Costs in Criminal Cases (Legal Costs) (Exceptions) Regulations 2013
Lord Phillips of Sudbury Excerpts(10 years, 10 months ago)
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Lord Woolf (CB)
My Lords, we have heard powerful arguments advanced, and I shall try to avoid repeating those arguments. I commence by first thanking the noble Lord, Lord Bach, for bringing his Motion of Regret in respect of civil legal aid regulations. I strongly support those arguments. I also echo the support that has been given already to his remarks specifically in welcoming the noble Lord, Lord Faulks, to his new responsibilities. Those members of the judiciary on whose behalf I shall say a few words on this matter, because I think that they are particularly affected, would all welcome the fact that a leading counsel of his distinction is now a member of the government team dealing with justice matters—and they are justice matters that I want to speak about.
Our justice system is of course based on the common law. For many years I was a common law judge, who has a special responsibility that does not apply to the same extent to the civil legal system in clarifying and developing the law from which we all benefit. I differ from the Minister in his approach, which was ably addressed a few minutes ago by the noble Baroness, Lady Lister, in her useful remarks. The law is not there for one section of the community; it is there for us all. We all benefit from the protections that it provides and the setting that it provides for all our activities. The judiciary is concerned that all of the public should have access to justice. That must mean a justice system that is fit for the age in which we live and has developed in accordance with the way in which a common law system can develop, singularly because of the use of precedent, which is such an important part of our system. When the noble Lord, Lord Faulks, opened his case for approving these regulations, I was not clear whether he was saying that there would be any discretion to grant legal aid in the case of an issue which was obviously important for the courts to decide, but which would need the assistance of able counsel in order to decide the case. Sometimes that can be self-evident. The cases we are primarily talking about are dealing with points of law. In the case of points of law, it is particularly important that the courts should have the assistance of appropriate counsel to deal with the type of case before them.
In our system we now have a limited number of judicial assistants to help us in our work of doing justice, but they are very much a limited assistance. Our system does not compare with systems such as that in the United States, or even the system in Canada, because there they hear the appellate judges, who will normally have the responsibility of dealing with the developments in the law to which I have referred and are given much more assistance by very experienced young lawyers than is available in our courts.
Our courts depend on the judges themselves doing the research with the assistance of counsel. If they do not have before them counsel of the necessary ability to deal with this very small number of extremely difficult cases, the quality of those judgments will suffer. It is in that area that the quality of arms, to which reference has already been made, is of singular significance. I wonder, and doubt whether, the Government have appreciated—because of the justification which they have advanced for this change—the importance of the courts having the assistance of advocates of the ability needed to ensure that the arguments on both sides of a case are properly deployed when the case is one of those peculiarly difficult cases, so that it is impossible, perhaps on both sides, to say what the prospects of success are. These are therefore the cases which would very much come within the small group which these regulations could affect.
For that reason I ask the Minister, new to his responsibilities, at least to give the House an assurance that the matter will be considered from the point of view of the judiciary. If ways are not found to assist in this small number of cases, I have fear for the quality of justice in this country.
If a case is one where a lot of money is at stake, where large awards of damages will be available, then it is possible to come to arrangements whereby litigants can be spared the burden of carrying the weight of the costs involved in conducting the litigation themselves. Funders are available now. However, in the small group of cases about which we are talking no such funding is available. There is nothing which the funders would gain because there will be no judgment from which they can benefit at the end of the day.
In that situation, I say that one should look at the matter and ask oneself whether this is a case where the wrong target has been drawn in order to try to achieve noble objectives. If it has, it is very important, even though it is late in the day, that action is taken to ensure that the system of justice in this country does not suffer in consequence.
Lord Phillips of Sudbury (LD)
My Lords, I do not propose to go over the ground that has been so ably ploughed by the speakers thus far. I am afraid that I am not going to lend my noble friend the Minister any solace, because I fear that I, too, am strongly of the view that the measure that deals with borderline cases—the merits criteria statutory instrument—is flawed, and it is flawed in a profound cultural way. As others have rightly said, justice is not like most other forms of government expenditure; it goes to the very heart of our society.
As I said, I shall not replough old ground, although I should like to remind the House that in the consultation, which lasted for only two months, there were 16,000 written submissions, which is quite extraordinary. The vast majority of them were, as the noble Lord, Lord Bach, has already said, against these provisions. I simply want to quote paragraph 234 of the report of the Joint Committee on Human Rights issued on the 13th of last month. It is the seventh report of the Session and it deals with the matters that we are talking about tonight. In referring to the present situation—the status quo—it says:
“We were told by our witnesses that the Legal Aid Agency scrutinises the merits of borderline cases closely, and funds very few borderline cases, in effect exceptional cases”.
That is the point. Only 100 or so cases are involved, and I think that the sum of legal aid estimated to be at stake is around £1 million. Therefore, they are already exceptional cases and we must realise that they reverberate throughout the system. As the noble and learned Lord, Lord Woolf, has just reminded us, under the common law system of precedent, one of these cases can affect thousands of cases, which will not be brought as a result. Therefore, there is that to consider.
My other point is that the Joint Committee report is absolutely unequivocal about these borderline cases. It is worth reading—and I am sure that most noble Lords here tonight have read—the fourth chapter and the three conclusions at paragraphs 43 to 45 of the final recommendations and conclusions. I urge the Minister—perhaps he will refer to this in summing up—to give an undertaking to the House that the Government will not wait the three to five years allowed for under the LASPO Act for a review of the whole of that vital piece of legislation. However, if they persist in pushing forward with these measures—which I hope very much they will not—I hope that they will make a special case of borderline cases and review early the impact of what they are doing, not least in terms of access to justice and the cost of justice.
As the charity Justice, in its report on this matter, rightly pointed out, the cost to the Exchequer of depriving many of these borderline cases of legal support and the resulting wastage could far exceed the £1 million or so of savings that we are talking about here due to the length of cases, because there are so many more litigants in person, and so on. I hope that my noble friend may be able to say to the House tonight that there will be a special review of these borderline cases in the light of the criticisms made here and in the Joint Committee report and the criticisms made by many others.
Lord Phillips of Sudbury
Did the noble Lord intend to let the Government off the hook when he said at the beginning of his speech that the cost of these cases was one-half of 1%? Lawyers are not good at maths, but I think I am right in saying that it is not 0.5 of a per cent; it is 0.005 of a per cent. It is a tiny sliver of £2 billion. I just wanted to help the noble Lord, Lord Beecham.
Lord Beecham
At this hour of the night, I am quite prepared to accept any correction of the arithmetic. The Government, of course, are never prepared to accept a correction of their arithmetic.
Criminal Defence Service (Very High Cost Cases) (Funding) Order 2013
Lord Phillips of Sudbury Excerpts(10 years, 11 months ago)
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Lord McNally
This is the first time that VHCC cases have been cut by this Government. I do not think that they were cut by the previous Government. Were they? I stand corrected.
There was a consultation and this has not come out of the blue. I have been talking to the Bar for three and a half years about these cuts.
I hope we do not get an interruption from my noble friend Lord Phillips. He came in very late.
Lord McNally
No. These matters have been discussed over a long period. We received 16,000 responses from representative bodies, practitioners and other organisations, individual members of the judiciary, Members of the House of Commons and the House of Lords, individual solicitors and barristers, and members of the public. The majority of responses did not support the Government’s original proposals for reform, although there was some support for particular measures. Some, including the Law Society, specifically acknowledged that VHCCs were an area where the Government might be able to make savings.
As we said in responding to consultation, the Legal Aid Agency analysis of fraud VHCCs shows that the average value of a contract is £1 million and such contracts run for three or four years on average. Even with a 30% reduction in fees VHCCs will remain high-value, long-duration cases that, because of the way these cases are managed with regular phased payments, bring certainty of income for providers for the extended period in which they are instructed in these matters. That is why the Government believe that a reduction in fees is sustainable in this area.
We believe it is right that our reductions should affect advocates who receive higher levels of legal aid fee income, rather than those who are on much lower fee income. In 2012-13, more than half of those with fee income of more than £200,000 worked on VHCCs, compared with just 20% of those with fee income of between £100,000 and £200,000. Just 4% of barristers who earned below £100,000 worked on a VHCC in 2012-13.
Concerns have been raised about the impact of this fee cut on existing contracts. It is precisely because these cases run over a number of years that we must ensure that the ongoing fees represent value for money. We are therefore reducing rates in existing contracts where cases are at a relatively early stage and where the ongoing costs are likely to be significant. I cannot give any assurances about changing the position that we have taken on this because we are under responsibilities to make these cuts.
