Personal Data Directive
Lord Clarke of Nottingham Excerpts(12 years 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 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 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, 1 month 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, 1 month 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, 2 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, 2 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, 2 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.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Clarke of Nottingham Excerpts(12 years, 2 months ago)
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The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)
I beg to move, That this House disagrees with Lords amendment 2.
Mr Deputy Speaker (Mr Nigel Evans)
With this it will be convenient to discuss the following:
Lords amendments 189 to 191.
Lords amendment 192, Government motion to disagree, and Government amendments (a) to (c) in lieu.
Lords amendment 193.
Lords amendments 194 and 196, and Government motions to disagree.
Lords amendments 217 to 220 and 243.
Lords amendment 168 and Government motion to disagree.
Lords amendment 169 and 240, Government motions to disagree, Government amendments (a) and (b) in lieu, and amendment (i) to Government amendment (a).
Lords amendments 170 to 172, and Government motions to disagree.
Lords amendments 177 to 181, and 206 to 216.
Mr Clarke
Lords amendment 2 impinges on the financial privileges of the House. I ask the House to disagree to the amendment and I will ask the Reasons Committee to ascribe financial privilege as the reason for doing so—and so too with amendments 168, 170 and 171. In addressing the very wide selection that you have just announced, Mr Deputy Speaker, I shall begin by looking at the principles that the Government are adopting on the various amendments and the reform as a whole, and at what principles we are inviting the House to adopt.
The scope of legal aid goes to the heart of our attempts to reform and improve the justice system, because targeting funding where it really counts is fundamental, first to the savings the Government are having to try to make in this area as in any other. There is no doubt that the present level of legal aid provision is on any measure unaffordably expensive. I shall not dwell on this issue but it is bound to recur during our debates. Even after our reforms have been carried, if Parliament eventually approves the Bill and it becomes an Act as we intend, we will still have by far the most costly legal aid system in the world. It is almost twice as expensive as that in any other country per head of population. In no other democratic jurisdiction would it be possible to get up and argue seriously that the taxpayer should spend money on the scale that we do on legal representation and advice.
The changes to the scope of legal aid that we are proposing are also part of a broader shift. We are trying to reduce the amount of unnecessarily adversarial litigation. The very broad provision of legal aid has encouraged people to bring their problems before the courts, but sometimes their basic problem is not a legal one and the best way of resolving the dispute or tackling the problem would be not to take a litigious approach. Such an approach imposes costs and does not always resolve problems. Before I move on from the tricky matter of cost let me say that with legal aid the cost is not just to the public purse and our Department. One has to think of the costs imposed on all the other people who are parties to litigation, such as businesses—small and medium-sized enterprises—and the national health service, as this selection includes clinical negligence claims. Everything we agree to do in relation to clinical negligence comes out of the budget that is otherwise available for public services. The growth of the clinical negligence industry is having an impact on national health services at the present time. There is also a cost to individuals, because for an ordinary citizen of ordinary means to be in the appalling situation of being engaged in litigation when the other party has legal aid is not an experience that most people would enjoy. We should bear all that in mind as the background to what we are doing.
Glenda Jackson (Hampstead and Kilburn) (Lab)
Is the Secretary of State actually arguing that the best way of getting a level playing field is to deny everyone any kind of legal aid? That seems to be the thrust of his argument.
Mr Clarke
I am not arguing that. I am saying there should be hesitation before the very powerful and quite legitimate lobbies that have descended on the House since we proposed the changes just sweep everybody into believing that ever-wider provision of legal aid is necessary. There are downsides. In addition to the cost to the public purse, which we cannot ignore because no other democratically elected Government spends this amount of public money on funding litigation and legal advice, if we have a litigious society it imposes costs on all other branches of our life. That is an essential background that we cannot forget as we consider these amendments.
We have applied other tests, but the whole point of having legal aid—and the reason why we are keeping a legal aid system that will still be the most generous in the world even when we have cut it back a bit—is to deal with the needs of justice and those who are vulnerable in society. The other principle that applies is the need to focus taxpayer funding on the most serious and important cases that genuinely require specialist legal advice. Our principled stance is that legal aid should routinely be available in cases where people’s life and liberty are at stake, where they are at risk of serious physical harm or immediate loss of their home, or where their children may be taken into care. It should not routinely be available where other funding is available, where litigants can present their own case, or where the taxpayer is at risk of paying for litigation that any person paying from their own pocket would not finance and participate in. That is the basis on which we look at all the amendments that have come from the other place.
I am grateful to the other place for the time and the detailed debate and scrutiny it has dedicated to the Bill, genuinely improving it in places. I went and listened to parts of the debates myself and I have great faith in the power of the other place to revise a Bill without altering it fundamentally. Wherever possible I have sought to incorporate my noble Friends’ amendments or intentions, and as a result of the scrutiny of both Houses the overall package has moved very significantly from our initial position when we introduced the Bill, and it is all the better for it. Before people press me to agree to more than we are proposing to agree to in this important group of amendments perhaps I should remind the House of the changes we have made since we started this whole process quite a long time ago. They include removing the power to means-test suspects receiving advice and assistance at the police station, adopting the Association of Chief Police Officers’ definition of domestic violence and extending the time limit and range of evidence accepted when it comes to accessing the domestic violence gateway. We agreed to that a long time ago. People got very excited about the ACPO amendment so we gave them that, and then a whole list of fresh demands were immediately made by the Law Society and other groups that have lobbied us. I shall address those issues in a few moments.
