Data Protection Bill [HL]

Debate between Lord Lester of Herne Hill and Lord McNally

Ping Pong (Hansard): House of Lords
Monday 21st May 2018 Lords Chamber

[Lord McNally]

I am very interested in that—perhaps we can debate procedure in this House another time. I do not think I am out of order, and I am within 30 seconds of finishing a very long debate, in which a number of people have asserted some rather hurtful things about those of us who have spoken about the freedom of the press.

I went into that little bit of history, because I do not think that in 30 years’ time Paul Dacre or Kelvin MacKenzie will be spoken of in the same breath as Cudlipp or Evans, or even Junor or Rees-Mogg. The Daily Mail is said to be the Prime Minister’s favourite newspaper, yet it is the embodiment of the nasty party that she once so rightly condemned. I think Matt Hancock will regret becoming Paul Dacre’s poodle, and I think the old print media will regret not protecting themselves within the strong walls of the royal charter, as the long shadow of court judgments and the growing power of the ICO come into play. On behalf of the victims of press criminality and malpractice, I express my admiration for the noble Baroness, Lady Hollins, for ensuring that their voice has not gone unheard.

The Government will have their business, but I urge Ministers to accept this amendment as being in keeping with the arguments, which they themselves have used during the passage of the Bill, that major regulation should not be in the hands of politicians and regulators should be independent of both government and proprietors if real press freedom is to be safeguarded. In order, I beg to move.

[Lord Lester of Herne Hill (Non-Afl)]

I have voted against a three-line whip on earlier amendments of this kind, and will do so again today on this amendment, or any others like it. I entirely agree with the Minister in all respects. The Bill is now fit for purpose and represents a fair compromise. Without making a meal of it, I regard the amendment in the name of the noble Lord, Lord McNally, and similar ones, as unnecessary regulation, unprincipled, contrary to freedom of speech and unique in the democratic world. I know of no country that is a true democracy that has anything like this. I am surprised that it should be put forward by anyone who is a Liberal Democrat.

Data Protection Bill [HL]

Debate between Lord Lester of Herne Hill and Lord McNally

Monday 6th November 2017 Lords Chamber

[Lord McNally (LD)]

My Lords, as my noble friend Lord Clement-Jones indicated, I shall speak to Amendments 41 and 44, which were eloquently introduced by the noble Lord, Lord Griffiths. I had no idea that it was a maiden speech from the Front Bench, and it is to the discredit of the Labour Party that it has taken him so long to climb to the top of the greasy pole. Having got there, I hope that he enjoys the view.

As the noble Lord indicated, these amendments are inspired mainly by Thomson Reuters and others in the City. I attended a seminar in the City some weeks ago in which the corporation, the City of London Police and some leading companies talked about the challenges that data was bringing them. At the core of this is a concern that the Bill is loosely and poorly worded in preventing private companies doing work with data which will help them to keep best practice in line with the objectives for corporate governance and efforts to fight crime, terrorism, slavery, bribery and corruption.

I hope the Minister can give some comfort that the Bill will give cover to companies, financial institutions and others to carry out this kind of data activity and allow screening by private companies for the purposes of checking against non-UK laws on terrorist financing or money laundering. It should be amended to allow compliance with widely recognised guidelines such as those promulgated by the Financial Action Task Force. In the light of the Minister’s response and in consultation with those who have asked us to raise this matter, we would see whether we wanted to take it further. At the source of these amendments is a concern on the part of companies which I think genuinely want to help.

[Lord Lester of Herne Hill (LD)]

My Lords, I want to raise an issue which I would be grateful if it were thought about, although I would not dream of asking the Minister to give an informed reply today. I am puzzled especially by Amendment 37, spoken to by the noble Lord, Lord Griffiths, because I spent a good deal of my time developing the Equality Act 2010 and we were very concerned when doing so about issues of personal privacy and enforceability.

Obviously, one size does not fit all when it comes to equal opportunity and treatment. It is fairly easy to operate a policy measuring ethnicity, for example, without any problem about privacy; it is pretty easy to do so in respect of gender, although gender does not at the moment figure in the list for some reason, but it becomes terribly difficult when one is dealing with sexuality, religion or philosophical belief, which are for some reason in the list at the moment. I would be grateful if the Minister could reflect with people from the Government Equalities Office on whether this is an example of overlegislation, which it would be much better to prune down.

I am all in favour of affirmative action to promote equality between the sexes or people of different ethnicity, but when it comes to religion, philosophical belief and the other matters that are either there at the moment or would be there under Amendment 37, I get very worried. For example, I once represented the Church of Scientology—successfully—in establishing that scientology is a religion. I would not like these provisions to be the source of conflict and division between one kind of religion and another, or one kind of no religion and humanists, and so on. I think it is an example of overlegislation and underlegislation, and needs to be sorted.

Data Protection Bill [HL]

Debate between Lord Lester of Herne Hill and Lord McNally

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 6th November 2017 Lords Chamber

[Lord Lester of Herne Hill]

I was not discussing personalities, but what happened in the case in Strasbourg. I was about to say that, ironically, the Strasbourg court of human rights had regard to the editors’ code in the course of giving its judgment, so it certainly regarded the old editors’ code as relevant for that purpose.

The Explanatory Notes to the Bill state:

“Article 85 of the GDPR requires Member States to provide exemptions or derogations from certain rights and obligations in the context of processing personal data for journalistic purposes or the purpose of academic, artistic or literary expression”.


The notes go on to explain how that works. Article 10 is engaged, as there is an inherent tension between data protection and the right to freedom of expression. The Government were right to recognise those inherent tensions, which are not new. Personal data is about private information. I am reliably told that those public figures who wish to keep their private information away from inquiry now, as a matter of course, use data laws to protect publication in newspapers. If the correct balance is not struck, the ability of the press to act as a watchdog will be impaired to the detriment of democracy. Investigations, such as those into sex grooming, will become more difficult to publish.

The exemptions in Part 5 of Schedule 2 to the Bill are not new. They carry forward similar provisions in the Data Protection Act 1998. There is no good reason to amend them to the detriment of IPSO titles. It would be punitive to do so. Article 88 treats the majority of the print media, regulated by IPSO, less favourably than the BBC, broadcasters regulated by Ofcom and, if the amendment of the noble Lord, Lord Skidelsky, is accepted, members of Impress. That would mean that members of IPSO would be unable to rely on their compliance with the editors’ code—to which they are bound by contract—in their defence. It is difficult to understand the justification for this form of discrimination against editors and journalists working for our national and regional newspapers.

[Lord McNally]

I do not know how many more pages my noble friend has of this. Somewhere in it must be the recognition that IPSO has not applied for recognition, which would have given it all the protections he is calling for. He does not do himself a service. One of the reasons why people get irritated by the lawyers in this House is that they think that if they make a long enough speech it must be so and only the wicked would disagree. The reason why IPSO would be under threat is that it has not sought recognition. He gave a long list of IPSO’s supposed strengths. It is a sweetheart organisation. It is run by the newspaper owners. That is what we are trying to move away from.

I have now found something on the independent overseas press regulation. David Wolfe QC has said that it is disappointing that there continue to be attempts to prevent the recognition system working and that it is frustrating that Section 40 of the Crime and Courts Act has not been commenced. I would be a lot more impressed with my noble friend if he got behind that, or at least gave his friends in IPSO some really good advice and asked them to try to find a way forward with press regulation, instead of giving them an absolute veto on seeking a solution to this matter. I have finished—for the time being.

Space Industry Bill [HL]

Debate between Lord Lester of Herne Hill and Lord McNally

Committee: 3rd sitting (Hansard): House of Lords
Monday 23rd October 2017 Lords Chamber

[Lord McNally (LD)]

My Lords, I will in due course also speak to Amendments 41 and 42 in this group.

We have heard a lot recently about Parliament taking back control, yet no Government have done more in recent times to weaken parliamentary scrutiny and strengthen the power of the Executive than this one. They load up Bills with powers to be enacted by secondary legislation, and then complain if either House of Parliament objects to the powers thus taken. The truth is that we ain’t seen nothing yet. The Bill is just a taster of what is to come. We are of course dealing with our old friends the Henry VIII powers. As the Select Committee said on the matter:

“The number of delegated powers granted by the Bill is notable —the Bill has 71 clauses and confers approximately 100 delegated powers. Some of those powers are very broad”.


