Children and Social Work Bill [HL]

Debate between Lord Lester of Herne Hill and Lord Faulks

Report: 1st sitting: House of Lords
Tuesday 18th October 2016 Lords Chamber

[Lord Faulks (Con)]

Briefly, in response to the point raised by the noble Lord, Lord Lester, he and I were both members of the Joint Committee on Human Rights. He may have seen the third report of the session 2016-17. Paragraph 3, commenting on the Children and Social Work Bill, reads:

“Lord Nash, Parliamentary Under-Secretary of State at the Department for Education, has certified that in his view the provisions of the Bill are compatible with the Convention rights”.

[Lord Lester of Herne Hill]

I am very grateful. I gather that the reason for my mistake is that version that we now have does not have the compatibility statement, but I think that the original version did. I am grateful.

Armed Services: War Crimes

Debate between Lord Lester of Herne Hill and Lord Faulks

Tuesday 1st March 2016 Lords Chamber

[Lord Faulks]

The noble and gallant Lord asks an entirely pertinent question. The Prime Minister has asked the Defence and Justice Secretaries to prepare a legislative package to redress the balance. That is clearly one of the matters under consideration, as is derogation from the Human Rights Act. There are a number of other matters which I would rather not go into detail about now, but I can assure the noble and gallant Lord that all these matters will be carefully considered.

[Lord Lester of Herne Hill (LD)]

Is not the Minister in some difficulty in his replies? So long as we remain bound by the European Convention on Human Rights and subject to the jurisdiction of the Strasbourg court, if the Minister and his colleagues introduce a new-fangled Bill of Rights that in any way is incompatible with the convention, it would be futile because the Strasbourg court—if not our own courts—will rule on that incompatibility. Is it not better, therefore, to answer this Question by indicating that for the sake of our soldiers, sailors and airmen, as well as others, we need the proper law to be both a human rights law and international humanitarian law?

[Lord Faulks]

I am sure that the noble Lord will not have forgotten the margin of appreciation. Provided our British Bill of Rights respects the European convention but tailors it to suit the particular challenges that the military faces, it is likely that Strasbourg will respect our interpretation. Of course, we will continue to protect human rights under any regime that exists, and also to respect our international humanitarian law obligations.

Legal Aid

Debate between Lord Lester of Herne Hill and Lord Faulks

Thursday 10th December 2015 Lords Chamber

[Lord Faulks]

We are very much discouraged from using Latin in any context now, although I do not know whether the noble and learned Lord would agree that it is remarkable that when you are told not to use Latin, it becomes almost irresistible to use it and somehow will only serve as the correct way. It is very much a thing of the past, I think.

[Lord Lester of Herne Hill]

In deference to the noble and learned Lord, Lord Woolf, will the Government reinstate the word “writ” instead of claim form?

[Lord Faulks]

I share the noble Lord’s dislike of that expression but I cannot give any commitment at the Dispatch Box on that matter.

Mediation is not, I entirely accept, a panacea but the Government have done a great deal of work on mediation. It is clear that the courts need to be concerned with most decisions of great importance but we need to encourage mediation. We have taken a number of steps to promote family mediation and its benefits. From April last year the Children and Families Act 2014 made it a legal requirement that anyone considering applying to court for an order about their children or finances must first attend a mediation, information and assessment meeting, unless exemptions such as domestic abuse apply. On domestic abuse, we have changed twice the evidence requirement, to make it easier for legal aid to be obtained for domestic abuse.

From November last year we fund the first single session of mediation in all cases where one of the people involved is already legally aided. In this scenario both participants will be funded for MIAM and the first session of mediation. So, I am pleased to share with the House that the number of people starting legally aided family mediation has increased over the last year and is at its highest volume since April to June 2013.

Legal aid remains a vital part of the system. It was brought in by the Attlee Government post-war and remained part of a significant improvement to social justice. This Government do not want to abandon legal aid. We are, of course, suffering under financial constraints but that does not mean that we should not be directing our attention to ensure that access to justice can be obtained, partly by legal aid and partly by improving our justice system in the various ways touched on in the course of this debate.

The Ministry of Justice remains open, as I hope has been indicated by the Lord Chancellor’s response to one or two areas, which may be characterised as U-turns or, more properly, further consideration. I do not consider the capacity to change course to be a weakness and I hope that noble Lords will agree about that. The lessons that we learn from LASPO will, I hope, inform policy-making. We remain under significant financial constraints. However, there is no reason to abandon our commitment to access to justice. I am grateful to all noble Lords, all of whom I know share the Government’s commitment, for bringing these matters to the attention of the Government and to the House.

British Bill of Rights

Debate between Lord Lester of Herne Hill and Lord Faulks

Thursday 10th December 2015 Lords Chamber

[Lord Faulks]

Clearly, I would not wish to comment on the circumstances of the former Attorney-General’s departure from government. I accept that it is important that we comply with our treaty obligations and we have no intention of departing from them. We have a proud record of complying with human rights obligations and protecting human rights throughout the world. It is no part of the Government’s intention that we in any way weaken our resolve to protect human rights here or abroad.

[Lord Lester of Herne Hill (LD)]

My Lords, the Minister has been more equivocal in his replies to this House than was Michael Gove in the evidence he gave to the Constitution Committee recently. Will the Minister confirm that the Government have no intention of following the example of the Russian Federation in its recent legislation?

[Lord Faulks]

I have, of course, read what the Secretary of State said to the Constitution Committee, of which the noble Lord is a distinguished member. I do not think anything I have said is divergent from the evidence he gave and we certainly have no intention of legislating specifically as the Russian Duma did yesterday.

European Union Referendum Bill

Debate between Lord Lester of Herne Hill and Lord Faulks

Wednesday 18th November 2015 Lords Chamber

[Lord Faulks]

I would not dream of underestimating the role of British embassies and consulates around the world. They play an extremely valuable and continuing role. Nevertheless, it is asking a great deal of them—even of the most conscientious embassy—to be conscious of the whereabouts of all the various citizens living in countries outside the United Kingdom.

[Lord Lester of Herne Hill]

In a previous debate, the noble Lord talked about the mental capacity of adolescents to take part in elections and suggested that they might be mentally in some way less capable, or something like that. I hope that I do not put it too crudely. As regards the particular group we are discussing, is the problem that they are rather well informed because they have lived in other parts of Europe and have great experience? I have no idea how they will vote but at least they will be better informed than many Members of this House.

[Lord Faulks]

The noble Lord makes an entirely false point. The argument that I advanced in relation to an earlier group of amendments had nothing to do with mental capacity. In fact, I eschewed any reliance on mental capacity. I simply said that we draw an arbitrary line where adolescents are concerned—whether it is 16 or 18—and part of informing ourselves whether it is appropriate that they should vote involves looking at the development of the adolescent mind, without impugning in any way their capacity. I hope that I have made that position clear. As regards the capacity of those who are disfranchised by the current state of affairs, I do not at all wish to impugn their capacity or the level of their information or their ability to take a decision.

