Legal Aid
Lord Marks of Henley-on-Thames Excerpts(11 years, 5 months ago)
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Lord McNally
That is no more than the blunt truth. In 2010, when we came in, a spending review took place that asked for 23% cuts across the board in my department, which at the time was spending £10 billion a year on prisons, the probation service, legal aid, courts services and staff. All five of those have had to take the burden and brunt of the cuts. It is very difficult to make decisions at this time, but we have consulted and listened and are continuing to do so to try to make sure that we end up with a legal profession able to help the most vulnerable in our society through the legal aid fund.
Lord Marks of Henley-on-Thames
My Lords, I know that my noble friend is aware of the widespread view expressed during the consultation on criminal legal aid that competitive tendering on price will prove unworkable and that the proposed changes are being introduced too fast and with too little preparation. In the light of the consultation, will his department consider introducing the changes more gradually and trialling or piloting them before their more general introduction? I declare a similar interest to that declared by the noble Lord, Lord Pannick.
Lord McNally
My Lords, it is about 10 years since the Carter report had a look at this matter. It is more than three years since the previous Labour Government made cuts to criminal legal aid. The Labour Party, in its 2010 manifesto, was the only party to say that it would look for further cuts in legal aid. In that time there have been changes—alternative business structures and other changes—to the legal profession, yet we are still told that this has come as a surprise. Instead of asking for more time and putting forward arguments that are mainly scare stories, it would be good if the legal profession responded to this consultation with a productive dialogue that could put legal aid on a sustainable and lasting footing.
Offender Rehabilitation Bill [HL]
Lord Marks of Henley-on-Thames Excerpts(11 years, 5 months ago)
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Lord Marks of Henley-on-Thames
My Lords, in welcoming this Bill, I know the House is all too conscious of the degree to which the history of our penal policy during the past few decades has been one of failure. The failure has been a failure of our criminal justice system and our penal system to turn an acceptable proportion of convicted offenders away from lives of crime.
When offenders are apprehended and convicted, that process, and the contact with the system that it entails, should afford society an opportunity not only to punish but to work out what has gone wrong with offenders’ lives and provide help and support to try to put things right. Every offender for whom the prison gate has unnecessarily become a revolving door has blighted his own life, damaged his victims’ lives, often irreparably, and at least disrupted, but often wrecked, the lives of his family. Society has been infected with the harmful effects of crime and the fear of crime, and we have all borne the extra financial costs: victims, the criminal justice system, social services, the penal system, insurers and those who pay the premiums.
As the Minister pointed out, reoffending rates are appallingly high, disproportionately so for those released from sentences of less than 12 months, for whom the figure is more than 58%: not far short of half overall. The very fact that never before have we provided support for prisoners released from these shorter sentences is a disgrace. It is very important that this is now being addressed by Clause 2 of this Bill.
The commitment to through-the-gate services for prisoners on release is very welcome generally. However, it is crucial that, as is proposed, the link with those who will provide support services for an offender on his release is firmly established well before release. The goal must be a planned release. There should be arrangements in place, so far as can be achieved, for a released prisoner to have a place to go to, an occupation, whether in employment, education or continued training, and people to return to. With respect to employment, it is heartening to note that a number of companies, including Network Rail and National Grid, are training prisoners within prisons and employing them on release.
Those providing services preparatory to release should, so far as possible, be the ones providing the support following release. The mentoring system in Peterborough, mentioned by my noble friend, has been a success and should be rolled out. It is important that those mentors should be able to see prisoners before release as well as after.
To enable all this to happen, it is vital that the Government implement their intention, mentioned by my noble friend, to ensure that at least the last few months of every prisoner’s sentence are served geographically close to the community to which the prisoner will return on release.
I particularly welcome the increased focus on drug treatment provided for by Clauses 10 and 11. The new arrangements will enable supervisors to help offenders to tackle drug dependency. Drug appointments and drug-testing requirements will enable the more effective monitoring of drug use in the community, but it goes without saying that the rehabilitation of drug-dependent prisoners would be massively improved by a successful drive to stamp out the scourge of drug use in our prisons.
The Government propose a far-reaching reorganisation of the probation services, to be implemented under the umbrella of the National Probation Service. This reorganisation has the worthwhile aims of increasing the diversity and range of providers, of involving the many organisations within the voluntary and not-for-profit sectors in contracted services, which are already doing significant and ground-breaking work in this area, and of giving service providers greater autonomy. However, it is important that we bring the probation service with us in this reorganisation, and it is imperative that the expertise and the good will of our probation officers are retained within the newly reorganised services. It is important that we do not underestimate the difficulties that we face in achieving these aims in the context of larger probation trusts and difficult new arrangements for contracting.
The new proposed structures will inevitably be much more diffuse than the probation service hitherto with which we and the probation services are familiar. My noble friend the Minister has been considering whether and how the professionalism and expertise of probation officers might be marked and recognised within the context of the new arrangements. I believe that we should consider how we might achieve this. Something like a new chartered institute of probation officers might serve the purpose well, enabling professional qualifications to be fully recognised and enabling the profession to remain united and subject to a respected code, with employers having the benefit of a guarantee of professionalism and quality that would mark out members of such an institution.