These should be called the Conrad Russell amendments. During my early years in this House, the late Lord Russell would root out and oppose Henry VIII clauses in Bills from both Conservative and Labour Administrations. As a Minister, I may even have tried to push through the odd Henry VIII power myself. Parliament should be wary of them.

Amendment 40 leaves out the catch-all term “enactment” and inserts the more precise and narrow reference to “secondary legislation”, so that SIs cannot amend primary legislation and only secondary legislation made under Clause 66 can be amended, repealed or revoked by secondary legislation. Amendment 42 would ensure that if we cannot stop SIs amending primary legislation, any regulation under this clause which seeks to repeal primary legislation is subject to annulment in pursuance of a resolution of either House of Parliament.

Whatever the outcome of Brexit, it is clear that the Government wish to find ways more easily to future-proof complex legislation. If we are to put the best gloss on these attempts at Henry VIII powers, this is about government trying to be more flexible as the impacts of legislation become clear. However, it involves weakening parliamentary scrutiny. Although this is a debate on the Space Industry Bill, it raises many important issues, which we should look at ways of dealing with in the long term. Certainly, the Select Committee has a good claim for taking this on as a broader issue, or perhaps the Lord Speaker and the Speaker could set up a Joint Committee. However, current parliamentary procedures are not adequate to deal with legislation such as immensely complex, technical Bills—we will soon have another one: the Data Protection Bill—which try to legislate for rapidly changing technologies. Henry VIII powers are not the solution, and although we put down these amendments in an attempt to proceed with this Bill, this is a longer-term problem that is a long way from being solved. I beg to move.

[Lord Lester of Herne Hill (LD)]

My Lords, I will say few words in support of the general propositions that my noble friend Lord McNally has referred to. I have come to the sad conclusion that the Government do not believe in parliamentary democracy but in executive government, and that they use every means they can to avoid Parliament’s scrutiny. The particular example that I am concerned about is what has happened to the Joint Committee on Human Rights; that goes back many years to when the noble Baroness, Lady Corston, chaired it and I first joined it. Lords committees are relatively safe, because we can protect them within this House. However, a Joint Committee of both Houses depends upon co-operation by both Houses. The Joint Committee on Human Rights is a vital constitutional safeguard that looks at every Bill and some delegated legislation for its compatibility with human rights. It is quite unacceptable that on the Commons side, the places have not been filled and the committee has therefore not met or sat, not just for weeks but for months now. It is an outrage and I very much hope that the Minister will pass on that message to some of his colleagues. Without that public watchdog, parliamentary scrutiny is very much weakened, and therefore I support everything that my noble friend Lord McNally has said.

Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2013

Debate between Lord Lester of Herne Hill and Lord McNally

Tuesday 19th November 2013 Grand Committee

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

My Lords, the amendment provides for the extension of the current SIAC rules to cover new applications resulting from the new jurisdiction inserted into the Special Immigration Appeals Commission Act as a result of the Justice and Security Act 2013. This enables the Home Secretary to certify that certain exclusion, naturalisation and citizenship decisions were made in reliance on sensitive information which should not be made public in the interests of national security, in the interests of the relationship between the UK and another country, or otherwise in the public interest.

The Special Immigration Appeals Commission, or SIAC, was set up under the Special Immigration Appeals Commission Act 1997. It hears immigration and asylum appeals involving national security issues and/or sensitive information which should not be made public—for instance, cases where intelligence is part of the evidence and the material cannot be released to the appellant, or his representatives, for fear of compromising sources or the national security of the UK. It has heard appeals under the Anti-terrorism, Crime and Security Act 2001 by persons certified as suspected international terrorists, and it currently hears appeals against deprivation of citizenship.

The Justice and Security Act 2013, which commenced in June this year, contained a number of provisions designed to control the disclosure, during litigation, of material which if released could be damaging to our national security. Section 15 of the Act amends the Special Immigration Appeals Commission Act 1997 to ensure that, where the Home Secretary excludes someone from the United Kingdom or refuses to naturalise them as a British citizen on the basis of sensitive material, the appropriate place for that decision to be challenged should be the Special Immigration Appeals Commission.

Previously, any individual in that situation could apply to the High Court to set aside the decision. This was a far from satisfactory arrangement for two reasons. First, prior to the Justice and Security Act 2013, the High Court had no facility for closed material proceedings, and even now it has only limited provision for them. Secondly, SIAC is the tribunal with the greatest expertise in considering sensitive national security cases, as well as having expertise in immigration matters.

Parliament therefore deemed that challenges to exclusions or citizenship decisions would be best heard by SIAC. In order for SIAC to entertain these new challenges, its procedure rules must first be amended, and that is what we must turn our attention to now.

The rules that sit before us have been produced on behalf of the Lord Chancellor, following a short period of consultation with several of the parties who best know SIAC. The list of consultees includes the Law Society, the Bar Council and indeed the sitting chair of SIAC.

In the main, the amendments that these rules make simply confirm that all the existing rules, covering the kinds of appeal that SIAC has heard since its inception in 1997, now apply to the review of exclusion and naturalisation decisions. These are purely administrative changes which establish the guidelines relating to time limits for seeking a review, submission of forms and so on.

However, the rules have a number of substantial effects. First, although SIAC uses closed material proceedings regularly, the SIAC Act 1997 allows this by providing that rules may make provision for closed material proceedings. Therefore, until these rules are passed, it is difficult for SIAC fully to consider applications for review of exclusion or citizenship decisions.

Secondly, these rules establish the obligations upon the Home Secretary when disclosing material following an application for a review of an exclusion or naturalisation decision. These disclosure obligations are slightly different from those attached to a conventional appeal, and new Rule 10B makes that distinction. The difference derives from the fact that applications for review are to be decided on the principles applicable in an application for judicial review, and therefore the duty of candour represents the correct approach to disclosure. By contrast, appeals to SIAC are merits-based. SIAC is not simply reviewing the Home Secretary’s decision; it is making its own. Therefore, in appeals, a fuller disclosure process is required.

Thirdly, your Lordships may wish to note Rule 29, which amends 2003’s Rule 40 to give the commission the power, where appropriate, to reinstate an appeal or application for review which had previously been struck out. This, I hope the Committee will agree, will benefit the interests of justice by ensuring that an appellant or claimant need not be punished for a failure to comply with SIAC’s rules when the failure is for a reason outside their control. Indeed, this amendment results from a judicial suggestion made by the president of SIAC in a recent judgment in a case known as R1—see paragraph 28 of the judgment in R1 dated 21 May 2013, which can be found on SIAC’s website.

There is a particular need to affirm these rules without delay, as until they take effect the new cases which SIAC will hear cannot be progressed to conclusion. That affects the 60 or so claimants whose pre-existing High Court challenges will be certified and terminated under the Justice and Security Act’s transitional powers but whose applications to SIAC cannot be fully considered without these new rules. I beg to move.

[Lord Lester of Herne Hill (LD)]

My Lords, this course is important and sensitive. I would like to give a little background to how SIAC came to be set up and involved in this way in this procedure. It happened because of a case called Chahal. Mr Chahal was a Sikh and suspected terrorist being sent back to India. Under the old three wise men procedure there was no proper judicial process to decide whether he should be sent back, so he brought a case in Strasbourg. The problem was how you reconcile justice and the needs of national security. In the Chahal case, the various NGOs that intervened mentioned that there was a Canadian process that allowed national security and justice to be reconciled by a procedure rather similar to what the House is now considering.

I then did two cases from the bad old days, one in which the then Secretary of State prevented women in the Royal Ulster Constabulary part-time reserve having their sex discrimination cases determined in Belfast on the basis that it involved national security and that in no circumstances could his certificate be set aside. The second one involved alleged Catholic discrimination in Northern Ireland, where another Secretary of State again sought to prevent the applicants having the merits of their cases reviewed.

The SIAC procedure of 1997 was Parliament’s decision at the time to apply something like the Canadian procedure to enable national security and justice to be properly weighed. I have one experience of SIAC from the distant past, when I represented a group of suspected terrorists, who later won their case—not through me—in Luxembourg. My experience then was very unhappy. I and they did not consider that the way it was dealt with by SIAC felt fair. But that was a long time ago and I am sure that lessons were learnt a long time ago. For my part, we are now concerned with not the controversial matters that plagued the House for so long when considering the Justice and Security Bill, but a perfectly sensible grafting on to the existing SIAC procedure of matters that clearly belong within SIAC under those procedures and nowhere else.