European Union Referendum Bill

Debate between Lord Lester of Herne Hill and Lord Faulks

Wednesday 18th November 2015 Lords Chamber

[Lord Faulks]

I am afraid that I have not had enough time to see the film, but any argument about where you draw a line could be simply dismissed as one that has been used hitherto in different circumstances. I am concerned about whether giving these particular young people the vote is appropriate.

[Lord Lester of Herne Hill (LD)]

I am sure that the noble Lord does not wish to be offensive but the last time I heard arguments about brains and capacity was in Jackson, Mississippi, with the Ku Klux Klan showing me charts of the average Negro brain compared with a white brain. Does he not realise that arguments of that kind are deeply offensive?

[Lord Faulks]

I resent the noble Lord’s suggestion. We are engaging in an argument about whether to lower the voting age. Seeking comparisons with the Ku Klux Klan is entirely inappropriate and I reject it.

Human Rights: UK Application

Debate between Lord Lester of Herne Hill and Lord Faulks

Wednesday 18th November 2015 Lords Chamber

[Lord Faulks]

Once again, the question is not exclusively for the British Government. While the British Government are anxious to see the protection of human rights here, in Northern Ireland and in Ireland as a whole, it is also a matter for others.

[Lord Lester of Herne Hill (LD)]

Will the Minister please confirm to the House that the Secretary of State has the power under Section 26 of the Northern Ireland Act to give direction to the devolved institutions in Northern Ireland to secure their compliance with the European Human Rights Convention? If he does confirm that, will he tell us whether the Secretary of State has thought about exercising that power so as—to take the example given already about marriage, or perhaps the example of defamation or blasphemy—to secure full compliance in the Province with the obligations under the convention?

[Lord Faulks]

I am extremely hesitant to answer a question of law from the Dispatch Box. That is a matter that I will consider and write to the noble Lord about. It is a matter of concern for the Secretary of State and I am sure that it will continue to be, as it is for the Ministry of Justice as a whole.

Office of Lord Chancellor (Constitution Committee Report)

Debate between Lord Lester of Herne Hill and Lord Faulks

Tuesday 7th July 2015 Lords Chamber

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

My Lords, I thank my noble friend Lord Lang for securing this debate and providing the opportunity for the House to consider and discuss the Constitution Committee’s report on the office of the Lord Chancellor. I fear that I may disappoint noble Lords, who have all provided great-quality speeches in the debate, in the sense that my response will contain rather few surprises.

However, what I can say, consistent with what my noble friend would say, is that the new Lord Chancellor is very much in listening mode. There is no question of complacency on the part of the Lord Chancellor or in the Ministry of Justice, as the noble and learned Lord, Lord Phillips, suggested. I know that the Lord Chancellor will read the debate with considerable interest. I cannot guarantee what his response will be but I know that great heed will be taken of what has been said. Indeed, the committee’s report will be considered more carefully than it already has been. It is a comprehensive report and the Government recognise that the committee has assimilated a great deal of material collected from written submissions and oral evidence from a wide range of experts and practitioners, including Lord Chief Justices and Lord Chancellors.

The Government welcome the committee’s report, particularly its reaffirmation of the important constitutional role of the Lord Chancellor. However, we recognise that the committee has expressed disappointment at the brevity of the previous Government’s response to this report, and with two aspects of it in particular. I will endeavour to deal with those points. I fear that I will not be able to answer all the different points raised in the debate, including the EVEL debate, mentioned by the noble and learned Lord, Lord Falconer, or prisoner voting, which deserves a debate of its own. Of course, the comments are very much borne in mind by the Government.

First, I shall reflect on the current Lord Chancellor’s position on the rule of law. Noble Lords will, I am sure, be aware of his recent speech at the Legatum Institute, where he began to outline what he sees as a “one-nation justice policy”. He said:

“The rule of law is the most precious asset of any civilised society. It is the rule of law which protects the weak from the assault of the strong; which safeguards the private property on which all prosperity depends; which makes sure that when those who hold power abuse it, they can be checked; which protects family life and personal relations from coercion and aggression; which underpins the free speech on which all progress—scientific and cultural—depends; and which guarantees the essential liberty that allows us all as individuals to flourish”.

Noble Lords may think that those statements embody the core purpose of the justice system and indicate that he does not regard the law, as the noble and learned Lord, Lord Cullen, said, as “a mere appendage”. They bear careful consideration. No definition of the rule of law is likely to attract complete consensus, although Lord Bingham’s in The Rule of Law has quite rightly attracted widespread approval. Many countries boast of their adherence to the rule of law. In Russia there is a book that extols its virtues. China, which I recently visited, speaks consistently about its adherence to the rule of law.

The committee’s report comes at a time of considerable interest in the office of the Lord Chancellor. Among others, a recent publication by University College, London, on the politics of judicial independence concerned itself with the issue. That study reached a number of conclusions, including the fact that the judiciary and judicial independence emerged stronger from the 2005 changes with the inclusion of tribunals in the courts system, a more independent and visible Supreme Court, and greater autonomy of the Lord Chief Justice as the head of a more professional judiciary. The report recognised the change in the role of the Lord Chancellor and saw it as providing a political guardian of judicial independence with sufficient channels of communication to allow a new relationship to evolve between judges and politicians.

As to the role of the Executive, it is worth noting that the Lord Chancellor has specific duties under the Constitutional Reform Act 2005 to respect the rule of law and to have regard to the need to defend judicial independence. The noble and learned Lord, Lord Falconer, told the House about the nature of the obligations, which were of course considered by Parliament not all that long ago. It is worth mentioning that all Ministers of the Crown with responsibility for matters relating to the judiciary or the administration of justice have a legal obligation to uphold the continued independence of the judiciary.

Upholding the rule of law and defending judicial independence is a shared responsibility. The rule of law plays an integral part in the policy and the operations that we develop, particularly through the administration of the courts and tribunals system. The Government believe in, and will fervently support, the independence of the judiciary. That independence has two facets: the institutional independence of the judiciary as a branch of the state; and the independence of an individual judge, who has the discretion to make the decisions they do in court according to law. We defend their right to take those decisions.

I know that the committee expressed disappointment that the Government do not agree with its suggestion that the Lord Chancellor is required, above all other Ministers, to ensure that the rule of law is upheld within Cabinet and across government, or that the Ministerial Code, Cabinet Manual and oath of office should be amended to reflect that requirement. The Ministerial Code and the Cabinet Manual already set out the way the Government comply with the rule of law. As I have already said, all Ministers have a duty to respect the rule of law, and of course the Prime Minister ultimately has responsibility for overseeing the constitution.

The Cabinet Manual, in particular, notes the role of the law officers in,

“helping ministers to act lawfully and in accordance with the rule of law”.

