Legal Aid

Lord Faulks Excerpts

Thursday 11th July 2013 Lords Chamber

[Lord Faulks]

My Lords, I begin by congratulating the noble Baroness, Lady Deech, on securing this debate on these recent and very controversial proposals. I declare an interest as a barrister regulated by the board she chairs. Although barristers are not naturally enthusiastic about regulation, the Bar Standards Board has won increasing respect from practitioners. I wish that I could say the same about the LSB, the super-regulator.

On 3 December 2012, I spoke in another debate initiated by the noble Baroness about what can be described only as the overregulation of the legal profession. I am glad to say that the Government have now announced that they have embarked on a wholesale review of legal service regulations following concerns over their complexity and the unnecessary burdens that they place on the sector. That debate clearly had some effect, and I hope that what is said today in your Lordships’ House will similarly cause the Government to think carefully.

I also declare an interest as a barrister who, while not often paid by legal aid, has experience of the way that the system works, has acted with legal aid and has sat as a recorder in the Crown Court. When proposals are born out of a need to save money, there is a significant risk that cuts will be made in rather a crude way and that the legal system as a whole will suffer long-term damage. These proposals have met with extraordinarily widespread criticism, much of it admittedly from interested parties. However, it seems to me—and I may be alone here in believing this, or almost alone—that there is some good sense at the heart of what the Government suggest in the introduction of PCT. Indeed, in March 2010, the previous Government produced a Green Paper that said, in relation to the restructuring and the delivery of the criminal defence services, among other things:

“Currently the criminal defence service is highly fragmented, with a large number of small suppliers and relatively few large suppliers … We believe that these market trends are not sustainable. Therefore we believe a future tendering process would ensure a more consolidated market, with a smaller number of more efficient suppliers, required to undertake the full range of the services we need”.

I therefore expect that the party opposite will applaud at least the concept that these proposals contain for the restructuring of legal services.

It is of course important that any restructuring does not result in a degradation of the quality of justice or its availability. I, like the noble Baroness, welcome the Secretary of State’s announcement that he will carry out a further consultation before finalising his plans. He has also said that he is looking again at the important question of choice of lawyer. I look forward to seeing precisely how he reflects this question of choice in any amended plans. I admit that I find it rather an elusive concept. Of course, it is desirable that anyone charged with an offence should be represented by lawyers in whom they have confidence. However, choice is unlikely to be an absolute matter. Indeed, I reject the suggestion that those charged with criminal offences are incapable of making informed choices. Some of them are quite experienced consumers. I can remember, on a couple of occasions when I was a young barrister, being introduced to a defendant by my instructing solicitor, to be met with the comment, “I do not want him”. That, I think, was an expression of freedom of choice in terms of representation.

Some of the personal attacks on the Lord Chancellor are highly regrettable. I also find the suggestion that lawyers in this area are overpaid and are, in effect, milking the system unfair and unsubstantiated. It is the habit of all Governments to publish rather misleading figures about earnings at the top end by practitioners in legal aid. These figures never tell the whole truth. The average earnings of a criminal practitioner are extremely modest. It is vital that we preserve the possibility of lawyers doing this important work. What is at stake is not just the standard of living of lawyers, which may be regarded by some as of secondary importance. It is much more important that we maintain the quality of justice for which this country rightly has an extremely high reputation.

Time does not permit me to examine the other proposals in detail. I can say, however, that the alarming increase in expenditure on legal aid by prisoners deserves careful examination. Some of this is explicable by the fallout from IPP sentences, abolished by this Government; I have considerable personal experience of the litigation arising from this. However, I understand that these cases, concerned with actual detention, will still receive legal aid. When it is for trivial disputes, I have some sympathy with the Government that they can properly be resolved by the alternative remedies. Similarly, judicial review, vital though the availability of this remedy is for constitutional reasons, does not mean that the availability of legal aid is not subject to some careful scrutiny. I found the evidence of the Lord Chancellor to the Justice Committee on this point persuasive.

I invite the Minister and others in the Ministry of Justice to look at the suggestions made by the Society of Conservative Lawyers for further savings in costs, which are not currently included in the proposals, in a recently published article on its website. I also ask the Government in due course to look at the inquiry that is to take place by the Joint Committee on Human Rights, of which I am a member, which is looking at the human rights elements in these proposed changes. I do not think that these changes warrant the wholesale condemnation that they have attracted. I ask the Secretary of State to proceed with very considerable caution. He needs to have preferably the profession and certainly the public with him on these changes if they are to be successful and preserve our system of justice.

British Bill of Rights

Lord Faulks Excerpts

Thursday 20th June 2013 Lords Chamber

[Lord Faulks]

My Lords, I begin by congratulating my noble friend Lord Lester of Herne Hill on securing this debate. I also congratulate him on his enormous contribution to the cause of human rights over the years. I should declare an interest as a member of the commission, though I came relatively late to the party, joining as a replacement for Michael Pinto-Duschinsky. On leaving the commission he expressed his views firmly and widely on where he thought the discussions had gone wrong. During my period at the commission there were certainly vigorous debates about a number of issues, as is apparent from the range of views expressed in the report. However, the process of arriving at our conclusions was a civilised one, made easier by the skilful chairmanship of Sir Leigh Lewis.

There was a majority view, as your Lordships have heard, in favour of the creation of a UK Bill of Rights that incorporates and builds on our obligations under the European Convention. That was the answer to the question contained in our terms of reference when the commission was set up by the Deputy Prime Minister. However, it seemed to at least two of us that the commission had not been asked to consider the key issue: namely, how the United Kingdom should respond to the judicially activist approach taken by the European Court of Human Rights in its interpretation and application of the convention in the past 30 years—in particular, whether the United Kingdom should consider withdrawal from the court’s jurisdiction, or at least renegotiate our terms of membership.

Jonathan Fisher QC and I were responsible for a paper entitled Unfinished Business, which is incorporated in volume 1 of the commission’s report. It reflects our views and, I venture to think, the views of others outside the commission. I respectfully suggest that those views are not restricted to what my noble friend described as the “Tea Party” tendency in the Conservative Party. I will not repeat now what we said but will make a few observations that arise from the commission’s report.

In talking of human rights, it is easy to approach matters at a level of abstraction. However, what does a human rights case actually look like at domestic level? Here I must declare a further interest as a practising barrister who, since the enactment of the Human Rights Act, has devoted a considerable amount of time to defending public authorities against claims arising directly or indirectly from the Act. Fascinating though these cases have been, I have been far from convinced that most of them have very much, if anything, to do with what people would once have meant by the expression “human rights”.

The courts in this country have, for the most part, strained to follow Strasbourg case law and its often rather creative interpretation of the convention. Supporters of the Human Rights Act tend to extol the wording of the convention, which contains a perfectly acceptable summary of human rights. However, as Jack Straw, former Home Secretary and Secretary of State for Justice, said in the debate on prisoner voting,

“the problem is not the plain text of the convention, but the way in which it has been over-interpreted to extend the jurisdiction of the European Court ... the problem has arisen because of the judicial activism of the Court in Strasbourg, which is widening its role not only beyond anything anticipated in the founding treaties but beyond anything anticipated by the subsequent active consent of all the state parties, including the UK”.—[Official Report, Commons, 10/2/11; cols. 501-02.]

In a way this was all very predictable. Lord Denning was a judge who was once highly regarded as a legal thinker. His judgments are cited much less often in the courts now. He wrote a great deal about the European convention. It was relied upon in courts before the Human Rights Act was enacted. He said in the case of Ahmed v Inner London Education Authority in 1978:

“The Convention is drafted in a style very different from the way we are used to in legislation. It contains wide general statements of principle. They are apt to lead to much difficulty in application; because they give rise to much uncertainty. They are not the sort of thing which we can easily digest. Article 8 is an example. It is so wide as to be incapable of practical application. So it is much better for us to stick to our own statutes and principles, and only look to the Convention for guidance in case of doubt”.

I suggest that there was much wisdom, indeed prescience, in what he said, albeit that his views are often dismissed as insular.

One aspect of the debate that has not sufficiently been emphasised is the extraordinary cost of human rights. Before I became a member of the commission, I asked a Written Question of the Minister as to whether the commission would be considering as part of its report questions of cost. The reply was that this was a matter for the commission. On arrival at the commission, it was apparent that the membership did not consider cost to be within its terms of reference. On 7 March 2013, I asked the Minister here in the Chamber to tell us whether the Government could give us any figures for how much human rights were costing us. His answer was that he could not do so. He described respect for human rights as being,

“a prize beyond cost”.—[Official Report, 7/3/13; col. 1614.]

All noble Lords value the protection of human rights, but, with great respect, that does not mean that the question of cost becomes a no-go area.

The LASPO Act made some widespread changes in the cost of litigation. Many were timely, in particular those that effectively implemented the Jackson reforms. I was somewhat less enthusiastic about the alterations to legal aid, which had the potential to deny representation to some with genuine claims and limited means. However, the Minister was reassuring as to the alternative and cheaper ways in which ordinary citizens could seek appropriate remedies. One exception to the cost-cutting exercise appeared to be cases involving the Human Rights Act. No figures were given to Parliament as to how much such cases were costing or would cost in the future. Were the Government concerned that denying legal aid to any claim involving the Human Rights Act would put them potentially in breach of Article 6 of the convention?

