Criminal Bar: Funding

Lord Morris of Aberavon Excerpts

Thursday 15th January 2015 Grand Committee

Asked by

[Lord Morris of Aberavon]

To ask Her Majesty’s Government what assessment they have made of the long-term impact of current levels of funding of the criminal Bar.

[Baroness Garden of Frognal (LD)]

My Lords, as this debate is very tight, it will be much appreciated if noble Lords keep to the time that they have been allocated.

[Lord Morris of Aberavon (Lab)]

My Lords, I am delighted to initiate this short debate. I have no present interest to declare save for those on the register. As Attorney-General, I attended the monthly meetings of the Bar Council and, as head of the Bar, I presided over the annual meetings. On one occasion, I even had to exercise my casting vote, which pleased exactly 50% of those attending, but probably not the other 50%.

It was the Lord Chancellor who told the Commons Justice Committee:

“It is very important that the independent criminal Bar has a good future”.

I have not sought this debate to argue for more money for the profession that I had the privilege to practise in over a working lifetime; that is for others to argue. My hope is that, in this short debate, we can get confirmation from the Minister, who understands the profession well, that the Lord Chancellor meant what he said, and that he will spell out his hopes that, in the face of today’s difficulties, on his watch we will not see the decimation of a part of a profession that helps to underpin our freedoms.

It was Mr Nicholas Lavender QC, the chairman of the Bar, who said last year that the Bar was astonished that, on the Government’s figures and allowing for inflation, there had been a 37% cut in the funding of defence advocates’ fees in the Crown Court in six years. He maintained that he was,

“not aware of any other area of public expenditure where individuals have been asked to, and have, put up with cuts on this scale”.

The Bar took unprecedented steps to show how strongly it felt. It was encouraging that the Government decided that there would be no cuts that year in the advocates’ graduated fee scheme. Can we be assured that none will be proposed in immediate future years? The years have resulted in a massive reduction in expenditure on Crown Court advocacy. Fortunately, wise brokering broke the impasse highlighted in the Operation Cotton case. Sir Brian Leveson, on giving judgment in that case, said:

“We have no doubt that it is critical that there remains a thriving cadre of advocates capable of undertaking all types of publicly funded work developing their skills from the straightforward work until they are able to undertake the most complex”.

Sir Bill Jeffrey, who is not a lawyer, was commissioned by the Lord Chancellor to report on the market for criminal advocacy services. He reported that,

“the market could scarcely be argued to be operating competitively or in such a way as to optimise quality”.

When Sir Bill visited Crown Court centres and spoke to Crown Court judges who carry out the bulk of judicial criminal work at that level, he found that the “main area of concern” was that of,

“relatively inexperienced solicitor advocates being fielded by their firms (for what were presumed to be commercial reasons) in cases beyond their capacity”.

Sir Bill described the judges’ views as,

“remarkably consistent and strongly expressed”,

and said that in his view it would be a “mistake to discount them”.

I think I have said enough about the problems. It is no surprise that the relations between the defence criminal Bar and the ministry have been turbulent. It was my old friend, Kenneth Clarke MP, who, as Lord Chancellor, was one of the first to accept the Chancellor of the Exchequer’s proposals at the beginning of this Parliament. I do not know what brownie points he got for being first in the field, but, given the breadth of his responsibilities, it is no surprise that the profession is reaping the results of his alacrity.

Only a few weeks ago, your Lordships voted overwhelmingly against the limitation of judges’ discretion in judicial review cases. I believed, as did the House, that in a country that does not have a Bill of Rights judicial review was one of the bastions of the rule of law. An independent Bar, ready and willing to take up the cudgels on behalf of citizens, is vital to ensure that there is no infringement of the rights of the individual. Likewise at the criminal Bar, however odious the case, all parties who find themselves before the courts should have proper representation.

My experience, like many others, is that from time to time your non-lawyer friends will ask you, “How could you represent such an obnoxious individual?”. History is littered with such examples. My old friend the late Lord Hooson was defence counsel in the moors case. I am sure that he had to explain the role of counsel many, many times. A more recent example might be the Shipman case. Over the years those of us at the criminal Bar have had similar if less startling experiences. In my own experience it was of the upmost importance in the Broadwater Farm case that the prosecution was properly probed and challenged at every stage, as it was. One of the important pistons to the effective working of the engine of representation to ensure fairness is the sometimes questioned cab-rank rule.

Against the background of the horrific atrocities in France in recent days, the need for representation, as in our unhappy years of terrorist activity, will be more important than ever. I note and welcome the comments made by the Lord Chancellor in the reply that he gave in the House of Commons on 6 January to Jeffrey’s criticism and the letter to the chairman of the Bar Council on 22 December. The cab-rank principle has been described by many. I like very much the words of the noble and learned Lord, Lord Hoffmann:

“It is a valuable professional ethic of the English Bar that a barrister may not refuse to act for the client on the ground that he disapproves of him or his case. Every barrister not otherwise engaged is available for hire by any client willing and able to pay an appropriate fee. This rule protects barristers against being criticised for giving their services to a client with a bad reputation and enables unpopular causes to obtain representation in court”.

Against this background I wonder if it was the best use of the funds of the Legal Services Board to commission two professors to work out the impact of the rule. Sir Sydney Kentridge systematically destroyed the methodology and conclusions of this very academic review. The rule with all its practical implications is ingrained in young barristers from the day they begin to practise. The most persuasive evidence comes in a footnote to Sir Sydney’s opinion:

“I can say from my own experience that in political trials in South Africa in the apartheid years it was essential and invaluable”.

I would hope for some endorsement in the ringing tones of the Lord Chancellor’s comments which I have already referred to.

Female Genital Mutilation

Lord Morris of Aberavon Excerpts

Thursday 11th December 2014 Grand Committee

[Lord Morris of Aberavon (Lab)]

My Lords, I, too, congratulate the noble Baroness on raising this issue. On Tuesday the House debated judicial review and its importance in ensuring that Ministers act according to law. In a country without a Bill of Rights, this is an essential cog to uphold the rule of law, as the House decided overwhelmingly. In my short speech I talked about how a government department that I was responsible for reacted to an adverse decision of the courts, and the non-statutory inquiry I set up, as Attorney-General, following criticism of the Director of Public Prosecutions and the Crown Prosecution Service.

