Defamation Bill
Lord Garnier Excerpts(11 years, 4 months ago)
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Mrs Grant
I have just explained that we have requested that an early resolution procedure should be looked into, and if we have an early resolution procedure, we do not need a permission stage. As I have explained, having a permission stage and an early resolution procedure would create far too much delay and cost, which is not what anyone wants. I would have thought that the shadow Minister, having been a solicitor, would know the effect that can have on claimants.
Mrs Grant
I would also like to make the point—I can hear that there are concerns about this issue—that I am, however, aware of the strength of feeling that exists on this matter and on whether the Bill should contain a provision requiring non-natural persons trading for profit to show substantial financial loss. As we have made clear at earlier stages in the Bill, in order to satisfy the serious harm test, such bodies are likely in practice to have to show actual or likely financial loss anyway. However, I can confirm that we are prepared to consider actively that aspect of the Lords amendment further, and we will listen carefully to the views expressed in both Houses.
Sir Edward Garnier
I listened with care to what the shadow Secretary of State said just now. Although it is true that clause 1 might be a retrospective application, the ordinary rules of strike-out and the ordinary rules of court that police abusive cases are not altered. If the court is faced with an abusive claim by a company, it will be dealt with. One does not need legislation to police the administration of such proceedings.
Sadiq Khan
I will give two examples, and then I will give way to the hon. and learned Gentleman, as I know he has an interest in this matter.
Let us look at some of the consequences for the Ministry of Justice, the Minister’s Department. The Government amendment means that anyone, including a whistleblower, who wants to criticise the way a private company runs a prison using taxpayer money could face the threat of an action for damages, whereas he or she would not for criticising a public sector prison. This should be about protecting the reputation of the justice system, rather than big corporations. It would also mean that someone wanting to raise concerns about a danger to public safety caused by a private company managing, for example, medium risk offenders, once the Government’s plans for privatising our probation service have been implemented, would face the threat of defamation.
Do the Government really want this unlevel playing field—which the Liberal Democrats will support in about 20 minutes? I remind the House that these are private companies undertaking public functions at taxpayer expense. At a time when the Government are handing over more and more of our public services to private and voluntary groups in education, health care and crime and justice, less and less of taxpayer spend will be subject to the uninhibited public criticism Lord Keith identified as so fundamental.
Sir Edward Garnier
First, may I make it perfectly clear to the ignorant person who tweeted about me this afternoon that I have, in fact, declared my interest in relation to this matter on the amendment paper?
Is the right hon. Gentleman aware that in the Derbyshire county council case, while Lord Keith held that the council should not be able to sue, he confirmed that corporations should be able to sue to protect their trading reputation? The heart of the right hon. Gentleman’s argument is that this is about inequality of arms. He thinks rich, very large and hugely well-resourced companies are bullying less resourced individuals, but the same criticism could be made of immensely rich private individuals who bring claims. Robert Maxwell used his millions—perhaps they were other people’s millions—
Mr Speaker
Order. I am sure the hon. and learned Gentleman will have an opportunity to catch my eye and make his own speech in due course, but we do not have all that long for this debate and we have got the gist of his point.
Sadiq Khan
The hon. Gentleman might have been in the House in 1993, when Lord Keith made his judgment, but the numbers of private companies undertaking public functions in ’93 were far fewer than they are in 2013. The hon. Gentleman knows that I have huge respect for him, but if his party has its way, with the support of the Liberal Democrats, even more public services will be tendered and will be run by private companies.
Large elements of the Bill show how Parliament should legislate. Political consensus on the overarching need to reform followed by detailed, expert debate on the substance in both Houses, all informed by a dedicated set of campaigners and non-governmental organisations, has helped to turn the original substandard Bill into a better set of proposals. I hope that today the House will agree with us one more time on the importance of retaining the key changes made to the Bill in the Lords. Do you know what? Defamation Bills do not come around very often—this is only the third since 1853. We must grasp the opportunity and deliver the modern, updated defamation laws warranted by our tradition of open and free speech.
Sir Edward Garnier
There have been three defamation Bills in my lifetime; I do not know whether that helps the right hon. Member for Tooting (Sadiq Khan)—
Mr Speaker
Order. May I point out that I think the hon. and learned Gentleman was born not in 1853 but, if memory serves me, in 1952?
Sir Edward Garnier
On 26 October, and I share a birthday with President Mitterrand and Hillary Clinton. Let us move on, however.
I have already declared my interest, so I hope I do not have to do so again. I want to say that this is not a question of being right or wrong. I am not saying that I am right, that my hon. Friend the Minister is right or that the right hon. Member for Tooting is wrong, but that this is a matter of judgment and opinion. We are perfectly entitled to have different views about how best to order the law on defamation.
It so happens that the right hon. Gentleman and I take a different view on Lords amendment 2 on non-natural persons. I happen to think that Lord Bingham was right in the Jameel case in 2007 to make it quite clear that he thought it was perfectly proper and right for corporations to be able to bring actions for libel without proof of special damage—without having to show money loss. I will not recite all that he said, as there is not enough time, but it is worth bearing it in mind when some of the more hyperbolic accusations are traded about companies that bring actions for libel to terrorise or use their financial muscle to inhibit the defence of those actions or to inhibit free speech.
Dr Huppert
Does the hon. and learned Gentleman accept that there is a fundamental difference between non-natural persons and natural persons in terms of aspects to do with feelings, for example? Corporations of any size cannot have feelings that can hurt by defamatory action; there is a fundamental difference that the law should reflect.
Sir Edward Garnier
That is not only fundamental; it is highly uncontroversial. Human beings can get damages for hurt to their feelings; companies cannot. One cannot libel a company by accusing it, for example, of adultery, whereas one can so libel an individual. There are plenty of obvious and not very surprising differences between the law relating to individuals and the law relating to companies, but there are examples of things which affect companies’ trading reputations, which should be susceptible to protection.
We should also bear it in mind that there are different types of company. There are not-for-profit companies which are not in the business of making money and which, if they were libelled, would not lose money. It may well be said in response to me that the amendment deals with that. They would get permission from the court to bring that action, but that just creates another hurdle, as the Under-Secretary of State for Justice, my hon. Friend the Member for Maidstone and The Weald (Mrs Grant), made clear.
Sir Peter Bottomley
I would be grateful if my hon. and learned Friend could advise briefly on two points. First, at which stage should the courts have said, “We are not going to go further with the claim against Dr Simon Singh or against Dr Peter Wilmshurst”? Secondly, with reference to loss, in 1950 two doctors said that tobacco is very bad for people’s health and asbestos is very bad for people’s lungs. That was not the general view. It was an insight, and the companies involved in selling tobacco and selling asbestos could have sued for loss. That should have been struck out as well. There should be no libel for such cases. How would my hon. and learned Friend stop that kind of thing without the proposed new clause?
Sir Edward Garnier
I shall not unwind the case of Singh or the Wilmshurst case; they have been before the courts and have been dealt with. As it happens, the case of Simon Singh became controversial because it was an argument about whether the words complained of constituted allegations of fact or whether they were capable of constituting comment. That is the point on which it went to the Court of Appeal.
There was an action in South Africa brought by a tobacco company which sued and recovered damages on the allegation that its products promoted cancer. Things change. That is the advantage of having an organic system of law which enables the courts to deal with evidence and reach conclusions about whether a company or anyone else has been attacked inappropriately.
As I was saying to the hon. Member for Cambridge (Dr Huppert), it is not all that hard to think of statements which seriously injure the general commercial reputation of trading and charitable organisations. An arms company—
Sir Edward Garnier
If the hon. Gentleman will forgive me, this debate stops at 7.13 pm.
Arms companies can be accused of bribing foreign officials. Oil companies can be accused of damaging the environment. International humanitarian agencies can be accused of wrongfully succumbing to Government pressure. Retailers can be accused of exploiting child labour, and so on. As the right hon. Member for Tooting said, the directors or the leading members of those companies may also have a parallel course of action, but the company itself should not be shut out from pursuing a course of action if that is available to it.
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 of its own staff and make people less ready to deal with it and less willing or less proud to work for it. If that were not so, corporations would not go to the lengths they do to protect and burnish their corporate images. There is nothing repugnant in the notion that this is a value which the law should protect, and it is not an adequate answer that the corporation can itself seek to answer the defamatory statement through press releases or public statements, as protestations of innocence by the impugned party necessarily carry less weight with the public than the prompt issue of proceedings which culminate in a favourable verdict by a judge or a jury.
Furthermore, why should one have to 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 issuing of proceedings, and the more diligent its pursuit of a claim, the less the chance that financial loss will actually accrue? It may be argued against me that all these matters will be dealt with in the permission hearing, but when is the permission hearing to take place? Will the corporation have to wait right until the end of the limitation period? Will it have to wait for weeks and weeks while the next set of accounts comes out, so that it can work out whether financial loss has occurred as a consequence of the libel? There might be any number of causes of a company suffering an economic downturn, particularly in a recession.
I return to the point I made about not-for-profit companies and charities.
Dr Huppert
Has the hon. and learned Gentleman seen that the amendment that I hope the Government will bring forward specifically refers to trading-for-profit organisations, as the Joint Committee recommended? It specifically excludes charities.
Sir Edward Garnier
I am discussing the amendment to the Bill, not the one somewhere else that the hon. Gentleman was happy to talk about.
I agree with my hon. Friend the Minister in relation to subsection (4) of the new clause proposed in Lords amendment 2. It seems to me that procedurally we can only deal with the amendment as one; we cannot chop and change it. Subsection (4) states:
“Non-natural persons performing a public function do not have an action in defamation in relation to a statement concerning that function.”
It seems to me that the common law, as expressed through Derbyshire, is there. If we legislate, we will create sclerosis. Indeed, I think that there are some disadvantages in legislating to put the Reynolds defence into statute. We will no doubt make lots of work for our learned friends, but we will make the process of amending the law of libel, particularly in relation to public interest statements, all the more difficult as we lock it down into statute.
I urge the House to think carefully before deciding on whether to agree to their lordships’ amendment. I urge Members to give my hon. Friend the Minister and the Government the time and space to get this right with mature consideration and not to be seduced by the siren calls of the pressure groups, no matter how well motivated they might be, into producing what would be a deleterious and damaging end to this affair.
Paul Farrelly
I wish to speak briefly to Lords amendment 2, which would be a major change to the Bill, and to amendment (a) to Lords amendment 3, which stands in my name and that of the hon. Member for Worthing West (Sir Peter Bottomley). I will curtail my remarks, because I want to give other Members the opportunity to speak.
Lords amendment 2 would be a major change. The issue here is not just about big corporations wanting to bully and intimidate the little people, as McDonalds did years ago, simply because they can. The Culture, Media and Sport Committee’s report highlighted a more recent case of almost flagrant abuse of our libel laws by a large corporation: Tesco’s libel action against The Guardian—some people’s favourite paper, and some people’s hate paper—in 2008. We can generalise from that case.
It has recently been in vogue to condemn aggressive and widespread tax avoidance, and that was what The Guardian story was all about. It made a mistake in that story and referred to the wrong tax. It turned out that Tesco was avoiding not only the wrong tax but the tax that it said it was not avoiding. The Guardian, as any newspaper would, apologised, made a clarification and offers of amends and ensured that it used all the procedures of the law, as set down the last time this House looked at reform of libel law, but Tesco was just not interested.
The reason Tesco turned everything down, stalled for time and racked up the costs was not just that it could, but that it, like so many corporations, wanted to chill. It wanted to take the newspaper and its journalists out of the game. It wanted to send a message. The Guardian—it could have been any newspaper—faced a bill of up to £5 million if the case went all the way to the House of Lords, or now to the Supreme Court, because the issue in libel is cost, not damages, so it settled for a nominal sum. The costs were massive.
Lords amendment 2 would have cross-party support not only in the Lords but here, if Members had a free vote. The only people who oppose it are those organisations that like to chill and those firms that make massive amounts of money out of the libel industry. The amendment would not stop companies suing; it just asks that they demonstrate significant damage when they can fight back by other means.
The Lords amendment also asks that the court approve a writ. Currently people can just go to court, a writ is rubber-stamped and then one is obliged to spend one’s time and money fighting it. The refusal of Rachel Ehrenfeld, an American, to go thorough that procedure led to the Americans introducing their laws to stop our libel judgments being enforced in the United States.
Sir Edward Garnier
I ask the hon. Gentleman to have a look at new clause 2(3), which says:
“The court must strike out an application under subsection (2) unless the body corporate can show that the publication of the words or matters complained of has caused, or is likely to cause, substantial financial loss”.
What happens to a charity or non-profit-making company that is not in the business of making a financial gain or a financial loss if it is defamed? The case would have to be struck out under the clause.
Paul Farrelly
The hon. and learned Gentleman has forgotten that the proposal does not apply to non-profit-making organisations.
This is the only part of the Bill, until we see the civil procedure rules, that provides for early strike-out. That would have helped Peter Wilmshurst, sued by NMT, who could not ultimately pay the bills that he had racked up, leaving aside the worry for his family in putting everything on the line. The amendment would get around the distinction drawn in the Simon Singh case—the artificial discrimination between corporate bodies and non-incorporated bodies that allowed the British Chiropractic Association to sue him in the first instance.
