Defamation Bill

Lord Lester of Herne Hill Excerpts

Tuesday 9th October 2012 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, unlike the noble Lord, Lord Sugar, I warmly welcome this much-needed Bill. Its central aim is to reform English defamation law to strike a fair balance between the fundamental right to freedom of expression, public information and the protection of a good reputation. As the noble Lords, Lord McNally and Lord Browne of Ladyton, have said, the Bill is needed to give better protection to free expression, while ensuring fairness and responsibility in journalism, the necessary protection of the right to a good reputation, and access to justice by the weak against the rich and powerful. It is not and must not be an unbalanced charter for the media. It has to protect the journalists, scientists, doctors and activists caught up in recent cases.

I very much welcomed what the noble Lord, Lord Browne, had to say. I express my admiration of Scots law, which he was too modest to mention. My experience has been that in this area Scots law and practice has been more progressive than it has been south of the border. I will always remember Lord Keith of Kinkel in a case that I argued in front of him. He was a breath of fresh air in the House of Lords in giving leadership in that case. That ought to be recorded.

The Bill has been prepared in light of the report by the well informed Joint Committee on the Government’s draft Bill, ably chaired by the noble Lord, Lord Mawhinney, the public consultation, and the views of civil society and the media. The unsatisfactory state of English defamation law is notorious and well recognised here and abroad. It is mainly based on the common law and has had very limited scrutiny by Parliament for more than a century. Its subject matter is too important to be left to the courts to reform on a piecemeal basis. That is not their function. The legal principles need to be prescribed by Parliament and guide the courts to interpret and apply the law.

English common law suffers from uncertainty and encroaches too broadly on free expression. It has failed to adapt to the changing world of communication by means of the internet and the world wide web. The litigation common law engenders is costly and often protracted. It has a severe chilling effect, as many noble Lords have said, on free speech—not only of powerful newspapers and broadcasters but of regional newspapers, NGOs and individual public critics. That chilling effect breeds self-censorship and impairs the communication of public information about matters of legitimate public interest and concern that are vital in a modern democracy. Under the previous Government, Parliament recently abolished several common law speech crimes inherited from the Court of Star Chamber, including criminal libel and judicious, blasphemous and obscene libel. I say in the presence of the Minister that I hope that we will soon, as the Law Commission suggests, abolish the archaic common law crime of scandalising the court—a crime used to punish journalists elsewhere across the common law.

However, the fear of damages and massive legal costs induced by civil libel law is markedly more inhibiting than the fear of criminal prosecution. It is the NGO, the whistleblower, the citizen critic or the website host who tends to take the line of least resistance by censoring information and opinions which the public need to know in order to avoid the costly and uncertain litigation that benefits many of my friends and fellow practitioners at the English Bar.

I will say something briefly about the Leveson inquiry. I welcome the fact that the Government have not been blown off course by the Leveson inquiry. Lord Justice Leveson’s report may have implications especially for Clause 4 on the defence of responsible publication and on whether the successor to the Press Complaints Commission should be recognised without being regulated by the Bill to enhance public confidence about its independence and effectiveness. My right honourable friend Simon Hughes MP expressed concern in the other place that, if Lord Justice Leveson does not produce recommendations until December, it may be necessary to come up with further legislation. That would be regrettable. I would hope that it might be possible for Ministers to suggest to Lord Justice Leveson that he make an interim report soon with his recommendations for better regulation of the independent press so that we may take it into account during the passage of the Bill in this House. I know that the noble Lord, Lord Hunt of Wirral, hopes this too. He is unfortunately unable to take part in this debate but he has authorised me to say this.

In scrutinising and improving the Bill, the first aim should be to strike a fair balance between private reputation and public information as protected by the common law and the constitutional right to free expression. The second aim is to simplify and clarify the law to assist the claimant whose reputation has been significantly and unjustifiably damaged. The third is to require claimants to demonstrate that they have suffered or are likely to suffer real harm as a result of the defamatory publication of which they complain. The fourth is to modernise the defences to defamation proceedings, in accordance with the overwhelming requirements of the public interest so that free expression is not chilled by self-censorship and coercive litigation. The fifth is to discourage so-called libel tourism. The sixth is to encourage the speedy resolution of disputes, including the use of mediation and alternative dispute resolution as well as wise, firm and early case management by the courts. The seventh is to make trial by judge alone the normal mode of trial, rather than trial by judge and jury. To my surprise, I discovered that the media much prefer the reasoned judgment of a judge to the uncertain and occasionally arbitrary trial by jury. The final aim is to modernise and extend statutory privilege. I hope that we will manage to get rid of what is known as the “Neil Hamilton defence” in Section 13 of the 1996 Act

The Bill does not deal with changes in the civil procedure and costs rules, which are as important as the Bill itself. As the noble Lords, Lord Browne and Lord Mawhinney, have emphasised, it is important to know how the Government intend to enhance access to justice and to create a level playing field between the strong and the weak. It is also important for the Civil Justice Council, chaired by the Master of the Rolls Lord Dyson, to begin its work urgently on the new procedures during the passage of the Bill. I very much hope that it might be possible to do that before the Bill leaves this House—at least in some draft form.

I turn briefly to one or two aspects of the Bill that have been mentioned and need to be explored in Committee. I shall concentrate mainly on Clause 4—the defence of responsible publication—which, as currently drafted, is regressive. My right honourable friend Simon Hughes MP noted that the Reynolds defence does not work and that we need to move from the common law position. As counsel in Reynolds, I enthusiastically agree. I was unsuccessful in persuading the Law Lords to adopt a workable public interest defence for responsible publication. Instead, they adopted a list of factors which have made the defence virtually unworkable. In my Bill, we attempted to produce a shorter list of factors, and the Government have made a similar attempt in Clause 4. However, the clause has been widely, and rightly, criticised by the Official Opposition and Simon Hughes in the other place and by the Libel Reform Campaign.

Clause 4 rightly abolishes the common law Reynolds defence but it does so without adequately reflecting the importance of editorial discretion, as emphasised by Lord Dyson and by the Supreme Court in Flood. That increases the likelihood that judges will revert to treating the list of relevant factors as a check-list and be tempted to put themselves in the position of editor when determining whether or not publication was responsible, rather than respecting a range of permissible editorial judgments.

Various proposals have been put forward—I shall not bore the House by going into them at this stage—but I suggest that what is needed is a clause that sets out the principles of protecting honest and reasonable publication in the public interest, which deals with mistakes and ongoing publication, and which respects editorial discretion. We need what the Guardian editorial describes today as:

“A robust public interest defence that offers some security where matters under debate are of public concern and are the subject of honest opinion”.

As the noble Lord, Lord Mawhinney, and the noble Viscount, Lord Colville, have said, the trouble with listing factors is that they become a check-list that may be underinclusive or overinclusive and they lack legal certainty. In my view—and, more importantly, in the view of the leading experts on defamation law, Sir Brian Neill and Heather Rogers QC, to whom I express admiration and gratitude—it is far better to articulate the general principles of this key public interest defence without setting out a list of factors, leaving it to the courts to interpret and apply the principles on a case-by-case basis.

I suggest—it is only to get the civil servants thinking that I mention it at this stage—that Clause 4 might be replaced by a provision on the following lines. This does not come from me; Sir Brian Neill suggested it. First, it might say that it is a defence in an action for defamation (a) for the defendant to show that the statement complained of was on, or formed part of a publication on, a matter of public interest, and (b) if the defendant honestly and reasonably believed at the time of publication that the making of the statement was in the public interest.

Secondly, in the case of publication for the purposes of journalism, the court shall, in determining whether the requirements of (a) and (b) are satisfied, give a wide discretion to the editor or other person responsible for the publication as to the content of the statement, the form in which the statement was made and the timing of the publication. That really comes from Lord Dyson in Flood.

Thirdly, for the avoidance of doubt, the defence under this section may be relied upon irrespective of whether the statement complained of is a statement of fact or a statement of opinion. Fourthly, a defence under this section shall not succeed—I repeat: shall not succeed—if the claimant shows that he asked the defendant for the publication of a correction of the statement complained of and that the request was unreasonably refused or granted subject to unreasonable conditions. In my view, that encapsulates what should be the defence without the need for a check-list of exhaustive or non-exhaustive factors.

On a different point, Clause 5 deals with the liability of website operators for material posted by third parties. The detail of the new rules has wisely been left to be dealt with by regulations, as we have heard. That is sensible, given the complexity and changing nature of the issues involved. However, like, the noble Lord, Lord Browne, I suggest that the draft regulations should be published when we consider Clause 5 in this House. As he has indicated, regulations should be subject to the affirmative resolution procedure because of their importance in this country and internationally.

Perhaps I may say a word about Clause 9 that the Media Lawyers Association drew to my attention and which no one has mentioned so far. Clause 9 deals with proceedings against a person who is not domiciled in the UK or in a member state of the EU or of the Lugano convention. I am not sure why it deals only with that and not with proceedings brought “by a person”. Clause 9 should deal with both “by” and “against”, unless there is some good reason to the contrary.

The Bill provides a once-in-a-generation opportunity to reform this area of the law. We are being watched attentively across the common law world where English law has had a bad influence, to the point where the United States Congress and President Obama legislated to prevent English libel judgments from being enforced there. American media lawyers have told me that they wish that they could do in the United States the kind of reforms that we are contemplating here. In the words of today’s Guardian editorial:

“The better free expression is protected here, the better the UK can argue internationally against oppression and persecution”.

