Media Bill

Debate between Lord Pannick and Earl Attlee

Report stage & 3rd reading
Thursday 23rd May 2024 Lords Chamber

[Lord Pannick (CB)]

My Lords, when a judge gives a dissenting judgment, he or she often says that they have the misfortune to disagree with the other judgments. I have the misfortune to disagree with the observations made by all previous speakers in this debate. I declare my interest: I occasionally contribute to the press, as do many other noble Lords, and have acted as counsel for various media organisations, and indeed people suing the press, including in proceedings concerned with Section 40.

I can see no conceivable justification for giving special legal protection in relation to those publications which are signed up to the authorised regulator. Section 40 has not been implemented since 2013; it has long been effectively dead and it is high time for it to receive a decent burial. In the last 10 years-plus, we have seen the unauthorised Independent Press Standards Organisation act with independence, impartiality and good judgment to rule on complaints about press conduct. It has done so since 2020, since when it has been chaired by my noble friend Lord Faulks. Under his distinguished chairmanship, it has produced 800-plus rulings on thousands of complaints. Those 800-plus rulings are all contained on the website; they are entirely transparent.

What I find astonishing in this debate is that none of the speakers—who are so wedded to there being a protected, authorised organisation—has made any criticism whatever of any of the rulings made by the unauthorised IPSO. Your Lordships may know that the Times, the Telegraph and the Spectator have all complained that IPSO has been too tough on the press. If there are criticisms of IPSO, I would have expected to hear them today, but I have not. The noble Baroness, Lady Hollins, spoke of the need for high standards of ethical media regulation, but that is what we have from IPSO.

I am very delighted to see the noble Lord, Lord McNally, back in his place and that he is restored to good health; I wish him well. He spoke of the influence of big money. There is an independent regulator, which is under the noble Lord, Lord Faulks; his predecessor was a very distinguished, independent Court of Appeal judge, Sir Alan Moses, whom no one could accuse of being in anyone’s pocket. It is preposterous to suggest that there is no independent press regulation other than the authorised body.

The authorised body is Impress. I am sure that it has greatly impressed its new member, the organisation Responsible Reptile Keeping. Many, including the vast majority of the press, are not impressed by it to the extent that they wish to be regulated by it—and that is entirely their choice. It is wrong in principle that we should maintain any legislation that provides any advantage to anyone in relation to that body. The noble Earl wishes to intervene.

[Earl Attlee (Con)]

My Lords, I am extremely grateful to the noble Lord for giving way; I love debating this subject with him. I made a speech in the House of Lords in which I said that I would not name a bank, because it had been extremely helpful to me. That was reported in a newspaper, which said exactly the opposite: it named the bank and quoted all the horrible things that I had said about it. Those comments were actually from a position paper that I wrote some time before I made the speech. Can the noble Lord explain why, when I complained to IPSO, my complaint online disappeared into the ether? When I asked newspapers to publish a very nice letter from me, saying that there had been some misunderstanding and asking for the opportunity to correct the record, none of them agreed to publish it and my email just disappeared. That was because they knew that IPSO would have no effect.

[Lord Pannick (CB)]

The noble Earl knows very well indeed that I cannot possibly have any knowledge of the circumstances of his complaint. I am sure that if the noble Earl takes up the matter with the noble Lord, Lord Faulks, he will—as Ministers say—write to the noble Earl with an explanation. I am sure the noble Lord, Lord Faulks, will be very happy to place a copy in the Library of the House, but I cannot answer that.

Let us be realistic: we all have complaints about the press. Sometimes, they say nasty things about me; I am not as important as the noble Earl, so it is much rarer, but we are all aggrieved by the press. The fact that the press sometimes—maybe often—say foolish, unjustified things is the price of press freedom. There needs to be a regulator. However, there does not need to be an authorised regulator that has special protection, unless he and other noble Lords say that the unauthorised regulator does not do its job—but that is not the case.

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[Lord Pannick (CB)]

That is a very sensitive subject.

[Earl Attlee (Con)]

My Lords—

[Lord Pannick (CB)]

No—please let me answer the noble Baroness. The treatment of disabled people is a very contentious issue on which strong views are held, and I am not going to get into that debate. The noble Baroness also complains about my tone. I am sorry she complains about it. What I am seeking to do—I hope very properly, because we are all grown-ups here—is to deal with the substance of the arguments that have been put in favour of these amendments.

[Lord Pannick (CB)]

The noble Lord may recall, and the noble Lord, Lord Watson, will certainly recall, that Impress, the authorised regulator, was funded for a long time by the late Mr Max Mosley, who had very strong views about press regulation.

[Earl Attlee (Con)]

The noble Lord lost his case on that.

Police, Crime, Sentencing and Courts Bill

Debate between Lord Pannick and Earl Attlee

Lords Hansard - Part 1 & Report stage
Wednesday 8th December 2021 Lords Chamber

[Lord Pannick (CB)]

My Lords, if I may, I will add a point that follows on from what the noble Lord, Lord Beith, said. To require a life sentence is pure deception because we all know that life sentences are not life sentences, and there is a strong feeling that the life sentence for murder is a deception. Other than in the most exceptional circumstances, the person concerned will be released, and the judge pronounces, in open court, a tariff. I entirely understand why the Government wish to give comfort to the unfortunate relatives and friends of those heroic emergency workers who suffer this appalling treatment and die in service of the country, but it is a gesture—a misleading gesture. We really should not be perpetuating more and more life sentences when the reality is that people receive a term of years.