We have taken a fair and balanced approach to applying the new rates to existing contracts. The new rates do not apply to contracts where cases were at trial on 2 December or those that, before 2 December, were set to come to trial on or before 31 March 2014. These include cases that had a date set at any point in the past for trial on or before 31 March 2014 but that date has been vacated and a new date fixed, even if that trial date is after 31 March 2014; where the trial has taken place but there remain outstanding proceedings, such as confiscation proceedings; and where the original trial has concluded but a retrial will take place, even if the retrial is after 31 March 2014.
A number of points have been raised but I am conscious of both my time limit and the House’s. I have referred to the fact that VHCCs represent a tiny number of total cases; fewer than 1% of the total Crown Court trials over the past year were VHCCs. I understand the points that the noble Lord, Lord Carlile, was making about the returning of cases, but we will just have to see how this works out. I do not want to bandy figures about.
I hope that the Bar itself thinks very carefully about how we navigate through these matters. I believe that when a very distinguished profession talks about going on strike, it crosses a Rubicon that is very difficult to re-cross.
As for the idea of funding legal aid from restrained assets, it may be that one or more parties might put that as a suggestion in their manifesto; maybe we will see that, although I remember the debates in this House about removing jury trial from High Court cases. We have had lots of suggestions but none with the immediacy with which we can address the issue.
I accept the point that was made about the present system being bureaucratic and the hourly rate-based system not being ideal. I cannot remember which noble Lord it was—was it the noble and learned Lord, Lord Woolf?—but one of them got very close to suggesting one case, one fee, which was one of the first things rejected by the Bar when we were having those negotiations that apparently have never taken place. The fact is that we have explored alternatives, and I have no doubt that ideas will continue to be floated.
I have said to my own party and I say to all three parties that, after what has been a very painful period, we should look at how we handle legal aid. As we have said so often, although to listen to some speeches you would not believe it, since 2010 to when this exercise is finished, which is some three or four years away, legal aid will have been cut from just over £2 billion to £1.5 billion. That leaves us with a legal aid expenditure about which I will not bandy words as to whether it is the most generous in the world, but it is an extremely generous allocation of money by the taxpayer. It is incumbent on all parties to see how we can look at that kind of sum and get a better and more efficient outcome from it. That requires a willingness to contemplate change and flexibility from all parts of the legal profession. I would hope that we can look at it in that way.
I hear what my noble and leaned friend Lord Mayhew said about the sacrifices that the high-cost barristers make in losing other business and being out of the loop. However, even with a 30% reduction in fees, VHCCs will remain of high volume and long duration, with regular payments that bring certainty of income to providers. We believe that it will continue to attract lawyers once they come to see the points that are on offer.
There is no sign of a lack of young people entering the profession. We all wish the daughter of the noble Lord, Lord Alton, well in it; she certainly knows where to come for advice.
We are looking at the review under Sir Bill Jeffrey. We cannot accept all the existing contracts but we have, as my noble friend Lord Carlile knows, tried to widen that as far as possible. We had to bring in a cut-off point somewhere. Noble Lords will have heard in many other professions where they have had responsibility the suggestion, “Why don’t you put it off?”, or, “Why don’t you have a review or do it some other way?”. I wish that both the Treasury and the Government worked differently than they do. The noble Baroness, Lady Deech, has the idea that you can, as it were, go across the meadow picking flowers from here and there to finance things. The fact is that my department, as part of an overall spending review in response to a very real economic crisis, has had to take across the board cuts of 23% in 2010, a further 10% after a further review in 2012, and a further 1% in this review. We cannot go plundering other parts of Whitehall to make up the difference. We have to make hard, tough decisions about our expenditure at this moment, and try to make them in the fairest and broadest way that we can. Somebody asked whether we were also targeting other earners. The figures that I have, and I will confirm this, are that the cuts that we have consulted on were of about 7% on average. Of course we have targeted the higher earners.
Noble Lords made a number of points and I have tried to explain the context. We have had a very frank debate. I will close by saying to the noble and learned Baroness, Lady Scotland, that my right honourable friend the Lord Chancellor is well aware of his responsibilities and those of his office. I am sure that he will read the report of this debate in Hansard very carefully. I hope that in the mean time the noble Lord, Lord Carlile, will withdraw his Motion.
Power of Attorney
Lord Phillips of Sudbury Excerpts(11 years ago)
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Lord McNally
My Lords, the noble Baroness has put her finger right on it. We all know the change in the structure of the population that is going on. I am always amazed when I am in the corridor and pass a colleague who I know is as old as I am and who says, “I’ve got to go and visit Mother this weekend”. That is one of the responsibilities; and because of these increasing responsibilities, we have to make sure that as well as making this process simple, we also make it fraud-proof. That is the balance that we are trying to get.
Lord Phillips of Sudbury (LD)
My Lords, I am taking my life in my hands a bit by confronting the two noble Baronesses but, as an old solicitor, I wonder if my noble friend Lady Trumpington has taken account of the fact that the piece of paper that she so rightly said she could sign and waft off is still available to her. She can still go to a stationer and buy a general power of attorney for a pound, and that is all that she will need to pay. The problem is that the lasting power of attorney created in 2007 deals with people who have lost their capacity to command and deal with their own affairs. That is a hypersensitive issue, and within a family many people might be deeply uneasy about who gets that power, particularly in terms of life and death issues. Perhaps the answer is not as simple as it might at first appear.
Lord McNally
My Lords, I am extremely grateful for that question. I look forward to witnessing the meeting of my noble friends Lord Phillips and Lady Trumpington in Peers’ Lobby after Questions.
Legal Aid
Lord Phillips of Sudbury Excerpts(11 years, 4 months ago)
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Lord McNally
Shocking? The last Labour manifesto said the party would cut legal aid. For three years, all that I have heard from the Opposition Benches is: “Not this bit of legal aid” or, “Not that bit of legal aid”. No wonder they got into the economic mess they did, because they are frightened of making a decision. We are not.
Lord Phillips of Sudbury
My Lords, my noble friend talked about economies of scale. Will he accept that there is an iron law in the legal profession: the bigger the firm, the bigger the fees? Will he have regard to local justice and the cost to somebody accused of a crime of having to travel miles away in order to see his or her nominated lawyer?
Lord McNally
These are extremely important issues. They have been raised in the consultation and we are considering them.
Defamation Bill
Lord Phillips of Sudbury Excerpts(11 years, 7 months ago)
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Lord Faulks
My Lords, perhaps I may deal first with government Amendment 2B. Initially, I was very sympathetic to the idea of restricting a company’s right to sue because of the instances of bullying, which are now well known. I have become slightly more troubled by the restriction which is to be imposed in what I hope will not be impolite to call something of a volte-face by the Government in this respect. I understand the reasoning behind it but I seek from the noble Lord, Lord McNally, reassurance about what a company must establish to show that it has been, or is likely to be, caused serious financial loss.
In the well known case of Jameel v Wall Street Journal in 2007, the House of Lords considered, among others, the Derbyshire case. In particular, in his leading speech Lord Bingham said that he was satisfied that it was appropriate for a company not necessarily to prove special damage but to establish that a publication had the tendency to damage. I shall quote from paragraph 26 of his judgment:
“First, the good name of a company, as that of an individual, is a thing of value. A damaging libel may lower its standing in the eyes of the public and even its own staff, make people less ready to deal with it, less willing or less proud to work for it. If this were not so, corporations would not go to the lengths they do to protect and burnish their corporate images. I find nothing repugnant in the notion that this is a value which the law should protect”.
He went on to say:
“I do not accept that a publication, if truly damaging to a corporation’s commercial reputation, will result in provable financial loss, since the more prompt and public a company’s issue of proceedings, and the more diligent its pursuit of a claim, the less the chance that financial loss will actually accrue”.
What concerns me a little is that a company that has genuinely been damaged in its reputation will often find it very difficult to surmount this hurdle which is inserted in the Bill when it is not easy to produce by reference to a balance sheet an exact equivocation between the damage to a reputation and the damage to a company. It may be much more subtle than that, yet there is genuine damage to a reputation. Therefore, I would welcome some clarification from the Minister about what a company may need to establish short of producing a balance sheet, nevertheless having some evidence of real damage to the company.