The proposed arrangements for payment by results have been controversial, as the noble Lord, Lord Beecham, pointed out. If they work and prove practical to implement on a national scale, they might at best provide incentives and rewards for success by cutting reoffending and enabling more informed choices to be made between services that are proved to be effective and those that are not. However, there is always a risk that such arrangements might be seen only as a way of saving resources at a time when that is, rightly, a national imperative, even where the use of extra resources might be justified.
The cost to the United Kingdom economy of reoffending is estimated by the National Audit Office at between £9.5 billion and £13 billion. In a speech this morning, my right honourable friend the Deputy Prime Minister put the figure at £10 billion. These are staggering figures. While that expenditure cannot be eliminated, of course, I believe that a more enlightened and determined approach to rehabilitation can take people out of lives of crime and help them to lead useful and productive lives in their place.
That is the background to the general point that I made in the debate on the gracious Speech: that the changes to be brought about by the Bill and the Government’s proposals must be properly resourced and that the potential savings are so substantial as to justify, where necessary, a departure from the traditional approach of Treasury accounting to spending proposals, where the outcomes are savings that are of their nature, and almost by definition, unquantifiable. If they are properly resourced and if there is good will and determination on all sides—within the service, within government and, I might say, in co-operation with local authorities as well—I believe that the changes in the Bill, in the context of the programme of rehabilitation involved in the greater use of community sentences on which we have embarked, might now start turn to turn around the failure of the past few decades.
Prisons: New Prisons
Lord Marks of Henley-on-Thames Excerpts(11 years, 7 months ago)
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Lord McNally
I am aware of that scheme, although I have not had an opportunity to visit it. However, it illustrates the wisdom of the right reverend Prelate’s follow-up point: that in the environment there are many possible solutions to reoffending and for rehabilitation.
Lord Marks of Henley-on-Thames
My Lords, does my noble friend the Minister agree that a great deal of international experience supports the right reverend Prelate’s point? In Hong Kong, there is a new 1,400-bed women’s prison, and a large number of units in the United States. Initial evidence shows that in such prisons there are important human, behavioural and social benefits as well as the obvious financial and environmental ones.
Lord McNally
I agree with my noble friend. Despite what the reports say in certain sections of our media, there is a far better chance of rehabilitating people in decent and humane conditions than in antiquated and inhumane ones.
Justice: Legal Advice
Lord Marks of Henley-on-Thames Excerpts(11 years, 7 months ago)
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Lord McNally
The Opposition continue to preach gloom and doom about this. They will be entitled to bring to our notice how these impacts take place, but we have put a number of measures in place to try to deal with this new situation. We have put on a new online information service, we have given Citizens Advice and other advice centres transitional money and will continue to do so, and we are looking for innovations in legal services from other parts of the legal profession. We will see what happens.
Freedom of Information Act 2000
Lord Marks of Henley-on-Thames Excerpts(11 years, 8 months ago)
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Lord Marks of Henley-on-Thames
My Lords, the Government have been successful in extending the Freedom of Information Act in line with the coalition agreement by adding to the bodies which are subject to the Act and by providing for electronic data sets to be made available. Can the Minister assure the House that there will be no reversal of this process, and in particular, that there will be no extension of the Government’s power of veto and no further fees, particularly for appeals to information tribunals?
Lord McNally
I do not think I can give an absolute assurance on that. We decided to retain the veto following discussions that had gone on since the start of the freedom of information debate about whether, at the very heart of government, a safe space was needed for genuine discussions. At the moment, I am having discussions with colleagues about these ideas and principles and in due course I will inform the House and give it an opportunity to comment on this. It is always an interesting balance. We have faced this problem for a decade or more since we debated these principles in this House. Indeed, we had a very interesting debate a few months ago where a whole clutch of former mandarins gave their opinions about what is called the “chilling effect” of freedom of information. I do not accept that there is such a chilling effect, but I do accept that it is right—as is the proper intention of the post-legislative review of the Act—that we look at how the Act is working and we will come back with recommendations in the areas raised by my noble friend.
Damages-Based Agreements Regulations 2013
Lord Marks of Henley-on-Thames Excerpts(11 years, 8 months ago)
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Lord McNally
Actually, I knew that. As Harold Wilson said when he retired and Jim Callaghan succeeded him, “I have made way for an older man”.
I take the point made by the noble Lord, Lord Phillips, but let me be blunt. I am always suspicious of Ministers who at any time rest too much on a report, no matter how learned. I do not rest the case for the 25% cap on that being Lord Justice Jackson’s original recommendation, although indeed it was. A sharp-eyed lawyer would say that the noble Lord’s quote about Lord Justice Jackson did not endorse the counterview but simply said that it had merit, which is not the same as advocating that the Government change their policy. Even if it were, this is the Government’s policy. It is the right policy because it protects the future earnings and the future cover for victims in these cases. It remains our policy on that merit, and we are willing to defend it on that basis.
I understand the point made by the noble Lord, Lord Beecham, about speed. I pointed out that very little of what we are doing is entirely new. We fully recognise that at this time there is a need for ability, nimbleness and fleetness of foot in all parts of the legal profession, if we are to take advantage of the changes that are going through. We are not persuaded that the timescales we have set are unreasonable, and we will not be deferred from the course that we have set. We have taken account of reasons for delay regarding mesothelioma and privacy, which I quoted. However, these orders will go through to take account of the fact that LASPO comes into effect on 1 April 2013.
