Defamation (Operators of Websites) Regulations 2013

Lord McNally Excerpts

Tuesday 26th November 2013 Lords Chamber

Moved by

[Lord McNally]

That the draft regulations, draft order and draft rules laid before the House on 14 and 21 October be approved.

Relevant documents: 10th and 11th Reports from the Joint Committee on Statutory Instruments, considered in Grand Committee on 19 November.

Motions agreed.

Sentencing Council: Guidelines

Lord McNally Excerpts

Wednesday 20th November 2013 Lords Chamber

[Baroness Miller of Hendon]

To ask Her Majesty’s Government what sentencing guidelines are issued by the Sentencing Council to advise judges on the choice of the imposition of either consecutive or concurrent sentences on persons guilty of multiple offences.

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

My Lords, the Sentencing Council issued the Offences Taken into Consideration and Totality guidelines in June 2012. They state that a concurrent sentence would be appropriate where,

“offences arise out of the same incident or facts”,

and where,

“there is a series of offences of the same … kind”.

A consecutive sentence would be appropriate where,

“offences arise out of unrelated facts”,

or where the offence,

“qualifies for a statutory minimum sentence and concurrent sentences would improperly undermine that minimum”.

[Baroness Miller of Hendon (Con)]

I thank the Minister for his reply, but does he not agree that perception is everything? The Sentencing Council admits that:

“Concurrent sentences are sometimes thought to mean that an offender is getting away with some offences”.

Why, indeed, should an offender convicted of, say, causing death by dangerous driving, driving while disqualified and driving while uninsured not serve separate consecutive sentences for each offence, so that justice can be seen to be done? Is the Minister aware that justice is not served when the system seems to operate like a supermarket: “Commit one crime and get another one free”?

[Lord McNally]

My Lords, I appreciate that sometimes the way in which sentences are reported can cause that reaction—but the courts are required to impose a sentence that reflects all the offending behaviour in every case, for both single and multiple offences. With concurrent sentences, the guidelines make it clear that the courts should normally aggravate the primary sentence to reflect the additional offences. These guidelines are about ensuring that the courts apply those principles consistently.

[Lord Clinton-Davis (Lab)]

My Lords, how frequently, if at all, has such guidance been given since the inception of the present rules? If so, in what circumstances has that arisen?

[Lord McNally]

My Lords, the Sentencing Council is a product of the Coroners and Justice Act 2009. I believe that that is a very good piece of legislation, because it places an obligation on courts, when sentencing for offences, to follow the guidelines of the Sentencing Council unless,

“it would be contrary to the interests of justice to do so”.

What that does, I hope—this was the intention of the legislation—is to bring consistency into sentencing, which we hope, as I think our predecessors hoped, gives greater confidence in the criminal justice system.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, the Sentencing Council guideline affirmed what is known as the totality principle. It generally works well in securing a uniform approach to sentencing for multiple offences that balances the need for reflecting overall criminality with the need for sentences that are just and proportionate. But does the Minister agree that, as the noble Baroness’s Question illustrates, much more needs to be done to explain this to a public who are very sceptical?

[Lord McNally]

Yes, I would agree. The totality principle requires that courts review the aggregate sentence against the totality of the offending behaviour and adjust it to ensure that it is a proportionate overall sentence. The noble Baroness who asked the Question made the point that the public, as they read these reports, are often dissatisfied with what they consider to be soft justice. I think that the more they understand the sentences, the more they will have confidence in them. Another reform by the previous Administration requires that judges more fully explain their judgments, and that is a welcome step in giving people greater confidence about why a particular sentence was given. I confess to a certain reluctance about televising the courts as I am worried that there could be the kind of slippery slope that we see in the American courts, but the changes that I have seen so far should give the public a better understanding of the system, and that can only be to the good.

Prisons: Prisoners with Children

Lord McNally Excerpts

Wednesday 20th November 2013 Lords Chamber

[Baroness Benjamin (LD)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper and I declare an interest as a vice-president of Barnardo’s.

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

My Lords, our reforms to transform rehabilitation to bring down reoffending rates will see the introduction of an unprecedented through-the-gate service. Under these plans, we are developing a basic custody screening tool that will be completed by prison staff for all sentenced offenders and remand prisoners. As part of that process, we will record whether an offender has any children.

[Baroness Benjamin]

My Lords, Barnardo’s and other leading children’s charities have found that children of prisoners are a very vulnerable group. They are twice as likely to experience depression, mental health problems and drug and alcohol abuse, and to live in poor accommodation. Many go on to offend and yet these children are unlikely to be offered any targeted support. Barnardo’s found that the courts keep no record of them and that there are no requirements to identify them to children’s services. Will the Government create a statutory duty for courts to identify defendants who have dependent children and agree that, by collecting those data, they will be better placed to detect vulnerable children with a parent in prison and ensure that they get the support they need from children’s services?

[Lord McNally]

My Lords, I am not sure that I can give the guarantee of a statutory function for the courts but our reforms for probation will mean that the important function of advising the court prior to sentencing —which will outline the offender’s personal circumstances, including dependants—will remain with public sector probation services. Our reforms to transform rehabilitation will also introduce through-the-gate services for those given custodial sentences.

I appreciate the point that my noble friend makes; it is a worrying factor that many of the young people who come into the criminal justice system are themselves children of offenders. We should certainly be looking at ways to break that circle and trying to make sure that these children are helped away from a life of crime.

[Lord Touhig (Lab)]

My Lords, in replying to a debate on this matter on 12 November, the Minister offered a meeting and I certainly look forward to that. I have since read his remarks from that day. When an elderly or disabled person’s carer is sent to prison, the cared-for person often suffers the most as, in many cases, the courts do not even know that they exist. Although I accept that there is the safety net of pre-sentence reports in certain circumstances, when bail is denied there is no pre-sentence report and the court may not know that there is a cared-for person around at all. The consequence is that the cared-for person becomes an unintended victim. How are we going to stop that?

[Lord McNally]

My Lords, I appreciate very much the point that the noble Lord is making, and I look forward to meeting him and the Prison Advice and Care Trust. In some ways, it is amazing that we are in the 13th or 14th year of the 21st century and that we find these gaps in our care provisions. I often think that it is not that the state does not care but that we are not yet good enough at connecting bits of the state so that people do not fall through the net. As part of the exercise of bringing forward this basic custody screening tool, I hope that by bringing in the expertise of organisations such as PACT we will be able to make sure that people do not slip through the net in the way that the noble Lord suggests.

[The Lord Bishop of Birmingham]

My Lords, perhaps I may press the Minister a little further. When a court is aware of a child whose parent is imprisoned and that child is in a vulnerable state, will he ensure that the court refers the child to the proper care of the local authority or a charity in the region where that child is living?

[Lord McNally]

I go back to what I would expect to be common sense in these areas. Courts already have a duty, in every case, to take account of any mitigating factors, including that the offender has primary care responsibilities for children or other dependants. However, it is important that the presence of such dependants is brought to the attention of the court. Again, I can only emphasise that the direction of travel we are going in is to try to make sure that the prison and court authorities are aware of their responsibilities and that they link up with the supporting organisations needed in these cases.