The Lords amendment is sensible and proportionate. It would not prevent individuals in companies, particularly private companies, from suing if they felt defamed by an article that attacked their company. It would also, as the hon. Member for Worthing West said, extend the Derbyshire principle to contracted-out firms where they are providing public functions—Atos, for example. In short, it keeps up with the times.
I put my name to Lords amendment 3, tabled by the hon. Member for Worthing West, partly, again, on the grounds of reducing costs. Beliefs are very subjective and decisions are more objective if the courts interpret them sensibly. I also wanted to tease out from the Government why, having rejected all our concerns in the Bill Committee about having another tick list, as the Reynolds defence had proved so costly, they had so radically changed their mind. The Minister has not elucidated that. However, by virtue of the fact that the matter was uncontested in the Lords, I am happy that a court can consider all circumstances of the case. I hope that in a spirit of cross-party truce, my colleague the hon. Member for Worthing West will speak to his amendment.
Dr Huppert
It is a pleasure to follow the hon. Member for Worthing West (Sir Peter Bottomley), with whom I have had many promising discussions on the issue. I am delighted that the Bill is back in the Commons. There was a period when, due to the actions of the Labour peer Lord Puttnam, there was a risk. I am glad that that risk did not eventualise and that it turned out not to be a problem.
This Bill will make a significant change to the costs of libel and to free speech and it will reduce libel tourism. I am particularly pleased about clause 6, which provides specific protection for peer-reviewed academic and scientific publications. That is something that I value greatly and I am delighted that we will be able to make those protections, because we have heard of too many cases of learned journals being silenced.
The issue remains, however, of corporations and non-natural persons. As I argued earlier, they are different. They do not have feelings. They are categorically separate and there should be different rules for what happens when they wish to bring libel actions. Significantly, we have heard that they can abuse power, as in the cases of Peter Wilmshurst and Simon Singh. I was going to talk more about them, but a number of speeches have covered them.
There is, largely, cross-party agreement, with the notable exception of the hon. and learned Member for Harborough (Sir Edward Garnier).
Sir Edward Garnier
Does the hon. Gentleman accept that “a body corporate” in subsection (1)(a) of the new clause proposed by Lords amendment 2 does not restrict it to money-making corporations?
Dr Huppert
The hon. and learned Gentleman is correct. I understand that that is the intention and that is what was recommended. I eagerly anticipate a Government amendment and hope that it will address that issue. None of us wants to put constraints on charities. This relates to profitable or profit-making organisations, or at least those that are trying to make a profit.
I heard the Minister make a commitment to actively consider such amendments. My understanding is—I am still new to parliamentary procedure—that that is as far as a Minister is able to go at this stage. I would be grateful if it was not her intention to set high expectations for such an amendment being tabled in the Lords. She is welcome to clarify the issue now; otherwise, I am very happy with what she said and look forward to the amendment.
We will get cross-party agreement on corporations having to prove that they have suffered serious financial harm. Simon Singh has correctly said that that would have saved him. Such a provision is still missing from the Bill, but I believe that the Government have now said that they will address it. I trust the Government on that and I look forward to the amendment and to the Bill finally changing.
As John Kampfner, the former chief executive of Index on Censorship, said:
“When we launched the Libel Reform Campaign in 2009, only the Liberal Democrats backed change. Now the cause has cross party support.”
I look forward to seeing this Bill become an Act.
Crime and Courts Bill [Lords]
Lord Garnier Excerpts(11 years, 5 months ago)
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Maria Miller
I understand the sentiment behind my hon. Friend’s question. I can reassure him that we have been working directly with representatives of the local press to ensure that the new system does not, as he suggests, burden them unnecessarily. Perhaps the right hon. and learned Member for Camberwell and Peckham (Ms Harman) will remark on that further; I will do so in my comments later.
Exemplary damages will be awarded only in the most serious cases, in line with both the Leveson report and the report of the 1997 Law Commission. The test for the award will be: where the defendant’s conduct has shown a deliberate or reckless disregard of an outrageous nature for the claimant’s rights; where conduct is such that the court should punish the defendant for it; and where other remedies would not be adequate to punish that conduct. The supplementary new clauses ensure that the new exemplary damages system works in practice.
New clause 22 sets out factors that the court must take into account in deciding whether an award of exemplary damages is appropriate, and whether membership of an improved regulator was available to the defendant at the time of the events giving rise to the claims. If so, what reasons the defendant had for not being a member are factors that can be considered. The court must also have regard, so far as it is relevant, to whether the defendant has internal compliance procedures of a satisfactory nature in place and how they are adhered to.
Sir Edward Garnier (Harborough) (Con)
I wonder whether my right hon. Friend could provide me with some clarification. She says that the exemplary damages regime will apply as per the new clauses and so on. One of the exclusions from the definition of a “relevant publisher”, which she will find in new schedule 5, is:
“A person who publishes a title that relates to a particular pastime, hobby, trade, business, industry or profession”.
Maybe the “hobby” relates to the point made by my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg). What is the position of an irrelevant publisher, if I can describe him as that, who publishes a magazine or some other publication about a pastime, hobby or trade, but who none the less behaves within the terms of Rookes v. Barnard? Would the court still be able to award exemplary damages in that circumstance?
Maria Miller
My hon. and learned Friend raises an issue in which he is well versed. If I do not provide a complete answer, then I will get back to him with all the details. Clearly, if somebody is not a relevant publisher then they are not drawn into the self-regulatory scheme. They would not be subject to exemplary damages or be eligible for the scheme. Therefore, they would not be caught within this remit. We have so drawn the definition of “relevant publishers” to ensure that the scheme does not catch people we do not need to catch, and that is why we have been careful to set out the three tests in new clause 29—to ensure that we are clear about who is covered. Some individual organisations might well fall close to the line, but then it would be for the courts to decide.
New clause 23 sets out matters to which the court must have regard in deciding the amount of exemplary damages appropriate, and the key principles governing the court’s consideration are that the amount should be no more
“than the minimum needed to punish the defendant for the conduct complained of”
and that it should be “proportionate”. New clauses 24 and 25 ensure that those provisions will operate effectively in cases involving more than one claimant or defendant.
For completeness, I shall also mention new clause 26 and amendment 121A. New clause 26 implements recommendation 71 in Lord Justice Leveson’s report and confirms that, in cases under the new system, aggravated damages should be awarded only to compensate for mental distress and should have no punitive element. Amendment 121A provides that the provisions on exemplary damages come into force one year after the date on which the body is established by royal charter. That will be a powerful incentive to the press to establish the new regulator on a timely basis. For all their rarity, the availability of exemplary damages should send a powerful signal to publishers.
I turn to the provisions relating to costs in new clause 27A. The proposals are designed to give further real and powerful incentives and give effect to Lord Justice Leveson’s recommendation that the award of costs should be another tool to encourage publishers to join the regulator. The new clause would provide a clear presumption that where a claimant took a publisher inside the regulator to court, even if the claimant was successful, the normal rule that their costs would be met by a losing publisher would not apply. In other words, a defendant publisher that had joined the regulator should pay a claimant’s costs only in limited circumstances—if the issue could have been resolved at arbitration, had the defendant agreed to its being referred, or if it was just and equitable for the defendant to pay the claimant’s costs.
Ms Harman
The royal charter requires the regulator to provide for an inexpensively run arbitration service which will impose no costs on complainants. As the hon. Gentleman will know, things can happen further along the chain after arbitration has been agreed to, but the essence of arbitration is that both sides embark on it agreeing that the arbitrator will settle the issue.
I think that this will be a great step forward, because it will deal with the problem of inaccessibility. Most people who are defamed, or whose privacy has been invaded in what is termed a media tort, would never dream of being able to go to court, although many lawyers are prepared to act on the basis of conditional fee arrangements. A free-to-use arbitration service is therefore an important component of the Leveson package contained in the royal charter. It is good news for claimants, but it also means that newspapers will be well and truly incentivised not to remain outside the regulatory body. If they are not in the regulatory body and arbitration is therefore not available to those who may complain about them, it is possible that when the case goes to court, costs will be awarded against them even if they win.
Ms Harman
That is how we understand that the system will work. May I invite the hon. and learned Member for Harborough (Sir Edward Garnier) to answer his question at the same time as asking it? I suspect that he thinks he knows the answer better than I do. He does not, but he probably thinks he does.
Sir Edward Garnier
What a charming way of allowing an intervention! I should have thought that a fellow member of the former Solicitor-Generals’ club would be a little more polite to me. I shall have to take our dispute to arbitration as soon as possible.
There is no doubt that the proposal presented by the Government, and agreed to by the Opposition, to encourage people to become members of the regulatory body and to make use of an arbitration scheme has its attractions, but I think that the right hon. and learned Lady and my right hon. Friend the Secretary of State should be careful not to be seduced into thinking that arbitration equals no expense, no time, and simplicity. The sorts of cases that go to arbitration can be just as complicated as those which go to court and the expense involved in a fully tuned-up arbitration is no less than that of a piece of litigation. So this is a jolly good idea and let us all say how wonderful it is, but let us not seduce ourselves into thinking that arbitration is some magic answer, because there will be plenty of cases where the interlocutory procedures will be far too complicated for speedy mediation or arbitration under the regulatory scheme.
Sir Edward Garnier
I thank the Secretary of State for Culture, Media and Sport, my right hon. Friend the Member for Basingstoke (Maria Miller), and the right hon. and learned Member for Camberwell and Peckham (Ms Harman) for introducing this section of the debate. It is clear that Members on both sides of the Chamber have worked extremely hard to bring the matter to a head. As I said in the debate opened earlier by the Prime Minister, everyone must be congratulated, but we must not oversell it or exaggerate the claims for the solution that may have been found.
I was interested in looking at some of the new clauses and new schedules to see that the statutory framework that seems to have been set down for the Crime and Courts Bill makes some changes to the law, but only up to a point. If one looks at new clause 21A, provision is made for the award of exemplary damages unless the defendant was a relevant publisher. But that is cancelled because the court can disregard subsection (2), and that is cancelled because under subsection (4) the court is not prevented from making an award of exemplary damages for other reasons. It rather disappears up its own grammar—I was about to use a rather unparliamentary term. We might need at some stage to reconsider the English used in the new clause if it is to be understood by the people we wish it to attract.
The other point we ought to think about—something my hon. Friend the Member for Hexham (Guy Opperman) and I were discussing only a moment ago—is that we must be careful not to set up two regimes for exemplary damages. There already exists a common law regime for exemplary or punitive damages. Broadly, it is available where a state actor has behaved in an unconstitutional or high-handed fashion, for example when the police or the Prison Service grossly misbehaves in relation to someone in custody. That example is perfectly easy to describe: the court will award punitive and exemplary damages to mark society’s disapproval of the behaviour of that arm of the state.
Guy Opperman
Does my hon. and learned Friend agree that there appears to be, in effect, almost a mirror image of the common law system of exemplary damages? Under the present system, which he rightly describes, for an unlawful arrest involving a police officer verballing an innocent defendant, for example, a judge would give exemplary damages. Surely that would be mirrored in exactly the same way in the provisions proposed in the new clause. All that might be good, but surely those provisions would apply on an ongoing basis in any event. Does he agree that the concern is that the provision on exemplary damages does not necessarily change the common law?
Sir Edward Garnier
I think that I largely agree with my hon. Friend. The first limb relates to unconstitutional state behaviour, which he described and I mentioned, but the second limb relates to situations in which, under the common law, the defendant has calculated that the gain he could make from the civil wrong he commits will lead to greater profit for him than any potential damages he might have to pay as compensation to the wronged person. The court can recognise that by punishing the defendant, and deterring others from doing the same thing, through the separate and additional award of exemplary damages. Those two limbs of the exemplary damages regime are well described in the 1964 case of Rookes v. Barnard, but I will bore the House no further on that.
What we are creating is a regime that will be similar to the common law regime but not exactly the same and that will be limited to “relevant publishers”. We need to think carefully about whether we are setting up two systems that are close, but not quite parallel, for securing exemplary damages. While we are legislating to adjust exemplary damages for the perfectly sensible and understandable motive of encouraging newspaper publishers, or those who will become “relevant publishers”, to enter a scheme under a regulator, I wonder whether we ought to bring together everything relating to exemplary damages under one statutory umbrella. I say that not simply because I think that it would be neater, but also because of what is said in subsection (4) of new clause 30, which defines a relevant claim. It states:
‘“Relevant claim” means a civil claim made in respect of any of the following—
(a) libel;
(b) slander;
(c) breach of confidence;
(d) misuse of private information;
(e) malicious falsehood;
(f) harassment.’
Under the common law, libel, slander and malicious falsehood are already susceptible to punitive and exemplary damages, but as we know from Max Mosley’s case against Mirror Group Newspapers—I will not rehearse the facts of the case—the judge, when asked to award exemplary damages to the claimant in respect of the behaviour of the defendant newspaper, said, “Under the common law I do not think that I can extend the ambit of exemplary damages beyond the categories of libel and slander and so forth to a claim involving a breach of confidence or the misuse of private information.”
In the Bill we are extending by statute what that judge could not do, but we are extending it only to cases involving “relevant publishers”; we are not extending it to what I will crudely call “irrelevant publishers” or individual defendants who might misbehave in such a way that brings them within the regime of either of the two limbs of exemplary damages. I do not want there to be two separate types of exemplary damages. One statutory system should govern the consideration and awarding of exemplary damages, not one and a half or two systems. I urge the Government to consider this when they are thinking about how to take these matters forward. Perhaps having done so they will think that my concerns are of no importance or account, but I raise them nevertheless, admittedly in the light of having seen the document only during the course of this afternoon.
