an action being brought in relation to publication by the same publisher of the same, or substantially the same, material after a one-year limitation period has passed.
Agreeing a libel regime fit for the realities of the 21st century is not straightforward, but these steps constitute sensible reform to ensure that freedom of expression and protection of reputation are possible both online and offline. Modernisation, however, must also extend to the cost and length of libel cases, which are increased in current law by the presumption of jury trial. I am normally a strong defender of the principle of jury trial in criminal cases and always have been—I assure my right hon. and hon. Friends and everyone else that my political arteries have not suddenly hardened and affected my views on that.
In practice, jury trials have been infrequently used in libel cases in recent years and the majority of cases are now heard by judges alone. I believe that it makes sense to recognise that reality in law by discontinuing the presumption of jury trial, which in this case has become a kind of noble fiction that creates real practical problems for one or other of the parties. It greatly increases the cost and time taken in defamation proceedings, which can be done deliberately to advantage one or other of the parties in negotiations and bargaining. Many basic legal issues that could otherwise quickly be sorted out by a judge sitting alone, such as deciding the meaning that allegedly defamatory material can have, cannot be resolved until full trial, whether or not a jury is ultimately used. That causes unnecessary delay and expense, to everyone’s detriment.
Recognising that judges should normally rule on libel cases is also part of the wider package of procedural proposals, to which I referred a few minutes ago, that we are taking forward alongside the Bill to help reduce costs and encourage settlements. It goes hand in hand with a new preliminary procedure that we are developing to resolve key issues, such as meaning, at as early a stage as possible. Of course, there might remain occasions when jury trial is appropriate, so the Bill retains the court’s discretion to order that when it considers it appropriate to do so.
Mr Clarke
A great deal of the argument in defamation action often turns on preliminary points, such as whether a particular statement is capable of having the meaning that one of the parties attributes to it. It is much easier if a judge can deal with those preliminary matters so that the whole thing does not have to go to a full trial. Also, there is absolutely no doubt that a great deal has to be done to explain to a jury what this particularly difficult area of law is all about. The whole thing takes longer—it has to when 12 lay men and women are hearing it—which adds to the expense. Not only does that add to the costs and delays when somebody is involved in an action, as I have said, but because they sometimes threaten bringing claims before they go to court, once we start getting into the costs that might be involved in a jury trial the threat is made much more substantial by holding all this—
Mr Speaker
Yes. I have been listening to the right hon. and learned Gentleman with great interest and respect for the best part of a quarter of a century, as he knows, but the Secretary of State is a compulsive “swiveller”. Whenever he is intervened on by one of his right hon. or hon. Friends, he invariably swivels round. But the rest of the House does not want to lose him; we are hanging on his every word.
Mr David Davis (Haltemprice and Howden) (Con)
I, like my right hon. and learned Friend, am hoist with two petards: one is my belief in the principle of jury trial; the other is the practicalities that he quite rightly outlines. What I want to understand in his description of the Bill is under what circumstances a jury trial will be triggered. What are the criteria that will trigger a jury trial instead of a judge-only trial?
Mr Clarke
The decision is deliberately left to discretion, so in the end an experienced judge will have to decide whether a case is suitable, but one can conceive of a few exceptional cases whereby the whole thing depends on a question of the veracity of two teams of hard-swearing witnesses, and whereby the judge is persuaded that, because of the particular nature of the case, he would be helped by the judgment of a range of men and women, from a variety of backgrounds, who would bring their collective wisdom to deciding which side to believe.
That is simply one off-the-cuff example which comes to my mind, but if the whole thing turned on an elaborate argument about the application of the defamation laws to the particular circumstances of the publication of a scientific journal, for example, that would be a wholly unsuitable case to leave to a jury, and the whole thing would take longer and cost a lot more, even if the jury got it right in the end. That is the problem we are trying to address.
Mrs Helen Grant (Maidstone and The Weald) (Con)
Does my right hon. and learned Friend agree that the proposal could assist with earlier settlement, not just with reducing the length or cost of a hearing?
Mr Clarke
I agree strongly with that extremely good point. The more these things can be dealt with by way of a preliminary judgment by a judge, the more settlements we will get, because sometimes the whole thing really turns on one point, which can be dealt with much more quickly if a jury is not involved.
Mr Clarke
I think I had better conclude, because I have taken—as I usually do—quite long enough.