Perhaps I might deal with a number of the specific questions that the noble Lord, Lord Beecham, raised. He was very correct to raise the issue of the American experience in DBAs. I also met the organisation that came over to present its case. I left that meeting with some of his concerns about what this might bring into our legal system. The noble Lord’s description of hedge funds for legal claims is something that we are very conscious of. What we have decided so far is to keep the matter under review. That phrase can often hide weasel words and weasel intent, but we want to see just how much this is going to become a factor in our legal system, while making sure that some of the warning signs that the noble Lord has quite legitimately raised are on the radar of Ministers as well. We will keep this matter closely under review.
The noble Lord raised the issue of VAT on the 25% cap. The 25% cap on success fees is as recommended by Lord Justice Jackson. Including VAT on the success fee on lawyers’ fees within the cap will provide further protection for the claimant’s damages and add certainty for the claimant as to the likely deduction from their damages. This approach is also consistent with the existing cap of 35%, inclusive of VAT, on payments to be made from damages in respect of DBAs in employment matters. The noble Lord also asked about the indemnity principle. DBAs are an alternative method of funding and it would be for solicitors to advise their clients on the most appropriate method of funding according to the circumstances of each case. He also mentioned there being one set of regulations. There is one set of regulations covering both civil litigation and employment cases, as recommended by the Civil Justice Council. We have listened to the concerns of the Law Society and others that there should not be too much regulation in respect of civil litigation in these instruments. This is because failure to comply with the provisions in the instruments would make the agreements unenforceable. As I have said, lawyers are properly regulated in any event.
The noble Lord asked whether the cost of ATE insurance is within or outside the 25% cap. This is an expense and is therefore outside the cap. On why DBA regulations do not contain requirements on termination for civil litigation, as in employment cases, the DBA regulations of 2010 made provisions for employment cases which can be taken forward by non-lawyers. Detailed safeguards need to be built in as a result. Civil litigation can be conducted only by lawyers, who are subject to their own professional regulations.
I think that that covers most of the issues. If not, perhaps I might say to the noble Lord that I welcome the thoroughness with which he has examined these regulations and, as I say, if I have not covered the questions in precisely the detail that I should have done I will make sure that a suitable letter is lodged in the Library of the House. I nevertheless think that the timetable that we have set, the consultation that we have undertaken and the changes that we have made after that consultation, with our having listened to the Bar Council, the Law Society and other interested parties, make the regulations fit for purpose. I therefore recommend them to the Committee.
Lord Marks of Henley-on-Thames
My Lords, before my noble friend the Minister sits down, I have one question on the point made by the noble Lord, Lord Beecham, about damage-based agreements for defendants. It is my understanding of the regulations that DBAs are not appropriate for defendants, whereas conditional fee agreements are and always can be available to defendants. DBAs depend upon the damages awarded to the client or monies paid by another party to the party entering into the DBA. Clarification on that from my noble friend may be helpful, but it is certainly my understanding.
Lord McNally
I am grateful to my noble friend for that question. I am informed that neither the Act nor the regulations enable defendants to use DBAs, not least because a DBA is enforceable only where the agreement makes provision for the payment of the fee from damages awarded. My noble friend asks an extremely pertinent question and I hope that I have given a clear answer.
Defamation Bill
Lord Marks of Henley-on-Thames Excerpts(11 years, 9 months ago)
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Lord Marks of Henley-on-Thames
My Lords, I, too, support the amendment, but I do so on the basis that the general restriction on companies suing for defamation is limited to the requirement in subsection (3) of the proposed new clause that trading entities should have to show actual or likely financial loss before being entitled to sue for defamation. As drafted, proposed new subsection (2) would introduce a restriction on companies that is not so limited and is entirely undefined.
However, the restriction in proposed new subsection (3) is in line with the recommendation of the Joint Committee on the draft Bill, on which I served, and, as the noble Baroness, Lady Hayter, has pointed out, the recommendation of the Joint Committee on Human Rights as well. Whether companies should be able to sue for defamation was one of the issues that the Joint Committee was specifically asked to consider outside the ambit of the draft Bill, and we took a great deal of time and heard a great deal of evidence on this issue. The amendment accords with the sense of many who believe that corporate bodies trading for profit should not be in precisely the same position as natural persons in defamation law.
As in so much of the law in this area, the task is to strike the right balance between the right to free speech and the right to protect reputation. But it is a fact that companies cannot suffer hurt in their feelings and personal reputations in the same way as individuals can. Therefore, many have called for companies to be denied the right to sue for defamation. It is argued that companies have other ways to protect their reputations. It is argued that individual directors can sue, but to bring a suit for defamation is a serious undertaking and would expose those individual directors to substantial personal risk in costs when the real claimant should be the company. It is argued that large companies may have other steps they can take to protect their reputations by advertising or seeking publicity for their position, but that depends on their financial strength. A right to sue for malicious falsehood is often mentioned, but that is dependent on an ability to prove malice, which is notoriously difficult to do.
I take a different view. While companies do not have feelings that can be hurt, they can suffer financially, as my noble friend Lord Lester has pointed out. Defamatory statements about companies can have very serious consequences for their businesses, affecting the jobs of their staff and the prosperity of all concerned in them—whether or not untrue and defamatory statements are made with a view to profit by competitors or innocently by journalists. Therefore, it does not seem to strike the right balance to deprive companies of the right to sue for defamation altogether, quite apart from the fact that it would probably be contrary to the HRA to do so.