New clause 27A on the award of costs mirrors the arguments about exemplary damages. I entirely understand that the policy behind exemplary damages and the statutory costs regime as described in this set of manuscript amendments is intended to incentivise relevant publishers to come within the regulatory scheme. That is understood and perfectly sensible. However, we are in danger of misleading ourselves if we think that that is going to lead to easy and early resolution of media disputes. A moment ago I had a brief discussion with the right hon. and learned Member for Camberwell and Peckham (Ms Harman) on arbitration and so forth. New clause 27A(2) —I will read it, if I may, because it might be helpful—says:
“If the defendant was a member of an approved regulator at the time when the claim was commenced (or was unable to be a member at that time for reasons beyond the defendant’s control or it would have been unreasonable in the circumstances for the defendant to have been a member at that time), the court must not award costs against the defendant unless satisfied that…the issues raised by the claim could have been resolved by using an arbitration scheme of the approved regulator, or…it is just and equitable in all the circumstances of the case to award costs against the defendant.”
That involves a bit of saying, “On the one hand but then on the other.” It is not quite clear which is the desired policy because there is a bifurcation.
On the question of whether
“the issues raised by the claim could have been resolved by using an arbitration scheme of the approved regulator”,
we would of course first have to see what that arbitration scheme looked like. Going back to the days of the now-no-longer-regretted Press Complaints Commission, that organisation, because of how it was set up and staffed and how the panels of adjudicators were composed, was wholly incapable of dealing with hugely complicated factual issues or with matters that required quite a nice calculation, or a nice discussion, of matters of law.
One might think that it would be very sensible that if a series of grossly defamatory allegations were made in a front-page article in a tabloid newspaper, or any other newspaper, that would lead to a dispute resolution process of the sort envisaged under this regime. Of course, it has a spurious attraction: “Let’s mediate, let’s settle, and let’s get it all dealt with quickly and cheaply and with the least possible intervention by lawyers.” As a matter of theory, that is a jolly good idea, but disputes come in different shapes and sizes. One can have the simplest possible dispute that does not require evidence or looking at complicated documents. I give the example of the meaning of words. If an article is defamatory on the face of it, a professor of English does not need to come and give a lecture about what this word means or that word means. The judge, if he is the arbiter, or the arbitration panel, can say, “This, in its natural and ordinary meaning, bears the following defamatory meaning”—end of story. Then the defendant, or the respondent to the arbitration, can say, “Okay, I accept what you say and I apologise—I didn’t mean that.” If meaning is the only question that has to be considered, some form of early, non-court dispute resolution, assuming that the panel is competent, would be a perfectly sensible way to do it.
Let us assume, however, that four contended meanings can be derived from the words under discussion. The defendant newspaper, be it a relevant publisher or otherwise, may say, “We don’t think that the words have those two highest meanings, but we do think that they have the two lower, less serious and less defamatory meanings. In so far as those meanings are to be derived from the words, we say they are true and we intend to justify them. We will also go further by saying that those meanings are not only true as a matter of fact, but that, in so far as they comprise or include comment, they are honest comment.” That will require the proposed system’s mediation procedure to go into all sorts of complicated questions with regard to the disclosure of relevant evidence, documents and so on.
Mr Speaker
Order. The hon. Gentleman’s intervention is exceptionally lengthy. I know that he has a distinguished record at the bar. If he were being paid by the word he would be greatly enriched, but I trust that he has made his point to his satisfaction. If not, he can always have another go in a moment.
Sir Edward Garnier
What the PCC was good at was dealing with unfairness—the hideous intrusion on private grief, the doorstepper, the camera coming through the letter box, the knock on the door demanding a photograph of the dead child and so on. The PCC dealt with that extremely well, but what it could not deal with was the multi-issue disputes that I have outlined.
It is not just a question of assessing the truth or falsity of words or of whether they are defensible and honest comment. On honest comment and certain forms of qualified privileged defence, the judge or the arbiter has to consider the question of malice and the respondent newspaper’s motive when it published the words complained of. I do not think, even with the best will in the world, that the proposed arbitration system for relevant publishers, under a recognised regulator, good though it will be, will be sufficiently well breeched and resourced to substitute itself for a disinterested judge when dealing with the case.
When it comes to disciplinary measures or the incentivisation of costs to bring people into this scheme, either as claimants or defendants—this goes back to a point that I made in the earlier debate—it will not be possible to deal with many expensive cases cheaply and quickly. They will need to go to a more formal, court-like, if not court, system. They will require proper arbitration with qualified arbiters, the sifting and assessment of evidence, the judging of witnesses and the reading of lots of documents. Those are functions of any form of arbitration dispute and it will not be quick or cheap.
Richard Drax
Is my hon. and learned Friend saying that this proposed policy is a complete waste of time and that the system we have is perfectly workable, so long as it is more accessible to the many people who are not well off and cannot afford a listening?
Sir Edward Garnier
I most certainly am not saying that it is a complete waste of time. I am saying that we should not seduce ourselves into thinking that it will do more than it can. It will be a far better system, all being well, than the PCC. It will have real teeth. It will have the ability to discipline respondent newspapers that are within the scheme by awarding costs and penalties of one sort or another.
The cases in which the new system will award a penalty of £1 million will be so rare as to be unthinkable. I imagine that it will deal with cases rather similar to those that are dealt with under the provisions of the Defamation Act 1996 on summary decisions, for which there is a limit of £10,000. I suspect that many of the cases that at the moment go to the High Court under those provisions will, if people are sensible, go into the new scheme. It will look at low-level damages, low-level punitive sanctions and cases that do not involve lots of complicated factual and legal issues.
Just because the new system will not look at many cases and just because the cases will not be hugely complicated does not mean that we should not do it; we should. We need access to some form of arbitration system for the people who have been bullied and disturbed by tabloid newspapers sticking their lenses through people’s letterboxes and so on. However, I urge the House not to think that we have suddenly waved a magic wand and that all future disputes will be resolved between victims or individual claimants and large media organisations through a cheap and speedy system; they will not. We ought to be a little cautious about that.
Mark Reckless
I have been enjoying my hon. and learned Friend’s speech for the past 20 minutes and I believe that the House benefits greatly from his exposition of these concepts. However, I am still unclear whether he supports or opposes what is proposed.
Sir Edward Garnier
I do apologise if I did not make myself clear. I will try to do so again, but perhaps rather more speedily. I support what is in the measures. It is easy to understand that point, I suspect.
Sir Edward Garnier
The second point is that, although I support the measures, I suspect that they will be of limited availability and limited use. However, that they will not solve every problem does not mean that we should not deploy them to solve some problems. As I said a moment ago, the sorts of problems that I think they will be used to solve are those that are currently dealt with summarily under the Defamation Act 1996 with a damages limit of £10,000. There is no suggestion of a damages limit here, but I think that it is in that area of dispute that the system will work. It will be broadly in disputes over meaning, unfairness or beastly behaviour by a newspaper that it will work.
The new system will also bring into the exemplary damages regime, to go back to my first set of arguments, causes of action for which punitive damages cannot currently be received under common law, such as breach of confidence and misuse of private information.
There is a lot to be said in favour of what is proposed. I just urge Members not to get excessively excited about what we are achieving. There will come a time when we have to look at the guts of the regulatory system, including at who is to be on the panels that decide the cases and so on. There is therefore a lot more work for the Minister for Government Policy and the Secretary of State for Culture, Media and Sport to do, with co-operation, I hope, from the Opposition parties and our coalition partners.
I am probably going to the church by way of the moon, but I really do think that much of what has been said today is commendable, but that much of it is too overexcited. Yes, we should celebrate the consensus, but let us not be misled by it.
The Secretary of State for the Home Department (Mrs Theresa May)
I beg to move, That the Bill be now read the Third time.
The Bill has undoubtedly been enhanced by the process of parliamentary scrutiny, so I would like to pay tribute to all right hon. and hon. Members who served on the Bill Committee and to those who spoke on Report, as well as to the Clerks and the Bill teams in my Department and the Ministry of Justice for their advice and support. In particular, I would like to commend the work in Committee of the Minister for Policing and Criminal Justice, my right hon. Friend the Member for Ashford (Damian Green), and the Minister of State, Home Department, my hon. Friend the Member for Taunton Deane (Mr Browne), who is unable to be here this evening owing to the imminent—it might even have happened in the past few hours—arrival of the baby that his partner has been expecting.
The Bill already had many excellent features when it was first introduced in the other place last May, but it now returns to that House with a number of important new additions to which I shall refer. I welcome the broad measure of support for many—indeed, for most, I think it fair to say—of the provisions in the Bill. Over the two days on Report, the Government have, quite properly, been probed on a number of detailed aspects of the Bill, but the approach of the official Opposition, in Committee and again on Report, has been to seek to weigh down the Bill with a litany of requirements to produce impact assessments or to undertake reviews. Of course, we must properly assess the impact of these important measures, but the Government are determined to get on with the task of implementing these much-needed reforms to our justice system, not to procrastinate and delay by undertaking review after review.
I commend the efforts of all those who work with professionalism and dedication in our criminal and civil justice systems, but reforms are undoubtedly needed if we are to continue to see further reductions in crime, including serious and organised crime, and drive further improvements in the efficiency, effectiveness and responsiveness of the police, prosecutors, the courts, and prisons and probation services. Our reforms must be judged, first and foremost, by whether they help us to cut crime and lead to a reduction in harm to our communities and to fewer victims of crime.
For too long, too many organised criminals have managed to stay one step ahead and beyond the reach of law enforcement. That will be the case no longer. The new National Crime Agency will have the capabilities, powers and authority to bring about a step change in our response. It will have a global reach and a local impact. It will lead the fight against the gangs that traffic drugs, people and guns; who abuse and exploit children; and who corrode and subvert our institutions and cost our economy billions of pounds a year. It will not do this alone, but in partnership with others. We are redrawing the policing landscape, with the NCA at the centre. The public will be better protected, as will our national security, for its establishment
The introduction of the new drug-driving offence will bear down on those who put other road users at risk of death and serious injury by taking illegal drugs and driving, and the enhanced protection for householders who honestly act in self-defence, and in the defence of their loved ones, when faced with an intruder in their home will ensure that the criminal justice system treats them as the victim, not as the perpetrator, of a crime. Furthermore, in helping the NCA and its law enforcement partners to tackle serious, organised and complex crime, the Bill provides for an innovative new tool—the deferred prosecution agreement—that will enable more organisations that commit economic and financial crimes to be brought to justice.
Among the important changes made to the Bill in this House is the provision to strengthen the civil recovery regime. As well as seeking to prosecute and convict those who commit crimes for financial gain, we must also ensure that we use all legitimate means to deprive such individuals of their ill-gotten gains wherever they may be. The Bill plugs a significant gap in the Proceeds of Crime Act 2002 that had opened up as a result of the Supreme Court’s judgment in the case of Perry. It cannot be right that someone who commits crimes in this country should be able to escape the reach of our courts by siphoning off the profits of their criminal activity to buy property and other assets in another jurisdiction or to hide away cash in some foreign bank account. The Bill makes good the damage done to the civil recovery regime by the Perry judgment and ensures that, provided there is some connection with the United Kingdom, the reach of our courts continues, as before, to extend worldwide.
We have also made another important change to the 2002 Act. The system of restraint orders under that Act is designed to ensure that someone suspected of profiting from crime cannot squander or squirrel away their assets while the proper legal processes leading to the forfeiture of those assets is under way. However, it cannot be right that those with significant restrained assets can then qualify for publicly funded legal aid, free from any contribution. Those who can afford to pay towards their defence costs should do so, even if their assets are frozen. I am pleased that the House has today agreed to add provisions to the Bill to end this abuse. In implementing the scheme, we will want to be assured about the potential impact on the moneys paid as compensation to victims or to the police and prosecutors to fund further enforcement activity. Our aim should be to ensure that more is received from criminals, rather than simply to redistribute funds around the criminal justice system.
The Bill also includes some important reforms to the system of immigration appeals. There are two drivers for these reforms. The first is to ensure that the limited resources available in this tight financial climate are focused on those immigration decisions, such as a refusal of asylum, that have the more significant impact on the persons affected. The refusal of a family visit visa simply does not fall into that category of seriousness. No other category of visit visa attracts a right of appeal and the costs of the appeals process in such cases simply cannot be justified, particularly when the more timely and cost-effective option is to submit a fresh application.
The second driver underpinning the reforms to the immigration appeals system is to ensure that those who are a threat to our national security are removed from this country as quickly as possible. It simply makes no sense for those whose presence in this country the Home Secretary has personally deemed not to be conducive to the public good should then be able to return to the United Kingdom to challenge the cancellation of their leave, nor should someone who is being deported on national security grounds be able to delay their removal from this country by raising any and all objections on human rights grounds, which must then be determined before the deportation can be effected. Following an amendment in Committee, such a person will now be entitled to an in-country appeal only where they would face a real risk of serious, irreversible harm if their deportation were to go ahead before the appeal had been heard.
Finally on this issue, I thank my hon. Friend the Member for Esher and Walton (Mr Raab) for his implacable resolve that the qualified right to respect for private and family life under article 8 of the European convention on human rights cannot be allowed to stand in the way of the will of Parliament on the deportation of foreign nationals who commit serious offences. Last June the House gave its unanimous support to changes to the immigration rules for this purpose. I have already indicated that I now intend to bring forward primary legislation as soon as parliamentary time allows to establish the correct approach to article 8 in immigration cases. I am determined that the will of Parliament on this issue will prevail.