Claims involving the Human Rights Act continue, whether as claims for compensation or as the basis for judicial review. The sums awarded are often trivial. The cost, however, is not. The cost of the Abu Qatada litigation is said to be in excess of £1.7 million. It seems to be absolutely crucial that the Government should at least make some attempt to calculate what the HRA has cost in terms of legal fees generated by litigation. The cost does not end there. Public authorities have conscientiously attempted to ensure that their policies and practices are human rights-compliant. This is a very difficult exercise because it depends on trying to second-guess what view the Strasbourg Court, and thus our courts, will take of a particular situation. We need to know about these costs in an area that has much in common with our overreaction to the requirements of health and safety or even the Data Protection Act.

I have another substantial question for the Minister. I appreciate that he may have difficulty in answering some questions, in view of the well understood difference of opinion between the Liberal Democrat Party and Conservative Party in relation to the Human Rights Act, but I hope that he can answer this one. Do the Government agree that in leaving the ECHR, if that course were taken, we would also have to leave the European Union? This was the somewhat surprising view recently expressed by Judge Dean Spielmann, the president of the ECHR. My understanding of the position is that EU treaties do not provide that adherence to the European convention is a formal requirement of continued membership of the EU, even if membership may be regarded as a benchmark in terms of respect for human rights.

Such respect is something that unites us all, but if we were to leave the Strasbourg Court and indeed the Council of Europe, this respect for human rights would not diminish. Before the Act came into force, this country had a proud, albeit not unblemished, record for the protection of human rights through its domestic law. We are, of course, bound by a plethora of international obligations from which we would not be relieved were we to leave the Strasbourg court. Any noble Lords who wish to be reassured about our contribution to the protection of human rights and democracy all over the world should read the 2012 Foreign and Commonwealth Office report published in April this year. It is a remarkable tribute to the work of the FCO. If I highlight in particular its work in relation to sexual violence as a weapon of war, that does not in any way diminish the other aspects of its work.

The JCHR, of which I am a member, would still have important work to do even if the Act were to be repealed. The EHRC, set up pursuant to the Equality Act, would continue to have an important role. Above all, Parliament can legislate to protect human rights on a more targeted and nuanced basis, rather than having to perform somersaults to reflect actual or potential decisions made here or in Strasbourg.

The question is therefore not whether we should be protecting human rights but whether the Strasbourg court is the best or even the preferred method of defining or enforcing human rights standards. It is said by some that we would be a pariah state were we to cut our links with the Strasbourg court. The human rights records of some counties subject to the jurisdiction of the European Court suggest that membership is hardly a guarantee of the protection of human rights.

It is important not to demonise the Strasbourg court. It does not have the same regard for precedent, and the jurisprudence in this country, post human rights, can make difficult reading, as judges try to impose some sort of taxonomy—because of our courts’ respect for precedent—on a jurisprudence that lacks such respect. As my noble friend Lord Lester said, some of the decisions from Strasbourg have been profound and influential. However, if we were to leave the convention it would not mean that we would ignore such decisions any more than we would ignore influential decisions from elsewhere in the world.

My noble friend said that the European convention was the work of distinguished Conservative politicians and referred to Sir David Maxwell Fyfe as one of those responsible for its first draft. This is true but social historians, particularly having regard to his response to privacy and gay rights issues, tend to the view that it is most unlikely that he would have approved of the way the Human Rights Act developed and has been interpreted.

In conclusion, I remain passionately committed to the cause of human rights, but retain deep reservations about the Human Rights Act. Above all, I am concerned that human rights can get so easily lost in the law and the language of lawyers. Whereas law should be the servant of human rights, it has become their master.

Alternative Business Structures

Lord Faulks Excerpts

Wednesday 19th June 2013 Lords Chamber

[Lord McNally]

I do not think so. However, a lot of examples have sensibly been raised in the House today, some of them hearsay and some from direct experience, which suggest that what we intended to do in LASPO may not exactly be hitting the target, or that, as a result of organisational devices used by companies, the target has been moved. I can tell the House that we will talk to the regulators and look at some of these examples. If necessary, we will look at the powers that we were given under LASPO to make sure that we do what the House intended, which was to stop the practice of referral fees, particularly in the area of motor insurance.

[Lord Faulks]

My Lords, is the Minister regularly invited, as I am, to commit fraud, by which I mean that telephone calls are made by companies inviting one to sue for accidents that did not occur? Do the Government have any plans to deal with this, and are they aware that this is a frequent problem?

[Lord McNally]

I have not had direct experience of that particular problem, but within my family I have had direct experience of just how casually the law is treated in this area and how that has had a direct impact on the cost of motor insurance. Parliament tried to address part of this problem through the ban on referral fees, but there are many murky practices around this area and the House is right to raise these issues. I will return to the MoJ with the clear message ringing in my ears that we should poke a little further into these murky businesses.

Defamation Bill

Lord Faulks Excerpts

Tuesday 23rd April 2013 Lords Chamber

[Lord Faulks]

My Lords, perhaps I may deal first with government Amendment 2B. Initially, I was very sympathetic to the idea of restricting a company’s right to sue because of the instances of bullying, which are now well known. I have become slightly more troubled by the restriction which is to be imposed in what I hope will not be impolite to call something of a volte-face by the Government in this respect. I understand the reasoning behind it but I seek from the noble Lord, Lord McNally, reassurance about what a company must establish to show that it has been, or is likely to be, caused serious financial loss.

In the well known case of Jameel v Wall Street Journal in 2007, the House of Lords considered, among others, the Derbyshire case. In particular, in his leading speech Lord Bingham said that he was satisfied that it was appropriate for a company not necessarily to prove special damage but to establish that a publication had the tendency to damage. I shall quote from paragraph 26 of his judgment:

“First, the good name of a company, as that of an individual, is a thing of value. A damaging libel may lower its standing in the eyes of the public and even its own staff, make people less ready to deal with it, less willing or less proud to work for it. If this were not so, corporations would not go to the lengths they do to protect and burnish their corporate images. I find nothing repugnant in the notion that this is a value which the law should protect”.

He went on to say:

“I do not accept that a publication, if truly damaging to a corporation’s commercial reputation, will result in provable financial loss, since the more prompt and public a company’s issue of proceedings, and the more diligent its pursuit of a claim, the less the chance that financial loss will actually accrue”.

What concerns me a little is that a company that has genuinely been damaged in its reputation will often find it very difficult to surmount this hurdle which is inserted in the Bill when it is not easy to produce by reference to a balance sheet an exact equivocation between the damage to a reputation and the damage to a company. It may be much more subtle than that, yet there is genuine damage to a reputation. Therefore, I would welcome some clarification from the Minister about what a company may need to establish short of producing a balance sheet, nevertheless having some evidence of real damage to the company.

There is a problem with the alternative tort of malicious falsehood in that the offer of a mens rea defence is not available. Of course, malicious falsehood requires proof of malice and is a somewhat unsatisfactory hurdle where a defamation action is, on the face of it, more suitable.

As to the amendment suggested by the noble Baroness, Lady Hayter, concerning non-natural persons, I entirely agree with my noble friend Lord Lester. I can add that the courts are currently considering a number of cases where they are patrolling the border, as it were, of the Derbyshire principle and deciding whether, on particular facts, the ratio decidendi of Derbyshire should be applied to a public role or public function having been performed by a particular body. I suggest that it is much better for the law to evolve, as the Minister said, rather than to codify it in this way. Of course, at the moment the courts are generally considering the question of public function in the context of the Human Rights Act and whether the obligations under the convention apply. There are many hybrid cases which are going to make these cases very fact-sensitive, and that is an indication that we should avoid trying to codify.

I strongly oppose Amendment 2D proposed in Motion B2. The initial requirement of seeking the permission of the court is going to add to costs. Largely thanks to the helpful intervention of the CPR—I see the noble and learned Lord, Lord Woolf, in his place—the courts have the flexibility to intervene on questions of meaning. They can strike out the whole or part of a case. In any event, I suggest that there is sufficient flexibility to make this initial hurdle supererogatory. It will be expensive and I fear that it will not in fact achieve what I understand lies behind this amendment, and so I strongly oppose that.

[Lord Phillips of Sudbury]

My Lords, I shall talk briefly to Amendment 2B and, in so doing, I echo what has been said about my noble friend Lord McNally. I do not know about McNally’s Bill but I certainly knew a Bill McNally, who was one of the finest poachers in Suffolk.

I am not happy with Amendment 2C, in the name of the noble Baroness, Lady Hayter of Kentish Town, but I have a lot of time for her Amendment 2D, supported by the noble Lord, Lord May of Oxford. As was said by my noble friend, there seems to be considerable anxiety around the bullying of corporations, which seems to get worse as time goes by. Some of the largest and wickedest of them are some of the most brutal in the way that they will abuse the law to silence critics.

I want to raise with my noble friend Lord McNally a point on Amendment 2B because this is potentially a Pepper v Hart occasion, where he could say in the most trenchant terms that my concern is misplaced. The amendment enlarges on Clause 1 of the Bill, headed “Serious harm”. It says:

“For the purposes of this section, harm to the reputation of a body that trades for profit”.