I am confident that the current Director of Public Prosecutions, whom I know, with her long experience of prosecuting, can be relied upon to fulfil the proper tests for prosecution: the public interest one and the evidential one. But you cannot make bricks without straw. I think that the public interest test is clear. However, there seems, from the paucity of prosecutions, to be substantial difficulties in the presentation of evidence. Do the difficulties lie with the families, with the victims, with the medical profession? If it is with the medical profession, where is the Hippocratic oath? If there is fault, where are the disciplinary procedures of the medical profession?

According to the Times, yesterday the Home Secretary said:

“Doctors who perform cosmetic vagina surgery could be committing a criminal offence”.

She added that that would be a matter for the courts to decide. However, if there are hardly any cases for the courts to decide, how is the rule of law being complied with? The Home Secretary also said that,

“prosecutions were already possible under 2003 legislation which strengthened the ban on FGM”.

Well, it is good to know the obvious. In my view, it is high time that there was a high-powered inquiry, with the co-operation of the medical profession, as to where and what the problem is.

In my time as Attorney-General I had regular meetings with the Director of Public Prosecutions, week in, week out, when we discussed significant and important cases. However, the decision to prosecute or not was for the DPP alone. Given the concern that so few cases are coming before the courts, and that there are prima facie cases that the rule of law is being flouted, how many times has the issue been raised in the regular meetings of the Attorney-General and the director? I have no doubt, given the significance of concern over this issue, that had I been in that chair, I would have raised it with my DPP, and I am sure that my DPPs would have raised it with me.

Criminal Justice and Courts Bill

Lord Morris of Aberavon Excerpts

Tuesday 9th December 2014 Lords Chamber

My real worry about this whole series of returns, having won the argument, having had a significant majority, having been advised by some of the best legal brains in the country, and having had—if I may dare say so to the noble Lord opposite—the support of large numbers of Conservatives and Liberal Democrats and almost every Cross-Bencher, is that, after all that, I hope, had I been a Minister, I would have tried to find a way through that was as simple as the one that has been presented by the noble Lord, Lord Pannick. This is a very generous amendment; for me, it does not go far enough. However, I shall support it. I hope that real Conservatives will support it because it is about the rule of law—that is really why I objected to the way that the noble Lord opposite spoke—which all of us in this House, irrespective of our parties, should support. That is why we are here. If we do not defeat this and insist on the amendment we will not have done our duty.

[Lord Morris of Aberavon (Lab)]

My Lords, I will not detain the House for more than a few minutes. I listened carefully to the last debate on this issue. There was nothing to add to the wide experience, in more than one capacity, of the noble and learned Lord, Lord Woolf, and of the noble Lord, Lord Pannick. In my non-ministerial years while at the criminal Bar, dealing with murders, rapes and frauds, the opportunities of polishing my talent in judicial review applications were few and far between. Hence, I did not speak earlier. However, what I want to say—it is a fundamental point—is that what I find offensive is the fettering of judicial discretion in a constitution that does not have the protection of a Bill of Rights. That is important.

The only point that I want to make in this debate is to show and illustrate, from my own experience, how government departments respond to an adverse finding in a judicial review. The Attorney-General’s office, for which I was responsible, has never, to my knowledge—certainly not up to my time—been judicially reviewed. However, the Attorney-General is responsible in Parliament for the Director of Public Prosecutions and supervises that office. By Act of Parliament, the Attorney-General appoints the director. He or she would be seen week in and week out, when significant cases would be discussed, although it is the director alone who takes the decision whether or not to prosecute.

Three important cases of death in custody—nothing, to my mind, having had a constituency next to a prison, would cause greater concern than an issue of that kind—were judicially reviewed as to the director’s decision not to prosecute. The court criticised the Crown Prosecution Service severely. What did I do? I immediately set up a non-statutory inquiry under a senior retired circuit judge, His Honour the late Gerald Butler, whom I located late on a Sunday night in the serenity of Cornwall and seduced him to do some additional work. His published report was extremely critical. I knew immediately that lessons had to be learnt and supported the work that I had undertaken to review fundamentally the Crown Prosecution Service. This was important additional evidence and it was essential to avoid a recurrence. Firm and speedy action was necessary. I hope that that brief example illustrates how one government department responded immediately to the findings of the court. The result was a huge transformation in the operation of the Crown Prosecution Service.

I have no reason to believe that any other government department does not take the findings of judicial review equally seriously; hence my firm belief in the unfettered judicial curb on the Executive—to ensure legality, to ensure that Ministers believe and act legally—and in the continuation of the long-standing judicial discretion which is the bastion for the maintenance of the rule of law.

Divorce: Effect on Children

Lord Morris of Aberavon Excerpts

Wednesday 26th November 2014 Lords Chamber

[Lord Faulks]

The noble and learned Lord is quite right. That is a matter that is being considered, with the idea that there should be non-binding guidelines that would enable parties to have at least an idea of what the likely outcome would be on divorce. In fact, mediation is often successful. Experienced practitioners are able to predict—not with certainty but with some confidence—the outcome of cases and then advise their clients accordingly.

[Lord Morris of Aberavon (Lab)]

My Lords, is the Minister aware of the significant concerns relating to the noble Baroness’s question about the absence of legal aid and the problems arising therefrom?

[Lord Faulks]

Legal aid is no longer available, as from April 2013. Whether divorces are always helped by lawyers is, of course, open to question. The Government are not convinced that lawyers are desirable at every stage of the process. Indeed, they feel that mediation is a much more satisfactory way of resolving disputes, whereas cases often result in benefits only to the lawyers rather than to the parties involved. Legal aid is available, within scope, for mediation. Following a recent development in April 2014, mediation is available to both sides, even though one side only is eligible for the initial MIAM session and for the first session after that. We believe that mediation is a much more satisfactory way of sorting these matters out.

Legal Systems: Rule of Law

Lord Morris of Aberavon Excerpts

Thursday 10th July 2014 Lords Chamber

[Lord Morris of Aberavon (Lab)]

My Lords, we are particularly grateful to the noble and learned Lord, Lord Woolf, for securing this debate. There could be no better example of the contribution made by the judiciary than the ever watchful eye of the noble and learned Lord; we have heard this afternoon, of course, his own outstanding contribution. Moreover, I have had the privilege of appearing before him. For the removal of doubt, I make it clear that my appearance was as counsel and not in the dock. Before I leave the issue of the integrity of our judiciary, I compliment another outstanding figure of integrity, the noble and learned Baroness, Lady Butler-Sloss. I compliment the Government on choosing her to fulfil a difficult role.