The Government agree with the committee on the important role played by the law officers in upholding the rule of law. This view has been shared by successive Governments. The law officers play this role in particular by advising on some of the most significant legal issues being dealt with by government through their significant public interest functions, such as bringing contempt proceedings, and through participating in the work of the Government as Ministers of the Crown. This includes the Attorney-General participating in Cabinet meetings. I know that the noble Lord, Lord Lang, and others concluded that the Attorney-General should as a right attend all Cabinet meetings. I understand that the expectation is that he will continue to attend all Cabinet meetings but, ultimately, his attendance is a matter for the Prime Minister. Despite the comments of the noble Lord, Lord Beecham, the Government consider that the law officers are adequately resourced to fulfil their functions as they relate to the rule of law. An important function of those officers is keeping all ministerial colleagues informed of significant legal issues. The relationship between the Lord Chancellor and the Attorney-General is an important one; they meet regularly to discuss matters of common concern, including those that relate to the rule of law, and the expectation is that this will continue.

I know that the committee also expressed disappointment that the Government do not agree with its assertion that the Permanent Secretary at the Ministry of Justice needs to be legally qualified, or that the department’s top legal adviser needs to be appointed at Permanent Secretary level. It is a matter of some serendipity that the recent appointment of Richard Heaton as the Permanent Secretary has arrived in time for this debate. He is also First Parliamentary Counsel and undoubtedly has weighty legal experience. However, both the Lord Chancellor and Permanent Secretary, whether legally qualified or not, have access to high-quality legal services provided by the Government Legal Department, including direct access to the Treasury Solicitor and one of his deputies at director-general level, should it be needed. Advice can be sought from Treasury counsel, external counsel and the law officers, where needed. This provides the right level of legal support. Importantly, in addition to this, the Lord Chancellor is supported by, and has access to, a wealth of experience and expertise from civil servants, many of whom have long experience of courts and the administration of justice. I can give some evidence of this in response to the—

[Lord Lester of Herne Hill]

It must be my own problem, for which I apologise, but is the Minister speaking for the old Government or the new Government in what he has just said?

[Lord Faulks]

I am speaking for the present Government.

On the question of whether the Lord Chancellor is adequately advised by lawyers, I say that the quality of the lawyers remains extremely high. I take the point made by the noble and learned Lord, Lord Woolf, with his experience of the old Lord Chancellor’s Department and the quality of the lawyers there, but there is a great deal of continuity within the Ministry of Justice now.

I return to the role of the Lord Chancellor and deal briefly with the point of whether combining the role with another Cabinet position helps strengthen his or her position in government. Experience shows that both can be successfully carried out by the same person. I echo the views of the previous Government: we welcome the committee’s agreement that combining the role of Lord Chancellor with that of Secretary of State for Justice does, indeed, strengthen the office. I also welcome the committee’s view that it is not essential for the Lord Chancellor to have a legal background. The last two Lord Chancellors did not, but I suppose I hope that it does not become a disqualification for office if you happen to be legally qualified. The committee instead focuses on the necessary gravitas and status that the incumbent who undertakes the role must have, which does not require specific legal experience.

It may be useful to the House if I set out the current policy remit of the Lord Chancellor and Secretary of State for Justice, which I think helps illustrate the benefits of combining the two roles. The Lord Chancellor has responsibility for matters relating to the judiciary, courts and tribunals, coroners, civil, family and administrative law, legal aid, legal services and the legal professions, public records and the Crown Dependencies. The Secretary of State for Justice’s policy responsibilities include prisons and probation, criminal law, sentencing policy, human rights, data protection and freedom of information. It is evident that having one person who is responsible for the effective and efficient delivery of that system combining the functions is of great benefit. It helps give him the necessary clout in Cabinet—or, as the noble and learned Lord, Lord Hope, said in evidence before the committee, makes sure that he is not at the,

“far end of the table”.

I touched on the Lord Chancellor’s responsibility for ensuring the proper administration of HM Courts & Tribunals Service. I want to say a little more about this as it is an important example of how upholding judicial independence is critical to the successful delivery of that service. The Lord Chancellor discharges his responsibility for the courts and tribunals in partnership with the Lord Chief Justice and the Senior President of Tribunals. He has a statutory duty to provide the support necessary for the judiciary to perform its functions and to ensure that there is an efficient and effective system to support the business of the courts. This duty is discharged in conjunction with the senior judiciary, as laid out in the HM Courts & Tribunals Service Framework Document of 2014, which reflects the partnership arrangement between the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals in relation to the effective governance, financing and operation of HM Courts & Tribunals Service. It is very much a joint venture.

The final point I want to address—and it is a very important point—is the committee’s concern that:

“There is no clear focus within Government for oversight of the constitution”.

Human Rights and Civil Liberties

Debate between Lord Lester of Herne Hill and Lord Faulks

Thursday 2nd July 2015 Lords Chamber

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

My Lords, I am very grateful to the noble and learned Lord, Lord Wallace of Tankerness, a former ministerial colleague, for initiating today’s debate. The subject is, of course, always of critical relevance but perhaps never more so than today, when we face challenges to civil liberties and the Government are faced with trying to balance civil liberties with the security of the nation. The debate has been instructive and thought provoking, graced by contributions of a very high standard. I have listened to all the contributions with care and would stress that the Government have a clear mandate on the question of the current legislative framework for human rights but nevertheless are currently very much in listening mode.

On that point, I am disturbed that the noble Lord, Lord Lester, received no response from the Lord Chancellor. I know that the Lord Chancellor is anxious to see as many people as he can and that, in fact, the noble Lord, Lord Lester, is on the list of those he would like to see. I cannot explain any administrative failing, but I can assure the noble Lord that he will be most welcome and that, if he could put up with the company of a couple of zealots, we would be happy to discuss these matters with him.

Noble Lords are aware that, as Minister of State for Civil Justice at the Ministry of Justice, I am responsible for representing the department and the Government in this House on the subjects of human rights and civil liberties. I share this task and responsibility with my ministerial colleague Dominic Raab. We are both equally committed to coming up with lasting solutions to meet the challenges which this responsibility entails.

Brief reference was made during the debate to the so-called snoopers’ charter, which is understandable, because we are shortly to have a debate on the report from David Anderson QC. I was on the pre-legislative scrutiny committee for the original draft communications data Bill, so I have some personal knowledge of the issues, which perhaps particularly illustrate the difficulties that a Government have in balancing individual privacy with security. I know that the Government are carefully considering David Anderson’s report and will have to consider how that balance is best reflected. It is a little unfortunate that the journalese expression “snoopers’ charter” has been so widely adopted. It demeans a very difficult argument that has to be undertaken by all those who care about these things.

The noble Lord, Lord Addington, mentioned vigilance over disability rights, and made some valuable points about the need not to characterise or mischaracterise those with disabilities—and how we as a Government, or any Government, should tread very carefully in this area.