I am not absolutely clear that the phrase,

“a body that trades for profit”,

is beyond ambiguity. I am thinking particularly of charities, some of which trade for profit in the mainstream of the work that they do—for example, some schools, some hospitals and gymnasia. There are many areas where charities carry on a trade, but it is a charitable trade and it is, in one obvious and simple sense, for profit because it generates the wherewithal enabling them to run their hospital or whatever it is. I could have chosen language, I think, that would put the meaning beyond doubt, but we have to live with the wording that is here. As I understand it, there is no further opportunity to change the phrasing of this part of Amendment 2B. So I hope that my noble friend Lord McNally will assure me that this wording is specifically designed to exclude from its ambit the work of charities. Otherwise, I think we have a very large problem with this amendment.

--- Later in debate ---

[Baroness Hayter of Kentish Town]

It was the word “bring”. What we are trying to say regarding permissions is that permission of the court should be required in order to bring that action. In a sense, the most effective speech about permissions was, of course, made not by me but by the noble Lord, Lord May of Oxford. He discussed the case of Wilmshurst, which involved four years, £300,000, a risk to patients and actually of course no serious case at the bottom of it, because what he said was true. That is what we are trying to get rid of.

To turn to the main issue of Derbyshire, in a sense this is quite a simple judgment. It is a judgment about whether the noble Lords, Lord Faulks, Lord Lester and Lord McNally, are right that we should leave it to the courts and to judges to decide on whether the Derbyshire principle should now apply to other organisations providing public services, or whether we as Parliament want to take that decision. My fear about leaving it to the courts is how on earth users—patients, Travellers, people who are receiving those public services, the disabled who go to Atos—are to know what their rights are if we have to wait for the court to develop the Derbyshire principles. How are parties going to know? Who will fund the test cases? What message does it give to users and patients, and indeed to journalists wanting to report their complaints, if they must wait to know what the outcome is?

[Lord Faulks]

I am very grateful to the noble Baroness for giving way. I understand her desire not to encourage unnecessary litigation, but perhaps she could help me and the House with this. Even under the amendment it will be necessary for a court to decide whether a non-natural person is performing a public function. That of itself may be the question of a judicial decision, so even her amendment is not going to preclude any involvement of the judges.

[Baroness Hayter of Kentish Town]

It is interesting, but performance of public function will be under either a contract or a commission given out by the DWP or the local authority. They will be able to define that, because they do not simply stand up and say, “I am now providing a hospital”. A contract will exist with what used to be a PCT and is now a GP commissioning group. There will be a contract and it can be defined in that way. If that was the only problem and the Government wanted to concede other than on that, I would happily take that. No, the offer is not coming. I would like to conclude, if possible—

European Convention on Human Rights

Lord Faulks Excerpts

Thursday 7th March 2013 Lords Chamber

[Lord McNally]

My Lords, I think that “dilute” is the wrong word. As the noble and learned Lord, Lord Neuberger, pointed out in his interview the other day, the relationship between our Supreme Court and the Strasbourg court is a healthy one of learning from each other and looking at each other’s jurisprudence as it develops. What we have been doing, and one of the proudest things I have been involved in as a Minister, was the Brighton conference on the workings of the court which looked at how we can build in a subsidiarity to take notice of the importance of national supreme courts while still retaining the strength and the moral authority of the European Convention on Human Rights.

[Lord Faulks]

My Lords, whether human rights are best protected by the Supreme Court, by Parliament or by Strasbourg, all noble Lords are anxious to protect them. However, even human rights have a cost. Public authorities are spending a great deal of money trying to make their policies compliant with the convention—rather like with health and safety—when the Strasbourg jurisprudence is extremely uncertain. The diminishing pot of legal aid is being spent on often unmeritorious cases about human rights, rather than on far more meritorious cases. I was one of the commissioners, and we were not allowed to consider questions of cost. I ask the Minister whether the Government, in the whole human rights debate, could tell us how much human rights is costing.

[Lord McNally]

I am not able to put a cost to human rights any more than to anything else. I see in government—and I suppose that we have a lot of experience of local government in this House—how agents of the state, as the noble Lord said, when making decisions have in the back of their mind that they have to clear certain hurdles about respect for the individual citizen. To me, this is a prize beyond cost.

Defamation Bill

Lord Faulks Excerpts

Tuesday 5th February 2013 Lords Chamber

[Baroness Boothroyd]

My Lords, I spoke in the debate on the Leveson report, so I shall certainly not weary the House this afternoon. Let me start by saying that I take no pleasure in what has befallen the newspaper industry in the past few years. I am sure that no one wants to see journalists facing criminal charges, but who among us is proud of the way in which newspapers are now perceived? I believe that the amendments before us would help the newspaper industry to re-establish itself as that trusted investigator it once was, bringing the news to the nation fearlessly and accurately and holding us all to account.

I said in my speech during the Leveson debate that many of the transgressions happened because of the culture of some newspapers whereby they grew to believe that they were untouchable. It is that culture that must be changed. It can be done with the establishment of a new complaints procedure for the public which, as the noble Lord, Lord Fowler, touched on, allows problems and issues with the press to be nipped in the bud at an early stage and dealt with.

We need a system that allows the citizen to raise their complaint in a low-cost and non-adversarial way. Newspapers must be required to meet and hear those with appropriate complaints against them. A robust arbitration service will, I am sure, help to change the culture of newspaper reporting and improve on the current mentality that everything and everyone is fair game for them.

This Government and all previous Governments over the past 60 years should have taken action and never did. Yet after seven royal commissions or parliamentary inquiries and the spending of a lot of public money, it will no longer suffice to be told that there will be an announcement “tomorrow”. It reminds me of the very famous line in “Gone with the Wind”: “Tomorrow is another day”. We have run out of tomorrows— tomorrow never comes.

It is today that we have to deal with, and it is today that your Lordships must take action. This House must step forward and help our leaders to take the action that they themselves have found difficult. Passing these amendments now does not prevent the Government improving on them should they choose to do so—as the noble Lord, Lord Fowler, said, they are a sort of building block—but the amendments say quite clearly that time has run out and we must take action this very day. I hope that the House will support them.

[Lord Faulks]

My Lords, for those of us who were involved in the Committee stage of the Defamation Bill, this is a surprising and exciting development on what might have been regarded as some of the more dry amendments that were then before the House. However, it is important—I declare an interest as a practising barrister with some experience of the law of defamation—that we bear in mind that this is an amendment to the Defamation Bill. It should not be thought that all claims by those who say they have been defamed result in full-scale trials. Thanks largely to the intervention of the noble and learned Lord, Lord Woolf, and the Civil Procedure Rules, and to initiatives by the noble and learned Lord, Lord Irvine, by way of protocols, much has been done to improve the way defamation actions are heard.

--- Later in debate ---

[The Archbishop of York]

My Lords, I, too, want to add a sentence of support to what the noble Baroness, Lady Hayter, and the noble Lord, Lord Lester, said.

I am patron of many charities and it would not be right if we did not strike the right balance. If a charity felt it was defamed because it was a body corporate, the restriction that has been put in here requiring the permission of the court is necessary. We are living in a very litigious society so if you are going to go to court to sue anybody, the permission of the court should be shown.

In proposed new subsection (3) there is the question of finance and the possibility of striking out if you cannot actually show that you have suffered loss. Because of that balance—that common sense that the noble Lord, Lord Lester of Herne Hill, was talking about—I am very attracted to this, and I hope that the Government will accept both limbs of the amendment, because you really could not do one without the other. It strikes a balance. For such a very long time, individuals could sue but reputational damage, as well as financial loss, is often incurred by a number of charities and it would be good to be able to do the same thing in terms of bodies corporate.

[Lord Faulks]

My Lords, of course, there is in the Bill a significant hurdle for any claimant, whether a non-natural person or a natural person: they have to show serious harm, so that is a hurdle of itself.

I supported the general tenor of this amendment in Committee but expressed a reservation at that time. Indeed, the Joint Committee on Human Rights expressed a similar reservation, which is: what about the small companies? Of course, I accept that the individual can sue if he or she is sufficiently identified, but if it is a small business—say, the local ice cream vendor; maybe nobody knows them by name but they have a valuable local business reputation—it will have to overcome considerable hurdles before suing. It will have to show substantial financial loss; it may not be very substantial objectively but it may be very substantial to that business. The hurdle of serious harm added to this procedure seems to prevent it recovering in circumstances where it should be able to recover.

Malicious falsehood may be difficult to prove, in the sense that malice is always difficult to establish. None the less, if I say that Hayter & Co. is going out of business, when it plainly is not, it is not difficult to infer malice from that pronouncement. It would be unfortunate if companies had to resort to the alternative tort in circumstances where they should, in my view, be able to rely on ordinary defamation.

My final observation relates to proposed new subsection (4). I accept what my noble friend Lord Lester said about the public function. Deciding whether somebody performs a public function is not necessarily very easy, just as deciding whether something is a public authority for the purposes of the Human Rights Act has caused the courts considerable distress.

I have sympathy with the general tenor of this amendment but I cannot go all the way with it.

[Lord Ahmad of Wimbledon]

My Lords, I thank all noble Lords who have taken part in this short debate. As has been pointed out, Amendment 2 concerns two distinct but related issues. Indeed, my noble friend Lord Lester, who I greatly respect with regard to this Bill in particular, described it as two limbs. That is a nice way of reflecting on the current Government, in having two arms to the same body, and we are seeking to move forward on these matters.