[Baroness Finlay of Llandaff (CB)]

Are the Government formally evaluating novel schemes, such as that at Doncaster prison, which aim to maintain the bonding between a parent and a child—particularly a new-born baby? The parent’s reoffending rate is lower, bonding takes place and the parental duty is learnt while the person is in prison, rather than it being destroyed during their incarceration.

[Lord McNally]

Yes, my Lords, we are following the Doncaster experiment. Last month, I announced a new approach to managing female offenders. We are developing the custodial estate so that women can stay closer to home and maintain links with their families, which is important not only for new-born babies but throughout childhood.

[Baroness Corston (Lab)]

My Lords, 17,000 children a year are affected by their mothers’ imprisonment. Given that the Government plan to close two women’s prisons, which means that there will be only 12 women’s prisons in England and Wales and which will lead to much longer journeys for those visiting their mothers and, often, to catastrophic breaks in the relationship between mother and child, will the Minister confirm that the mother and baby unit at Holloway prison is not subject to closure?

[Lord McNally]

I am not aware that there is any plan to do that but, if there is, I will write to the noble Baroness. However, such decisions are taken for operational reasons in the region. I have visited the Holloway unit and I know that it is valued because while it is not the most modern prison, it is close to people’s homes. The noble Baroness says that we are closing two women’s prisons, but the major complaint about those prisons which we plan to close is that they are a long way from anywhere, never mind not being close to home. We are developing the custodial estate so that women will be in the prison closest to their home. We have found from all the research that that is the factor which women in prison want. With that, coupled with the rehabilitation reforms and through-the-gate care for women, we hope to be able to address a number of the problems that the noble Baroness is concerned about.

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

Lord McNally Excerpts

Tuesday 19th November 2013 Grand Committee

Moved by

[Lord McNally]

That the Grand Committee do report to the House that it has considered the Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2013.

Relevant document: 11th Report from the Joint Committee on Statutory Instruments.

[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.

[Lord Beecham (Lab)]

Once again, there are three of us in this marriage, to quote a much more distinguished person.

I am grateful to the noble Lord, Lord Lester, for his long contribution to the evolution of the law in this area and the conduct of the debate. Of course, we spent a considerable time debating closed material procedures when we were engaged in a more recent piece of legislation. It is perhaps worth remembering that the procedures under SIAC are rather more stringent in terms of the criteria that a tribunal can apply, since the Justice and Security Act requirement is to protect matters of national security, but SIAC’s remit is wider. It has the potential of ruling out material that is contrary not only to the interests of national security but the international relations of the United Kingdom, the detection and prevention of crime or in any other circumstance where disclosure is likely to harm the public interest. That is a much wider range, but this is a rather separate case. We are not at the moment disputing that.

However, the Minister referred to consultation about the proposals. I make it clear that we are not opposing the proposals. He cited the special advocates, the Law Society, the Bar Council and the chairman of SIAC as having been consulted. He did not mention that the Home Office, the Treasury Solicitor, the security and intelligence agencies and the Foreign and Commonwealth Office were also consulted, which is perfectly proper. But can he say if anyone else was consulted? Were organisations concerned with representing people in this situation consulted? Were voluntary organisations such as Liberty or Justice for All consulted? Were any bodies or organisations working with those involved in immigration matters consulted, such as the association of immigration lawyers? It would be interesting to know whether the consultation was confined to those who might be expected to have few, if any, reservations about it as opposed to those who might want to raise other issues.

For my part, having had some communication from the association of immigration lawyers, there is one matter that I would be grateful for some elucidation about. There is a concern that the transitional provisions in the rules could allow a case currently progressing in the High Court as a judicial review to be hijacked and taken to the commission. I have no idea whether there is any substance in that fear. Will the Minister—perhaps not at this moment—clarify whether that is a possibility and, if it is a possibility, how likely it is and how many current cases might be caught? It would be a matter of concern if it is a possibility, although, of course, it may not be and I am perfectly content to await the Minister’s response on that.

Another possibility that has been raised is that perhaps some matters have been held back from being listed for hearing on a judicial review, if indeed it is possible that the problem might have arisen. Again, an assurance that that has not happened would be welcome. Having made all the points that I want to make, I support the order.

[Lord McNally]

I am grateful to my noble friend Lord Lester for his little historical background. He also hinted, as did the noble Lord, Lord Beecham, that every party which has had responsibility for these matters has agonised over that balance between the proper demands of justice and the need to protect national security. It is right that we agonise. I believe we do because we are of all political persuasions. This country is still a liberal democracy—with a small “l” and a small “d”—and liberal democracies agonise about how to get that balance right.

The noble Lord, Lord Beecham, asked for the list of other consultees and I am hopeful that I will be able to tell him that. As I mentioned in my opening remarks, around 60 cases currently are held in the High Court, which the Home Secretary intends to certify. My understanding is that those cases would then go to SIAC. If the full list of consultees has been passed to me, it has gone right past me, which would not be the first time.

[Lord Beecham]

Perhaps the Minister will write to me about that.

[Lord McNally]

I will write and put in the Library of the House the full list of consultees.

While I have been here today, the noble Lord, Lord Pearson of Rannoch, has been sitting in his place at the other end. I have to say that passing through my mind was the thought that when Talleyrand died, Metternich apparently said, “Now, what does he mean by this?”. I have been looking at my Order Paper wondering on which item of business the noble Lord would intervene; then I realised that his is the next business. So as regards any unworthy thoughts that he was going to intervene on any of my business, I am much relieved.

[Lord Pearson of Rannoch (UKIP)]

My Lords, I trust that it did not make the noble Lord too nervous. I thought that his performance was entirely fluent throughout.

Defamation (Operators of Websites) Regulations 2013

Lord McNally Excerpts

Tuesday 19th November 2013 Grand Committee

Moved by

[Lord McNally]

That the Grand Committee do report to the House that it has considered the Defamation (Operators of Websites) Regulations 2013.

Relevant document: 10th Report from the Joint Committee on Statutory Instruments.

[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.

--- Later in debate ---

[Lord Beecham (Lab)]

My Lords, I pay tribute to the noble Lord, Lord Lester, who was instrumental in securing reform of defamation law and has campaigned long and hard for that. I also join him in thanking the Minister for walking us through this rather tangled undergrowth of regulations. I am bound to say that the Minister reminds me less of Moses bringing down the tablets than perhaps Daniel exercising judgment. I should like to think that I was descended from one or other; I may be remotely connected but I do not think that I am descended from either of them.

After 45 years as a solicitor, I know something about the law of defamation, although I would not claim to be an expert. But when it comes to the world of computers, information technology and social media, I confess to being an utter novice. At the risk of being labelled a Marxist by the right-wing press or Conservative Central Office, I recall some words of Marx—Groucho, I hasten to add, and not Karl. In one of his films, which might have been “A Night at the Opera” but I would not swear to that, he is seen poring over a map and declares that a child of five could understand the map. He continues: “Bring me a child of five”. I am tempted to make the same request when confronted by matters of the kind encompassed by these regulations.