In a debate involving the Liberal Democrats, it was perhaps no surprise that the noble Lord, Lord Roberts, mentioned the perennial subject of electoral reform, and the lack of a democratic mandate. Of course, what he said will be regarded by many as a valuable contribution to the debate, but I hope that he will forgive me if I do not go into a long response on questions of democracy.

I shall focus considerably on the question of the reform of the Human Rights Act, which has formed the bulk of the debate in your Lordships’ House. It is beyond dispute that the United Kingdom has a strong tradition of respect for human rights, which long predates our current arrangements. The Government are proud of that tradition and, in developing proposals for reform, will make sure that the tradition is not only maintained but enhanced. However, we take the view that all is not well with the current law in relation to human rights, and the Government were elected with a mandate to reform and, where appropriate, modernise the United Kingdom’s human rights framework. Therefore, we will bring forward proposals for a British Bill of Rights, which will replace the Human Rights Act. Our Bill will protect fundamental human rights, but also prevent their abuse and restore some common sense to the system.

We will consult fully on our proposals before introducing legislation. I hope that will be acknowledged around the House as an appropriately cautious way in which to proceed—not a sign of weakness or second thoughts but a sensible way in which to undertake reform of a major constitutional nature. I do not want to pre-empt that consultation, but it may be useful if I give the House some pointers to our current thinking, without prejudice to any final conclusion on what is or is not in the consultation. It is unfortunate that so many noble Lords make the assumption that any British Bill of Rights would contain rights that are “more restrictive” than those in the convention.

The Human Rights Act was passed shortly after the Labour Party won the general election in 1997. As a number of noble Lords observed, it was a very clever piece of draftsmanship. The narrative was that the Act would bring rights home, obviating the need for a trip to Strasbourg by UK citizens. There was much speculation about what the impact of the Human Rights Act would be on our law domestically; many thought that the effect would be marginal. In fact, there is virtually no aspect of our legal system, from land law to social security, to torts and consumer contracts, that has not been touched to some extent by the Human Rights Act.

The noble Lord, Lord Cashman, in his passionate speech said that the Act had worked magnificently—and certainly I would not quarrel that there have been good decisions influenced by it. But he should not, and the House should not, underestimate the capacity of the courts before the Human Rights Act and the capacity of the court of Parliament to protect human rights by showing an ability to pass new legislation to develop the common law. This Parliament passed the Modern Slavery Act and the previous Government passed the equal marriage Act. One issue about equal marriage was whether there would be difficulties with Strasbourg if the Act came into force. So we should not underestimate what this country has in its capacity to protect human rights.

Many lawyers are very enthusiastic about the Human Rights Act. I have to say that my own experience as a practitioner does not make me an unequivocal supporter of it. As a barrister representing public authorities, I saw the incursion of human rights law into the fields of social services, education and police investigations. It contributed a great uncertainty to the law, and I am afraid that I am not persuaded that it resulted in any real improvement in the protection of fundamental rights. It certainly resulted in a great deal of additional expense in areas where budgets were already tight. But whatever views might be taken of the effects of the Human Rights Act—and I do not want to embark on a litany of cases for and against; views can reasonably diverge—I think it would be accepted that the Act has not endeared itself to the public generally. That was one conclusion that the commission reached. Not all of this is the fault of the tabloid press; the problems with Abu Qatada and others, prisoner voting—on which there can reasonably be different views—and some of the frankly trivial claims have not helped.

[Lord Lester of Herne Hill]

The Minister and I were on that commission. Is it not right that our report, which I have here, showed that there was overwhelming support for the Human Rights Act in Scotland, Wales and Northern Ireland, and among those who answered our two consultations?

[Lord Faulks]

I am grateful to the noble Lord, and of course I shall come to the question of Northern Ireland and Scotland in due course. There were two consultations, of which the Government will take account, along with their own consultation, to enable them to form the fullest picture possible of the way forward.

Section 2 of the Human Rights Act, as noble Lords have correctly observed, requires courts only to take into account the Strasbourg jurisprudence. As the noble and learned Lord, Lord Carswell, frankly admitted, the superior courts—the Supreme Court and the Court of Appeal—went rather further than simply taking into account the Strasbourg jurisprudence. I think that it is now generally acknowledged that the Ullah case involved a wrong turning. As noble Lords have said, it is true that something by way of a dialogue has ensued. It is also true to say that the Supreme Court has shown something of a retreat or modification of its approach to Section 2. None the less, there is need—there may be some general agreement on this—for clarification. The Strasbourg court should not be demonised, as some of its decisions would continue to be useful, whatever our precise relationship with it, but it may not be the only source of wisdom. We should not pivot entirely off the Strasbourg court when there are useful decisions elsewhere in the world—and, of course, it should not impede the development of the common law as it has always developed.

The convention was drafted, as has been said, by Conservative politicians, and is a remarkable achievement in itself. To encapsulate human rights is perhaps a philosophical task, but I do not think the Government have a difficulty with how they are expressed—it is, of course, only in their interpretation. However, the convention must be seen in the context in which it was drafted, in the aftermath of the Second World War, just as the Magna Carta, so much commented on, must be seen in its particular historical context.

I should make it clear, in answer to a number of questions, that it is no part of our plans to leave the convention. The noble and learned Lord, Lord Brown, referred to the number of cases that he had lost, no doubt having valiantly argued them for the Strasbourg court. When our British Bill of Rights becomes law, as I hope it does, there will still no doubt be some cases before Strasbourg and the successor to the noble and learned Lord, Lord Brown, may achieve better or worse results.

The Prime Minister, in his speech at Runnymede—

Criminal Justice and Courts Bill

Debate between Lord Lester of Herne Hill and Lord Faulks

Monday 27th October 2014 Lords Chamber

[Lord Faulks]

My Lords, of course that is the burden of the argument in favour of the amendment, and that is the current situation. The clause is intended to place a higher burden—we accept that it is a higher burden—on interveners to think carefully about the intervention that they intend to make as to whether it is truly worth while.

Before my noble friend’s intervention, I was stressing that the judge has discretion over both aspects: causation and quantum. The intervention may have caused only a degree of additional costs, rather than the entire costs of the action, which will modify the intervener’s exposure to costs. That will be a matter for the discretion of the judge. Of course, it is ultimately up to the judge to decide what are exceptional cases. Judges have different views as to what constitutes an exceptional case, but ultimately it is for the judge. It is very rare, if at all, that one sees appeals on questions of costs having any success. Amendment 164 would remove both presumptions that the clause creates, replacing it with a general discretion, which my noble friend would like, for the court to award costs either for the intervener against a party or to require the intervener to pay the parties’ costs. That is the status quo.