My hon. Friend has also been assiduous in seeking to strengthen the safeguards in our extradition arrangements. It is vital that we have effective extradition arrangements with our European partners and countries further afield. This country must not become a safe haven for those who commit offences abroad, nor should those who commit crimes here be able to escape justice by fleeing our shores. However, I will be the first to accept that our extradition arrangements must not only be fair, balanced and proportionate, but be seen to be such. That is why I have brought forward a significant change to the arrangements—namely, to introduce a new bar on extradition on grounds of forum, so that wherever possible decisions about where a trial should be held must be made in open court, where they can be challenged and explained. We will continue to examine whether we can make additional changes to the Extradition Act 2003, both to add further safeguards where they are needed and to improve its effective operation. I am determined to bring forward such changes as soon as parliamentary time allows.
Sir Edward Garnier
I want to press the Home Secretary further on that point. When does she think parliamentary time will be allowed? Will it be before the end of this Session, or are we talking about later in the year or just some time in the future? [Laughter.]
Sir Edward Garnier
I congratulate all those who have had rather more to do with this Bill than I have on getting to this point, and I hope that it will have fair passage in the other place next week. I am particularly pleased that, after a great deal of to-ing and fro-ing, the Bill still contains clause 32 on deferred prosecution agreements. I have a bit of a one-track mind on the subject, but I suspect that this piece of the Bill is going to earn, rather than cost, the Treasury some money—acting as a criminal justice weapon that will be to the advantage of the Chancellor. I hope that as he thinks about this Wednesday, he will remember clause 32 of this Bill.
I urge my right hon. Friend the Home Secretary—and the Justice Secretary, who is temporarily absent—to get on with the underlying secondary legislation, Crown court rules and so forth, which will allow the deferred prosecution agreements to be implemented. I hope that we can prosecute the first deferred prosecution agreement before the end of this year and, if not before Christmas, very shortly after it. It will be a valuable addition to our criminal justice armoury.
I heard what my right hon. Friend the Home Secretary said about further consideration of extradition matters. It was, if I may say so, pretty dreadful that we did not have an opportunity to discuss any aspect of extradition this evening. This was an entirely self-inflicted wound, and I suspect that with a little more flexibility it could have been achieved—but there we are. I know that my right hon. Friend has said that something will be done about it later in the year. I am sure she will be as good as her word. I shall certainly be watching to see that she is.
Leveson Inquiry
Lord Garnier Excerpts(11 years, 8 months ago)
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Maria Miller
I will just finish my point, and then I will give way to a few of my hon. Friends who have been trying to catch my eye.
The police and crime commissioners took office on 22 November and the college of policing will come into being this week. The Independent Police Complaints Commission is being given new powers and Her Majesty’s inspectorate of constabulary has greater independence and a new non-police chief to head it. Increased transparency will support stronger systems for whistleblowing and both will contribute to a culture of openness and responsiveness, and will increase public confidence in the police. Those are all important actions that have already been taken. My right hon. Friend the Home Secretary will report to Parliament on all that in January.
Sir Edward Garnier (Harborough) (Con)
I thank my right hon. Friend for giving way so generously. It is becoming difficult to follow the thread of her argument. That is not her fault, because it has been interfered with by so many people seeking to intervene. I plead guilty to that myself.
Will my right hon. Friend confirm something that Lord Justice Leveson said on any number of occasions? I will quote paragraph 6.1 on page 1771:
“I will say again, because it cannot be said too often, that the ideal outcome from my perspective is a satisfactory self organised but independent regulatory body, established by the industry, that is able to secure the voluntary support and membership of the entire industry and thus able to command the support of the public.”
We are not talking about—and Lord Justice Leveson is not talking about—the statutory control of the press. Can we try to move away from the hyperbole that suggests that Lord Justice Leveson is demanding some form of Stalinist control of the press?
Maria Miller
I understand my hon. and learned Friend’s intervention, but I carefully draw his attention to the fact that the issue is about making the new system effective, and that is where the discussion lies. I gently remind him that what the Prime Minister set out last week was very clear: the Government absolutely agree with the principles in Lord Justice Leveson’s report, and we are looking at how they will work in practice.
Mr Whittingdale
I think I have already dealt with that, but the right hon. Gentleman is right. Lord Hunt himself suggested that there should be some statutory recognition of the body in the context of, for instance, defamation cases, so that it can be taken into account when damages are awarded. However, that is not the same as setting up a body by statute, or statutory underpinning. It is all very well for the right hon. Gentleman to laugh, but there is a massive difference between the law recognising the existence of a body and the law somehow having power over that body.
Sir Edward Garnier
Does my hon. Friend agree that the hon. Member for Vauxhall (Kate Hoey) may have slightly misquoted Lord Justice Leveson—wholly unwittingly, I am sure? Lord Leveson identified the Daily Telegraph investigation of parliamentary expenses as an example of investigative journalism coming to the point, but surely the central fact is that there are aspects of privacy law that protect and enhance freedom of expression—for example, the right of journalists to protect their sources.
Mr Whittingdale
I have very little time left. I could probably spend another hour discussing the whole issue of privacy law, but I shall merely tell my hon. and learned Friend that I hear what he says.
I am absolutely at one with those in the Chamber who believe that we need to establish—
Sir Edward Garnier (Harborough) (Con)
May I begin by declaring an interest as a practising member of the defamation and media law Bar? I speak here, however, as a Member of the House and not as a barrister representing any particular client, claimant or defendant. The fact that I am currently acting for a well-known claimant whose reputation has been grievously damaged in the recent past has no bearing on what I want to say—
Sir Edward Garnier
As it happens, I have over the past 35—[Interruption.] Does my hon. Friend the Member for Suffolk Coastal (Dr Coffey) wish to intervene?
Sir Edward Garnier
I think I might be permitted to know a little more about that case than my hon. Friend does. As it happens, I have over the past 35 years or so—[Interruption.] Would she stop mumbling?
Over the past 35 years or so, I have acted for and advised both claimants and defendants in more or less equal measure. Unsurprisingly, many of the defendants were newspaper publishers, editors and journalists and their broadcast media equivalents.
The House and the public as a whole owe a huge debt of gratitude to Lord Justice Leveson. His report is long but comprehensive. It is thorough and analytical. It contains opinion and recommendations, but they are based on fact, founded on the evidence he heard and read. Neither he nor his report can be described as “bonkers” and the report does not resort to hyperbole, make hysterical criticisms of the media or demand state control of the press. It is, in my view, a fair and balanced report that has exposed and tackled some difficult, if not entirely novel, questions.
I say that the questions were not entirely novel, because in this House in January 1960, a Mr Leslie Hale, who was then the Member for Oldham West, moved to repeal the Justices of the Peace Act 1361, among whose provisions was one to outlaw eavesdropping. A predecessor of mine as Solicitor-General, Mr Peter Rawlinson, then the Member for Epsom, said:
“Translated into ordinary terms, the Bill which the hon. Member seeks to introduce, dressed up like a radical bird of paradise, is nothing less than a modest charter for peeping Toms and eavesdroppers…It is also a charter for other strange people who pester law-abiding citizens and persons of that kind.”
He went on to say:
“The modern use of the Bill is mainly to prevent the ordinary citizen from being pestered by those unbalanced eccentrics who, with an imagined grudge, patrol the outskirts of houses, terrifying families by constant use of the telephone, or by those people who are unbalanced and usually malevolent but who do not break the law by means of assault or trespass. Therefore, there is no weapon which the law-abiding citizen has against them except the use of these powers which may be the only effective one which rests in the hands of such citizens.”—[Official Report, 26 January 1960; Vol. 616, c. 54.]
So over a period of about 600 years the issue of intrusion into the private lives of others by use of illegal listening devices, be it the human ear or electric surveillance machinery, has been current. This is one of the reasons why the inquiry by Lord Justice Leveson was initiated.
At heart, it seems to me that we are discussing the age-old problem now described as the tension between articles 8 and 10 of the European convention on human rights. Very often, people seem to remember the rights, but they do not seem to remember the exceptions to those rights. Article 8 says:
“Everyone has the right to respect for his private and family life, his home and his correspondence”,
but it goes on to say:
“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”,
so it is very much a qualified right, as is article 10, which provides the right to freedom of expression. It states:
“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.”
But paragraph 2 says:
“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
There are the tensions between articles 8 and 10, and there also are the exceptions to those two great rights which nobody in the House or elsewhere would find in the least bit controversial.
The issue that we are confronting—my hon. Friend the Member for Maldon (Mr Whittingdale), the Chairman of the Select Committee, drew this out, as have other Members this afternoon—is not whether we should have state regulation of the press. We are not talking about state regulation of the press in the sense that Mugabe, Putin or the Chinese politburo control the press. What we are talking about is whether the press needs to have a self-regulated body which is recognised by the state as being a competent authority to regulate the press’s activities.
The distinction is important. Much of the argument that one has seen in the press and elsewhere, and to some extent in discussions in and around the House, has been utterly off the point. It is to traduce the work of Lord Justice Leveson to suggest that he wants state control of the press. He has said on any number of occasions—I shall quote one or two examples—that the ideal that he is looking for is that
“the industry should come together to create, and adequately fund, an independent regulatory body, headed by an independent Board, that would: set standards, both by way of a code and covering governance and compliance; hear individual complaints against its members about breach of its standards and order appropriate redress; take an active role in promoting high standards, including having the power to investigate serious or systemic breaches and impose appropriate sanctions; and provide a fair, quick and inexpensive arbitration service to deal with any civil complaints about its members’ publications.”
As a member of the Bar, I would of course like people to litigate—that is how I pay my mortgage—but the short point is that if a system can be devised that has the approval of Parliament and which carries with it public approval and confidence, it seems to me that that mechanism, just as the Financial Services Authority is a body given permission by statute, could allow the press to inhabit a world of free expression, subject to articles 8 and 10, that would not interfere with its rights but would also adequately protect, by self-regulation, the rights of the victims of press intrusion and other forms of activity that are subject to the criminal or civil law. Of course many of the activities that led the Government to set up the Leveson inquiry were already against the criminal law, as my right hon. Friend the Member for Hitchin and Harpenden (Mr Lilley) correctly spotted. It is illegal to hack, blag and interfere with other people’s telecommunications under various statutes going right back to the 1361 Act that outlawed eavesdropping.
Sir Gerald Howarth
Did not Lord Justice Leveson say that criminality on an industrial scale was itself part of a persistent culture of abusing private individuals, in particular, who have no recourse unless through my hon. and learned Friend, notwithstanding his modest costs? We in this House at least have a forum, but they have none at all, and that is why the report is so important. It revealed that there was a culture, and the press must deal with that, not just the criminality.
Mr Deputy Speaker (Mr Lindsay Hoyle)
Order. Shorter interventions would be helpful. I know that two knights want to exchange views, but I worry about the costs that might be charged.
Sir Edward Garnier
I agree with the premise of my hon. Friend’s point but think that we perhaps draw different conclusions from it. Lord Justice Leveson has stated, as did our right hon. Friend the Secretary of State at the beginning of this debate, that the status quo is not an option, so if we learn nothing else from Leveson, we should learn that what went before cannot go on. It seems to me to be uncontroversial that the PCC is dead, for example. We need some other form of disciplinary body or regulatory system that matches public concern but also has parliamentary approval. We could approve through parliamentary procedure a body that is not statutory, but we could also approve a regulatory body that is not the creature of Parliament but that would be recognised and saluted by statute. There are plenty of other bodies that discipline the professions or other public bodies but that are not controlled by the Government.
Mr Dominic Raab (Esher and Walton) (Con)
Lord Justice Leveson’s approach is to argue that regulation must be independent not only of the press, but of Parliament, but he then calls for a statute, drafted by Parliament, detailing the criteria for recognition of the regulations, and that covers everything, from membership of the regulator to the content of the new rules and its powers. How does my hon. and learned Friend reconcile what strikes me as a fatal paradox in that approach?
Sir Edward Garnier
I do not have to reconcile it, because I find the answer on page 1,780 in part K of the report. I will not read it out because I do not have enough time, but I suggest to my hon. Friend that it repays reading. He should look at paragraphs 6.38 and 6.39. If I was a member of an appellate court, I would simply ask the shorthand writer to transcribe it into my judgment, but I cannot—I say to the Hansard reporter, have a go. Essentially, my hon. Friend’s point is one that is often made. If I may say so, with a little thought and study of the report, he will find that it is not strictly necessary to have the concerns, genuine though they are, that he displays and that they are dealt with by Lord Justice Leveson.
Time is running short and I have galloped through the points I wanted to make, no doubt inadequately and in a somewhat garbled fashion. There is plenty in the report that touches on the police, the conduct of the press and the appalling treatment meted out to victims, such as the Dowler family and others. That is all a given. It is also a given that the status quo ante must finish.
The debate that we are having, in this House and outside, is about what we mean by statutory regulation. To me, statutory regulation means no more and no less than what Lord Justice Leveson says: that a statute will recognise as an effective way of dealing with press conduct—and wider media conduct, including the internet—the disciplinary system to which the press must adhere. Clearly, we need buy-in from the widest possible section of the media, including the ordinary traditional press—the newspaper groups—and television and broadcast media through to the local press and others. I recognise that there will be difficulties over individual bloggers and so forth.