We share the Government’s objective to protect freedom of speech, in which the internet and social media can and do play such an important part. We welcome the thrust of the regulations, although perhaps it would have been better if guidance on Section 5 of the Defamation Act had been available in draft form when the legislation was under consideration on its journey through Parliament. The regulations appear to offer reasonable protection to the operators of websites but there are perhaps questions about the extent to which they adequately protect those who claim to be defamed by material appearing on those sites. Thus, the website operator will have a defence, as we have heard, to an action if it can show that it did not post the material in question unless the claimant can show that he or she did not have sufficient information to bring legal proceedings against the poster of the statement and that the operator failed to comply with a notice requiring it to identify the poster requested by the complainant. Of course, this assumes that the claimant has the means to pursue that legal remedy, a somewhat questionable proposition in the light of the matter of costs. We are not now dealing with conventional media stories with a limited shelf life and relatively limited audience, although perhaps quite a wide reach, but with material with a potentially unlimited shelf life—unless, like the Conservative Party’s once publicly available material, it can be conveniently hidden—and a consequently higher risk of damage to a complainant’s reputation.

Part 4 of the guidance explains that the operator will have a defence when the complainant has sufficient information to bring an action against a poster but, again, that relies on the claimant having the means to do so—and what if the poster is outside the jurisdiction? It is all very well for the guidance to proclaim that disputes should be resolved directly between the complainant and the poster but, in the event that the poster does not wish a statement to be removed and his details to be released to the complainant, the latter will have to obtain a court order to obtain the details, again raising the issue of cost. Would it not have been better to have established for these purposes a less formal and less expensive mechanism, in which a panel, perhaps financed by the industry itself, could determine whether the information as to identity should be released and whether the post should be removed, leaving the question of financial compensation to be determined by the courts?

On a further point, what is the Government’s response to the observation of the Secondary Legislation Scrutiny Committee to the need for the guidance to define,

“how terms such as ‘receipt’ are interpreted in this legislation”?

The Explanatory Memorandum to the regulations sets out the response to consultation and lays down welcome tighter timetables for action by the operator and poster following a notice of complaint. However, somewhat disappointingly, it requires further notices to be given when the material has been the subject of two or more complaints rather than immediately. Moreover, paragraph 9 of the Schedule to the regulations makes it clear that even the more limited protection afforded by this provision is available only when the same poster is involved. If a different person posts the same material, the whole process must be gone through again by the defamed claimant—and the material can be identical.

My honourable friend Dan Jarvis, speaking for the Opposition yesterday in the debate in the Commons, asked the Government whether they would keep the new process under early review, given the speed at which the world moves. Is the Minister able to confirm that that is the Government’s intention and that such a review would be initiated within a year of the regulations taking effect and be kept under regular review thereafter? Will they look again at suggestions made in Committee during debates on the Defamation Bill that would require the operator to post a notice of complaint, should one be received, alongside the alleged defamatory material so that those who view the material can, at least, be alerted to the fact that the matter is disputed?

Having said that, we support the regulations. As the noble Lord, Lord Lester, indicated, things change, and it is necessary to keep these matters under review. Perhaps some of the points that I have raised could be taken on board at the time of the first review and in the light of the experience that will develop over the next few months or so.

[Lord McNally]

My Lords, I am grateful for the contributions of both noble Lords. As the noble Lord, Lord Beecham, said, the noble Lord, Lord Lester, is very much the godfather of this Act, and I have benefited from his wisdom over the whole three years. As he says, the end is nigh, in that the Act will come into force on 1 January 2014, including these regulations. He points to the fact that although the Act itself will, I hope, give the kind of balance between freedom and the rights of the defamed which will stand the test of time, as he and the noble Lord, Lord Beecham, have said, legislators will always have the problem of how fast technology moves. I am not one of those who believe that new communications technologies should be beyond governance, but it is going to be a continuing challenge. The noble Lord rightly points to areas such as copyright, privacy and cybercrime, which we will continue to grapple with. But we set an example by being flexible and, as both noble Lords indicated, by underpinning free speech as far as we can and avoiding overregulation.

The noble Lord, Lord Beecham, always starts with a statement of modesty by saying that he does not understand these things and that they are all so complex. He then deftly skips through the particular regulations posing me difficult questions. I will try to address some of them.

Anyone listening to this debate will know that this is a complex matter, but it is complex because we have to get the balance right between the poster, the internet provider and the complainant. We do not want to overburden the provider with regulations or drag him into court cases. This is an attempt to ensure that the complainant and the poster are brought face to face, as it were, as easily as possible.

We are taking steps to introduce a system of cost protection for defamation and privacy and have recently consulted on that. We are currently considering the views expressed with the intention of introducing that as early as possible next year. I am grateful to the Master of the Rolls for the advice that he has given me on that.

On monitoring, it is always tempting, particularly for the Opposition, to ask for a review within a year. We obviously need an opportunity to see how these matters will settle down. Parliament has put in place formal reviews within a period of three to five years of royal assent. This Act will be subject to the usual arrangements of parliamentary scrutiny. However, the noble Lord, Lord Beecham, is quite right. We will continue to informally monitor the operation of these regulations and we will certainly not hesitate to draw the attention of Parliament to them if they do not seem to function as we hope they will.

On not releasing details and putting complainants to the cost of a Norwich Pharmacal order, there may be a good reason why the poster is unwilling to release the contact details. On balance, we consider that it is right for a court order to be obtained in these circumstances. However, there may also be cases where, through the operation of the process set out in regulations, a poster agrees to release contact details to the complainant, avoiding the necessity to obtain a court order.

The other question was on the matter of the definition of “received” in the regulations. While ultimately it will be for the court to interpret the regulations, we consider that the word “received” should be given its natural meaning and that therefore the notice of complaint would be “received” at the point when it is delivered. That is when it has arrived at the operator’s machine. We will make that view clearer in the guidance accompanying the regulations.

As both noble Lords indicated, the Act has been broadly welcomed by those who have campaigned for it. We believe that it will defend free speech while giving those who are defamed a reasonable opportunity for redress, and with some protection from the costs of doing so. Section 5 of the Act, and these regulations, represent an important part of the package of measures designed to reform the law of defamation. The noble Lord, Lord Lester, is right: given the way the world is moving from the printed page to electronic communications, it would have ducked the issue had we not tried to address the matter in the Act. In so doing, I think we strike a fair balance between freedom of expression and the protection of reputation, as I said in my opening remarks. The regulations strike a fair balance between the various interests involved, and their approval will enable the Act as a whole to be brought into force on a timely basis at the end of this year. I hope that noble Lords will agree that this is a proportionate and sensible measure.

Motion agreed.