There is a problem with the alternative tort of malicious falsehood in that the offer of a mens rea defence is not available. Of course, malicious falsehood requires proof of malice and is a somewhat unsatisfactory hurdle where a defamation action is, on the face of it, more suitable.
As to the amendment suggested by the noble Baroness, Lady Hayter, concerning non-natural persons, I entirely agree with my noble friend Lord Lester. I can add that the courts are currently considering a number of cases where they are patrolling the border, as it were, of the Derbyshire principle and deciding whether, on particular facts, the ratio decidendi of Derbyshire should be applied to a public role or public function having been performed by a particular body. I suggest that it is much better for the law to evolve, as the Minister said, rather than to codify it in this way. Of course, at the moment the courts are generally considering the question of public function in the context of the Human Rights Act and whether the obligations under the convention apply. There are many hybrid cases which are going to make these cases very fact-sensitive, and that is an indication that we should avoid trying to codify.
I strongly oppose Amendment 2D proposed in Motion B2. The initial requirement of seeking the permission of the court is going to add to costs. Largely thanks to the helpful intervention of the CPR—I see the noble and learned Lord, Lord Woolf, in his place—the courts have the flexibility to intervene on questions of meaning. They can strike out the whole or part of a case. In any event, I suggest that there is sufficient flexibility to make this initial hurdle supererogatory. It will be expensive and I fear that it will not in fact achieve what I understand lies behind this amendment, and so I strongly oppose that.
Lord Phillips of Sudbury
My Lords, I shall talk briefly to Amendment 2B and, in so doing, I echo what has been said about my noble friend Lord McNally. I do not know about McNally’s Bill but I certainly knew a Bill McNally, who was one of the finest poachers in Suffolk.
I am not happy with Amendment 2C, in the name of the noble Baroness, Lady Hayter of Kentish Town, but I have a lot of time for her Amendment 2D, supported by the noble Lord, Lord May of Oxford. As was said by my noble friend, there seems to be considerable anxiety around the bullying of corporations, which seems to get worse as time goes by. Some of the largest and wickedest of them are some of the most brutal in the way that they will abuse the law to silence critics.
I want to raise with my noble friend Lord McNally a point on Amendment 2B because this is potentially a Pepper v Hart occasion, where he could say in the most trenchant terms that my concern is misplaced. The amendment enlarges on Clause 1 of the Bill, headed “Serious harm”. It says:
“For the purposes of this section, harm to the reputation of a body that trades for profit”.
I am not absolutely clear that the phrase,
“a body that trades for profit”,
is beyond ambiguity. I am thinking particularly of charities, some of which trade for profit in the mainstream of the work that they do—for example, some schools, some hospitals and gymnasia. There are many areas where charities carry on a trade, but it is a charitable trade and it is, in one obvious and simple sense, for profit because it generates the wherewithal enabling them to run their hospital or whatever it is. I could have chosen language, I think, that would put the meaning beyond doubt, but we have to live with the wording that is here. As I understand it, there is no further opportunity to change the phrasing of this part of Amendment 2B. So I hope that my noble friend Lord McNally will assure me that this wording is specifically designed to exclude from its ambit the work of charities. Otherwise, I think we have a very large problem with this amendment.
Lord Bew
My Lords, I rise to speak to Amendment 2C. However, I feel I have to respond immediately to the words of the noble Lord, Lord Lester, which I have to say, on behalf of Northern Ireland as a region, makes me feel very uneasy.
The point about this Bill is that it is not just about enhancing press freedom but about public debate more generally, including academic freedom. I find it very disturbing that the region of the United Kingdom from which I come is opting for a more restrictive type of public debate and deciding not to engage in the wider freedoms that will now be available for public expression in the United Kingdom more generally. I find that is almost a self-mutilating act. The only thing I can say to the noble Lord, Lord Lester, is that I hope over time—but not too much time—the Northern Ireland Assembly will rethink its position. It was a position taken up when the tsunami of Leveson was sweeping over this Bill and it was not at all sure that this Bill would pass. It was a very surprising statement even in its timing. The best resolution of that would be for the Northern Ireland Assembly to reconsider, because innumerous anomalies will otherwise be created as regards the circulation of British media—not just newspapers but organs like the New Statesman and the Spectator—in Northern Ireland unless there is a rethink. I hope that there will be a rethink because otherwise it would leave us in a very unsatisfactory situation. It might be helpful in promoting that rethink if the leaderships of the parties in this House all indicated their unease with the situation in Northern Ireland. This Bill has all-party support and it might be useful to indicate a certain unease with the situation that we are facing.
Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013
Lord Phillips of Sudbury Excerpts(11 years, 8 months ago)
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Lord Phillips of Sudbury
My Lords, the speech we have heard from noble Lord, Lord Bach, is very sobering, and although he put it forth in no spirit of partisanship, some of the language was, if I may say so, overcoloured. I do not think that to accuse the Government of spite is reasonable, but I accept that for us apparently to deprive those covered by the Motion, who have suffered at the hands of a First-tier Tribunal where there has been an error of law in the decision, seems, to accept the noble Lord’s word, perverse.
I used to have an office overlooking the Old Bailey, and I never forget the motto over the portal of the Old Bailey. It reads:
“Defend the children of the poor & and punish the wrongdoer”.
If ever there is a category of cases where the children of the poor are likely to be engaged, it is this one: welfare law cases.
I shall listen very carefully to what my noble friend has to say in response to the case put forward by the noble Lord, Lord Bach. My mind is not finally made up, but I must be frank with my noble friend. This seems an extraordinary error of both judgment and justice. We boast endlessly in this country about our justice system, on the whole with reason. I cannot begin to get my head around denying people who have suffered a reverse in the welfare tribunals legal advice on a point of law. I hope that my noble friend will have a compelling argument to bring forth. In particular, it would be very helpful for the House to know just what the cost is, or would be likely to be, if the provision were withdrawn. I very much hope that if the Minister cannot give a satisfactory riposte, the Government will think again, even at this late stage. Sometimes numerically small issues mark a culture, a society, a Government, and this seems to me to be laden with that significance.
Lord Beecham
My Lords, this debate consists of two parts. The first is the regret Motion tabled by my noble friend Lord Bach, which deals with a particular decision. I do not want to say any more about that other than that I entirely support the magisterial rebuke that he administers not to the Minister, who of course does not have a free hand in these matters, but to the Government at large for denying a modest concession to about 300 people, the cost of which, to refer to the question asked by the noble Lord, Lord Phillips, must be minimal, in what can only be described as a governmental fit of pique.
Having said that, I turn to the second more general issue that is encompassed in the broader merits regulations and the position of welfare law claimaints in general, who are significantly affected by the changes that are now under way. Hitherto, about 30,000 people have benefited from welfare legal aid and advice, usually, although not exclusively, provided by voluntary organisations, notably the citizens advice bureaux. I place on record my gratitude to the bureaux for furnishing the information that I am about to relate, in part at least, to the House. The situation now is that instead of 30,000 people getting that advice, 3,200 will receive advice and support in respect of Upper Tribunal matters only. There will be no assistance in their case at the first tribunal. There are two aspects to this, a supply side and a demand side, and I shall begin, rather perversely, with the second, which is the demand side.
We are dealing nationally with a group of significantly disadvantaged people. I am informed by the bureaux that some 68% of current welfare legal aid users have a disability. In addition, there will be many with literacy and other problems and vulnerabilities; indeed, they are a significantly high proportion of those who seek advice. They seek advice about their entitlement, but also about the processes that are, to put it mildly, complex. I can illustrate that with one of a number of cases the bureaux have briefed me and my noble friend on. I shall pick the shortest so as not to delay your Lordships any further than necessary.
In one case, a Welsh bureau advised a 57 year-old woman with multiple disabilities who received employment and support allowance and council tax benefit. She made a claim, did not seek advice when completing it and as a result underestimated her needs, in particular her mental health issues. Here, again, I underline the point about the degree of vulnerability of some of these claimants. She attended a medical assessment and was judged to have scored no points. She appealed that, attended a First-tier Tribunal in 2012 and was awarded nine points, but was not awarded any help with the mental health conditions, despite a letter from a GP saying she had a long-term mental health condition and despite the fact that the letter said she was suicidal some months before that decision. The bureau then advised her on looking for options for appealing the decision to the Upper-tier Tribunal. She would have had no help at all from the bureau in the present circumstances if the bureau’s capacity to give it was limited, as it is likely to be.