Clause 73 has been criticised for being too broad and meaning that interveners could be expected to pay costs in any circumstances. Critics have said that that means that an intervener would not be able to intervene in important cases and provide assistance to the court, as the risk of adverse costs is too unclear and potentially too great. Under Clause 73, what amounts to exceptional circumstances will ultimately be set out in court rules. That will provide clarity for an intervener at the point where they are considering whether to intervene on the manner in which they should carry out their intervention or risk costs.

Clause 73 does not mean that in every case where an intervener is involved they will be forced to pay all the costs of all of the parties, but it is right that they have a fairer financial stake. All those with experience will confirm that, just as interveners can add value, they can delay and hinder and make arguments that simply amplify or repeat—

[Lord Lester of Herne Hill]

I am grateful to the Minister, and I apologise for intervening at this late stage, but I do not understand from his reply how he can cite cost saving as a justification for giving detailed instructions to the courts about matters that are well within their discretion. Nor do I understand why a different rule should apply to the Supreme Court from that applied in others or in Northern Ireland from that applied in England and Wales.

[Lord Faulks]

I think that I have answered my noble friend’s point on the difference between the Supreme Court and the courts at a lower level. On costs, as I said, with this clause we hope to deter inappropriate interventions and also to make interveners think about the scale of their intervention so as to reduce the costs for all parties, whether applicants or respondents, and to ensure that those interventions are relevant and genuinely assist the court.

These clauses apply to judicial review in England and Wales. Scotland and Northern Ireland have separate legal jurisdiction on this question because it is devolved, but of course if they intervene in a court in England and Wales that would be a different matter.

Interveners can also, as I think is accepted, make arguments that go beyond what is necessary. The changes that Clause 73 introduces reflect the Government’s intention of ensuring that they do so in an appropriate manner. We submit that the overall effect of the clause, while not drastic, will reduce the number of cases—and the noble Lord, Lord Pannick, says that there are very many cases where interventions take place—in which the taxpayer is expected to shoulder the burden.

That is what Clause 73 does and why the Government, having considered the issues, are of the view that the provision represents a sensible, workable and balanced position that takes proper account of the role of the judiciary, which will remain at the centre of this issue. Therefore, having provided an explanation of the Government’s thinking, I ask the noble Lord to withdraw the amendment, and I commend Clause 73 to the House.

Criminal Justice and Courts Bill

Debate between Lord Lester of Herne Hill and Lord Faulks

Monday 14th July 2014 Lords Chamber

[Lord Faulks]

My Lords, I fully understand what lies behind this amendment, which seeks to provide a review mechanism for whole life order prisoners. Mention has been made of hope and redemption, and understandably so. This issue has indeed been raised previously in your Lordships’ House and we were reminded by the noble and learned Lord, Lord Lloyd, who has been wholly consistent on this subject, in particular of the debate which he initiated during the passage of the LASPO Bill on 9 February 2012. I am also conscious of what was described by the noble Lord, Lord Elystan-Morgan, as the distinguished support that has been provided for this amendment.

However, I really doubt whether the noble Lords supporting this amendment or the Joint Committee on Human Rights, which suggested it, truly meant to give the Parole Board a sentencing function in the way that the amendment suggests. There is no precedent for this and nothing in the amendment indicates how it might approach the task of replacing a whole life order with a determinate minimum term. There is a real risk that, were this to be the law, it would put the Parole Board in potential conflict with the judiciary—or at least, set up a tension—which would hardly be desirable.

I am glad that the noble Lord, Lord Beecham, mentioned the protection of the public and the nature of a whole life order, because the Committee should not forget that such an order is imposed only where the court is satisfied that the offence is so exceptionally serious that the sentence is justified for the purposes of punishment and deterrence. In those circumstances, the court is fully aware that the offender will then face spending the rest of his or her life in prison, so we are talking about the most serious offences. Indeed, the noble and learned Lord, Lord Hope, referred to that in his equivalent experience in Scotland.

The key concern expressed by your Lordships is to put a clear scheme for review in place for whole life orders. This issue has come to the fore following the judgment of the European Court of Human Rights in the Vinter case, when it found last year that whole life orders without a review mechanism are incompatible with Article 3 of the convention at the point of sentence. However, as has been referred to in the debate, since then there has been domestic litigation and the Government now consider that the Court of Appeal has settled the domestic position in relation to whole life order prisoners. Earlier this year, a specially constituted Court of Appeal heard the cases of McLoughlin, Newell and others, whole life order prisoners who were appealing their sentences including on the grounds of incompatibility with Article 3. The court determined two crucial issues: that whole life orders can and should be imposed in the most exceptionally serious cases; and that the operation of Section 30 of the Crime (Sentences) Act 1997, which deals with release on compassionate grounds, was sufficient to render a whole life order reducible.

The Court of Appeal confirmed that the Secretary of State has a duty to exercise his or, as the case may be, her powers under Section 30 compatibly with Article 3 and must consider all circumstances relevant to release on compassionate grounds. The Court of Appeal found that there was no lack of clarity as to the applicable domestic law. The judgment explained that the power of review under Section 30 arises if there are “exceptional circumstances”—a term which the court found to be of sufficient certainty in itself and which will be applied on a case-by-case basis. Indeed, the Court of Appeal said that “compassionate grounds” should be read in that manner:

“It is a term with a wide meaning that can be elucidated, as is the way the common law develops, on a case by case basis”.

The Court of Appeal therefore concluded that domestic law provides the offender with the possibility of release in exceptional circumstances such that the just punishment originally imposed is no longer justifiable. The court also said:

“We find it difficult to specify in advance what such circumstances might be, given that the heinous nature of the original crime justly required punishment by imprisonment for life. But circumstances can and do change in exceptional cases. The interpretation of s.30 we have set out provides for that possibility and hence gives to each … prisoner the possibility of exceptional release”.

The Court of Appeal, presided over by the Lord Chief Justice, was uniquely placed—authoritatively and conclusively, the Government suggest—to explain how domestic law operates. It has done so in the manner that I acknowledged earlier. As a result, the Government consider that there is no further action that we need to take to give the clarity provided by that judgment.

The Newell appeal has not been allowed, so there is no outstanding domestic litigation following the McLoughlin and Newell case action report. The report sent to the Committee of Ministers sets out the Government’s position. We would not of course simply have said that we should await the Supreme Court position, but it would be idle for a Government to say that they would ignore a decision of the Supreme Court. Had the matter reached that court, the Government would have been mindful of our obligations, but in fact that particular road is now closed.

The Court of Appeal having considered the matter, with its particular experience both of whole life sentences and of the dynamism of the common law to deal with the situations that naturally concern noble Lords, we conclude that the amendment is unnecessary. Notwithstanding its distinguished support and the strength of feeling, we invite the noble Lord to withdraw it.