However, it seems proportionate and balanced to insist that companies and other non-natural persons trading for profit show that they have suffered or are likely to suffer substantial financial loss as a result of the defamation in respect of which they wish to sue. Imposing that condition recognises the difference in kind between individuals and non-natural persons trading for profit. It would not restrict the right of charities and other not-for-profit organisations to sue, and it is right that it should not do so; for example, charities can suffer from defamation in their future ability to raise funds, but it may be very difficult for them to demonstrate that. Proposed new subsection (3) of this amendment applies only to import a modest and proportionate restriction on the right of trading entities to sue and would introduce a valuable extra reform to this Bill.
Finally, I support the reform suggested by proposed new subsection (4) relating to bodies performing public functions, for the reasons that the noble Baroness, Lady Hayter, and my noble friend Lord Lester have already given, but principally because bodies performing public functions should be open to public criticism, even if private, in just the same way that public authorities are.
The Archbishop of York
My Lords, I, too, want to add a sentence of support to what the noble Baroness, Lady Hayter, and the noble Lord, Lord Lester, said.
I am patron of many charities and it would not be right if we did not strike the right balance. If a charity felt it was defamed because it was a body corporate, the restriction that has been put in here requiring the permission of the court is necessary. We are living in a very litigious society so if you are going to go to court to sue anybody, the permission of the court should be shown.
In proposed new subsection (3) there is the question of finance and the possibility of striking out if you cannot actually show that you have suffered loss. Because of that balance—that common sense that the noble Lord, Lord Lester of Herne Hill, was talking about—I am very attracted to this, and I hope that the Government will accept both limbs of the amendment, because you really could not do one without the other. It strikes a balance. For such a very long time, individuals could sue but reputational damage, as well as financial loss, is often incurred by a number of charities and it would be good to be able to do the same thing in terms of bodies corporate.
Baroness Butler-Sloss
My Lords, I support what the noble Lords, Lord Lester and Lord Faulks, have said. I have to admit to having been a judge, but not a judge who tried this sort of case. I believe that this is a matter that should be left to the judiciary, and the amendment is overemphasising something that really does not need to be done.
Lord Marks of Henley-on-Thames
My Lords, while the noble Baroness, Lady Hayter, is right to say that costs and early resolution are vital, I suggest that this extra strike-out provision is entirely unnecessary and, further, that it would introduce added uncertainty by bringing in a gloss on the serious harm test in Clause 1. In addition, it would add complexity to Clause 3 by introducing another test for whether or not there should be a strike-out. As has been said, the court is already able to strike out a case that has no merit; indeed, the noble Baroness, Lady Hayter, conceded that. It is right at the heart of these reforms that the Government propose to introduce an early resolution procedure in the rules, so I cannot see why the amendment should be necessary.
Defamation Bill
Lord Marks of Henley-on-Thames Excerpts(11 years, 9 months ago)
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Lord Phillips of Sudbury
Oh, elegant. Well, they are certainly not elegant and certainly not eloquent. Nevertheless, they are designed to make life a little easier for whoever hereafter will read this Act of Parliament. They are very modest drafting amendments, putting the definition right up where it first appears in two places, dispensing with the need for subsection (2) and saving words—which is never a bad thing in legislation. It is as simple as that.
As to the much more substantial amendment moved by the noble Lord, Lord Browne of Ladyton, and supported by the noble Baroness, Lady Hayter of Kentish Town, I await what the Minister has to say with more than usual intensity. I can quite see that there are many issues of some subtlety around this that need, as always, to be weighed. I am inclined to support them but I am waiting to hear from him.
Lord Marks of Henley-on-Thames
My Lords, I support the principle of Amendment 44A moved by the noble Lord, Lord Browne of Ladyton. The single publication rule in this Bill is an important reform for avoiding multiplicity of actions and is thoroughly welcome, but its impact is markedly diminished by restricting its application to republication by the same publisher. I can see no justification in principle for restricting a claimant suing on a second publication by the original publisher but permitting him to sue on a publication at a later date by a second publisher.
Lord Ahmad of Wimbledon
In terms of audibility for all noble Lords, please could noble Lords make sure that their mobile phones are kept well away from the microphone because they cause issues with listening and difficulties for all concerned.
Lord Marks of Henley-on-Thames
I rather hope it was not mine, but it might have been. At any rate, it has been moved now.
The proviso of republication in a different manner as the application of the rule in my view provides sufficient protection. That was the unanimous and strongly held view of the Joint Committee, and it is one which I urge the Government to reconsider. I would add one caveat which is that, while I support the principle of this amendment, I can see the need for its qualification to ensure that this situation is addressed. It is possible to envisage a first publication by an insolvent publisher and then a second publication by a publisher who is worth suing. It would be perfectly reasonable for a claimant to take the view that he did not propose to sue the first publisher, but that he did wish to sue a publisher at a later date when the original limitation period might have expired because that publisher was worth suing and was likely to be good for the costs and the damages. It does not seem to me to be beyond the wit of draftsmen to cater for that position and to allow suing a second publisher in those circumstances. Subject to that caveat I support the amendment.