Judicial Appointments (Amendment) Order 2013

Lord McNally Excerpts

Tuesday 19th November 2013 Grand Committee

Moved by

[Lord McNally]

That the Grand Committee do report to the House that it has considered the Judicial Appointments (Amendment) Order 2013.

Relevant document: 10th Report from the Joint Committee on Statutory Instruments.

[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.

[Lord Beecham (Lab)]

My Lords, I served my articles to a solicitor who was a coroner, and subsequently went into partnership with him. I may regale the Minister with a couple of stories from the coroners’ courts after the sitting. There are certainly some interesting side-lights that he might enjoy. I join the noble Lord, Lord Lester, in congratulating the Government on widening the range of possible appointees. There is no earthly reason why a competent and experienced legal executive should not exercise the coronal functions. In passing, I am also glad that we still have a chief coroner, notwithstanding the Government’s early aspirations in that regard. That should also lend confidence to the legal profession generally that the standards will be maintained.

It has to be said that, from time to time, one hears criticisms of coroners, as one does of other members holding judicial appointments in our legal system. Some of the new appointees may likewise incur some questioning and criticism, but that does not vitiate the thrust of the Government’s policy, which is to widen the range of potential applicants and encourage those who take that particular form of legal career to progress their careers and make their contribution to society.

We are glad to see the order and congratulate the Government on introducing it.

[Lord McNally]

My Lords, I am grateful to both noble Lords. I suspect that the clue to the unity is the fact that we were using legislation passed by the previous Government, including the reforms to the coroners. The chief coroner is of course very much the child of this House in the way that it advises and revises. It advised us to keep a chief coroner and, being a wise Government, we accepted that advice. I have benefited from it in bringing forward the order.

[Lord Beecham]

I thought for a moment that the noble Lord was implying that some of us were going to need the services of a coroner before very long.

[Lord McNally]

Ultimately, we all will.

The noble Lord said that he had some stories about coroners. Along the rocky road that I have travelled, I was political adviser to the Prime Minister, James Callaghan, whose personal physician was Monty Levine. Monty Levine was coroner in Westminster and Southwark for about 20 years. I think he was a doctor who qualified as a coroner. In the order and what is in the legislation, we are bringing consistency, but also an opportunity for diversity, both of which are entirely welcome. I am very grateful for the support from the noble Lords, Lord Lester and Lord Beecham, and I commend the draft order to the House.

Motion agreed.

Anti-social Behaviour, Crime and Policing Bill

Lord McNally Excerpts

Tuesday 12th November 2013 Lords Chamber

[Lord Hope of Craighead]

My Lords, I would like to make four brief points. The first is whether there should be a test in the statute, taking account of what has been said by the judges so far. The second is a brief word about the standard of proof, to which my noble and learned friend Lord Brown of Eaton-under-Heywood referred. The third question is the wording of the amendment, and the fourth is the wording of the clause that the Government are proposing.

On the first point, I am very much in sympathy with the points made by the noble Lord, Lord Faulks. Particularly in view of what the Divisional Court said following what the majority said in Adams, there is a bit of confusion as to the way the judges are going. I must say that I would have hoped that Adams had settled the matter, admittedly by a small majority, but then we find the Divisional Court in Ali using a formula which I do not think fits with the majority view in Adams very well, if at all. Given that state of affairs, the Government are probably right to say that the time has come for the matter to be laid down in statute. This has a bearing on a point with which I am inclined to agree with the noble Lord as well. We are dealing here with compensation, not the criminal law as such, and therefore while one has a concern about the presumption of innocence, it is not going to affect the individual’s position as to whether or not he is to be convicted.

I support the Government in principle on those points and, coming to my second point, I also support them on the standard of proof. The wording of Article 14(3) uses the phrase “shows conclusively”, which points the way to the standard of proof that the new clause is adopting. I would be very uneasy about reducing it to a balance of probabilities test in view of the background of the article and the purpose of the provision, which is to provide for compensation in exceptional cases which really do justify that kind of award.

On the third point concerned with the wording of the amendment, I am bound to say that I am troubled by it. I hope that the noble Lord, Lord Beecham, will look at it again. What he has done, as I understand it, is adopt the formula that was used in Ali by the Divisional Court. If one looks more closely at the judgments in Adams, it will be found that the majority were not adopting a formula that, as my noble and learned friend Lord Brown rightly pointed out, is used more or less every day in the court of criminal appeal. It was not in the mind of the majority—I have to say that I am speaking as a member of that majority—that any conviction which is shown to be unsafe should justify an award of compensation; not at all. Lord Bingham, who started thinking about this before we came to it in Adams, was talking about some kind of failure in the trial process, something quite fundamental which has gone wrong. The example mentioned by my noble and learned friend Lord Brown was the person brought to trial here who should never have been brought to trial here at all. That is quite a strong example. One is looking for something different from and more exceptional than the Ali test indicated. I suggest that the noble Lord, Lord Beecham, and his advisers look more closely at what the noble and learned Lord, Lord Phillips, said in paragraph 55, supported by the noble and learned Baroness, Lady Hale, in paragraph 114, the noble and learned Lord, Lord Clarke, in paragraph 217 and myself in paragraph 74, indicating that what was really being looked for was something that is so fundamental that it undermines the evidence so that no conviction could possibly be based on it. The words “so undermined” and “could not possibly” were intended to indicate a much tougher test than the test that rightly is of concern to my noble and learned friend Lord Brown.

Coming to the wording of the Government’s proposal in Clause 151, it may be a practical point, but it is a fundamentally important point. I have here the letter which was written by the noble Lord, Lord Taylor of Holbeach, to the noble Baroness, Lady Smith of Basildon, on 7 November. Quite rightly, he is pointing out for everybody’s information that the applicant will not need to prove anything. What he is saying is that the requirement that the clause imposes is something that will be satisfied simply:

“they will not need to provide any information apart from the Court of Appeal judgment quashing their conviction”.

Very well; that is the material to which you look. The individual does not have to prove anything except simply tender the judgment of the Court of Appeal and say to the Minister, “Here it is, see what you can make of it. Does it come up to the required standard?”.

That brings me to one of the cases which the noble Baroness, Lady Kennedy, was looking at. It is the case of Sally Clark, which was one of the most tragic cases, I think, that has ever come to the court’s attention. Noble Lords may remember that she was the lady who had two babies, each of whom died. Initially, it was thought that this was due to cot death. The authorities were not satisfied with that; it looked like too great a coincidence. The matter was referred first to pathologists, who conducted post-mortem examinations of both infants. Then it was referred to Professor Meadow, who looked at the statistics. He came up with a statistic that the situation of two infants dying and their deaths being attributed to cot deaths was really stretching the imagination far too far, because if one has a second death following on the first, the chances are one in 74 million against its being due to natural causes. That startling statistic was the basis of the Crown case before the jury. The jury convicted.