I recognise the compromises that are struck in these rules, one of which is where the Home Secretary—the Minister—decides to object to the disclosure of information to the claimant. My understanding is that there can then be a special advocate procedure to deal with that. That is a compromise that I reluctantly accept has to apply in this context. I hope, having said all that, that it provides a little more context to what we are talking about. For my part, I support the Motion before the Committee.

Judicial Appointments (Amendment) Order 2013

Debate between Lord Lester of Herne Hill and Lord McNally

Tuesday 19th November 2013 Grand Committee

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

My Lords, the order before us, if passed, will make fellows of the Chartered Institute of Legal Executives—CILEx—eligible for coroner appointments under the Coroners and Justice Act 2009. The order essentially has two main aims, which are complementary: to make coroner appointments potentially more diverse; and to increase the range of roles which CILEx fellows can perform, to include that of coroner.

The order will amend the Judicial Appointments Order 2008, made under Section 51 of the Tribunals, Courts and Enforcement Act 2007. In practical terms the order is the final part of the legislative package of reforms that the Government committed to when we implemented the coroner reforms in the Coroners and Justice Act 2009 earlier this year. As background, I hope it will be of use to explain how the 2009 and 2007 Acts work together to determine eligibility for coronial appointment.

Under the 2009 Act, a potential candidate must have met what is known as the “judicial appointment eligibility criteria” for at least five years. Under Sections 50 to 52 of the 2007 Act, this means that they have a relevant legal qualification and have gained experience in law for five years or more. In practice, the only people who meet the criteria are solicitors and barristers. Under Section 51 of the 2007 Act, the Lord Chancellor may extend the list of relevant qualifications that make someone eligible for a judicial appointment. The Judicial Appointments Order 2008 exercised that power and provided that CILEx fellows were eligible for various judicial posts, such as deputy district judge and judge of the First-tier Tribunal. These posts are set out in Schedule 1 to the 2008 order.

The 2013 order will amend the 2008 order simply by adding coroners to the list of roles for which CILEx fellows are eligible, so in future CILEx fellows will be considered to have a relevant qualification to be a coroner. The order is a continuation of the Government’s aim to increase the diversity of those who can apply for and hold judicial positions.

Sections 50 to 52 of the 2007 Act and the 2008 order have already removed some of the old barriers to judicial appointment. Coroners are appointed slightly differently from those holding other judicial appointments and in fact the process for appointing them has recently changed. It may be helpful if I take a moment to explain this and put it in the context of increasing diversity of appointments.

Under the Coroners Act 1988, coroners were appointed by their local authority, but then were free to appoint their own deputies and assistants. Now, under the 2009 Act, every coroner appointment is made by the relevant local authority. Every vacancy is advertised and every proposed appointment requires the consent of the Lord Chancellor and chief coroner.

The new system has only just been put in place. However, this new advertising and central scrutiny of all posts will increase the transparency of appointments. It will enable applications from a more diverse pool of people who may never have heard about a vacancy under the old system. Although the actual appointment process for coroners is different from other judicial ones, I think it has to be the case that the same principle of increasing diversity of applicants should apply to all these appointments.

Any changes to the 2008 order are not just the Government’s responsibility. They also require the approval of the Judicial Appointments Commission and the Lord Chief Justice. I can report that both have confirmed that they support our proposal. We have also sought stakeholders’ views on the policy behind this draft order. We did this in the spring as part of our consultation on implementing our proposed reforms to the coroner system under the 2009 Act.

Responses on this issue were split evenly between those who supported the proposal, those who did not, and those who expressed no view. CILEx itself was among those who welcomed the proposal, because of its potential to increase the diversity of coroners and competition for the role. Other respondents, including many coroners, worried that extending eligibility for coronial appointment could lower standards.

We published our response to the consultation in early July. To address concerns about lowering standards, we confirmed that we would be increasing eligibility only for applying for coroner roles. Our aim was to encourage suitable CILEx fellows to apply for coroners’ posts. However, their applications would subsequently be assessed against the same consistent and transparent criteria as those from solicitors and barristers. Appointments would be made purely on merit.

To put it simply, if a CILEx fellow applied and was the best candidate he or she would be appointed as coroner. If the fellow applied and the application was weak, he or she would not be appointed. Having made this clear, the consultation response reconfirmed our commitment to make the proposed change later in 2013.

Finally, this draft order also has the support of the chief coroner, His Honour Judge Peter Thornton QC. We are working closely with the chief coroner on the new coroner appointments system, as well as the implementation of the other recent changes in the system.

I hope that I have demonstrated the merits of the order before us today. It will permit those CILEx fellows who may be more than adequately skilled and experienced to, for the first time, apply for a coroner’s role. They will then be assessed to the same high and consistent standards as other applicants, to ensure that the best person gets the job. It is no more than what bereaved people deserve. I beg to move.

[Lord Lester of Herne Hill (LD)]

My Lords, I have always been in favour of widening the pool, as far as one can, for judicial appointments, provided that there are adequate safeguards. I am satisfied that there are adequate safeguards and I think that it is in the public interest if the pool of people can be widened in the way which my noble friend described.

Defamation (Operators of Websites) Regulations 2013

Debate between Lord Lester of Herne Hill and Lord McNally

Tuesday 19th November 2013 Grand Committee

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

My Lords, these regulations are made in exercise of the powers conferred on the Secretary of State for Justice by Section 5 of the Defamation Act 2013. Section 5 creates a new defence against an action for defamation for the operators of websites hosting user-generated content. Where an action in defamation is brought against a website operator in respect of such material the operator will not, however, be able to rely on that defence where the claimant shows: that he or she did not know who had posted the statement on the website; that he or she had complained to the operator about the statement in the proper way; and that the operator had failed to respond to that complaint in the way set out in these regulations.

The approach that we have taken in these regulations aims to support freedom of expression by allowing operators generally to retain the benefit of the defence without the need for material to be taken down where the person who has posted it co-operates with the process and wishes to stand by the material. In such a case the process will help to enable complainants to resolve their concerns with, or take action against, the poster of the allegedly defamatory material. Equally it will ensure that, to rely on the defence, an operator must remove the material complained about where the poster cannot be identified or is unwilling to engage in the process.

Informal views were sought on the contents of the process set out in the regulations from a range of key stakeholders including internet organisations, claimant and defendant representatives, media bodies and non-governmental organisations.

To benefit from the Section 5 defence, operators will be required to carry out prescribed actions within a short fixed time limit. A range of views was expressed by stakeholders on what time limits were appropriate. We consider that the approach we have taken strikes the right balance in ensuring that action is taken as promptly as possible, without placing unreasonable burdens on operators or denying posters a reasonable opportunity to engage with the process.

The time limits are subject to a general discretion, in the event of a defamation action being brought against the operator, for the court to waive any time limit if it considers that it is in the interests of justice to do so. That will ensure that the defence is not lost through, for example, an inadvertent or unavoidable failure by an operator to comply with a time limit if the court thinks that this would be unfair. The process is not compulsory, and operators can still choose either to remove a statement immediately on receipt of a complaint, or allow it to remain posted. An operator which takes either course of action can of course seek to rely on any other defences that may be available against a defamation action.

Noble Lords may find it helpful if I explain the process established by the regulations in detail. To trigger the process, a person complaining about a statement posted on an operator’s website must send the operator a notice of complaint. Regulation 2 and Section 5(6) of the Act set out the information that must be included in a notice of complaint.

These provisions require that the notice must state where on the website the statement was posted, set out what the statement says and explain why it is defamatory of the complainant, and explain what meaning the complainant attributes to the statement and what aspects he or she believes are factually inaccurate or are opinions not supported by fact. The notice must also confirm that the complainant does not have sufficient information about the poster to bring proceedings directly against him or her.

The complainant does not have to provide detailed evidence to support what is said, but the intention is that the poster should have sufficient information to reach an informed decision on how to respond. The complainant must also provide his or her name and an e-mail address at which he or she can be contacted, but can ask the operator not to provide this to the poster of the statement. These provisions were supported by a substantial majority of those who provided views on the content of the regulations.