EU: Personal Data

Lord Lester of Herne Hill Excerpts

Wednesday 20th June 2012 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, the Minister has made a handsome apology and I agree with the noble Lord, Lord Wills, that that should be an end to this. My noble friend does not suggest that the process has been well conducted or that it will happen again. It is not helpful for noble Lords to accuse the Government of bad faith or dishonesty, as the noble Lord, Lord Pearson, has. That is unworthy of him and of this debate.

To complete the chronology of what happened, as we know, the Commission published its proposals on 25 January. Very quickly, on 7 February, the Ministry of Justice called for evidence by 6 March. On 14 March, a report was published by the House of Commons European Scrutiny Committee, which analyses this matter in depth on pages 42 to 63. There was then a debate on 24 April, which was referred to by the noble Lord, Lord Pearson. What he did not say is that in the vote on whether to take note, those who agreed with him were defeated by 267 to 24. No one can say that what happened in the other place was in any sense an absence of parliamentary scrutiny. I have had the privilege of serving on the EU Sub-Committee on Justice and Institutions three or four times during my time in this House. I take great pride in the fact that scrutiny is conducted better in our Parliament than in any other throughout the European Union.

I have listened very carefully to the Minister and read—as has the noble Lord, Lord Pearson, apparently—the Government’s explanation in the other place of why they took the course that they did. In his speech, the noble Lord, Lord Pearson, did not reply at all to any of the arguments that were put forward in the other place and here on the Government’s course of conduct. In the other place, the Minister, Mr Blunt, said that there were three main reasons for deciding not to opt out. The first was that,

“the directive is at a very early stage of negotiation”.

The second was that,

“the legal base of the measure gives the UK an effective exemption on the issue about which we are most concerned: internal processing of data”.

He went on to say:

“Thirdly, and most important, exercising the opt-out would endanger our continued ability to share information across borders without necessarily freeing us from the bureaucratic and unwelcome obligations potentially created by the new directive”.

He continued:

“If we were outside the directive, our ability to negotiate essential data-sharing agreements”—

of which there are many examples—

“could be significantly undermined”.—[Official Report, Commons, 24/4/12; cols. 886-87.]

The Minister in the other place said:

“Let us be clear about what is at stake here. Rules enabling the sharing of data have made a tangible difference to the United Kingdom, and we take steps that imperil them at our risk and at risk to our citizens. Let me give an example, which concerned a 32-year-old Romanian national who was arrested in the United Kingdom on suspicion of raping two women within the Metropolitan area. A request for conviction data identified that the suspect had a previous conviction for rape in Romania. Just prior to the trial, the individual disputed the Romanian conviction, but through close liaison with the central authority and the police liaison officer at the Romanian embassy in London, a set of fingerprints relating to the Romanian rape conviction was obtained and proved the conviction beyond doubt when they matched against the suspect.

An application to use the previous conviction as bad character evidence was made by the prosecuting counsel and was granted by the judge, allowing the Romanian rape conviction to be put before the jury. The defendant was convicted of four counts of rape and other offences … in July 2010. The defendant was given an indeterminate prison sentence, with a recommendation that he serve at least 11 years in jail”.—[Official Report, Commons, 24/4/12; col. 888.]

And so it goes on.

What the Minister explained in the other place was that the information was obtained exactly under the regime which the noble Lord, Lord Pearson of Rannoch, regards as an encroachment on our criminal law and our domestic legal system. To the contrary, the ability across frontiers to share data of this kind is entirely in the interests of protecting our citizens against crime and their public safety.

As regards the other interests at stake—

[Lord Pearson of Rannoch]

The noble Lord of course is right that I think what he has just said. But far superior to that is the continuing cession of our sovereignty and the supremacy of our courts to the European courts and the Commission. That is the overriding objection that I have. I have read the debate in the Commons and I cannot believe that the Romanian could not have been convicted under similar arrangements without the continuing cession of our sovereignty.

[Lord Lester of Herne Hill]

I do not think that your Lordships would need a full debate on the value of the two European courts in protecting the rights and freedoms of our citizens. But, as I was about to say, the other rights and interests at stake are those of personal privacy, freedom of expression, protecting the security of the state, protecting us against crime and, in one aspect of what we have before us, ethnic profiling data-taking being prohibitive but with a necessary exception for equality where it becomes necessary in the interests of equality to do so. All those rights and freedoms, which are also part of our domestic law, are protected not only by our own courts but by both European courts. If a European bureaucracy or a European piece of legislation violates our basic rights and freedoms, the Luxembourg Court and the Strasbourg Court have the capacity, and they exercise it, to protect us against the abuse of power by European institutions. That is why the dislike of the noble Lord, Lord Pearson, of supranational or European jurisdictions is entirely misconceived. We need cross-border legislation and measures but we also need safeguards, which we get from those two European courts.

I therefore warmly welcome the pragmatic and careful approach taken by the Government over these measures. I very much hope that we will continue in exactly this direction.

[Lord Pearson of Rannoch]

Will the noble Lord tell us whether these protections which we enjoy from the European Union apply to British subjects extradited under the European arrest warrant? Is he happy with the way in which that initiative has developed?

[Lord Lester of Herne Hill]

The Joint Committee on Human Rights on which I serve has expressed some concerns, as has one of our members, Dominic Raab QC MP. I share some of those concerns but I do not think that this is an occasion for us to debate whether we think all European measures might be improved.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Lester of Herne Hill Excerpts

Monday 23rd April 2012 Lords Chamber

[Lord Pannick]

The noble Lord, Lord Thomas of Gresford, again jumps the gun. This is the third point that was made in the other place, which I was coming to and will now address—

[Lord Lester of Herne Hill]

I hope I am not jumping the gun, but I do not understand from what the noble Lord has said so far why the principle of maintaining the rule of law, a duty which is imposed on the Lord Chancellor, and a duty to secure access to justice under the Human Rights Act do not themselves adequately state the general principles within which this Bill needs to be looked at.

[Lord Pannick]

The answer to the noble Lord, Lord Lester of Herne Hill, is that we are dealing with a Bill that specifically relates to legal aid. It is surely appropriate to include in a Bill relating to legal aid the purpose of legal aid—and to say so in uncontroversial terms. Nothing is more likely to lead to legal uncertainty—the concern that the noble Lord, Lord Thomas of Gresford, has—than that these matters should be left somehow to be implied, in the context of legal aid, by reference to the Human Rights Act. That would seem to me most unsatisfactory.

I turn to the third point: uncertainty. It was a point that the Minister emphasised this afternoon—uncertainty and, as he put it, the spectre of litigation. I find it difficult to understand this concern, given that the amendment makes it clear beyond doubt, in the plainest of language, that it is entirely a matter for the Lord Chancellor how much money to provide for legal aid purposes. The amendment makes it clear beyond doubt that this provision is subject to the detailed provisions in the Bill which specify what subjects are within scope.

In any event, this concern about litigation is a particularly unpersuasive argument in the present context. As I mentioned, the substance of this amendment has been part of legal aid legislation for many years. If lawyers were going to make mischief by reference to this type of wording, noble Lords will recognise that they would have done so by now.

Finally, the fourth point that has been mentioned by the Minister this afternoon is that the other place is, of course, the elected Chamber and that we should defer to its judgment. For my part, I recognise that there is, of course, force in this argument. Noble Lords will wish to reflect carefully on this amendment, as on all the other amendments before the House this afternoon, before asking the other place to think again.

I suggest to noble Lords, however, that this is an occasion—on this amendment certainly—when it is appropriate to ask the other place to think again. The amendment now before noble Lords addresses the concerns expressed by the Minister, Mr Djanogly, in the other place. There is simply no substance to the Government’s opposition to this amendment. It raises an issue of principle of considerable importance and it involves no financial cost whatever to the Government. I beg to move.

--- Later in debate ---

[Lord Beecham]

My Lords, my noble friend Lord Hart inadvertently stole my opening line about the time we have spent debating this amendment. I could also point out that we will take little less time to vote on this amendment than the other place took to discuss, and allegedly debate, all four of the amendments about which we have heard.

The noble Lord, Lord Thomas, has entertained the House by conjuring up a vision of an army of devious lawyers mining the rich seams of the potential availability of legal aid for the purpose of pursuing claims for judicial review. Others of your Lordships have rather demolished the thrust of that argument, which in any case might be thought to be somewhat fanciful, especially in the light of the quite appropriate reference made by the noble Lord, Lord Faulks, to the fact that the amendment incorporates specific reference to the discretion of the Lord Chancellor. With respect to the noble Lord, Lord Thomas, there really is no substance in his objection to the amendment as it has been moved.

In relying once again on financial privilege—when it could have been waived and substantive arguments put in the form of a Motion asking this House to reconsider the amendment—the Government seem to be succumbing once again to the temptation of relying on this way out of a difficulty. They are becoming addicted to the use of financial privilege as a reason to reject amendments from your Lordships’ House, and that cannot be a satisfactory basis for dealing with significant matters of this kind. Therein lies the strength of an argument about financial privilege when, in dealing after a fashion with the amendment in the House of Commons, the Minister, Mr Djanogly, made one of his principle objections: that the Government,

“are concerned that the amendment replicates what is already in place”.—[Official Report, Commons, 17/4/12; col. 201.]