Subsequently, the case first went on appeal and the conviction was upheld by the Court of Appeal. It was then referred by the Criminal Cases Review Commission back to the Court of Appeal. The significant point is to look at the way in which the Court of Appeal dealt with the argument. The noble and learned Lord and his advisers may care to see the way in which the narrative proceeds in the case of Meadow, which was reported in 2007 Queen’s Bench 462. The relevant facts can be gathered from paragraph 102 in the judgment of Lord Justice Auld and the opening remarks of the Master of the Rolls, Sir Anthony Clarke.

The point is that the basis on which Sally Clark’s conviction was set aside was non-disclosure of relevant material by the biologist who conducted the biopsies, the post-mortem examinations of the infants, particularly one point relating to the second of the two infants to die. It was a non-disclosure point. With great respect to those who are proposing Clause 151, I do not think that it could possibly satisfy the test which Clause 151 sets out. The Court of Appeal did not go ahead to examine the significance of the evidence of Professor Meadow. It did not have to, because it found that non-disclosure was enough for the conviction to be unsafe and that was the standard being applied in that case.

Of course, there was no declaration of innocence; that certainly would not happen in our criminal Appeal Court. It was on the basis that it was unsafe on the ground of a non-disclosure. However, if one had gone on to look at the statistic, which was grossly irresponsible—indeed, Professor Meadow was taken to task by his professional body and found guilty of misconduct; serious misconduct was set aside, but he was found guilty of misconduct—that was evidence that should never have been placed before the jury, because the one point that he failed to disclose was that the statistic did not apply in a situation where two children were related. It was a statistic for when the children were unrelated, which was not the case that was being dealt with at all.

That raises a very real practical issue. The case destroyed that poor lady’s life, as we all know. I am haunted by the picture of her coming out of the court, having been successful in her second appeal. She had totally changed physically from when she went into prison and, as we all know, she later took her own life. If there was a case that called for compensation, surely that was it. I do not know what happened, as the case was decided early in the decade, before Mullen, which was the conviction from, I think, 2000 that was set aside. The question of the Mullen test did not arise and I think it was decided under some ex-gratia system, although I do not know the facts. However, that is not really what should disturb the Minister. The question is whether the test is one that could face up to that kind of case, which everybody would feel should see compensation.

It is a practical problem, and I support the Government a long way in their thinking. For reasons I have attempted to explain to the noble Lord, Lord Beecham, I am not in favour of his amendment, and would certainly not support it in its present terms, but I do ask the Government to look more carefully at their own version of the clause.

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

My Lords, I will correct the noble and learned Lord, Lord Hope, on only one point. I think that at one point he referred to me as noble and learned. Nothing could be further from the truth—I think, in fact, I am the first non-lawyer to rise to his feet in this debate. But we are none the worse for that, because this is about getting it right. I am very pleased that the way in which the debate unfolded showed what a challenge the Government are trying to meet. I have one little chide for the noble and learned Lord, Lord Cullen: he talked about the Government’s “ostensible” reasons, which implies that there are some less worthy reasons behind the legislation. Again, as the debate unfolded, it became clearer that we are trying to deal with some genuine problems. I believe that this debate will stand very good reading. We are all going off on recess and so will have the opportunity to study very carefully some very detailed speeches. The best advice that the noble Lord, Lord Beecham, gave was that we should all listen carefully to the arguments. That is certainly what I intend to do.

We are going to some fundamental questions. The noble and learned Lord, Lord Cullen, questioned whether Parliament has the right to override a carefully calibrated judgment of our Supreme Court. As I say, I am not a lawyer but I am, if I have any other description, a parliamentarian and have always thought that Parliament has that right, however well calibrated the judgment might be. The noble Baroness, Lady Kennedy, was very keen to see it as an affront to that fundamental principle of the presumption of innocence and, indeed, as an affront to our common law. The noble Lord, Lord Pannick, warned us that it was a breach of the European convention. Then, almost like the 7th Cavalry, the noble and learned Lord, Lord Brown, came over the hill with what sounded like, even from my layman’s position, a magisterial dissection of the arguments. I hope and advise that all participants in the debate, and wider readers, read what the noble and learned Lord, Lord Brown, had to say. He pointed out clearly that compensation was not available in all circumstances and that only a limited number would qualify. I will not try to repeat his arguments, as I want to study them carefully.

--- Later in debate ---

[Lord McNally]

It is always a great pleasure to follow the noble Lord, Lord Borrie. I have always thought of him as a complete Front-Bench loyalist but also acknowledge his considerable experience in this area. By the way, I am only teasing him about being a Front-Bench loyalist.

A long time ago I was director of the British Retail Consortium, and I know that it is one of the most irritating things for shopkeepers, large and small, when shoplifting is seen as some kind of victimless crime or childish prank. I often think, when looking at first-time offenders, that they should be listed as “first-time court offenders”. It is a scourge, and as the noble Lord, Lord Borrie, knows as a former champion of the consumer, in the end the consumer pays for the tolerance of shop theft. Therefore this certainly in no way trivialises shop theft. We intend to produce guidelines for the police on these provisions and we are currently working with the police and retail associations to draft guidance on them, which we hope will be available in time for Report. That will primarily cover the circumstances under which it would be appropriate to pursue the Section 12 Magistrates’ Courts Act procedure, which allows defendants to plead guilty by post.

The volume of people who go through the court is certainly a problem. Just over 120,000 people were brought to justice for shop theft in 2012, 40% of whom received out-of-court disposals. However, we do not believe that these changes will result in shop theft being treated less seriously; in the vast majority of cases they will affect neither where the case is tried nor the sentence that is imposed. Ninety-nine per cent of shop theft cases are heard in magistrates’ courts, and of those who are convicted 98% are sentenced there. Only 1,650 shop theft cases were sentenced in the Crown Court last year, and 90% of them resulted in a sentence that the magistrates’ court could have given.

It is true that there are remaining concerns about that in the retail sector. However, we believe that they flow mainly from a misunderstanding about what the provisions seek to achieve. Any incident of theft continues to be a serious matter. However, the changes we are introducing simply enable more efficient processes to be employed to bring such cases to justice quickly. They do not change the fact that 99% of shoplifting cases are already considered in the magistrates’ court and that 90% of cases involve goods worth less than £200.

Amendment 16 would reduce the number of shop theft cases to which Clause 152 applies by reducing from £200 to £100 the monetary threshold that defines these cases. However, I appreciate that that was a figure given to stimulate the debate. The purpose of the clause is to enable cases of low-value shop theft to benefit from more efficient arrangements that are limited to summary-only offences. In particular, it will mean that the procedure that enables defendants to plead guilty by post will be available, and the police will be able to make use in these cases of powers that they already possess, whereby they can prosecute certain offences where they are uncontested. The result will be to speed up the prosecution of these cases and to provide swifter justice for retailers.

Nobody would suggest that the theft of valuable property should be made a summary-only offence. A line has to be drawn somewhere, and the £200 threshold was chosen on the basis of research that was done in 2006 for the Sentencing Advisory Panel. That showed that 90% of all shop theft cases heard in magistrates’ courts involved goods worth £200 or less. Lowering the threshold to £100 would catch rather fewer cases—77% of them, according to that research. I am not sure what would be gained by excluding cases where the item stolen was worth more than £100. Almost certainly it would have no effect at all on where the defendants were tried or on the sentence that could be given. It would simply mean that the more efficient and speedier procedures would not be available in those cases.