If we concentrate on what this report is not about, we miss a trick. Let us concentrate on what it is about, which is the democratic and constitutionally proper regulation of a disciplinary system.
Oral Answers to Questions
Lord Garnier Excerpts(11 years, 11 months ago)
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Chris Grayling
The key issue related to last week’s criminal injuries debate is that I want to ensure that we prepare for the unexpected. I do not see that there is a case for targeting resources at minor injuries that do not have a significant effect on the lives of those affected. I want to concentrate resources on people who suffer life-changing circumstances as a result of crime. However, I want to ensure that we have enough flexibility to deal with unexpected lower-level cases that do not conform with the overall norms of the scheme.
Mr Edward Garnier (Harborough) (Con)
My right hon. Friend will know that the Royal Society for the Prevention of Cruelty to Animals is a non-state organisation that can bring prosecutions in its own name. Unlike the Crown Prosecution Service, however, when it loses cases because it has got either the law or the facts wrong, costs orders are never made in favour of the successful defendant. Will he investigate why the courts never award costs orders against the RSPCA and in favour of successful defendants?
Defamation Bill
Lord Garnier Excerpts(11 years, 11 months ago)
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Mr Edward Garnier (Harborough) (Con)
It is a pleasure to speak in the debate because it gives me the opportunity to congratulate my hon. Friends the Members for Kenilworth and Southam (Jeremy Wright) and for Maidstone and The Weald (Mrs Grant) on their promotion to the Government. I cannot think of two finer people to receive such an honour. I served on several Public Bill Committees with my hon. Friend the Member for Kenilworth and Southam when we were in opposition, and I could not think why he was not made a Minister as soon as we came into government. At least he got there in the end, however, and I sincerely trust that he will stay in his post for a good long time, not least because the Bill is of considerable public importance and interest.
I must disclose a form of interest in the Bill because there was a time when I knew quite a lot about the law of defamation, although I then spent two years as a Law Officer during which I forgot all the law I ever knew. While I was listening to the hon. Member for Stoke-on-Trent South (Robert Flello), I was reminded of our debates during the passage of the Bill that became the Access to Justice Act 1999. At that time, it was apparent that the then Labour Government were not terribly interested in providing access to justice, and I said that that Bill would more properly be called the Denial of Access to Justice Bill. However, that was a long time ago.
I come to our debate on the new clause untrammelled by any knowledge of sections 44 and 46 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, but I did listen to the hon. Gentleman’s speech. I do not think that my hon. Friend the Minister will have to look very hard to find the references that the hon. Gentleman was after, but if the situation is as it has been described, that would be a pity, to say the least.
If the words of my noble Friend Lord McNally that were cited are to mean anything, I trust that the Government will do something about the problem, because a failure to provide access to justice for people without deep pockets should not be encouraged. Conditional fee arrangements—I have benefited from one or two—do not cost the Government any money. They are not an ideal system of achieving access to justice, but they are a way of allowing those without access to funds from trade unions, companies, employers or others to bring or resist actions for defamation. I therefore hope that the Government will consider carefully—if not today, during the gap between the Bill leaving this House and its consideration in the other place—arrangements whereby those without funds can defend either their reputation or a defamation claim.
That said, I hope that the Minister’s speech will persuade the hon. Member for Stoke-on-Trent South that it is not necessary to press new clause 2 to a Division. I hope that we can take the Minister’s word that the matter will be given a lot more thought before the Bill reappears in the other place. Knowing my hon. Friend, I think that we can be reasonably sure that that will be the case.
Paul Farrelly
I support the comments of my hon. Friend the Member for Stoke-on-Trent South (Robert Flello) and the hon. and learned Member for Harborough (Mr Garnier), who I see is still plain “Mr Garnier” on the monitors.
It has been a long road to libel reform. For newspapers and other media, the real issue is cost. Responsible newspapers have been concerned about conditional fee agreements with 100% success fees and the sheer costs involved in such cases, especially as it seemed to be a case of “always win, double the fee”. Of course, we have heard examples where that is not the case: my hon. Friend cited the case of Dr Peter Wilmshurst, consultant cardiologist at Royal Shrewsbury hospital and our local University hospital of North Staffordshire, who needed that measure to be able to defend himself and give some certainty in a fraught situation to his family that, if he were to lose his case, all their worldly goods would not be forfeit.
Over time, proposals have been made, including by Lord Justice Jackson and my right hon. Friend the Member for Blackburn (Mr Straw), who laid a statutory instrument which was—almost uniquely—defeated by a cross-party ambush in Committee, because Members felt so strongly about the issues involved. In addition, the Culture, Media and Sport Committee, of which I am a member, produced proposals to limit the uplift in fees to 10%, rather than 100%, and not to recover after-the-event premiums—often, there is a false market in those premiums. I will put on the record now my belief that, in that report, we went too far, but our proposal was not to abolish an uplift, which would encourage lawyers to take on difficult cases, in their entirety. On the one hand, we are reforming libel law to protect responsible journalism, but on the other hand, we are potentially denying people access to justice, and I think the whole environment has become unbalanced.
What we have to remember, with phone hacking and Lord Leveson soon to report, is that we have a macho media world and some highly aggressive corporations. If we remove people’s ability to fight to restore their reputation, we risk giving a carte blanche to libel and going back to the bad old days when the only questions a newspaper asked were, “How much have they got? Can they afford to sue us?”
Paul Farrelly
The hon. and learned Gentleman makes a fine point. The purpose of my amendment, which I shall not press to a Division, is to probe the Government’s thinking. Other suggestions for amendments were made in Committee and some of those might reflect the judgments given in Reynolds more closely than paragraph (g).
Any decisions by lower courts can be appealed, but going all the way to the Supreme Court is very time-consuming and expensive. The purpose of my amendment 10 is therefore to get the Government to clarify what they mean by paragraph (g) and whether they have fully taken into account the most up-to-date case law, and to give them the opportunity to state to the House that there is no intention that the clause should be at odds in any way with how the “responsible journalism” defence has been developed by the courts over the years.
Amendment 11, which relates to subsection (2)(h), simply reflects the actual wording used by Lord Nicholls in his list in the Reynolds case, in which the court considered whether a newspaper might reasonably have delayed publication—for instance, to wait longer for a comment from the subject of an article—rather than going to press when it did. The concern in the legal profession about the current wording of sub-section (2)(h) is that it is neutral and does not capture the essence of the urge, or the urgency, to publish. It is a concern for weekly, fortnightly or monthly publications, for example, that withholding a comment can be used to try to ensure that a story does not appear in a particular edition. I shall pray the noble Lord Lester in aid again. Urgency appears explicitly in his list of factors that the courts may take into account. In his private Member’s Bill, he proposed that they may consider
“whether there were any factors supporting urgent publication”.
Amendment 12 is lifted word for word from Lord Lester. It is intentionally broader than amendment 3, which my hon. Friend the Member for Hayes and Harlington (John McDonnell) will speak to shortly. It also seeks to address a concern that was not addressed in Committee. Following the phone-hacking affair and the failure, yet again, by certain aggressive tabloids to put their own house in order, there is now a crisis of confidence in the press in this country. The Press Complaints Commission palpably failed over phone hacking, and in cases such as that of the McCanns. It is broken, and the “son of PCC” advanced by the industry to replace it looks all too much like the PCC itself. The mantra in the industry often seems to have been never to let the editors’ code of practice get in the way of a good story or good business. I am sure that, when Lord Justice Leveson reports next month, he will make similar damning judgments about the practices of the press, or certain parts of it.
The amendment seeks to give statutory recognition, if that is the right word, when newspapers are seeking to rely on qualified privilege, to the importance of journalists following a relevant code of practice—be it their own publication’s code, the editors’ code, one from a regulator or that of the profession. It also seeks to bolster the position of journalists. They are frequently asked by editors to do things that breach those codes: “Leave your morals at home or you’ll be colouring in the black squares on the crossword before we sack you” can instil genuine fear in many parts of the industry. Only editors and proprietors have been consulted on the proposals for the reform of the PCC; journalists have not. I believe that in striving for better quality journalism, we should give good codes of practice more weight. The amendment seeks to do that.
Mr Edward Garnier
I listened with the greatest possible care to what the right hon. Member for Bermondsey and Old Southwark (Simon Hughes) said in moving his new clause, but I confess that I was either unconvinced or did not entirely understand the thrust of his argument. I am sure that that is entirely my fault. I also listened with care to the hon. Member for Newcastle-under-Lyme (Paul Farrelly), and I found him a little easier to follow. Both those contributions have persuaded me, however, that the amendments are not helpful to the wider debate. They have further persuaded me that, if we are to legislate, clause 4 is the way to do it.
Clause 4(2) proposes that, when determining whether a publisher has acted responsibly, the court may have regard to a list of factors, “amongst other matters”. The phrase “amongst other matters” reminds us of the words of Lord Nicholls in the case of Reynolds. His list of factors was non-exhaustive. In an ideal world, however, legislation is not the right way to go about this. The proposals in clause 4 are better to be found in the common law and in the development of case law. I appreciate that if courts are to develop the common law, that leads to a need for litigants to litigate, but such an approach provides necessary flexibility. By setting in stone clause 4, or another version of it, we will face the problem that it might not always be fit to deal with future circumstances. We are probably unwise to be doing that, albeit not so unwise that I would suggest removing clause 4 from the Bill. I do not think that we should have started from where we are, but I did not draft the Bill, and in so far as I had any influence on the people who did so, they sensibly ignored my opinion.
Sir Peter Bottomley
Clause 4(6) states:
“The common law defence known as the Reynolds defence is abolished.”
My hon. and learned Friend rightly reminds us that the judge in that case made the statement about “amongst other matters”. Does he interpret subsection (6) as meaning that no other matter may be brought up by any judge, and that we are left only with what will be the statutory law?
Mr Garnier
Yes and no. Subsection (2) includes the phrase “amongst other matters”, so it puts what Lord Nicholls said in the Reynolds case into statutory form. I think that it is more sensible to leave this in the form of developing common law, but if we are to set something in stone, clause 4 is better than the somewhat confusing provision tabled by my right hon. Friend the Member for Bermondsey and Old Southwark.
Bad points are never improved by repetition, but it is a pity that we are doing away with the common law. Although I have lost that battle, I might as well wear my black in mourning at its passing.
John McDonnell (Hayes and Harlington) (Lab)
It is entertaining to be following the hon. and learned Member for Harborough (Mr Garnier), not least because he was a junior in a libel action that was taken against me some years ago, which almost cost me my home. I think that it was one of the cases when Carter-Ruck was roving wildly.
John McDonnell
Let us not go into it now; we can discuss it another time.
I am the secretary of the parliamentary group of the National Union of Journalists, which obviously has taken an interest in the Bill. The right hon. Member for Bermondsey and Old Southwark (Simon Hughes) said that this is something of a dress rehearsal for what comes out of Leveson and, as my hon. Friend the Member for Newcastle-under-Lyme (Paul Farrelly) said, there is real concern about the Bill’s practical implications and what might arise from Leveson.
It is clear, as hon. Members have said, that good journalism is essential for a healthy democracy and that investigative journalism plays a vital role. As the right hon. Member for Bermondsey and Old Southwark said, we have heard today about the worst journalism, in the form of the performance of The Sun on Hillsborough, but there are examples from recent years of the best journalism, such as the exposure of corruption in the House with MPs’ expenses and of ministerial relationships. For me and the NUJ, it is critical that the Bill does nothing to undermine the vital role of good journalism and the contribution that it makes to our society. Of course, it is also important to ensure that journalists uphold decent standards of behaviour, so we must get the balance right, and I have tabled amendments to deal with the Bill’s practical implications on the basis of the way in which journalism operates and the pressures and pace of journalistic practice.
Although I welcome the context of clause 4 and the range of factors of which a court must take account when reaching a decision about the protections of privilege, the measure raises questions about practice on the ground. Subsection (2)(f) deals with the court taking account of
“whether the defendant sought the claimant’s views on the statement before publishing it and whether an account of any views the claimant expressed was published with the statement”.
Amendment 1 inserts a reasonableness test with the words
“within…a reasonable amount of time following initial publication”.
The aim is to broaden the potential for journalists to claim the defence of having contacted the claimant within a reasonable time frame, not necessarily before publication.
We all agree that it is good practice for a journalist to contact the claimant before publication, but that is not always possible for a variety of reasons, some of which relate to the way in which the courts have been used—the threat of a lawsuit or the triggering of an injunction or a super-injunction, and, in some cases, the threat of physical force. Often injunctions are sought by the rich and powerful, who are keen to prevent the publication of a detrimental story, or to delay its publication until they have had time either to hide the damaging evidence, or develop an appropriate public relations strategy to limit the damage. I believe that it should be a defence that the claimant’s views were published either concurrently with or within a reasonable time after initial publication, as existing journalistic codes already demand.
Amendment 2 is designed to acknowledge the fact that, yes, journalists should take all reasonable steps to check the accuracy of facts, but to recognise also the pressures of a news environment. While rushing to print is no excuse for poor journalism, journalism is part of a commercial operation and getting the story first is often crucial for a newspaper or broadcaster’s commercial viability.
Mr Edward Garnier
I will not follow the same acerbic path as the right hon. Member for Rotherham (Mr MacShane).