[Earl Attlee (Con)]

My Lords, arguing this case is far beyond my pay grade, but I support everything that my noble friend Lord Hailsham said in opposition to these amendments. I do not support Amendment 1.

Police, Crime, Sentencing and Courts Bill

Debate between Lord Pannick and Earl Attlee

Lords Hansard - part two & Committee stage
Wednesday 17th November 2021 Lords Chamber

[Lord Pannick (CB)]

My Lords, I add my support to these amendments. Will the Minister, when he comes to reply, agree that the application of the justice system to women poses especial challenges for everyone involved in the justice system, from the Secretary of State downwards? Does he agree that, at the moment, regrettably, there is a crisis of confidence as to how the criminal justice system in particular, but also the civil justice system, addresses the needs of women? Does he therefore accept, as has been suggested by previous speakers, that the creation of a women’s justice board would focus much-needed attention on these important topics?

[Earl Attlee (Con)]

My Lords, my role as a loyal government Back-Bencher is to help my noble friend the Minister, and I think I can do that best by strongly supporting these amendments.

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[Earl Attlee (Con)]

My Lords, I oppose the Question that Clause 165 stand part of the Bill; I seek not to add but to remove something from the Bill. Section 9B of the Juries Act 1974 gives the judge the power to consider whether a disabled person can undertake their duties as a juror when there is doubt on the part of court officials. New Section 9C requires the judge to consider whether a British Sign Language interpreter would enable the juror to be effective. The rest of the clause is concerned with sensible, consequential provisions.

The Committee should note that the judge is involved only if there is doubt on the part of officials. A potential juror with an effective hearing aid would not go through the Section 9B process since there would be no doubt that they could be effective. I undertook jury duty many years ago, long before arriving at your Lordships’ House. It was indeed interesting to me, but I regarded it as a duty or an obligation. It is not a right or a privilege in addition to being a duty, as, for example, voting in a general election is. Therefore, I see no requirement to make these special provisions so far as a completely deaf juror is concerned.

I accept that many deaf people can also lip-read, which would no doubt supplement the assistance of a BSL interpreter. My concern is surely that many cases turn on the credibility of the witness and, sometimes, which witness is not telling the truth. Suppose in a case involving an expert witness, counsel is asking searching questions and makes a provocative suggestion. The expert witness might calmly respond, “No, that is not correct”, knowing full well that opposing counsel will return to the matter later. However, what the deaf juror inadvertently could pick up is, “No, that’s wrong”, which might appear to be the counsel having the witness on the ropes, when that is far from the facts.

A further difficulty might arise in the jury room when deliberating the verdict. I have been in the jury room. Discussion could be fast and furious, and I cannot see how the interpreter could possibly keep up. It would be possible to slow the proceedings down, which might be beneficial, but since we do not research how juries operate we cannot tell what the effect would be. The other jurors may simply ignore the deaf juror.

Finally, the clause also, quite properly, makes consequential provisions that put the interpreter under the same obligations of confidentiality as the other jurors. However, he or she is not a decision-maker and will still be in a different position, and we cannot know what, if any, chilling effect on discussions may arise from the interpreter’s presence. I expect noble Lords supporting me will come up with far better arguments than mine, but I oppose the Question that Clause 165 stand part of the Bill.

[Lord Pannick (CB)]

I have added my name to the noble Earl’s opposition to Clause 165. I understand that jury service is a civic duty and there are strong equality arguments that a deaf person should not be disqualified because they cannot proceed without an interpreter. I also understand that the judge has discretion over whether the nature of the issues in the case makes it appropriate for a sign language interpreter to retire with the jury, and that the clause makes it very clear that the interpreter will have a duty not to interfere in or influence the deliberations of the jury. I understand all that, but I have concerns about the consequences of allowing a 13th or 14th person to sit in the jury room. I say 13th and 14th, because there will be a need for at least two interpreters, as any one interpreter is going to struggle to perform this task for more than 30 minutes at a time.

The first set of concerns relates to the effects on the dynamics of the jury. A jury depends on effective communications between the 12 persons serving on it. To ensure that the interpreter performs their role effectively, he or she may need to intervene in the deliberations to prevent people from talking over each other; and the interpreter may need to ask people to repeat themselves or to clarify what they are saying. This will have an effect on the dynamics of the jury room. There is also the potential problem that what is said by the interpreter to the deaf person cannot be understood and monitored by the rest of the jury.

That was the first set of concerns. The second type of concern is that Clause 165 makes provision only for a subset of otherwise excluded members of a jury. We are not making any provision for potential jurors who have insufficient command of English to participate effectively, or persons who cannot read relevant documents because of a low level of literacy or poor eyesight. The clause also makes no provision for deaf or hearing-impaired people who do not use British Sign Language but instead use text communication systems. It is a bit odd to make provision only for deaf persons, and then only for a subset of deaf persons.

My third concern is that, as I understand from helpful discussions with the Minister, provisions similar to Clause 165 have been the subject of testing in other jurisdictions, but no modelling has been done with shadow juries in this country. The noble Earl mentioned that we cannot do research with real juries, but research is often done with shadow or model juries. I ask the Minister whether it would not be sensible, before such a significant change to jury trial is introduced in this country, to conduct some research with shadow or pretend juries to see how this is going to work.