Other changes include retaining legal aid for cases involving human trafficking and domestic child abduction—another concession; ensuring that funding covers special educational needs for 16 to 24-year-olds; and putting it beyond doubt that we are retaining legal aid for parents to bring clinical negligence cases in the most serious and complex neurological injury negligence cases for small children, which we always intended to do. Beyond the legislation, we announced at the Budget a further £20 million to go to the not-for-profit sector in each of the next two financial years.
How do the further Lords amendments in the group measure up against the principles I have outlined? I regret that the broad thrust of some of them is still to be rather free with taxpayers’ money. In our opinion, they certainly go way beyond ensuring that the Bill is focusing funding on high priorities.
Tony Lloyd (Manchester Central) (Lab)
The Secretary of State made great play of the ACPO definition of domestic violence, but if the test is about protecting the vulnerable I must say that the definition is very legalistic. The experience of lots of women—the 230 women who leave home every week because of violence—is not always packaged in the way allowed for in the proposed legislation. Does he accept that many women will fall outside the definition and will not be able to get legal aid?
Mr Clarke
Let me begin with the domestic violence gateway. The ACPO definition is what the Labour Front-Bench team was originally concentrating on. We have to have a definition because we are talking about qualifying for the public funding of legal aid in certain cases. We have moved a lot on domestic violence and we are moving again in response to the Lords’ debate, as I shall explain in a moment. First, though, let me make it clear, because I do not think it has always been clear to people in either House, exactly what we are talking about. It was never in doubt that there would be legal aid for the protection of victims of domestic violence. Domestic violence is an issue that this Government, like any Government, including the previous one, take extremely seriously. As now, it was always intended that legal aid would remain available for victims of domestic violence who were trying, for example, to obtain protective injunctions to defend themselves in such cases. In domestic violence cases there is no means test so even the super-rich can obtain legal aid if they are seeking an injunction for reasons of domestic violence, although I hope that not too many of them will.
We are doing quite a lot of other things. The Home Office is for the first time providing more than £28 million of stable funding until 2015 for specialist local domestic and sexual violence support services, and £900,000 each year to support national domestic violence helplines and a stalking helpline. Our Department is now contributing towards the funding of independent advisers attached to specialist domestic violence courts. We are giving a total of £9 million for that purpose up to the end of 2012-13. We are allocating £3 million a year to 65 rape crisis centres and opening new ones. Domestic violence protection orders are being piloted in three police force areas. We have announced a one-year pilot which will take place from this summer to test out a domestic violence disclosure scheme, known as Clare’s law.
I mention those things so that we can have a debate which, with great respect to their lordships, is not on the same basis as the part of the Lords debate that I listened to—that people did not realise the seriousness of domestic violence as a social issue in our society. We all do. The Bill never challenged that. It is all part of a pattern of services being provided by this Government, through which we think we are strengthening the support for victims of domestic violence.
What we are discussing here is the special provision that we are also making to provide legal aid to people who have been recent victims of domestic violence, so that when they are dealing with their abuser in court on other issues—ownership of the former matrimonial home, maintenance, access to property—they have access to legal aid. In such cases, particularly the private family law cases and the children’s cases, we are trying to shift away from so much adversarial litigation. Having lawyers on both sides arguing about custody and access to children does not always lighten the tensions or resolve the dispute, as most Members of Parliament are only too well aware from their constituency surgeries, so we are moving towards mediation, which is cheaper. That is why some of the lobbyists do not like it, with the result that in cases where it does not work, they are arguing for legal aid to continue to be available.
We have conceded the case that after a recent episode of domestic violence, the victim on her own may not want to deal, even through mediation, with her abuser. How do we define domestic violence for that purpose? That is an important but secondary purpose, as the case will not be about domestic violence. In such a case, what definition of domestic violence should be used for the person to qualify for legal aid? That is what the argument about the definition in both Houses has been about all the way through.
Kate Green (Stretford and Urmston) (Lab)
The Lord Chancellor mentioned that it will still be possible to obtain legal aid to get an injunction when there is domestic violence. Will this not be a cost-accumulating measure, as women will first go to get an injunction in order to have evidence to be legally aided for the case of domestic violence?
Mr Clarke
Such women will not get an injunction if it turns out that there is no reasonable ground for giving it and they are not in imminent fear of domestic violence. We will give them legal aid because we think it is important that these issues are tested in cases where legal advice is available. If women do not get the injunction, they will not get the legal aid later.
Mr Llwyd
What is being missed here is that the evidential gateway is being closed down. I am not saying that the right hon. and learned Gentleman wants to deprive every person of assistance in a domestic violence situation. I would never allege that; I know him to be a better person than that. What I am saying is that 46% of those who would be eligible will no longer be eligible under these so-called reforms, according to recent reports from Rights of Women and Welsh Women’s Aid. People who would genuinely qualify will no longer qualify, and that is the issue that we are now discussing.