If it replicates what is already in place, how can it conceivably add to the Government’s expenditure? It is a ludicrous proposition in an attempt to have it both ways.

For that matter, those who argue that judicial review is something to be avoided seem to have forgotten that when we were discussing the position of the director of legal aid casework—the DOLAC amendment; we will come later to a welcome acceptance of an amendment in that respect—it was argued that judicial review would be available to those who sought to make a case for legal aid in exceptional circumstances. At that point, it was to come to the rescue of people who were being denied legal aid and was something to be embraced. Today, however, for the purposes of this amendment it is an issue that could be deployed against the amendment of the noble Lord, Lord Pannick.

There is no question that the purpose of this amendment is clear. It is declaratory, but it is important to be declaratory about important principles, and for that reason the Opposition wholly support the amendment.

[Lord Lester of Herne Hill]

My Lords, I will explain briefly why I do not agree with the amendment. I quite agree with those who have said that it is inconceivable that it will give rise to effective judicial review because it imposes no legally enforceable duty and it is therefore inconceivable that anyone could threaten the Government by way of judicial review. However, my problem with it is that it imposes no legal duty and then does nothing else.

The amendment begins:

“The Lord Chancellor shall exercise his powers under this Part with a view to securing that individuals have access to legal services—”.

Pausing there, it is of course already the Lord Chancellor’s duty to do so under the Human Rights Act, as I pointed out in a brief question to my noble friend and colleague Lord Pannick. Under that Act, the Lord Chancellor has to act in a way that is compatible with Article 6 of the convention, which secures a right of access to justice. Existing law and Section 3 of the Human Rights Act require that all legislation, including this Bill, must be read and given effect in so far as it is possible to do so compatibly with the Human Rights Act. That first part of the amendment is already fully taken care of by that Act. In so far as the rule of law is in play, it is also taken care of by the Constitutional Reform Act.

The amendment goes on:

“that effectively meet their needs, subject to the resources which the Lord Chancellor decides, in his discretion, to make available, and subject to the provisions of this Part”.

That completely swallows up any suggestion that this is some new, important principle. I am afraid it is written in water and I do not approve of putting anything in the statute that is simply an unenforceable duty written in water.

[Lord McNally]

My Lords, we have had a very interesting debate on this. I hope when the noble and learned Lord, Lord Woolf, has time to read his own remarks, which contain some fairly harsh strictures about the Lord Chancellor, he will reflect that the question of financial privilege is not a matter for the Government or for the Lord Chancellor. As the Clerk of the Commons explains, an amendment that infringes privilege would be the only reason that would be given. That is because giving other reasons suggests either that the Commons has not noticed the financial implications or that it somehow attaches no importance to its financial primacy.

We had a debate very like this one when we discussed the Welfare Reform Bill. I do not have figures at my fingertips—perhaps we can give the noble Lord, Lord Hennessy, the task of looking at the record of respective Administrations in using financial privilege—but when we last discussed the matter it was made clear that this is a matter for the Commons. As the Companion states:

“Criticism of proceedings in the House of Commons or of Commons Speaker’s rulings is out of order, but criticism may be made of the institutional structure of Parliament or the role and function of the House of Commons”.

I think noble Lords have exercised that procedure today.

--- Later in debate ---

[Lord Pannick]

I entirely accept the Minister’s point that the Bill seeks to identify those subjects for which legal aid should be made available. But the Minister will recognise that, in the anxious debates that we have had through the progress of the Bill, we have considered a number of sensitive topics in respect of which the Minister’s argument has been that we would like to provide legal aid for this subject but, regrettably, we cannot do so because we do not have the money under the current financial stringency. The House has listened to that debate and accepted, with a heavy heart, that in relation to many of the subjects in respect of which legal aid has previously been made available it will regrettably no longer be made available. Having accepted that the Government must have their way for financial reasons on many of those very difficult areas, I believe that it is absolutely vital that we retain in this Bill a statement of the principle of why legal aid is made available so that when the economy improves—

[Lord Lester of Herne Hill]

My Lords—

[Lord Pannick]

I have given way to the noble Lord before. I anticipate that the House is anxious to move on. The House has heard the debate in relation to this matter. I say to the House that that part of the 27 minutes which the other place devoted—I am not giving way—

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Lester of Herne Hill Excerpts

Tuesday 27th March 2012 Lords Chamber

[Lord Bach]

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

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

[Lord Lester of Herne Hill]

I am waiting for the noble Lord to finish.

[Lord Bach]

That is a first. I am delighted to hear it. The Joint Committee looking at the draft Defamation Bill agreed with the point that I am attempting to make now. It said of the Government’s proposals that,

“we are sufficiently concerned about them to ask the Government to reconsider the implementation of the Jackson Report in respect of defamation actions, with a view to protecting further the interests of those without substantial financial means”.

The Government are trying to stay the House’s hand—many Members of this House are concerned about the impact on these cases—by saying that they will deal with the issue in the Defamation Bill. That is not good enough. In some ways, we will break the civil justice system in this Bill and the Government are saying, “Don’t worry; we’ll fix it later”. That is not good enough. Even if the Government change the definition of defamation, what will they do to make litigation viable for those of limited means? The fundamental problem, as the House knows, is that damages are low in these cases. Indeed, Lord Justice Jackson recommended increasing them substantially in a part of his report, but not the only part, which has been ignored by the Government. The costs of bringing them in are quite a lot higher.

The Government are doing everything they can to make these cases impossible to bring in the future. They are even refusing to put qualified one-way cost shifting in the Bill, which is an essential protection against adverse costs should a litigant lose in this kind of case. The House should not think that it is good enough for the Government to say, “Trust us; we’ll fix it all later”. The amendment should be supported because, as the noble Baroness said in her thoughtful and impressive speech, it is not good enough just to rely on some Bill that may or may not appear in the next Queen’s Speech whose contents we know not.

[Lord Lester of Herne Hill]

My Lords, I listened with great interest to the speech of noble Lord, Lord Bach. He will remember that when he was a Minister in the previous Government, his master, the right honourable Jack Straw, decided that the present regime of costs was oppressive and unfair because it imposed a chilling effect on the publishers of newspapers and other media. Mr Straw decided that it was an abusive system because of the effect that it had on free speech. The effect arose from the fact that unscrupulous, greedy or perhaps simply normal lawyers acting for claimants were taking advantage of success fees and running up enormous legal costs that dwarfed any claim for damages, leaving a publisher defendant, for example, with a damages claim for £20,000 accompanied by a costs claim for £250,000.

In the Naomi Campbell v Mirror Group Newspapers case, the European Court of Human Rights found that the circumstances breached the right to free speech enshrined in Article 10 of the European convention. In that case, exactly what I described happened in a gross and abusive way. Mr Straw and the previous Government recognised that the system was an abuse and proposed a rather crude mechanism to cut down success fees to an arbitrary figure. Although this House passed the measure, the other place refused to do so and it fell.

As I shall explain in a moment, I have great sympathy with the problem. However, at the moment I am dealing with the existing abuse. I begin by dealing with it because the amendments in this group, which refer to defamation, privacy and breach of confidence, would leave in place precisely the scheme that has been held to be contrary to the European Convention on Human Rights, on free-speech grounds. They would leave in place the exact conditional fee agreement and success fee scheme, with all its capacity for abuse. For that reason, the amendments should be resisted.

Of course, I agree with the noble Lord, Lord Prescott, and others who spoke, that there is a problem in defamation and privacy cases. It is that the normal costs regime does not work very well in those cases, where often what are sought are not massive damages but other forms of remedy that cannot be dealt with under the scheme in the Bill. That is why at a previous stage I tabled an amendment to introduce what I hoped would be a proportionate way of dealing with the problem. The noble Lord, Lord Prescott, put his name to the amendment. I am entirely at one with him in saying that there needs to be a special and proportionate regime that applies to defamation and privacy cases. We are entirely at one in our aim, and that is exactly what our colleagues in the other place indicated in the view that they took on the matter.

The question is: what is the best way of meeting this legitimate aim? A means must be found of dealing with the David and Goliath problem—both ways. In one case there may be an extremely rich and powerful claimant and an impoverished defendant—let us say a citizen critic, or a little NGO, who cannot afford to pay the costs of the claimant. In another case the claimant may be a weak or impoverished individual who is up against a powerful newspaper or other big corporation, and the same problem will arise. We need to find a scheme that ensures equality of arms—a level playing field—between the strong and the weak in these cases such as privacy and defamation claims where the remedy in the Bill is not suitable.

--- Later in debate ---

[Lord McNally]

We are doing what they did not do. We are bringing forward a Defamation Bill that will address many of these problems. The noble Lord says that he does not know what is in the Defamation Bill. A Defamation Bill was brought into this House by my noble friend Lord Lester two years ago, when this Government first came in. In reply to that, I said from this Dispatch Box that we would take up this Bill. We went into a consultation, which has been published. We produced a draft Bill, which the noble Lord may have noticed. We also had pre-legislative scrutiny under the chairmanship of the noble Lord, Lord Mawhinney, and we have responded to that.

We have played this by the book. We have not tried to rush through legislation, as the noble Lord did in the dying days of his Government. We have carried out a sensible look at defamation. The noble Lord knows the conventions. I am very hopeful that we will find parliamentary time in the very near future.