Police, Crime, Sentencing and Courts Bill

Debate between Lord Pannick and Earl Attlee

Lords Hansard - part one & Committee stage
Monday 8th November 2021 Lords Chamber

[Lord Pannick (CB)]

My Lords, I have added my name to the suggestion that this clause should not stand part of the Bill. I agree entirely with what was said by my noble and learned friend Lord Hope and the noble Baroness, Lady Randerson, on the punishment of imprisonment. There is an important difference of principle between causing serious injury by dangerous driving and causing serious injury by careless or inconsiderate driving. The principle is that the offence of causing serious injury by careless or inconsiderate driving falls into the category of “There but for the grace of God, go I”. It is very difficult to see why the penalty of imprisonment should be appropriate when all the steps being taken in the criminal justice system are to recognise that we send far too many people to prison and that prison has, as the noble Baroness, Lady Randerson, eloquently said, very adverse consequences for the offender, their family and society generally. The Government need to present a most compelling justification for a proposal that more people should be sent to prison in circumstances such as this.

[Earl Attlee (Con)]

My Lords, I support everything that noble Lords have said so far. Unless the clause is significantly amended along the lines suggested, I could not possibly support it if it were taken to a Division.

Police, Crime, Sentencing and Courts Bill

Debate between Lord Pannick and Earl Attlee

Lords Hansard - part one & Committee stage
Wednesday 3rd November 2021 Lords Chamber

[Lord Pannick (CB)]

My Lords, despite being a lawyer, it is a great pleasure to follow three such excellent speeches. I have added my name to this amendment, in part to emphasise what is obvious—that this is a matter of concern not just to women who breastfeed but to men, particularly men who are fathers, husbands and fathers-in-law, all of whom are affected by this subject.

When the Minister replies, I think he will express two concerns about these amendments, unless he is prepared to accept them, which I hope he will. He might say there is a concern that Amendment 131 is too broadly drafted. I do not understand such concern, because the drafting is very simple. It ensures there is a criminal offence only where the woman concerned does not consent and—this is vital—the defendant photographs or videos the breastfeeding for the purpose of obtaining sexual gratification, or to cause humiliation, distress or alarm.

That is a very limited mischief. It is properly drafted, since it adopts in its definition the ingredients of the offence of upskirting, which is already on the statute book, so it is a confined mischief. There is no question of capturing someone who innocently takes a photograph, and, in the background, there happens to be a woman who is breastfeeding. However, as we are in Committee, if the Minister thinks that the drafting can be improved, I, and the other signatories to this amendment, I am sure, would be very happy to see an improved version.

The other concern, which I know that the Minister will express, and which has already been addressed, is that the Law Commission is due to report on the law relating to intimate image abuse. It had a consultation which closed in May. The report is awaited. We certainly will not see it this year. The Committee may be interested to know that it is a consultation paper that covers 423 pages of material, a wide range of subject matter and complex issues. After the commission reports, sometime next year, there is no possibility of any legislation being brought forward for months, and that is optimistic. Who knows when the Government may reach a conclusion on any of these topics, particularly the specific narrow topic that we are discussing today? Who knows—the Minister does not—when there will next be a legislative opportunity to bring forward proposals such as those promoted by the noble Baroness, Lady Hayman?

It is time to address this because the case for a change in the law on this specific subject is simply overwhelming for all the reasons that the Committee has heard. There is no question of delay here because the conduct is every day causing great distress to the victims. We already have the model legislation in the upskirting provisions that Parliament has approved, which have been enacted and which are working very well.

In July, this Government announced their intention to take steps to protect women from violence and harassment. The amendments tabled by the noble Baroness, Lady Hayman, provide an opportunity for the Government, at no financial cost, to take a small but important practical step.

[Earl Attlee (Con)]

My Lords, I support this Amendment and agree with every word that noble Lords have said. My strong advice to my noble friend the Minister, bearing in mind that this is a policing Bill, is to come quietly. The alternative is to have another 45 minutes on Report, lose a Division and get into ping-pong. It is much easier to agree in due course.

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[Lord Pannick (CB)]

It may be thought by the Committee that the first example that the Minister gave was somewhat esoteric and unlikely to occur in practice. The risk of such esoteric events occurring is more than outweighed by the actual mischief that this amendment seeks to address. In any event, the same objections—the noble and learned Lord, Lord Falconer, called them pettifogging; that is his word, but I understand why he said that—could well be raised in relation to upskirting, in that pictures could be taken in whose background there is some other unfortunate woman. Perhaps the Minister might wish to reconsider these matters. We would all be happy to sit round a table and agree a draft that meets these points.

[Earl Attlee (Con)]

My Lords, I have been in your Lordships’ House for nearly 30 years. I have seen plenty of examples where, eventually, the Government have given way on an issue and parliamentary draftsmen have been able to draft far more complex provisions than these.

Data Protection Bill [HL]

Debate between Lord Pannick and Earl Attlee

Monday 14th May 2018 Lords Chamber

[Earl Attlee (Con)]

My Lords, it has been a long and hard struggle to attempt to convince the Government to meet their commitments to complete the Leveson reforms and, most importantly, complete part 2 of the Leveson inquiry. During earlier debates, I claimed not to know any celebrities who were not politicians. I apologise to the House because I should have inserted the caveat, “other than a world-famous international yachtsman”.

I agree with my noble and learned friend the Minister that we should accept the Commons rejection of my Amendment 147, which sought in effect to commence Section 40 of the Crime and Courts Act 2013 in respect of data protection. I shall try to explain why in a moment, but it has nothing to do with the merits.

First, I would like unreservedly to support the noble Baroness, Lady Hollins, and her new amendment which seeks to commence the Leveson 2 inquiry. I agree with everything she has said, and I hope that she will seek the opinion of the House. If she does, I will be supporting her in the Lobby.

