Gender Recognition (Approved Countries and Territories) Order 2011

Lord Lester of Herne Hill Excerpts

Monday 27th June 2011 Grand Committee

[Lord Lester of Herne Hill]

My Lords, I thank the Minister for a very comprehensive and informative summary of the position. I very much welcome this update to the Gender Recognition (Approved Countries and Territories) Order. I think that 31 out of the 46 other member states of the Council of Europe are now in the schedule. One hopes that next time there might be 46. It is most welcome that the United States is included—the District of Columbia and all the states of the union except for four. I wish that there could be similar widespread recognition of civil partnerships, civil union and gay marriage. We have, of course, an identical mechanism in our Civil Partnership Act to recognise those unions in other countries. It would be very good indeed if one were able to ensure that a similar range of European countries and the United States also recognised gay marriage, civil partnerships and civil union. This is obviously a sensible measure. I cannot think of any good reason against it and I am very glad that we will approve it.

[Lord Moynihan]

My Lords, I also support the order subject to the continued exemption for competitive sport, which the world of sport promoted and argued for at length in 2004 when the Bill came before this House in the first instance. It may help your Lordships if I briefly summarise the issue at stake there, in seeking reassurance from the Minister that in extending the list we retain the fundamental principle that competitive sport in this country will be exempt from the order, and will continue to be exempt from the Act.

It is important that the voice of sport continues to be heard before the order is accepted, as it could have a fundamental impact on the running of sport and its selection procedures since no surgery is required as a prerequisite for transsexuals to change their sex and have new birth certificates issued, with the full weight of the law backing their newly acquired legal gender not only in this country but in the countries listed in the order.

In pursuing an original amendment to the Bill, which was eventually accepted by the then Minister, the noble Lord, Lord Filkin, I sought to enable UK sporting bodies to continue to make decisions about whether individual transsexual people may take part in competitive sports competitions. At the time I was very conscious that national governing bodies of sport needed to be aware that considerable work would have to done to establish clear reasons for restriction of competition related to fair competition and/or the safety of competitors. The onus of proof is likely to be with the complainant, but the national governing bodies of sport could be vulnerable if policies, procedures and decisions are not robust. Legal precedents, such as the case of Renée Richards, the transgender female who won the right to compete in women’s tennis in the US Supreme Court, are likely to provide further challenges to sport’s regulation of single-sex competition.

There are several potential problems related to the recognition of the physical and physiological advantages attached to men and women in different competitive activities. This was reflected in my amendment, which was accepted by the then Government. It stated:

“A sport is a gender-affected sport if the physical strength, stamina or physique of average persons of one gender would put them at a disadvantage to average persons of the other gender as competitors in events involving the sport”.

Fairness in competition is facilitated by making provision for competition by categories other than sex—for example, age and weight. However, the latter categories are easy to define using the arbitrary limits of date of birth and weight on a specific date before or the day of competition. One of the intentions of the Gender Recognition Act was to protect the rights of individuals who wish to blur the boundaries between genders in their private lives. For sport, that is inherently problematic. It denies the only arbitrary limit between the categories of male and female: genetic sex at birth, as determined by chromosomes. The regulation of single-sex competition in sport currently depends on that arbitrary limit. Since the EHRA allows for the interests of the community at large to override the rights of the few, that arguably would mean that single-sex sporting competition may continue without legal challenge on the basis of sex at birth.

I give that background purely to set the scene for asking the Minister whether, irrespective of the legislation in each of the territories and countries in the order, governing bodies of sport in this country will still have the final word in determining those who enter into either the male or the female category, at whatever level of competitive sport. Should that remain the case, as I understand that it does, the order will have my full support. I look to the Minister for reassurance on that.

[Lord McNally]

My Lords, I thank the speakers who have participated in the debate. The noble Lord, Lord Lester, has a long and proud history in such legislation. Like him, I welcome the fact that we live in a world of growing tolerance in this area, which for the individuals concerned needs tolerance and understanding.

The noble Lord, Lord Moynihan, raised an important point and one on which I will try to give some clarification. The effect of a UK gender recognition certificate is the same regardless of whether it is obtained under the overseas application process or the standard application process. The overseas application process simply enables a transsexual person to obtain legal recognition in the UK through a simplified process if they have already satisfied authorities overseas that they live fully and permanently in their acquired gender. It does not enable a person to be treated in the UK as they would be in their home state. The effect of a gender recognition certificate is subject to UK law. That includes a transsexual person’s right to compete in competitive sporting events in the UK.

As originally drafted, Section 19 of the Gender Recognition Act made it lawful to prohibit a transsexual person with a gender recognition certificate from participating in a sporting event in their acquired gender if the restrictions were necessary to secure fair competition or the safety of other competitors. The Equality Act 2010 presented an opportunity to replace Section 19 and an overlapping provision of the Sex Discrimination Act 1975. After all, the Gender Recognition Act is not intended to protect transsexual people from discrimination; rather, it provides a mechanism whereby a transsexual person can obtain a change of legal status that reflects the gender in which they live permanently. Protection from discrimination lies in equality legislation. For this reason, Section 19 of the Gender Recognition Act and Section 44(2) of the Sex Discrimination Act were repealed and their effect replicated in Section 195(2) of the Equality Act. That provision makes it lawful to restrict participation of transsexual people in separate sporting competitions for men and women if this is necessary to secure fair competition and the safety of competitors. The participation of a transsexual person from overseas in a competitive sporting event in the UK is subject to these provisions. This remains the case even if that person has obtained a UK gender recognition certificate. I hope that that gives the noble Lord, Lord Moynihan, the clarity and reassurance that he sought. I know how important that is.