Where the complainant does not provide all the required information, to retain the defence Regulation 4 provides that the operator must inform the complainant of this in writing within 48 hours of receipt of the notice of complaint, and must tell the complainant what is required for a notice to be valid. In common with other instances under the regulations where an operator is required to take action within 48 hours, this time period excludes non-business days such as weekends. The operator is not required to specify exactly what it considers is wrong with the notice that the complainant has sent. This avoids imposing any obligation on an operator to guide or advise the complainant. However, the guidance accompanying the regulations makes clear that operators can provide this information to the complainant if they wish to do so.

Paragraphs 2 to 4 of the Schedule to the regulations explain what an operator which wishes to rely on the defence must do on receipt of a valid notice of complaint. Paragraph 2 provides that the operator must contact the poster of the statement complained of within 48 hours and paragraph 4 provides that it must also inform the complainant that this has been done. If the operator has no means of contacting the poster by e-mail or another means of private electronic messaging, paragraph 3 of the Schedule to the regulations provides that, in order to retain the defence, the operator must remove the statement within 48 hours and must inform the complainant that this has been done.

Paragraph 2 of the Schedule sets out what information the operator has to provide to the poster to enable the poster to respond to the complaint. This includes a deadline for the poster to respond of midnight at the end of the fifth day after the day on which the operator sends the information to the poster. The operator must specify the calendar date on which the deadline expires and ask the poster within that time to confirm whether or not the poster wishes the statement to be removed from the website and, if not, to provide his or her name and postal address to the operator and confirm whether or not he or she consents to this information being released to the complainant.

Paragraphs 5, 6 and 7 of the Schedule deal respectively with situations where the poster fails to respond within the prescribed time period, where the poster responds but does not provide all the information requested, or where the poster agrees to the removal of the statement. In all these circumstances the operator is then required to remove the statement within 48 hours and to inform the complainant that this has been done. If the poster provides a name and postal address that a reasonable operator would consider to be obviously false, the operator is required to treat the response as not containing all the required information, and hence must remove the statement.

To ensure that the regulations operate effectively where the statement has already been removed before the operator is required to do so, paragraph 1 of the Schedule provides that in those circumstances the operator is taken to have complied with the relevant requirement.

If the poster indicates that he wishes the statement to remain on the website and provides the relevant contact details, paragraph 8 of the Schedule provides that the operator must inform the complainant within 48 hours that the statement has not been removed and, if the poster agrees, pass the poster’s contact details on to the complainant. If the poster does not agree to release his contact details, the operator must inform the complainant of this. Provided it has complied with these requirements, the operator will have a defence under Section 5 unless it can be shown that the operator acted with malice in relation to the posting of the statement concerned.

Where the poster has not consented to release of his or her contact details to the complainant, it will be a matter for the complainant to consider what further action he may wish to take. It will, for example, be open to the complainant to seek a court order, known as a Norwich Pharmacal order, for the operator to release the information that they hold on the poster’s identity and contact details so that legal proceedings can be brought against the poster.

Paragraph 9 of the Schedule provides further protection for complainants in circumstances where material has been removed following a notice of complaint, but the poster persists in reposting the same or substantially the same material on the same website. On the first such occasion, to keep the Section 5 defence the operator must follow the full process and seek the poster’s views. However, on being informed by the complainant that the poster has posted the same or substantially the same statement on two or more previous occasions, the operator is required to remove the statement within 48 hours of receiving the notice of complaint without seeking to contact the poster again.

We consider that this is a fair and proportionate approach which gives the poster an opportunity on a first reposting to engage with the process in circumstances where, for example, they were not aware of the original notice of complaint but which tackles persistent reposting by immediate removal.

I believe that the process established by the regulations strikes a fair balance between freedom of expression and the protection of reputation and between the interests of all those involved, and that it will provide a useful and effective means of helping to resolve disputes over online material. I therefore commend these draft regulations and I beg to move.

[Lord Lester of Herne Hill (LD)]

My Lords, we should be very grateful to my noble friend for a very full explanation of what he seeks to be approved today. It sounds dry and technical but, in fact, although I do not say that my noble friend Lord McNally is like Moses in the splendid portrait, bringing down the tables of the law to the Israelites, in seeking the approval of the House to the regulations what he is doing is important not only in this country but throughout Europe and in the wider world.

We are trying in the regulations to lay down a fair framework, as my noble friend said, which will provide effective remedies to victims without unduly burdening the freedom of speech. If he will allow me to say so—he has little choice—I remember him at an early stage insisting that the Defamation Bill should cover the difficult subject of defamation via the internet. That was an important decision taken by him, however difficult it was to give effect to it. It was important because we had no proper laws in this country striking a fair balance between free speech and defamation in relation to the internet. The regulations are part of the process which, I understand, will come into force in April. They will be read with interest in the United States, on the most libertarian side, and in China, on the most restrictive.

Defamation Bill

Debate between Lord Lester of Herne Hill and Lord McNally

Tuesday 23rd April 2013 Lords Chamber

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

My Lords, Amendments 1, 15 and 16 constitute a partial enactment in statute of a number of the recommendations made by Lord Justice Leveson in his report on the culture, practices and ethics of the press. The reasons given by the other place for disagreeing with these amendments reflect the fact that, as the House will be aware, on 18 March cross-party talks were resolved successfully and a draft royal charter was agreed as the vehicle by which the recognition body should be set up.

Detailed criteria by which self-regulators would be assessed were also agreed, and provisions to enact Lord Justice Leveson’s recommendations on incentives in costs and exemplary damages have subsequently been included in the Crime and Courts Bill. A further “no change” clause has also been included in the Enterprise and Regulatory Reform Bill as a safeguard against political intervention with the royal charter. These measures have cross-party support.

I take this opportunity to address an issue that I know is of concern to the noble Lord, Lord Puttnam, on how provisions are being taken forward to provide access to justice and cost protection for those of limited means. It may be helpful to provide the House with an update on the action we are taking. As noble Lords are aware, we asked the Civil Justice Council to report on the issue of cost protection by the end of March. It has done so, and recommended that the regime of qualified one-way cost shifting, or QOCS, should be adapted to defamation and privacy cases. A number of adaptations are necessary, given the rather different nature and variety of defamation and privacy proceedings compared with personal injury claims. We are now considering the CJC report, and as your Lordships will appreciate this is quite a complex area. While the report does not represent a blueprint of the new rules to be applied, it does set out the issues that need to be addressed, and makes recommendations on how to address them.

It will be for the Civil Procedure Rule Committee to make the rules on costs protection in due course, once the Government have set out the way forward. My officials will work with the Committee on this. I am conscious that the CJC has not consulted on this issue, and I believe that we need to consult before we finalise the proposals. Our aim is therefore to work with the Rule Committee in drafting appropriate rules, perhaps with alternatives, on which we can consult more widely over the summer.

I know that the noble Lord, Lord Puttnam, will be interested in that consultation, and I will ensure that he and other noble Lords with an interest in this area are included in the consultation. Depending on the outcome of that consultation, we then aim to implement a costs protection regime later in the year.

I hope that provides reassurances to the noble Lord, Lord Puttnam, and to others, about the promises I have made about cost protection at various stages of the Bill. During our debate on the Crime and Courts Bill provisions on 25 March, both the noble Lord, Lord Puttnam, and the noble and learned Lord, Lord Mackay of Clashfern, indicated that they were happy for the Bill to complete its passage without Amendments 1, 15 and 16. I hope that remains the case, and that noble Lords will agree to the removal of these amendments. I beg to move.

[Lord Lester of Herne Hill]

My Lords, first I would say that we often refer to Fox’s Libel Act. I hope that when this Bill becomes law it will be referred to as Lord McNally’s Libel Act, because he above all has had the energy to drive it forward. He said at one stage that he would not allow the Bill to be overwhelmed by what he called the tsunami of Leveson. The reason why I strongly support Motion A is because it provides a way of avoiding being overwhelmed by the tsunami of Leveson. It removes what I consider to be unnecessary hostage-taking in some amendments to the Defamation Bill. It has now been freed in the Commons, and therefore I strongly support it. I have some difficulty with the reason, in a sense, because it says that,

“the draft Royal Charter … and … the Crime and Courts Bill and the Enterprise and Regulatory Reform Bill will be sufficient to implement the recommendations in Lord Justice Leveson’s report”.

I think that is completely true. Whether Lord Justice Leveson’s report will eventually pass muster is quite another question, but that is not to be debated now.