I assure noble Lords that we do not expect all cases of low-value shop theft to be dealt with by post and prosecuted by the police in the defendant’s absence. That is not the intention. It may well be appropriate for prolific shoplifters to be charged and bailed to appear in court, to be dealt with in person. That would not only be suitable but necessary in cases where a custodial sentence was in prospect. The new provisions do not prevent this: whether the “guilty by post” procedure is used is discretionary. This is a matter for guidance which we are developing, as I have just said.

Amendment 17 would exclude from the ambit of Clause 152 any case in which the defendant had already received a caution, conditional caution or penalty notice for disorder in respect of shop theft. It is not clear why a case should be excluded from the scope of these provisions simply because the defendant had previously received a caution or other out-of-court disposal. That sort of disposal is not an unusual outcome for a first offence of shop theft.

The Government are aware of concern about people being given a succession of cautions for similar offences and have considered this as part of the simple cautions review, the outcome of which we will announce shortly. The expectation will therefore be that defendants who have already received an out-of-court disposal will be prosecuted. Prosecution for low-value shop theft under the streamlined procedure permitted by the new section seems an obvious and appropriate next step, and it would be perverse to rule that out. A person being prosecuted for the first time for offending at this level is most unlikely to receive custody, and is therefore very suitable to be dealt with under the new procedure.

I am grateful for the contributions made and hope that the amendment prompted the debate for which the noble Lord, Lord Beecham, hoped. I also hope that my explanation will provoke him to withdraw his amendment.

[Lord Beecham]

I always enjoy being provoked by the Minister. On this occasion I am happy to withdraw the amendment.

--- Later in debate ---

[Baroness Hamwee (LD)]

My Lords, I can well understand the problem that individuals facing sentence may be in denial about the consequences. In what I think is a parallel example, working on adoption through the Select Committee earlier this year and talking about placements of children and whether it was right for a child to be placed away from its birth parents, we were told time and again that it was at a very late stage that other members of the birth family would come forward offering to care for the child. I do not want to leap to conclusions on how this proposal might operate, so I ask the noble Lord whether he or those involved with this campaign—I regret that I have not seen the detail—have consulted, first, the courts and, secondly, the Local Government Association about the operation of such a scheme.

[Lord McNally]

My Lords—

[Lord Beecham]

My Lords—

[Lord McNally]

I know that the noble Lord is under pressure.

[Lord Beecham]

I am grateful to the noble Lord for giving way. I just want to say that we entirely support the amendment moved by my noble friend and hope that the Government will give it serious and prompt consideration. It seems to make an absolutely unanswerable case and one that could lead to the saving of public money, quite apart from any other consideration, avoiding, for example, children having to be taken into care or extra services being required in an emergency, which would save the public purse. That is another reason for supporting the amendment and I hope that the Minister will be able to say something positive about it.

[Lord McNally]

I am reliably informed that the noble Lord might have to quit, and I fully understand that; I know how reliable east coast trains are.

This issue raised by the noble Lords, Lord Hylton and Lord Judd, and by my noble friend Lady Hamwee is serious. I sometimes think that we are too ready to leap on the idea that the cold and uncaring state is not concerned about these matters. Sometimes some of these cases arise because an accused person has not informed anybody of children or dependants at home, and it is difficult in those circumstances to deal with matters. Courts already have a duty to take account of mitigating factors in every case, including the fact that an offender has primary care for children or other dependants. It is important that the presence of dependants is brought to the court’s attention, but the duty proposed in this amendment will not and could not force convicted offenders to tell the court about the existence of dependants.

The case law in this area makes it clear that a judge must perform a balancing act when making a sentence, weighing up the welfare of the child against other factors, such as the length of sentence and the necessary limitation on the offender’s rights by reason of their imprisonment. Where necessary, the court must obtain information on the consequences of the sentences on any children. It is important, therefore, that the existence of dependants is brought to the court’s attention. There will, however, be cases where the seriousness of offending is such that despite the existence of dependants a custodial sentence is necessary. I can also say that the changes in the women’s estate which I recently announced will try to make sure that women who are in prison and with family responsibilities are as close to home as the estate allows.

I appreciate that both noble Lords, Lord Ramsbotham and Lord Touhig, come to this from a deep concern. What they are proposing would place a duty on a criminal court following a decision to sentence an offender to immediate custody or to remand a defendant in custody to ascertain what arrangements had been made for the care of any child or dependant. I completely understand the sentiment behind the amendment. It is right that we should be concerned for the welfare of the children and dependants of those who are about to be deprived of their liberty. I am also aware of the Families Left Behind campaign from the Prison Advice and Care Trust—PACT—which also represents the views of a number of children’s charity and penal reform groups. Indeed, a number of noble Lords, including the noble Lord, Lord Touhig, and the right reverend Prelate the Bishop of Lichfield, referred to this campaign in the Second Reading debate.

I have now seen a very helpful letter from Bronwen Fitzpatrick of PACT that explains in more detail the context of this amendment. Let me say at the outset that I do not disagree with the sentiment behind the amendment. I do, however, have real concern about the details and the practicalities of what is proposed. I will mention these concerns briefly without going into too much technical detail. I should also say that I would be happy to meet Bronwen Fitzpatrick, as she asks in her letter to me. PACT has already met the Children’s Minister, Ed Timpson, but I would be equally happy to see Bronwen Fitzpatrick with the noble Lord, Lord Touhig, if that would help.

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[Lord Pannick]

My Lords, at the end of March, the Ministry of Justice stated that the Government were considering whether to ask Parliament to abolish the defence of marital coercion. That was after the defence was unsuccessfully relied upon by Vicky Pryce at her trial in March for taking speeding points on behalf of her husband, Mr Chris Huhne. I have tabled this amendment to find out when the Government hope to come to a conclusion on this matter.

Given the time, I shall deal with it briefly. Members of the Committee will know that Section 47 of the Criminal Justice Act 1925 contains a special defence for a wife who is charged with any criminal offence other than treason or murder. It is a defence for the wife to prove that the offence was committed in the presence of and under the coercion of her husband. No such defence applies to husbands for offences committed in the presence of wives. The defence cannot be claimed by a live-in partner of either sex, by the partners to a same-sex marriage or a civil partnership, by other family members who may live in the same household, or by employees. The defence does not apply if the husband is 100 metres away when the crime is committed. Neither wives nor any other person need this defence, because of the defence of duress and the ability to mitigate by reference to relevant circumstances. The existence of this special defence has repeatedly and consistently been criticised, including by the 1922 Avory Committee and by the Law Commission in its 1977 report, which concluded that the defence was not “appropriate to modern conditions”.

I hope that by Report the Minister will be able to tell the House that the Government agree that Section 47 is unnecessary, arbitrary and should be repealed. I beg to move.