I was intrigued by the final question of the noble Lord, Lord Bach. We would have to amend the procedure for future orders but it is a valid point. I suspect that, at the time, Parliament was still getting used to this whole idea. We may need to look at the procedure and discuss matters through the usual channels to see if it can be done without the necessary affirmative resolution. Perhaps this is something that will only come before the House once every four or five years as updates are made. It is a valid point and I will take it back.

[Lord Lester of Herne Hill]

In looking at this again, one might look at the Civil Partnership Act. My memory is that that Act, with similar provisions, does not require the affirmative procedure every time we recognise another jurisdiction in the way that we are doing here. It might just be worth looking at. Of course, my memory is always faulty but I have just an idea that it might be a way of dealing with that. It would need amendment but I can think of no logical reason for treating civil partnerships differently from general recognition of equality.

[Lord McNally]

I always know that a distinguished QC saying, “My memory might be faulty,” means that he is absolutely accurate in what he says. Again, that is an extremely helpful suggestion. When I take this back to the House authorities, the point that the noble Lord, Lord Bach, has made and the suggestion from my noble friend Lord Lester may be the way forward.

European Convention on Human Rights

Lord Lester of Herne Hill Excerpts

Thursday 19th May 2011 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, I salute the noble and learned Lord, Lord Irvine of Lairg, for his courage and liberalism. It is probably not generally understood that when he was Lord Chancellor there was a sustained campaign by the media to obtain a complete exemption from the Human Rights Act. I helped the noble and learned Lord to stand up against that. Section 12 of the Human Rights Act, which was introduced by the noble Lord, Lord Wakeham, was the compromise that we secured to achieve the passage of the Bill. First, I salute the noble and learned Lord, Lord Irvine, because he paid a personal price for his courage. The media campaign against him was not about the price of wallpaper or whether he peeled his own oranges, but came very much from straight hostility to him for standing up against this completely misguided media campaign. I emphasise that at the beginning.

Secondly, I very much regret the fact that the previous Government refused my repeated requests to publish the preparatory work on the Human Rights Act. I will probably not live long enough to see the full record. However, on this issue the public would find it very beneficial to see that the noble and learned Lord, Lord Irvine of Lairg, was the true architect of the Human Rights Act, although his colleague, the right honourable Jack Straw, would contest this. I hope it may become possible to see that record published.

Thirdly, one of the ingenious provisions of the Human Rights Act, to which the noble Lord, Lord Hart, just referred and which none of us thought significant at the time, was the obligation on Ministers, under Section 19, to make a statement on the compatibility of a Bill. That, coupled with the work of the Joint Committee on Human Rights—like the noble Lord, Lord Dubs, I served on that committee—has meant that instead of human rights being the property of judges and lawyers, they have been made part of the other two branches of government, the Executive and the legislature, through the scrutiny of Ministers’ statements and reasons why particular measures are or are not compatible with the convention. New Zealand has a weak version of that but no other country that I know of, in the common law world or beyond, has anything like the Joint Committee on Human Rights or that compatibility statement. It is admired across Europe and there are suggestions that it should be adopted elsewhere. It is a very important part of our legislation.

Another very important part is the compromise between parliamentary sovereignty and effective legal remedies. My original Private Member’s Bill on human rights sought to give judges the same power that they have under European Union law to strike down inconsistent legislation. The judges came to me and said, “We don’t need that and the Commons will never allow it. Why not do something more moderate?”. The declaration of incompatibility was invented to reconcile parliamentary sovereignty with the need for effective remedies. That was wise and my first efforts were misguided in terms of our own legal system. Much money—£6 million—was spent on training every judge, magistrate and tribunal chair for two years before the Human Rights Act came into force. One of the master strokes was the appointment of Lord Bingham as president of the Supreme Court—or the Law Lords, as they then were—to lead our most senior court, which he did magnificently. We miss him very much today.

It is very important for our judges, lawyers and the public at large to approach European convention law through our law and not around our law. By that I mean that it is very important to make what we regard as European convention rights, but are in fact British rights, part of the fabric of our legal and political system, and not to tear holes in that fabric. I believe that much of that has been done by our judges already, but perhaps more needs to be done to protect our common law traditions in a way that is compatible with the convention. Like the noble Baroness, Lady Kennedy of The Shaws, I am privileged to serve on the Bill of Rights commission. I assure the noble Lord, Lord Wills, that I would not be there if I thought there was the slightest risk of weakening the current protection of human rights. Indeed, if he does not mind my saying so, I spent 18 fairly futile months in his department trying to persuade the previous Government to do something rather similar to what I hope the commission might eventually achieve. This is an area in which political parties sometimes do well. We were a coalition in opposition, were we not, in the 1990s in seeking to get the Human Rights Act on to the statute book. I was on the Cook-Maclennan commission at the time, as was the noble Lord, Lord McNally.

One of the terms of reference of the new commission is to look at the reform of the Strasbourg court. Since I have been arguing cases there since 1967, I think that I understand the weaknesses, as well as the strengths, of the system. Suffice it to say that in my view, if we really want change, there is a need not only for fundamental reforms of some aspects of the court and its procedures, but for more human and financial support. Unfortunately, there is zero growth and even the meagre resources devoted to the court, compared with the much greater ones for the Luxembourg court, have been held up by the Interlaken process. The noble Lord, Lord Tomlinson, nods. There were to be at least new staff, resulting in more effective case management, but that has been put in the freezer pending the Interlaken process. That is quite ridiculous. The resources, having been voted, should not have been held up in that way. Like the noble Baroness, Lady Kennedy, I and others, will be going to Strasbourg and thinking about reform of the court. I very much welcome the fact that the terms of reference allow us to do that.