I will deal with only one aspect of the observance of the rule of law, and that is in international affairs and the difficulties that I experienced. It is the interpretation and implementation of the rule of law that causes problems. Domestic law in general is more certain than international law, where judicial precedents can be scarce. As the Attorney-General, it was my task to be the Government’s principal legal adviser. I was fortunate in being able to call on a galaxy of legal expertise to assist me. However, before I took office it never crossed my mind that the interpretation of international law would play such an important part and demand so much of my time and attention—from advising on resolutions of the UN Security Council and interpreting the Geneva conventions to drafting the rules of engagement for our troops. It seemed to be an endless conveyor belt.

However, it was the interpretation of the rule of law during the war in Kosovo that was my biggest problem. As Ministers, the military and civil servants, we are bound under domestic law and the Ministerial Code to obey international law, hence the military’s anxiety to get legal cover for its activities. With the growth of international courts, that is becoming more and more important. Our decision-makers, particularly but not only the military, could find themselves having to answer for their actions before an international court. My job was to give what assurances I could for the actions proposed by the Government. In Kosovo, the internationally assessed evidence was quite clear: an overwhelming humanitarian catastrophe was taking place in that country. Ethnic cleansing was being perpetrated on a scale with few parallels. What was the background? Article 2(4) of the United Nations charter prohibits the intentional use of force except for self-defence or with the authority of the Security Council. During my time, it was impossible to get the Security Council to allow the use of force by passing an appropriate resolution.

Was that the end of the matter? My Conservative predecessors had to consider whether force could be used on humanitarian grounds in Iraq 1 in order to set up no-fly zones to protect the Kurds and the Marsh Arabs. I distinguished Iraq 1 from Iraq 2, and they agreed that it could be used. The difference between Iraq 1 and Kosovo was that the United Kingdom acted passively in the former, whereas if bombing night after night was authorised in Kosovo we would be proactive, if not aggressive. We believed that there was no practical alternative to our proposed use of force and that it was the minimum necessary.

Our observance of what we deemed to be the rule of law was further manifested in that, night after night for 68 days, I personally had to agree each bombing target to ensure that we adhered to the Geneva conventions. I queried some of the applications to bomb, and I turned down the last application to bomb a great part of Belgrade. Many years later, I was present in Brussels when I heard the NATO supreme commander saying, “If the Brits thought it right, it must be right”.

My prognostications about the possibility of having to answer for our actions before an international court turned out to be true. I was summoned back from a conference in the Caribbean to lead for the United Kingdom in an action brought by Yugoslavia before the International Court of Justice at The Hague, in its attempt to stop the bombing. The United Kingdom was one of nine NATO defendant countries. The court found that it lacked prima facie jurisdiction to entertain Yugoslavia’s application. The main issue was deferred and never resolved. I was disappointed that the legality of our actions could not be determined, and some distinguished academic lawyers have since condemned and contested our actions.

I believe that international law has to evolve to meet the post-1945 conditions. I note that the present Attorney-General, in his advice to Parliament on the proposed military action in Syria last year, followed precisely and word for word the relevant observations set out in my own memoirs. In the part of his opinion that was published, there was no reference to the possibility of actions being challenged by a legally competent, interested country in an international court. I am sure that as a distinguished lawyer he made it quite clear that there was this possibility, and brought it to the attention of the Cabinet.

Finally, against the celebrations of Magna Carta, we can all be extremely proud of our own legal system and its contribution to the world.

Defamation Bill

Lord Morris of Aberavon Excerpts

Tuesday 15th January 2013 Grand Committee

[Viscount Colville of Culross]

Clause 5 is very welcome as it recognises the huge problems facing both complainants and defendants in libel cases with the introduction of the internet and its increasingly important position, as we have all discussed, in the arena for the dissemination of information. I want this amendment to build on the amendment put forward by the noble Lord, Lord Lester. I hope that Amendment 27, in the names of myself and the noble Lord, Lord Allan, will expand the discussion and set out the criteria for the definition of “unlawful”.

I am acutely aware of the ability of the internet to cause great damage to an individual’s reputation, as we have seen with the dreadful case of libel committed against Lord McAlpine, who has sued against many people who defamed him on Twitter. It is easy to focus on the high profile and serious cases such as that of Lord McAlpine and not on the many thousands of other libel complaints about online material where the distinctions between fact and opinion are more difficult to ascertain. We do not hear about these cases because, when in doubt, the website operators’ practice has been, in far too many cases, simply to remove the materials.

Smaller websites, such as Mumsnet and news and business blogs supported by WebPress, both of which support this amendment—indeed, they are not Goliaths, as the noble Lord, Lord Mawhinney, suggested—do not have the knowledge and capability to give their complaints proper scrutiny; nor do they have the legal resources to fight libel action and risk liability. The safest thing for them and many other internet intermediaries is just to take down the postings, which I believe would be damaging to free speech. It is therefore very important that Clause 5 strikes the correct balance between the right to protect the reputation of the individual and the freedom of expression on the internet. I want the notice of complaint procedure to be a cheap and easy means of striking this balance.

In Committee on the Defamation Bill in the other place, the Government rejected an amendment rather along the lines that I am putting forward today on the basis that it would be too onerous on claimants to have to consider the potential defences to defamation. The Joint Committee on Human Rights acknowledges this argument but considers the risk of website operators simply removing the material, rather than engaging in a proper analysis on the merits, as being too great.

The Government are correct to worry about whether claimants can be expected to understand the subtleties of libel defences, honest opinion and qualified privilege, and should not be forced to take legal advice in order to put forward the initial notice of complaint. However, complainants should at least be able to address the factual matters relevant to the complaint, including stating why any comments are unsupportable and why the claimant is likely to suffer serious harm. I want all the conditions to reach the threshold for the notice of complaint to be on the face of the Bill. Surely, if claimants are required first to check the Bill and then the regulations to find out what to put in the notice of complaint, as Clause 5(6)(d) suggests, it will only complicate matters.

I hope that the sub-paragraphs in my amendment will allow claimants to state basic factual information within their knowledge in relation to their complaint without having the need for lawyers. Paragraph (e)(i) under Amendment 27 asks the complainant why the allegations against them are defamatory. This already exists under Clause 5. Factor (ii) asks the complainant to state why the statement complained about is “inaccurate or untrue”. This addresses the possible defence of truth.