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[Lord Lester of Herne Hill]

I am grateful to my noble friend. Although my noble friend is not a lawyer, and has the great advantage of not being a lawyer, would he agree with me as a matter of common sense, that it cannot make the slightest difference whether it is the prison department or a private contractor managing the prison so far as the Derbyshire principle is concerned, because the Human Rights Act makes that quite clear?

[Lord McNally]

I have no doubt that my noble friend is right. What I would prefer to do, as we have been arguing throughout this, is to leave that matter to a judge and a court, when it comes before it. Where I do think there is a relevant question—not that my noble friend’s question was not relevant, it is just that I did not want to answer it—is on the question of charities. I can confirm to my noble friend Lord Phillips that it is not our intention to catch charities. We think that it is very unlikely that a court would find that a charity was a body trading for profit. There is a clear distinction between trading for profit and simply making a profit to reinvest as part of the more general purposes of the organisation. I hope that will give comfort to my noble friend.

He was another one that was concerned about bullying, and I have just made the point about balancing. I was pleased to hear about Bill McNally, not least that he was a successful poacher.

The points made by the noble Lords, Lord Bew and Lord Lester, about Northern Ireland are worrying, and I will take up the point about whether there can be some cross-party demarche to our fellow parliamentarians in the Northern Ireland Assembly, because it would be a great pity if Northern Ireland were to be out of step on this.

I understand why I am being asked to make definitions. However, the fault lines are moving and we will have to trust the courts with this strengthened Bill for them to make the right decision in this area. I take the point made by the noble Lord, which is very valid. Although I and Parliament have made clear our desire for a direction of travel here, there is a danger that the Derbyshire principle may be eroded because of this new configuration. However, trying to put the Derbyshire principle into statute at this time is not the way forward. The common law can be trusted to develop in the right direction. As I have said previously, no law on earth can prevent a speculatively threatening letter from a solicitor.

The Bill has been the work of many hands. If a piece of legislation were to be subject to a paternity test and DNA testing, this Bill’s DNA would be far more likely to be that of my noble friend Lord Lester than me. However, I have enjoyed—I think that that is the right word—taking the Bill through with the help of many hands and some very constructive contributions. I hope that the House’s last and most constructive contribution will be to accept the Government’s amendment and reject the amendment in the name of the noble Baroness, Lady Hayter.

[Baroness Hayter of Kentish Town]

My Lords, I am grateful to the Minister for making reference to my noble friend Lord Browne of Ladyton, who has just talked about surrogate parentage. Perhaps we can all claim a little of that. However, the contributions of the noble Lords, Lord May of Oxford, Lord Lester of Herne Hill, Lord Bew, Lord Faulks and Lord Phillips of Sudbury, and the noble Viscount, Lord Colville, actually reflected what was going on in Committee and on Report. The Minister used the tactful words, “development of thinking”; we are therefore not going to talk about u-turns, but simply welcome the development of thinking behind the new government clause.

I thank the noble Lord, Lord Bew. It sounds as if Northern Ireland in itself is a bad example, let alone the suggestion that this House or Parliament should make our laws on the basis of something decided in that Province. No matter how important that Province is, that is not the right way to make our laws here.

As regards two further issues, the first was on whether permission should be sought by corporates before they start an action. I am sure that the noble Lord, Lord Lester of Herne Hill, made a slip of the tongue, for which he is not renowned, when he said that in order to bring an action, companies would have to show serious financial loss. Of course, that is not right with the Bill at the moment. Corporates do not have to show financial loss in order to bring an action, but only to succeed in one. That is the crux of the matter in terms of whether permission should be given before they are able to start an action.

Defamation Bill

Debate between Lord Lester of Herne Hill and Lord McNally

Tuesday 5th February 2013 Lords Chamber

[Lord Browne of Ladyton]

I support of this amendment and do so by adopting the argument put forward by the noble Lord, Lord Lester of Herne Hill, which, I think, in turn adopts what I described as the compelling argument put forward by the noble and learned Lord, Lord Lloyd of Berwick, in Grand Committee on 19 December at col. GC 522. I commend the recommendation of the noble Lord, Lord Lester, to the Minister.

In rereading the debate in Grand Committee, I am reminded that he offered a very similar opportunity to the Minister on that occasion, which the Minister scorned. I think that the noble and learned Lord, Lord Lloyd of Berwick, was awaiting the letter that became the letter of 9 January 2013. I recollect that in col. GC 528 in the same debate the noble Lord, Lord Ahmad, indicated that he might be able, in the same vein as was suggested by the noble Lord, Lord Lester, to give the comfort that the noble and learned Lord was seeking. I have to say—this should not surprise anybody—that we were all, I think, persuaded by the noble and learned Lord’s argument in relation to Telnikoff and why it should not still be considered to be the law in the same circumstances. I hope that the Minister will be able to respond to the opportunity that he has on this occasion to resolve this issue once and for all.

[Lord McNally]

My Lords, I indeed hope that this will be resolved once and for all. If my noble friend is going to withdraw under the temptation that the noble and learned Lord, Lord Lloyd, can bring this back at Third Reading, I would rather that he tested the opinion of the House. I will try to make as clear as possible on the record the Government’s opinion on this, but I cannot start trying to rerun 20 year-old legal battles.

Clause 3 provides for the honest opinion defence to be available if three conditions are met. Amendment 5 provides that the second condition in subsection (3)— that the statement complained of indicated, whether in general or specific terms, the basis of the opinion—is met if the defendant indicates the subject matter of a letter or article appearing in a newspaper or other publication and the date when it appeared.

On the basis of our discussions with the noble and learned Lord, Lord Lloyd, on whose behalf my noble friend is speaking this evening, we understand that the core issue underlying the amendment relates to what should be taken into account in determining whether the statement complained of is one of fact or opinion. We consider that this goes to the first condition in Clause 3(2)—that the statement complained of was one of opinion—rather than to the second condition in subsection (3).

At common law, when deciding whether a statement is one of fact or opinion, the court can look at the statement only in its immediate context. So if the statement appears in a news story or in a letter to an editor, the court can look only at the particular news story or the particular letter. The intention behind Amendment 5 is to change this so that the court can also look at other documents that provide a context for the statement.

This is a difficult issue, as is evidenced by the varying judicial opinions that were expressed when this was considered by the Court of Appeal and the House of Lords some 20 years ago in the case of Telnikoff v Matusevitch, to which my noble friend has referred. However, on balance, and with the greatest respect to the noble and learned Lord, Lord Lloyd of Berwick, the Government believe that the current law is in the right place. We consider that it should be clear from the document in which the statement appears that the author is expressing an opinion, otherwise a reader cannot know that there is a judgment to be made. They must be entitled to accept as a fact something that is presented as a fact. It follows from this that we cannot accept Amendment 5. Although the Bill abolishes the common law, we can see no reason why the courts would depart from the current approach.

As I have said, a defendant who satisfies the first condition that the statement is one of opinion must also satisfy the second condition that the statement must indicate, whether in general or specific terms, the basis of the opinion. Amendment 4 would replace the word “basis” with the words “subject matter”. The provisions in the Bill reflect the test approved by the Supreme Court in Spiller v Joseph that,

“the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based”.

We consider that the word “basis” more accurately captures the essence of that test.

I hope that, on that basis, not only will the noble Lord withdraw this amendment, but that when the noble and learned Lord, Lord Lloyd of Berwick, returns to these shores and reads Hansard, he will accept that he has had a good run for his money but that this is where the Government’s view is and where it will remain.

[Lord Lester of Herne Hill]

I am grateful to the Minister for his reply. The further the Bill proceeds through this House, the more I am convinced that he would have made a superb Queen’s Counsel. Maybe as a result of his experience, that will be his next career.

I have no idea whether the noble and learned Lord, Lord Lloyd of Berwick, will be satisfied by the Minister’s answer. I cannot control or fetter him in any way. As I understand it, the Government’s position is that the second condition—

“that the statement complained of indicated, whether in general or specific terms, the basis of the opinion”—

was based on the judgment of the noble and learned Lord, Lord Phillips of Worth Matravers, in Spiller v Joseph, in which he held that it is not a prerequisite of the defence that readers should be in a position to evaluate the comment for themselves. My understanding is that the Government’s position is that Clause 3(3) has been prepared on that basis, and that the amendment of the noble and learned Lord, Lord Lloyd, is therefore unnecessary.