As I have already said, the legislation in this Bill does not come into effect until 2013. The Defamation Bill and the procedural reforms that we intend to take forward with it are of course about reducing the complexity and therefore the expense involved. In order for those aims to be achieved, we will look at the rules on costs protection for defamation and privacy proceedings for when the defamation reforms come into effect. I can give the House the assurance that we will do so. Bearing that in mind, I hope that the noble Lord will withdraw these amendments. We are on course for a reform of our defamation laws.

[Lord Lester of Herne Hill]

My noble friend the Minister accused me of asking questions to which I knew the answer, but this question I do not know the answer to. Is the Minister saying that there will be adequate powers, either under existing law or the future legislation, to create any cost changes that are needed to secure a level playing field and equality of arms? If that is what he is saying, I am completely satisfied.

[Lord McNally]

That is precisely what I am saying. I have not brought this Bill this far to score such an enormous own goal. Noble Lords, particularly those who have been in government, know full well how these processes are carried forward. Nothing will happen that will not be fully and thoroughly debated in both Houses of Parliament. I know that various groups have been briefing and arguing for action now. I do not think that these amendments carry us forward in any way.

I give noble Lords as full an assurance as I can. Bills have to go through Cabinets and Cabinet committees, et cetera, but they also have to go through two Houses of Parliament, where this issue is extremely live. I cannot imagine that the kind of issues that the noble Lord, Lord Prescott, has raised tonight will not be dealt with fully in that Defamation Bill. With that, I urge the noble Lord to withdraw his amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Lester of Herne Hill Excerpts

Wednesday 1st February 2012 Lords Chamber

[Lord Thomas of Gresford]

I am most grateful to my noble friend for interrupting me with one paragraph to go, which would have relieved your Lordships a great deal. The opinion has only recently been produced to me and the Bill team has had it only for a day, so I could hardly expect an immediate response. I hope that my noble friend the Minister will be able to deal with some of the issues that are raised and the issues that I am raising in my remarks.

To conclude, that one size does not fit all is a recurring theme in the Jackson report. Every practising lawyer will agree with that. Proof of the issues that arise in litigation—sometimes liability, sometimes causation, sometimes quantum, and so on—gives rise to different risks and therefore to different solutions. This very Bill, for example, proposes different statutory instruments making different provision for different types of case. I look forward to hearing my noble friend’s response in due course. I beg to move.

[Lord Lester of Herne Hill]

My Lords, I must choose my words carefully because I do not wish what I say to be taken to be outright opposition to my noble friend’s amendments, although I have a certain degree of agnosticism, if not scepticism. I suggest that those who are interested in this area might read the New Yorker article of a couple of weeks ago, which described the abuse of power by the claimant lawyers in the Exxon South American environmental litigation case. That indicates the need for very careful safeguards, even in an environmental setting.

The only reason I speak at all is because it occurs to me that there is a less radical solution to some of the problems that has been fashioned by the courts themselves without any legislative intervention: namely, the protective costs order. I see that the noble Lord, Lord Beecham, shakes his head. I shall explain what I am talking about. The problem with English cost rules is, of course, the winner-takes-all rule, which can, as my noble friend has indicated, have a seriously chilling effect on the ability to bring public interest litigation. It is the fear of claimants and their advisers of having to pay the legal costs of the defendant that has a chilling effect.

I was involved in the Corner House case for a small NGO that was seeking to challenge the lack of proper consultation by the Secretary of State in relation to anti-corruption provisions in the export guarantee area. This was not an environmental matter but it did concern public law. The problem was that the little NGO had absolutely no funds to pay for me but, more importantly, the department. The department would not give an assurance in advance that if it succeeded, it would not ask for the whole of its costs against the NGO. Therefore, the puzzle was how the NGO could bring the public interest proceedings not simply by dealing with the claimant’s position but dealing with the other side.

Sir Henry Brooke, to whom I pay tribute and who throughout has led thinking on this issue within the judiciary, advocated the use of a protective costs order, which enabled us to go before the court and say, “Even if we lose, can we please have a protective order that protects us against the risk of having to pay the other side’s legal costs in advance, so that we know that the worst thing that could happen to the Corner House NGO would be if it had to pay its own costs?”. I am glad to say that that was what was eventually decided and the result was that the Corner House was able to litigate.

I am embarrassed to say that I signed a 100 per cent success fee agreement without realising the consequence, which was that I actually profited from what I had thought to be a public-spirited case. I did not return the money, since it was being paid by the Government. I am against 100 per cent success fees and I would never do it again—ever.

However, the point I am making is not about success fees, but that if one develops through the courts, on a case-by-case and flexible basis, a way of softening the winner-takes-all rule in appropriate cases—not just environmental but all cases—that would enable the weak and impecunious to avoid the effect of that rule. The Constitutional Court of South Africa has decided that the winner-takes-all rule should never apply in important constitutional cases, and that in a proper public-interest case each side should at least bear its own costs and, in some circumstances, the Government should be required to pay the claimant’s costs, or give an undertaking in advance to give that protection.

This is a slightly long-winded way of saying that there are other means that perhaps are to be encouraged by the legislature, or perhaps not. There are other means that the courts themselves have been developing that can deal with some of the points made by my noble friend without something quite as radical as the proposals suggested in his amendments.

[Lord Avebury]

My Lords, does my noble friend agree that the protective costs order that he was successful in obtaining in the case he mentioned was a one-off, that it was not a general rule of law but a matter of luck that his clients were indemnified against the likelihood that they would have to pay the other side’s costs, and that in the amendment that would be a general rule of law that would apply to all such cases?

[Lord Lester of Herne Hill]

Actually, I cannot agree, because the Court of Appeal’s decision was a kind of precedent and it has been followed. There have been arguments about what limits there should be on claimants—whether they should be like an NGO or otherwise—but it would be perfectly possible for a rule to be made by the Lord Chancellor expressly empowering the courts to apply protective costs orders on a more general basis. This was not just a one-off decision; it applied in a line of cases and has been developed since.

[Lord Thomas of Gresford]

I am sure that my noble friend would agree, however, that protective costs orders are matters of discretion for the judge who hears an application, and that the threshold is extremely high. In his particular case, he obviously advanced matters of considerable public interest that were much wider than only the issues in the litigation that affected his clients. So a protective costs order can be applied for in such cases. However, I was involved in the case following the flooding of houses at Aberfan that occurred as the result of the spoil banks placed there after the disaster. In that sort of case, where individual householders were affected, protective costs orders would not have met that threshold.

[Lord Beecham]

My Lords, at the risk of being accused of unqualified one-way sycophancy, I must again congratulate the noble Lord, Lord Thomas, on the clarity of his presentation of this complex issue. Although I somewhat dissociate myself from the preamble to the substantive part of his speech, I entirely concur with his amendments. At this stage, I should also express my thanks to the learned counsel whose advice has instructed me in a matter about which, hitherto, I knew nothing. Aarhus meant absolutely nothing to me up till now. It seems that I may have shared that failing with Her Majesty's Government. We shall see from the Minister’s reply whether that is a correct inference or not.

The noble Lord referred to the ClientEarth case in which the Aarhus Convention Compliance Committee observed that the cost rules pertaining in the United Kingdom placed it in systemic breach of Article 9.4 of that treaty. The committee concluded that we had not as a country adequately implemented our obligation to ensure that procedures are not prohibitively expensive. Counsel's opinion, to which the noble Lord referred, identified two particular issues. The first is that of uncertainty. The second is the sheer amount of the defendant’s costs that might fall on unsuccessful claimants. The noble Lord referred to the case of Barr and Biffa waste company, which arose from a complaint about odours emanating from a landfill site, where the costs were indeed nearly £3,250,000.

Lord Justice Jackson has much to say about those issues. His remedy is, as the noble Lord pointed out, a move to qualified one-way cost shifting. He gave six reasons for his conclusions, which are germane to the thrust of the amendments. He said:

“This is the simplest and most obvious way to comply with the UK’s obligation under the Aarhus Convention in respect of environmental judicial review cases”.

He continued:

“For the reasons stated by the Court of Appeal on several occasions, it is undesirable to have different costs rules for ... environmental judicial review and... other judicial review cases”.

His third reason was that the requirement for permission,

“is an effective filter to weed out unmeritorious cases. Therefore two way costs shifting is not generally necessary to deter frivolous claims”.

They simply do not arise. His fourth point was that,

“it is not in the public interest that potential claimants should be deterred from bringing properly arguable judicial review proceedings by the very considerable financial risks involved”.

He pointed out that:

“One was costs shifting in judicial review cases has proved satisfactory in Canada”.

His final point, which goes to the issue raised by the noble Lord, Lord Lester is that the protective costs order regime,

“is not effective to protect claimants against excessive costs liability. It is expensive to operate and uncertain in its outcome. In many instances the PCO decision comes too late in the proceedings to be of value”.

So with respect to the noble Lord, the protective costs order regime is not, in the view of Lord Justice Jackson, an answer to the difficulty.

[Lord Lester of Herne Hill]

I hesitate to disagree with the Lord Justice, but I do not understand that point, as one can apply at the very beginning, a very early stage, for a protective costs order—certainly in judicial review proceedings. I do not know why he thinks that it is too expensive or comes too late, because that has not been my experience.