[Lord McNally]

My Lords, for the sake of brevity, I hope that on Report I will be able to do just that.

[Lord Pannick]

I am very much obliged to the Minister. I beg leave to withdraw the amendment.

Power of Attorney

Lord McNally Excerpts

Monday 11th November 2013 Lords Chamber

[Baroness Trumpington]

To ask Her Majesty’s Government what steps they will take to make it easier to nominate a power of attorney.

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

My Lords, the Government have taken the following steps to make it easier to make a lasting power of attorney. First, the Office of the Public Guardian has released a test version of a digital tool which allows donors to make lasting powers of attorney online. Secondly, it has redesigned its paper forms to make them easier to follow and is consulting on proposals to combine the application processes of the two types of lasting power of attorney and to introduce a digital signature. The fee for registering a lasting power of attorney has been reduced from £130 to £110 from 1 October this year.

[Baroness Trumpington (Con)]

My Lords, I wonder who has told who about that reduction because I was quoted £200 by the lawyers. Many women, and maybe men as well, are thoroughly put off by the amount of money it will cost simply to do what one used to do. If the Minister asks his more elderly relations he may find out that one used to get a bit of paper, write on it “I give you power of attorney”, sign it and send it to the bank—that is all you had to do. This whole business seems to me unnecessarily expensive and time-consuming. I ask whether we might return to having a simple piece of paper.

[Lord McNally]

My Lords, I have to tell the noble Baroness that the number of older relations I have is becoming increasingly small. I take the point that she made, but we also have to be careful in dealing with matters where often quite considerable sums, in terms of inheritance, are in question. There has to be an orderly process that can be much better checked than the noble Baroness’s scrap of paper with a line on it. We are trying—and the Office of the Public Guardian is making every effort—to consult on this, and the consultations end on 26 November. We are trying to simplify and make it easier for people to do this without having to pay expensive legal fees.

[Baroness Boothroyd (CB)]

My Lords, this is the document to register power of attorney: it is 12 pages chock-full of questions, cautions and warnings. It is the most verbose document that I have had to deal with either for myself or for those I have represented in over 30 years in public life. Of course there must be safeguards in all this. A doctor has certified in this document that I am capable of making decisions—I have all my marbles. Why then do I have to name from two to five people to be told that I am registering power of attorney so that they can object to it? Why? Can this bundle of red tape and jargon not be withdrawn, consolidated in a new draft and put in the Library so that I and people such as the noble Baroness, Lady Trumpington, who said it all, and lots of other people who might want to see this—solicitors and what have you—can inject some common sense into it?

[Lord McNally]

The last thing that I said to my officials was, “You realise I’m going to be addressing an informed and vested audience?”. I will make sure that the Hansard of these exchanges is taken as part of the public consultation, which I emphasise ends on 26 November. The reason for the consultation is very much to do with the noble Baroness’s point: there were, and continue to be, complaints about how complex this matter is. We hope that the outcome of the consultation will be a much simpler process which people can use.

[Baroness Turner of Camden (Lab)]

My Lords, I am very glad to hear from the Minister that simplification is intended. Recently I have had to deal with these complications because unfortunately my sister is in the early stages of Alzheimer’s and it has become necessary for me to find somebody to assume the power of attorney in that case. It is not easy. It is not only complicated and expensive but the person whom you nominate, and who has been nominated by me via our lawyers to handle the power of attorney, has his own job to get on with. It is also very time-consuming for the person who assumes it. I am grateful that a relative of mine has taken on this task, but it needed a bit of persuasion. It is not only the expense; it is also the time involved in doing it. It is important that it be really simplified so that people can take this job on. This is increasingly important as we are dealing with an older population in which people require this kind of service as simply and quickly as possible.

[Lord McNally]

My Lords, the noble Baroness has put her finger right on it. We all know the change in the structure of the population that is going on. I am always amazed when I am in the corridor and pass a colleague who I know is as old as I am and who says, “I’ve got to go and visit Mother this weekend”. That is one of the responsibilities; and because of these increasing responsibilities, we have to make sure that as well as making this process simple, we also make it fraud-proof. That is the balance that we are trying to get.

[Lord Phillips of Sudbury (LD)]

My Lords, I am taking my life in my hands a bit by confronting the two noble Baronesses but, as an old solicitor, I wonder if my noble friend Lady Trumpington has taken account of the fact that the piece of paper that she so rightly said she could sign and waft off is still available to her. She can still go to a stationer and buy a general power of attorney for a pound, and that is all that she will need to pay. The problem is that the lasting power of attorney created in 2007 deals with people who have lost their capacity to command and deal with their own affairs. That is a hypersensitive issue, and within a family many people might be deeply uneasy about who gets that power, particularly in terms of life and death issues. Perhaps the answer is not as simple as it might at first appear.

[Lord McNally]

My Lords, I am extremely grateful for that question. I look forward to witnessing the meeting of my noble friends Lord Phillips and Lady Trumpington in Peers’ Lobby after Questions.

Probation Services: Privatisation

Lord McNally Excerpts

Thursday 31st October 2013 Lords Chamber

[Lord Ramsbotham]

To ask Her Majesty’s Government what is their response to the request of the Chief Executives of Probation Trusts to delay the proposed privatisation of probation services for six months in the interests of public safety.

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

My Lords, there is a pressing need to drive down reoffending rates, which is why we are reforming the system for the rehabilitation of offenders. Public safety is always our top priority, and the department is working closely with trusts to minimise any disruption to the work that they do to protect the public.

[Lord Ramsbotham (CB)]

My Lords, I thank the Minister for that reply, but letters from experienced chief executives of probation trusts directly to a Secretary of State suggest a worrying lack of trust in the system between them. Behind those letters is an understandable concern about the current timetable in which chief executives were required to start work on 28 October, three days ago, on a realignment process for their staff that has to be completed by 31 January 2014, including the confirmation of outcomes for all their staff. However, despite frequent requests, as of yesterday they had not been provided with any details of the number of posts, the workload or the resources on which they can base any assessment, let alone allocation. Apparently, much depends on a risk assessment process that has yet to be resolved. When will these details be available, and why will the Secretary of State not agree to a reasonable and sensible request for delay?

[Lord McNally]

Any transformation programme is difficult, and keeping to a timetable is always challenging, but I do not believe that a six-month delay would promote better or more efficient work than is now being done. Of course we will keep these matters under review and check how progress is being made. There is a campaign in some quarters against the idea of these proposals but, in the main, we are having very constructive discussions with the trusts. I am confident that we will be able to keep to the tight but achievable timetable that we have set.

[Lord Beecham (Lab)]

Does the Minister think that the rushed changes to the probation service, before the House of Commons has even discussed the amendment passed by this House to the Offender Rehabilitation Bill requiring parliamentary approval for such changes, will prove less of an omnishambles than NHS reorganisation, the 111 helpline, universal credit, personal independence payments, legal aid or the sale of Royal Mail?