Lord Brown of Eaton-under-Heywood
I was not proposing to speak to this amendment at all but it seems to me that there is an enormous distinction to be made between person A and person B as to which publication one is being denied by the Limitation Act the opportunity of proceeding in respect of. It is, with respect, not only whether the second publisher may be financially worth suing as opposed to the first publisher which must be catered to in this provision, but surely also the standing and reputation of the publisher. One can very well imagine a situation in which one simply would not be bothered to be defamed by person A because that person’s standing and reputation was itself so low and yet a republication by somebody of real repute and standing would trigger one’s intent to sue. So if this Amendment 44A is to be accepted, that sort of thing should be catered to, whether under the provisions of subsection 4, with a specific provision about material difference lying on occasion in the character and position, financially and otherwise, of the publisher, or in some other way, I leave to others to consider.
As to the other amendments, I agree with the view that Amendments 45, 46 and 47 are a simpler and more elegant fashion of expressing those provisions. As to Amendment 47B and the proposed insertion of new Section 5A, I am neutral as to how desirable it is to spell out these considerations which shall not be regarded as materially different. I would respectfully suggest that the expression should be not,
“shall not be deemed to be”—
it is not a question of deeming—but
“shall not be regarded as”,
but that is a very minor point indeed.
Lord Marks of Henley-on-Thames
My Lords, I rise briefly to support the amendment proposed by the noble Lord, Lord Mawhinney. Again, this was a recommendation of the Joint Committee. We took the view, I suggest rightly, that it is entirely correct that cases against those who are not domiciled here or in a convention country should be restricted if they are brought by claimants who are themselves domiciled outside the jurisdiction. But I do not think it right for a local potential claimant within the jurisdiction to be debarred from suing a foreign defendant for a libel that has caused the local claimant serious harm here, even if there may be other countries that are at least as appropriate. For example, an Italian newspaper could publish a libel in Italy and England that would cause a local English claimant damage in both jurisdictions. There may be reasons for the defendant to argue that Italy would clearly be the most appropriate forum for the resolution of the dispute but, as it stands, this section would debar the English claimant from suing in England.
The clause is intended to restrict libel tourism so far as is consistent with the Brussels and Lugano conventions. It does that, but it should not also restrict local claimants from suing foreign defendants here when their reputations have been damaged here, even if there may be other jurisdictions in which they might equally well or better sue.
The amendment achieves what should be the aim of the clause. I am not sure that the proviso relating to harm is necessary, because I would be content to rely on Clause 1 for the serious harm test. But subject to tidying it up, I suggest that the amendment proposed by the noble Lord, Lord Mawhinney, is entirely justified.
Lord Phillips of Sudbury
My Lords, I briefly comment on what the noble Lord, Lord Singh of Wimbledon, said. I have to stick to my earlier analysis, but after hearing what he said, if his amendment had incorporated the purport of that I would have been very sympathetic to it—notwithstanding what my noble friend Lord Lester said, because his clause would address a different issue. The only question I have is whether the security for costs arrangements that can be invoked here might not come to the aid of the person to whom he refers.
Lord McNally
My Lords, this has been an extremely useful debate. From the beginning there has been a question of whether libel tourism exists, and there are varying views on this. Indeed, without breaking too many confidences, when I explained to a very senior member of the Government that we were trying to curb this so-called libel tourism, he said, “Are you sure? Should it not be the more the merrier?”. He had the idea that if foreigners wanted to come and use our excellent legal and judicial services they should be welcomed. In another respect, of course, we make a great play of the excellent facilities at the Rolls building for doing just that. However, there was a problem not only with the numbers but in the use of threats to stifle publication or opinion—the so-called chilling effect—and it is right that we have had this debate.
Amendment 48 would mean that the effect of the provisions on libel tourism reflected in Clause 9 would be narrowed as cases where the claimant is domiciled in England or Wales would no longer be caught even if the main impact of the alleged libel was outside England and Wales. The Government do not consider that narrowing the scope of Clause 9 is appropriate. It would mean, for example, that a Russian oligarch domiciled in England and Wales could sue a person outside the UK/EU in the English courts in circumstances where the alleged main harm to his reputation has occurred in, say, Uzbekistan.
Although I am sure the hearts of my colleagues behind me will sink, I have listened to the debate and I will study again the remarks made and the example given by the noble Lord, Lord Marks.
Lord Marks of Henley-on-Thames
Perhaps I may correct something that I have said. My example, which was off the cuff, of Italy was wrong: it ought to be the United States or somewhere outside the Brussels and Lugano conventions.
Lord McNally
I was just thinking that myself, but I did not want to raise it.
Broadly, at the moment we consider it is right that these cases should be caught by the test and therefore not automatically take place in our courts. Where a claimant in a case where the defendant is domiciled outside the UK, EU or Lugano convention states is unable to satisfy a court that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place to bring the action in respect of the statement, then he or she should be refused access to our courts and should be required to seek redress abroad. Such cases are not likely to arise with any frequency but, when they do, they give rise to legitimate concerns about libel tourism which uses up the time and resources of our courts.
We do not believe that the requirement to show that England and Wales is clearly the most appropriate place to bring the claim will cause undue inconvenience to claimants domiciled here who legitimately wish to bring an action in this jurisdiction to protect their reputation. It is likely that in most cases where a claimant is domiciled in England and Wales the Clause 9 test will be satisfied as the main harm to reputation will have been caused here and, in those circumstances, a claimant will readily be able to show that this is the most appropriate place to bring the claim. However, claimants should not be able to use our courts to pursue libel actions which are more appropriately heard elsewhere, even if they are domiciled here.
Amendment 49 would make a small amendment to Clause 9, but would have an undesirable impact on its effectiveness. Clause 9 provides that a court does not have jurisdiction to hear and determine an action to which the clause applies unless it is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.