I see the Minister nodding. I hope that the ministerial nod, which I now record in Hansard, will cause the noble and learned Lord, Lord Lloyd of Berwick, to treat it as sufficient for his purposes and for those of Pepper v Hart. On that basis, I beg leave to withdraw the amendment.

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[Lord McNally]

My Lords, I am grateful to the contributors to the debate. The noble Lord, Lord Taverne, expressed the concerns of Sense about Science, and the noble Baroness, Lady Bakewell, spoke on behalf of, or was briefed by, PEN. These are organisations that I have listened to, and have had contact and dialogue with, throughout the two years’ gestation of the Bill. My aim remains to get as close as possible to the aspirations of those organisations. I suspect that in the end they will still say that we have fallen short but, particularly in Clause 4, we have tried to move in a direction that makes the law better and clearer. I am grateful to the noble Lord, Lord Browne, for his comment on our work on recasting it.

Amendment 8 is a government amendment that owes its authorship to the noble Lord. I am grateful for that and I hope that our acceptance of it is a demonstration of my willingness to listen as the Bill has proceeded. Our amendment provides for the court to have regard to all the circumstances of the case in deciding whether the requirements for the public interest defence under Clause 4 to be satisfied have been met. This amendment responds to concerns raised by the noble Lord, Lord Browne, in Committee that following government amendments to Clause 4 which, among other things, removed the list of factors for the courts to consider, there was a risk that the courts would simply invent a new checklist in interpreting and applying the new defence—a point made by the noble Lord, Lord Taverne.

In the context of that debate, I indicated that we did not believe that a provision requiring the court to consider all the circumstances was strictly necessary, because the courts would do this in any event. I also indicated that in developing a body of case law the courts may inevitably decide that particular factors are relevant in determining whether the defence has been established in a case. That remains our view. However, on reflection, I believe that it would be helpful to send a signal to the courts and practitioners to make clear the wish of Parliament that the new defence should be applied in as flexible a way as possible in light of the circumstances.

Amendments 6 and 7 would change the second limb of the test for establishing the public interest defence under Clause 4, whereby it would be satisfied if the defendant could show that he could reasonably have decided that publishing the statement was in the public interest, rather than that he reasonably believed that that was the case. This is intended to make the test more objective, as noble Lords have indicated. It reflects concern that the provision as currently drafted could lead to claimants seeking to introduce arguments relating to the defendant’s motive, which the courts have indicated is not relevant in relation to the common-law defence. While a claimant might seek to introduce arguments about the defendant’s motive, given the strong signal given by the courts in cases such as Flood to the effect that such considerations are usually irrelevant, we think it highly unlikely that the courts would entertain them.

Let me say here—the noble Lord, Lord Browne, has indicated that he is listening carefully to this—that my absolute intention is for this part of the legislation to embrace and reflect Flood. We are concerned that adopting the wording of the amendment could shift the focus more towards what a hypothetical defendant might have known or what steps they might have taken. This would not reflect the Flood judgment. In Flood, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said that the courts were examining whatever the defendant,

“knew (and did not know) and whatever they had done (and had not done)”.

To paraphrase, the courts have to focus on what the defendant’s state of knowledge was and what steps they took prior to publication. We consider that the current wording in Clause 4(1) better captures this test and better reflects Flood.

[Lord Lester of Herne Hill]

Perhaps the Minister could be referred by his officials to what the noble and learned Lord, Lord Brown, actually said in paragraph 113 of the judgment, where he said that there was a single question, which was,

“could whoever published the defamation, given whatever they knew (and did not know) and whatever they had done (and had not done) to guard so far as possible against the publication of untrue defamatory material, properly have considered the publication in question to be in the public interest?”.

As I read that, it is very close to Amendment 6. I mention it because this is a question purely of what was meant, as the noble Lord, Lord Browne, indicated.

[Lord McNally]

I shall certainly draw that intervention to the attention of my officials. My briefing poses the question: does the new reasonable belief test reflect the current law or change it? It then goes on to say that our intention is to reflect the current law as articulated in cases such as Flood and we believe that it does so. It states that the test draws in particular on the way in which the noble and learned Lord, Lord Brown, approached the question in Flood. It then quotes exactly the same section of the judgment. As an innocent in this jungle of legal jargon and judgments, it does not surprise me that two sides of the case should quote the same judgment. We think that we have got it right and that what we have reflects the view of the noble and learned Lord, Lord Brown. We were doubly blessed in our Committee because we had both the noble Lord, Lord Browne, and the noble and learned Lord, Lord Brown, to give us wise legal advice. It is interesting that, in anticipating a question on that, my briefing should draw on exactly the same quote from the noble and learned Lord, Lord Brown, to defend what we have done as my noble friend Lord Lester claims for his amendment.

On Amendment 9, my noble friend Lord Phillips joined my noble friend Lord Lester in general castigation, and the noble Lord, Lord Browne, gave them some qualified support. I have warned my noble friends to be wary of qualified support from the noble Lord, Lord Browne; it leads them only into bad ways.

The amendment would remove Clause 4(2), which deals with reportage. “Reportage” has been described by the courts as,

“a convenient word to describe the neutral reporting of attributed allegations rather than their adoption by the newspaper”.

Subsection (2) is intended to catch the core elements of reportage as articulated by the courts. These are that where the defendant publishes an accurate and impartial account of a dispute between two or more parties, the defendant does not need to have verified the information reported before publication. This would not, however, absolve the defendant from the need to satisfy the court that, in all the other circumstances of the case, it was reasonable to believe that the publication was in the public interest.

Defamation Bill

Debate between Lord Lester of Herne Hill and Lord McNally

Thursday 17th January 2013 Grand Committee

[Lord McNally]

My Lords, as an afterthought on my noble friend Lord Mawhinney’s approach to amendments, I can confirm that officials do wonderful work. However, his approach also reminds me of a story that the noble Lord, Lord Healey, told. When he was Minister of Defence, a man came to him with a solution to the Russian submarine menace: you boil the North Sea, and when the water has evaporated you can see where the submarines are on the seabed. Denis said to the man, “That’s fine, but how do I boil the North Sea?”. The man said, “Look, Mr Healey, I’ve had a good idea. Surely you and your officials should work out the practicalities”. That is just a passing thought.

I understand why the amendment has been tabled. I hope that my reply will clarify matters; I am not sure, given the presence of some very informed noble and learned friends. What I say at this Dispatch Box is of assistance to judges and courts when they make such decisions. I think so anyway, as a non-lawyer. Is it called Pepper v Hart? You see, I am learning on the job here.

Clause 7(4) extends the provision in paragraphs 9 and 10 of Schedule 1 to the Defamation Act 1996 on qualified privilege attaching to information published by legislatures, Governments and authorities exercising government functions. The changes ensure that the provisions also cover fair and accurate summaries of material and that the scope of the defence is extended to the relevant publications no matter where in the world they occur.

Amendment 39A amends the definition of governmental functions used in subsection (4) and in the 1996 Act to include a reference to local authorities as well as to police functions. We do not believe that this is necessary. We consider that local authorities are already covered by the reference to,

“any authority performing governmental functions”.

The Defamation Act 1952 covered information published,

“by or on behalf of any government department, officer of state, local authority, or chief officer of police”.

The 1996 Act was intended to extend this coverage. We are in no doubt that the reference to,

“any authority performing governmental functions”,

should be read as embracing the specific bodies referred to in the 1952 Act.

There is no indication that the absence of a specific reference to local authorities has caused any difficulty in practice. However, to take the specific point, we also believe that the devolved administrations would fall within the term “legislature”, which is used in the amendment to the 1996 Act made by subsection (4) of Clause 7 and elsewhere in relation to qualified privilege.

[Lord Lester of Herne Hill]

My Lords, am I in order in speaking?

[Lord McNally]

Probably not, but I will defer to the chairman.

[The Deputy Chairman of Committees]

It is unusual to speak after the Minister, but there is nothing to prevent any noble Lord speaking.

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[Lord McNally]

I doubt that. We are moving the extra line to where a company has made a decision to change its auditors, which will be reported to the members of the company. There may be a number of reasons for that, but the report will be suitable for the annual general meeting, and other issues, personal or related to performance, may be covered by it. As I have said, in a number of these areas, we are drawing lines. Where there is a relationship between a company and its auditors, I just wonder whether it would be entirely conducive to good working relations between them if a reason for dismissal which was extremely damaging to the auditors was privileged in this way.