--- Later in debate ---

[Lord McNally]

As for the idea that this is a rush, we are using 2007 legislation brought in by the last Administration and basing much our approach on the pilots in Peterborough and Doncaster which were brought in by the last Administration, so the idea that involving the private, charitable and voluntary sectors in probation work was thought up on the back of an envelope and is being pushed through in a few weeks is simply not true. We are moving in a direction that the previous Administration had already set in line. Admittedly we are making some radical changes, including bringing in a National Probation Service, which will give probation an authority and status which it has long lacked under previous schemes.

[Lord Dholakia (LD)]

My Lords, does my noble friend accept that in the short term there will be a considerable impact on the employment and retention prospects of probation officers? In the light of that, will he ensure that probation services are informed about job opportunities in the private sector and that the private sector gives priority to the employment of people from the probation service so that their experience is not lost to the criminal justice system?

[Lord McNally]

I have great confidence in the human resources work that is being done to make sure that, where work is transferred across to the private and voluntary sector, existing probation officers get good opportunities for employment. My view is that many of the new entrants into this market will want to grab the experience of existing probation officers. I also hope that we can push forward with the idea of a chartered institute of probation, which again would give probation and probation officers the status that they previously lacked in our system.

[Lord Marks of Henley-on-Thames (LD)]

Can my noble friend say what steps the Government are taking to ensure that the new owners of the community rehabilitation companies, when they are sold by the Ministry of Justice in the second stage of this process, will represent the diverse range of providers that he described and which the Government seek, rather than just a handful of large commercial organisations?

[Lord McNally]

This also is work in progress and where we have learnt, including from some past mistakes. We have put aside money to allow would-be entrants, particularly in the voluntary sector, to prepare for bids. My impression is that we are tapping into a large unused resource. Let us never lose sight of what we are bringing forward. The part of the bargain that really excites me is that we are going to be able to give help, support and rehabilitation measures to those who are sentenced to less than 12 months, the very sector which includes some of the most prolific reoffenders. This is a rehabilitation revolution. Although transfer and change are always difficult, we have this on track. However, in answer to the original Question asked by the noble Lord, Lord Ramsbotham—and I know the care with which he takes an interest in this—we will be keeping these matters under constant review and, as always, I am willing to meet him on these matters.

[Lord Rooker (Lab)]

On the original Question to which the Minister just referred—and I have listened with care to his answers—the noble Lord, Lord Ramsbotham, made it specifically clear that the starting gun was to be fired on 28 October. It is now 31 October. We are already three days late at the beginning. So what is the answer? When will that date and that target be met?

[Lord McNally]

The Question implies a kind of sprint race where there is the firing of a gun. Some of these things have been in track for months and indeed years, and will continue in progress after October, after next April and after the October after that. We are managing change in a very important sector, whereas the Question implies that public safety must be paramount. The idea that we are somehow firing a gun and everybody rushes off ignores the reality of some careful preparation which is under way.

Ian Brady

Lord McNally Excerpts

Thursday 31st October 2013 Lords Chamber

[Lord Campbell-Savours]

To ask Her Majesty’s Government whether, in the light of the amounts paid in respect of the mental health tribunal for Ian Brady, they will review the amounts payable from public funds in such cases.

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

My Lords, the Government currently have no plans to review the amount payable in these types of cases.

[Lord Campbell-Savours (Lab)]

My Lords, is it fair that in the case of Moors murderer Ian Brady, Mersey Care—in other words, the hospitals on Merseyside—had to spend £181,000 in a mental health tribunal? A further £92,000 then went to Brady’s lawyers, RMNJ Solicitors, along with thousands more to Scott-Moncrieff—more defence lawyers. Why should the taxpayer pay these exorbitant fees on a pointless appeal when law centres all over the country are being run down and CABs are being starved of resources? What are these lawyers doing for all this money?

[Lord McNally]

In this particular case, the entire process took almost three years and culminated in an eight-day tribunal hearing. This is a legal process and the trust had no option other than to comply; neither did the Legal Aid Agency.

[Lord Thomas of Gresford (LD)]

My Lords, I was present at the trial of Brady at Chester Assizes in 1966, where he was represented by my noble friend the late Lord Hooson. He did not plead insanity at his trial. Indeed, he served some 19 years in an ordinary prison. It was a decision of the prison authorities to send him to Ashworth hospital, where he tried to commit suicide by starving himself to death. He was force-fed, and the purpose of his application to be transferred back to an ordinary prison was so that he could starve himself to death without being force-fed. Since the cost in Ashworth was well over £250,000 a year, was not the money well spent even if the decision went the other way?

[Lord McNally]

My Lords, it is very difficult to find much sympathy for Mr Brady, although it has to be said that he has been judged to be medically ill. Our law says that in those cases the mental health review tribunal is part of the process of our legal system and that a patient is entitled to a tribunal hearing, as set out in Part V of the Mental Health Act 1983. We cannot have one law for those we find worthy and another law for those we do not like. In some ways, it is the fact that Mr Brady has the protection of the law that should give reassurance to the rest of us.

[Lord Hunt of Kings Heath (Lab)]

My Lords, to go back to my noble friend’s point, surely, given the size of the cost to the local mental health service, it ought to be helped out by the Department of Health.

[Lord McNally]

My Lords, I asked that question during the briefing. It is an almost unique case. I think that there have been only two such cases in recent times. I am speaking off brief at the moment, but it seems unfair that a single health authority should take such a disproportionate hit on something that is really a national matter. However, the rules as they now apply are that the Ministry of Justice takes the state costs through the Legal Aid Agency and the health authority concerned takes the hit with regard to costs. The noble Lord makes a valid point and I will take it back to a probably not overenthusiastic Health Minister.

[Lord Patel of Bradford (Lab)]

My Lords, will the Minister take another suggestion back with him as well? We have three special health authorities of which Ashworth in Merseyside is just one; we also have Rampton and Broadmoor. The potential for high-profile cases in any one of those hospitals to impact on local health trusts is enormous. It would be really helpful if there were a way for a special allocation of funding to be made that did not impact on those mental health patients who do need care and attention.

[Lord McNally]

That is the value of this exchange. I will take that suggestion back. This is not a responsibility of the Ministry of Justice—as I say, the Legal Aid Agency is responsible for the legal costs on that side—but, as it now stands, those three health trusts are liable. I will report back to the Health Secretary and see whether this could be looked at. I hope that this will remain an almost unique case but, as the noble Lord indicates, there is a possibility that another such case will arise so we should look at this.

[Baroness Trumpington (Con)]

My Lords, does the mental health review tribunal come into this picture? I was proud to be a member of that tribunal, serving regularly in sessions at Broadmoor. Surely the tribunal should come into the picture, including the financial side of things. Examining Brady could come under its financial services.

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[Lord McNally]

I shall look at that point. However, as the rules now stand, it is the responsibility of the health authority looking after that patient. As I say, though, this exchange reveals that that may put too much of a burden on a single authority, and I shall certainly ask my right honourable friend to look at the matter.