[Lord Lester of Herne Hill]

My Lords, I am grateful to everyone who has spoken in this extraordinary debate, including the Minister. One has to bear in mind that under Article 46 of the convention there is a duty on the UK to abide by the final judgment of the Strasbourg court in the British case. That duty must be performed not just by the Government, thank goodness, but by Parliament and by the judiciary. When the Committee of Ministers of the Council of Europe—that is, 47 Governments, including 46 that will be looking at this debate and particularly at what the Minister has just said—next meets to scrutinise whether the UK has in fact properly complied with the judgment, it will no doubt read the debate, including the Minister’s reply, and the report of the Joint Committee on Human Rights with some interest. It will note that three of those who have spoken contrary to the view of the Minister have all exercised judicial power in our apex courts, the House of Lords and the Supreme Court, including the President of the Supreme Court, and they will view with some surprise the notion that the Minister’s view of the Court of Appeal judgment is somehow more significant when looking at the matter than the views of those extremely distinguished jurists, all of whom, as I say, have exercised judicial power at the very apex of our legal system.

I simply do not understand how the Government think they can get away with it. They have already spent years and years, like their predecessors, in trying to get away with their refusal to abide by the final judgments in the prisoners’ voting rights case. By a strange quirk of life, I go to the Committee of Ministers every quarter. I shall not be at the next one but I usually go there because I am deemed to be Cypriot, for the purposes of the Cyprus/Turkey dispute. I observe what happens, without speaking, in the British cases. I have to say to the Minister, who has not had that experience, that our reputation at the moment is right at the bottom. Everyone I speak to—ambassadors, judges, civil servants in Europe—view with astonishment the fact that we now have a Minister of Justice, a Home Secretary and a Prime Minister who feel sick when they read judgments of the Strasbourg court and say so, and who threaten to tear up the convention or, rather, to withdraw from the court’s jurisdiction and the Human Rights Act. One cannot imagine quite what it is like to have lived through a period when the United Kingdom had such a fine international reputation and then to find that the pseudo-democracies of Europe—the dictatorships and totalitarian regimes—say, “If the United Kingdom can do this so can we”.

The JCHR said that this was a probing amendment, and that is what it is, but it is an extremely valuable probing amendment because those experts on penal reform, such as the former Chief Inspector of Prisons, the noble Lord, Lord Ramsbotham, and distinguished human rights advocates, within the law or in some other occupation, have all spoken in the same way. I have no doubt that the Government will not get away with it and that the Committee of Ministers will not close the matter, as the Government are now saying, but will demand further explanations. Having said all that, I beg leave to withdraw the amendment.

Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014

Debate between Lord Lester of Herne Hill and Lord Faulks

Wednesday 7th May 2014 Lords Chamber

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

My Lords, I am grateful for the opportunity to accept the invitation to gird my loins and to respond to the noble Lord, Lord Pannick, and others—lawyers and non-lawyers alike—who have spoken in this debate this evening. As the noble Lord, Lord Pannick, said, many of us are veterans of the LASPO Bill, and I count myself as one. I declare an interest as until recently I was a barrister who practised in, among other areas, the field of judicial review, acting for both applicants and respondents, so I have some experience of this procedure. I should explain to the House the Government’s position on the regulations concerning the remuneration for legally aided judicial review permission applications that were laid before the House on 14 March and came into force on 22 April.

The debate has ranged far and wide this evening. We have had references to the separation of powers, a reminder of Montesquieu, a magisterial analysis of the developing role of the Secretary of State and the Lord Chancellor and a call to the reversion of the status quo ante, whereby the Lord Chancellor had a rather different and separate role. We have had a critique by the noble Lord, Lord Howarth, of the whipping system and of the machinery of government as a whole; an implied undertaking to repeal the Fixed-term Parliaments Act; a criticism of reforms of the national health system; and an attack on the Government as a whole. We have also had criticisms of the exceptional funding arrangements in the LASPO Bill and of the social welfare law provisions. To respond to all these issues would take several hours. I hope that noble Lords will understand if I do not do so but concentrate on the rather prosaic matter of these particular regulations.

During the course of the speeches of great quality which we have had this evening, a dispassionate observer would have thought that the Government were abolishing judicial review. Such a course would of course be of fundamental importance and would indeed fall foul of the many criticisms that have been ranged against it this evening. I entirely accept that judicial review is a critical check on unlawful action by public bodies and that it is wholly right that individuals should be able to access this mechanism. The many cases cited by the noble Baroness, Lady Stern, are examples of successful judicial reviews. The noble Baroness, Lady Campbell, quite rightly drew attention to the many actions that have been assisted by judicial review to right wrongs. Nothing about these modest regulations will do anything to erode that.

Civil legal aid for most judicial review cases will remain within the scope of the legal aid system. These regulations relate solely to the remuneration of legal aid providers and will ensure that limited legal aid funds are not used to remunerate weaker cases. The detail—prosaic though it is—does matter. It is a long-standing feature of our legal aid system that there should be limits on access to funding based on the strength of the case. To qualify for civil legal aid, cases must satisfy a merits—or prospects of success—test. Broadly speaking, a judicial review case must have a 50% or greater prospect of success at the final substantive hearing. However—there has not been a great deal of reference to this in the debate—noble Lords will be well aware that before any substantive judicial review hearing, the court must first give permission to proceed. Permission will be given if the court considers that a case is arguable and therefore merits full investigation. The permission stage therefore acts to filter out weaker cases at an early stage in the process.

Providers are well placed to assess whether or not the court is likely to grant permission before they issue an application. They will not be required to make a random guess before taking the risk to issue proceedings. That is because their assessment is undertaken following the pre-action stage of the process during which time providers gather the relevant information about the strength of the case. Noble Lords may be familiar with the protocol that applies in these cases. It is that information that enables them to make an assessment as to whether to issue proceedings. Under the policy, work to investigate the strength of the case and engage in pre-action correspondence would not be at risk. A case that has received legal aid and so has been assessed as having a 50% or greater prospect of success at the final hearing should be more than capable of satisfying the lower arguability threshold.

However, Legal Aid Agency data indicate that a significant number of legally aided cases—751 in 2012-13—apply for permission and fail, with potentially substantial sums of public money being expended. The commentary on civil procedure contained in the White Book, with which all lawyers will be wholly familiar, states as follows in rule 54.4.2, which deals with the permission application:

“The purpose of the requirement for permission is to eliminate, at an early stage, claims which are hopeless, frivolous or vexatious and to ensure that a claim only proceeds to a substantive hearing if the Court is satisfied that there is a case fit for further consideration”.

That is a synthesis of the case law. It was quoted in the consultation, to which there has been some reference. The Government do not consider it fair or justified that limited taxpayers’ money should be used to fund such cases. The legal aid merits criteria provide an important control, but it is clear that they are insufficient by themselves to address the specific issue that we have identified in judicial review cases. These regulations will therefore introduce a further control by placing remuneration for the work on a judicial review at risk from the point at which proceedings are issued—that is, when an application for permission for judicial review is made to the courts. Providers will be paid for this work if the court gives permission.