In effect, legal aid and advice is now limited to the second stage, the onward appeals tribunal. This is not consistent with the intention Parliament originally expressed in respect of first-tier cases where at least basic advice and support on a number of procedural issues, such as a request for a statement of reasons from a first tribunal, seeking leave to appeal from the first tribunal and other aspects—lodging documents and so on—should be covered. Unless these stages are included within regulations, it is unlikely that anybody seeking to appeal, assuming they know of their rights to appeal, would be able to progress from the first tier to the second tier unassisted. That is the second stage.
I now turn to the supply side. There is a growing crisis in the sector. There is no doubt about that. Citizens advice bureaux and other organisations are suffering significant reductions in funding from national and local government, the latter of course having been awarded a further 2% cut in government grant in the recent Budget, so things are not going to get any better for some time in that context. The problem now is that bureaux are disposing of staff. My bureau in Newcastle has had to rid itself of the equivalent of three and a half full-time legal advisers, the bureau in Gateshead is closing, and this pattern is being repeated all over the country. It has to be said that some bureaux continue to provide pretty much a full service, but increasingly the pressure is resulting in a substantial decline in the capacity of the organisations to meet the demand, which is likely to rise, not least with the Welfare Reform Act changes that are about to strike hundreds of thousands, if not millions, of people.
The process now is that the contracts to provide this service for the only part that is to be covered by legal aid, the Upper Tribunal, are being let in a very curious system. I did not know about this until a couple of days ago. Apparently there are to be only four areas in which these contracts will be granted for the whole country. I am not sure whether Scotland is included, but certainly England and Wales are divided into four areas under which a contract will be let. A tendering process will commence and it is intended to be completed in October.
What is to happen in the mean time, between April and October, given the pressure on the budgets of the CAB and other advice agencies, remains to be seen, but there must be a significant worry that there will be difficulties in dealing even with appeals to the Upper Tribunal pending the allocation of contracts. Certainly there is a good deal of concern in the sector about that, because in the mean time several hundred welfare law contracts, which are not currently distributed on the basis of just four contracts for the whole country, will come to an end. So there is a really significant problem immediately on the supply side.
The four areas—it is clear that Scotland is not included—are the north, the Midlands and the east, the south-west and Wales, and London and the south-east. These are huge geographic areas. The CAB says that the contracts will require that:
“The applicant must be able to provide face to face services from locations and access points across the whole area, as well as delivering remote advice”—
that says it all, really—
“and interacting with the civil legal aid (CLA) helpline; no subcontracting is submitted and the applicant must be a single individual”.
A very strange market is going to develop in which only four organisations will be involved. One imagines that organisations such as Group 4 and Atos, which have covered themselves in glory in recent years, will be rushing forward to supply this important and sensitive service.
The contracts themselves are very limited. For London and the northern procurement areas, only 1,035 cases are assumed to be included in the contract. The other two areas have 600 and 90 each. That is minimal in the face of the likely demand. It certainly does not take us beyond the current 3,200 people who get legal aid and advice for the Upper Tribunal. There is no flexibility in that. If you have only that small number of cases you will have only two or three specialist advisers covering areas as vast as those that I have described. Remoteness is indeed going to be evident. How on earth can two or three people sensibly look to face-to-face contact with appellants over an area as wide as that? Yet that is what the contracts are heading towards.
Will the Government look again at support for the advice sector, and the contract in particular, first, to ensure that services are maintained on the present basis between 1 April and the date on which the new contract comes in? That will be difficult because people will be looking for alternative employment. If the contracts are going to involve only 12 people nationally, people who are currently engaged locally on this kind of work are going to be looking for other work. I hope that the Government will provide some temporary support at least for the continuation of that service. Secondly, will they look again at this ridiculous pattern of four huge areas served by a handful of people? I cannot believe that the Government seriously think that this is the way to support people of the kind that the CAB describes, which I related to the House, who desperately need personal contact if they are to have their cases heard.
Of course, we are not voting on the regulations as such. I believe that the Minister will be sympathetic to the issues I have raised. I hope he will take this back to the department and that we can have some changes: first, some reconsideration, preferably with proper discussion with the sector about how it might work; and, secondly, a review of whether the contracts should go ahead on the present basis. I certainly hope that the Government will have second thoughts about this matter.
Lord McNally
The noble Lord knows how Governments work, and spending reviews are carried out by individual government departments. He was responsible for the arts budget, fortunately in happier days with regard to spending. Individual government departments have to take hard decisions. It is an old scheme in government to say, “Oh well, of course defence spends this much more”. You have to make the decisions, and we had to make decisions about the scope of legal aid.
We tried from the beginning to ensure that there was a logic to what we were doing, in that—I have just been handed a little guide to it—we prioritised civil legal services so that they would be available in the highest-priority cases: where people’s life or liberty was at stake, where they were at risk of serious physical harm or the immediate loss of their home, or where children may be taken into care. That has undoubtedly meant cuts elsewhere, which the noble Lord, Lord Beecham, outlined, although the dividing line between legal advice and advice sometimes gets blurred.
I should also make the point that the universal credit is not a big bang; it will be phased in over a number of years. Of course we will keep a very close eye on how these things develop and the impact that they have.
I make this point again to the advice services: I know that CAB and others have been formidable lobbyists, and again I make no complaint about that, but the advice service is no more spared from the cuts that have affected this area than my own department is or than local authorities are. We live in hard times as far as these bodies are concerned, and we are trying to give money to the advice sector to help it reorganise and adapt to new circumstances. We will continue to do so, but we cannot immunise it from those impacts.
One of the oldest members of my flock, my noble friend Lord Hutchinson of Lullington—Jeremy Hutchinson QC—sadly no longer attends the House for what I think is the entirely bogus reason that he is 96, but he is as sharp as a tack. He was involved with the Bar in the setting up of legal aid in 1948 and told me, “We really thought that we were creating a National Health Service for the law”. That was an extremely noble aspiration. However, I have also found, particularly since 2010, that given the financial circumstances that we inherited, not just this Government but the previous Government had been looking at whether some parameters had to be set on the provision of taxpayer-funded legal aid. I hope that in taking these measures forward we can engage in attempts to get some kind of cross-party consensus on society’s commitment to legal aid.
In a discussion that the noble Lord, Lord Bach, and I had at University College recently, I said that if he were here in 2015, and he asked Chancellor Balls, or whoever, for £500 million to restore the legal aid cuts, I did not think that he would get a very promising answer as the same economic constraints and realities would still apply. However, there is an interesting debate to be had about the future of legal aid and our national commitment to it. Thus far, we have made hard decisions but I want to make sure that as far as possible we are not left with rough justice.
On the point made by my noble friend Lord Phillips, we will keep the matter under review. I have asked all the various sectors of the MoJ that deal with these matters to keep monitoring the measure’s impacts and effects from day one. I know that noble Lords on all Benches will want to see how this works out. However, I believe that we have done the best we can in difficult circumstances.
Lord Phillips of Sudbury
Before my noble friend sits down, will he answer the question that I think was put by the noble Lord, Lord Bach, and certainly by myself: namely, what broadly is the cost of allowing advice to be given to those few hundred people who want to appeal on a point of law against a tribunal decision on welfare law?
Lord McNally
I think a rough estimate is that it is probably less than £1 million. It was a very small concession, but it was not me who withdrew it.
Lord McNally
Built into the system are corrections to the tribunal. The noble Lord will know that the tribunal system was initially conceived as a relatively lawyer-free zone where people could make their case. The other part of our reforms of justice is, in a whole range of measures, to offer different forms of mediation and arbitration that reduce what was becoming an over-lawyered system, including in tribunals.
Lord Phillips of Sudbury
I am sorry to intervene again on my noble friend, but it is not fair to say that the tribunals introduced a lawyer-free zone. The point of this debate is that it is in respect of issues of law in relation to tribunals that advice is plainly needed from lawyers. That is ineluctable.
Lord Bach
My Lords, I thank all noble Lords who have spoken in this debate. I thank in particular the noble Lord, Lord Phillips of Sudbury, for his remarks. If the word “spite” offends him because it is rather overblown—rather like the number I claimed for a previous amendment—I apologise. I do not want to overblow this but I want to make the point. I am grateful to my noble friend Lord Beecham for his remarks on the general issue around legal aid that this House discussed over many months. He is absolutely right. When Part 1 of this Act comes into force next Monday, it will be a day of shame for our legal system because—I am sorry to use this phrase again—access to justice for the poor, disabled and marginalised will, in many cases, effectively disappear because they will lack the ability to get the advice—
Damages-Based Agreements Regulations 2013
Lord Phillips of Sudbury Excerpts(11 years, 8 months ago)
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Lord McNally
My Lords, both these instruments, which are important elements of our reform, come into effect on 1 April 2013. The reforms overall are intended to make civil costs more proportionate. They also include particular provisions to protect claimants and damages, as I have set out. These instruments have been subject to consultation, and we have improved the drafting as a result. I believe they are proportionate and appropriate. I therefore commend the draft instruments to the Committee.