The issues that have been raised again this afternoon were extensively debated during the previous stages of this Bill. These are whether there should be restrictions on the right of bodies corporate and other non-natural persons to bring an action in defamation, and whether any non-natural person which is performing a public function should be prevented from bringing a claim in relation to a statement concerning that function.

In relation to the first issue, the Government have made it clear in previous debates that there is a difficult balance to be struck, as the most reverend Primate articulated. Considerable damage can be done to the reputation of a business by unjustified and defamatory allegations, and this has an impact on all those involved with the business, including its shareholders and employees. On the other hand, we fully recognise the need to ensure that powerful businesses are not able to—for want of a better term—bully individuals or organisations with limited means into remaining silent on issues of public importance by the threat of libel proceedings.

However, if that is the problem we are trying to solve, imposing specific restrictions on the ability of businesses to sue does not seem justified. Wealthy individuals can equally send threatening letters to those with limited means. This is why we think the twin-track approach we are proposing is preferable. It embraces both elements within the Bill and procedural changes alongside it.

First, all claimants—corporate or otherwise—will have to satisfy the new test of serious harm, as my noble friend just mentioned. As we have made clear, it is our intention that the serious harm test will raise the hurdle for bringing a claim and will ensure that trivial claims do not proceed. In order to satisfy the serious harm test, businesses are likely in practice to have to show some form of actual or likely financial loss. The courts have talked in terms of,

“a tendency to directly affect its credit or property or cause it pecuniary damage”.

Quite what that will require will depend on the type of business concerned and the facts of the particular case, and we do not think that it is helpful to attempt to define explicit restrictions in the Bill.

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[Lord Lester of Herne Hill]

My Lords, I cannot support the amendment. One of the difficult things about having a Bill like this is to decide what Parliament should be doing and what the courts should be doing. Parliament has put into Clause 1 this very important barrier of serious harm. In his important reply to the previous debate, the Minister helpfully indicated that serious harm—for example, with a corporate body—would include the likelihood of serious financial loss as one of the factors to take into account. Obviously this is a preliminary hurdle, and obviously the procedure rules, which are not in the Bill but will be in the Civil Procedure Rules, and case management will ensure that a party can come before the judge at the beginning and say, “Strike this out because the serious harm test is not satisfied”.

My first reason for not supporting this is that it deals with matters of procedure that will be dealt with, I think, by the Civil Procedure Rules themselves, a pre-action protocol and case management. The second reason is that the factors that are listed here,

“caused or is likely to cause serious harm … and … a real and substantial tort in the jurisdiction”,

are exactly the kinds of issues that one would expect the judge to have regard to, but the Government have very wisely decided to move against having a checklist—for example, in Clause 4. I think that our judges can be well trusted to be able to apply the serious harm test in Clause 1 without a checklist and without being fettered in any way.

I sympathise with the aim of the amendment, but it is an example of overreach. We should not be writing this kind of procedural detail into the Bill; we should leave it to the wise discretion of the judiciary.

[Lord Faulks]

My Lords, I agree with my noble friend Lord Lester. It is possible that the House may remember the contribution that I made to the first debate when I drew the House’s attention to the protocol, which does very much what the amendment seeks to do. Under the current law it is perfectly possible, and indeed it happens on a regular basis, that a court will rule on a preliminary basis and will strike out claims, either pursuant to the CPR or under the inherent jurisdiction. They will manage the case so that preliminary matters are heard—for example, an issue as to meaning—without a full-scale trial. Judges and masters are experienced in dealing with this, and that is a matter that should be left to the protocol and to the masters to develop as a matter of practice. With respect, it is not a matter that should be put in the Bill.

[Baroness Butler-Sloss]

My Lords, I support what the noble Lords, Lord Lester and Lord Faulks, have said. I have to admit to having been a judge, but not a judge who tried this sort of case. I believe that this is a matter that should be left to the judiciary, and the amendment is overemphasising something that really does not need to be done.

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[Lord Faulks]

My Lords, the law has been struggling for a little while now, both here and across the world, in trying to find the correct solution to the question of whether, and the extent to which, website operators should be liable for defamation. At the moment, there is no bespoke provision dealing with website operators.

Section 1 of the Defamation Act 1996 was passed to deal with the position of wholesalers, booksellers, newsagents and libraries. It provides a possible defence for website operators, but this defence failed in the case of Godfrey v Demon in 2001 when a website operator did not remove the posting immediately upon being aware of its defamatory content. There is also a potential answer provided by the Electronic Commerce (EC Directive) Regulations 2002, but there is doubt about the level of protection this provides for so-called hosting. There is equally considerable doubt as to what does or does not constitute publication. Therefore, I congratulate the Government on not simply ducking the issue but seeking to address specifically the position of the operators of websites in the Bill.

I also generally applaud the Bill for the reasons that have been given in the course of debates. However, I am concerned that in the provisions of Clause 5 it is too generous to website operators. There is no doubt in my mind that these provisions are the most significant in the Bill. As we were reminded in Committee, nowadays the internet is the main form of communication used by people under a certain age. Even e-mails are something of a thing of the past. So that we can be confident that what we provide by this clause is going to be central in relation to defamatory communications in future, it is particularly important that we get this right.

The terms of Clause 5 leave much to regulations. I would not relish the role of parliamentary draughtsmen in trying to come up with appropriate regulations. It is almost certain that whatever emerges will be out of date almost immediately because of the fast-moving nature of this form of communication. The Constitution Committee of your Lordships’ House, in paragraph 15 of its report on the Defamation Bill, was wise when it said:

“We consider that, as a matter of constitutional principle, the relevant provision should be to the greatest extent possible on the face of the Bill, so allowing full legislative amendment and debate. Moreover, only by seeing the proposed obligations to be imposed on operators will Parliament be able to consider whether the regime proposed is fit for purpose”.

That is why our amendment leaves much to the judge, so as to prevent obsolescence in the law.

The amendment attempts to provide a special defence to website operators, acknowledging the vulnerable position that they may be in but none the less specifically echoing the legislative language of the 1996 Act, placing the burden upon the defendant to show that he, the website operator, exercised reasonable care. What worries me about the current drafting is that the burden is very much on the claimant to surmount a series of hurdles before he can overcome the prima facie defence provided to the operator of a website. This seems to me to be getting the balance wrong and places the website operator in a unique position in the law of defamation.

When the Law Commission in 2002 examined the law of defamation on the internet, it came up with various recommendations, including amending the 1996 Act which is effectively what this amendment does. It also recommended that the industry should adopt a code of practice. My noble friend Lord Phillips and I think that is critical, and it is unfortunate that no such code of practice has emerged. As our amendment is framed, it would place a considerable onus on website operators in general to arrive at a code of practice which, if sensible and reasonable and followed in an individual case, would provide a solid defence to claims in defamation.

There is I think consensus that we should be trying to keep defamation claims out of court, if at all possible. The position after this Bill becomes law means only a well funded claimant with a serious complaint can even dream of bringing proceedings. In respect of that rather small risk, it is clear that website operators can take out insurance in respect of which only modest premiums would be payable. That seems to me a small price to pay for the protection of those who are genuinely aggrieved at defamatory content being posted on a website. In Grand Committee I gave the example of a teacher being accused of being a paedophile—almost certainly fatal to their career and their life.

Nobody should under-estimate the power exercised by website operators. I was a member of the Joint Committee subjecting the Data Communications Bill to prelegislative scrutiny last year, and we heard a great deal of evidence from website operators. It was impressive in terms of the quality, and no doubt expense, of those assigned to advance their position. They did not want to have to store any information which was not commercially useful to them even if it helped government agencies to track down and prosecute criminals. Much was made of their users’ rights to privacy. This is something of an irony since the information that users of websites provide is of course extremely valuable commercially. Website operators now say that it is very inconvenient to take down potentially defamatory material and that it compromises free speech. It is perhaps a little easy to deploy free speech in this context, but let us not get too misty eyed about this in the light of the careless and often ill thought out comments that find themselves on websites.

I fear that this clause as currently framed favours the powerful—namely, the website operators—who have a strong lobby, as opposed to the much less powerful, who might be defamed in the future. Our amendment does something to try and redress the balance. On considering the respective positions of the very powerful and the almost powerless, I know which side I am on.

[Lord Lester of Herne Hill]

My Lords, I have the misfortune to be opposed to the amendment, and I shall try very briefly to explain why this is so. As I said in Grand Committee, there is across the world a fundamental difference between on the one hand the Chinese and, on the other, the United States. The Chinese position on the world wide web is to create the great firewall of China and the Chinese intranet and to do whatever it can to be able to censor the use of the web by dissidents of one kind or another. The position of the United States, ever since Bill Clinton’s statute, gives an absolute immunity to United States internet service providers. The European compromise is contained in the e-commerce directive, as the noble Lord, Lord Faulks, indicated, and seeks to strike a fair balance between freedom of speech and personal privacy and reputation in the structure of the regulations. Although it is vague, it is fairly balanced.

The world wide web is, on the one hand, of vast benefit not only to website operators but to the public and the citizens of the world in terms of free expression, which it enhances. On the other hand, the web creates much more capacity to damage reputation and personal privacy. That is the other side of the story. The puzzle is, given that this is a transnational, worldwide problem, what can any one country do to try to strike a fair balance? How can we devise a system that will encourage operators such as Google and Yahoo in this respect, given that they have no particular commercial interest in keeping up anything they post which is controversial? For example, if they post criticisms of Ruritania as a corrupt, disgraceful and oppressive Government, and then a threat is made to them to take it down, they have no commercial interest in keeping it up, even though we as citizens have every interest in their doing so. That is the free speech side of the argument.