Amendment 49 would remove “clearly”. We do not believe that this would be appropriate. Great concern has been expressed in Parliament and elsewhere about libel tourism. The amendment would reduce the strength of the test to be applied by the courts and could have the effect of leading to their allowing more claims to proceed in this jurisdiction in instances where the question of whether this is the most appropriate place to bring the claim is more marginal. We believe that most people who have commented on these issues would agree with us that it is important to give a signal to the courts that Clause 9 should be applied robustly, and that claims should be allowed to proceed only where this is clearly the most appropriate jurisdiction.
Turning to Amendment 50, I understand the point made by the noble Lord, Lord Singh, about drafting. Perhaps I may say in passing that as soon as he starts speaking my mind comes to mornings when I feel tetchy, down-at-heart and at war with the world, and his mellifluous voice comes on “Thought for the Day”, and, at the end of it, I always feel a little bit better about the world. The amendment would require an organisation or individual bringing an action against a person domiciled in the United Kingdom to provide evidence that it or he has funds in the UK to meet any costs that might arise were the action to be unsuccessful. As the amendment is drafted, this would apply where both parties are domiciled in the UK as well as where only the defendant is domiciled here. This would put potential claimants with limited resources at a serious disadvantage, as has been said by a number of those who have spoken in this debate. For example, it would mean that if an individual wished to bring an action against a national newspaper based in the UK, he or she would have to show that he or she had sufficient means to pay the newspaper’s costs, which could be substantial, in the event that the action was unsuccessful. This would considerably restrict access to justice.
However, the point that the noble Lord, Lord Singh, raised and the specific examples that he gave should give us pause for thought. As with the other points made about the way in which our laws are being used, the ability of those from abroad with resources to intimidate those making legitimate criticism of their behaviour should give us pause. The noble Lord, Lord Lester, gave assurances on that matter. As always with advice from the noble Lord, I wish to take it away and consider it, and ask my advisers whether the assurances that he gave are sufficient to protect against the abuses. How we protect against the kind of threat and intimidation that comes short of reaching court, I do not know, but perhaps one of the defences is that, when the Bill becomes an Act, people will be more aware of the protections in our law against such intimidation.
We recognise the concerns that exist about the costs of defamation proceedings for both claimants and defendants, and are firmly committed to reducing them. As I have mentioned in debating earlier amendments, the provisions on costs protection which we have asked the Civil Justice Council to consider, together with changes to the Civil Procedure Rules to support early resolution of key issues, will help claimants and defendants of limited means to bring and defend claims.
I have given noble Lords an assurance that I will look at this debate and see whether we have got the balance right. I am not sure that I can give any idea that we are going to give up “clearly”; I am going to defend that to the very last. I can see us at some future date on Report voting at 11.20 pm on whether “clearly” should stay in the Bill, with the noble Lord, Lord Browne, seeing an opportune moment to defeat the Government. Until that moment, I ask noble Lords not to press their amendments.
Lord Browne of Ladyton
My Lords, this amendment is designed to probe the Government on the possibility of creating a defamation county court. The idea of having such a court has already been discussed in a previous session of your Lordships’ Committee. It was a recommendation of the Joint Committee, at least in a pilot sense. At this time of day, I shall spare your Lordships the pain of having to listen to me read the whole of the paragraph that refers to this from the Joint Committee’s report.
However, for the purposes of the record it is paragraph 87, which I will read in short. It starts with a sentence that I think we would all agree with:
“Some witnesses argued that costs would be reduced if libel cases were generally dealt with by county courts rather than the High Court”.
It goes on to make a good argument, concluding:
“The Ministry of Justice should implement a pilot scheme to determine how this proposal might work in practice”.
This amendment is our attempt to set a statutory framework for such a pilot scheme. The idea behind it is to significantly reduce the costs of defamation proceedings; an issue that we have agreed is a shared concern.
The drafting of this amendment will prove not to be perfect but it is intended to be a probe. However, it is based on the Patents County Court. By way of background, the Patents Court is not a county court in the usual sense but a specialist court for the resolution of intellectual property disputes. It was originally set up in 1990 but was set up under its most recent guise in late 2010, with the aim of providing efficient intellectual property case trials as an alternative to costly and time-consuming High Court trials.
The key provisions of the Patents County Court are that costs are on a fixed scale, capped at £50,000, while the damages that the court can award are limited to £500,000 and each trial is aimed to be concluded—wait for it—within two days. The court has recently started giving non-binding opinion, generally during the case management conference stage of proceedings and before trial, as to the likely outcome of the case. I suspect that all noble Lords in this Committee would welcome that environment for the early and swift deliberation of cases that got to trial, never mind the issue of some pre-trial provision or alternative dispute resolution, which noble Lords have previously discussed.
When this idea was discussed during our previous session, the Minister said that he would go away and think about the idea. With this amendment I am providing an opportunity for the Minister to tell us where his thinking presently is. For the purposes of the record, the exchange that I am referring to was with the noble Lord, Lord Faulks during the first day in Committee at col. GC 458. I beg to move.
Lord Marks of Henley-on-Thames
My Lords, I strongly support allowing county courts to hear all but the most serious defamation cases. As the noble Lord has said, it was a recommendation of the Joint Committee; indeed, it was the noble Baroness, Lady Hayter, and I who advocated it very strongly on that committee. Quite apart from the complexity of the law and the arcane procedures that we have developed, one of the main reasons why costs have become so high in these cases has been the development of a highly specialist Bar and specialist solicitors, all conducting cases very expensively exclusively in the High Court.