I am bound to say that the print media have consistently misrepresented the issues in question. For instance, it has been said that the noble Baroness and I hijacked this Bill to pursue our amendments. It is actually fair comment, but as any noble Lord who has been in opposition knows, it is a perfectly proper standard parliamentary procedure, and I am sure that my noble friend the Government Chief Whip has himself used this technique many times when he was in opposition.

It was also alleged that we cynically excluded politicians from the scope of the inquiry. This is simply not true. We did try to table an amendment that sought much wider terms of reference for the inquiry. Quite properly, the clerks advised us that we needed to restrict the scope of the amendment to data protection issues. It would, of course, be open to the Government to set wider terms to include politicians, and if a Conservative politician is alleged to have done something wrong, I am happy to see them explain themselves to the inquiry.

I turn to my amendments. When my noble and learned friend comes to reply, while he has explained the stick component of Section 40, will he remind the House of how its carrot component works, because I do not think that he mentioned it?

Although the Commons never actually divided on my amendments, they were fully debated and it is clear to me that there is no realistic prospect of the Commons changing their mind. There is no Salisbury problem with the amendment tabled by the noble Baroness, Lady Hollins, because she genuinely believes that if we send it to the Commons, we may get a different answer. However, I would suggest that this will probably be the last roll of the dice.

I feel bound to comment on the exceptionally effective campaign run, presumably, by the News Media Association. Whoever is running it knows what they are doing, although we have all been playing hardball. However, what is disturbing is that I have been silenced and skilfully suppressed nearly everywhere except in your Lordships’ Chamber, and therefore I am extremely grateful to the BBC programme, “The Big Questions”, for allowing me to contribute to yesterday’s debate. It is not clear to me why the Convenor of the Cross Bench Peers politely declined my offer to address the Peers on my amendment but nevertheless later allowed Sir Alan Moses, the chairman of IPSO, to address the Cross-Bench Peers. In the days immediately after our votes on Report, despite one national newspaper devoting three whole pages to criticising some noble Lords, my name was mentioned only once in any national newspaper, and I suspect that that was an accident. It is good that the press is supposed to be biased, opinionated and partisan.

Despite trying very hard, I was able to secure only two meetings to discuss the Leveson amendments with two Conservative MPs, and they had very good reasons to do so but nevertheless, quite understandably, they voted with the Government. Even the Leader of your Lordships’ House declined to have a meeting with me in the week preceding the vote in the Commons to discuss these problems—so much for free speech. The very same honourable Members who declined to meet me had helped to produce a majority of 530 to 13 in the vote to insert new Section 40 in the Crime and Courts Act 2013. What is going on?

I welcome the Government’s Cairncross review into the sustainability of the press. This is one of the Government’s arguments for not implementing Leveson. When I talked to my local editor, he was not worried about regulation; his problem was sustainability.

Recently, in accordance with the principal VAT directive, the appropriate tribunal decided that online publications would attract VAT at the standard rate. This is a tax on information and knowledge, when books and publications are exempt. The EU withdrawal Bill has enough difficulties without me raising another one, and I do not want to tie the Minister’s hands, but can my noble and learned friend write to me—and perhaps to my noble friend Lord Black—to assure us that the appropriate officials are aware of the risk of negotiating away our freedom to zero-rate online publications post Brexit?

Much of the debate on Section 40 has centred on state regulation of the press. At the moment, unfortunately, we have covert state regulation because anyone in government, particularly sources close to No. 10, can suggest to the media that Ministers are reconsidering commencing Section 40. This is a completely unacceptable gun, held to the press’s head, which must be deactivated at the earliest possible moment. Worse still, it could inadvertently lead to the press self-censoring in the case of a story that might, in any case, make for difficult ethical and legal decisions for the editor concerned. Can the Minister indicate when this very short Section 40 repeal Bill will be presented to Parliament?

If we are not to implement the Leveson press reforms, we need to commence part 2 of the inquiry to find out what has gone wrong in the past, ensure that it is not continuing and prevent it from recurring. As one of our briefings today put it, the past is a prologue for the future.

[Lord Pannick]

My Lords, I declare an interest as one of the few counsel who has acted in privacy cases for both the Daily Mail and Mr Max Mosley. I cannot support the amendment in the name of the noble Baroness, Lady Hollins. I remind your Lordships of what the Conservative Party manifesto said before the election last year:

“Given the comprehensive nature of the first stage of the Leveson Inquiry and given the lengthy investigations by the police and Crown Prosecution Service into alleged wrongdoing, we will not proceed with the second stage of the Leveson Inquiry into the culture, practices and ethics of the press”.


As your Lordships know, the Commons held a lengthy debate on this subject last Wednesday and voted not to institute a Leveson part 2. Your Lordships’ House has heard the pro and con arguments on many occasions.

I want simply to emphasise two points. Amendment 109 introduces extensive new powers on the Information Commissioner in relation to the press and, as the Minister has already indicated, it requires the commissioner to conduct a review of the press in the short term. Also, over the years, there have been not just police, and other, inquiries: a large number of civil actions—cases against the press—have been brought by phone-hacking victims. Those victims have not gone without remedy; they have received very substantial financial compensation, and rightly so. It is true that some of the claimants were celebrities, but many were not; they were victims of phone hacking because, for example, they were related to television actors or spent the night with a footballer. Reprehensibly, the press hacked their phones. They brought legal actions; the lawyers acted on a conditional fee basis. After the event, insurance ensured that there was no financial risk to the claimant, so it is simply not the case that victims of phone hacking lack, and have lacked, legal remedy. Newspapers have rightly been ordered to pay substantial sums by way of compensation. It is simply unrealistic to think, in the light of the criminal prosecutions and civil liability, that the message has not got across. I respect, of course, the views of the noble Baroness, Lady Hollins, the noble Earl, Lord Attlee, and the others who support this amendment, but it really is time for this House to give way to the views of the Commons on this matter.