[Lord Beecham]

I cannot answer for Lord Justice Jackson, but that is a subsidiary point. His point is that it is expensive to operate and uncertain in its outcome. Therefore, he regards it as an inadequate protection to the one-way costs shifting which the noble Lord, Lord Thomas, has rightly advanced as the best way to deal with these matters. Lord Justice Jackson’s approach was, as counsel’s opinion, to which the noble Lord and I have both referred, makes clear, endorsed by Lord Justice Sullivan’s working party, which was very clear in stating:

“An unsuccessful Claimant in a claim for judicial review shall not be ordered to pay the costs of any other party other than where the Claimant has acted unreasonably—

to go back to the noble Lord’s earlier point—

“in bringing or conducting the proceedings”.

--- Later in debate ---

[Lord McNally]

As I said, we are consulting. I shall return to the question of getting it right. The problem is that the noble Lord, Lord Beecham, is impetuous in so many ways, whereas this Government are determined to get things right—you can see the advice that I get on getting things right.

On Monday, we spent some time discussing QOCS and we heard the concerns of my noble friends and others that the matter should appear in the Bill. This afternoon, I do not want to repeat the more general arguments on these matters, but we need to get the details and the rules right to ensure that they are tailored properly in respect of the category of proceedings to which they apply. For example, in personal injury cases, it may well be that there should not be an initial financial test. However, the position is likely to be different for defamation, and perhaps for environmental cases too, which typically involve more than one claimant—sometimes many claimants. In such cases the costs involved can impact considerably on the ability of the public bodies that are under challenge to perform their general functions.

As the noble Lord, Lord Thomas, explained in moving his amendment on Monday, he was looking for specific words rather than words like “unreasonable”, which he said had such a broad meaning. Indeed, the noble and learned Baroness, Lady Butler-Sloss, added that the word “unreasonable” was liable to cause serious difficulties of interpretation and yet, as the noble Lord, Lord Thomas, has confessed, the word “unreasonably” is in Amendment 157.

It is precisely for those reasons that we are not yet ready to crystallise in statute, and ring-fence away from development in rules, words which are more properly left to the rules, where they can follow detailed discussions with stakeholders. They can be tailored and nuanced for the particular category of proceedings and, of course, the Lord Chancellor will remain accountable for the policy on these issues which is reflected through the Civil Procedure Rules.

Amendments 141, 147, 148, 149 and 150 deal with the recovery of ATE insurance premiums in respect of environmental claims under the Aarhus convention. Amendment 157 would introduce a new clause to provide for costs protection in the form of qualified one-way costs shifting—QOCS—for claimants in environmental claims and, it would appear, for all judicial review claims, whether concerning environmental issues or not.

The Government are, of course, conscious of their obligations under the Aarhus convention. Put simply, the convention requires us to ensure that parties have access to a procedure to challenge relevant environmental decisions that is, among other things, not prohibitively expensive. How we discharge those obligations has been a matter of debate for some time. It was addressed by Lord Justice Jackson in his report and was considered in a number of cases in the High Court and above. Amendments 141, 147, 148 and 149 seek to allow ATE insurance premiums to be recoverable from the other party in these cases. As I indicated in our debate on Monday, the Government's policy is that ATE insurance premiums should no longer be recoverable except in the particular instance of clinical negligence expert reports. Therefore, we do not favour this or any other extension of ATE premium recoverability.

Amendment 157 seeks to apply QOCS to environmental claims, subject to qualification in respect of unreasonable behaviour. The proposed clause would displace any rules of court in this area and provide for the Lord Chancellor instead to have the power to make regulations to extend QOCS to other areas in future. That seems to be something of a departure from the general principle that in civil proceedings, matters relating to costs are regulated in detail by rules of court. It is not clear why the departure would be beneficial.

As noble Lords are aware, the Government are introducing a regime of QOCS in personal injury cases to help balance the impact of the changes to no-win no-fee conditional fee agreements, and in particular as an alternative to “after the event” insurance. Claimants will continue to be able to take out ATE insurance if they wish, but they will pay the premium, which will be lower than the rolled-up premiums presently never paid by anyone other than a losing defendant. Although Lord Justice Jackson suggested that QOCS might be considered for use in some non-personal injury claims, the Government are not persuaded that the case for this has yet been made.

I noted the dispute between the noble Lord, Lord Beecham, and my noble friend Lord Lester about protective costs orders, which are also part of this consultation. As a matter of principle, the Government’s view is that protective costs orders can provide appropriate costs protection in environmental cases. Environmental organisations and the working group chaired by the then Mr Justice Sullivan, to whom noble Lords referred, expressed a preference for QOCS, having argued, including in a submission before the Aarhus Convention Compliance Committee, that an appropriate PCO regime could provide full compliance with the requirements of the convention. With a PCO, it will be clear from the outset what costs the claimant will have to pay if their claim is unsuccessful, while ensuring that some contribution is made toward the costs of public bodies that have successfully defended the claim. As I said, we have consulted on the issue.

The Ministry of Justice consultation Cost Protection for Litigants in Environmental Judicial Review Claims outlines proposals for a cost-capping scheme for cases that fall within the Aarhus convention. The consultation closed on 18 January and we will announce the way forward in due course.

[Lord Lester of Herne Hill]

I had not realised that there was a consultation, and I am delighted to hear that that has now been done. The issue seems to go beyond environmental litigation. Perhaps further thought might be given within the costs rules to a user-friendly procedure in all public interest cases whereby the individual can obtain an order quickly and at the beginning, as recommended by Lord Evershed’s committee in 1950. Lord Evershed recommended that the Attorney-General should be able to certify an issue of public interest where the costs rules would be displaced. I realise that this matter would be for the rules committee, but could consideration be given to that sensible procedure that would be not generalised but case based, on a user-friendly procedural basis, with the judge giving a decision so that people will know where they are from the beginning?

--- Later in debate ---

[Lord Thomas of Gresford]

I am grateful to my noble friend for saying there will be synchronisation. The scales of justice have been tipped against defendants by this fourfold cost that they have been calling for over a period of time. The purpose of this Bill is to even the scales of justice up. If there is any period between shifting from that side to this side the success fee and the ATE insurance without providing one-way costs as the balance, the scales will go completely in the opposite direction, and it is the suffering claimants who will come out the worst in a situation like that.

I cannot resist coming back to the question of protective costs orders, having heard my noble friend Lord Lester. Protective costs orders are applied for in public interest cases. I am not concerned simply with public interest cases. These could be the private individual, the householder whose house is flooded, in the example that I gave—

[Lord Lester of Herne Hill]

They are also applied for in private lawsuits.

[Lord Thomas of Gresford]

It is as my noble friend says. Lord Justice Jackson examined it and he came to the conclusion that the noble Lord, Lord Beecham, referred to. There is much more discussion to be had. I shall take my noble friend outside—as I once said in relation to one of the Ministers in the previous Government—and have a discussion with him there. For the moment, I withdraw this amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Lester of Herne Hill Excerpts

Monday 30th January 2012 Lords Chamber

[Lord Beecham]

My Lords, I reassure the noble Lord, Lord Newton, that this is a group of probing amendments to see which, if any, the Government might feel on reflection ought to be accepted and the scope of the current scheme in effect retained. Clearly, the answer has not been one to encourage optimism on this side of the House, but there are cases, particularly the last one to which the noble and learned Lord referred, where the Government are trying, as so often, to have it both ways.

In previous debates we have heard trade unions invoked as a source of advice and support for their members once legal aid goes. This is an area in which trade unions have for a long time been active in promoting the interests of their members. They will now lose that benefit. In my view, there is a strong case for the Government to look again at the position. I accept that they want organisations such as trade unions to support their members in the field of legal advice, but if so, they ought to endeavour to facilitate that, not at the Government's expense but by retaining success fees and the self-insurance element that the noble and learned Lord proposes to remove.

Asbestosis is probably the most acute of the diseases involved, and when we will come to a debate on it I will strongly support the noble Lord, Lord Alton. It is sometimes forgotten that it is not just direct exposure to asbestos that causes problems and has resulted in litigation but indirect exposure. There have been cases in which wives dealing with laundry and clothes that have been contaminated with asbestos fibres have themselves suffered injury. They have eventually succeeded in obtaining compensation, but that is an illustration of the kind of difficulty and complexity that can arise. There may well be other cases. Every few years, a new condition reaches the courts. Asbestosis was one; miners’ lung disease, pneumoconiosis, was another; and there are others. Although it is certainly true that, as the noble and learned Baroness, Lady Butler-Sloss, pointed out, some lawyers rather exploited the position in some of those cases involving minters, on the other hand many lawyers took these cases on over a very long period at considerable risk to themselves before obtaining settlements. That eventually led to the sensible outcome of a national scheme that determined a scale of damages and, for that matter, the scale of costs. There will be other cases. One imagines that cases may arise over time in the nuclear industry. There have already been some in which radiation has caused damage. I hope that at the very least the Government will look at those cases sympathetically.

The noble and learned Lord referred again to the number of cases that are being pursued. However, I remind him of the figures that I quoted in the first debate: the very detailed analysis of 69,000 cases showed that a third would simply not have been brought under the proposals presently in the Bill. A significant proportion of cases would therefore be pursued, many of them no doubt successfully although others not.