Mr Clarke
I refute the idea that people will be given an injunction at some hearing in order to enable them to get legal aid, but people might apply. If the evidentiary tests are made too lax, there will be a tendency to fabricate claims or to bring in claims that are old and irrelevant, because it is worth thousands of pounds to the lawyer advising that person if legal aid is granted on that basis.
Far from trying to narrow the scope, let me remind the right hon. Gentleman and others where we have got to and where we are going this evening, by the time we have finished. We have a clear, wide definition trying to catch the variety of circumstances that will evidence recent domestic violence so that the argument that the victim should not have to face her abuser without having legal representation can be countered. But we do not want to shift the vast majority of private family law cases away from mediation into publicly funded adversarial litigation.
Helen Jones (Warrington North) (Lab)
Does the Lord Chancellor not accept that the legalistic approach that he is adopting ignores the reality of domestic violence, which is that many women do not report it, sometimes for years on end, and do not go to court to get injunctions, or if they do, are often persuaded to withdraw the proceedings before they come to a conclusion? It is only when the whole situation explodes and they leave the home that the reality of that domestic violence is noted.
Mr Clarke
But women will get legal aid for seeking the injunction. The hon. Lady is falling into what has happened throughout these debates. The definition that we are talking about as the gateway to legal aid for all other private family law cases goes far beyond injunctions.
If I may move on, I will remind hon. Members how far we have gone since we started the Bill—far beyond where the Opposition were first urging us to go—and we will go further in response to the debate in the House of Lords. The first issue is reflected in Lords amendment 192—whether or not we should use the definition used by the Association of Chief Police Officers, which we resisted in this House. The Government’s intent is to have a broad and inclusive definition and one that commands widespread agreement. To cut all the pressure, we are happy to support the spirit of the amendment and we are therefore adopting the ACPO definition. I half suspect that if we had offered that when the Bill was in the House of Commons—it was my mistake that we did not—we would have closed the discussion down in the House because that is what everybody was then pressing for.
In their amendment their lordships in their wisdom add words which are not in the ACPO definition. That rather goes against the arguments that have been put forward for one, single, cross-Government definition of domestic violence. We have therefore tabled further Government amendments in lieu of Lords amendment 192 which would define domestic violence in the same way as the ACPO definition as
“any incident of threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other.”
We think this should satisfy the concerns that have been expressed in both Houses on this point, so I shall ask the House to agree to this Government amendment in lieu of Lords amendment 192.
Amendments 194 and 196 concern the accepted forms of evidence of domestic violence. I have already said that when litigation is about domestic violence, the victims will always have legal aid. The issue is one of balance. Lords amendment 194, led by the learned Baroness Scotland and supported by a number of her colleagues in the other place, has prompted us to look again at other kinds of objective evidence to ensure that the test is as widely drawn as possible.
I have discussed that with colleagues in the House, and I am grateful to the colleagues with whom I had meetings, particularly to my hon. Friend the Member for Maidstone and The Weald (Mrs Grant), who is in her place, for advice on the subject because she knows far more about family law than I do, as I have never practised in this field, and in particular for making the point that we need to take care that the range of evidence does not force victims to take formal court action where it may not be suitable in individual circumstances. We do not want to force people to go to court who would not otherwise do so.
Therefore, in response to this House and the debate in the other House, we intend to accept as evidence—we will reflect this in regulations—the following matters: an undertaking given to a court by the other party in lieu of a protective order or injunction against that party for the protection of the applicant, where there is no equivalent undertaking given by the applicant; a police caution for a domestic violence offence by the other party against the applicant; appropriate evidence of admission to a domestic violence refuge; appropriate evidence from a social services department confirming provision of services to the victim in relation to alleged domestic violence; and appropriate evidence from GPs or other medical professionals.
We are prepared to accept those matters and ask the House to accept them this evening. They are in addition to those forms of evidence that the Government already accepted in our earlier debates. Those are: that a non-molestation order, occupation order, forced marriage protection order or other protective injunction against the other party for the protection of the applicant is either in place or has been made in the previous 12 months; that a criminal conviction for a domestic violence offence by the other party against the applicant is still in place; that there are ongoing criminal proceedings for a domestic violence offence by the other party against the applicant; that there is evidence from a multi-agency risk assessment conference of the applicant having been referred as being at risk of domestic violence from the other party and action has been recommended; and that there is a finding of fact by the courts of domestic violence by the other party against the applicant.
For the best part of 12 months we have reviewed this rather narrow point in one piece of litigation, and that is a fairly formidable list of things we are prepared to accept as evidence of domestic violence. If their lordships consult the people who have been sending them all the e-mails for the past few weeks, I am sure that they will be able to add to the list, as will Members of this House, but if we are not careful we will forget what the objective is: we want more of these cases not to be conducted by lawyers, financed by the taxpayer, who are engaged in adversarial litigation about where the children will live, what maintenance should be paid by one party or the other or what share of the matrimonial home should be owned by one party or the other. The Government have responded pretty generously because of our concern about domestic violence and, as I have already indicated, in key areas we have moved beyond where we were. This evening we have to insist that that is where it will end.