Factor (iii) asks the complainant to state why “any opinion” in the words complained of is “unsupportable”. It also might play in favour of the complainant because it asks them to provide any evidence to show that the comments in the posting are unsupportable. That would enable website operators to have some regard to the available defences of truth and honest opinion. This simply requires that the complainant provides factual evidence and so not have to get into a legal debate about whether the words complained of are statements of fact or comment.

Factor (iv) seems to be in line with the spirit of the Bill outlined in Clause 1, which ensures claimants should show that “serious harm” has been done to their reputation. It also fits with the interim guidelines put forward by the DPP on 19 December, which suggest that prosecutors should proceed against authors on social media only if the communication is more than offensive, shocking, disturbing, or satirical, or is more than the expression of unpopular or unfashionable opinion about serious or trivial matters, or banter or humour, even if distasteful to some or painful to those subjected to it.

The noble Baroness, Lady Hayter, suggested that Amendment 4 was a better way of dealing with this issue of seriousness. My concern is that that amendment is about commercial bodies, and not all comments on a site such as Mumsnet will be against commercial bodies; they might be against authors or experts in a field. It seems wise to have a seriousness threshold included in the notice of complaint.

In December last year I expressed my concerns to the Minister about the criteria for the notices of complaint. They are addressed in paragraphs 8 and 9 of the Ministry of Justice consultation sent out last week. I am grateful to the Minister for having included three of these factors from my amendment in subsection 9. However, I am concerned, as the noble Lord, Lord Lester, suggested, that the two paragraphs might add to the confusion over the difference between the words defamatory and unlawful. Paragraph 8 sets out what are called the core elements to be included in the notice of complaint, which are the same as those stated in Clause 5(6) of the Bill, which will raise them to a defamatory standard. Paragraph 9 goes on to state that the regulations have the option of looking at other factors, including the three that I have suggested, which would make them unlawful. Surely this would only compound the confusion between UK and EU standards, which I have already expressed.

I move on to factor (f) of my Amendment 27. I gather that there is a technical problem, and that it should in fact be in subsection (7), so it is perhaps more of a probing amendment. I will, in any case, put it forward for the Committee to consider. It will make provision for a procedure whereby a complainant, a website operator or an author who wants to dispute whether the contents of a notice of complaint under subsection 3(b) have met the requirements of subsection (6). This is meant to deal not with serious allegations of libel, which will have to end up in court, but with grey areas of more trivial cases.

After all, the notice of complaint will only contain the information provided by the complainant. The website operator or author could have reasons to question these contents; for instance, where there is a dispute about whether the original posting is defended by fair comment or is a statement of fact.

The Ministry of Justice, in its consultation paragraphs 23 and 24, explains what will happen if the author refuses to give full contact details to the operator. In that case, the website operator will be required to take the posting down, if it is to rely on this Clause 5 defence. This will leave them in much the same position as they are now—needing to remove large amounts of potentially non-defamatory material in order to avoid liability.

Paragraph 24 suggests—and the noble Lord, Lord Phillips, picked up on this—that if the complainant wishes to take further action, he will need to seek a Norwich Pharmacal Order for the website operator to release the identity and contact details that it has in relation to the author. My concern, and that expressed by the noble Lord, Lord Phillips, is that this order can cost at least £3,000 in legal fees and may not deliver the identity of the author in the end. The complainant could end up with an IP address through the broadband provider, but that will not guarantee that the identity can be uncovered. It might in fact be necessary to get another Norwich Pharmacal order to trace the IP address through a further website, which may turn out to be an internet café, the email of which may be [e-mail]. The complainant would then be out of pocket and still unable to contact the author.

Commercial sites such as TripAdvisor, as well as non-commercial websites such as Mumsnet, support this suggested procedure, as do commercial platforms like WordPress, which host small blogging sites, covering a wide range of subjects, some of which I hope your Lordships would regard as being in the public interest, such as news from Nigeria, advice on spare car parts and even which baby lotion to use. Many of these small websites and blogs cannot afford lawyers to defend a libel action, but would like to have a legal view on a disputed notice of complaint from a legal authority.

This procedure would also benefit the complainant, who would then be able to use the declaration by the master or a procedural judge, if it is in their favour, to deal with the problem of anonymous internet users repeatedly reposting the same material on other websites once the original website operator has decided to take it down. However, the noble Lord, Lord McNally, in his letter to me last month, and the noble Baroness, Lady Hayter, in her speech of 19 December, expressed concerns that the procedure would allow any author to hide behind anonymity by claiming that they were whistleblowers, while placing an extra burden on the complainant to fund the procedure. I want to emphasise that the procedure would be a means for dispute resolution about the contents of the notice of complaint, and one which could be initiated by the claimant, the author or the website operator. I hope that this goes some way to mitigating their concerns.

I am not a lawyer, I am just a journalist, but I am advised that the new procedure could simply latch on to the present master’s application procedure on the Queen’s Bench Division of the High Court. There could be a new section to the Queen’s Bench Division website with simple, procedural guidelines and copies of the standard form application and draft declaration for the claimant. The claimant could fill out the form, provide a copy of his notice of complaint and explain why it needs the Clause 5 criteria. That could be put before a master, who would decide whether to grant the declaration that the Clause 5 criteria have been met. Claimants would not need to lodge hard copy documents with the courts, as under the existing application procedure.

The master could ensure not just that the claimant had complied with the requirements of Clause 5 but that the claim met the basic requirements of a libel claim: that the words are defamatory, likely to cause serious harm and have no obvious defence. I ask noble Lords to consider my amendment favourably.

[Lord Morris of Aberavon]

My Lords, I make a brief intervention. I listened very carefully to what the noble Lord, Lord Lester, said, in moving his amendment, but I need a little further assistance. I am not quite clear about his purpose. I do not think that he specified—I was listening as best I can—the distinction that he makes between a statement which is defamatory and a statement which, additionally, might be unlawful. The danger I see, if they have the same meaning, is that the courts will look at the provisions very carefully and regard them as otiose. What purpose is intended? Does it create an additional burden on the complainant? When he makes his representations under the clause, will the complainant have to define in what way the statement is unlawful? Perhaps we could have assistance on that score.

[Lord Marks of Henley-on-Thames]

My Lords, I shall speak in broad support of the sentiment behind Amendment 27 in the names of the noble Viscount, Lord Colville of Culross, and my noble friend Lord Allan, but first I address Amendment 26, which I support as a bare minimum. I also address the point put by the noble and learned Lord, Lord Morris, to my noble friend Lord Lester. I think that my noble friend understated the position on what is defamatory and what defamatory means. As I have always understood it, a statement is defamatory if it causes the necessary damage to reputation. It may then be that under existing law, a defence of justification can be mounted which shows that the defamatory statement is justified as true. That does not stop the statement being defamatory, but it stops the statement being unlawful. In other words, it starts off as defamatory—I see learned agreement on the other side of the Room—and then one looks at the question of defences.