I perfectly agree that one must do what one can to provide effective remedies in privacy and defamation claims. I admire the boldness of this amendment, which seeks to take out of the Bill altogether subsections (1) to (5) of Clause 5—that is, the entire carefully formulated procedure, including, in subsection (5), the regulations and what they may provide—and to put in place instead a structure which it is suggested will tip the balance better in favour of the claimant. I will not take the time of the House in going through that except to say that the more I read the burdens that the amendment would place on the operator, the more unbalanced I think they are in what they seek to do.

Furthermore, words such as “reasonable care”, with the burden being on the operator, or,

“did not know and had no reason to believe”,

comprise burdensome tests. I fully realise why my noble friends think that that wording is better than what is in the Bill. However, I do not think that it is. I think that it would give rise to litigation and would unduly fetter freedom of expression not for the website operators—I do not mind about them—but for us, the people who receive information and ideas on the web.

I like what the Government have done which I think strikes a perfectly fair balance. It is a good scheme. I am glad that they will introduce regulations. I very much hope that they will not accept this amendment.

Defamation Bill

Lord Faulks Excerpts

Tuesday 15th January 2013 Grand Committee

Debate on Amendment 23A resumed.

[Lord Faulks]

My Lords, in addressing the group that includes Amendment 23A, I have had a chance to reflect on the issues raised by these amendments and to read in Hansard the speeches made in the debate before we adjourned for the Christmas Recess. This has led me strongly to support the amendments—or most of them—in this group, if not to go further. I emphasise that I am in sympathy with this Bill, in particular with the raising of the bar to prevent trivial defamation actions. I would also like a limit on the right of corporations to sue, as we discussed on a previous group. I favour the amendments to the Reynolds defence, and the protection of peer-reviewed statements in scientific and academic journals as provided by Clause 6.

However, I have real difficulties with Clause 5, which we are currently debating. It seems to be taken almost as given by those in favour of libel reform that website operators should be in a special position and separate, say, from book publishers or newspapers. The reasons for this are said to be that website operators will generally act only as a conduit and have little control over content, and that liability for defamation potentially is inimical to free speech.

Parliament does not often have an opportunity to intervene in the law of libel and, as I am sure noble Lords will agree, it is most important that we get the law right, particularly when what we decide now may not be reviewed, except by the courts interpreting the provisions of the statute, for many years to come. That particularly is a heavy responsibility where courts all over the world are currently struggling to deal with the interrelationship of the law of defamation and the operation of the internet, and it is especially challenging to us to attempt any form of future-proofing.

In his very helpful speech to the Committee, my noble friend Lord Allan of Hallam told us that e-mail is not the communication mechanism of choice for young people—they much prefer instant messaging-type applications—and that a whole new range of communication services are coming into the market. It is reasonably well known that young people do not read newspapers much. Therefore, we are potentially considering the law in relation to what is going to be the most prevalent form of communication.

In its report on the Defamation Bill, the Constitution Committee of your Lordships’ House states:

“We consider that, as a matter of constitutional principle, the relevant provision should be to the greatest extent possible on the face of the Bill, so allowing full legislative amendment and debate. Moreover, only by seeing the proposed obligations to be imposed on operators will Parliament be able to consider whether the regime proposed is fit for purpose”.

Much in the current Bill is left to regulation but even that which is already provided for by Clause 5 causes me difficulties. It is plainly in the interests of website operators that there should be a special defence. They are an extremely powerful lobby with, as the noble Lord, Lord Triesman, pointed out on the previous occasion, the capacity to generate very significant profits.

As a member of the committee which last year considered the draft Communications Data Bill, I had the opportunity to see and hear from the representatives of the industry and to hear the very cogent and forceful advancement of their commercial advantages and disadvantages which might lie in the form of any future legislation. In particular, internet service providers were very reluctant to store any information which was not commercially useful to them, albeit that it might help the security services or the police to catch criminals. By the same token, they plainly do not want to have to face defamation actions and have the administrative inconvenience of trying to prevent defamatory material being published at all—if published is indeed the correct word, which is currently the subject of much judicial doubt.

I wonder whether our response to such large commercial organisations, although I appreciate that not all are large, would be the same if they were producing oil or manufacturing on a large scale, and we were told that it was inconvenient and potentially costly to provide a meaningful remedy to those who suffer from a company’s activities.

My noble friend Lord Allan talked about the democratisation of free speech but I am not convinced that much of the careless dissemination of rumour or innuendo that takes place can properly be defended on free speech grounds. Why does a substantial commercial company not have any obligation to take appropriate steps to either prevent or limit the publication of defamatory material or—and I stress this point—take out insurance in respect of those rare circumstances in which they will be sued for defamation?

The cost of an insurance premium would simply be a business cost and would mitigate the potential unfairness of depriving someone of a remedy who has been defamed. Will this open the floodgates? The law, as it presently is with the Defamation Act 1996 and the 2002 electronic communication regulation, provides some protection. But I an unconvinced that there is or will be a great wave of litigation brought against website operators. If the Bill becomes law, it will be only for serious defamation that anyone can sue at all. Furthermore, they must have the funds to do so. If in fact a website operator responds quickly to a complaint, broadly in the way envisaged under the Bill, it will limit the damages and thus deter a potential claimant from bringing proceedings at all.

Let me give an example of a defect in the provisions as they currently stand. Say that you were a teacher who had been accused of being a paedophile and that that was placed on a website. Particularly in the current climate, this would probably cause irreparable damage to your life and career, even if the allegation was wholly unjustified and subsequently withdrawn. However, provided that the website operator responded in the way envisaged under the Bill, you would have no remedy at all. Those few complainants who have serious complaints should be able to bring a claim, even if it causes some inconvenience and expense to the website operator, who will simply have to bear the cost. It almost certainly will have broader shoulders than the potential claimant.

I am far from convinced that we should be giving website operators a special defence. I look forward to hearing the Minister’s justification of that defence and to his answer to the amendments, although I notice that there is a government amendment to which we will come in due course. At present, I am sorry that my noble friend Lord Phillips is not going to pursue the clause stand part debate. There are a number of anomalies that we could point out—there may always be anomalies—but it is a particular anomaly, for example, that someone can sue for slander if the publication is limited to one person but will not be able to sue effectively in the circumstances envisaged here.

I know that the Minister is a great fan of the Human Rights Act. I wonder whether the provision will satisfy analysis in the courts, either here or in Strasbourg, in terms of an Article 8 right. I am of course aware of Article 10, but it seems to me that if I were that hypothetical teacher or someone in that situation, I would be relying on Article 8, regardless of this defence, to outflank the provisions on defamation. I have experience of cases where courts have held that remedies under the Human Rights Act exist independently of any rights under common law or under statute.

I regard the provisions as unsatisfactory, requiring greater explanation. I fear that, unless we provide a great deal more detail to deal with some of the difficulties which will be encountered, we will make bad law.

[Lord Mawhinney]

My Lords, part of my role in this Committee has been, as accurately as I can, to reflect the evidence and testimony that was given to the Joint Committee. I feel the need to repeat that process this afternoon.

Lest I be accused of being unduly biased, we had representatives of modern technologies come to give evidence, including one Member of this Committee. We heard the arguments, in particular, from those who run websites and are operators and might conceivably be the focus of defamation proceedings. A number of your Lordships present today were members of Joint Committee, so I can always be corrected if my memory fails me. I think that it would be fair to say that, overall, the evidence we got was that websites ought not to be beyond the reach of the law. This may or may not be a democratisation of free speech—whatever that means. Certainly, anybody and everybody can now get themselves a worldwide audience, which did not used to be the case. Whether that is a compelling argument for saying that such people will no longer be bound by the restraints of defamation is an entirely different matter.

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[Lord Ahmad of Wimbledon]

Theology is always one to park, but, as a man of faith—and as a fellow man of faith—I take my noble friend’s guidance on that. The point I am making is about stakeholders—those people who are looking at this issue. Yes, it involves website operators, but the point of this clause is that it is not the website operators doing the defaming, it is the person who has written the statement. That is the person who should be held accountable and responsible. Where the website operators’ obligations come in is whether they have followed the process as detailed in Clause 5.

Coming back to the point about balance that my noble friend made, this is not just about talking to website operators but about talking as well to people who represent claimants, to ensure that those people who represent the body that feels it may be subject to such actions are also heard and that their case is also made. However, I am sure that my noble friend would agree with me that, if we started consulting every single individual who may or may not be concerned on an individual basis with this, our Committee would continue for a very long time. Nevertheless, as I have alluded to several times—and I repeat the point again—in speaking to all these amendments it is important for me to place on record that the Government are aware of the pace of change in internet and electronic communications. Even as perhaps one of the younger Members of your Lordships’ House, I remember in my professional life when the internet first came alive. Things are changing by the minute, and the pace of change is somewhat beyond even my comprehension. There are innovations in electronic communications and, as I have indicated in all my responses, in particular in response to Amendment 23A, we have an open mind in respect of terminology. In addition, we believe that putting the details of the Clause 5 process in the regulations provides greater flexibility to adjust aspects of the new procedure should that prove necessary as technology develops.