I should also point out that, on the time limits, where I do not think any history of domestic violence can be remembered and invoked, it is a question of ensuring that victims of recent or ongoing violence are protected, drawing a line so that Government regulations do not result in a permanent opening of access to legal aid. We will double the time limit we originally proposed from 12 months to two years, except in respect of a conviction for a domestic violence offence, where the only limit is that the conviction should not be a spent one.
Having moved on all those issues, the Government do not agree that the evidential requirements for those cases should be set out on the face of the Bill; the evidence I have described will instead be set out in regulations. The benefit is that that will allow greater flexibility to amend the scheme if required in the light of experience. If we set it all out in primary legislation, we would find that we had set things in stone for our successors.
Mr Llwyd
Can the Secretary of State assist us by telling us how the list he read out, which I must say is welcome, differs from Lords amendment 194, because they seem almost identical? Is he saying that, rather than putting them on the face of the Bill, they will be set out in cast-iron regulations?
Mr Clarke
I think that I am right in saying that what their lordships tried to do was put one form of definition used by the UK Border Agency on the face of the Bill. That is far too wide, and it is for a different purpose—[Interruption.] Well, that is an indication of the sorts of things it will take as evidence; it is not a qualification for anything. We need something that is the basis for making a clear decision on whether or not people are eligible for money, and we have opted for ACPO-plus. The other difference, as I have said, is that we do not think that we should spell it out and draft each of these forms—I of course bind myself by the words I read out earlier, which are what we are committed to. The advantage of regulating along the lines that the Government are committed to is that, if in the light of experience there is some mistake, it is much easier to make a change. It is always a mistake to fix everything in too much detail in primary legislation, because a future Minister or Government might have to try to find the parliamentary time to make the necessary changes to improve it.
Glenda Jackson
I, too, welcome the list that the Lord Chancellor read out with regard to domestic violence. Looking at my constituency, I am concerned about where those women will go to obtain that advice, because we are seeing reductions in the services currently provided by citizens advice bureaux and law centres, for example, as a result of the changes to legal aid. There is a gap between the one who suffers the harm and the obtaining of the advice.
Mr Clarke
People can approach their solicitors for advice on family law, as they do now. In an increasing proportion of cases, through the services offered to them, they will be put in touch with the mediation service, with or without the assistance of their lawyers—that is a matter for them—and the case will be mediated rather than both sides being represented in an adversarial manner. That works successfully where it has been introduced and we think it should be extended much further.
Lords amendment 168 seeks to bring the majority of welfare benefits matters into the scope of legal aid funding. Lords amendment 169, along with Lords amendment 240 and amendment (i), tabled by my right hon. Friend the Member for Carshalton and Wallington (Tom Brake) to our amendments in lieu, would have similar effects, so I will discuss them together shortly.
The first point to make about Lords amendment 168 is a financial one. Even bringing advice and assistance into scope for reviews and appeals concerning all welfare benefits, which is the intention behind the amendments, could cost as much as £25 million, and we cannot afford provision in an area of relatively low priority. As I said, we will ask the House to disagree with Lords amendment 168, and we will ask the Reasons Committee to ascribe financial privilege as the reason for doing so. In particular, this is because, in line with the principles I have set out, welfare benefits matters should not generally require specialist legal advice.
Before discussing the other issues, let us consider legal aid for advice on welfare benefits. Every Member sitting in the Chamber is used to giving advice on social security benefits, because we do it all the time, and there are other voluntary bodies that give advice, but we do not get legal aid. I suspect that in an ordinary case, where there is no issue of law and it is a matter of fact, because of the huge complexity of social security regulations, the advice given by MPs and some members of their staff can be superior to that which is available from a large number of general family solicitors, but those solicitors get legal aid. No one else gets legal aid. Legal aid should be for those cases where legal advice and expertise are required, and it should be financed by the taxpayer on legitimate grounds.
Stephen Timms (East Ham) (Lab)
In cases, of which there are many, where people seek advice from citizens advice bureaux to help them prepare a review or an initial appeal, is it not in everybody’s interests, including the Government’s, that they should be able to get some advice before going forward with their review request?
Mr Clarke
I value citizens advice bureaux as highly as the right hon. Gentleman, and ever since the Bill was introduced we have said that we will come forward with proposals to improve the support given by the Treasury. As I have said, at the time of the Budget there was an announcement, which was not much noticed at the time, of £20 million a year to be made available for voluntary advice.
For most citizens advice bureaux, legal aid is not the biggest source of their funding, and some do not get any legal aid funding at all. Their advice is very valuable general advice to people with a combination of debt, housing and every other problem; it is not specifically legal advice in most cases. Our Department is not the biggest Department that contributes to such bureaux; the Department for Business, Innovation and Skills has the biggest budget, for debt advice and other forms, and I think that it has ring-fenced its budget and still provides funding.