It follows that without the word “unlawful” in paragraph (b), the requirement that the complaint,

“sets out the statement concerned and explains why it is defamatory of the complainant”,

goes only half way and is nowhere near enough. I echo the sentiments expressed by my noble friend Lord Mawhinney about the view of the Joint Committee on the Bill and the topic: the purpose of whatever procedure we adopt is to give some protection, as far as is practicable, to persons defamed on the internet and, on the other side, to impose some responsibility on website operators, without ensuring that an operator is stuck with liability for all the material posted on his site.

I strongly supported, and indeed took some part in formulating, the notice and takedown procedure for material from unidentified authors proposed in our report, with the possibility of an operator securing a leave-up order for material that, although it was from an unidentified author, nevertheless the operator believed ought to stay up—for instance, in the case of whistleblowers. The Government have opted for a different procedure, and it is right that that procedure draws the correct distinction that we drew between the posts of identifiable authors, who can then be identified and sued, and anonymous material. Whatever system we have, though, it is important that there should be some quick and cheap option that levels the playing field between complainant and author or operator. The detailed notice of complaint as envisaged by Amendment 27, as the noble Viscount, Lord Colville, has explained, is a satisfactory first step.

I appreciate that it can be said that, subject to the point made by the noble Lord, Lord Lester, the word “unlawful” is required, but regulations could be made within the ambit of “defamatory and unlawful” that would expand upon the requirements for a detailed notice of complaint. However, I suggest that it is better that, rather than being left to regulation, the broad contents of the notice of complaint should be spelt out in statute. I say that because one of the purposes of the Bill, as we saw it in the Joint Committee, was to make the law as accessible as possible so that anyone could look up what procedures would be required by looking at the Act. By effectively leaving the requirements for a notice of complaint to delegated legislation, the simplicity of accessing the statute and accessing law on the internet is reduced.

It would then be necessary to add to the requirements for a detailed notice of complaint, something like Amendments 25A and 25B proposed by the noble Lord, Lord Browne of Ladyton, and the noble Baroness, Lady Hayter, in the previous group. I, too, was pleased to see the Minister’s response to those amendments show at least some flexibility or promise thereof. We would then have the beginnings of a system to ensure that, where defamatory material was posted by an operator, the detailed process of complaint would get some publicity because the notice of complaint would be put on the website by the operator. That would offer some partial protection to the person defamed. I applaud the suggestion that if the operator then fails to put up such a notice of complaint, which he can do, he must take his chances and accept that he is made liable to be sued by the deprivation of the Clause 5 defence.

I reiterate what has been said: neither the proposed system nor any system that we could possibly devise would be perfect, for the simple reason that my noble friend Lord Lester mentioned earlier today—namely, that we are trying to formulate a local response to an international phenomenon. However, I suggest in answer to some of the defeatism—the Minister was defeated up to a point in his earlier reply—there is no reason to give up on the problem because the system is not perfect and therefore do nothing. It is worth doing all that we can, I suggest, for two reasons. The first is that we can ensure fairness in respect of posts that are subject to our jurisdiction. The second, I suggest, is that by what we introduce in legislation, we can set an example of best practice for website operators elsewhere.

I would like to say a word or two about civil procedures that would be appropriate either under Amendment 27, under Clause 5 or under the regulations. I suggest that it is essential that any such procedures we adopt respond fully to the point made by my noble friend Lord Phillips of Sudbury that the procedures that involve going to court can be very expensive. The answer from the noble Viscount, Lord Colville, that this can be dealt with in the ordinary way before Masters is a partial answer only, because those of us who have attended before Masters, and have prepared interim applications before Masters and district judges in other cases, know that they themselves can be very expensive indeed.

What we envisaged on the Joint Committee was a quick and cheap paper-based or internet-based procedure, with specialist district judges simply looking at the case presented to them on paper and making a decision. Those specialist judges would give their decision, but it would of course be only a holding position, because action would be deferred. However, it is not right to introduce, by what we do now, a whole new level of expensive procedure in respect of internet actions, which, from the McAlpine case, we know can sometimes result in £5 awards or £5 settlements over a very large number of cases. Those cases need to be kept small, simple, quick and cheap.

Defamation Bill

Lord Morris of Aberavon Excerpts

Wednesday 19th December 2012 Grand Committee

[Lord Ahmad of Wimbledon]

We will take this on board in light of the comments that have been made. I seek the Committee’s indulgence on this. As I said, as ever, some valued points have been made and they will be duly considered. I will write to the Committee on that specific issue.

On Amendment 11A, my noble friend Lord Lucas spoke about Clause 3(4). Amendment 11A would remove the bulk of subsection (4) so that the third condition for the defence to apply would be satisfied if the defendant simply shows that an honest person could have held the opinion. That rather asks the question as to the basis on which they might have reached that opinion. Subsection (4) would simplify the current law. It would give some guidance as to the basis on which the opinion might have been formed, while avoiding the complexities which have made the defence too complicated and technical. The provision as drafted therefore strikes the right balance.

Amendment 12 would change the drafting of Clause 3(6) in a way which the Government do not believe would be helpful. Subsection (6) relates to situations where the “honest opinion” defence is raised but the defendant is not the author of the statement—for example where an action is brought against a newspaper editor in respect of a comment piece, rather than against the person who wrote it. In these circumstances, the defence will be defeated if the claimant can show that the defendant knew or ought to have known that the author did not hold the opinion.

To the extent that Amendment 12 shifts some of the wording in the subsection, it does not alter the effect. However, it also inserts a reference to the statement being published by the defendant in a form which is “substantially the same” as the statement by the author. This would create uncertainty in the law, as it could be read as implying that the defence might be available in situations where the defendant has changed the statement by the author. This is not desirable.

We have looked at specific issues. I return to the points made by the noble and learned Lord, Lord Berwick. I end my comments by again assuring him unreservedly that, while there were shortcomings, no offence was intended in my response. We will write to him fully on the matters he has raised previously and today. I hope that, on the basis of my comments, the noble Lord, Lord Phillips, will be prepared to withdraw his amendment.