Chris Grayling
I am not sure whether this is the appropriate time, but I am sure that the whole House would like to join me in congratulating my hon. and learned Friend on his knighthood.
Mr Garnier
In parenthesis to what I was saying about the right hon. Member for Rotherham, I thank my right hon. Friend the Secretary of State for Justice for his kind remarks and congratulate him on his new position. I congratulated the new Under-Secretaries of State, my hon. Friends the Members for Kenilworth and Southam (Jeremy Wright) and for Maidstone and The Weald (Mrs Grant) earlier this afternoon. If my right hon. Friend maintains the tone that he adopted during his speech, this Bill will not only be improved, but markedly so. I am grateful for the stance that he took, which was in marked contrast to that taken by the right hon. Member for Rotherham, who thought it amusing, no doubt, to make personal remarks about others who cannot protect themselves here; but let us leave that there.
I also thank the right hon. Member for Tooting (Sadiq Khan), the shadow Secretary of State for his words and the approach that he and his Front-Bench team will take as the Bill goes to the other place. There is now an opportunity to develop a new defamation Act that will meet some apparent needs, such as how the law is applied and libels dealt with in relation to the internet. It is time to deal with such things.
I have noted on my copy of the Bill something that my hon. Friend the Member for Worthing West (Sir Peter Bottomley) said earlier about clause 1. As drafted, the clause confuses what is defamatory and the consequences of a defamatory statement. I hope that by the time the Bill becomes an Act, the clause will read: “A defamatory statement is not actionable unless its publication has caused, or is likely to cause, serious harm to the reputation of the claimant”. Many things are defamatory that might not cause much damage, and many things are not very defamatory but can cause disproportionate damage. The wording that my hon. Friend and I have coincidently come up with deals with that point. I dare say that others will think more carefully about that as the Bill moves forward.
On the issue of truth and honest opinion, the way the Bill is constructed is sensible. In my opinion, the law did not need changing but, if it is to be changed, clauses 2 and 3 deal with it.
I have said what I had to say about clause 4 and the Reynolds defence. I want briefly to talk about clause 6. There has been a huge amount of campaigning from various groups, such as PEN, Sense about Science and so forth, largely based on the case of the chiropractors against Simon Singh. I will not go into the facts of the case. Much of it was misunderstood, but the nub of the case was this: did the words complained about constitute allegations of fact or comment? That does not matter, because the argument and the campaign decided that academic criticism should almost be free from the law of libel.
Once we have got over that concern, we need to think more carefully about whether learned societies, which are not corporate bodies or profit-making companies, should have a right to sue in damages. We no longer allow local authorities to sue for damage to their governing reputation. Thirty five years ago, I used to get injunctions, for goodness’ sake, on behalf of local authorities, as corporate bodies that felt that they had been defamed by the local paper. Looking back, it is ridiculous to think that the Derbyshire county council case was not decided earlier, but it was not. For some decades now, it has not been possible for local authorities to sue in defamation. I rather suspect that the royal college of this, that or the other should not be allowed to sue either, although I must distinguish between that and the right of presidents and other officers of those associations to bring a personal action, if they are defamed.
Sir Peter Bottomley
There is one obvious problem with putting into statute things decided by judges and juries, which is common law. Would such a judgment be possible were the Bill to become law? Would the judges—juries would not be involved—be able to make a decision saying that a body corporate, whether charitable, non-profit or commercial, would be barred from taking out an action, even if it had more merit than the ludicrous one of the chiropractors against Simon Singh?
Mr Garnier
It is probably unwise to give cocktail advice across the Chamber, even to my hon. Friend.
Mr Garnier
Yes, especially for free.
The Derbyshire county council case was a development of the common law. The judges decided that it was no longer appropriate for a local authority to bring an action for damages in defamation. As it happened, it was against our right hon. Friend Lord Tebbit—but I am sure that that had no influence on the judges. As I understand it, nothing in the Bill has any bearing on whether the Court of Appeal or Supreme Court can reach a similar decision based on argument in respect of a learned society. Since we have a Bill and if we are to do that, however, we might as well think about it between now and October or November—whenever the Bill moves to the other place—and deal with it in legislation, not least because the issue is hot and strong following the Simon Singh case.
The Bill has good intentions and contains some good, defensible and sensible clauses. It also probably promises more than it can deliver, particularly in relation to libel tourism. I disagree with the right hon. Member for Rotherham about its being a bad thing that people want to come to London to litigate. Nobody seemed to complain the other day when Abramovich sued Berezovsky were in this jurisdiction. That demonstrates that in the United Kingdom people can find uncorrupted judges who will deal fairly with difficult cases. If foreigners want to sue other foreigners in our courts, I see no problem with that. Before the right hon. Gentleman rises again to defame others under the cloak of absolute privilege, he might consider that if the courts find that there is no real connection between the litigants and the jurisdiction, they can strike out the claim under the Spiliada principles, with which I am sure he is familiar. They essentially mean that that court is not the appropriate forum in which to bring an action.
Mr Garnier
I have clearly puzzled the right hon. Gentleman so I will let him intervene.
Mr MacShane
The concept of forum non conveniens—I think that is the Latin phrase—is quite well known. An employee of the Russian state has been accused in this House by a Commons resolution of being linked to the murder of someone employed by a British firm. He earns $600 a month but is hiring the most expensive QC, lawyer and media company to sue a British citizen in connection with a huge international scandal. This week, the United Congress will pass its “Justice for Magnitsky Act”, banning Mr Karpov and 59 other named people. That has nothing to do with protecting reputation; it is a cynical abuse of London’s reputation in which any lawyer can be brought to defend anybody on any cause.
Mr Garnier
I do not want to descend into the right hon. Gentleman’s difficulties with lawyers and he will have to sort out his own problems. If the courts find that the claimant referred to by the right hon. Gentleman has no proper basis for bringing a case in this country, they will knock the case out. That applies to contract, privacy, defamation and any other cause of action. I am looking for a proper assessment of the dangers and damage that could be caused to our integrity as a jurisdiction by the use of our courts by overseas litigants. I think such danger is wildly exaggerated and that the ability of our courts to discipline those hopeless cases is underestimated, so I hope we can deal with the issue in a calm and sensible way between now and Third Reading in the other place.
I wish the Bill well as far as it goes. I hope that tonight’s proceedings are not controversial and that we do not have a Division, as that would be unnecessary and unhelpful. I look forward to listening to or reading the debates in the other place, and trust that when the Bill is returned to this House—if it is returned—it will be improved. Surely that is what we expect of the parliamentary process. This is not a politically controversial piece of legislation; it is deeply technical and, some would say, rather tedious. I wish the Bill well, however, and I repeat my congratulations to the Lord Chancellor and Secretary of State for Justice and his two colleagues.
Transparency and Consistency of Sentencing
Lord Garnier Excerpts(12 years, 6 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Madam Deputy Speaker (Dawn Primarolo)
Order. Telepathy is difficult for Hansard to pick up and it is not easy for other Members in the Chamber. It would help if we made that sequence a little clearer.
The Solicitor-General (Mr Edward Garnier)
To make it clear, the right hon. Member for Leicester East (Keith Vaz) meant that I, not Lord Justice Leveson, was his parliamentary neighbour. I say that in case that does not appear clearly on the record either.
Keith Vaz
In football terms, that was an instant replay. I am glad that Lord Leveson now chairs the important inquiry into the media. After that is completed, he will start the next inquiry. He must be an incredible chap to be able to chair the Sentencing Council and conduct all these other inquiries. I am glad that he is still there; continuity is important.
Let me go back to the intervention I made at the start of the Lord Chancellor’s speech. He said that the Government would be able to give us more information at the end of the debate on the case that I raised, which has been concluded in the courts. It concerns a group of four al-Qaeda-inspired fundamentalists who admitted planning to send mail bombs to their targets during the run-up to Christmas 2010. Their targets included the Palace of Westminster, the home of the Mayor of London, the Stock Exchange, and other buildings of that kind.
Those defendants participated in what is known as a Goodyear direction, which, as the Lord Chancellor and other Members will know, enables a trial judge to indicate the sentence that will be given if a defendant pleads guilty. I understand that the sentence that is indicated cannot be increased by the judge at the time when the defendants are sentenced.
Keith Vaz
The hon. Gentleman is a very experienced prosecutor, and he knows much more about these matters than I do. Perhaps, given the charges that were levelled against the individuals in the case that I mentioned, the judge ought to have refused the application, but the fact remains that two of the defendants, Mohammed Chowdhury and Shah Rahman, were effectively told by Mr Justice Wilkie that they would be out in six years, because that was what was indicated by the sentence of twelve and a half years that he proposed to give them.
I have raised that case because it came before the court yesterday, because we are debating this issue today, and because I think we should consider the severity of what would have occurred had the matter been brought to fruition.
The Solicitor-General
I do not want to rain on my right hon. neighbour’s parade, but I am afraid that I will not be answering questions of the kind that he has put to me when I wind up the debate. The matter is ongoing. It may well be that the judge has given a Goodyear indication, but he will be sentencing next week, and nothing that I shall say today, or that the right hon. Gentleman will say today, should in any way impinge on the judge’s discretion. The Goodyear direction system is there, and its conduct is circumscribed by fairly strict rules. While the right hon. Gentleman is perfectly entitled to make any point that he wishes to make about particular sentences, I think that—as my right hon. and learned Friend the Lord Chancellor said earlier—we would be better advised to leave that particular issue until the sentence has been promulgated. All sorts of implications may flow from that.
Keith Vaz
I am very happy to take the Solicitor-General’s advice. What I have sought to do is ensure that the issue is looked at, as I hope it will be in future when the sentence is finally determined.
Let me move from the specific to the general. I do not want us to reach a point at which we have plea bargaining in criminal justice, because I think that that would be wholly wrong. The hon. Member for Gillingham and Rainham (Rehman Chishti) mentioned the riots. I pay tribute to the way in which the criminal justice system operated throughout that period. I well remember going to Horseferry Road magistrates court at midnight and receiving a call from the Under-Secretary of State for Justice, the hon. Member for Reigate (Mr Blunt), who welcomed me. I do not know how he knew that I was going to be there, but somehow he knew that I was looking at the 24-hour courts. Although there was something of a gap because both the practitioners and the defendants had to be brought from police stations, the courts moved very quickly at a time when it was necessary for that to happen.
Although politicians are very wary of trampling on the jurisdiction of the judiciary, the public, and even the Prime Minister, made known their views on sentencing during the riots. The result was that the courts issued sentences that were, on average, more severe than for similar offences committed outside the period of the riots.
I also pay tribute to the Lord Chancellor and the Ministry of Justice for providing my Committee with so much information. I do not think that we have had so much transparency before, as regards figures relating to the riots being made available. I think it was the Lord Chancellor who told us, in a Select Committee evidence session, that 76% of people who appeared before the courts for offences committed during the riots had a previous conviction. He also told us that for adults, the figure was 80%, and for juveniles it was 62%. It is important, as we look at sentencing and transparency, that figures are made available to Select Committees and Parliament, so that we can have informed views on the issues that we are deliberating.
The hon. Member for Oxford West and Abingdon (Nicola Blackwood), who has left the Chamber, raised the issue of rehabilitation in her intervention on the Lord Chancellor. One of the most important issues that the Lord Chancellor has raised during his time in office is that of rehabilitation. As the Chairman of the Justice Committee has said, there is no point in just sending people to jail; if one convicted criminal in four reoffends soon after completing their sentence, something is wrong with the way we deal with rehabilitation. Of course people have to go to prison to be punished in certain circumstances, but the prison authorities need the time and space to start the process of rehabilitation.
We have been looking at the roots of radicalisation and will publish a report on the subject on Monday next week. We feel it is very important that when people are incarcerated, those who are able to detoxify—that was the word used in the evidence given to us, and I use it again today—people who have been radicalised have time to do that. One cannot do that in a short period, or without resources; it has to be done over a period of time. We need to ensure that when those people come out, the experience has made a difference to their lives, because at the end of the day it is our constituents who suffer if that is not the case.
This is a good debate, and I hope very much that it will not just be about tougher sentences, because as we all know, 83 of the 134 prisons in this country are classified as overcrowded. If we are to make sure that when people come out, they do not reoffend, we need a criminal justice system that is fit for purpose and able, in the end, to do the one thing that we want it to do: help in the reduction of crime.
Anna Soubry
Absolutely. If I may say so, there was so much I agreed with in the right hon. Gentleman’s speech. From my short time on the Select Committee, I know he brings a huge weight of experience and plain, good common sense to his chairing of the Committee. I absolutely agree with what he says.
To be frank, I would never stand up and say we definitely want to keep the Sentencing Council. I know some of us disagree about this, but I always thought the Court of Appeal was a good place to determine the issues we are discussing, and I could see no good reason why that should not continue. However, we are where we are.
What we do know—this has already been mentioned—is that the sentencing judge will look at the aggravating and mitigating features in relation to every offence. It is therefore important that when the police go out and take witness statements, they make sure everything that should be in them is in them so the judge can pass the right sentence. If items of great sentimental value are stolen in dwelling-house burglaries, for example, that is an aggravating feature.
The same is true of trashing or ransacking the property, and of inducing fear in a particularly vulnerable person. One of the burglaries I suffered was at night-time, and my children were of an age where they were very frightened. They thought—this is common among children who have the misfortune to have their homes burgled at night—that the person would come back, and they were in fear of that. Such things must be in the witness statements so the judge can pass the right sentence. That will give us the consistency we want.