Data Protection Bill [HL]

Debate between Lord Pannick and Earl Attlee

Report: 3rd sitting Hansard: House of Lords
Wednesday 10th January 2018 Lords Chamber

[Earl Attlee]

There is a simple answer to that—the noble Lord should test that in the courts and test it in Europe.

[Lord Pannick (CB)]

My Lords, I am very grateful to the noble Earl for mentioning one of the many cases over the years in press law that I have lost. I mention to noble Lords another of those cases, in the Court of Appeal in 2015, when I represented entirely unsuccessfully Mirror Group Newspapers, which sought to overturn the very substantial damages that had been awarded to individuals, some of them famous and some of them not, whose mobile phones had been hacked by journalists and whose data had been used to write articles breaching their privacy. A woman who had had a relationship with an England footballer was awarded damages of £72,500. An actress who appeared in “EastEnders” was awarded £157,000 in damages—and so on.

The reason why the courts awarded damages of that extraordinary magnitude, far more than you would get if someone deliberately ran you down and severely damaged your health, was precisely because of the factors that the noble Baroness, Lady Hollins, mentioned in opening this debate. It is about the personal nature of the intrusion and the suspicions that are engendered as to how the press obtained this information. Was it from friends or relatives who had betrayed you? It is about the very real impact that this has on your personal behaviour; it inhibits, inevitably, the communication that you have with friends and relatives. The claimants in these cases were represented by expert solicitors and by a counsel acting on a conditional fee basis, which meant that, when they won the case, MGN had to pay substantially increased costs, as well as insurance premiums. The costs—because the case related to dozens of claimants—were in the millions of pounds. Similar claims have been brought against other newspaper groups, and the noble Baroness, Lady Hollins, mentioned in her opening remarks that further proceedings are imminent.

I mention all this to emphasise that, when newspapers breach data protection laws, as they have, they have paid for it, and rightly so. Nobody who knows anything about what used to be called Fleet Street could seriously doubt that journalists and editors now take data protection seriously. They would be mad not to do so. In the past few years, editors and journalists have gone to prison for criminal offences related to breaches of data protection. Editors and journalists have lost their jobs in relation to such matters. A prominent newspaper, the News of the World, was closed down. Newspaper groups have paid tens of millions of pounds—perhaps more—in damages and costs. This Bill will create a powerful new administrative machinery to enforce data protection law. All that is rightly so, and I complain about none of it; it is absolutely right that the rule of law applies.

The question is whether we really need a public inquiry on this subject, which will take years to report and cost a fortune to the public purse, occupying the time of busy people who can productively be engaged on other matters. I say to the House that we do not need an inquiry to establish what happened in the past—any number of trials, criminal and civil, have examined the facts, sordid as they are—and we do not need a public inquiry to ensure higher standards of conduct in the future. An inquiry in the terms set out in the amendment of the noble Baroness, Lady Hollins, would be so broad in nature that it would impede the ability of editors and journalists to get on with the vital work of holding government and powerful private individuals and companies to account.

Policing and Crime Bill

Debate between Lord Pannick and Earl Attlee

Committee: 5th sitting (Hansard): House of Lords
Wednesday 16th November 2016 Lords Chamber

[Earl Attlee (Con)]

My Lords, I strongly support the noble Lord, Lord Paddick, and his very reasonable amendment. The Committee is very lucky to have his expertise. Unfortunately, I have limited experience in the area of PACE and police investigations, so I am unable to offer the Committee my own solution. However, I have no difficulty in seeing that something is seriously wrong and needs urgent attention, and I intend to support the noble Lord vigorously.

Throughout the passage of the Bill, the Minister has never hesitated to rely on the principle of operational independence for the police, but it is a principle that I think is often taken too far and seems to me to be an excuse for doing nothing. Interestingly, when the then Home Secretary, my right honourable friend the Prime Minister, wanted to curb the use of stop and search powers, operational independence did not seem to be a problem.

In public life, some people are important, some are powerful, some are senior and some are all three. Fortunately, I am none of these, so there is no risk to me of being subject to a sensational and false allegation, because no one would be the slightest bit interested.

It is not often that the Metropolitan Police has to investigate someone who is far more senior than the commissioner himself. When such a situation arises, no one—as far as I am aware—is suggesting that an investigation should not take place; far from it. In fact, in recent years we have seen Cabinet Ministers investigated and prosecuted. As far as I know, during Operation Midland Ministers and the Government did absolutely nothing and let the police follow the evidence, and rightly so. We would not expect anything else, and we do not want to repeat the mistakes of the past.

Nevertheless, if the Metropolitan Police decides to investigate someone as senior as the noble and gallant Lord, Field Marshall Lord Bramall, KG—Knight of the Garter—one would expect the commissioner to keep himself very closely informed indeed, not least because it could have adverse effect with our overseas opponents. It also could cause very serious reputational damage to the Metropolitan Police if the operation turned out to be flawed.