[Lord Morris of Aberavon]

My Lords, I am sorry to say that I am confused by the Minister’s reply to the noble and learned Lord, Lord Lloyd of Berwick. It is not the Minister’s fault, I am sure; it is the departmental brief that he has been given. As I understand it— I may be wholly wrong—at present the Government are unable to respond to the noble and learned Lord’s comments which were canvassed in appropriate detail at Second Reading. Is the position that there is no government position?

[Lord Ahmad of Wimbledon]

I did refer to that. We believe that the situation is already covered by Clause 3(3), to be clear. However, I have again noted and totally taken on board the comments made by the noble and learned Lord, and acknowledged the fact that, as was mentioned at Second Reading, this issue would be fully addressed in a letter. As I have stated previously, I have asked the Committee whether we may write specifically on that issue and address any other issues which remain outstanding. Again, however, as I said in my comments, the Government’s position is that the situation is already covered by the clause.

Crime and Courts Bill [HL]

Lord Morris of Aberavon Excerpts

Monday 10th December 2012 Lords Chamber

[Lord Pannick]

My Lords, the Minister said that householders should not be subjected to criminal liability because of the use of force which may appear disproportionate in the cold light of day, and that the amendment is designed to redress the balance. It is very important to identify precisely what the balance is at the moment and, as the noble and learned Lord, Lord Woolf, and the noble Baroness, Lady Kennedy of The Shaws, have said, the law is very clear on this subject. The official specimen directions to a jury—what judges up and down the land actually tell jurors on this subject—are contained in the Crown Court Bench book which says:

“When considering whether the defendant’s conduct was reasonable do bear in mind that the person who is defending himself cannot be expected in the heat of the moment to weigh precisely the exact amount of defensive action which is necessary; and in this regard, the more serious the attack (or threatened attack) upon him, the more difficult his situation will be. If, in your judgment, the defendant was or may have been in a situation in which he found it necessary to defend himself and he did no more than what he honestly and instinctively thought was necessary to defend himself, that would be very strong evidence that the amount of force used by him was reasonable”.

This provides all the protection that the householder needs or, indeed, deserves. The Minister did not refer to any cases of unjust convictions, or even unjust prosecutions that should not have been brought. The highest that the Minister put it in his opening remarks is that such cases “might conceivably” occur in the future. This is surely the weakest basis for proposing law reform that your Lordships will have heard for some time. Furthermore, I agree with the noble Baroness, Lady Kennedy of The Shaws, that these amendments are inconsistent with our obligations under Article 2 of the European Convention on Human Rights to protect the right to life. It is one thing to allow the householder to use proportionate force and to assess that on the basis of what they honestly and reasonably understand the facts to be at the time they act in circumstances of shock and distress. It surely is a very different matter for Parliament to authorise the use of disproportionate force.

With great respect, I cannot understand why the Opposition Front Bench is not opposing this amendment in the Division Lobby today, despite the noble Lord, Lord Beecham, eloquently explaining that the amendment would cause confusion and nothing positive. It is all very well to treat this as a Second Reading debate but it is the only opportunity that this House will have to oppose the amendment. I hope that the Opposition will reconsider their position. I am sure that many noble Lords would join them in the Lobby if a Division were called.

This amendment is unnecessary, unprincipled and inconsistent with our international obligations. I hope that the Government will think again.

[Lord Morris of Aberavon]

My Lords, I am sorry that I missed the beginning of the debate: I was engaged on other business. I support everything that has been said against this amendment. It is unnecessary and confusing, and will be inflexible. My experience is much more limited: I was a criminal practitioner who had to sum up in these kinds of cases on dozens of occasions.

On those occasions, I always would quote—I am grateful to the noble Lord, Lord Pannick, for giving us an account of the current sentencing preferred remarks by the Sentencing Council—a namesake, who is no relation although I knew him. Lord Morris of Borth-y-Gest used to say that in the heat of a moment, one cannot judge to a nicety the appropriate amount of force that is reasonable. That phrase used to be quoted in the sentencing remarks and was referred to by my noble friend Lady Kennedy.

In summing up, will the Minister enlighten us as to the form of words that would be used by a judge to sum up a situation where he is saying that a disproportionate amount of force can be used? I should like to know what those words will be. That would clarify the situation beyond peradventure. I fear that the Lord Chancellor is making up the law on the hoof and will rue the day if this becomes part of our law.

Defamation Bill

Lord Morris of Aberavon Excerpts

Tuesday 9th October 2012 Lords Chamber

[Lord Morris of Aberavon]

My Lords, I apologise for being a little late and mistiming my arrival from my Millbank office. This is an important reforming Bill, even if it does not set the Thames on fire. As my noble friend Lord Browne of Ladyton reminded us, good work was commenced under Mr Jack Straw and continued by this Government. There have been important contributions from many bodies. Above all else, I pay tribute to the energy and scholarly pursuit of the subject by the noble Lord, Lord Lester, without whose work we might not be debating this issue today at all. We have all benefited by the publication of a draft Bill and the subsequent consultation. In the committee, we valued the heavy lifting done by the noble Lord, Lord McNally. Contrary to the surprise expressed in the Commons, Governments of different hues do pursue Bills whose groundwork has been done and prepared by previous Administrations.

On this occasion, Parliament took the wise course of setting up a pre-legislative committee, from both Houses, on which I served. The substantial unanimity on the need for reform that already prevailed was consolidated by the unanimous report of the committee under the wise chairmanship of the noble Lord, Lord Mawhinney. The noble Lord and the committee were able to deliver on time. The committee was fortunate in his leadership. It had a formidable task. None of us, I believe, was a leading expert in this rarefied field of law. My only experience, as a lifelong criminal practitioner, was advising on one case of defamation alone in my whole career. Perhaps this was a good thing. But throwing a discrete subject like this into the laps of parliamentary colleagues— however distinguished—was a heavy burden to tackle. There is a general belief in favour of pre-legislative scrutiny but it comes at a price. We sat for 18 sessions from April to October, and each session entailed considerable preparation. It may be an indication of how much time was saved to Parliament that the Commons disposed of it in five sessions of Committee. I do not propose to make any Committee points, but will concentrate on the broad thrust of some aspects of the Bill. We shall return in due course to look at some of the valuable comments made and some of today’s observations from the noble Lord, Lord Lester.

I welcome the Bill now, as I did in the committee, and give it my support, subject to what I have just said. Its object is to simplify the law of defamation and to make the law more transparent and more accessible, laying the ground for reducing the stratospheric and chilling state of costs in that field of litigation.