Lord Phillips of Sudbury
I have only one simple point to make. It is a question to the Minister regarding the Conditional Fee Agreements Order, particularly the 25% cap, which does not apply to any future losses. In proposing this legislation, the Minister rested his case heavily on proposals made by Lord Justice Jackson in his review. Is the Minister aware of a lecture Lord Justice Jackson gave on 29 February last year? In this lecture, he made a point, which appears in the footnote, stating:
“The Personal Injuries Bar Association (PIBA) and the Bar Council have recently sent to me forceful submissions that the 25% cap should apply to ALL damages, as it did before April 2000. I can see the sense of allowing that dispensation in appropriate cases provided that the success fee is only payable by the client as it was pre-April 2000”.
That seems reasonable and it seems doubly reasonable given that the author of these proposals, Lord Justice Jackson, himself had second thoughts which he expressed in public last year. I am wondering, therefore, why the limitation to past losses survives into this statutory instrument and whether the Minister could take this away and follow the latest thinking of Lord Justice Jackson, which is supported by the Bar Council and, I suspect, the Law Society.
Lord Beecham
My Lords, I always like to be consistent and it certainly would be inconsistent of me not to begin with a complaint about the process here. These regulations come to us some five weeks before they are to take effect. The Bar Council has drawn attention to this, rightly stressing that a major change in the law, particularly in relation to DBAs, is being introduced with very little time before they come into effect for people to work out how they are going to be applied.
As the Minister has said, it has always been permissible for damages-based agreements to be implemented in non-contentious matters in tribunals. As he has also said, these were extended by regulations to employment cases. That opened the way to the revival of what used to be called “champerty” in previous times, which of course was unlawful. We are now legalising it under the new nomenclature of damages-based agreements and I can see that there is a case for doing that. Nevertheless, significant issues and questions arise from the Government’s proposal.
Reverting to the timescale, it should be pointed out that other changes affecting contentious litigation are in hand. These include changes to the Road Traffic Act portal and small claims limits in cases, including, potentially, personal injury cases. With all that happening, one might have thought that it would be sensible to bring all the changes together and to do it at a time which allows the parties and the professions to prepare adequately. I hope that the Minister will look again at the timetabling with a view to deferring implementation of whatever regulations finally emerge for six months until October of this year. I am particularly indebted to those who have briefed me, and no doubt other Members of your Lordships’ House and perhaps of this Committee, in relation to these matters, including the Association of Personal Injury Lawyers, the Bar Council, the Law Society and, especially, Professor Rachael Mulheron.
A number of issues arise and I hope that the Minister will be patient while I list them. If he is not able to reply to them all today—he may well not be—I hope that he will take these matters back and consider them. I was going to raise the question of the cap, which was raised by the noble Lord, Lord Phillips. I, too, identified the change of mind by Lord Justice Jackson, to which the noble Lord referred. It is notable of course that the 25% cap in terms of damages-based agreements applies only to personal injury cases. It is a 35% cap in employment cases, which can equally be quite substantial, although not, I guess, running into the millions of pounds of the exceptional cases of clinical evidence and the like to which the Minister referred. Nevertheless, it certainly can be comparable with many ordinary personal injury cases. In those cases, the cap is 35% including future loss, so there is a serious question about the composition of the figure against which the percentage is to be calculated.
Lord Phillips of Sudbury
Before the noble Lord, Lord Beecham, sits down, does he agree that in his own extremely eloquent exposition on these two statutory instruments, and indeed in my own offering, there was a notable absence of reference to the basis upon which I suspect he, and certainly I, put forward our points—that is, access to justice? The majority sitting in this Grand Committee are lawyers, and we take it so much for granted that what we are seeking to amend in these regulations is exclusively for the benefit of improving access to justice. I invite him to concur with me that anyone reading Hansard who saw no reference to that in the course of our two offerings should know that this underpins everything that we have said.
Lord Beecham
I am grateful to the noble Lord for making explicit what was certainly implicit in what he and I were saying. Access to justice is certainly the core argument here. I should perhaps also have declared an interest in that from time to time as we have discussed these matters I have put in time as a now unpaid consultant with the firm of solicitors in which I was formerly a partner.
Defamation Bill
Lord Phillips of Sudbury Excerpts(11 years, 9 months ago)
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Lord Phillips of Sudbury
My noble friend said that he could see the point of this and understood the need for some sort of constraint. What would he do, if this is not the right way? What would be the right way of achieving the general purpose?
Lord Allan of Hallam
The right way is to keep Clause 5 as it is currently drafted. The Government have done a good job in drafting the scope of this defence as an additional measure to those currently available under the e-commerce directive. It makes sense to have this additional defence. My concern is that Amendment 11 would be an additional burden and further restrict the defence only to websites that have the ability to post a notice in this way. I imagine that a significant number of websites which could avail themselves of the defence in Clause 5 would not be able to do so if there were a requirement to post a notice. I can also imagine instances when such a requirement would be abused. It makes sense to leave it to the website operator, once they have received a complaint, to deal with it under Clause 5 as it is. I also think that it would be sufficient to encourage website operators to post notices when things are contested and they believe that a notice would fit with their environment and be helpful. There are instances when you need to mandate something and instances when you want to encourage it as a model of good practice. In the context of notices, the mandated option is wrong and the good practice option is correct.
Lord Lester of Herne Hill
Having spent about three and a half years attempting to reform the law of defamation, and in the light of what happened on the first amendment today, my overriding objective is to get the Bill through. I want to make it clear that I shall not be moving any of the amendments in my name this evening. I say that now in case anyone else, in their sad lives, wishes to do so. Having thought about it, I take the view that the regime as it stands, with regulations, will be perfectly capable of accommodating some of these issues properly and that we are now being overcareful and overprescriptive. I know that it is very unusual for a member of the Bar to indicate that he is under a decree of self-imposed silence, but that is my position.
Lord Phillips of Sudbury
My Lords, I listened carefully to what my noble friend Lord Allan of Hallam said. He will forgive me if I say that, coupled with what he said in Committee, there seems to be a leitmotif in his objections to amendments that really the industry is too big to control. That has echoes of the banks being too big to fail. The truth is that they are enormous organisations and with that enormity comes enormous power and the ability to inflict enormous damage on occasion.
I like the purport of Amendment 11. It seems right that, while the operator is considering what to do in the longer term, a notice of complaint should be there so that anybody reading the original defamation will see the complaint alongside it. I also understand some of the points made by my noble friend Lord Allan of Hallam. Perhaps in responding the Minister will tell us whether under Clause 5(5) it will be possible through regulations to introduce a regime for posting complaints and so on that would be practical in the variety of circumstances to which my noble friend Lord Allan of Hallam alluded. That would seem to be the obvious way to go: to take the time to work out a provision that works for all the different types of platform, and at the same time plays fair both by the operator and the complainant.
Lord Ahmad of Wimbledon
My Lords, again I thank all noble Lords who took part in the debate. I will turn first to government Amendment 17 in the name of my noble friend Lord McNally. I shall speak also to Amendment 11 in this group.
Amendment 17 provides for the defence under Clause 5 to be defeated if the claimant shows that the website operator has acted with malice in relation to the posting of the statement concerned. We tabled this amendment in response to the concern raised in Committee by my noble friend Lord Phillips of Sudbury that situations might arise in which a website operator acts maliciously, for example by inciting the poster to make the posting or otherwise colluding with him. While we consider that these situations are unlikely to be common, on reflection we agreed that in circumstances where a website operator acts maliciously it is right that the defence should be defeated. I thank my noble friend for bringing this issue to the fore.
Amendment 11 was also tabled in Committee. It would require a website operator who wished to rely on the Clause 5 defence to publish a notice of complaint alongside the material complained of within seven days of receipt of the complaint. The amendment also provides that if the website operator fails to post a notice within the set period, they will forfeit this defence and will be able to rely solely on the standard defences available to a primary publisher.