One of the things that is extremely annoying for somebody who has been the victim of a car crime is the fact that they lose their no claims bonus. There is also the huge inconvenience caused by the fact that their car has a broken window and that they will not be able to use it because it has to go off to the garage. Again, those are important aggravating features.
In offences of violence, there can be an assessment of the physical scarring that might remain, and of the pain and suffering the victim might have been caused, but their mental anguish must also be set out in detail so that the proper sentence can be passed.
I would go further and say that when police officers go out to get statements from witnesses, they should include in them the effect of a particular crime on the witness. The classic example is somebody who witnesses a fight in the street, which might be a particularly violent and unpleasant incident. That will have an effect on the witness, and if it does, it should be in the witness statement.
At the heart of good, consistent and transparent sentencing is an overriding and underlying belief in the fact that we should trust our judges. I say that with absolute certainty in one respect: if I had not come to this place, I would undoubtedly never have been made a judge. I am not, therefore, making these comments to curry favour with any judge. Hon. Members may not find this surprising, but the reason I would not have become a judge is that I fell out with so many judges.
Anna Soubry
The Solicitor-General makes an unfortunate intervention, because I did indeed have the great pleasure of appearing in front of him—I was going to reference him slightly later—and we certainly did not fall out. No doubt, though, some of his brother and sister judges would say that that was because I appeared in front of him only twice, and that had I done so several times, perhaps the outcome would have been different.
One of the problems that occurred under the previous Administration was that they began not to trust judges enough, which was a terrible mistake. My attitude is this: I would give the judges the powers that they need and then leave them to exercise their discretion. At the end of the day, most judges come to the bench after many years in practice—usually in the discipline in which they sit in judgment. I said that I was going to mention the Solicitor-General, and I know that he has sat as a recorder in the criminal division, even though that was not his area of practice. I am not trying to curry favour with him, but the fact is that many recorders do not come from the criminal Bar and did not work as criminal solicitors but nevertheless have the great ability and skills required to act in just as brilliant a way as any other judge who was at the Bar for 15 or 20 years. [Interruption.] I am glad to see him nodding in approval.
The point is that with few exceptions our judges are outstanding, having practised at the highest level and coming to the position after years of experience on the basis that they have the ability to exercise good and wise judgment. That is why, with few exceptions, I trust them, and those of us who have practised know that if a judge makes a mistake, the case can be referred to the Court of Appeal.
Our judges have training, and I give full credit to the previous Government for something that I noticed at the criminal Bar: a huge shift in judges’ attitude towards what we call domestic violence—an unfortunate term, because it is normally violence against women by somebody with whom they are either in a relationship or have been in a relationship. Undoubtedly, when I returned to the Bar about 18 or 19 years ago, some senior members of the Bar and judges just saw domestic violence as a bit of a domestic scuffle and not something to be dealt with or viewed as seriously as it is now. I give full credit to the work undertaken by the previous Government in that respect. I certainly saw a sea change among the judiciary, which was no longer going to tolerate any man even slapping his partner or previous partner. I saw that on a regular basis in the Crown courts in which I had the great pleasure to appear, and I give the previous Government full credit for that. That should give us confidence that our judges are properly trained and are more than able to pass the right sentences, as long as we trust them and enable them to use their discretion.
That, of course, was one of the great failings of IPPs. These sentences, introduced in the Criminal Justice Act 2003 to deal with defendants deemed to be dangerous, sounded like, and were, a very good idea. What could be more sensible than providing that a paedophile who had sexually assaulted a child and who had done the same thing previously would not only be sentenced for the outrage that they had committed against a child but that there would be a report on him—invariably it was a “him” as opposed to a “her”—specifically looking at whether he would pose a danger even after completing the determinate part of his sentence? If the report revealed that he had delusions and fantasies of a particularly vile and alarming nature, it was thought only right and proper that he be in custody, in prison, not just for the offence that he had committed but for the protection of the public—in this case, children—at large, because he posed a clear and obvious danger to those children.
In theory, therefore, the idea was wonderful. Many of us approved and agreed with the theory; however, I do not think that the legislation was ever properly looked at—I fear I am criticising both sides of the House for that. Indeed, we talked about the idea in robing rooms at the criminal Bar, and as we thought about it more, and then as it was rolled out, we could see its profound shortcomings. Because it was overly prescriptive, judges effectively had no discretion, so people were sent to prison—quite properly, because they had committed a serious offence—but then found themselves in custody with no time limit on their sentences and no idea when they might be released, on the basis that they were supposedly dangerous. However, that was often because the judge had no alternative but to making that finding, when the offender was clearly not dangerous in the terms that they have should been, as the sort of offender that I have described. Not only did those in custody not know when they were going to be released, but there were no courses and no proper treatment available for them. None of the things that should have been done to drill down into their offending were done, so people were literally—and still are—languishing in prison. With great respect to my hon. Friend the Member for Shipley, I find it perverse that Opposition Front Benchers should agree with that aspect. For a party that has always prided itself on the liberty of the individual and the rights of the prisoner, it is absolutely wrong to support a system that has people languishing in prison, year after year, without the treatment that they need.
Mr Leigh
I agree with my hon. Friend. I do not want to weary the House with too many figures, because then I will be accused of quoting statistics, which do not give the whole story. However, these figures are alarming and it is up to the Government to reply to them. As I have said, 48% of all burglars do not receive an immediate custodial sentence. Some 37% of burglars of private dwelling houses—the worst form of violation of our fellow citizens’ rights—do not receive a custodial sentence. Approximately 87% of custodial sentences for domestic burglary are for less than three years. In 2010, only 16% of those convicted of burglary were sentenced to more than 18 months in prison. In other words, only 16% were sent to prison, and a lot of them were out within nine months. We know that a house that has been burgled has a 20% chance of being burgled at least once more within a year.
Apart from the trauma and the violation of people’s rights and privacy, burglary costs insurers a staggering £370 million per annum. Members should not believe all those insurance adverts in which the kind insurance company comes in the next day and mends everything—that does not happen. As I and our fellow citizens know, it is hard going every inch of the way with these insurance companies.
What about the clear-up rate? The British crime survey shows that approximately 659,000 domestic burglaries were committed in 2009-10. Given that only 9,670 such offenders were convicted, the clear-up rate was a mere 1.4%. So, not only are many of the punishments derisory—someone who is convicted, if indeed they are convicted, will not go to prison for very long—but the clear-up rate is incredibly low and the police are obviously struggling to deal with the problem. As my hon. Friend the Member for Shipley said—the point he made bears repeating—according to Ministry of Justice figures for a particular year, 2,980 burglars with 15 previous convictions were not sent to prison. I hope the Minister will reply to that point when he sums up the debate.
We had an argument earlier about current sentencing guidelines. I quoted various figures to the Secretary of State during interventions, saying that only 48% of burglars go to prison, and he said, “I’m sorry, but my position is absolutely clear: I believe that if you burgle a private dwelling house, you should go to prison.” The purpose of my speaking in this debate is to try, in my own small way, to convince the Secretary of State, the judges and the whole system that there is a widespread and strong belief and understanding among our fellow citizens that someone who breaks into and steals from a private dwelling house will go to prison, and I want to drive that message home. However, I was told that sentencing guidelines—my hon. Friend the Member for Broxtowe spoke with great authority on this issue—suggest a community sentence for first-time offenders. They may have been convicted for the first time, but how many burglaries have they actually committed? We have no idea. We are talking about a community sentence—no prison sentence at all.
Currently, for a category 3, lesser harm or lower culpability domestic burglary—I do not accept this language, which is that of the Sentencing Council—the sentencing starting point is a high-level community order. Our fellow citizens will be astonished to hear that somebody can commit a domestic burglary and get a high-level community order. The suggested range goes from a low-level community order to a mere 26 weeks' imprisonment, which, as we all know, is nothing like 26 weeks' imprisonment. On top of that, criminals receive a guilty plea discount. I am sorry to have to say that we are simply not doing enough to grip this.
Mr Leigh
I shall give way in a moment, and I hope that the Minister will reply to this point. There are far too many domestic burglaries and people do not feel safe in their homes. The punishments are not sufficient and neither is the clear-up rate, and that has a major effect on the quality of life in this country.
The Solicitor-General
On my hon. Friend’s point about category 3 burglaries, is he suggesting that public policy should not allow any differentiation between domestic burglaries? For example, if in broad daylight the burglar puts his hand through an open window, steals a paperweight from the windowsill and walks off, should that be treated in the same way as a night-time domestic burglary in which an elderly couple are traumatised and frightened or—as happened in his case—the house is trashed? Is he saying that there should be just one category, burglary, and that the sentence should be prison full stop?
Mr Leigh
Of course I am not saying that and of course judges should have some discretion. There is a range of burglaries. It is not for me to lay down the law and to say that there should be a minimum sentence or what it should be. I want to drive home the point that there should be a general understanding among the law-abiding public that their homes will be protected, as there should be a general understanding among them and among the criminal classes of what will happen if someone commits any kind of domestic burglary. I do not accept the language, by the way. We have heard descriptions of burglaries before in which somebody puts their hand through a window and takes a paperweight, and we have to ask how many people are going around taking paperweights—I do not know. The language suggests that it does not really matter very much, but it does matter and it is important.
Of course, there must be differentiation, but my point is very important: I want a general understanding of what will happen if a person violates someone’s privacy and causes them trauma. I suspect that a lot of the time what is being stolen is not just a paperweight but something that is very personal and precious. It goes back to what my hon. Friend the Member for Broxtowe said about her grandmother’s wedding ring. It might not be worth much, but the experience was traumatising. I want to drive home the point that if someone goes into somebody’s private house and takes something, they should end up in prison.
The Solicitor-General
My hon. Friend has sat down already, so that is all right. I am trying to extract clarity from him. I want him to make the best case he can, but unless he speaks clearly it is difficult to respond in a way that does his argument justice. That was why I asked him the question and he has provided me with an answer.
Mr Leigh
I thank the Minister. We are at idem and I hope that the Government will now make an announcement in accordance with what I have been arguing for the past 10 minutes or so.
I want to drive home the point that it is the poor and vulnerable who suffer. A family with a household income of less than £10,000 is more than twice as likely to be burgled as one with a household income of £40,000 to £50,000. As a House of Commons, we are right to have this debate today and to raise this issue. I understand that the Government will make an announcement this afternoon on spent convictions—I have been told by the media that that will happen, but I do not know whether that is right. At the end of this debate and over the next few weeks and months, I want to elicit a response from the Government that shows that they are seized of the problem and are prepared to put sufficient resources into clearing up domestic burglaries through the policing system and to encourage the courts to take seriously the crime of burglary, of all crimes, because that is one thing that our fellow citizens want more than anything else.
Stephen Phillips
This is a rare area in which I might disagree with my hon. Friend. Before the Sentencing Guidelines Council was established, as my hon. Friend will know and as the House heard in the Front-Bench speeches, the Court of Appeal used to issue guidance in the form of judgments in particular cases on how judges should proceed in sentencing. That was worth while, and, as my right hon. and learned Friend the Secretary of State made clear in his speech, the Court of Appeal retains that role. We saw it, as an intervention revealed earlier in the debate, in the riots last year. The Court of Appeal, essentially, was able to establish that as a matter of English law the context in which otherwise minor offences had taken place required much stiffer sentences to be imposed than would otherwise have been required either by previous guidance from the Court of Appeal or by guidance from the Sentencing Guidelines Council.
I can agree with my hon. Friend the Member for South Swindon to the extent that it does seem important that the Court of Appeal should retain that overarching ability to exercise its right to indicate to lower court judges what would be an appropriate sentence in particular circumstances. What the Court of Appeal never had and still does not have the opportunity to do is consult more widely, whereas the Sentencing Guidelines Council did have that opportunity, as does the Sentencing Council, which consults much more widely than the Court of Appeal ever could in a criminal case. In any case in which the Court of Appeal was handing down guidelines, it would receive submissions only from the parties to the case—and perhaps from the Attorney-General; I know not—but it would not be able to consult extensively with the public as the Sentencing Council can and does. If we are to encourage public confidence in the sentencing regime, it is very important that the public are consulted.
The only respect in which I might criticise the Sentencing Council—perhaps I am going slightly off the topic here—is in relation to its consultations on mandatory or discretionary guidelines on sentencing, which are not well publicised or well known. The representations it receives usually come from the Criminal Bar Association, other specialist associations and those who are particularly interested in the criminal justice system.
The Solicitor-General
Is there not another point to bear in mind? The Court of Appeal’s criminal division can look only at past cases and must have cases brought to its attention either singly or in groups in order to introduce thematic judgments on particular areas of criminal activity. The Sentencing Council, however, can proactively look at burglary, sexual assault and other areas of crime and give forward, rather than retrospective, guidance.
Stephen Phillips
My hon. and learned Friend makes an excellent point, as usual, which I had not thought of. No doubt that is why he is the Solicitor-General and I am two Benches behind him. He is absolutely right and I entirely agree with him.
I differ from my hon. Friend the Member for South Swindon only inasmuch as although I think the Court of Appeal should indeed retain the overarching ability to indicate to lower court judges the framework within which sentencing must take place, I also consider the existence of the Sentencing Council to be important for the reasons I have indicated. The council’s guidelines ensure a large measure of consistency between sentences that are handed down for similar, if not identical, crimes across the entirety of England and Wales. For that reason, although I understand that there is a cost implication with the maintenance of that body and that it can be described, as it always is, as a quango—indeed, some would say it is a quango we should dispense with—it is a body that should continue to exist if we are to encourage confidence in the sentencing regime in England and Wales.