The Committee will be aware that Lord Bramall was Chief of the Defence Staff at the height of the Cold War. Our Security Service, over many years, would have formally and informally taken all the necessary steps to ensure that he could be trusted with large amounts of highly classified material. Our “Four Eyes” partners would also have relied on that confidence, but the exceptionally overt Operation Midland investigation could well have called into question the reliability of our vetting procedures.

Lord Bramall would have known everything when he was Chief of the Defence Staff. For instance, in the event of a mass armoured attack on the north German plain, would we have used tactical nuclear weapons? He would have known. What serious weaknesses did we have that our opponents were unaware of? He would have known. What weaknesses did our opponents have that we knew about but they did not? He would have known. If there was any problem with Lord Bramall along the lines alleged, it would have been of strategic significance. It would have been unbelievably serious.

At Question Time last week, the Minister referred to the Henriques report. The report was initiated and the terms of reference were set by the commissioner. Apparently, this means he can also determine what is published and what is not. Therefore, my first question to the Minister is: does the report and its terms of reference cover the failure of the commissioner to terminate the Operation Midland inquiry into Lord Bramall as soon as possible after it became obvious that there was not one shred of incriminating evidence? Secondly, has my noble friend read the report? Will the Home Secretary initiate an inquiry on her own terms, so that she can determine what will be published?

I am extremely unhappy about the procedure for obtaining search warrants, although my advice is that the magistrate concerned probably did the right thing by granting one in the Bramall case. What is the point of involving the judiciary if magistrates grant a warrant in such circumstances as Lord Bramall’s case? What questions were asked of the police requesting the warrant in such an improbable case? For instance, were they asked whether the Security Service had been consulted and whether the sanity of Nick had been checked by a medically qualified person? If the complaint turned out to be fiction and baseless, would a criminal prosecution of Nick be inevitable because that should be the remedy for a malicious and baseless complaint? It would also be interesting to know whether the commissioner asked these questions. It now seems that it may be better to allow a senior police officer to authorise a search rather than relying upon the judiciary. At least there is some mechanism for holding senior officers to account, eventually.

If this totally flawed inquiry can be inflicted upon a retired officer of stratospheric seniority with apparent impunity, what is to protect the ordinary man in the street? It seems to me that the judiciary dish out search warrants like sweets, despite how distressing it must be for an innocent person, whatever their status. So far as I can see, the Commissioner of the Metropolitan Police had the power to terminate this inquiry at an early stage, but chose not to do so for presentational reasons. He could have written a sincere letter of apology to Lord Bramall, but chose not to, presumably on legal advice. Luckily, Lord Bramall has not passed away too soon; it is a pity the same cannot be said for Lord Brittan or, indeed, Lady Bramall.

Both these failings seem to me to indicate a lack of capacity to take an unpalatable course of action. It is not unusual for retired Commissioners of the Metropolitan Police to be offered a seat in your Lordships’ House, but your Lordships’ House is overfull with active Members. We already have far too many Peers, and we already have several retired senior and very senior police officers who are already meeting the needs of the House exceptionally well, not least the noble Lord, Lord Paddick. It is not clear to me why we would need another retired commissioner, and one who appears to be unable to write a sincere letter of apology to a Field Marshal who has had his reputation traduced solely because he is such a senior officer and a great public servant. If the police use their powers carelessly, it is our duty to constrain them.

[Lord Pannick]

My Lords, the Committee will be very grateful to the noble Lords, Lord Paddick and Lord Campbell-Savours, for bringing forward this amendment on what is undoubtedly an important issue. I am sure the Committee shares their sense of outrage—I certainly do—at the treatment of Sir Cliff Richard and others who were wrongly and unfairly accused of sexual offences, but I am not persuaded that this amendment is the answer to the problem. A prohibition on publicising an accusation of a sexual offence raises many difficulties.

The first is that publicity can lead others to come forward with supporting evidence that helps to make the case against the person who is rightly accused. Sometimes this is evidence that the person accused has treated them in the same way. They have not previously come forward because they are fearful that no one would take them seriously. It is only hearing that an allegation is being taken seriously that gives them the confidence to come forward.

--- Later in debate ---

[Lord Pannick]

The problem is that they come forward during the course of the trial only if there is one. By reason of the publicity, they are encouraged to come forward and present evidence that helps to persuade the prosecuting authorities that the matter should proceed to a trial. That is the difficulty. The noble Lord, Lord Paddick, says that justice should not be achieved at any cost. He is right, but to impede convicting the guilty is a very high cost indeed. That is the first problem.

The second problem is that the amendment would prevent the person accused from publicising the allegation against him in order to express his outrage or possibly to seek alibi witnesses. There are cases in which publicity has been sought by the person wrongly accused and this helps to exonerate that person. I appreciate that this amendment would allow the person accused to seek permission from the judge to publicise the matter in the public interest. But if I am wrongly accused of a sexual offence, I should not need to persuade a judge that it is in the public interest for me to be able to publicise the fact. I am entitled to publicise the matter because it is in my interests.

The third problem is common to restrictions on open justice. You can prevent publication of the name of the person concerned, but you cannot prevent people in the know from gossiping. The consequence is that a larger group of people know the name of the person concerned. Those who do not know inevitably speculate. This amendment or any variation of it would not prevent the press from publicising—and they would—that a famous footballer, a well-known pop star or a senior politician has been accused of a sexual offence. It would not prevent the press from publicising details as long as this does not identify the specific politician, pop star or footballer concerned.