[Lord Faulks]

I am grateful to the Minister for giving way; he has been patient and has had to deal with a lot of amendments. He was dealing a little while ago with Amendment 29 in the name of my noble friend Lord Phillips of Sudbury. I understood his answer to be that he could not conceive of circumstances in which an operator of a website could be malicious, and this amendment was therefore not necessary. However, operators of a website are given an admittedly qualified privilege by Clause 5 which puts them in exactly the same position as those in other fields of the law who have a qualified privilege, the defence of which is defeated by malice. Is it not therefore inconsistent that such a remedy should not be available in the terms of this amendment? It may not happen very often, but that is no reason for it not existing at all.

[Lord Ahmad of Wimbledon]

I hear what my noble friend says. Perhaps we can refer to this matter; he makes a valid point. As he rightly acknowledges, we would not see this issue occurring on a regular basis, but I will certainly reflect on his comments on this.

A variety of amendments has been tabled. On “balance”, I suppose it depends how you define the word. However, in seeking to bring the Bill forward, and particularly with this clause, the Government are seeking to strike the right balance. We continue to listen, hear and consult with all parties on both sides of the coin. We are working to ensure that something practical and workable, which protects those who are subject to such actions, comes out of this process.

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[The Earl of Erroll]

I shall make a couple of comments about Amendment 27, particularly after the remarks of the noble Lord, Lord Phillips of Sudbury. Given the expense of trying to track someone down on the internet and finding out who is who, it will be impossible to identify absolutely reliably everyone who logs on. Unless we put a chip inside everybody and log that, it will not work. There are too many ways of concealing who you are. The banks have enough trouble with their “know your client” procedures, so what kind of trouble will an internet service provider have? It is not realistic to be able to nail down identity over the internet at the moment in the way that some people think that you can.

The point about expensive resolution led me to think about what the noble Lord, Lord Allan of Hallam, said about alternative dispute resolution. The website operator needs somehow to know whether to take something down. If a claimant is not willing to reveal who they are, there may be a public interest reason for it to stay up and there may be support from other places for its staying there. Nominet is operating a successful service for alternative dispute resolution on domain name conflicts. Otelo—the Office of the Telecommunications Ombudsman—also works terribly well in resolving disputes in an inexpensive way. In fact, the industry in each case bears the costs and it is not expensive. I wonder whether it would be worth exploring that.

Amendment 27 is interesting because it could provide some of the information that would be the framework on which a judgment could be made. For instance, a website operator could apply and say, “We would like to know”, through the alternative dispute service. Personally, I think that going through the courts every time would be far too expensive for all the small organisations and ordinary people trying to defend themselves against something malicious that was online.

I was amused by the concept of whether or not regulations could be used maliciously. That is an interesting concept and it probably has wings, as well as legs. There is an old saying that regulations are for your enemies, and it is amazing how maliciously you can use them.

[Lord Faulks]

My Lords, because of my general opposition to this clause, it is obvious that I would also oppose these very well meaning and well articulated suggestions of a mode of complaining by someone who feels that they have been defamed on a website. The debate has thrown up the fact that the industry is in the process of developing a response to this new problem, and I respectfully suggest to your Lordships that that is where the development should come from, not by means of legislation—we are bound to get it wrong and to be out of date. Rather, it calls for a response to a developing situation. If a code of practice is developed that provides an appropriate response, that will deter people from suing, certainly for anything other than the most serious defamations.

As for the amendment put forward by my noble friend Lord Lester, I entirely understand it and the fact that he wears his cloak from the JCHR. If there is to be such a procedure, however, it is asking quite a lot of an individual to make some form of assessment as to, first, whether it is defamatory and, secondly, whether it is unlawful. That would involve them reviewing possible defences: whether or not it was justified, which is an absolute defence; whether or not there was qualified privilege; whether there was responsible publication. That is a considerable series of hurdles for someone to overcome before deciding on and setting out the nature of their complaint.

On the alternative dispute resolution, of course I understand what animates that. It is very easy to sit around in a committee of any sort and suggest that something can be done quickly, cheaply and easily. The reality, of course, is that there are short cuts even within the current framework. People can get preliminary rulings on meaning and whether something is capable of being defamatory within the existing mechanism. I fear that what is suggested may sound like a good idea but may in fact simply be superorgative. It may add to what is already there and not provide the sort of cheap alternative mechanism that plainly is desirable. I respectfully suggest that the amendment should not be pursued.

[Lord Lucas]

My Lords, I support what my noble friend has just said. Having listened to the various alternatives, I think that the idea of having to involve the courts is just going to freak out any website operator, particularly those who deal in any volume. You are asking for some sort of cheap way to get to a judgment that is essentially expensive because there are a lot of things to be considered.

I think that the right answer to this, as my noble friend just said, lies in giving really good guidance to the courts and to website operators as to what is protected under the Bill and what is not. That comes back to points that I made under previous clauses. I do not understand what is going to be protected under the Bill; what is going to be regarded as fair comment; what is going to be required in terms of the person making the complaint or statement stating the basis on which they have made it; or the references to “fact” that creep in, which is something that you as a website operator know that you can never establish. As my noble friend said earlier, we all have insurance to cover those things. I am sure that the same applies to Facebook as it does at the bottom end, which I occupy. That insurance is not vastly expensive and is available on sensible terms from sensible insurers. As long as you have reasonable systems to ensure that you are doing your best not to publish things for which you may be sued, you are protected.

Transforming Rehabilitation

Lord Faulks Excerpts

Wednesday 9th January 2013 Lords Chamber

[Lord McNally]

I thank the noble Lord for those questions. I will certainly have a look at what he refers to as the “through the gate” experience and if the Minister responsible is now in this House, I might ask him or her about their experience. Nevertheless, there is overwhelming evidence that through-the-gate help and preparation before prison, along with being met at the gate and helped afterwards, has an impact.

The probation service will continue to have oversight across the piece. Part of the consultation will be about how light-touch that will be in terms of the day-to-day management of offenders, but we are conscious of the evidence that risk can change during the process of supervision and that there may well be a need to move certain individuals from the areas being managed by the private and voluntary sectors back into the public sector. However, that will be built into the oversight provisions that are to be part of the outcome of these consultations.

On the question of a debate, it is a matter for the usual channels, but if the Government prove difficult to persuade, I am sure that my noble friend Lord Dholakia will be able to persuade the Liberal Democrats to give one of their debate days to such a discussion. One way or another, we will have a debate in this House on this matter.

[Lord Faulks]

My Lords—

[Baroness Corston]

My Lords—

[Lord Ahmad of Wimbledon]

My Lords, we have yet to hear from the Conservative Benches.

[Lord Faulks]

I welcome this Statement, particularly its focus on those with sentences of less than 12 months and its identification of that period of vulnerability as young offenders leave prison. One of the particular areas of vulnerability is those offenders who have a previous history of drug addiction who are then prone to taking large doses of drugs which can result in death. I therefore welcome the role of a mentor, although I recognise what the noble Lord, Lord Ramsbotham, has said about the perception of custody plus because I was sitting as a recorder at the time. However, the role of a mentor seems to me to be potentially very important. Can the Minister help the House by identifying who exactly is going to perform this mentoring role and what its scope might be so as to assist in avoiding those traps that I have attempted to identify?

[Lord McNally]

My Lords, as part of the consultation, we will be looking at the structure of mentoring. However, in the specific terms that my noble friend has referred to—in relation to those who leave prison with problems still associated with drug addiction—one thing we are trying to do, with the co-operation of the health service, is to make sure that people who are on programmes in prison continue to receive those programmes when they leave. One of the barmier aspects of the current system is that people who have been on treatment leave prison and, surprise, surprise, their addiction returns. Part of the programme of release will be to continue programmes like that.

As for mentoring, we will just have to wait to see the response, what kind of organisations come forward with suggestions, and where we build into any mentoring programme the proper training that will enable mentors to be effective in their work.

Defamation Bill

Lord Faulks Excerpts

Monday 17th December 2012 Grand Committee

[Lord Faulks]

I declare an interest as a practising barrister. I practise principally in the law of tort, which includes, but does not specialise in, defamation. I am sorry that I was not here at Second Reading, but I have had the opportunity of reading the Second Reading speeches.

The aim of this group of amendments is clearly to provide a further hurdle to prevent vexatious and frivolous actions. I am sure all noble Lords agree that that is a desirable aim, but a claimant already has to cross a considerable hurdle in establishing that something is potentially defamatory. With great respect to the noble and learned Lord, Lord Scott, many of the decisions about meaning and whether something is potentially serious—if this amendment is accepted—will be taken without a formal rehearsal of evidence, simply on the pleadings, the submissions, by both sides.

I respectfully say that it seems to me that the word “serious” embraces “substantial”. It is a simple word which, after all, we ask juries to consider in cases of serious bodily harm. I entirely agree with the noble and learned Lord, Lord Scott, about the lack of need for guidance. It is something that judges would be perfectly capable of deciding without any such guidance. The question is whether the plaintive has a substantial hurdle to overcome. The word “serious” seems to me to provide a substantial hurdle.