I hesitate, particularly given the time, to say very much about the hon. Member for Hammersmith’s spirited defence from the Front Bench of the sentencing regime and the way in which sentencing was treated by the previous Government, but it is right to point out that a large number of criminal justice Acts were passed under the previous Administration. If he were to go, as I recommend he should—perhaps he already has—and talk to those who had to use that legislation and were bound by it in their sentencing exercises, he would find a universal, or near-universal, level of criticism, particularly regarding the Criminal Justice Act 2003. Many of the measures that the previous Government introduced, such as custody plus, which was the example given by my hon. Friend the Member for South Swindon, were never brought into being or had to be changed in subsequent Acts. The difficulty with the previous Government’s approach was that it sought to micro-manage the judiciary and to remove large elements of discretion so that the sentences that were passed did not necessarily reflect the offences of which the accused had been convicted or for which a guilty plea had been entered. Sentencing became, to a large extent, a tick-box exercise, which as the hon. Gentleman acknowledged, at least by implication, and as other Members acknowledged, is a most unsatisfactory way of proceeding. I listened to the spirited defence from the Opposition Front Bench, although I sought not to intervene, but I have to tell the hon. Gentleman that the approach the Government are taking in their reforms is the right one and I commend it to the House, as indeed I commend the motion.
The Solicitor-General (Mr Edward Garnier)
I think that I am the 16th contributor to the debate, and it is not surprising—indeed, it is welcome—that although the debate is entitled “Transparency and consistency of sentencing”, and we are required by the motion to have
“considered the work of the Sentencing Council and the transparency and consistency of sentencing”,
contributions from right hon. and hon. Members have dealt with a number of wider issues within the criminal justice system. I congratulate the two Deputy Speakers who have chaired our debate on permitting such a liberal approach to the terms of the motion, which has allowed a number of informed and informative contributions.
I confess I thought that at some stages in the debate, the hon. Member for Hammersmith (Mr Slaughter) who, at least this afternoon, speaks for the Opposition on such matters, had been sentenced to a period of solitary confinement. For considerable periods he was the only Labour Member who thought it appropriate to remain in the Chamber. He, poor fellow, had no liberty and no discretion about whether to sentence himself to time in the Tea Room or somewhere else. It was a pleasure to see him sitting there silently for much of this afternoon. He has assisted us greatly with two contributions. Many people will no doubt find assistance from reading, with great care, what he had to say, in tomorrow’s Hansard. His praise for our judiciary and the criminal justice system was of considerable value, and the sentiment was shared across the House. I think he said that there was no room for complacency. If he did say that, he was right to do so.
From listening to the speeches of Government Back Benchers, I think it is fair to say that while there is universal acceptance of the high quality of our judiciary, from the highest court in the land, the Supreme Court, to the lay magistracy, there is no room for complacency and plenty of room for public comment. There is plenty of room for Members of Parliament—indeed, there is a duty on them, when it is appropriate—to make stinging comment, often in offensive terms. It is the right and duty of a Member of Parliament to speak up for his constituents or for a particular group of citizens who have strong views. It is right that my hon. Friends the Members for Gainsborough (Mr Leigh) and for Shipley (Philip Davies) come to this place not to agree with everything that goes on, but to disagree and explain why they disagree. The Government and the Opposition can make judgments about their contributions and reach a rational conclusion about whether to agree or disagree with them. I am grateful to both of them, and indeed to all Members who have taken part in the debate.
As I said, it is not surprising that our debate has been spread widely. We have considered the work of the Sentencing Council and whether it is a constitutional abomination that is interfering with the freedom of Englishmen. I say to my hon. Friend the Member for Penrith and The Border (Rory Stewart) that in some senses I hope it is interfering with the freedom of Englishmen who commit crimes and deserve to be sentenced to terms of imprisonment or, if their offences are not so hideous, to non-custodial disposals.
I know that my hon. Friend is a man who thinks a great deal about a great many things, and it is clear that he has thought a great deal about the difficult constitutional issues that are revealed in any discussion of the separate roles of Parliament, judges, juries and the Sentencing Council. None the less, I disagree with his conclusion if it genuinely is that the Sentencing Council is an affront to the liberty of Englishmen.
During the passage of the legislation that the last Government introduced setting up first the Sentencing Guidelines Council and then the Sentencing Council, I expressed the view that there was a danger that those bodies would interfere with the discretion of the judiciary. I said that both as a Member of Parliament and as someone who has sentenced people—until I came into government in 2010, I used to sit as a Crown court recorder, like my hon. Friend the Member for South Swindon (Mr Buckland) and my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips). I think if my hon. Friend the Member for Penrith and The Border were to sit either as a spectator in the public gallery or alongside the judge—or even, dare I say it, if he were to imagine what it must be like to sit in the dock and hear a judge promulgate a sentence—I do not think he would be in any doubt whatever that our judiciary is not fettered in the way that I feared it might be, and the way he perhaps implied it was, by the guidance of the Sentencing Council.
Time and time again as Solicitor-General, I have appeared in the Court of Appeal criminal division referring what I consider to be unduly lenient sentences to the Court for review. I remind the House that I do that not as a member of the Government but as an independent Law Officer protecting the public interest. When I do so, I am constantly reassured that the Court of Appeal reminds the judiciary and the public who are in court that the sentencing guidelines are simply that—guidelines. When it is just to depart from them, the judiciary must do so. When it is just to show mercy, it is right and proper that the court should do that.
In cases such as the riots, to which my right hon. and learned Friend the Secretary of State referred, it is right that sentencing judges in London, Birmingham, Liverpool or Manchester can go beyond the range of sentences recommended in the guidelines for affray, robbery, burglary of shops, arson or whatever it may be. The Court of Appeal and the Lord Chief Justice have said that given the context in which the crimes were committed, it was entirely proper that the sentencing judge should go beyond the sentence that might normally be expected for, let us say, the theft of three bottles of water, a cardigan or a pair of trainers from a shop.
It seems to me that we need to bear in mind the context in which the Sentencing Council does its work. Yes, the situation has changed from what happened 20, 30 or 40 years ago, when we relied only on the Court of Appeal to set out guidelines. However, now that we have the council I am, if not an enthusiastic convert, a convert who is prepared to say that its work, and previously that of the Sentencing Guidelines Council, has demonstrated its worth.
I should like to echo those who thanked Lord Justice Leveson—I am thinking particularly of the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), the Chairman of the Justice Committee. Lord Leveson’s work on sentencing is in addition to his ongoing inquiry into the press and his work as an ordinary member of the Court of Appeal. He has to fit in sitting days in the Court of Appeal and deal with the work of the Sentencing Council in addition to his work on the Leveson inquiry, so I hope it will not be suggested that that judge, let alone any other judge at that level, shirks in his public responsibilities. He is working extremely hard and producing good work.
However, the fact that the council produces those guidelines does not mean that we must agree with them. Members of Parliament can disagree with them, as can members of the public who read about sentences in their local or national newspapers. We can form our own views, but as my right hon. and learned Friend the Lord Chancellor said at the outset, Members of Parliament must be a little careful when we express such views, because the public expect us to have opinions based on fact, not simply on conjecture or rumour, or on a bad report of a case that we read in the newspaper. When Members of Parliament disagree with a sentence that a Crown Court judge has arrived at, we are under rather more of a duty than the young reporter or the ordinary member of the public to do our best to find out the facts.
One good way of finding out the facts is to ask the House of Commons Library to do the research for us. Another good way of increasing our knowledge of what the Crown Courts and other sentencing courts do is to go and sit in them, which I did in opposition. I urge my right hon. and hon. Friends and the few Labour Members in the Chamber to go to their local Crown court to see what happens. Friday is a very good day to do so because it is often the day when the sentencing lists are dealt with.
I take what my hon. and learned Friend the Member for Sleaford and North Hykeham said about cases sometimes being dealt with by one judge at one instance and then being referred to another judge, but by and large, I like to think that happens only when they are dealing with cases in which there is a guilty plea followed by a sentence. The sentencing judge on a guilty plea is in just as good a position as the judge that received the plea. The important thing to bear in mind—this is a piece of advice that the Court of Appeal constantly gives, and my right hon. and learned Friend and I constantly give it to the Crown Prosecution Service, which we superintend—is that the factual basis on which the plea is made is established. Sentencers cannot sentence in a vacuum. It is essential that the facts of the case as admitted or as found by the jury are clear, so that the sentencer knows precisely on what basis he is sentencing.
Mr Buckland
Will the Solicitor-General reassure the House that the basis of pleas are reduced into writing—that they are court documents? Transparency is an important part of that process, as has been emphasised by all courts, including the Court of Appeal, for some years now.
The Solicitor-General
I am sure my hon. Friend is right about that—he will know that from his experience both as an advocate and as a sentencer. It is utterly frustrating to have to analyse sentencing remarks that are based if not on conjecture, then on a total lack of knowledge of the facts. Advocates—those who appear for the Crown and the defendant—have a duty to ensure that the court is given the facts.
Advocates also have a duty to ensure that the court is advised about the relevant sentencing law and powers. One of the problems, or unintended consequences, of the raft—I was going to say the flood—of legislation passed by the Labour Government was that those Acts had something to do with amending the criminal justice system. The previous Government were not so silly as to call every one of those 64 Acts of Parliament a criminal justice Act, but I can assure the hon. Member for Hammersmith that 64 pieces of legislation passed between 1997 and 2010 affected the way the criminal justice system worked. It is completely—I will not use an unparliamentary expression—confusing to have to sit there and try to work out which piece of legislation deals with which type of offence and whether that legislation is in force, not yet in force or out of force.
Let me take the example of the Criminal Justice Act 2003, which is almost as thick as this great tome—the wonderful “Vacher’s Parliamentary Companion”—in my hand. Before this Government came into office, I asked a parliamentary question of the previous Government, and it was quite clear that they had simply mismanaged the conduct of that piece of legislation. About a third of it was repealed before it even came into force. Another third was not in force by the time the previous Government left office. Individual bits of the remaining third were brought into effect, and we are now having to repeal them—I am talking, for example, about the IPP legislation. Other bits were also brought into force by the previous Government, but they then realised they needed to repeal them.
What we require from the House, therefore, is an understanding that legislation needs to be thought about. We need, of course, to consult—this is what the Sentencing Council does—the people who have to apply it and the people it will affect. We need to work out what we will get if we pass what I call early-day motion legislation—expensive appeals; judges telling my right hon. and learned Friend the Lord Chancellor that statutory construction is hell; and a huge lack of public confidence and satisfaction in the justice system.
Stephen Phillips
My hon. and learned Friend may remember—I wonder whether he agrees with this—that, in March 2006, Lord Justice Rose, speaking of the 2003 Act, which most of the judiciary consider to be the worst criminal justice Act of all time, said:
“Time and again during the last 14 months, this Court has striven to give sensible practical effect to provisions of the Criminal Justice Act 2003, a considerable number of which are, at best, obscure and, at worst, impenetrable.”
Does my hon. and learned Friend agree that it was not the high point of Labour’s justice policy?
The Solicitor-General
My hon. and learned Friend is too kind. I will also say this: Lord Justice Rose is a very great man.
Rehman Chishti
On that point, does my hon. and learned Friend agree that the 3,000 new offences brought in by the Labour Government had little effect in reducing crime? It was simply a case of legislation being made for the sake of making legislation, rather than making a real difference to people’s quality of life.
The Solicitor-General
I do agree. We made the same points during the passage of the 2003 Bill, as it then was, and subsequently.
The Solicitor-General
The hon. Gentleman has been very lucky—he has been allowed two goes. I have two more minutes, so he will just have to sit there and wait.
In the final minutes remaining to me, I want to thank the hon. Member for Hammersmith for his contributions, which were utterly valuable. My right hon. Friend the Member for Berwick-upon-Tweed contributed thoughtfully and with all the experience he has gained as the Chairman of the Select Committee. The right hon. Member for Leicester East (Keith Vaz) has now gone. I am afraid that I had to cut him short because I thought his remarks were straying into an area we should not stray into until the case he wanted to talk about is completed. I mentioned the remarks of my hon. Friends the Members for Shipley and for Gainsborough. I am sorry I do not have time to deal in detail with the points they made, but I commend them on the forceful way in which they put them across. It is important that Members of Parliament do not just sit there like lemons, but get up and speak for their constituents.
Furthermore, if Members have particular experience —my hon. Friend the Member for Gainsborough and I have both been victims of several burglaries, as has my hon. Friend the Member for Broxtowe (Anna Soubry)—we should use that personal experience. However, we should also use our professional experience, and a number of lawyers have brought to the House their experience as lawyers and as Members of Parliament. Their work as Members of Parliament is all the better for it. I am thinking of my hon. Friends the Members for Dartford (Gareth Johnson), for Gillingham and Rainham (Rehman Chishti) and for South Swindon, and my hon. and learned Friend the Member for Sleaford and North Hykeham. I apologise for not commenting in detail on the contribution from my hon. Friend the Member for Stroud (Neil Carmichael). I also wanted to comment on the speech by my hon. Friend the Member for Blackpool North and Cleveleys (Paul Maynard)—