Courts: Super-injunctions

Lord Lester of Herne Hill Excerpts

Thursday 19th May 2011 Lords Chamber

[Lord McNally]

I think I was with the noble Lord right to the last bend, there. Of course, in a free society we have to recognise those rights that he has just recognised, but also in a free society we recognise the need for a robust and free press. The noble Lord laid down a catalogue of sins, which throws a challenge to our press. I know that noble Lords on all sides of the House want to defend a free press, but the press has a duty to put its own house in order to see whether some of the faults that the noble Lord outlined should not be more robustly dealt with by the self-regulation that the press claims to be so proud of.

[Lord Lester of Herne Hill]

My Lords, is the noble Lord aware that Section 12 of the Human Rights Act strikes a balance between free speech and privacy—

Elections: Voting Arrangements

Lord Lester of Herne Hill Excerpts

Wednesday 2nd March 2011 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, I am grateful to noble Viscount for initiating the debate. I agree with what he has said and with what the noble Lord, Lord Wills, has said. I raised this issue last summer in a Written Question, when I asked the Government whether they would introduce legislative proposals so that British citizens who have worked overseas for more than 15 years in international organisations could have the same right to vote in parliamentary elections as members of the Armed Forces, Crown servants and employees of the British Council. My noble friend Lord McNally, in a Written Answer on 10 June, said:

“The Government are aware that representations have been made on behalf of those working in some international organisations abroad that they should continue to be able to vote after a period of 15 years’ continuous residence overseas. The Government have not yet considered the way forward on this issue”.—[Official Report, 10/6/10; col. WA57.]

I quite understand why that should be so for a new Government, but I hope—for the reasons that I will give as well as those that have been given—that the Minister will indicate that this thinking and open-minded Government will further consider these important issues.

I put down that Question for Written Answer because Simon Palmer, a very distinguished senior official in the Council of Europe, who has now been serving abroad for, I think, 27 years, raised the issue with me. He pointed out that in the days of the internet and broadband, British citizens serving abroad in international organisations are at least as well informed about British politics, British social policy and what is happening generally in this country as they would be if they were living in Herne Hill. He pointed out, therefore, that if there was any rationale in the pre-internet age for the 15-year cut-off, to do with knowledge of what is going on in the United Kingdom, it has long since disappeared. I agree with that.

He also pointed out, as has the Electoral Commission in the information that it has provided, that the cut-off point has varied from five to 20 to 15 years. I am not aware of any rationale for how those periods have been chosen. They seem to be entirely arbitrary and, I dare say, discriminatory in a way that violates Article 14 of the European convention read with Article 3 of the first protocol. There seems to be a difference in the treatment of, for example, an employee of the British Council, who is not subject to any cut-off point, a member of the armed services, who is not subject to the same cut-off point, and someone such as Mr Palmer who has been providing service abroad in the wider public interest, who is subject to this cut-off point. I should be very grateful if the Minister could tell us the rationale behind a period of five, 20 or 15 years in relation to such a person.

That is not all. So far, I have concentrated on membership of service in international organisations. However, in a world in which there is a right of establishment and freedom of movement under European Union rules, I ask myself why our concern should not include, for example, business men or women, who under the right of establishment are living, working, earning money and paying taxes in other parts of the European Union. Again, that seems entirely irrational. It might be said that it is somehow administratively difficult to administer the scheme without a cut-off point. However, that cannot be right because, as we know from the exceptions to the 15-year rule and to the overseas voting scheme, it is perfectly possible to manage without it in respect of those exceptions.

Therefore, although I do not expect the Minister to be able to give a definitive answer this evening, I very much hope that these concerns, which have already been raised by the two previous speakers, as well as by me, can now be looked at so that a full and comprehensive answer can be given to the question raised by the noble Viscount, which affects basic civil rights and freedoms, quite apart from any European dimension or any question of Peers voting—although Peers are of course subject to the 15-year rule if they are outside the country for that time—and quite apart from the vexed question of prisoners’ voting rights. We are dealing with something that transcends all that and I very much hope to get a positive answer.

Public Bodies Bill [HL]

Lord Lester of Herne Hill Excerpts

Tuesday 11th January 2011 Lords Chamber

[Lord Woolf]

My Lords, it is a while since I first addressed the House with regard to this Bill. I start my present remarks by saying that I acknowledge that the Government have made a significant improvement to the Bill in the action that they have taken. I congratulate the Minister and his team on the attention that they have given, particularly to the bodies associated with the courts that had been in Schedule 7. I feel much more comfortable with the Bill in consequence of the changes that have been made. However, I have to say that this Bill, which is sometimes referred to as achieving a bonfire of quangos, would in my view be further improved if there was to be a bonfire of Schedule 7. I hope that the further consideration of the Bill, which I believe is still continuing, will bring about that result.

I listened with great care to what the noble Lord, Lord Hunt, said about the provisions that are the subject of his amendments. I do not think that I can usefully add anything to that, apart from saying that when the boards were introduced—I was Lord Chief Justice at the time—arrangements were made for a senior judge, one no less distinguished than the present Lord Chief Justice, to serve on that board to express the views of the judiciary. However, I think that things have moved on since then, so the topic is much more debatable than it would have been some time ago. The arrangements for consultation between the judiciary and the departments with which they are particularly concerned are in general working smoothly, so the boards are no longer as important as they were in the early days of the unified criminal justice system.

On the inspectorate, I would urge that the speech that we have just heard from the noble Lord, Lord Ramsbotham, who probably knows more about inspectorates than anybody else in the country, should be listened to with care. The inspectorate for the courts system was not, if my recollection is correct, a proposal about which the judiciary jumped with joy when it was first suggested. It was thought—I would say with good reason—that there could be insuperable problems over the independence of the courts system if an outside inspectorate was to look in at what the courts were doing. All that I can say is that, in practice, the inspectorate has worked remarkably well, as have all the inspectorates, of each of which I am a fan. The inspectorates make a significant contribution to the proper functioning of the administration in the areas in which they operate. I do not think that it was intended to be suggested—and if it was, I would not agree with the suggestion—that the inspectorate should act as a sort of court of appeal. If the inspectorate keeps to administration, it can perform a useful function. That function will still have to be performed even if the inspectorate does not exist and, if the inspectorate is abolished, proper arrangements will need to be made to ensure that that happens.