Most citizens advice bureaux have lost a lot of money because local government funding has been cut quite severely, and the Government are producing money from the Treasury to compensate in part for that, so we—not my Department; the Cabinet Office—are now distributing that £20 million to ensure that such valuable general advice is still available. What we cannot do is start inventing legal aid scope, or fail to narrow legal aid scope, as a roundabout way of maintaining funding for citizens advice bureaux, many of which do not receive legal aid funding now—giving them funding that is spent on general advice as much as on legal advice. Of course, the more we extend the scope to help the citizens advice bureaux, which are busy lobbying the House, the more we also help professional lawyers, who also qualify for all the legal aid scope that we are happily enlarging.
Yvonne Fovargue
The citizens advice bureaux that are so busy lobbying are actually lobbying on behalf of their clients. Some 77% of the funding being removed from the scope of legal aid is going not from solicitors’ firms, but from citizens advice bureaux and law centres—and from specialist legal advice. The Legal Services Commission will not provide the money, which I remind the Secretary of State is £160 for a legal aid case at the early stage of a welfare and benefits case, but it prevents the case from becoming much more expensive later.
Mr Clarke
The hon. Lady’s experience of citizens advice bureaux greatly exceeds my own, but I am pretty certain that fewer than half of such bureaux receive any legal aid funding at all. I have not sought to deny the financial problems of citizens advice bureaux, but we cannot solve them by being so generous in scope with legal aid when the issues involved in most welfare cases are not legal problems. What people require in these difficult times is general advice on a general combination of problems from which they suffer.
Tom Brake (Carshalton and Wallington) (LD)
On points of law, I welcome the concession in relation to upper tribunals and welfare benefits, but can the Justice Secretary confirm that the Government intend to ensure that all cases in which points of law are in contention, whether in the upper or lower tribunals, are funded through legal aid? If that is his intention, what will he put in place, either in the Bill or in some other way, to ensure that it happens?
Mr Clarke
My right hon. Friend anticipates the concession that I was going to explain; it is in the documents before us, and he has spotted it. Legal aid issues are usually, as everybody knows, about the factual basis of the claim or the proper application of this country’s extremely convoluted social security regulations, which I hope the current Government’s reforms, when we eventually get to a universal benefit, will greatly simplify, but most such issues are not legal. We have a tribunal system that was deliberately designed so that ordinary citizens might access it and argue their case, and when we invented all those tribunals, we went out of our way to say, “They are not courts and you don’t require lawyers, as these are places where people will argue,” but, as my right hon. Friend says, sometimes legal issues are raised in them.
The Government, in response to these debates, have tabled an amendment, which is a concession. It is Government amendment (a) in lieu of Lords amendments 169 and 240, and it would make legal aid and assistance available for welfare benefits appeals on a point of law in the upper tribunal, the Court of Appeal and the Supreme Court. It would also include funding for applications for permission made to the upper tribunal, and it would also make legal representation available for welfare benefits appeals to the Court of Appeal and to the Supreme Court.
Most surprisingly, that Government amendment in lieu was put forward in response to the argument. We did not wish to argue that in such cases, when the whole thing is a point of law, the applicant himself or herself should be expected to represent themselves without legal assistance, so we have tried to define those cases in which legal advice should certainly be available.
My right hon. Friend’s amendment, on the face of it, goes back to the whole of business of whether we should apply legal aid for legal advice in every welfare claim, but the question that concerns him most is, “What about the ones that involve legal issues?”, and I can conceive of cases in the lower tribunals in which what is raised really is a point of law. He wants me to find some equivalent to the upper tribunal, asking, “Is there some situation in which somebody, preferably the tribunal judge, certifies that there is a point of law involved where legal aid should be available?” We do not have such a situation at the moment, and we will have to try to devise one, as there is no system for it: just as we have accepted the argument about legal issues in the upper tribunal, we could of course do so if the same thing arises in the lower.
We will go away and work on the matter. We already have discussions under way with the Department for Work and Pensions, whose help we will also require, to see whether we could have some equivalent—whereby somebody other than the claimant or their lawyer certifies that a point of law is involved—and provide legal aid. I suspect that at this stage of the Bill’s passage through Parliament it is far too late to start introducing primary legislation in the House of Lords, but we have retained for ourselves powers to amend the scoping through regulation, so if we could solve the problem, we could bring something forward through statutory instruments. We are quite open to the argument for ensuring that we have legal representation when there is a legal issue that we cannot expect a lay person ordinarily to argue.
Mr Llwyd
I follow the right hon. and learned Gentleman’s logic on that, but surely if the point of law is a good one in the upper tribunal and all the way up to the Supreme Court, it is equally good in the first tier, but if the case is unrepresented in the first tier, it is not going to go anywhere else.
Mr Clarke
I should like to see whether we can devise, with the help of the DWP, my right hon. Friend the Member for Carshalton and Wallington and anybody else, a system whereby we identify in the lower tribunal such issues that involve a legal issue. We think that the number is comparatively small, because it is not the business of lower tribunals normally to find themselves arguing points of law, as they normally argue points of fact and of regulatory interpretation, but we will work on the matter, and if we can devise such a system, we undertake to respond as my right hon. Friend asks me to.