The basis for this amendment is a recommendation of the Joint Committee on the Bill that website operators should attach notices to online material when complaints are received. The Government’s position on this proposal was first set out in our response to the Joint Committee’s report. We repeated our position during the passage of the Bill in this House and the other place. The issue is one of practicality. Ministry of Justice officials received representations from internet organisations following publication of the Joint Committee’s report, highlighting the practical and technical difficulties with the proposal relating to the posting of a notice of complaint alongside defamatory material.
I will go through some obvious concerns that were raised, which may underline the practical issues. First, the point was raised that complained-about content might be embedded in a number of different sites, making it unclear who should be responsible for attaching the notice, where it should be placed and how it could be transferred across to other sites on which the material might subsequently appear. Again, as I said in Committee, I fully appreciate that the argument presents itself as one that it is in the interests of internet organisations.
In Committee we heard various arguments on both sides. My noble friend Lord Allan of Hallam highlighted practical issues from his own experience in the field. The noble Earl, Lord Erroll, talked about his daughter’s experience as a graphic designer for websites, and of the complexities of an operator attaching additional content without going back to the original programmer. I also acknowledge fully that my noble friend Lord Lucas expressed the view that it was far from impossible for website operators to attach such notices.
However, I will repeat on the Floor of the House what I said in Committee. The Government’s concerns around the practicality of this proposal have been clear from the publication of our response to the Joint Committee report almost a year ago. In that time nobody has presented to us any persuasive evidence to suggest that those concerns are not warranted.
On the issues raised by my noble friends Lord Allan and Lord Phillips about regulation, perhaps I may come back to them in writing to clarify the position. I have made a note of the suggestions that have been made.
I have listened, as ever, to all of the noble Baroness’s contributions and I am sure that she will say that our position has not changed since Committee stage, which I accept. However, we are where we are on this proposal. I repeat that no one has come to us to present a counterargument. Certainly if they have come forward, their arguments have not been of a persuasive nature. For those reasons, the Government cannot support Amendment 11 and I hope that the noble Baroness will see fit to withdraw it.
Lord McNally
My Lords, Amendment 19 relates to an issue raised in Committee by my noble friend Lord Phillips of Sudbury. The Defamation Act 1996 gives a defence of qualified privilege to fair and accurate reports of proceedings at a general meeting of a UK public company, and to copies of and extracts from various documents circulated to members of such a company. Clause 7(7) extends this protection more widely to cover reports in relation to companies listed on recognised stock exchanges worldwide and to summaries of such material. This includes material,
“circulated to members of a listed company which relates to the appointment, resignation, retirement or dismissal of directors of the company”.
Amendment 19 would, in addition, extend qualified privilege to material relating to the appointment, resignation, retirement or dismissal of the company’s auditors. When my noble friend raised this issue in Grand Committee, it was suggested that the existing provisions of Clause 7(7) might already cover it. We considered that in circumstances where this information was contained in documents circulated to members of a company by or with the authority of the board of directors or by the auditors, it would be covered by paragraph 13(2) of Schedule 1 to the 1996 Act. However, circumstances where the information was published without the authority of the board of directors would not be covered so, on reflection, we consider it desirable to extend the provision to cover these additional situations. This would be in line with the more general government policy to increase the transparency of interactions between companies and their auditors. I am grateful to my noble friend for his suggestion in this respect and I beg to move this amendment.
Baroness Hayter of Kentish Town
I cannot be briefer than that, my Lords. We also welcome the amendment. It is small and sensible, and it reflects the Government’s willingness to listen to the House. In case I do not have the time to say that on another occasion on this Bill, I would like to say that there has been a lot of listening. More should be expected of auditors and their records should be open to scrutiny, so anything which allows wider discussions of their shortcomings can only be a good thing.
Lord Phillips of Sudbury
My Lords, I rise to point out a bit of a car crash in Amendment 20 and Clause 10 in the light of Amendment 17, in which the Government, to the approbation of the House, introduced the issue of malice. If the operator of a website was actuated by malice, it will deprive him of his defence. That is no longer consistent with the provisions in Clause 10(1), because in effect it says that you cannot sue,
“unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher”.
So far this evening, the noble Lord, Lord Browne, has discussed Clause 10 and his Amendment 20 exclusively in terms of booksellers, but it applies equally to website operators. It will completely undo the introduction of the issue of malice into Clause 5 if Clause 10 allows an operator to avoid being sued for having allowed something to be posted with malice on the part of the operator if, in the language of Clause 10(1), it is reasonably practicable to sue the author, editor or publisher. I apologise for not having picked this up earlier, but we need to do something about it. It also infects Amendment 20, where the same issue prevails.
I have a second issue. I am sorry to have to object to this amendment, but in proposed paragraph (c) in Amendment 20, there is a “not” in the first line that should not be there. As worded, it would mean that a court would not have jurisdiction to hear a complaint unless, among other things, it was satisfied that the bookseller,
“did not know that the statement was defamatory”,
et cetera. The point surely must be that the bookseller did know that the statement was defamatory. I do not quite know what we do at this time of night on Report, but if I am correct, and I have a horrible feeling that I am, it undermines both the amendment and the present state of Clause 10.
Lord Prescott
My Lords, I agree with the amendments put forward by my noble friend Lord Browne. The noble Lord, Lord Phillips, has made a point about the confusion between the interpretation on the websites and in this amendment with regard to books. This is about whether the statement is known to be defamatory. I want to raise an unusual matter; I believe this House made a defamatory statement in the very committee that was set up to review the situation.
Noble Lords will know of the Joint Committee on Privacy and Injunctions. In pre-legislative scrutiny, it took evidence from a Mr Burby on super-injunctions. His first piece of evidence was entirely about super-injunctions, which anyone could give. His supplementary evidence was about himself. The courts had told him, after his acts of blackmail and harassment, that under the injunction he could not make any of these statements publicly. So he came along to the Joint Committee and gave the evidence at a meeting chaired by Mr Whittingdale. In his supplementary evidence, he repeated all the things that the court had told him he was under an injunction not to say anything about. He repeated evidence about the allegations and the whole case which the courts were considering.
The lawyers of the lady who was the subject of these charges objected to his evidence. I am most concerned that not only did he repeat them as evidence but that the Daily Telegraph, true to form, then printed them, arguing that they were covered by parliamentary privilege. Simply because he had given evidence to the Joint Committee, he claimed parliamentary privilege.
In the other place, normally if a case is under way it is considered by the Speaker to be sub judice and cannot be discussed, so there is no conflict between the court and Parliament. In this case, the lawyers of the lady concerned complained to the Joint Committee, which chose to go ahead and publish, again arguing parliamentary privilege. I was concerned about this and asked the Clerk of the Parliaments how this could happen. I asked him why it is not ruled that the committee publishing evidence on its website, citing all those things which the court has told the witness he cannot say, is able to say that the injunction does not matter because we are the ones who make the decision here. That evidence is still being published today. It is on a website now in the name of this House, and it repeats all the things that the court said could not be printed.
This raises a number of issues. When I approached David Beamish, the Clerk of the Parliaments, he said, “Oh, well, it is very difficult, but you can discuss it when the report comes to this House”. Well, the report did not come to this House. While the other place had a chance to discuss it, we did not, simply because the Easter holidays came along, or whatever it was. I was told I could discuss it when we came back. The House of Commons quickly moved on to Second Reading, so I was denied the opportunity of raising this important issue here as the Clerk of Parliaments had suggested.
Now we have the Bill here. Because I am in the Council of Europe, I am unable to take on the obligations to go to the committee all the time. I think the House will understand that, but that means that the matter must be raised here.
This raises some pretty fundamental issues. In the other place, it is certainly the convention that if you discuss an issue that is under an injunction, it is considered sub judice. The Speaker will intervene and say that you cannot discuss it, although that has been breached a few times; a Member of Parliament from Leeds made the point about the footballer and the super-injunction.
The issue here is a discussion by the Joint Committee about super-injunctions. The allegations that Mr Burby repeated were not subject to a super-injunction, although he alleged that they were. The courts have since made clear that there was no super-injunction. It was simply an injunction, which basically means that it was not relevant to the Joint Committee’s inquiry but the committee chose to ignore that. Mr Whittingdale in his statement says again that it was a super-injunction. I am afraid that the courts have made clear that it was not, so it really is not right for us to publish evidence that continues to be available on a website—I even have a copy of it today—making all these claims which the courts have said should not be repeated.
I say to the Minister that clearly somebody needs to sort this out. It is a difficult problem, and something that is increasingly breached. MPs decide to get a bit of publicity, because that it what it is about, and name somebody before the Speaker can stop them. I do not know what the position is in the House of Lords, but it is clearly an issue.