[Lord Lester of Herne Hill]

My Lords, I am sorry to say that I cannot understand that. We are dealing with a public listed company; we are dealing with the resignation or removal of directors, which is a very serious step; we are dealing with qualified privilege, quite rightly, to give a fair and accurate report of that. The auditors are officers of the company performing a vital role. If they are mixed up with some wrongdoing that needs to be reported, we are dealing not with some private, contractual, sensitive matter, but with what is in the report to the shareholders about the public listed company. That is already there. I cannot therefore see any good reason for not including the auditors in that. It is nothing to do with an ordinary, private commercial relationship, so I agree with the noble Lord, Lord Browne.

[Lord McNally]

I am Daniel in the lion’s den here. I will certainly look at—

[Lord McNally]

I will reflect on that but I am also very concerned and do not want to enter a field regarding the professional relationship between auditors—or, perhaps I may respectfully suggest, lawyers—and companies, where there is a barn door left open. I understand, as indicated by the noble Lord, Lord Browne, that the intention of the proposal is to give protection. I am willing to reflect on whether where we have drawn the line is exactly right, and I will listen to expert opinion in this Committee. As a layman, I also feel a slight tingle between the shoulder blades about where we are going in terms of the relationship of professions such as auditors and lawyers with their clients. I, too, would like advice on these matters.

[Lord Lester of Herne Hill]

We are not supporting the amendment. We are urging the Government to accept that the amendment is not necessary because the matter is well within its scope.

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[Lord McNally]

My Lords, just to give some sense of momentum on this, I can tell your Lordships that the Joint Committee that has been established on parliamentary privilege is asked to report by 25 April 2013.

I listened carefully to what my noble friend said. As always, he made an extremely well informed and well researched contribution, but can I just put to the Committee a political reality? We are dealing with probably one of the most sensitive areas of the functioning of our parliamentary democracy; that is, parliamentary privilege. There is not a snowball’s chance in hell of the Houses of Parliament in an area, which is so sensitive and so important, allowing this Committee and this Bill to make decisions which go ahead of what the Joint Committee is going to do.

As the Government’s Green Paper pointed out, the point of parliamentary privilege is not defamation or what is published in the newspapers; it is the right of Members of Parliament to conduct their business in Parliament. That is why parliamentarians are so careful and so jealous about how we should handle this.

Therefore, I am sorry to say that I can give my noble friend no other response than the one that I gave to the noble Lord, Lord Mawhinney: that the Joint Committee is now in being. Certainly, my noble friend’s contribution today will be well worth reading by that committee, but it is a matter for that committee and I urge my noble friend to withdraw his amendment.

[Lord Lester of Herne Hill]

I am grateful. I learnt this appalling word from Europe, comitology, which is the study of committees, and I have gone too much into the past committees. Although I am not surprised by the Minister’s reply, I am deeply disappointed by it, because what my amendments seek to do is extraordinarily important but modest. The first would clarify the 1840 Act on a completely non-controversial issue so far as that Act, which is all about reporting proceedings in Parliament, is concerned. The second amendment would remove what everyone has always agreed was a gross anomaly. We apparently will have to wait for yet another committee to look at this, but I am liable to return to it on Report, because I am not satisfied by the stonewalling. On that basis, I beg leave to withdraw the amendment.

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[Lord Lester of Herne Hill]

I shall explain in case I was not clear. I was trying to say that all the defences—the requirement of serious harm, the public interest defence, qualified privilege—will be able to be used as a shield against an unscrupulous claimant, and the double actionability rule would require that too.

[Lord McNally]

Noted.

Defamation Bill

Debate between Lord Lester of Herne Hill and Lord McNally

Wednesday 19th December 2012 Grand Committee

[Lord McNally]

My Lords, when both the noble Lord, Lord Browne, and the noble Lord, Lord Lester, tell me that we are getting this matter wrong, I have to think very hard. However, I shall respond to it and then provide some further thoughts.

Amendment 19 is a government amendment and is grouped with Amendments 18 and 20, as we have heard. Amendment 19 makes drafting changes to bring the provisions on reportage, which were previously in subsections (3) and (4) of the clause, into one subsection in order to improve the overall clarity of the clause. It makes changes to refer to the test of “reasonable belief”, to which I spoke in the previous group of amendments.

“Reportage” has been described by the courts as,

“a convenient word to describe the neutral reporting of attributed allegations rather than their adoption by the newspaper”.

Clause 4 is intended to catch the core elements of reportage as articulated by the courts. These are that where the defendant publishes an accurate and impartial account of a dispute between two or more parties, the defendant does not need to have verified the information reported before publication. This would not, however, absolve the defendant from the need to satisfy the court that, in all the other circumstances of the case, it was reasonable to believe that the publication was in the public interest.

Amendment 18 would remove the provisions relating to reportage. Conversely, Amendment 20 would extend their application. We do not consider that removal of the reportage provision altogether would be desirable, as is proposed by my noble friend Lord Lester in his amendment. As I indicated in speaking to Amendment 14 in the previous group of amendments, for the operation of Clause 4 generally, in assessing the reasonableness of the defendant’s belief that publication was in the public interest, the court will be looking at the conduct of the publisher. Often that will include examination of the steps the publisher took to verify the information. We would not want the clause’s silence on the matter to suggest that there may in future be a need to verify in reportage cases whereas now there is not.

However, nor do the Government think it right to extend reportage more widely, as is proposed by the noble Lord, Lord Browne, in Amendment 20. We consider that it should, as now, be limited to circumstances where the claimant is a party to the dispute. The reason that we adopted this approach is because if the claimant is a party, for the account to be “accurate and impartial”, his side of the story would be likely to have been reflected in the published article. On the other hand, where the claimant is not a party, that would not necessarily be the case. We believe, on balance, that where the claimant is a third party, the defendant should have to satisfy the court that in all the circumstances of the case it was reasonable to believe that publication was in the public interest. This should properly include consideration of steps taken to verify, should the court decide that is relevant. That point was made latterly by my noble friend. On this basis I hope that the noble Lord will be prepared to withdraw his amendment.

I am not sure which noble Lords made the accusations that the amendment will cause confusion, is unnecessary because the common law is already developing or overly restrictive, but I shall look at those criticisms. I hope that my noble friend will withdraw his amendment and that he and the noble Lord will allow the government amendment to stand. I will look very carefully at this amendment, and the points that have been made. I give an assurance that I will take another look between now and Report.

[Lord Lester of Herne Hill]

My Lords, I am grateful to the Minister for his explanation. The criteria in Clause 4, as it now stands, are objective public interest and reasonable belief, and I simply do not understand why those criteria are not sufficient to deal with reportage publication, as with any other publication. I am not clear as to what we are trying to save by putting these words in and I quite understand the point of view of the noble Lord, Lord Browne, which does accord with developing common law. All of this is unnecessary and I enthusiastically withdraw my amendment, knowing that all this will be thought about during the Christmas holiday of the noble Lord, Lord McNally.

Defamation Bill

Debate between Lord Lester of Herne Hill and Lord McNally

Monday 17th December 2012 Grand Committee

[Lord Lester of Herne Hill]

I was not going to speak until I heard the noble Lord, Lord May, just now. He is identifying one of the main problems that the Bill is designed to tackle—it arises in the other parts of the Bill—on the way one approaches the defence of truth, honest opinion and privilege. The Bill seeks to take care of all of those. The cost matters are being dealt with separately and are very important.

All we are concerned with here is the initial hurdle to get rid of the trivial cases. We must not set the hurdle too high, because that would be unfair to claimants; nor too low, because that would be unfair to publishers. My own view is that one word in the English language is better than three. For that reason, I hope that the Government will stick to “serious” rather than giving the judges the headache of deciding how “serious” differs from “substantial”. They are perfectly capable, it seems to me, of interpreting an ordinary word in the English language. In that respect, I agree with my noble friend Lord Faulks.

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

My Lords, I shall begin with my usual disclaimer. I am not a lawyer. As I often say about my friends in this House who are lawyers, we are in their debt because if we had to pay them we could not afford them. We get the benefit of considerable legal expertise. The only problem is that it does not always point in the same direction. Nevertheless, it is welcome—as is the approach of the various groups that have become involved in this Bill. I pay tribute to my colleague and noble friend Lord Lester, who launched us on this path with his Private Member’s Bill, and the noble Lord, Lord Mawhinney, and his group, who in the pre-legislative scrutiny committee were extremely thorough. I also pay tribute to the Opposition, who played a very constructive role, and the various lobby groups that have come in. As has been said, it is a task of achieving balance.