Simon Hughes
The Secretary of State is being very helpful, and my constituents are absolutely not bothered whether this is a primary or secondary legislation matter, as they just want to know that they will have the support that he talks about. May I, however, clarify two things? Will any such measure apply to a matter of law and to judicial review when there is a proper matter of law—and, in those cases, not just to social security but throughout the tribunals service? When the agency turns down somebody’s application and that person wins their appeal to the tribunal, there absolutely has to be a parity of arms at a further stage of appeal if the state appeals again. The applicant is there not because they want to be there, but because the state or the agency has sent them there.
Mr Clarke
On the right hon. Gentleman’s first point, I can assure him that we are continuing legal aid in all cases involving judicial review, so legal aid is available to someone who is trying to have a welfare decision judicially reviewed. That applies to every kind of judicial review, because we do not think that the Government or a public body should be resisting a claim about abuse of their powers from a litigant who cannot get legal advice. This is not an easy concession to make, because quite a lot of people who seek judicial review are not instantly popular with all sections of society, but we still give them legal aid.
On the other matter involving situations in which the state is busily arguing against a successful appellant that some kind of law is involved, I will add that to the list of things that we are studying with the DWP to try to identify whether, in cases where the state thinks that it is worth arguing about the interpretation of something, the litigant should be able to do so as well.
Mr Robert Buckland (South Swindon) (Con)
I am listening to my right hon. and learned Friend’s arguments with great care, but I am still puzzled about the unavoidable problem of the ability to work out what is a legal issue as opposed to a merely factual one. Fact management and legal issues often come hand in hand, and they are often best handled by a lawyer. I worry that we are making an artificial distinction, and that if, as he is suggesting, we are to rethink a number of issues raised by Members of the House, we should rethink this one too.
Mr Clarke
Of course there can be borderline cases, but, with great respect to my hon. Friend, in the vast majority of cases it is fairly obvious whether one is arguing a point of fact or a point of law. In an ordinary welfare case, the question will be whether someone is fit for work or not fit for work, or living or not living at a particular address. When a point of law arises whereby it is not a question of the complexity of the regulations but of the actual meaning of the regulations, somebody like a tribunal judge will know that instantly and think, “That is quite an interesting point of law that I’ve not had before; this will go to the upper tribunal and I will certify that it would be rather nice to have some guidance.” In the end, we have to leave it to tribunals themselves to decide on the facts. Some may be blurred, but by and large, in the vast majority of cases, they will be reasonably clear.
Andrew George
Further to the points made by my right hon. Friend the Member for Carshalton and Wallington (Tom Brake), does the scope of the Secretary of State’s amendment exclude lower-tier tribunals, or can it be interpreted in such a manner that lower-tier tribunal appeals that are brought forward on the basis of evidence relating to a matter of law and then taken to an upper-tier tribunal might be included without the need for further regulations?
Mr Clarke
I have obviously failed to make myself completely clear, so I will try again. As it stands, the Government’s amendment in lieu applies only to upper tribunals. The right hon. Member for Carshalton and Wallington and others argue that something similar should be available in lower tribunals and in other cases. I have undertaken to explore whether we can find an alternative method of identifying those limited numbers of cases and getting them certified when they involve a legal principle. As the matter has been raised at this stage of the debate, we have to fall back on saying that we would use our regulation-making powers through a statutory instrument, because we could not possibly draft primary legislation to cover it in the few days that we have left.
Tim Farron (Westmorland and Lonsdale) (LD)
Before the Secretary of State moves on, may I ask him to give us a time scale?
Mr Clarke
The amendment was tabled only at 6 o’clock yesterday evening, so we have moved quite quickly to get to where we are now. I suspect that the relevant officials at the DWP have not yet even been involved in discussing this. I cannot give a time scale, but we will move as rapidly as possible.
Glenda Jackson
The Lord Chancellor referred to a majority of cases. Citizens Advice says that the proportion of appeals that are upheld in work capability assessment cases, for example, rises from 40% to 90% when a legal adviser is involved. I am not saying that it will necessarily be about a point of law, to pick up the point made by the hon. Member for South Swindon (Mr Buckland), but there are occasions when a legal mind can clarify the situation. I do not think that the Lord Chancellor understands who the people are who go to appeal. He said that in domestic violence cases, they go to a solicitor. None of my constituents in that situation has a solicitor; they go to the CAB or to a law centre, many of which, in my constituency, are in grave danger of having their ability to provide those services reduced—
Mr Clarke
The cases that the hon. Lady mentions do not depend on a lawyer. When the right hon. Member for Manchester, Gorton (Sir Gerald Kaufman) was sitting behind her in the previous debate, he said that in his experience as an MP, when one discusses the matter with somebody, one gets clarity on what the real point is and how they should present it. A general adviser can help to sort somebody out in going along to argue their case by telling them what is relevant and what is not and giving them some guidance on what they should get evidence of in order to pursue their claim. That is not the same as legal aid. That is why we are producing the money for Citizens Advice and other voluntary bodies to give general advice. It is no good claiming that it is all about legal aid. Some lawyers are better at this than others. Just a friend who is a good advocate can be adequate in marshalling a case that is being argued on appeal about a question of fact as to whether, say, somebody is able to go back to work.