The simplification of the defences in this Bill, coupled with the simplification of procedure and more extensive and earlier case management, should make it possible to reduce the complexity of defamation cases substantially. In those circumstances, the development of county court expertise with designated judges to manage and hear these cases would make justice, importantly, more local, quicker, cheaper, simpler, and in all ways more accessible. Of course there will always be cases that are complex, difficult and paper-heavy. They will require High Court expertise and the attention of specialist High Court judges. However, I hope that for the generality of cases county courts will become the norm and that therefore the cases will become simpler to sue, to defend and to resolve. We recommended trialling county courts for defamation cases; I ask that that happens soon.
Lord Mawhinney
My Lords, just as I paid tribute earlier to the noble Lord, Lord Bew, for his contribution, so I pay tribute also to the noble Baroness, Lady Hayter, and the noble Lord, Lord Marks. Without them I am not sure that the Committee would have come to this conclusion. The noble Lord, Lord Marks, has just eloquently explained our thinking and our reasoning. Indeed, my noble friend Lord McNally may remember that the noble Baroness, Lady Hayter, had one or two questions for him on this subject when he came to give evidence.
The noble Lord, Lord Browne, said that we proposed a pilot, and the noble Lord, Lord Marks, has confirmed that. I would add that we proposed a pilot in part because we thought that this was such a radical idea that the Minister would need some help in dealing with the legal profession. We could hear the legal profession lining up against this idea and we wanted to side with the Minister, so we suggested a pilot. However, he should not be unaware of the fact that he will have one or two sessions of arm-wrestling with people who were not overly persuasive to the Committee before, hopefully, he gives effect to this particular amendment.
Defamation Bill
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Lord Morris of Aberavon
My Lords, I make a brief intervention. I listened very carefully to what the noble Lord, Lord Lester, said, in moving his amendment, but I need a little further assistance. I am not quite clear about his purpose. I do not think that he specified—I was listening as best I can—the distinction that he makes between a statement which is defamatory and a statement which, additionally, might be unlawful. The danger I see, if they have the same meaning, is that the courts will look at the provisions very carefully and regard them as otiose. What purpose is intended? Does it create an additional burden on the complainant? When he makes his representations under the clause, will the complainant have to define in what way the statement is unlawful? Perhaps we could have assistance on that score.
Lord Marks of Henley-on-Thames
My Lords, I shall speak in broad support of the sentiment behind Amendment 27 in the names of the noble Viscount, Lord Colville of Culross, and my noble friend Lord Allan, but first I address Amendment 26, which I support as a bare minimum. I also address the point put by the noble and learned Lord, Lord Morris, to my noble friend Lord Lester. I think that my noble friend understated the position on what is defamatory and what defamatory means. As I have always understood it, a statement is defamatory if it causes the necessary damage to reputation. It may then be that under existing law, a defence of justification can be mounted which shows that the defamatory statement is justified as true. That does not stop the statement being defamatory, but it stops the statement being unlawful. In other words, it starts off as defamatory—I see learned agreement on the other side of the Room—and then one looks at the question of defences.
It follows that without the word “unlawful” in paragraph (b), the requirement that the complaint,
“sets out the statement concerned and explains why it is defamatory of the complainant”,
goes only half way and is nowhere near enough. I echo the sentiments expressed by my noble friend Lord Mawhinney about the view of the Joint Committee on the Bill and the topic: the purpose of whatever procedure we adopt is to give some protection, as far as is practicable, to persons defamed on the internet and, on the other side, to impose some responsibility on website operators, without ensuring that an operator is stuck with liability for all the material posted on his site.
I strongly supported, and indeed took some part in formulating, the notice and takedown procedure for material from unidentified authors proposed in our report, with the possibility of an operator securing a leave-up order for material that, although it was from an unidentified author, nevertheless the operator believed ought to stay up—for instance, in the case of whistleblowers. The Government have opted for a different procedure, and it is right that that procedure draws the correct distinction that we drew between the posts of identifiable authors, who can then be identified and sued, and anonymous material. Whatever system we have, though, it is important that there should be some quick and cheap option that levels the playing field between complainant and author or operator. The detailed notice of complaint as envisaged by Amendment 27, as the noble Viscount, Lord Colville, has explained, is a satisfactory first step.
I appreciate that it can be said that, subject to the point made by the noble Lord, Lord Lester, the word “unlawful” is required, but regulations could be made within the ambit of “defamatory and unlawful” that would expand upon the requirements for a detailed notice of complaint. However, I suggest that it is better that, rather than being left to regulation, the broad contents of the notice of complaint should be spelt out in statute. I say that because one of the purposes of the Bill, as we saw it in the Joint Committee, was to make the law as accessible as possible so that anyone could look up what procedures would be required by looking at the Act. By effectively leaving the requirements for a notice of complaint to delegated legislation, the simplicity of accessing the statute and accessing law on the internet is reduced.