If we are still in the business of trying to promote access to justice by spreading the risk so that it is not always against lawyers’ interests to run cases with a lesser probability of success, that is something that the system should encourage. The fear is certainly that cases with less than a 75 per cent chance of success will just not reach the courts. A very respected firm, Thompsons, which acts for a number of trade unions, indicates that at the moment it takes cases with a risk level as low as 50 per cent, and it cannot see how it could conceivably do that in the future. Yet some of the very cases that we have been talking about involving asbestosis, pneumoconiosis and so on started off with a probable success rate of 50 per cent at best and arguably even worse. If we are not to close the door on emerging cases of that kind or on cases with perhaps a two-thirds chance of success, we have to have a balance to which success fees can contribute. The Opposition’s case is that that ought not to be simply a matter for successful defendants; it ought to be a collective insurance risk. That is the position that we seek to get to.

[Lord Lester of Herne Hill]

I am very grateful to the noble Lord; I had not intended to intervene. Does he agree that in the public interest we ought to be concerned not only with securing a fair balance between claimants and defendants but with being quite clear that there must be adequate safeguards against abuse by members of the legal profession in relation to conditional fee agreements and success fees? I have encountered abuses, for example in the equal pay area, where claimants’ lawyers have insisted that in cases against public authorities the women concerned should enter into binding agreements to ensure that a cut from the damages for equal pay for these poorly paid women goes to the lawyers and that no individual settlements are made without the consent of the lawyers. Should we not be very concerned about those kinds of things and about driving up the level of unnecessary litigation?

[Lord Beecham]

I entirely agree with that and I think that there ought to be a regime for the determination of the size of the success fee in any event. If a case is brought, that matter should be capable of being decided by the court. The noble Lord’s point is one which unfortunately will see damages being taken willy-nilly precisely from claimants in that category. They will not have the opportunity of getting the success fee paid by the other side. In a sense the noble Lord is supporting the case I am making. I entirely agree that members at both ends of the legal profession need to be monitored and that the courts ought to be taking a more positive role both in case management, as I indicated in the first debate, and in the assessment of what is an appropriate success fee. I beg leave to withdraw the amendment.

--- Later in debate ---

I am sorry to have taken up so much of the Committee’s time on these important amendments. They could, of course, have been split into different groups, but perhaps it is right that they have not been. I hope that the Government will listen carefully to what has been said in this group. I beg to move.

[Lord Lester of Herne Hill]

I shall just say something about Amendment 124 in relation to defamation and privacy. This could take hours of a separate debate, but I am going to try to be extremely brief. As the noble Lord, Lord Bach, has indicated, this has to be seen in the context of a defamation Bill that has not yet been published. We have had my Private Member's Bill, a government draft Bill and consultation, and I hope very much that there will be an actual Bill in the Queen’s Speech in the next Session.

I suggest that it is perhaps not appropriate to be moving amendments at this stage so far as costs and insurance are concerned until one knows the substance of the actual defamation Bill. I take it—and the my noble friend the Minister will slap me down if I say something that he strongly disagrees with—to be one of the objects of the reform of defamation law to secure a fair balance between the rights of claimants and the rights of defendants; and between the fundamental right of claimants to vindicate their reputation and their right to personal privacy on the one hand and the right of defendants to freedom of expression on the other. Claimants, so far as libel is concerned, have tended to be the rich and the wealthy, not always, but mainly. The rich and the wealthy, whose lawyers are also rich and wealthy, have abused their power in the past, as the previous Justice Secretary, the right honourable Jack Straw, recognised when he introduced his proposals about capping success fees and conditional fee agreements in this area. They have abused their power by running up enormous legal costs, even in cases where there was no real defence, with the result that the defendant, normally a regional or national newspaper, was faced with a situation where the damages might be £20,000, but the legal costs might be £250,000. It was that abuse that led the European Court of Human Rights in the Mirror Group case to indicate that that had a serious and unnecessary chilling effect on the freedom of speech of publishers. I emphasise that.

The second thing I want to emphasise is that just as claimants have tended to be rich and powerful, although one wishes that the poor would also be able to vindicate their reputations, defendants are not always rich and powerful national newspapers. They may be the citizen critic accusing a public authority of abusing its power, an NGO or a small regional newspaper with very little funds to meet legal costs. I take it to be an objective of the defamation Bill to reduce the costs of litigation and to discourage litigation in the area of reputation and privacy by encouraging the use of lower courts, say county courts, not just the High Court, focusing on alternative dispute resolution and finding ways of securing equality of arms, to use the European phrase, between the parties where there is inequality of arms at the moment. All that needs to be tackled in the context of a future defamation Bill, when we can look at procedures and costs in relation to those reforms which must be designed to secure a fair balance, not a charter for rich newspapers or rich claimants. I think that until we know the Government’s final thinking on this and are able to debate it, it is premature to try to adjust the costs and insurance provisions of this Bill in order to try to tackle the kind of issues that I have inadequately summarised.

[Lord Prescott]

My Lords, I apologise for missing the first few minutes of this debate. The debate I listened to earlier on Clause 43 showed that there is a great deal of feeling about an injustice being perpetrated here in all forms of the use of no win, no cost. I have been in an interesting situation that I would like to relate to noble Lords as an example of what can happen under these new changes.

At Second Reading, I made it clear that I thought this Bill moved power and resources to the wealthy and more powerful and away from the individual, and that the individual was going to be the victim because they were seeking legal redress. These amendments will make it much more difficult to achieve that. It is really about strengthening the more powerful in our society, particularly in regard to individuals and the press. The evidence is clear in the many examples. They do this by changing the rules of no win, no cost under the 1999 Act and other legislation. Under this Bill, the cost of the insurance to take out these cases and, indeed, the changes in the risk payments, will transfer not from the loser, but from the one who has won the case. If you win the case, you are still going to pay a penalty.

In looking at the circumstances—and I shall refer to my court case on telephone hacking—one can see the fundamental difference. I am talking about individuals who see their rights being breached by the media. For example, under the system we have at the moment, I was awarded £40,000 damages. My solicitor’s costs were about £80,000. That means that I got £40,000, my solicitor got £80,000 and the insurance and the risk were included in that. What we are proposing now is to limit the amount of money paid to lawyers for the risk factor—I shall not go into all the arguments that have been made here—which is how they secure more money to take on more risky cases for more people to get access under this no win, no cost situation.

In my mind, that is straightforward. The damages come to me, they are mine. The lawyers get their full costs. Who carries all these costs? The people who lost the case, the ones who have been phone hacking, who have been breaking the law, which we are all aware of, and who have even been paying the police. In those circumstances, why should they not pay the full penalty? I understand that they quote the Mirror Group case at the European Court of Human Rights. In that case, the costs were high. Why? It has always been the practice of the press to fight until the last minute. If anybody wishes to pursue them with no-win no-fee, they say, “Sue us”. You may well have a case, but they will make you sell your house and everything else before you have sufficient resources. At the end, when you have done all that, they say, “Okay. We’ll concede the case”, and they will offer you some kind of damages. That is the pressure that puts costs up in the courts in these cases.

What would have been the effect if I had pursued my case under these new rules? Believe me, this press is not going to go away; it is still going to be committing the same offences. We have a PCC that is particularly useless and will continue to be unless we make fundamental changes. Anyone listening to the Leveson inquiry must hear that the press has not changed its mind; it is still going to go ahead and do the same things because that is how it sells newspapers. Let us assume I have a complaint of a similar nature against the press. This would mean that I would have to get a no-win no-fee situation. Given that they have already reduced the risk costs, it is highly unlikely that they may find this a risky situation. In fact, when I was complaining in this House and elsewhere about what the press was doing about phone hacking and about Murdoch, I was almost a lonely voice.

--- Later in debate ---

[Lord Martin of Springburn]

My Lords, I support the noble Lord, Lord Bach. I listened with interest to the noble Lord, Lord Lester, and his comments about the rich and famous being able to take cases to court. This is what worries me about the lack of no-win no-fee. I am not concerned about the rich and famous, I am concerned about ordinary men and women, who maybe only once in their life have been defamed by a newspaper. At the Leveson inquiry one former editor said, “If it sounds good or if it sounds like the truth, just lob it in”—just to lob it in for a woman or a man who is living a quiet life is very cruel and hard.

For those of us who have approached newspapers and said, “What you have said about me is wrong”, their first reaction is, “If you don’t like it, write a letter and we will print it in the readers’ column”. How insulting is that, that I or anyone else should then make a contribution to a newspaper—which is usually a nasty newspaper that you would not even have in your home—by putting a letter into their column? That is even the line that they take with the Press Complaints Commission. Everyone knows that when anyone takes up a complaint with the Press Complaints Commission, they are not even looking for money, they are looking for some redress, and that is the first course of action that they take.

Years ago, perhaps in the 1950s, 1960s or 1970s, it used to be the case that if a newspaper printed something that was wrong about you, it was a matter between you and the newspaper. This is not the case nowadays, because when a newspaper prints an allegation, there is a press preview on Sky News or the BBC, where they get some talking heads to chew over what has been said about you that day. That means that even when you are deeply embarrassed about what has gone out, and you have not even had a chance to redress the balance, within hours of that newspaper being published hundreds of thousands of viewers are able to get a look at that newspaper because they are invited to do so by another press organisation.