[Lord Lester of Herne Hill]

My Lords, I apologise to the noble Lord, Lord Hunt, that I was not able to be here to hear his speech. I was upstairs in the Joint Committee on Human Rights, which has authorised me to ask the Minister whether, as we were given to understand, we will receive the human rights memorandum from the Cabinet Office so that our committee can do its job properly. That memorandum has still not been received and we want to finalise our report by next Tuesday. I hope that the Minister can tell us in his reply that what was promised many weeks ago will happen.

My second point in general support of the amendments is that, although it is admirable that some bodies of a judicial nature may be removed from the schedules by other amendments, if Amendment 175 in my name and in the name of the noble Lord, Lord Pannick—a paving amendment for which was approved by the House on the first day in Committee—is accepted by the Government and not sought to be reversed in the other place, the provisions in Amendment 175 will be relevant to our discussions today and hereafter. It is unsatisfactory that we are having this debate without knowing whether Amendment 175 will stand. Importantly, Amendment 175 would apply not only to courts but to any body—whether a court or not—that performs a judicial function and it would deal with the issue of independence raised by the noble Lord, Lord Ramsbotham.

In a sense, we are putting the cart before the horse because a failure to insert into the Bill the criteria against which all these decisions can be measured means that we are having to proceed piecemeal, body by body, at enormous and appalling length in the Committee process. I respectfully urge the Government to accept these amendments for all the reasons that have been given so far but to deal with the system of the Bill as a whole by indicating at an early stage that Amendment 175 or a similar provision will bind Ministers when they exercise their delegated powers. That is the price that Ministers must pay if they are not to proceed by way of primary legislation. There need to be constitutional limits on the powers exercised by Ministers, as Committees of this House have indicated in the past.

[Lord Newton of Braintree]

My Lords, I am afraid that I cannot claim, like the noble and learned Lord, Lord Woolf, not to have taken part recently in proceedings on this Bill, because I have been a persistent defender of my Front Bench, nor do I intend to stop being so today.

However, I want to associate myself in two respects with the remarks of the noble Lord, Lord Ramsbotham. First, I think that the Bill leaves—to put it mildly—a lot to be desired. Secondly, I think that the noble Lord, Lord Taylor of Holbeach, is to be congratulated on the way he has dealt with this poisoned chalice. I am glad to see that, if I have read the runes aright, the person speaking to the proposals today will be a Minister from the Ministry of Justice, which is where the proposals originated from and where any blame for them, if blame is justified, should lie.

By way of other brief preliminary, I should say that when I first saw the schedule of headline decisions that was published in early October—this picks up a point made earlier by the noble Lord, Lord Lester—I could find no intellectual coherence at all in the Ministry of Justice’s proposals, which seemed to be piecemeal suggestions with no connection between them whatever. I hope, therefore, that at least we may have some coherent explanation about the pattern of these proposals and decisions for procedure rule committees, justice councils and other bodies, including CAFCASS, that are scattered about, most of which are now to be withdrawn from Schedule 7 by the amendments that have been helpfully tabled by the noble Lord, Lord Taylor of Holbeach.

However—I do not know whether the noble and learned Lord, Lord Woolf, has spotted this—unless my eyes have deceived me the Civil Justice Council will potentially remain on the list of bodies in Schedule 7. If I have that wrong, I would be glad to be told. That links with my own frequently expressed concern about the Administrative Justice and Tribunals Council—in which I have declared an historical interest—which has been separated out and put down for the chop in Schedule 1. There is no intellectual coherence at all to the proposals. I would like to hear some coherence this afternoon.

I will make three other points. First, the noble Lord, Lord Hunt, asked some good questions. My answers might not necessarily be the same as his in all cases, but those questions need answering. Secondly, I share almost completely the doubts of the noble Lord, Lord Ramsbotham. We are getting rid of too much independent outside inspection or oversight of bodies and are being told, in effect, that the Ministry of Justice can take care of itself and does not want these bodies breathing down its neck. That does not correspond with my views about how government in this kind of society should work or how it works best. Thirdly, I echo the concerns expressed by other noble Lords about the way in which the proposals have been handled. I reiterate what I said at the beginning because, as a House, we need some reassurance that, frankly, the Government know what they are doing.

--- Later in debate ---

In the light of that explanation, I hope that the noble Lord will be content to withdraw the amendment.

Lord Lester of Herne Hill: Before the Minister sits down, perhaps I may first confirm that there will be discussions tomorrow. We very much hope that the pith and substance of Amendment 175 will be retained, subject to drafting improvements. One hopes that that will lead to a result that we can all agree upon. The one matter that my noble friend the Minister has not dealt with—because it is not his responsibility—is the question that I raised at the beginning about the Joint Committee on Human Rights. Can my noble friend the Minister please nudge my noble friend the other Minister for some kind of assurance for the committee so that we can do our job properly by getting the human rights memorandum this week so that we can deal with it when we meet next Tuesday?

[Lord McNally]

Like the seventh cavalry coming over the hill, my noble friend Lord Taylor nudged me to say that the Government will answer any questions that the JCHR has and will deal with that in correspondence with the committee. The Government consider that the provisions of the Bill are compatible with convention rights but I am sure that the promised exchange of correspondence will clarify that matter.