It would then be necessary to add to the requirements for a detailed notice of complaint, something like Amendments 25A and 25B proposed by the noble Lord, Lord Browne of Ladyton, and the noble Baroness, Lady Hayter, in the previous group. I, too, was pleased to see the Minister’s response to those amendments show at least some flexibility or promise thereof. We would then have the beginnings of a system to ensure that, where defamatory material was posted by an operator, the detailed process of complaint would get some publicity because the notice of complaint would be put on the website by the operator. That would offer some partial protection to the person defamed. I applaud the suggestion that if the operator then fails to put up such a notice of complaint, which he can do, he must take his chances and accept that he is made liable to be sued by the deprivation of the Clause 5 defence.
I reiterate what has been said: neither the proposed system nor any system that we could possibly devise would be perfect, for the simple reason that my noble friend Lord Lester mentioned earlier today—namely, that we are trying to formulate a local response to an international phenomenon. However, I suggest in answer to some of the defeatism—the Minister was defeated up to a point in his earlier reply—there is no reason to give up on the problem because the system is not perfect and therefore do nothing. It is worth doing all that we can, I suggest, for two reasons. The first is that we can ensure fairness in respect of posts that are subject to our jurisdiction. The second, I suggest, is that by what we introduce in legislation, we can set an example of best practice for website operators elsewhere.
I would like to say a word or two about civil procedures that would be appropriate either under Amendment 27, under Clause 5 or under the regulations. I suggest that it is essential that any such procedures we adopt respond fully to the point made by my noble friend Lord Phillips of Sudbury that the procedures that involve going to court can be very expensive. The answer from the noble Viscount, Lord Colville, that this can be dealt with in the ordinary way before Masters is a partial answer only, because those of us who have attended before Masters, and have prepared interim applications before Masters and district judges in other cases, know that they themselves can be very expensive indeed.
What we envisaged on the Joint Committee was a quick and cheap paper-based or internet-based procedure, with specialist district judges simply looking at the case presented to them on paper and making a decision. Those specialist judges would give their decision, but it would of course be only a holding position, because action would be deferred. However, it is not right to introduce, by what we do now, a whole new level of expensive procedure in respect of internet actions, which, from the McAlpine case, we know can sometimes result in £5 awards or £5 settlements over a very large number of cases. Those cases need to be kept small, simple, quick and cheap.
Lord Allan of Hallam
My Lords, I remind the Committee of my earlier declaration of interest that I work for Facebook, which is a reasonable-sized website operator. In supporting the amendment that I and the noble Viscount, Lord Colville, have tabled, I first wanted to set out that we all have a common goal here, whichever side of the debate we are coming from. In a sense, it has been divided into sides, but I think that there is one common objective: unlawful defamatory material should be swiftly removed from wherever it should appear, whether in print media or on the internet. At the same time, there should be minimal collateral damage to content that is not unlawful. We want content that is lawful to stay up and people to be able to share it with each other, and content that is unlawful to come down. It is a simple objective, and both Amendments 26 and 27 are trying to take us towards that.
Amendment 27, in particular, is crafted in the context where we have people who are prepared to use any legal tools that we make available in ways that we did not perhaps intend, and will use them maliciously. There is no doubt that tools that are made available for people to request take-downs of internet content are used, and will be used, by people who are seeking to interfere with the freedom of speech of others. We must make sure that we have crafted the tools in such a way that we minimise that possibility, as well as maximising the opportunity for people to get content taken down that should be taken down. The objective is that 100% of the requests made through this process should result in the right form of action and that that action should be swift. I think the amendment, by specifying in more detail the form which the notice should take, is aimed to create what one might call a well formed notice. A well formed notice that has all the necessary information will be able to be acted on swiftly by the recipient of that information—in this case, the website operator—and the solution can be reached more speedily.
Lord May of Oxford
Many of the more celebrated cases in the libel tourism that has generated all this activity, such as the £1.5 million spent by the journal Nature in defending a plainly factual but defamatory statement about an Asian journal that was created simply to publish the papers of the sponsor, are of just that character. The statement were plain fact, but the action brought in this country by people outside it cost huge sums of money. The action involving Simon Singh was another example. What he was saying was plainly factual but was defamatory; it was intended to be so in every meaningful sense, and properly so. Somehow we keep losing sight of this in the legal elegances.
Lord Marks of Henley-on-Thames
I trespass on the noble Baroness’s time by giving another simple contemporary example. If I had said during his lifetime that Jimmy Savile was a horrible paedophile, that would have been seriously defamatory. Had I had access then to the information that we have now and he had sued me, I could have justified that. It therefore would have been defamatory but not unlawful. It is as simple as that.
Transforming Rehabilitation
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Lord Marks of Henley-on-Thames
My Lords, a major contributor to reoffending in the past has been the lack of support for prisoners on release, who at present often come out with very little money, as my noble friend has pointed out, nowhere to go and usually no work to do. Will the Minister ensure that the really welcome new commitment to mentoring and support for all prisoners on release is quickly implemented, properly resourced and thoroughly monitored by government?
Lord McNally
Yes, I hope so. I hope that one thing that is seen as a real breakthrough in these proposals is that we will be extending support services to those sentenced to less than 12 months. As many studies have shown, those short sentences have often been the source of most reoffending. Again, to make the point that there is a more holistic approach than that, in the Crime and Courts Bill we are trying to make community sentencing more acceptable to the public by putting a kind of punishment element into them so that they are not seen as the soft option to prison. That is another part of what we are trying to do, as is involving other departments such as the DWP and those dealing with health and social services. It is clear that a more holistic approach to rehabilitation is going to get the most results.