I note the point that the noble Lord, Lord Lester, has made about local newspapers. When is it that people take offence at a local newspaper? There is maybe the odd individual. But a local newspaper says to itself, “We do not have the resources to involve ourselves in a law suit, so we had better be careful before we go to print”. My local newspaper is the Springburn Evening Times. While there have obviously been people who have taken exception to what it has had to say, I have never known anyone to take it to court, because as an organisation it is careful about what it does.

[Lord Lester of Herne Hill]

Has the noble Lord read the evidence that was given to the Joint Committee on the Draft Defamation Bill by various NGOs and regional newspapers, indicating the ways in which the existing law of libel has a very similar chilling effect on their ability to report and comment on matters of public interest?

[Lord Martin of Springburn]

I have not read the document, but now that the noble Lord has drawn it to my attention, I will. What I am talking about is the experiences that I have had of local newspapers. Of course, they are careful that they do not get involved in any litigation, in the same way as we—as people who have privilege in this Chamber—will be very careful about what we say out in the street, because we know that we would be subject to litigation.

However, the national newspapers are not concerned about being subject to litigation. Some of them are very rich organisations indeed. They know full well, when someone comes along—well, we have covered the rich and famous. Let us take a different situation. We, as a House, encourage people to go into public life. Once you get into public life, you are under the microscope. It may well be that Members of Parliament down the corridor are paid a better salary than your average journeyman or journeywoman—a blue-collar worker, I take it—but they are not paid so well that they can take on some of the people in the media who are vicious and nasty, and are willing to have a go not only at them, but also at their wives and families.

I know that this is about an amendment and therefore I had better not go on for too long about the whole thing. I will say, however, that ordinary men and women should be able to go and, if necessary, take their case to court. I take the noble Lord’s point that if there is a lower court that can handle it, that might be all the better. I will end by saying this: how ordinary can this situation be? An unemployed man in Liverpool, who was a pass-keeper in his local church—the person who does the collection plates and opens the church ready for the service—was accused in a publication of taking money from the collection plate that he put around. His difficulties were so great that he had to get the cheapest bus ticket from Liverpool to London to see a no-win no-fee lawyer to make sure that the balance was redressed. He won. Are we going to say of a man like that, who is unemployed, who was doing his duty in his church—someone who is respected not only by the congregation but by the whole community—and who has an accusation like that made against him, that we cannot allow him to get to court and put his case?

Domestic Violence, Crime and Victims (Amendment) Bill

Lord Lester of Herne Hill Excerpts

Friday 27th January 2012 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, I, too, support the Bill, congratulate the noble Lord, Lord Laming, and echo what has been said by the noble Baroness, Lady Seccombe, about his unrivalled qualifications for carrying this gift from the other place into this House. Perhaps I may say a word about that process. This is a Private Member’s Bill from the other place, and those who have read the right honourable Jack Straw MP’s interesting article in today’s Times newspaper will note that he said:

“I can’t remember a time when Commons business was so light and the Lords so overloaded”.

One of the points that Mr Straw made was:

“The infant mortality of Private Member’s Bills is so high because they are vulnerable to all the 19th-century filibustering devices that were abolished decades ago for government Bills. These backbench measures should be taken from their Friday ghetto and brought into the normal Monday-Thursday Commons week. They should be sensibly timetabled like any others, so that MPs would be able to vote on their merits. This apparently prosaic change would wholly alter, for the better, the authority of MPs”.

We are privileged in this House to be able to introduce Private Member’s Bills, some of which actually reach the statute book without the fetters placed by the other place upon that process. This is a rare Bill that has been able to pass through the other place with government support and reach us today. Speaking for myself—I hope without causing offence to the other place—I suggest that when we consider reform of this place, it will be important to consider the reform of the procedures of Parliament as a whole and not merely ourselves. As to our procedure for Private Member’s Bills—and I speak as someone incontinent in my use of that procedure in the past 19 years—it has been very beneficial here, and it is a great day when something comes from the Commons as important as this Bill, about which I shall say very little because the Minister will be pleased with me if I am more brief than barristers normally are.

I should like to say just a few things. First, we are told by the Parliamentary Under-Secretary of State for Justice, Mr Crispin Blunt MP, who supported the Bill in the other place, that,

“the Government are committed to preventing the creation of unnecessary criminal offences”.

I fully support that and I look forward to the Queen’s Speech to see whether we are presented with yet another Bill containing further criminal offences. I hope that we will not be, because in the past two decades too many unnecessary criminal offences have been produced, especially by my former department, the Home Office. What the Minister said in support of the Bill in the other place is therefore good news.

On that occasion, he also said that the Government,

“consider the extension of the criminal law in the relatively limited way proposed in the Bill to be justified and appropriate. In reaching that conclusion, we have had regard to the possibility that those responsible for very serious injury may escape conviction”,

and—the noble Lord, Lord Laming, referred to this already—

“the vulnerability of both child and adult victims; and the special responsibility that members of the same household bear for the vulnerable with whom they live”.—[Official Report, Commons, 21/10/11; col. 1184.]

I shall not bore the House or take time by reciting that speech, and I hope that in his reply my noble friend the Minister will draw upon what was said in the other place.

One of the impressive aspects of the speech was the care with which the Minister in the other place explained why this is a proportionate measure and why it would be wrong to go further. When we introduce new crimes or extend existing crimes, there are some who believe that our purpose is to enforce morals. That was of course Lord Devlin’s famous idea: that the purpose of the criminal law was the enforcement of morals. I do not take that view. I think that the purpose of the criminal law is utilitarian; it is to deter serious wrongdoing and to punish.

We must be very careful, especially in the domestic violence field, to know exactly what we are doing. I give a couple of examples. The first is female genital mutilation. We passed a law some time ago to make that appalling atrocity a crime. There has been no prosecution. We then had to consider forced marriage, and the previous Government rightly came to the view that there was no point in making forced marriage a crime as we had sufficient criminal law, so this House and the other place eventually decided to use civil law and civil protection on the ground that it was better to use civil law than the police and the criminal standard of proof in dealing with such a sensitive matter. As Members of the House will know, the Government are now consulting on whether we should add forced marriage as a crime as well as a civil wrong. I think it would be risky to do that, as it might dishonour families and deter, but that is a very controversial matter.

There seems nothing controversial in what is proposed here. Therefore, to please the Minister with my brevity, I will leave it to him to develop what has been so well developed in the other place.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Lester of Herne Hill Excerpts

Tuesday 20th December 2011 Lords Chamber

[Lord Lester of Herne Hill]

I do not mean to prolong the noble Lord’s speech by my interruption, but perhaps I could suggest that it is not helpful to his case if he becomes narrowly partisan. This is not an area where any one party can claim a monopoly of virtue or vice. It is much better to focus on what unites the House rather than what divides it.

[Lord Howarth of Newport]

I hope to be able to do that. I hope that I have not been unduly partisan, but we all feel strongly on this issue and I very much hope that noble Lords on the Liberal Democrat Benches, who I understand feel strongly on the issue, will explain their case to us and, when it comes to voting in the Division Lobby, will act according to their professions. Perhaps in that remark I am becoming a little too party political—for which I apologise to the Committee.

If the Government say that a national debate is taking place, I would reply that the 5,000 responses to the Green Paper demonstrate that there is a very strong consensus against what they propose and that they would be wrong to defy that consensus.

--- Later in debate ---

[Baroness Butler-Sloss]

My Lords, I wonder whether I might make some brief comments, bearing in mind the time. I would like to add to what has been said. It has largely been lawyers who have spoken, and I very much hope that noble Lords will not give less weight to the names on this first amendment or to the lawyers who have supported it. That is, as the noble Baroness, Lady Kennedy, has just said, inevitable because we know what goes on on the ground. As a former judge, hearing mostly legal aid cases, I have clear knowledge of what happens on the ground.

The lawyers who have spoken are all very distinguished. They have done a great deal in the past and indeed are still doing it. What they have to say should resonate with all Members of this House because these are not party political issues. I very much hope that no noble Lord will make them party political issues. Seeing as people have spoken from all sides of the House, it would be good if no one spoke any longer in a party political way. This issue is too important for us to do so.

To recognise and accept the amendment would not drive a coach and horses through the Bill. On the contrary, it recognises financial restraints and in my view is very shrewdly phrased. I do not believe that it has the effect that the noble Lord, Lord Phillips of Sudbury, was suggesting. There is nothing to stop us dealing with other areas where we would say it is necessary to have legal aid and it would not be possible for the Government to say that such legal aid should not be forthcoming. However, one has to recognise reality. We have to recognise that not every aspect of the current legal aid bill can continue to be paid. There are areas highlighted by amendments—some of them my own and some from other noble Lords—which we have to look at and say that there should not be cuts. One example of that is private law.

This amendment sets out in simple language the right of citizens to have access to justice in general terms. It is an amendment that would be extremely difficult to oppose and I strongly support it.

[Lord Lester of Herne Hill]

My Lords—

[Lord Hylton]

My Lords—

[Baroness Verma]

My Lords, if we could hear from the Liberal Democrats, the Cross Benches and then the Labour Party.

[Lord Lester of Herne Hill]

My Lords, many years ago, when Lord Scarman was chairman of the Law Commission, I remember him saying that his cleaning lady came to him one day and asked whether he could help her with a social security problem. He described how it took him three days of combing through the social security legislation before he was able to help her. He told us this story because he was explaining how there was an enormous need for poverty lawyers—the ones who deal with the legal problems of the poor—to be empowered to provide those services. If a Law Lord such as Lord Scarman took three days to do what a law centre could do more quickly, it illustrated the point.