[Earl Attlee]

I am sure that the noble Lord is right. Would that not let other victims know that their allegations would be taken seriously?

[Lord Pannick]

No. They would not know who the individual was. This of course is very unfair on famous footballers, well-known pop stars and senior politicians who are not the subject of the accusation. Can they issue a press release to say that they are not the person concerned? That is the third problem.

The fourth problem is that the amendment does not address the difficult question of what is meant by being accused. As drafted, the prohibition on publicity would apply whether or not it is the police making the accusation. It seems to suggest that any accusation of a sexual offence would prevent publicity, but how far does this go?

Fifthly, the amendment fails adequately to address when the prohibition on publicity comes to an end. As drafted, the prohibition on publicity ends when the person concerned is charged with an offence. But let us suppose that the police decide not to bring charges and the person concerned is exonerated. Under this amendment, it seems that no publicity is allowed even at that stage—the person concerned cannot tell the world that he has been vindicated and the press still cannot report that a false allegation has been made.

Social Action, Responsibility and Heroism Bill

Debate between Lord Pannick and Earl Attlee

Tuesday 18th November 2014 Lords Chamber

[Earl Attlee]

My Lords, I shall also speak to my Amendments 12 and 14. I have tabled these amendments on the basis that we will have to send back to another place something that actually works.

At Second Reading many noble Lords observed that, for a person to benefit from the heroism provision in Clause 4, they must act without regard to the person’s own safety or other interests. That would mean that if I intervened in an emergency, and I undertook a proper dynamic risk assessment and eliminated all avoidable and non-necessary risk to myself—and in doing so probably to anyone else—I would get no protection from the Bill. On the other hand, an imprudent rescuer would benefit from Clause 4, assuming for the moment that as drafted it changes the law.

Amendment 12 is my substantive amendment, which removes the offending words and changes the drafting to read: “to assist an individual in danger and without acting perversely”. The Committee will be aware that the noble Lord, Lord Aberdare, has an amendment that has a similar effect to mine, and I anticipate that he will go into greater detail about the problems with the need for the rescuer to act without regard to his own safety.

Amendment 14 defines what is meant by “acting perversely”. I fully accept that the courts might not need the benefit of this amendment and, if it or something similar does not find favour with the Committee, that will not be a surprise to me. I understand that my words, in the circumstances, would mean that the level of skill, knowledge, experience and training enjoyed by the rescuer would be taken into consideration by the courts—and in any case it already is.

I hope that by this stage of the Committee we will understand whether the Bill changes the law, but I myself am still not clear. I am sure that the noble Lord, Lord Pannick, will tell the Committee that my amendment would change the law and the effect of the Bill. If it does, I am sure that it can do so only very slightly. As the Committee knows perfectly well, and as I have always understood, the courts have never made an unhelpful judgment in that area of law. However, as I indicated at Second Reading, the fear of legal action or, as the Minister put it, an imperfect understanding of the law causes the mischief.

It would be very helpful if some noble and learned Lord or the Minister could describe to the Committee a situation in which the effect of my amendment would be to deny someone compensation for negligence when they would otherwise have secured it. I suspect that the Minister himself is struggling to determine whether the Bill is supposed to change the law or not. By now the Committee seems to have the view that the Bill makes no significant difference to the law apart from, possibly, Clause 3. However, if a first aid instructor could have the future SARAH Act confined to one PowerPoint slide, that could make a practical and beneficial difference. That is because, as the Minister pointed out during our debate on Amendment 2, the Bill has deliberately been designed to be comprehensible.

I suggest that the Committee cannot tolerate a provision in the Bill where an imprudent person enjoys greater protection than a person who has taken steps to avoid unnecessary risks. I am relaxed if the amendment in the name of the noble Lord, Lord Aberdare, finds greater favour with the Committee than my amendment, although his amendment may have the difficulty that it does not change the law at all. I would love to know if we were supposed to be changing the law or not.

Clause 4 is the most useful clause. I certainly have no entrenched position, but by Report we will need to have worked out what we can do to make this clause and the Bill do what they say on the tin. I beg to move.

[Lord Pannick]

My Lords, Amendment 10 is in my name and in the name of the noble Lord, Lord Beecham. It would remove the final words of Clause 4:

“and without regard to the person’s own safety or other interests”.

The inclusion of those words frustrates the purpose of Clause 4 for the reasons already given by the noble Earl, Lord Attlee. Those final words suggest that if I am thinking of acting heroically by jumping in the lake to save the drowning victim, Clause 4 will not protect me if I have regard to my own safety or other interests, perhaps by taking off my valuable watch before I jump in or, if we are to follow the Government’s reasoning as regards Clause 4, by consulting my solicitor. Surely the hero deserves protection whether he or she jumps in “without regard to” their own safety or with regard to their own safety. What matters is that they jump in to save the victim. Clause 4, as drafted, protects the instinctive hero but not the thoughtful hero, and that distinction is entirely unjustified.

Amendment 10, which again is designed to be constructive, would remove that arbitrary distinction from Clause 4. However, I cannot agree with the noble Earl, Lord Attlee, that the law of negligence in this area should be replaced by a test of perversity, which is a test far more favourable to the defendant. He asked for views from Members of the Committee as to whether his amendment would change the law; it undoubtedly would. I anticipate that we will take different views on the merits of that change, but to introduce a test of perversity would be a substantial change.

[Earl Attlee]

My Lords, would the noble Lord be able to illustrate to the Committee how that difference would work—a case where someone would be protected, and someone else would not? That would be very helpful to the Committee.