This Bill is, in our opinion, a sound piece of modernising reform that we have approached in a balanced way. We have sought in particular to defend the interests of free debate. Accordingly, the Bill contains a range of measures which will greatly strengthen the environment for open and robust scientific and academic debate, including measures to apply across the piece, such as the introduction of the serious harm test, the simplification and clarification of defences and a single publication rule, together with specific ones, such as the extension of qualified privilege to peer-reviewed material and to reports of scientific and academic conferences.
I believe that this package of measures rebalances the law in a fair and effective way so that free speech is not unjustifiably impeded and debate about issues of public importance is able to thrive, while still providing appropriate remedies for those who have been defamed. It also updates the law for the first time to address properly the most pressing challenges raised by the internet and social media in relation to defamation. I commend it as a sound, reforming Bill.
I tempted fate earlier, and the Solicitor-General, my hon. and learned Friend the Member for Harborough (Mr Garnier) and I will tempt fate again, because we believe that the process of producing a draft Bill and getting this far has produced a quite extraordinary degree of consensus that I, for one, would not have thought possible to achieve when we first embarked on modernising the law on defamation. So little interest has been attracted abroad that even the media, which one would have thought would be obsessed with the issue, are paying little attention to the debate.
There is still a debate to be had, and this House will demonstrate its usefulness in scrutinising the legislation, just as the Joint Committee on the draft Bill has shown what can be achieved in consultation so far, but I hope that in the end we will continue to command cross-party support in our efforts to address long-standing weaknesses in our defamation regime, and I commend the Bill to the House.
Sadiq Khan
I thank the hon. Gentleman for raising that concern. I am afraid that many colleagues will be familiar with the type of bullying, harassment and intimidation that he talks about, which ultimately leads to people considering taking their own lives. When the Government drafted the Bill, they were keen to address a void that has not previously been filled. Clause 5 will allow websites to have action taken against them, but websites will be given greater protection from being sued if they help to identify those posting defamatory messages. It is hoped that that will lead to greater responsibility among both those who operate websites and those who post messages. People will know that they when they put a post on a website, it is possible that their details will be passed on to a potential claimant bringing an action.
Mr Kenneth Clarke
Does the right hon. Gentleman agree that it would be helpful in that context to look at what else can be done about bullying, as opposed to defamation? The House should bear in mind section 127 of the Communications Act 2003, which creates an offence of sending or causing to be sent
“by means of a public electronic communications network a message or other matter that is”
genuinely
“offensive or of an indecent, obscene or menacing character”.
That gives rise to many prosecutions, but the right hon. Gentleman is probably right that it does not give rise to many defamation actions. It must be looked at in the round. We agree that people abusing the internet to abuse people to whom they happen to have taken a dislike is an increasing problem.
Sadiq Khan
A chilling effect can sometimes be a good thing. A prosecution brought against someone involved in such behaviour can lead to others not doing the same thing for fear of prosecution. The Justice Secretary is right to remind the authorities, who might be watching the debate or might read of it, that they have tools at their disposal to bring criminal prosecutions.
Subsections of clause 5 set out the circumstances in which the defence could be defeated. This is a key area in which technological developments have outstripped our laws. As has been said, a duty will be placed on internet service providers to identify internet trolls without victims needing to resort to costly legal action. The Opposition welcome that development, but the detail will be provided in regulations that we have not seen. It is important that this well intentioned clause does not inadvertently lead to a website being required to disclose the identity of a whistleblower when they are the source of a post on a website, or to websites being easily censored by casual threats of litigation against their operators.
Transparency in the Justice System
Lord Clarke of Nottingham Excerpts(12 years, 7 months ago)
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The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)
The Government have today introduced legislation to enable the filming and broadcast of selected court proceedings in England and Wales.
As a first step, we plan to allow filming of judgments and legal arguments in the Court of Appeal. Cases in the Court of Appeal normally deal with complex issues of law or evidence, and victims and witnesses rarely appear in order to provide new evidence. Given the complexity of legal issues in Court of Appeal cases, we believe that allowing advocates’ arguments to be filmed in addition to judgments would be more likely to improve public understanding of the criminal justice system than judgments alone.
We are clear that this should not be at the expense of the proper administration of justice, and that protecting the interests of victims and witnesses must remain paramount. Existing reporting restrictions will continue to apply and we have no intention of allowing victims, witnesses, defendants or jurors to be filmed. However, we believe that television has a role to play in opening up the criminal justice system, and are therefore removing the ban on cameras in courts to allow broadcasting in certain limited circumstances.