The great virtue of the amendment of the noble Lord, Lord Pannick, is its conspicuous moderation and realism. I cannot understand those noble Lords who criticise him for being so moderate and realistic. The real value of his amendment is that it strengthens the hand of the Lord Chancellor and Justice Secretary in his dealings with the Treasury. Many years ago when I was Roy Jenkins’s special adviser, I remember that Barbara Castle, a Minister in the then Government, explained why she supported cuts in civil legal aid. She wrote to her colleagues saying that if she had to choose between hospitals and legal services, she would unhesitatingly preserve hospitals. It is that notion that legal services for the poor are a soft target and matter a great deal less culturally and politically than health services which is at the bottom of the problem in my view.

Successive Governments have found it very easy to sabotage civil legal aid since the original Legal Aid and Advice Act was passed. This is not a party political problem; it has pervaded all parties. The noble and learned Lord, Lord Irvine of Lairg, who, unfortunately is not in his place, cut legal aid when he was Lord Chancellor, and followed a long line of Lord Chancellors in doing so. He attacked what he called fat-cat lawyers to justify some of the cuts that he made. When Lord Taylor’s memorial service was held in St Paul’s cathedral, Sir Humphrey Potts, in giving the encomium—I recall that the noble and learned Lord, Lord Irvine, was at the front of the cathedral—made a joke at his expense, saying that he saw that he, in a fit of post-retirement remorse, was attacking fat-cat lawyers. It was a good joke but it illustrated a powerful point. It would be very easy for my noble friend Lord McNally when he replies to make some cynical remarks about his legal friends standing up for the closed shop. However, I am sure that he will not fall into this trap. As the noble Baroness, Lady Kennedy of The Shaws, has said, those of us who are here today are not in the platoons of legal services for the poor lawyers who will be most hit by these cuts, along with their clients.

--- Later in debate ---

[Lord Lester of Herne Hill]

I am sorry to interrupt and I am grateful to the Minister for giving way. I want to help the Minister, I really do. I do not yet understand whether he really disagrees with the principle stated in the amendment tabled by the noble Lord, Lord Pannick. The principle stated would replace what is in Clause 1 with what seems to me a platitude but a very important one. I do not hear the Minister say that he thinks it is not the right principle.

I suggest that this needs to be thought about right now because we had the same situation in connection with the Public Bodies Bill. In Committee on that Bill, the noble Lord, Lord Pannick, and I did a rather bold and perhaps unthinkable thing and I stood on my head about it. The noble Lord made the House divide on my amendment to write a principle at the front of that Bill. We did that at the beginning in Committee, and getting the principle in had a beneficial effect. I am not suggesting that that might be necessary now, but it would help those of us who are loyal to the Government to know whether there is a real disagreement with the statement of principle in the amendment of the noble Lord, Lord Pannick.

[Lord McNally]

If my noble friend had a fault—and, my God, that is a dangerous thing even to suggest—it is his impetuosity. I was just coming to the nub of the Pannick amendment, but thought that after a long debate it was reasonable to try to pick up at least some of the points made by noble Lords.

The amendment seeks to place a statutory duty on the Lord Chancellor to secure access within the resources made available and in accordance with the provision in Part 1: the legal services that effectively meet the needs of individuals. We accept that this proposed amendment is very similar to the duty placed on the Legal Services Commission by Section 4(1) of the Access to Justice Act 1999. We also accept that the duty that the amendment would place on the Lord Chancellor would be qualified by the reference to the duty being subject both to the resources available and to the provisions of Part 1. However, against the backdrop of this Bill, we believe that Amendment 1 is unnecessary. It is central to our proposal for reform that the reforms establish an affordable system while ensuring that no one is denied their fundamental right of access to justice. Legal aid will be a key element in ensuring access to justice in some cases, but in many cases justice can and should be afforded without the assistance of a lawyer funded by the taxpayer. Fundamental rights to access to justice are the subject of international protections such as the European Convention on Human Rights and certain enforceable EU rights, and are protected by this Bill in relation to legal aid through the areas retained in scope in Schedule 1 and through the exceptional funding provision in Clause 9.

The exceptional funding scheme will ensure the protection of an individual’s right to legal aid under the European Convention on Human Rights, as well as those rights to legal aid that are directly enforceable under European Union law. These rights are of fundamental importance, and the Government consider that the Bill adequately protects them. However, we do not consider that any more extensive right to taxpayer assistance by way of legal aid to access to the courts should be established. In light of the way the Bill protects fundamental rights of access to justice, to the extent that the amendment seeks to introduce requirements over and above what is required by, for example, Article 6 of the European Convention on Human Rights, it is not desirable or necessary. To the extent that it would require no more than, for example, Article 6, it is also unnecessary. Clause 1 states that the Lord Chancellor must secure that legal aid is made available in accordance with Part 1 of the Bill. The Lord Chancellor has powers under Clause 2 to make arrangements to meet that duty.

Considerations about the demand for civil legal aid services have not been ignored. Under Clause 10 the Lord Chancellor will make regulations setting out criteria that the director of legal aid casework will be required to consider when making decisions. When settling the criteria, the Lord Chancellor must consider the extent to which the criteria should reflect certain factors. These include the availability of resources to provide the services and the appropriateness of applying such resources to provide the services, having regard to present and likely future demands for civil legal aid services.

In addition, the Lord Chancellor will be required, in carrying out his functions, to protect and promote the public interest and to support the constitutional principle of the rule of law. These considerations are inherent in the Lord Chancellor’s functions as a Minister of the Crown and do not require specific reference here. In addition, the Lord Chancellor will have specific duties under the Constitutional Reform Act 2005. We have also been clear in our response to consultation that we will work in conjunction with the Legal Services Commission and its successor executive agency to develop and to put in place a procurement strategy that will reflect the demands and requirements of the new legal aid market.

Having read that out, I appreciate that a large number of noble Lords will want to read Hansard, see what it says and see how it matches. It would be madness for any Minister faced with an amendment tabled by the noble Lords who tabled this amendment simply to dismiss it. I will certainly draw the attention of the Lord Chancellor to the debate.

--- Later in debate ---

[Lord McNally]

The point is that that is genuinely what we, too, are trying to do. It is a matter of judgment. In the next month or six weeks, as we take the Bill through the House, we will test those judgments in detail. I hope that in the light of my response, the noble Lord, Lord Pannick, will withdraw his amendment.

[Lord Lester of Herne Hill]

The Minister referred to Article 6 of the convention being the standard. We should bear in mind, as he said, that among the 47 states we have one of the best systems, yet by using Article 6 we are adopting a standard well below common law and anything that we in this country have enjoyed since 1949. Will he reflect on that?

[Lord McNally]

As I said, I reflect on almost anything that my friend says, and it is now in Hansard as well.

Human Rights Act 1998

Lord Lester of Herne Hill Excerpts

Wednesday 12th October 2011 Lords Chamber

[Lord McNally]

My Lords, that is a piece of advice that I hope echoes and re-echoes down the Corridor.

[Lord Lester of Herne Hill]

With that advice, I am not sure whether I ought to ask this question, because I am a member of the Commission on a Bill of Rights for the United Kingdom, so I must choose my words with great care. Is the Minister aware that the Council of Europe has commended the Joint Committee on Human Rights, on which I serve, as a model for Europe; and is he aware also that, across the common law world, we alone have reconciled effective remedies with respect for parliamentary supremacy?

[Lord McNally]

It does not surprise me that that is the reaction. When we set up this commission, indeed when we announced that we intended to take a vigorous attitude to reform of the court, we were told, “Oh, it’ll never work—you will get nowhere with this”. The fact is that we have found an increasing number of countries around Europe which have appreciated that we are taking a proper, sensible, calm look—through the commission on which my noble friend sits—at how the act is working in practice, and we are taking to Europe some very practical proposals for how to get the court working more efficiently and thus more respected. If we get away from all the showbiz of this, and get down to what the Government are actually doing, you will find that it is something that should have the approval of colleagues on all sides of this House.

Cohabiting: Law Commission Report

Lord Lester of Herne Hill Excerpts

Tuesday 6th September 2011 Lords Chamber

[Lord McNally]

I think in other circumstances the noble Lord is fairly outspoken against forced marriages.

[Lord Lester of Herne Hill]

Does the Minister agree that where a man leaves his common-law wife with children, it is quite wrong that the state should have to come to the rescue without any possibility of getting the man to pay? When he and his colleagues reconsider this matter, as I hope they will, will they have regard to the experiment in Scotland and the recent legislation in Ireland where, under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, some perfectly sensible solutions have been included in the Republic as well as in Scotland?

[Lord McNally]

My Lords, when the previous Administration opposed my noble friend’s Private Member’s Bill on this they said that they were going to wait for research on the Scottish experience. We have looked at some of the preliminary outcomes of that research without seeing anything conclusive to persuade us to move more quickly on this issue. My noble friend makes the point, however, as do the Law Commission and many others, that there are confusions and injustices as the law stands. We have not ruled out the Law Commission’s recommendations for all time; we have simply decided that we are not going to do that during this Parliament.