The Bill’s twin aims are to protect freedom of speech and at the same time provide adequate protection for reputation. It also seeks to come to terms with the technological developments of our age. The man or woman in the street needs easy access to the law, hence the observations of the noble Lord, Lord Mawhinney, that he prefers statute to common law. That may be so, but we should seek to ensure that the burdensome costs of bringing and defending actions, particularly cases brought by the powerful, are made more tolerable.

In addition to legislation, a great deal can be achieved by the reform of court procedures and stronger, earlier case management by our experienced judiciary. This should be strongly encouraged. The missing link in this debate, which we have been told about already—the lacuna—is the lack of publishing of regulations and the Civil Procedure Rules necessary to achieve this. The Government have had enough time to lift this veil. It is a serious criticism which should be remedied before too long; we should know what they have in mind as regards the regulations and changes in procedures.

Trial by jury has now to all intents and purposes fallen out of use. I remember the time when one of the most senior High Court judges, Sir Michael Davies, presided over most such trials. When the jury came to assess damages, he suggested that if they regarded the damage to reputation to be high, they should think of the cost of a detached house; if moderate, the cost of a medium-sized car; and if comparatively small, the cost of a nice holiday. Such words were a simple guide but, as far as I can recollect, they usually seemed to work.

The very fact of the possibility of a jury trial—remote as it now is—increases the cost of preparation and delays decisions. As part of the process of aiming to reduce costs, it was wise of those drafting the Bill to try to eliminate the possibility even further. In practice, it would no longer be a presumption. The matter will be left to the judges, but there may still be those rare instances—and the committee considered them—where, for example, public figures are involved and judges might find it in the public interest to have a jury trial. I hope that they would be very rare indeed. As one who has spent more than half his life addressing juries in criminal cases, I do not yield one iota in my defence of such a system where the liberty of the subject is at risk. We had some indication in the comments by the Minister that there would be, in effect, no read-across to criminal trials. I am sure that we will get that assurance before the end of this debate; I would value it very much.

The committee wrestled with the problem of definition but could not come up with one save to leave it, as I have said, to the experience of judges and a practice which has hardened over the years. The issue of limiting costs goes deeper. There should be every encouragement to the early determination by a single judge of many of the issues. Where jury trial in a particular case remained on the table, it would fetter their jurisdiction to determine many such matters. The costs implications are obvious. The simplification of the law and the early determination by a judge of issues, including striking out, coupled with the possibility of mediation and arbitration, should go a long way to lower costs.

The draft Bill proposed that,

“a statement is not defamatory unless its publication has caused or is likely to cause substantial harm to”,

a person’s reputation. The committee was persuaded by the noble and learned Lord, Lord Mackay of Clashfern, that there were better words for the initial hurdle that had to be overcome and to include “serious harm”. The Bill now proposes what is hoped would be an even simpler and, equally, a slightly stricter test of,

“publication … likely to cause serious harm”,

on its own. I surmise that there may not be a great deal of difference in practice, but it seems to raise the barrier just a little to the bringing of actions. Only time will tell, but I welcome this formulation, and we will see.

This brings me to an important point of procedure for all pre-legislative committees. It is important that the proposers of a Bill make it clear, in a way that the courts can take into account, when that Bill is seeking to make changes of substance in the law and when it is simply proposing to codify the common law. That is a vital distinction. Such a course would have been a great help to the committee and perhaps to the courts. Having said that, I was perhaps more alarmed than my colleagues in foreseeing the possibility, if not the probability, of litigation on the meaning of some of the words in the Bill. Despite the care and consideration that has been shown in its drafting, I surmise that this is inevitable, at least in the earlier years after it becomes an Act. I suppose that that is the price of any purported reform of the law.

I bear the scars of having assisted in the introduction of the breathalyser Bill in 1967—another inherited Bill—and of becoming one of the architects of a small cottage industry of litigation for a few years. The overriding object of ensuring that people of all backgrounds have access to the legal system should they be seriously defamed is a worthy one. The aim of reducing costs, one hopes, will minimise the chilling effect of the present system, which is out of reach of many people. I welcome the creation of the defences of “truth” and “honest opinion” to replace the common law defences of justification and fair comment. I also welcome the creation of the new defence of:

“Responsible publication on matter of public interest”.

It is new in the sense that it abolishes the common law defence known as the Reynolds defence. We have heard the noble Lord, Lord Lester, today, and recent submissions have been made to many of us. I suspect that in Committee we will have to examine this very closely and see whether it has achieved what the Government had hoped it would. Noble Lords have to pause for only one moment to consider that some of the issues that I have raised may well be ripe fields for litigation.

Lastly, there is a brave attempt in Clause 15 to tackle some of the problems of the internet. In the department’s memorandum prepared for the Delegated Powers Committee of this House, it indicated that provisions for the new notice procedure are likely to,

“be lengthy, detailed and technical and are not considered suitable to be on the face of the Bill … The aim is to provide greater flexibility to adjust aspects of the new procedure in the light of experience”.

As we all know, this is a field of rapid developments, and primary legislation would not cope with what may be the needs of the future.

The committee spent a great deal of time as part of its emphasis on cost savings on early resolution and believed in the development of a culture in which expensive legal action is the last, rather than the first, resort. I cannot improve on the words of the committee dealing with a strict enforcement of the pre-action protocol. It referred to,

“a presumption that mediation or neutral evaluation will be the norm; voluntary arbitration; and, if the claim has not been settled, court determination of key issues using improved procedures”.

I hope that in our consideration, the committee has assisted the Government and the House in what is an important and worthy reform.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Morris of Aberavon Excerpts

Monday 23rd April 2012 Lords Chamber

[Lord Carlile of Berriew]

I will give way in a moment; I shall just finish the sentence.

If the other place has got its reasons wrong then surely we are entitled to question those reasons in this House, and if the burden of the debate justifies it, to ask the other place to reconsider, on the basis that it has got its reasons wrong. I will give way to my noble friend now—but he does not want me to. I am glad that I have answered his question. I have nothing further to add.

[Lord Morris of Aberavon]

My Lords, I rise in support of the noble Lord, Lord Pannick. I am concerned about the reasons given in the Marshalled List, and perhaps the Minister can help the House. What are the financial implications if this amendment were accepted? The reason given is:

“Because it would alter the financial arrangements made by the Commons, and the Commons do not offer any further Reason, trusting that this reason may be deemed sufficient”.