Finally, I would like to see that evidence, which is being published in our name, removed. That act of publication is breaching the injunction that has been laid down, and Parliament does it with a certain amount of contempt. I hope that the Minister might look into this matter and find out what the circumstances are. Perhaps he could let me know if he is satisfied or whether it is under review. I bring it to the attention of this House on this occasion, and I am sorry to burden your Lordships with it so late in the night.
Lord Browne of Ladyton
My Lords, for the reasons that the Minister spelt out, I strongly welcome this amendment. I thank the Minister for listening so carefully to the argument put before him in Committee and responding in this way.
Lord Phillips of Sudbury
My Lords, I am just nitpicking again but we might as well get this right. I think the amendment should start by saying that in line 4 an “(a)” should be inserted after the word “order”. There is no “(a)” to balance the “(b)” introduced by Amendment 22. As I say, that is nitpicking but I am sure I am right. We better get it right for Third Reading.
Lord Ahmad of Wimbledon
Let me assure my noble friend that, whether it is an “(a)” or a “(b)”, I am sure the officials have taken note and will seek to correct that.
Defamation Bill
Lord Phillips of Sudbury Excerpts(11 years, 9 months ago)
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Lord Skidelsky
My Lords, I have only one point to make. The noble Lord, Lord Lester, said that these amendments in effect introduce Leveson by the back door into a Bill dealing with other matters. To my mind, that is an important merit of the Bill because we are unlikely to get Leveson through the front door. I particularly emphasise the point that these amendments are the best chance we have of getting the Leveson proposals implemented in their full integrity. The amendments are about access to justice. They would put in place two fundamental elements of Lord Justice Leveson’s proposals, namely means of legal redress for ordinary people if their rights are breached and a fair and independent system to deal with complaints against the press. I doubt whether those who support these fundamental elements will get another chance, or at least as good a chance as now exists, to have these principles embodied in law. The private Member’s Bill of the noble Lord, Lord Lester, will not afford the same chance, for reasons given by the noble Lord, Lord Fowler. If we fail to take advantage of this opportunity, we will in effect kick Leveson into the long grass. The amendments would make the Defamation Bill relevant to the entire population instead of just to the rich, and it is vital that we support them.
Lord Phillips of Sudbury
At Second Reading, I devoted most of what I said to the issue of access to justice. I take my hat off to the noble Lord, Lord Puttnam, and his supporters, as well as the noble Baronesses, Lady O’Neill of Bengarve and Lady Hollins, for concentrating on the huge lacuna in this Bill and in the law of defamation generally. Let no one be under any misapprehension as to how unjust our law of defamation is. I speak as one solicitor—long in the tooth, it must be said—who has dealt over the years with defamation, from time to time. It is a scandal how much it is a plaything of the rich, completely beyond access by people of even ordinary means. So I am wholly emotionally in favour of what is intended by this set of amendments and the schedules.
I have listened to the noble Lord, Lord Lester, who never speaks with less than authority. At first hearing, I am not sure how all the points that he made would impact, but I accept at large what he has said. One has to hope that my noble friend Lord Fowler is correct, and that if we pass this set of amendments today the defects in them can be rectified either at Third Reading in this place or in the House of Commons or when it comes back to us. I am convinced that to leave this for another day would not be responsible of us—as the last speaker said. We must take the chance that we now have, defective though the amendment may be.
I add only one detailed point. My noble friend Lord Lester said that he was wholly opposed to the notion of exemplary damages pretty well willy-nilly. At least subsection (8) of Amendment 1 talks about exemplary damages for,
“a flagrant breach of … rights”,
of the claimant. Given the sensitivity of the relationship between the press and the citizenry, it might be an acceptable use of what is generally not desirable—exemplary damages, or the concept of it—in respect of a “flagrant breach”. Incidentally, subsection (8) of the amendment has in it a serious misprint. It talks about breach of a defendant’s rights when it should refer to a claimant’s right. That is but one of several matters that could and, I hope, will be improved in the course of this Bill through the two Houses. On that basis, I am in favour of the amendments going through.
The Archbishop of York
My Lords, first, I apologise that I was not in Grand Committee when the Bill was going through. The noble Lord, Lord Lester of Herne Hill, always speaks with great authority on human rights and the conventions, but I would have thought that this was not the Third Reading of the Bill. If it were, we would be coming to the end of the game. This is Report, so the noble Lord, Lord Lester, might put right the defects in the amendments so that when the Bill comes back at Third Reading it will be amended. So that argument does not hold water.
In the end, it is to do with trust. If trust is absent, what do you do? We all want to trust our newspapers, but what happens when there is no trust? The amendment proposes an:
“Arbitration Service for defamation and related civil claims against members of Independent Regulatory Board”.
Because it is to do, first of all, with a question of arbitration, I am attracted to it. I am attracted to it because the preacher from Galilee said that, if you have a dispute with your neighbour, it is better to try to settle it before you go to court, because when you go to court you may find yourself being given such a stiff sentence that you end up losing doubly. Therefore, I am attracted by the whole question of arbitration. The courts, of course, can look at whether the parties were willing or unwilling to engage in arbitration. If a person has been wronged and another person does not think that is the case, arbitration obliges them to have a conversation. It seems to me that we should accept Amendment 1 at this stage. Then the Government can perhaps suggest alterations to it. Certainly, the noble Lord, Lord Lester, is always very assiduous in correcting things that are not well put. Perhaps he can suggest alterations to the amendment.
I am not persuaded by the part of the amendment in the names of the noble Baronesses, Lady O’Neill and Lady Hollins, which seeks to delete subsections (5) to (7) of the proposed new clause in Amendment 1, although I may be persuaded by other parts of their amendment. Those subsections are very important. They set out what needs to happen. Therefore, I urge your Lordships’ House to pause and consider whether we really think that only the rich ought to have recourse to a remedy in defamation cases. The ordinary citizen could find redress very easily and quickly through arbitration. The press ought to welcome arbitration because it would cost far less than an elaborate court case, which may collapse in the end after a lot of costs have been incurred. When there is no trust, what do you do? You want to be in a position to rectify your situation. For those reasons, I support Amendment 1 and resist deleting proposed new subsections (5) to (7) from it.
Viscount Colville of Culross
My Lords, I support Amendment 7. I welcome the Government’s amendment to Clause 4. However, if the change from “believed” to “decided” guarantees that the checklist does not return and that authors will not be exposed to long and expensive cases in libel courts, I as a journalist think that that must be a good thing and I support it.
Lord Phillips of Sudbury
I wish to make a short point. I wholly agree with what my noble friend Lord Lester said about the confusing drafting of Clause 4(2). It is a most barbaric concoction and, coming in an age when we are all trying to make legislation as accessible as possible to other than legal experts, it really will not do. One particular aspect adds to its inadequacy; namely, reference to,
“an accurate and impartial account of a dispute to which the claimant was a party”.
I do not quite see why this clause should apply only to a dispute to which a claimant was a party. Why would it not apply to a matter in which the claimant had an interest? There may be no dispute there but it could be to do with a campaign where again there is no dispute. Apart from the generality, that is a bit of a drawback.
Lord Browne of Ladyton
My Lords, I have no amendment in this group but I wish to speak partly in support of Amendments 6 and 7. I am persuaded, I think, that Amendment 7 may bring more to the clarity of this legislation than Amendment 6. I also wish to express some concerns about Amendments 6 and 7, which require clarification. I hope that we will be able to get that clarification from the Minister and perhaps reflect during the rest of the process of this Bill on whether the total effect of Amendments 6 and 7 will be as is being argued.
I approach this from a slightly different perspective. My reading of the effect of these amendments is that they are designed to improve Clause 4, which I accept, but that they would remove the element of subjectivity in the test of whether the publication was in the public interest. The clause has been substantially amended and, in fact, it has been recast. That has been welcomed, particularly by the promoters of these amendments, as the noble Lord, Lord Taverne, made clear at the outset. This is a much improved clause but, as I understand it, the aim has been to move away from Reynolds but to reflect the case of Flood in the law.