I entirely agree with what my noble friend Lord Mawhinney says about funding, which is critical to this. Much of the problem in this area has been caused by CFAs and the immense bill of costs that tends to mount up for claimants who then sue defendants of perhaps fairly modest means who have been unable to fight cases because of the threat of those costs. After the LASPO Act comes into force in April, this will be much less of an issue, but it is important. I know that my noble friend the Minister will be answering on this. It is important that there should be some means of pursuing these cases when they have crossed the various hurdles which will, no doubt, be in the Bill when it is enacted, and I ask the Minister to do what he promised at an earlier stage in the legislative process. It is all very well to have a proper inhibition, but there should nevertheless be a meaningful remedy.

[Lord May of Oxford]

I shall offer some thoughts as a practising scientist who on one occasion only was confronted with a legal letter of, essentially, a threatening kind because I had accurately described something as a bunch of garbage. I promptly folded. I did not have the courage of Simon Singh or the principle that lead the journal Nature to spend £1.5 million on a ludicrous suit. We have a very tricky thing to try to solve. We are internationally known. The Americans have passed legislation to cut themselves loose from us. The United Nations has formally criticised what we have been doing. We are known as the place where you come if somebody living in Iceland has irritated you in Australia because of the extravagant and extraordinary costs, which have no analogue anywhere in the world, of dealing with these issues.

My father was a lawyer, and I have every sympathy and understanding that we are wrestling with a very difficult problem. One or two words will not capture it, but the spirit is sensible enough. Part of the problem is the legal costs, and they are something that we are clearly not going to legislate about. As we look at this, we should not look at this through a purely legalistic prism. We should try to see a way forward to have sensible legislation that means that if you criticise on valid scientific grounds the chimerical claims of someone—I shall not name an example—you will not be confronted with the dilemma of principle that people are being confronted with now. This is what has brought this. I see the problem, but the issues raised by the legalistic arguments that are not sensitive to the underlying facts are substantial and difficult to solve but need to be confronted. Do not just explain to us what we all understand. Of course there has to be some careful examination of it by competent people, but that is not necessarily served by the way we use expert witnesses in these legalistic things.

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[Lord Faulks]

My Lords, not out of loyalty to my late uncle, I think there was a considerable amount in the majority view of his committee. The amendment here restricts a remedy to circumstances in which the defamatory statement,

“is so gross as to cause serious harm to individuals or a breach of the peace”,

which is a very significant hurdle indeed.

There is something, I suggest, that is rather crude about the fact that a defamatory statement or statements can be published and the potential claimant can read about them, can begin action in respect of them, but the moment he or she dies that is the end of the matter although the harm remains unremedied and the anxiety and loss may well have ramifications for his or her family. That is a crude cut-off point.

I know that the Minister he has already given anxious thought to this matter, but I ask him to consider, if there may not be a claim for damages, that there might at least be a remedy by way of an injunction or apology, so that those in the position of the Watsons, referred to by my noble friend Lord Hunt of Wirral, would at least have the satisfaction of knowing that their daughter’s honour had been thoroughly vindicated and could rest a little more easy in the wake of such an appalling tragedy.

[Lord Browne of Ladyton]

My Lords, in the House of Commons, Helen Goodman sought to amend this Bill to allow certain categories of close relatives to bring defamation actions in respect of statements made about a deceased person up to a year after that person’s death. That amendment is in the same area—in principle if not in effect—as that of the amendment moved by the noble Lord, Lord Hunt, today. She drew substantially on the Watson case and gave a compelling argument that this set of circumstances was crying out for redress. I do not intend to add to what the noble Lord, Lord Hunt, has said today, but the Watson case was one of three examples she used, and it is a particularly shocking case.

The family suffered greatly, losing two children as the result of a series of incidents, and then on the day of the funeral of their son, who undoubtedly killed himself because of the way in which his sister’s reputation was trashed, the allegations were repeated in an attempt to try to justify them. We sought to divide the Committee in the House of Commons on this issue—not, as my honourable friend Rob Flello explained, because we thought that the Government’s position in resisting the amendment could be criticised, but because of these shocking circumstances and other cases like it. Unfortunately there are far too many cases that are crying out for resolution and some remedy in the form of a response by government and politicians which recognises that there is a need at least to try to protect the reputation of a family and their daughter in these dreadful circumstances.

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[Lord Faulks]

My Lords, I support these amendments and what the noble Lord, Lord Triesman, said. He is quite right about the position of claimants. A number of times, I have done my best to dissuade any claimant suing any newspaper for the reasons that he gives.

It ought to be remembered that companies which feel that they have been wronged have a battery of remedies available to them, such as passing off or the tort that has very often been used: conspiracy. It was used particularly by Tiny Rowland in his battle because it meant that he did not have to go into the witness box, give evidence and then be cross-examined.

The law is familiar with the requirement of having to prove what is known as special damage in the context of slander, so there is nothing unusual about a particular hurdle being put in the way of corporations, as these amendments suggest. For the reasons given, including the potential for bullying, I entirely endorse them. However, I have one slight reservation in that there are corporations and corporations. Small companies that effectively comprise an individual or a series of individuals may have their reputation damaged. I am concerned that the hurdle should not prevent them suing when real damage is done to them.

The noble Baroness, Lady Hayter, rightly referred to the conclusion of the Joint Committee on Human Rights, of which I have the privilege to be a member, where we suggested that businesses should succeed in defamation proceedings only,

“where they can prove actual damage”.

She left out the last sentence, which states:

“This requirement should be relative to the nature, size and scope of the claimant business or organisation”.

That is an important qualification. I hope and trust that this hurdle would be interpreted by the courts in a way that is relative to the size of the company involved: that is, according to whether McDonald’s, Google or a relatively small company was being dealt with. Subject to that, I entirely support these amendments.

[Lord Lester of Herne Hill]

My Lords, some believe that corporations should not be allowed to sue for libel at all. I think that that is wrong because although the feelings of a corporation cannot be hurt, it can be hurt in other ways, such as hurt to its reputation and trade.

In my Private Member’s Bill, I included a requirement of serious financial loss or likelihood of it, but I was not able to persuade Ministers or their officials that that was necessary because I think they took the view that it was quite clear as a matter of common law and therefore did not need to be spelt out in a Bill. Therefore, I am particularly enthusiastic about supporting these amendments which seek to do what I thought should have been done in the first place, as it were.

The problem of David and Goliath, to which the noble Lord, Lord Triesman, referred, which may apply to a very powerful claimant or a very powerful defendant, cannot be tackled by the Bill on its own but needs to be tackled holistically. Above all, it needs to be tackled by wise case management. I do not say this because I am sitting opposite three distinguished former members of the judiciary but because I have enough confidence in the judiciary and in the common sense of judges to know that if they are given enough encouragement—as I am sure they will be by the Master of the Rolls and through changes in the Civil Procedure Rules and so on—to grab a case at the beginning and to find ways of trying to equalise the unequal power of parties, they will do so. They can do so in a lot of ways that do not need to be in the Bill itself. They can do so through the application of the Civil Procedure Rules or by the application of common sense. For example, there is no reason why a judge cannot cap costs at the outset or why he or she cannot determine that there is an extremely powerful defendant or claimant and that the other party is unable to have equality of arms. Judges can also lay down procedural steps to be taken, including alternative dispute resolution and matters of that kind. In my view all that does not need to be legislated upon by Parliament because we are trying to find out what is sensible for the legislature and the judiciary to do. My view is that you lay down some general principles but do not interfere with the discretion of the judiciary in interpreting those principles.

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[Lord Browne of Ladyton]

I shall also speak to Amendment 7, which stands in my name and in the name of my noble friend. The underlying purpose of this amendment is similar to that of the amendment which has just been spoken to by the noble Lord, Lord Mawhinney. He seeks to do much the same thing as the amendment that stands in my name, but by a requirement for action before a court action can proceed. I seek to do it by what could be called—in the context of the discussion that we have just had—a multiple fracture of the prohibition against putting case management in the Bill.

I have no delusions that this will find support in Committee because it is such a multiple fracture, but it is quite deliberately so for a purpose. It is our attempt to implement the recommendations of the Joint Committee, but it goes further and does so for very specific reasons. Those reasons are that on this side of the House we have to be convinced that the holistic approach that we favour can address the fundamental issues of the problem that is before us and has its manifestation in all the many examples that we have heard this afternoon and which are recorded faithfully in the deliberations on this Bill since it was first introduced in its draft form.

I muse here—listening to the noble Lord, Lord Mawhinney, speaking to us in his distinctive Northern Irish accent and as I rise to speak in my Scottish accent—that there is more than one jurisdiction in these islands. I consider also, and I have considered this in other circumstances often, that until very recently—over hundreds of years certainly as regards Scotland—this Parliament in a statutory sense legislated for more than one jurisdiction on these islands. Only one of these jurisdictions has turned into the defamation capital of the world.

The answer may be as simple as the answer given to my intervention on the noble Lord, Lord Lester of Herne Hill, that this is a function rather of a niche ability that has developed in the Bar in London, which cannot be contained by case management appropriately with the tools that we give to the judiciary. There may be other reasons for it, but it seems that the answer probably to what we need to do to the defamation laws of England and Wales lies somewhere in these islands.

I am not entirely sure what it is because I have no particular expertise in this area of the law, but it is curious that lawyers, judges, courts and laws that are very similar to each other have operated in these islands in distinct jurisdictions but only one of them has got into this difficulty. Trying to identify the reason for that, and to address it, is what should be exercising our minds. We may, as I suggested in my intervention, be addressing it in the right way by changing the test and by doing all the other things that are in this small but comparatively complex piece of legislation or it may be much more important that we make changes in the way in which cases are managed and in which the costs of them are racked up.