[Lord Lester of Herne Hill]

I am sorry but that answer is not compatible with the general approach of this Government and previous Governments to that committee. The undertaking that has been given in the past is that the Minister’s compatibility statement in every Bill is followed by a proper Explanatory Memorandum to enable the committee to do its job properly. Therefore, it is for the Government first to come forward with their account of why the Bill is considered to be compatible and the committee then comments on that, rather than the other way round. I very much hope that that can be reconsidered because otherwise the committee will have to complain about the fact that it has not had the usual memorandum from the Cabinet Office and therefore cannot do its job properly. That simply wastes public money and time.

[Lord McNally]

My Lords, one of the advantages of having Hansard and of having my noble friend Lord Taylor sitting next to me is that he will have heard that exchange, will read it carefully in the morning and respond to it appropriately.

Prisoners: Voting

Lord Lester of Herne Hill Excerpts

Monday 18th October 2010 Lords Chamber

[Lord McNally]

My Lords, one of the values of Questions like that of the noble Lord, Lord Ramsbotham, is that it provokes interventions such as that. It means that we get, for free, legal opinions that would on normal occasions cost us a fortune.

[Lord Lester of Herne Hill]

My Lords—

[Lord Janner of Braunstone]

My Lords—

--- Later in debate ---

[The Chancellor of the Duchy of Lancaster (Lord Strathclyde)]

My Lords, I wonder whether the noble Lord, Lord Janner, might give way and let the noble Lord, Lord Lester, speak.

[Lord Lester of Herne Hill]

My Lords, is the Minister aware that there is an obligation under Article 46 of the convention to abide by the judgment? Is he aware that the British judge, Sir Nicholas Bratza, formed part of the majority? Is he aware also that Ireland, Cyprus and Hong Kong have all managed to introduce postal voting for prisoners without the slightest difficulty? Finally, is he aware that in November and December, the British Government will have to hang their head in shame in the Committee of Ministers when dealing with compliance with other judgments for being in default for more than six years?

[Lord McNally]

My Lords, slightly more respectfully perhaps, I again make the point that one of the advantages of a Question like this is that it enables us to learn the broad spectrum of opinion and hear details of research, which probably reassures Members over why we are taking such a time carefully to consider this matter before the meeting on 30 November.

Defamation Bill [HL]

Lord Lester of Herne Hill Excerpts

Friday 9th July 2010 Lords Chamber

Moved By

[Lord Lester of Herne Hill]

That the Bill be read a second time.

[Lord Lester of Herne Hill]

My Lords, I beg to move that this Bill be read a second time. Its central aim is to reform English defamation law so that it strikes a fair balance between the fundamental right to freedom of expression and public information and the protection of a good reputation. It seeks to give better protection to free expression, while ensuring fairness and responsibility in journalism, and necessary protection of the right to a good reputation. It is a measure of the importance of the Bill's subject-matter that so many noble Lords, from such a rich diversity of knowledge and experience, are taking part. At least as many others have expressed regret that they are unable to be here to support the Bill. We will be enriched by two maiden speeches—from the noble Baroness, Lady Hayter, a long-standing champion of consumer interests, and the noble Lord, Lord Willis, who has, among his other qualifications, chaired the Commons Science and Technology Committee.

I believe strongly in self-regulation, provided that it is supervised by an independent Press Complaints Commission, able to provide effective access and to avoid unnecessary litigation. I am therefore glad that the noble Baroness, Lady Buscombe, will be able to explain what she sees as the role of the PCC in relation to the Bill. I hope that it will not be necessary to have a statutory commission and hope that the PCC may have an enhanced role which commands wide public confidence.

The unsatisfactory state of English defamation law is notorious and well recognised both here and abroad. It suffers from the twin vices of legal uncertainty and over-breadth. It has failed to adapt to the changed world of communication by means of the internet and worldwide web. The litigation it engenders is costly and often protracted, and it has a severe chilling effect on the freedom of expression not only of powerful newspapers and broadcasters, but of regional newspapers, NGOs and individual public critics. That chilling effect, well recognised by our most senior courts, encourages self-censorship and impairs the communication of public information about matters of legitimate public interest and concern.

Last year, Parliament abolished criminal libel. But 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 or the citizen critic who tends to take the line of least resistance by censoring information and opinions which the public have need to know. Many examples are likely to be given in this debate.

The Liberal Democrat autumn 2009 conference called for the,

“protection of freedom of expression by reforming the libel laws of England and Wales to ensure a better balance is provided between free speech, responsible journalism, scientific discourse and the public interest on the one hand and powerful corporations, wealthy individuals and vested interests on the other”.

After a public campaign which mobilised 52,000 people across the country, all three main political parties recognised in their recent election manifestos that defamation law needs further reform. The coalition Government have pledged to reform the law to protect freedom of speech.

The Bill recognises that defamation law serves an important public interest in protecting a person's good reputation against unfair attack and calumny. It seeks to strike a fair balance between free expression and the protection of one's good reputation. That is why the Bill does not, as some free speech NGOs would wish, follow the American approach and tilt the burden of proof away from those responsible for defamatory publications.

The Bill has not been designed by or for the media or to permit irresponsible journalism. It has been developed crucially with the expert advice of Sir Brian Neill, the distinguished Lord Justice and editor of the leading textbook on defamation, and Heather Rogers QC, a libel law specialist. Sir Brian, who I am delighted to say is present for this debate, chaired the Supreme Court Procedure Committee on Practice and Procedure in Defamation, whose report was implemented five years later by the noble and learned Lord, Lord Mackay of Clashfern, in his Defamation Bill in 1996. As the noble and learned Lord, Lord Hoffmann, once noted, Sir Brian Neill’s knowledge of libel law is second to none. At the end of his recent lecture on so-called “libel- tourism”, the noble and learned Lord, soon to speak in this debate, explained that he did not want to suggest that English libel law was perfect. We look forward to hearing his views about what is wrong with the current law.