Helen Goodman
It would help the House if the Secretary of State could tell us what he means by a point of law. Does he mean that it is a disagreement about the proper interpretation of the rules, or does he accept that it might be about whether the rules have been properly interpreted, which is not a dispute about facts?
Mr Clarke
It would be reckless of me to try off the cuff to make a tight definition of a point of law. It is about a situation where a particular question arises out of the interpretation of a regulation and there is no clear and binding precedent for exactly what the law should be when it comes to applying it to the set of facts involved, and it is then up to the tribunal judge to decide. Following the concessions that I have introduced about upper tribunal and Court of Appeal cases, the judge will certify that a point of law is involved in a case because he thinks that it is one in which the guidance of the upper tribunal or the Court of Appeal is required on what exactly the law will say that it means. That is what is meant by a point of law. We have made considerable concessions. No one is arguing about the vulnerability of groups of people who are arguing about their welfare benefits. The Bill is about how much money the taxpayer pays to how many lawyers. We are trying to concentrate on spending that money on paying lawyers for cases in which a lawyer is required to sort out a welfare benefit dispute. That is the basis on which our amendments were produced.
Let me turn finally, and as briefly as I can, to clinical negligence and legal services for children. That has been debated throughout the passage of the Bill in this House and in another place. We have listened carefully to the concerns that have been raised about the impacts of these reforms on children. I can again assure the House that the provisions in the Bill will safeguard the vast majority of the spend on cases involving children, because we have covered all the most serious cases of clinical negligence—about 96%.
I remind people that the underlying problem in the tricky area of clinical negligence cases is that all the money that we spend on compensation, legal advice, expert witnesses and so on comes out of the budget of the national health service. That now takes up a proportion of the NHS budget of a kind that I would never have contemplated all those years ago when I was a Health Minister struggling with what I thought were difficult budgets. The more one allows to be taken out of the budget for lawyers and expert witnesses in claims for compensation, the more one cannot ignore the impact that that is having on what is available for patient spend. There is no doubt that this has been a bit of a growth industry in recent years, particularly since the changes to the no win, no fee arrangements about 10 years ago. There has been an increase of 50% or so in the number of claims in the past five or six years. The last annual report of the NHS Litigation Authority estimated that the unfunded liabilities for clinical negligence claims totalled £16.8 billion, which is a cool doubling of the figure since 2006.
The bills paid to the lawyers of criminal negligence claimants more than doubled from £83 million in 2006-07 to £195 million in 2010-11. The damages paid to claimants have gone up somewhat more slowly, but the lawyers’ bills have increased substantially. One reason for that is that the fees paid to and costs incurred by the lawyers and expert witnesses acting for the plaintiffs are about three or four times as much as the Litigation Authority, as the defendant, pays for its lawyers and expert witnesses. The costs and the claims are rising exponentially. Although this is an area that we should approach with care, the clinical negligence industry has been doing well over recent years, and that has been funded entirely by budgets that would otherwise be available for patient care.
Having given that somewhat stark background, I will turn to Lords amendment 171, which seeks to bring all such cases back into the scope of legal aid when a child is a party. In our opinion, that would be unnecessary and wasteful. As I have said, under our plans, the overwhelming majority of the existing support for children will continue. For the record, that includes child protection cases, civil cases concerning the abuse of a child, special educational needs cases, and legal aid for children who are made parties to private family proceedings.
In addition, we have made funding available in the final set of amendments under consideration in this group for cases of clinical negligence involving claims for babies who suffer brain injury at or around the point of birth. I state categorically that as a result of the Government’s Lords amendment 216, any baby who, through clinical negligence, suffers brain damage during childbirth, resulting in severe disability, will receive legal aid. The amendment provides legal aid for clinical negligence claims for babies who suffer brain injury during pregnancy, at birth or in the immediate post-natal period, leading to a lifetime of care needs. I also make it clear that if a baby were to be injured in an operation, say at six months, legal aid would be available through the exceptional funding scheme, where necessary, to ensure the protection of the individual’s right to legal aid under the European convention on human rights.
When we introduced the Bill, we believed that we had covered all those cases through the exceptional funding scheme. Doubts were expressed continually in this House and in another place about that, so we now have this set of amendments to put it beyond doubt in the Bill.
By contrast, we cannot support Lords amendment 172, as I have said. That amendment would provide public funding for the remaining minority of medical negligence claims with child claimants, despite the fact that many of them are relatively simple, do not involve lengthy and detailed investigations of the kind that we are trying to catch in Lords amendment 216, and are suitable for funding through a conditional fee agreement in exactly the same way as for adults. In line with the principles that underpin the Bill, the state should not fund cases that can be provided for by alternative means.