The Government hope to see broadcasting extended to judges’ sentencing remarks in the Crown Court in due course, and we are working with the judiciary to achieve this.
A paper has been deposited in the Libraries of both Houses, providing more detail on our proposals to allow broadcasting of selected court proceedings.
Appointments and Diversity: A Judiciary for the 21st Century
Lord Clarke of Nottingham Excerpts(12 years, 7 months ago)
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The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)
The judiciary play a critical role in the administration of justice. It is therefore vital that we select candidates for judicial office on merit, through fair and open competition, from the widest range of eligible candidates. However, despite progress, the composition of our judiciary still does not adequately reflect the society it serves.
This issue matters for obvious reasons of fairness, efficiency and enhancing public confidence in the justice system. That is why in November last year I published a consultation which proposed a number of initiatives that aimed to address issues that had been identified with the current system of appointing judges. We have considered carefully the responses received to our consultation and are particularly grateful to the House of Lords Constitution Committee for their own inquiry into judicial appointments, which ran concurrent to our own consultation, as it provided important additional insight and suggestions surrounding our policy proposals.
We propose to take forward a number of the proposals, and these will be included in the Crime and Courts Bill, which has been introduced today. The proposals being taken forward include the introduction of part-time working to the High Court, Court of Appeal and the UK Supreme Court, as well as provisions that will enable the application of the positive action provisions to judicial appointments. These proposals will definitely not undermine the principle that all appointments will be made on merit.
The overall effect of these changes will be to achieve the proper balance between executive, judicial and independent responsibilities; improve clarity, transparency and openness; create a more diverse judiciary that is reflective of society; and deliver speed and quality of service to applicants, the courts and tribunals and value for money to the taxpayer, ensuring that our judiciary, which is already a byword for integrity, independence and excellence, evolves into a modern, outward-facing institution that is fit for the 21st century and beyond.
The House of Lords Constitution Committee report from their inquiry into judicial appointments made reference to a majority of our consultation proposals and the comments of the Committee have been referenced within our consultation response, which will be published tomorrow. However, their report also made comment on a number of issues that were not included within our consultation and as such I will be bringing forward a Command Paper towards the end of May to respond to these additional recommendations.
Our response to consultation is available online at: http://www.justice.gov.uk/consultations/closed-with-response.
Disclosure in Criminal Proceedings
Lord Clarke of Nottingham Excerpts(12 years, 8 months ago)
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The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)
I welcome Lord Justice Gross’s review of “Disclosure in Criminal Proceedings” of September 2011, which the Government have considered in detail.
I understand that the review took approximately a year to complete and that Lord Justice Gross consulted widely with policy experts and practitioners both in this country and abroad. His final report provides an authoritative insight into disclosure issues in cases involving large volumes of investigative material.
The report’s findings underline the complexity and difficulty of the issues raised. I note and understand Lord Justice Gross’s decision not to call for legislative intervention, and his advocacy of more effective application of the existing laws. I welcome his assistance in the work of rationalising and simplifying existing disclosure guidance, which has already commenced with the endorsement of the Law Officers.
The continuing policy objective in this important area is to safeguard fair trials by ensuring the legal framework requires appropriate disclosure to the accused.
At the same time, the resource burden which these arrangements impose on the criminal justice system cannot be ignored. The exponential growth in the volume of material generated by criminal investigations is a matter of increasing concern, particularly where computer, CCTV and internet material are concerned. In some cases, the amount of material generated is now so great that it is no longer humanly possible to review it by traditional means.
With these realities in mind, the coalition Government will work to establish if there are ways to mitigate the resource burden imposed by disclosure, but only in such a way that fair trials are preserved.
Proactive prosecution and judicial case management are both essential to sound disclosure practice, as are the appropriate sanctions for disclosure failures. I have therefore asked for a more detailed examination of the judiciary’s existing case management powers and sanctions for disclosure failures, and consideration of whether there are options for strengthening them that have not so far been identified. I am grateful to Lord Justice Gross and Mr Justice Treacy for agreeing to lead this work, and will report back to Parliament in due course.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Clarke of Nottingham Excerpts(12 years, 8 months ago)
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Yasmin Qureshi (Bolton South East) (Lab)
I wish to place on record my gratitude to the Lords for their amendments and for their hard work. I also place on record my gratitude to the Opposition Front-Bench team for all the hard work that they have done on all aspects of the Bill, and to my hon. Friends and some on the Government Benches who have fought against certain provisions of the Bill.