In preparing the Bill during the past eight months, I have also been helped by advice from a coalition of NGOs: English PEN, Article 19, Index on Censorship, Sense About Science, and in-house lawyers from the BBC, the Guardian and News International. I am grateful to all of them and to former parliamentary counsel, Stephanie Grundy, who has drafted my previous Private Member’s Bills, and to Joanna Dawson, who has led the work in my parliamentary office. However, I emphasise that responsibility for the Bill is mine.

The Bill covers a technical and specialised area of law that has been developed largely by the courts for centuries with little intervention by Parliament. However, the underlying issues are of constitutional importance and concern matters of public policy. They are within the proper province of Parliament as well as the courts. Yet, remarkably, this is the first occasion in modern times on which Parliament has had the opportunity to examine the substance of English defamation law. The Bill does not impose a rigid and inflexible code. It provides a framework of principles and rules within which courts interpret and apply the law on a case-by-case basis. It builds on what is best in current law, and brings that law up to date with the effects of electronic communication via the internet.

I have published full Explanatory Notes setting out the background history, the state of the law and the changes proposed by the Bill. The notes are important in unpacking the Bill’s contents and I hope that they will be read within and well beyond this House. We also have the benefit of a useful note prepared by Mr Patrick Vollmer of the House Library staff.

Although the Government cannot, of course, commit themselves to the detailed provisions of the Bill, I hope that the Minister will be able to indicate that the Government share the aims of the Bill set out in paragraph 7 of the Explanatory Notes—namely, to,

“strike a fair balance between private reputation and public information as protected by the common law and constitutional right to freedom of expression … modernise the defences to defamation proceedings of privilege, fair comment, justification, and innocent dissemination, in accordance with the overriding requirements of the public interest … 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 … require corporate claimants to prove financial loss (or the likelihood of such loss) as a condition of establishing liability … encourage the speedy resolution of disputes … make the normal mode of trial, trial by judge alone rather than by judge and jury … enable the Speaker of either House of Parliament to waive Parliamentary privilege as regards evidence concerning proceedings in Parliament; and … modernise statutory privilege”.

The Bill does not cover media intrusions on personal privacy, data protection and breach of confidence, which are beyond its scope. Nor does the Bill deal with the regulation of costs in defamation proceedings for which statutory powers exist, and will, I trust, soon be exercised to tackle the abuse of conditional fee agreements and success fees. CFAs mainly benefit wealthy claimants and their lawyers, and result in unjust enrichment and inequality of arms.

The coalition Government’s programme rightly promises to protect historic freedoms through the defence of trial by jury, which is an important safeguard in serious criminal cases. Jury trial has been abolished for most civil cases but is retained for libel cases. It is important for juries to be retained for some cases of defamation, but the presumption should be that the normal mode of trial will be by judge alone. That will promote effective case management and encourage the early settlement of cases without need for costly and protracted litigation. I note that Justice, the advisory council of which I am a member, favours that, whereas Liberty, of which I am a friend, takes a traditional view in favour of trial by jury. I do not think that one could manage to reform this area without changing the presumption.

The European Parliament’s Committee on Legal Affairs published a working document on 22 June on the law applicable to non-contractual obligations, known as Rome II. In it, the Committee mistakes me for the Earl of Leicester, and describes my Bill as a measure that,

“counteracts libel tourism with cost-cutting measures such as the abolition of jury trials”.

However, the Bill does not abolish jury trials. Nor does the change in relation to jury trials address so-called “libel tourism”. The same working document argues complacently that no new provisions are needed to deal with defamation via the internet or what it describes as the,

“much maligned multiple publications rule”.

I am glad that the Minister, my noble friend Lord McNally, replied to my Written Question on Wednesday that the Government, like the previous Labour Government, are committed to protecting free speech against unnecessary interference from the European Parliamentary Committee and the European Commission.

Turning to the Bill’s contents, I will briefly refer to the passages in the Explanatory Notes where they are described in more detail. This will enable me to speed up.

Clause 1, paragraphs 47 to 60, define the defence of responsible publication on a matter of public interest. It builds on the common-law defence developed in Reynolds, emphasising the need for flexibility in taking account of the circumstances of publication, ensuring that the defence can cover expressions of opinion as well as assertions of fact, and making clear that the defence applies to neutral reportage. I am glad to note that yesterday the Constitutional Court of South Africa, led by Justice Kate O’Regan came to a similar conclusion in a matter of South African constitutional law.

Clauses 2 and 3, paragraphs 61 to 71, rename the defence of fair comment as “honest opinion”. The clauses strip out unnecessary technical difficulties and make the defence user-friendly. They update and simplify, clarifying what the defendant must prove to establish a sufficient factual basis, and stating the elements of the defence in clear terms.

Clauses 4 and 5, paragraphs 72 to 83, rename the justification defence as a defence of truth. They update and clarify the defence in significant respects, making it clear that the defence is based on proof of the substantial truth of what has been published and that this can be not only where the defendant proves the truth of some, but not all, of a series of allegations, but where the defendant proves the truth of some, but not the whole, of a single allegation.

Clauses 6 to 8, paragraphs 84 to 98, cover statutory privilege. Absolute privilege is preserved for fair, accurate and contemporaneous reports of court proceedings. This privilege is extended to various international and regional courts across the world.

Clause 7 gives effect to the recommendations of the Joint Committee on Parliamentary Privilege and the Culture, Media and Sport Select Committee of the other place, by replacing the Parliamentary Papers Act 1840 with a modern provision, emphasising that reports of parliamentary proceedings are privileged and that this cannot be fettered by court order.

Clause 8 and Schedule 1 update the qualified privilege scheme under Schedule 1 to the 1996 Act. The present state of the law on statutory qualified privilege lacks logic and is internally inconsistent. The new schedule resolves these inconsistencies.