I am grateful for the comments made about my own attitude. I take the view, particularly on this Bill, of President Harry Truman, who when asked whether the Marshall plan should be called the Marshall plan or the Truman plan said that it should be called the Marshall plan, as it is amazing how far you will get if you share a little of the credit.

I want to share the credit because my sole aim and intention in taking this Bill through is to leave us with a piece of useful legislation which will address some of the problems to which the noble Lord, Lord May of Oxford, has just referred of us having an unwelcome reputation for libel tourism, and to address some of the unfairness of costs.

As my noble friend Lord Lester indicated, we will be returning to this matter but I draw the Committee’s attention to my letter of 10 October, which is in the Library of the House and informs noble Lords that we were referring the matter of costs to the Civil Justice Council, an independent advisory body chaired by the Master of the Rolls, to advise us on this matter by the end of March 2013. As Members of the Committee may have noticed, the Government have subsequently announced that they have accepted Lord Justice Leveson’s recommendation that cost protection should be extended to defamation and privacy cases. Therefore, one of the matters which has been commented on most often, costs, is being addressed as this Bill moves forward. Whether we get the balance right is a matter for—

--- Later in debate ---

[Lord Lester of Herne Hill]

Most of what the Minister has said is extremely persuasive, and certainly his criticism of Amendment 8, to which I have added my name, is understandable. With reference to Amendment 4, which is much less detailed, if, instead of just saying,

“unless its publication has caused substantial financial loss”,

it said, “has caused or is likely to cause substantial financial loss”, whereby the proposed new clause would read,

“The Statement is not defamatory”,

and so on, that would do little more than restate the existing common law. Would the noble Lord and his team consider something that would set out in the Bill the actual common law position without debarring corporations or creating new hurdles for them?

[Lord McNally]

Once again I shall use my ultimate defence: I am not a lawyer, so I am not going to say yes on the hoof. I also wonder whether the words “substantial financial loss” covers reputation, as was referred to by my noble friend Lord Phillips. However, as I have said throughout our debate, I am listening. When I go back to the Ministry of Justice, I will certainly sit down with my officials and talk about the points that have been made and ask whether any of them can substantially help what is still my objective, which is to deal with the real problems such as those that have been set out by the noble Lord, Lord May, and other noble Lords. These represent evidence of how, on the one hand, corporations can bully, intimidate and chill, while, on the other, they may have reputations that can and should be defended. That is the balance that we seek to strike. I will look at what my noble friend has suggested, and I look to my noble friend Lord Mawhinney to retain his scepticism, but to withdraw his amendment.

Crime and Courts Bill [HL]

Debate between Lord Lester of Herne Hill and Lord McNally

Monday 10th December 2012 Lords Chamber

[Lord Lester of Herne Hill]

My Lords—

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

My Lords, I wonder if my noble friend will give way. I want to intervene now because what I am going to say will help the shape of the debate. I realise that my noble friend and a number of noble and learned Lords may wish to contribute. I in no way want to cut short or pre-empt that debate, but I hope that my comments will establish the context for them to comment on what the Government intend to do.

As the noble Lord, Lord Pannick, told us, we considered a similar amendment to this in Committee in July. I said that the Government were sympathetic to the concerns raised about the offence of scandalising the judiciary but we wished to consider the issue further and to consult others. In particular, before moving to reform or abolish this offence, we wished to consider whether such a step could result in a gap in the law or have an unwanted side-effect.

As the noble Lord, Lord Pannick, told us, in this we had the benefit of the work of the Law Commission, which was and is currently reviewing the law on contempt of court. As the noble Lord said, it kindly brought forward the element of its review considering scandalising the court and published a paper for public consultation in August. The commission considered three options in its consultation paper—to retain, abolish or replace the offence—and it has concluded that the offence should be abolished without replacement. Its analysis was in-depth, examining the human rights aspects and considering the arguments for and against the various options.

The consultation closed in October, and the commission published a summary of responses last month and a summary of its conclusions yesterday. I was pleased to see that several noble Lords responded with their views, and that members of the judiciary and other legal professions were also well represented. Of 46 responses, some from organisations, 32 were in favour of abolition. The remainder expressed a variety of views, most favouring a replacement offence, but I note that only two favoured retaining the offence in England and Wales, at least for now.

We have also noted other views, such as those expressed by noble Lords in Committee, and have concluded that it is right that this offence should be abolished. We therefore support the amendment. However, we also noted the Law Commission’s observation in its paper that:

“It may be necessary to clarify that the abolition of this offence does not affect liability for behaviour in court or conduct that may prejudice or impede particular proceedings”.

We support that view that abuse of a judge in the face of the court, or behaviour that otherwise interferes with particular proceedings, should remain a contempt. The new clause includes a provision that will ensure such behaviour will remain subject to proceedings for contempt of court.

In contrast to the amendment we debated in Committee, which extended to Northern Ireland, this amendment applies to England and Wales only, as the noble Lord, Lord Pannick, explained. In July, I said that we would be consulting the devolved Administrations; noble Lords must remember the criminal law is a devolved matter in both Northern Ireland and Scotland. Scandalising the judiciary is also a common law offence in Northern Ireland. As I have said, we consulted with the Minister of Justice, David Ford, who has confirmed that he does not wish the Westminster Parliament to legislate on behalf of the Northern Ireland Assembly on this offence. Similarly, the Scottish Government have also confirmed that they do not wish us to legislate on their similar common law offence of murmuring judges. Given that this is a devolved matter in both jurisdictions and under the terms of the Sewel Convention, we wish to respect the wishes of the Scottish Government and Northern Ireland Assembly in this matter.

I am grateful to my noble friend Lord Lester and the noble Lord, Lord Pannick, for bringing this matter before the House. The Government are happy to support this amendment, and through it the abolition in England and Wales of the offence of scandalising the judiciary. I hope that my intervention at the start of the debate does not prevent other noble Lords and noble and learned Lords from making observations on where we are and where we are going.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Lester of Herne Hill and Lord McNally

Monday 23rd April 2012 Lords Chamber

[Lord Lester of Herne Hill]

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

The amendment begins:

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

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

The amendment goes on:

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

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

[Lord McNally]

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

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

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

I think noble Lords have exercised that procedure today.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Lester of Herne Hill and Lord McNally

Tuesday 27th March 2012 Lords Chamber

[Lord McNally]

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

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

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

[Lord Lester of Herne Hill]

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

[Lord McNally]

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

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

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Lester of Herne Hill and Lord McNally

Wednesday 1st February 2012 Lords Chamber

[Lord McNally]

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

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

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

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

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

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

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

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

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

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

[Lord Lester of Herne Hill]

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

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Lester of Herne Hill and Lord McNally

Tuesday 20th December 2011 Lords Chamber

[Lord Lester of Herne Hill]

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

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

[Lord McNally]

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

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

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

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

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

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

--- Later in debate ---

[Lord McNally]

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

[Lord Lester of Herne Hill]

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

[Lord McNally]

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

Human Rights Act 1998

Debate between Lord Lester of Herne Hill and Lord McNally

Wednesday 12th October 2011 Lords Chamber

[Lord McNally]

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

[Lord Lester of Herne Hill]

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

[Lord McNally]

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

Cohabiting: Law Commission Report

Debate between Lord Lester of Herne Hill and Lord McNally

Tuesday 6th September 2011 Lords Chamber

[Lord McNally]

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

[Lord Lester of Herne Hill]

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

[Lord McNally]

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

Gender Recognition (Approved Countries and Territories) Order 2011

Debate between Lord Lester of Herne Hill and Lord McNally

Monday 27th June 2011 Grand Committee

[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.

Courts: Super-injunctions

Debate between Lord Lester of Herne Hill and Lord McNally

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—

Public Bodies Bill [HL]

Debate between Lord Lester of Herne Hill and Lord McNally

Tuesday 11th January 2011 Lords Chamber

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

Debate between Lord Lester of Herne Hill and Lord McNally

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—

--- Later in debate ---

[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.

Justice: Legal Fees

Debate between Lord Lester of Herne Hill and Lord McNally

Monday 21st June 2010 Lords Chamber

[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.