If that is the sole basis for rejecting the amendment—or if there is any other reason, any other sinister matter, that the Minister is concerned about—perhaps he will tell us.

The noble Lord, Lord Pannick, has told the House that there are no financial implications to his amendment. The amendment states that the Lord Chancellor shall exercise his powers under this provision in order to ensure that individuals have access to legal services, and that it is entirely within his discretion,

“and subject to the provisions of this Part”.

This is a very carefully drafted amendment. It secures the Government’s financial position. The ultimate discretion is the Lord Chancellor’s, and I find it very difficult to foresee, in reality, any other financial implication.

[Lord Hart of Chilton]

My Lords, I have supported the noble Lord, Lord Pannick, throughout the process of this Bill. I do so again and I will not take up time to enlarge on anything that has been said thus far in support of the amendment. I simply risk causing the Minister convulsions by drawing his attention to the clock and indicating that we are well on our way to doubling the amount of time that the Commons took to dispatch four of your Lordships’ amendments. It also had the temerity to adopt a programme Motion that caused Sir Gerald Kaufman to stop in mid-track when he was saying:

“It is out of order in this House of Commons to accuse anyone of hypocrisy, so I—”.—[Official Report, Commons, 17/4/12; col. 208.]

We shall never know what he was about to say, but it shows how well we attend to amendments in this House and how poorly they do so in the Commons.

--- Later in debate ---

[Lord Avebury]

My Lords, I join my noble friend Lord McNally in paying tribute to the noble Lord, Lord Alton, who has fought so tenaciously for the rights of mesothelioma victims and their bereaved families over many months and previously, before we got to these debates. I know that he has always espoused their rights and tried to do the best that he could for them. I also thank my noble friend Lord McNally for what he said about the Government’s intentions, the programme for settling cases without the necessity to go to court and the development of a scheme analogous to that which operates in the case of motor accidents where it is impossible to find the insurer. I welcome those moves but they are not in any way in conflict with what the noble Lord, Lord Alton, proposes in his amendment.

The arguments in favour of the amendment have been covered exhaustively in both Houses and I do not propose to repeat any of them now. I will say only that it is incomprehensible that, in the face of near unanimity on all sides among those who have spoken in those debates, the Government are still unwilling to give way. The argument that the amendment undermines the principle that in CFA cases the success fee and the ATE are to be paid by the winning claimant is destroyed by the concession that has been made on clinical negligence cases.

In moving to reject the amendment in another place, Mr Djanogly said that it was unnecessary because there was nothing in the Government’s proposals to prevent cases being taken or those affected receiving appropriate damages. If he had read the evidence that was provided by the Asbestos Victims Support Groups Forum UK, he would know that that was not true because many victims have said that they would not have brought cases if they had known that the success fees and ATE insurance would be deducted from the damages awarded. The Minister did not reply when asked directly by Kate Green whether he accepted that some cases would go unrepresented and unpursued.

Secondly, he trotted out the argument of inconsistency. Throughout these debates we have been perfectly clear in saying that we wanted to make an exception for the victims of what is universally acknowledged to be a particularly horrible disease that is invariably fatal, and the majority who voted for it were fully aware they were making an exception to the general pattern of CFA cases. The Minister then insinuated that the claims dealt with in the amendment were part of the compensation culture—an infamous suggestion when we are talking about people who are terminally ill. He went on to say that the Government were not persuaded that these cases were substantially different from other personal injury cases. I question whether he bothered to read our debates or has any knowledge of the ordeal that is experienced by mesothelioma sufferers in the final months of their lives. This is graphically described in the evidence submitted by the victims and relatives’ organisations, and known about directly by many past and present honourable Members from testimony that they received at their advice bureaux.

Finally, the Minister said that the Government were determined to bring down the cost of litigation. Let us be clear that, as my noble friend Lord McNally acknowledged, in this amendment we are talking about whether the claimant or the defendant pays the success fee. No cost to the taxpayer arises.

In another place, five Conservative honourable Members defied the Whip by voting for the mesothelioma amendment and several others abstained. It can be assumed that if it had been a free vote, the other place would have upheld the amendment and we would not be debating it today. It is only right that we should give them another opportunity to set aside the callous treatment that the Government have insisted on all along, and to substitute what we all know is the fair and compassionate answer.

[Lord Morris of Aberavon]

My Lords, I add my support to the noble Lord, Lord Alton. As constituency MPs, many of us saw cases to do with this very issue and the difficulties that some of our constituents had in establishing liability after years of contact. I added my name to the noble Lord’s original amendment and heard his speech then, which set out the case admirably. I congratulate him on continuing to expose such an injustice. At this late hour, all I wish to say is that my support continues and I hope that the noble Lord will succeed.

[Lord Thomas of Gresford]

My Lords, why success fees should be claimed at all by lawyers in this type of case just defeats me. The problem is in identifying the insurers of a particular firm that may have exposed the sufferer to asbestos many years before. I am delighted to hear that discussions are afoot on setting up a scheme akin to the Motor Insurers’ Bureau, whereby insurers come together to meet the damages and costs of a sufferer who cannot identify a particular insurance company behind his former employer. I hope that comes to pass. If it does, it will cure a lot of problems. It is obvious when a person suffers from mesothelioma; you do not have to prove that someone is suffering from this condition.

As a result of the Supreme Court’s decision last year, it has to be shown only that an employer has exposed an individual to asbestos in the past for that individual’s claim to succeed. The statistics show that these cases settle. What does that mean? It means that the fees of the lawyer are not at risk; he will have his ordinary fees paid by the insurer. Therefore, why should he get a success fee over and above that? On Report, I proposed that there should certainly be no success fee payable if a case settles before steps are taken to bring it to trial. I ask the Minister to take this into account when regulations are drawn up under what will be Section 46. The lawyer is not at risk. He has done nothing to earn more than the fees that he can properly charge. We did not have success fees in the past. We acted for people and, if we lost, we did not charge them. When we won, we got our costs and the expenses that we had paid from the other side, properly taxed. That was how the system worked.

I hope that the Government can bring in a combination of the Motor Insurers’ Bureau scheme for this type of case and couple it with regulations that say that no success fee should be charged when a case settles. That would do a great deal to alleviate the problems of which the noble Lord, Lord Alton, speaks. He is right. I stand along with Ian Lucas, my Member of Parliament in Wrexham, who as a lawyer says, “We didn’t come into this profession in order to take money from injured people”. I think that only a heartless claimant’s solicitor would charge a success fee in cases of this nature.