This amendment seeks to insert a clause for early resolution procedure against the background that the Government originally announced that they would do this in the draft Bill and in the Commons explained why they were not willing to do that. We have now the advantage of the letter of the noble Lord, Lord McNally. I am pleased that the document that he read out earlier in relation to cost protection is the final annexe to his letter. This document does not need to be put into the public domain; effectively, it is in the public domain in any event. With my imperfect understanding of civil procedure in England, it seems to me that this protects a party from the liability to pay the other side’s costs if a case fails—if I understand what cost protection is. This seems to me to be half the problem.

If I had to face the prospect of having to litigate in an action for defamation with a substantially wealthy opponent, no matter which side of the argument that opponent was on, I suspect that in this jurisdiction it would cost me a significant amount of money just to engage in that litigation. I would be terrified at the prospect of losing and having to pay the other side’s costs, and I am pleased to note that parties in defamation cases may be protected from that. However, the prospect of having to pay the costs of my own side would still be terrifying.

The letter goes further and provides what I hope are many of the answers to the points being raised in this debate. The documents attached to it seem to be a set of guidelines on how the Government would like the existing case management rules to be amended or applied in order to try to achieve earlier resolution. It looks at how the existing strike-out procedures should be applied. Indeed, on reading the Minister’s letter in a holistic way, it is clear that, while not using exactly the same words, many of the issues are reflected in the amendment we have tabled. However, it is important to note that in this amendment we have gone further and provided that one of the key issues to be determined, under subsection (3) of the proposed new clause, is costs management.

To save other noble Lords and noble and learned Lords from pointing out why this is an inappropriate thing to do in a Bill, perhaps I may say that I readily accept that that is right. However, I think that the Government need to be given the opportunity to spell out the steps they intend to take to address the issues that lie at the heart of the problem we are facing. If we can make a contribution towards shaping a holistic approach, despite the fact that this goes beyond what the Bill should say in the strictest sense, that will assist in increasing the confidence of Parliament in this revision of the law. What is much more important is that it will increase Parliament’s confidence that a holistic approach, as referred to by the noble Lord, Lord Lester of Herne Hill, will not quickly put us back into the situation we are in already, but that there is some hope of addressing it.

I am offering the noble Lord this amendment to provide him with an opportunity to explain in accessible terms the steps that the Government are taking which are complementary to the legislation, and to offer the Committee some assurance that not only will they be completed by the time the legislation is ready to be put into force, but that they will be effective in terms of addressing the issues that are at the heart of this problem. Before I sit down I would suggest to him that if it has not already been done, perhaps a study of how at least one of the other jurisdictions in these islands deals with defamation issues might be instructive. I will say again for the benefit of the noble Lord, Lord Lester, that of the several jurisdictions in these islands, only one of them has become the libel capital of the world.

[Lord Faulks]

My Lords, I understand what is behind these amendments and of course I share the desire of other noble Lords that matters should be settled or litigation avoided if that is at all possible. My noble friend Lord Mawhinney said that his committee on the whole eschewed recommendations for case management. However, by this amendment he seeks to go into that area.

A word of caution might be appropriate. There is always a danger if you set up a series of procedures to be undertaken because you will frontload costs and increase the overall bill of litigation. Although I accept what my noble friend Lord Lester said about the libel Bar and its propensity to make rather arcane rules on pleading, for example, there are specialist libel judges who are well aware of all the issues, and defendants and claimants regularly bring matters to a judge at an early stage for determination in order to serve their clients well.

I do not think that we should proceed on the basis that this is an entirely unco-ordinated, inelegant process. No doubt, improvements can be made, as the Minister will tell us. I await with interest to hear what is suggested. But I respectfully suggest that these are rather cumbersome amendments which will not, I fear, achieve what they intend to do.

[Lord May of Oxford]

I commend very highly subsections (5)(c) and (d) of the new clause proposed under Amendment 7. This is the first mention that I have come across—although I have not read every word—of “public interest”. As many noble Lords will know, there has been a lot of pressure from many sectors of the outside community that the Bill does not do enough in looking at public interest as an offsetting factor. As regards subsection (5)(c), I wonder whether the words “complained of” are “a statement of fact or opinion”. If they are a statement of fact, it seems to me that, defamatory or not, or financially injurious or not, a fact is a fact and no one should be liable for stating a fact. Yet—I am becoming parrot-like in repeating again and again—I can give many examples where people have had huge pressure on their time and been put to ludicrous expense in defending a matter of fact. I hugely welcome those two proposals.

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[Lord McNally]

Again, because I am not a lawyer, I will take that away and take advice on it. As regards wealthy individuals who want to test their cases before British judges, although we have been talking about judicial case management, we have a judiciary which is world renowned for its integrity and impartiality and we should not forget that. However, I will take that matter away.

[Lord Faulks]

Before the Minister finally sits down, I hope that I may ask him one further thing. This is something which I think arose out of Second Reading, and is consistent with what the noble Lord, Lord Triesman, said about trying to minimise expenditure: that is, the possibility of having these defamation actions heard in the county court as opposed to the High Court, which would automatically reduce the cost.

[Lord McNally]

Again, I will take that matter back. The noble Lord may be interested to know that my right honourable friend the Lord Chancellor who, like me, is not a lawyer, is much attracted by that idea. It is certainly worthy of consideration. Unfortunately, the noble Lord, Lord Hunt, is no longer in his place but if he and his colleagues come forward with some robust self-regulation for the media, mediation may well find its proper place in that area as well. A balance needs to be struck between the extent to which you can force mediation and the extent to which it can be readily available. I will certainly look at the point made by the noble Lord, Lord Triesman.

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[Lord Lucas]

My Lords, if this amendment was passed, it would make my life notably more comfortable, but none the less I do not think it should be. In my business of running The Good Schools Guide, I spend a lot of time being uncomfortable to schools and we have on regular occasions in the past 27 years been threatened more or less successfully with legal action for defamation. That seems reasonable. I do not see why schools should not react to what I say because what I allow to be published can have a considerable effect, not just on independent schools, which obviously rely on parents paying fees, but on state schools as well. That is because if children are discouraged from going to a particular state school, that school will suffer.

There are many occasions when parents say things about schools which are entirely unjustified and it is therefore proper that I or anyone else in my position should be careful of what we say and the basis on which something is said. We must ensure that we can reasonably believe that there is some truth behind what is being said. Although I agree that one should be uninhibited in one’s attacks on political parties and government generally, as you move away from them, you reach institutions that are smaller and more personal. An unjustified attack could have a very damaging effect, and so the law of defamation probably should apply. I would much rather see defences against the right to protest against bad public services as part of Clause 4; indeed, I think that Clause 4 could be made more specific so that it is clear that raucous views about public services are to be encouraged and given a wide latitude by the courts. Only under exceptional circumstances should those views be stamped upon. That puts the rights of the public in the context where they belong in this Bill, but to have a blanket prohibition would make schools and universities vulnerable to unjustified attacks. There has to be some form of protection against the most vitriolic.

[Lord Faulks]

Would not my noble friend’s criticisms in the capacity in which he has described them be protected in any event by qualified privilege? In the absence of malice, he or anyone in his position is able to express their view without fear or favour.

[Lord Lucas]

Yes, but that is not the way things operate in practice. A lot of the time, the views expressed by someone like me are second-hand, while the views expressed by parents are perhaps not backed up by fact. It is not that we cannot comment, but in my view schools should have a defence against something that is unreasonable. At one point we had to pulp an edition of the guide because of what we had said, and I accept that as a proper interpretation of the law. To have a situation where no school can sue under any circumstances would put them at an unreasonable disadvantage. I appreciate that someone in my position has many privileges, but they should not be absolute.

Justice: Indeterminate Sentences

Lord Faulks Excerpts

Tuesday 13th November 2012 Lords Chamber

[Lord McNally]

Whether there was a misjudgment or not when IPPs were brought in, the fact is that we have reached the figure that the noble and learned Lord quoted of 6,000, which is far more than was anticipated by the initiators of the Bill. However, we now have to go through a proper process of assessing whether these prisoners, who have been sentenced for serious crimes, are fit for release, always keeping in mind public safety as well as the progress they have made. We have taken on board the fact that, as it was, the system was too rigid and too tick-box and we have given it greater flexibility. However, we have to manage release into the community; we cannot just open the prison doors.

[Lord Faulks]

My Lords, the decision in the James case was another reversal by the European court of decisions about our domestic legislation reached by the Court of Appeal and the House of Lords. Does the Minister agree that, despite the Brighton declaration, there seems to be very little sign of the European court affording us the margin of appreciation that it is supposed to do? In the light of this case, and another recent case that would have attracted the House’s attention, is it not time to consider cutting the links with Strasbourg?

[Lord McNally]

I would very much regret that. We get enormous benefits from being part of a wider regime of human rights. However, I am equally proud of the reforms that were brought through by the Brighton declaration. I would also say that we have not exhausted the Strasbourg system with this case and are considering whether to appeal. As I reminded the noble and learned Lord, the actual judgment was a very narrow one that did not disown IPPs or say that they breached the Human Rights Act.