Permission may be applied for but a case may of course also conclude prior to the court’s decision, a point made by a number of speakers. In those circumstances providers should seek to recover costs, either through agreement with the other party or by a costs order made by the court which orders the public body to pay the legal costs. Where this cannot be achieved, the regulations enable the provider to apply to the Legal Aid Agency for a discretionary payment. These regulations do not—as I think the Motion of the noble Lord, Lord Pannick, seems to suggest—make legal aid in judicial review cases solely dependent on the court granting permission to proceed.

This policy was the subject of extensive public consultation. The Government have listened carefully, and gone to lengths to modify the proposal to ensure that payment will continue to be made in meritorious cases. In response to concerns raised in the first consultation that strong cases will often conclude pre-permission, without costs being recoverable—a perfectly fair point made by a number of noble Lords—we moved to introduce a discretionary payment mechanism. In response to concerns that this discretion would be too inflexible—for example, that it could penalise providers who acted reasonably throughout but where new information subsequently came to light which altered the strength of the case—we modified the factors that the LAA would have regard to, and ensured that these would be non-exhaustive.

Remuneration will continue to be paid for the earlier stages of a case, where investigations are carried out into the prospects and strengths of a claim and pre-action correspondence is exchanged with the defendant. The regulations would not affect subsequent work in respect of the substantive hearing, once permission has been given. Nor would they place at risk any reasonable disbursements which arise in preparing the permission application, such as expert’s fees and court fees. Work relating to applications for interim relief will also not be at risk. Of course, providers can always discontinue the process, either following the pre-action stage where providers can decide not to issue proceedings on the basis of their assessment of the evidence, or after proceedings have been issued, where providers may seek to discontinue the case if they consider that the prospects of success have been materially altered.

The regulations only and specifically put at risk work on the permission application, in accordance with Part 54 of the Civil Procedure Rules 1998 or Part 4 of the Tribunal Procedure (Upper Tribunal) Rules 2008, where an application has been issued. By way of example, this would include work on drafting the grounds of claim, and preparing the claim form or application for permission and the bundle of documents. I have been somewhat surprised by arguments that providers would be unclear what work would and would not be at risk. These are matters with which any legal aid provider who carries out litigation will be very familiar, for example for the purpose of preparing a statement of costs.

[Lord Lester of Herne Hill]

I am sorry to interrupt, given the lateness of the hour, but what my noble friend is saying perplexes me. Would he please look at Regulation 5A(b)? This deals with the situation where neither a refusal nor a granting of permission takes place, and the Lord Chancellor is then given discretion where he considers it is reasonable in the circumstances to pay remuneration, taking into account (i), (ii) and (iii). I will not embarrass the Minister by reading those out, because everyone would laugh if I did. But looking at (i), (ii) and (iii), and putting himself back in the days when he was a barrister appearing for applicants, how on earth could he reasonably predict the outcome, so far as costs are concerned, with those criteria?

Defamation Bill

Debate between Lord Lester of Herne Hill and Lord Faulks

Tuesday 5th February 2013 Lords Chamber

[Lord Lester of Herne Hill]

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

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

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

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

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

[Lord Faulks]

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

--- Later in debate ---

[Lord Faulks]

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

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

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

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

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

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

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

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

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

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

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

[Lord Lester of Herne Hill]

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

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

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

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

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

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

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

Defamation Bill

Debate between Lord Lester of Herne Hill and Lord Faulks

Monday 17th December 2012 Grand Committee

[Lord Faulks]

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

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

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

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

“where they can prove actual damage”.

She left out the last sentence, which states:

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

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

[Lord Lester of Herne Hill]

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

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

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

Justice and Security Bill [HL]

Debate between Lord Lester of Herne Hill and Lord Faulks

Tuesday 19th June 2012 Lords Chamber

[Lord Faulks]

My Lords, this Bill was always likely to be controversial and contributions so far have shown that that is the case. Part 2 has been a particular focus of attention. It is concerned with restricting the disclosure of sensitive material in court proceedings. A number of noble Lords have spoken who are not lawyers, and I entirely agree that the issues that this Bill throws up are not solely the possession of lawyers. I am, however, an advocate and as such am instinctively opposed to any erosion of the principle of natural or open justice. Evidence should be heard and read by litigants and their representatives, and their comments and reactions to it are a fundamental part of what we recognise to be a fair trial, whether that trial is in criminal or civil proceedings.

The Bill involves the extension of CMPs to include civil proceedings. It should be emphasised that CMPs are not of themselves a novelty and exist in a number of different contexts, as the Minister has described. The extension was presaged by the Green Paper, and the Government’s proposals have been much commented on in the media and by various interested parties. The Government have acknowledged the contribution of those who commented on the proposals, not least the JCHR, of which I am now a member, although I claim no credit for that contribution as I was not a member at the material time. I am conscious of some of my distinguished predecessors on that committee. Contributors to the debate even included the Daily Mail, a newspaper that normally causes the party opposite to reach for their collective smelling salts.

In response to representations, the Government have made some important modifications to their original proposals. The most important seems to be that the CMPs will be appropriate only in the disclosure of evidence that would be,

“damaging to the interests of national security”,

rather than in criminal proceedings or disclosure that might damage international relations. I share with the noble Marquess, Lord Lothian, some little confusion as to why inquests fall into a separate category. As the noble Lord, Lord Lester, has said, this may be to do with the jurisprudence in Strasbourg about Article 2 and its expanded approach. The questioning in inquests may be rather different than in civil proceedings or judicial review proceedings, or the Government, as a reasonable matter of political expediency, may have responded to public disquiet.

Be that as it may, there appear to me to be certain relevant questions about what remains of CMPs. Have the Government made their case for an extension of CMPs, and if so are there sufficient safeguards in the Bill to minimise any risk to justice? The problem with the current system is that the Government are between a rock and a hard place. They may take the view that in disclosing material that will damage the interests of national security, but using PII if the application is successful, they may not be able to defend proceedings without what may be crucial evidence in their favour. The result may be that there is an inappropriate compromise of a civil claim.

The noble Lord, Lord Thomas, says that the Government are apparently in favour of the settlement of proceedings. This is not what I detect from the anxiety behind this Bill; they are in fact against inappropriate settlements where evidence has not been adduced. On the other hand, if the PII application is unsuccessful and the judge in performing the relevant balancing exercise decides to order the disclosure of material, the Government, consistent with their assessment of the potential damage in disclosure, will be placed in a position where they may have to settle a claim, to which there is if not an actual then at least a potential answer. This cannot be satisfactory and is of itself damaging to the interests of justice. The Government are entitled to justice, too.

The noble Lord, Lord Pannick, says quite rightly that in the course of looking at the doctrine of PII, judges have developed a range of responses to mitigate the stark choice that is sometimes presented to the Government. The ingenuity of judges includes the redaction of material and anonymisation and other procedures, but sometimes—this has been the case in the past and will be so again—the Government are left with that stark choice, which I understand is the philosophy behind this part of the Bill.