Clause 9, paragraphs 99 to 109, determines responsibility for publication. It replaces the innocent dissemination defence under the 1996 Act, setting out a framework of liability for publishers which is capable of dealing flexibly with technological advances in the transmission and storage of information, providing that those involved in these activities should be liable only in circumstances in which they exert some influence or control over the content of the publication. That is particularly important in the modern technological age.

Clause 10, paragraphs 110 to 121, deals with the problem that each fresh communication of defamatory material is treated as a new publication, and so gives rise to a separate cause of action. It creates a single publication rule for the original publisher but the court may disapply this rule where it would be contrary to the interests of justice. This would allow publishers to retain archives without the fear of open-ended liability, while leaving open the prospect of redress for claimants in appropriate cases.

Clause 11, paragraphs 122 to 129, prevents a corporate claimant bringing an action in defamation unless it can prove that it has suffered, or is likely to suffer, financial loss. There would clearly be arguments about whether one should go further than a corporate claim, but that is a Committee point.

Clauses 12 and 13, paragraphs 130 to 144, deal with the problem of claimants who bring cases where there is nothing substantial at stake. The clauses require the court to strike out claims where no substantial harm has been caused, or is realistically likely to be caused, to the claimant’s reputation by the publication; and to consider whether substantial harm has been caused to the claimant’s reputation in the jurisdiction, taking account of the impact of publication elsewhere.

Clauses 14 and 15, paragraphs 145 to 156, reverse the presumption in favour of jury trial to promote effective case management and to reduce costs in defamation cases.

Clause 16, paragraphs 157 to 159, gives effect to the recommendations of the Joint Committee on Parliamentary Privilege, made in March 1999, that Section 13 of the 1996 Act be replaced with a provision empowering each House to waive Article 9 of the Bill of Rights of 1688-89 for the purpose of court proceedings where the speaker would not be exposed to any legal liability. The authoritative Joint Committee was chaired by the noble and learned Lord, Lord Nicholls of Birkenhead, and included the noble and learned Lords, Lord Archer of Sandwell and Lord Mayhew of Twysden, the noble Lord, Lord Waddington, and Lord Wigoder. It received evidence from our most senior judges as well as the Law Officers.

I am grateful to the Minister and his excellent team of advisers for having met to discuss the Bill in advance with me and my team. I have explained that there needs to be full public consultation on the issues raised by my Bill, either by means of a Select Committee on the Bill, or on a draft Bill fashioned by the Government that builds on our work. The preparation of wise and enduring legislation takes time and needs to be based on informed consultation outside as well as within Parliament. This House, with its great expertise, has a special role to play, but so does the other House. In my view, the best way ahead would be a draft government Bill, subjected to pre-legislative scrutiny by a Joint Committee of both Houses, resulting in a Bill that would begin its passage in this House. If the Bill is read a second time today, I hope we may work with the Government to achieve balanced legislation of which we may be proud and which may become a model across the common law world and beyond. I beg to move.

--- Later in debate ---

[Lord Lester of Herne Hill]

My Lords, the noble Lord, Lord Campbell of Alloway, once rebuked me for making a serious speech after the dinner hour and I am very aware that I am about to make a short speech after the lunch hour. Let me make a few points very quickly.

On the subject of compliments and flattery—this House is an admirable example—I say, with the noble Lord, Lord Bew, in mind, that there were two 19th-century historians, Freeman and Stubbs. A wit wrote of their reviews of each other’s work:

“Ladling butter from alternate tubs,

Stubbs butters Freeman and Freeman butters Stubbs”.

Having said that, I should say that the two maiden speakers deserve all the compliments that have been paid to them.

On the subject of my becoming the Earl of Leicester, I should add not only that there is already a noble Earl, which is why my name is Lord Lester of Herne Hill, so that people who cannot differentiate spellings can understand, but also that I am reminded of Sir Stephen Sedley, who, when faced with a pompous colleague of mine who had made himself honorary life president of a lawyers’ body, said: “Why only life?”.

I pay tribute to the noble Lord, Lord Bach, to Jack Straw and to the former Government, who initiated serious reforms in this area. I was glad to hear what the noble Lord said today. I agree with him very much on the need for urgency on costs; we should not wait for wholesale reform.

I say to the noble Baroness, Lady Hayter, that I thought that I was chairman of the Fabian Society and not its treasurer. I should like that to be looked at.

Let me quickly deal with a few points. I thought that we had covered Mumsnet but, if we have not, plainly it should be regarded as a mere facilitator and therefore not liable.

The speech made by the noble Baroness, Lady Hayter, as a consumer champion was extremely important. I agree with what was said about self-regulation and the role of the PCC. I also agree with the scepticism of the noble Lord, Lord McNally, about where we are with the PCC. I hope that it can be strengthened.

I agree with the noble and learned Lord, Lord Hoffmann, that the problem of libel tourism has been greatly exaggerated. The real problem is not so much libel tourism as our domestic libel law. He may not know this, but we dealt with a form of libel tourism when the noble and learned Lord, Lord Mackay, was Lord Chancellor. We were worried about Singapore bringing its libel law into this country. When we harmonised tort law, we retained the double actionability rule for defamation cases, so that a foreign claimant could bring a libel claim in this country only if they could show that the case was actionable under English law and not merely under Singaporean law. That was one way in which we dealt with that form of libel tourism.

The noble Lord, Lord Willis of Knaresborough, in his most memorable speech, made an important point. He asked why we had not confined companies to malicious falsehood. That is an interesting idea. In a case that I did, the Derbyshire case, the House of Lords decided that public authorities—Governments—could not use the law of libel but had to proceed under the tort of malicious falsehood, which makes me wonder whether we have got that right in the Bill. Perhaps the right thing to do would be to extend the notion of public authority to certain classes of corporation and treat them in the same way. However, that is a difficult area and I am sure that we should all like to think about it more.