I welcome the Minister’s concession on industrial diseases, including mesothelioma, and the fact that the Government will review the issue. I hope they will abandon the proposal to make victims contribute to the lawyers’ costs if they are successful. I ask the Government to consider other industrial diseases that should be placed in the same category, such as industrial deafness, industrial blindness, severe spinal degradation, leukaemia, cirrhosis of the liver and other organ damage.
It cannot be said that people suffering from those conditions are out to make a quick buck. Although we support the idea of a limit on insurance claims or the suggestion that the victim should pay a contribution towards the damages, it is disgraceful that the provisions should apply to people affected by serious illnesses. To say to people who suffering from such illnesses, “By the way, once you have gone through the process of proving your case, your lawyers will have to take their costs from your damages” cannot be right. It is plainly unfair and unjust. I can see that the Lord Chancellor disagrees with me. If I am wrong and he wishes to intervene, I am more than happy to give way.
The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)
I just want to say that the lawyers do not have to take 25% of the compensation. All the costs are recovered from the defendants in a case that has been won. It is only those costs that are irrecoverable from the defendants that can sometimes be recovered. In a straightforward case there is no reason for anything to be recovered over and above that, and lawyers should not automatically take 25% of the claim and say that it is for their costs.
Yasmin Qureshi
But there is nothing to stop them doing so. The legislation should be simple and straightforward: a person’s compensation, whatever it might be, should be theirs and the legal costs should be a separate item that they can claim for. If I am awarded damages worth £100,000, I should get £100,000 and not have to pay £25,000 to someone else. Any legal costs should be paid separately by defendants’ insurance companies, which are incredibly rich and have loads of money that they can—
Reform of the European Court of Human Rights
Lord Clarke of Nottingham Excerpts(12 years, 8 months ago)
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The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)
My right hon. Friend the Foreign Secretary and I wish to update the House on the Government’s efforts to reform the European Court of Human Rights as part of the UK’s chairmanship of the Committee of Ministers of the Council of Europe.
The Brighton declaration, the package of reforms to the Court which has been the priority for the UK’s chairmanship, was formally adopted on Friday. This was the culmination of the Brighton conference, where Justice Ministers, Foreign Ministers and senior officials from across the 47 Council of Europe member states met to discuss the UK chairmanship’s package of reforms.
The declaration itself is the result of a process which the UK took over when it assumed the chairmanship in November. The Prime Minister outlined his ambitions for reform of the Court in a speech to the Council of Europe’s Parliamentary Assembly in January. Through the Brighton declaration, we have succeeded in agreeing substantial reforms in each of the areas he set out.
First, we have strengthened subsidiarity and the margin of appreciation by securing agreement to insert these key principles into the convention itself. The member states will amend the admissibility criteria of the convention. And we have sent an unequivocal message from all 47 states to the Court that it should from now on use the existing criteria to ensure that it consistently does not reconsider cases that have already been properly handled by national courts, unless they raise a serious question of interpretation or application of the convention.
Secondly, we have agreed measures to improve the efficiency and effectiveness of the Court by cutting the time limit for making applications to the Court from six months to four; giving the Court tools to improve the efficiency with which it processes cases; and amending the convention so that the Court can routinely get rid of trivial cases.
Thirdly, we have secured measures which will ensure that the Court and its judgments are of the highest possible quality by making sure that the main development of case law is only by the Grand Chamber, comprising the Court’s most senior judges; improving procedures to ensure that the judges of the Court are experienced and well-qualified for the job; and making sure that the rules of office allow every judge to serve a full nine-year term on the Court.
Member states also agreed a further process for longer-term reform of the Court.
These represent significant changes to the convention system, which now need to be implemented fully, and the necessary convention amendments drafted and agreed. Gaining the unanimous agreement of 47 countries is no easy task and we are grateful for the constructive negotiations we have held with our European partners.
We expect the effect of the measures in the declaration to be that fewer cases are considered by the Court. Where cases do go to Strasbourg, the Court should be able to focus more on the important cases and do so more quickly. The result is a strengthening of the human rights protection for the 800 million citizens across the Council of Europe.
A copy of the declaration will be placed in the Libraries of both Houses.