I am naturally concerned by the comments about CMPs that have been made by the special advocates, some of whom I know well. Many of their points seem valid; in particular, I am unsure how a satisfactory assessment of prospects of success can be made in the absence of critical evidence. How, too, can cases settle on the basis of a proper assessment of likely outcome—and here I acknowledge the point made appropriately by the noble Lord, Lord Thomas? How is Part 36 of the Civil Procedure Rules to operate? I am also very sympathetic to their very understandable regard for their clients’ interests, which they feel may be compromised by the lack of a free flow of communication between the special advocates and open advocates and by the risk that some relevant piece of information may remain unchallenged because of this lack of communication.

I am much less convinced, however, by the suggestion that PII is working well. I am entirely sure, as the noble Lord, Lord Macdonald, pointed out, that judges are performing the balancing exercises wisely, but for the reasons I have given the operation of PII may on occasion simply fail to deliver a just decision.

The use of CMPs will inevitably be what has been described by the independent reviewer as a second-best solution. However, it is significant that David Anderson QC, in the course of his providing memoranda to the JCHR, was convinced that there was a need to have a CMP available as an option in civil cases, albeit that it might not need to be exercised anything other than very occasionally, and I agree.

Special advocates, whatever their reservations about these procedures, are known to be tenacious in the defence of their clients and in challenging evidence adduced in CMPs. It must be recorded that a number of distinguished judges, not least the noble and learned Lord, Lord Woolf, who is not in his place, have said that CMPs are capable of producing justice and are consistent with it. Other judges, such as the much quoted noble and learned Lord, Lord Kerr, have observed that the lack of informed challenge, based on instructions, may leave the judge with a significant disadvantage in assessing the cogency of relevant evidence.

While in theory that is undoubtedly right, experience of our judiciary tells me that if evidence is adduced under CMPs, judges are likely to be particular rigorous in assessing its value. For example, if what is adduced amounts to double hearsay from a dubious source, that evidence, which could be unchallenged, is unlikely to be of much persuasive value. I simply do not recognise the scenario described by the noble Lord, Lord Strasburger, whereby little bits and fragments of assertion are put forward and expected to be relied upon by judges. It seems to me that if the Secretary of State elects to invoke CMPs, he or she is likely to do so only when the evidence is of real cogency. Let us not forget that the Government have lost cases after CMPs.

It is also worth observing that the extension of CMPs relates to civil proceedings involving claims for damages or judicial review, rather than to criminal proceedings, as we were reminded by the noble Lord, Lord Butler of Brockwell. While all cases should be subject to a full and preferably open hearing, the extension provided by this legislation is not concerned with criminal charges with a potential for loss of liberty.

The relative roles of the judge and the Secretary of State were much discussed in the responses to the Green Paper. It is for the Secretary of State to make the application, and the court must then make an appropriate declaration. However, I agree with the noble and learned Lord, Lord Mackay of Clashfern, that under Clause 6(2) one would expect the judge to try and devise strategies and to be interventionist in order to have a mode of trial that can, if possible, avoid CMPs, which are perhaps a last resort—but a necessary last resort.

It is said that Clause 6(5), which provides that the Secretary of State must first consider making a claim for PII, is of very little force. However, I would expect the Secretary of State to need to satisfy a judge that there had been at least consideration of such an option, and an explanation provided as to why PII was not used. The rules of court that are to be made pursuant to Clause 7 require a judge to consider providing a summary or gist of the material that is not damaging, within the definition of the Bill. Presumably, it would enable the claimant to provide some comments on the relevant evidence. This would need to be carefully done, but it would provide a potentially important safeguard.

The role of the Human Rights Act is also of importance. Article 6—the right to a fair trial—is specifically referred to in the Bill and provides another safeguard. In fact, we had well established principles of fair and open justice long before the Human Rights Act came into force. However, if one is to view these provisions in Human Rights Act terms, it should be remembered that Article 2 of the convention places an obligation on the Government, as a public authority, to protect the life of their citizens. In focusing on litigants, we should not forget the rest of the population, whose well-being may well be jeopardised by the disclosure of sensitive material.

Such concerns also colour my approach to the removal of the Norwich Pharmacal remedy in relation to sensitive material. It is vital that we protect the sources of our intelligence and that we maintain the confidence of our allies who provide us with that intelligence. If there was any doubt about that, it was confirmed by the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian. This remedy is concerned with cases in which foreign litigants want to see material that we hold innocently and does not affect cases where the Government are alleged to have been involved in wrongdoing, although I do not particularly like the expression “legal tourism” in this context. While I understand why the Government have chosen a wide definition of sensitive material, I invite the Minister to explain why the definition needs to be quite as wide as it is in the Bill. I do not suppose that it is intended to deny access to what most people might regard as non-sensitive material, but the Bill at least has the potential to allow such an approach.

We have heard a lucid analysis of the Binyam Mohamed case by the noble Lord, Lord Lester; and other noble Lords, including the noble Lord, Lord Pannick, referred to it. It can be seen from an examination of that case law that the courts in fact showed a considerable degree of deference to the security services, and some of the concerns expressed by other countries may be rather lacking in justification. However, it has to be remembered that the Norwich Pharmacal power is unqualified. The Government do not have the choice that they have in relation to the CMPs, and if ordered to produce this material they have to comply with the order.

Whether or not the fears of the United States and other countries are unfounded, it is critical for the safety of our country in these dangerous times that we do not jeopardise that relationship. I appreciate that the Government are placed in a very delicate dilemma, and it seems that we should have profound sympathy with their response, albeit that modifications may be made in the rigour of that test, which will more satisfactorily balance the respective interests.

This Bill will be thoroughly scrutinised by your Lordships’ House—

[Lord Lester of Herne Hill]

My noble friend may not be aware of the fact that in the Binyam Mohamed case, after the Norwich Pharmacal order was made, the court reserved the question of public interest immunity, but it never had to be decided because he was then released. It would not have been all or nothing. It is quite clear from the judgments that there would have been something. The courts, having decided Norwich Pharmacal, could then have decided on PII. I am not sure whether that is appreciated.

[Lord Faulks]

I entirely appreciate that. It is one reason why I suggest that there may be some modification to the test that we may ultimately arrive at, after having considered this matter in Committee. This Bill will be thoroughly scrutinised in Committee by your Lordships’ House, and it is clearly right that it should be. I hope and trust that we can avoid hackneyed references to Kafka and the Star Chamber. I am sorry that in an otherwise lucid speech by the noble Lord, Lord Beecham, he did not resist that temptation. The Government have a duty to protect us. This Bill is situated at the junction between that duty and the need to protect civil liberties and the integrity of the trial process. Please let us not forget the people of this country and those in the security services who labour silently on our behalf to protect them, in the course of our zeal to trumpet our commitment to the rights of litigants.