Of course, ADR and mediation are vital. However, we have not dealt with that area in the Bill because a distinguished former libel judge, Sir Charles Gray, is chairing a working party on that subject, although I do not think that it has yet produced its report. When it does, we very much hope that that will happen, so legislation is not needed.

My noble friend Lady Bonham-Carter, speaking with a marvellously husky voice and sacrificing her health, mentioned a number of matters. I was reminded that Quilliam, a body dealing with extremist activity, especially among Islamic fundamentalists, told me that when it made criticism of the Islam Channel, it was threatened in a very coercive way with libel proceedings—that is, Islam Channel, the broadcaster, was threatening action against Quilliam as a small NGO. When journalists writing for the LSE’s Beaver magazine criticised a lecturer for allegedly spreading fundamentalist views, the threat was made that, unless they disowned Quilliam and what had been said, it would be all the worse for them. Those are examples of, as it were, the other side of the equation.

I want to mention two examples from my practical experience of my attempts, in the words of the noble and learned Lord, Lord Woolf, to persuade the courts to reform the law. I suspect that the first will amuse the noble and learned Lord, Lord Hoffmann. When I was arguing the Reynolds case, the noble and learned Lord, Lord Steyn, looked at me and said, “What about German ad hoc balancing law?”. I asked, “What about it?”. He said, “Do you know about it?”. I said that I did not, to which he replied, “Well, you had better know by tomorrow morning”. I knew then that I had lost. He was referring to a notion in German constitutional law about which his co-pupil, Basil Markesinis, had published a book dealing with what is known as ad hoc balancing. The trouble with Reynolds was that it applied German constitutional law—ad hoc balancing—to English libel law. The result was to create great uncertainty, which the noble and learned Lord, Lord Hoffmann, and others sought to address in the Jameel case. However, the continental and German approach triumphed over a more common law approach.

The other example was brought to mind by what the noble Lord, Lord Bew, said regarding Northern Ireland. I was in a case called Convery v Irish News, in which a food critic, Caroline Workman, was cross-examined for more than three days as to whether the vegetables in the restaurant about which she had written a disrespectful review were or were not as she said they were. The judge, jury and counsel all misunderstood the true nature of the defence of fair comment and treated it as though it were the defence of truth. She was cross-examined for four days. The newspaper was made to pay, I think, £25,000 in damages and £100,000 in legal costs but it won on the appeal, in which I appeared. Caroline Workman was so distressed by her experience as a victim of libel law that she gave up her profession of journalism altogether.

That is the other side of the coin compared with the description given by the noble Lord, Lord Triesman, of claimant victims who are not treated justly. I am grateful to the noble Lord, Lord Triesman, for his criticism of the Bill; one needs to hear that. However, if he is so concerned about claimants, I wonder why he does not deal with poor claimants. They are not the ones who go to court, and there is no legal aid for poor claimants. The problem with the conditional fee agreement and the 100 per cent success fee is that they are not normally for poor claimants, but for very rich ones. If we ask the claimants’ lawyers for particulars on their success rate, we find that the CFA people are on the side of rich claimants, and that is where the law is profoundly unequal.

I am not concerned with producing a Bill for the entertainment industry or the media; I am concerned with producing a Bill that protects the ordinary, individual citizen/critic, the small NGO, the regional newspaper, those from the arts and sciences, and so on. I am very glad that the noble Baroness, Lady Young of Hornsey, agreed to take part in this debate, and I am glad that others who are not lawyers took part. This is too important a subject to be left even to the legal profession. The noble Lord, Lord Pannick, asked why Clause 12(2) is necessary. I think that he is right that it is not necessary, but we put it in to show how conspicuously moderate we are. We may have been too moderate in that respect.

Finally, I must say that when I hear my noble friend Lord McNally speak as he did just now, I wonder whether I am alive at all or whether I am in heaven. I never thought to hear such a reply. His remarks are extremely encouraging because they indicate an open-mindedness to reform, a willingness to get on and to listen. I am sure that it is better for the Government to have a draft Bill and a Joint Committee of both Houses to look at it; and then, hoping that we are in good health, we could have an actual Bill, which I hope will start in this House rather than in the other place. This House, as we know, has very special qualities. On that basis, I ask the House to give the Bill a Second Reading.

Bill read a second time.

Justice: Legal Fees

Lord Lester of Herne Hill Excerpts

Monday 21st June 2010 Lords Chamber

Asked by

[Lord Lester of Herne Hill]

To ask Her Majesty’s Government whether they intend to exercise the power conferred by section 58(4)(a) of the Courts and Legal Services Act 1990 to reduce the maximum success fee chargeable under a conditional fee agreement in defamation proceedings.

[The Minister of State, Ministry of Justice (Lord McNally)]

The Government are currently considering the recommendations from Lord Justice Jackson’s report, Review of Civil Litigation Costs, published in January 2010. The Government’s analysis of Sir Rupert’s recommendations, once completed, will determine the next steps on the success fee in defamation proceedings.

[Lord Lester of Herne Hill]

My Lords, first, I pay tribute to the noble Lord, Lord Bach, and the right honourable Jack Straw, who began to focus on the abuses created by conditional fee agreements with 100 per cent success fees. I urge the Minister and his colleagues not to wait for consideration of the vast Jackson report before taking urgent action to deal with what I think is a scandal, where some fellow members of my profession charge inordinate fees through the conditional fee agreement so that the costs far outweigh any damages that NGOs, individuals or the press may have to pay. That is a very urgent matter.

[Lord McNally]

My Lords, we recognise the sense of urgency, but also the complexity of the issue. As my noble friend will know, the proposals made by the previous Government ran into trouble at the other end of the building. We are looking at the Jackson report and we will treat the matter with the urgency that my noble friend said that it deserves.