Bill Esterson (Sefton Central) (Lab)
The Justice Secretary has moved on from Lords amendment 171. I am concerned about children in care and care leavers, who are among the most vulnerable children in our society and whose life chances are badly affected by their situation. There is a grave risk that children in care and care leavers will be massively over-represented in the relatively small number of people who will be excluded under the Government’s proposals. If that happens, it will seriously affect the life chances of a group of children who are already very vulnerable and who often do not have adults to advocate for them.
Mr Clarke
Babies, yes, although exceptional funding rules will apply to other serious cases involving children. Under the European convention on human rights, one must plainly provide someone with access to funding to have a fair resolution of a dispute. We therefore think that we are covering most cases. The amendments that I am suggesting that the House should disagree with cover all kinds of routine cases. They state that simply because a person is under a particular age, they should get legal aid in cases for which an adult would not receive it.
Mr Clarke
Let me move on, because I am giving way far too much and taking a great deal of time.
Lords amendment 170 sounds like an innocuous measure, but it would open up legal aid to cover the costs of expert reports in all the cases that currently are funded by CFAs or no win, no fee arrangements. It would allow lawyers to apply for legal aid to cover the expert report in any case where a client, of any age, was financially eligible, and to still get their success fee in respect of their other legal costs. That would transfer all the risk in a no win, no fee case from the solicitors and insurers to the legal aid fund and the taxpayer. That would be unfair to the taxpayer and would result in a significant expansion of the legal aid scheme.
I have covered with as much care as I can these particularly sensitive areas—
John McDonnell
I would not have sought to intervene if I had not been here from the beginning of the debate. I have been here the whole time.
I want to get clarity on one point in relation to children. The Children’s Society and the Refugee Children’s Consortium estimate that there are about 2,500 under-18s who will not gain support in relation to immigration matters. My borough deals with more unaccompanied child immigrants than any other in the country. When this matter was raised before, the Secretary of State said that those are uncomplicated cases and that such children can receive advice elsewhere. That has been interpreted as meaning that social workers are able to give that advice. However, social workers are not registered in that way under existing legislation, so there is a conflict between the proposals and the existing legislation that needs to be resolved; otherwise local authorities will be in not only financial difficulties but legal difficulties.
Mr Clarke
No, not all of them, but the vast majority. Once such a case becomes an application for asylum, legal aid is available. I am surprised by the figures that have been given for the cases that do not eventually wind up getting legal aid in that way. The problems posed by such cases, when a child gets off an aeroplane unescorted, go far beyond the legal ones. The Home Office is discussing with local authorities how to improve the response to such children. However, I am not satisfied that that category of children can be given access to legal aid for other claims of a legal kind, which I cannot visualise straight away, that might arise. The vast majority of those cases quickly turn into asylum applications and will therefore get legal aid.
I hope that the House is persuaded that the Government have taken a consistent and principled approach to reforming the scope of legal aid. No one looks to touch this area of the justice system lightly, but change is unavoidable if we are to protect access to justice and ensure that the system is affordable. On domestic violence, children, clinical negligence and welfare benefits we have sought to ensure that scarce resources are targeted where they matter most and where alternative funding or representation are unavailable. It is not easy to get that balance right. In the light of the principles that I set out at the start of my speech, I think that we have got the balance about right with the amendments that we have accepted and those that we oppose.
I believe the Government have been particularly responsive on all the issues. We knew perfectly well that when cutting back on this country’s legal aid expenditure, we ran the risk of damaging our system of justice if we got it wrong. We have made the countless moves that I have listed since we first produced the Bill however many months ago, in response to debate in both Houses. I am grateful to the Commons and the Lords for what they have done, and I hope that I have eventually put forward clearly the Government’s thoughts on the Lords amendments and on our amendments in lieu. I commend our position to the House.
1980 Hague Convention on Child Abduction
Lord Clarke of Nottingham Excerpts(12 years, 2 months ago)
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The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)
The Government have decided to opt in to the European Commission’s proposals for the acceptance by the member states, in the interests of the EU, of the accession of Albania, Andorra, Armenia, Gabon, Morocco, the Russian Federation, Seychelles and Singapore to the 1980 Hague convention on the civil aspects of international child abduction.
All EU member states are party to the successful 1980 Hague convention which is the primary civil law international instrument that provides a mechanism to seek the prompt return of wrongfully removed or retained children to their country of habitual residence. When a country wishes to accede to the convention it is necessary for an existing contracting state to accept that country’s accession before the convention can apply between them. It is the European Commission’s view that there is exclusive competence on the EU for all matters relating to the 1980 convention and that therefore member states must now be authorised by the EU to accept accessions by third countries and must do so collectively through Council decisions.
Although not anticipated in the proposals, the Government believe that the UK opt in under the protocol to title V of the treaty on the functioning of the European Union applies and it has therefore asserted its right to choose whether to opt in and has decided it is in the UK’s best interests to do so.
The Government have taken this decision notwithstanding the fact that it disputes the Commission’s claim to exclusive competence and it is still determining whether each of the countries seeking to accede to the convention will be able to operate the convention effectively.
The Government believe that the wider significance of these proposals for external competence mean that it is in the UK’s interests to participate fully in these negotiations, including having the ability to vote. These proposals must be agreed by unanimity within the Council.