[Lord Pannick]

At the moment the court assesses whether in all the circumstances the defendant has acted with reasonable care, and the court will take account, as it will under the Bill, of whether in all the circumstances, including that of heroism, the defendant has acted reasonably. However, that is a very different test from a test of perversity. It will not help the Committee to try to identify particular factual circumstances, but I can tell the noble Earl that there is a very real difference between a test of reasonable care and a test of whether the defendant has acted perversely—in other words, has taken leave of his or her senses.

I have also indicated my objection to Clause 4 standing part of the Bill; that is part of this group of amendments. The objections to Clause 2 standing part of the Bill, which we debated earlier this afternoon, are equally applicable to Clause 4, and I will certainly not repeat all those points. However, there is an additional, specific reason why Clause 4 should not stand part of the Bill. The simple reason is that it adds absolutely nothing to Clause 2. I cannot envisage any case in which a person is acting heroically for the purposes of Clause 4 which is not also a case where that person is protected by Clause 2 as currently drafted. If you act heroically for the purposes of Clause 4 you act,

“for the benefit of society or any of its members”,

for the purposes of Clause 2. Does the Minister agree with that analysis and, if not, can he please give the Committee some explanation of the sort of circumstances that potentially come within Clause 4 that would nevertheless be outside Clause 2?

Localism Bill

Debate between Lord Pannick and Earl Attlee

Monday 31st October 2011 Lords Chamber

[Lord Pannick]

I am very grateful to noble Lords who have spoken in this fascinating debate and to the Minister for his detailed response. I shall respond briefly, attempting to avoid any indication of exacting purity that may offend the noble Lord, Lord True, or indeed any other form of reprehensible purity on this matter.

The Minister indicated that there is nothing wrong with the common law rules, and I respectfully agree with him. The problem, the Minister said, is the erroneous advice that is being given to local councillors up and down the land. The problem with that analysis is that, if the advice is the erroneous advice, we should deal with that advice. Let us not amend the common law in a way that changes the current position—and changes it by excluding from relevance the legal material that can demonstrate that there is unlawful predetermination.

[Earl Attlee]

May I explain the advantage of Clause 25 and the way that it is drafted? If I was a councillor and engaging, as a layman, with officials who were giving me advice, I would be able to produce the words in Clause 25 and say, “It says here that I can express a view”, and there would be very little that officials could do to counteract that.

[Lord Pannick]

I understand the point and am grateful to the Minister. However, the clause introduces clarity by amending the common law, which the Minister is concerned to maintain. The clause does not maintain the existing common law rules, which the Minister considers entirely adequate. The clause excludes from consideration anything that is said or done prior to the council meeting at which the issue is to be discussed, however extreme the previous statement may be. I entirely accept that what the councillor said prior to the council meeting may not be determinative of whether there is unlawful predetermination, but it must be relevant. That is the objection to Clause 25: it purports, in the Minister’s words, to restate the common law, which the Minister regards as entirely appropriate and unexceptionable. What it actually does is amend the existing common law in a way that will prevent real cases of predetermination being brought and succeeding.

Real concern was expressed in this debate that it is absolutely vital that local councillors should be able to express their views on matters powerfully and strongly if they wish. The noble Baroness, Lady Eaton, and the noble Lords, Lord True and Lord Greaves, made this point. I entirely agree with them that that is the common law position. The cases make it absolutely clear that local councillors deciding any matter are not impartial in the sense required of a judge; they have political allegiances, their politics involve policies and they are entitled to express their views—of course they are. The case of Lewis v Redcar and Cleveland Borough Council in 2009, covered from page 83 of Volume 1 of the Weekly Law Reports, is the leading Court of Appeal judgment. It says that any local councillor who expresses his views powerfully and strongly on any view is not guilty of unlawful predetermination so long as he is prepared to keep an open mind when he goes to the council meeting.

The noble Lord, Lord Sewel, and the noble Lord, Lord Snape, asked for reassurance in relation to the role of party groups and party whips in local government. That, too, has been considered by the courts. In the same case of Lewis v Redcar and Cleveland Borough Council, the Court of Appeal approved an earlier judgment in 1985 by the noble and learned Lord, Lord Woolf—then Mr Justice Woolf—where he said:

“I would have thought that it was almost inevitable, now that party politics play so large a part in local government, that the majority group on a council would decide on the party line in respect of the proposal. If this was to be regarded as disqualifying the district council from dealing with the planning application, then if that disqualification is to be avoided, the members of the planning committee at any rate will have to adopt standards of conduct which I suspect will be almost impossible to achieve in practice”.

Identity Documents Bill

Debate between Lord Pannick and Earl Attlee

Tuesday 21st December 2010 Lords Chamber

[Lord Pannick]

I am very grateful to the noble Baroness but she really has not answered the substance of the concern. I suggest that the only way she can do that is by telling the House whether or not the law officers have been consulted. It is a matter for the House what step to take but I suggest to the noble Baroness that the appropriate step for it to take is to adjourn further consideration of this matter until she is able at least to assure it that the concerns that have been expressed by a number of noble Lords have been considered by the law officers. I entirely accept that there is no obligation on the Government to tell the House what the advice of law officers is but it must be assured that they have been consulted on this matter. Therefore, I ask the noble Baroness to accept that the appropriate step is for further consideration to be adjourned.

[Earl Attlee]

I think that it is appropriate for the Minister to carry on with the rest of her speech, answer the other questions that noble Lords have asked and wait to see whether further inspiration arrives.