“(1) It is a defence for the operator to show that—
(a) it was not the operator who posted the statement,(b) the operator took reasonable care in relation to its posting,(c) the operator did not know and had no reason to believe that what it did caused, encouraged or contributed to the posting of the statement, and(d) the operator responded to a complaint about the statement with expedition and took such action in relation to the statement as was reasonable in the circumstances.(2) In considering the reasonableness of a defence under this section, a court shall take into account any steps taken by an operator to establish or adopt, and then to enforce or implement, any anti-defamation code of practice, any complaints procedure and any system for ascertaining and making available to a claimant the identity of any person posting any statement sufficient for the claimant to bring proceedings against the person.”
Lord Phillips of Sudbury
My Lords, there has been an understandable preoccupation thus far with the traditional media, but, of course, the web is becoming an increasingly dominant player in the world of communication. Clause 5 deals with websites and in particular with the position of operators of websites. As fellow Peers will know by now, the Defamation Bill preserves primary liability, fairly, to the author of any defamation and protects and gives a blanket protection to the operators up to the point that a notice of complaint is lodged—and for a period after that.
As we have all said endlessly, it is extraordinarily difficult to strike a balance in this difficult field between on the one hand preventing censorship by threats of libel actions and on the other hand protecting an individual’s personal reputation. The chill factor, mentioned a great deal in Committee, operates on both levels, so to speak. At Second Reading, my noble friend Lord McNally said,
“The Government want a libel regime for the internet that makes it possible for people to protect their reputations effectively but also ensures that information online cannot be easily censored by casual threats of litigation against website operators. Clause 5 of the Bill sets out a framework for how we wish to achieve this”.—[Official Report, 9/10/12; col. 935.]
Fair enough, but my noble friend Lord Faulks and I do not think that the balance has been quite well enough struck—or we would not have put down the amendment. At a previous stage of the Bill, I talked about the position of the little man and we talked earlier today about the position of those without resources in trying to protect their reputations.
One needs to acknowledge that the web is so different from traditional publishing via newspapers and magazines as to be almost another world. It provides a conduit for libel that enables defamations to be carried to the ends of the earth simultaneously at no cost. The libels will not be erased and they are universally and instantly accessible. It is interesting that in Committee my noble friend Lord Allan of Hallam said that,
“there are so many millions of pieces of content being posted by so many millions of people within the United Kingdom and elsewhere that to be able to operate these platforms at scale and not have some kind of defence becomes unworkable”.—[Official Report, 19/12/12; col. GC 574.]
I agree with him on “some kind of defence”, but that has to be a fair defence or it will reverberate unfairly against the individuals libelled.
I remind all noble Lords that Clause 5 says that the operator of the website cannot be liable for any defamation posted, however grotesque or damaging, unless and until a notice of complaint is filed and the operator fails to deal with that notice in accordance with the Bill and the regulations yet to come. That is not sufficient or adequate. Under Clause 5 as it stands, the web operator loses his defence only, as I say, once the notice of complaint has been given and he fails to respond in accordance with the regulations. I am happy that Amendment 17, to be moved shortly by the Government, will put into the Bill the amendment that I moved in Committee that would defeat a defence if there is malice on the part of the operator. The onus will be on the person defamed to prove malice, which is a high bar.
One needs to recognise that sometimes, not infrequently, the primary person responsible for the libel—the author of the statement posted—may not be accessible. I do not want to elaborate on what was said last time except briefly to remind the House that often these libels are anonymous, and behind one anonymous libel is another and so on. It is a commonplace for those affected by the defamations to go to court and get one order, only to find that another is required, and another and another. It is vital that the role and responsibility of the operators should be fair to both sides.
Just consider for the minute what the defamed citizen has to do under the Bill as it stands even to get a notice up on the web. First, he or she will need to get legal advice about what to do—we have spoken a lot about the complexity of this whole web of arrangements. That will be expensive—just that will be too expensive for many citizens—but so be it. There then has to be drafted a complaint notice that satisfies Clause 5(6), explaining why a statement is defamatory—fair enough. There will then be extra tests, or at least extra requirements, under the regulations when passed that may add substantially to the complexity of drawing up and lodging a notice. Other amendments tonight would impose yet more complicated tests on the defamed citizen—Amendment 14, for example. Then and only then, when the notice of complaint has been duly drawn up and served, will the operator of the website have to act to preserve his immunity and defence. There will still be time—I think probably 14 days—after all that when he can consider whether to take down the statement complained about. In that time—we could easily be talking about a month—the libel will be up and will have spread across the globe and back. The more grievous the libel the further it will have travelled and the more damage will have been done.
It is against that background that Amendment 10 is drafted. I suggest to noble Lords that it is neither unfair on nor unduly restrictive of operators. It will for example provide that if an operator was aware that the person posting the defamation had his knife out for the person defamed then it could well be falling foul of proposed new subsection (1)(b) of our amendment, namely that,
“the operator took reasonable care in relation to its posting”.
It could also fall foul of proposed new paragraph (c), which states that,
“the operator did not know and had no reason to believe that what it did caused, encouraged or contributed to the posting of the statement”.
Take another situation, where the operator had a stake in this and was maybe a partner or had some business association with the person posting the defamatory statement. Surely then the operator should be under a special duty to keep an eye on what that person or company was doing. Otherwise, as I say, there could be an unfairness to the person defamed and the operator would not be entirely at arm’s length or wholly unaware. It would not be in a position where it could not anticipate some potentially malign action on the part of the person who posted the defamation. It could be, for example, that it was part of a joint campaign. It could be that the website operator itself had an agenda. More and more websites are campaigning websites and have an axe to grind. Our amendments would at least ensure that where that was the case and the court felt that the operator had not taken reasonable care, and had knowledge or anticipation of what was likely to be posted by the individual or company concerned, it would not be able to hide behind the provisions of Clause 5(2) as it stands.
I think I will cease at this point, except to say that the uncontrolled use of the web is, as many would agree, coarsening our culture. There is a great deal of matter put on to websites every minute of every day that is unseemly, often bullying and sometimes pornographic. There is, as I say, a coarsening of our culture. This amendment will not change all that fundamentally, but it will at least control to some extent what is posted by dint of making the blanket immunity of the operator subject to reasonable and fair conditions.
I leave my noble friend Lord Faulks, who has put his name to this amendment, to deal with the relationship between it and the Defamation Act 1996, and to talk about the flexibility that the amendment will introduce into the defamation regime.
Lord Ahmad of Wimbledon
My Lords, I thank all noble Lords who have taken part in this debate. I particularly thank my noble friend Lord Lester for his intervention.
Clause 5 provides a defence to website operators if, upon receipt of a notice of complaint, they follow a process designed to ensure that the issue is resolved with the poster of the material. My noble friends Lord Faulks and Lord Phillips raised concerns in Committee about Clause 5, and my noble friend Lord McNally and I met them to discuss those concerns. I am pleased to say that, as has been acknowledged, as a result of those discussions the Government have been able to bring forward Amendment 17 on the issue of malice, which I shall speak to in the next group of amendments. However, this amendment takes a different approach to that taken by the Government in Clause 5. As has been said, it would replace the Clause 5 defence and the accompanying process with provisions which substantially replicate the defence for secondary publishers currently found under Section 1 of the Defamation Act 1996 but with one important addition. New subsection (1)(d) would require the operator, on receipt of a complaint, to respond with expedition and to take such action as is reasonable in the circumstances.
This additional requirement would mean that, in order to have a defence, the operator would, on receipt of a complaint, need to make a judgment on what action it was reasonable to take. This would inevitably involve them reaching a view on the merits of the case, which in most instances they would not be in a position to do. The fact that they would lose the defence if a court decided that they had not acted reasonably would create a great deal of uncertainty for website operators, and we believe that in practice it would mean that many operators would simply choose to take the material down. That would result in exactly the same situation that we have now—an approach which has been criticised as unsatisfactory not only by a large majority of the responses to our public consultation but by the Joint Committee on the draft Bill and by the Law Commission in its 2002 scoping study on defamation and the internet.
Subsection (2) in the amendment would require the court, in considering whether or not the defence was made out, to take account of any steps taken by the operator to have and comply with a code of practice in relation to defamation, a complaints procedure or a system for providing identity details of posters to claimants to enable them to bring proceedings against the poster. I totally understand the intention behind the proposed subsection but Clause 5 already sets out a simple process in relation to the handling of complaints and the provision of identity details. In the event that a complainant brings proceedings against a website operator, the court will be able to assess whether the operator has complied with that process. This will ensure that the court takes into account how the operator has responded to the complaint. Perhaps I may also inform noble Lords that we will be publishing specific guidance on how the new process will operate for all those involved.
We have heard a great deal about balance. This new approach is about striking the correct balance and also providing protection to website operators. It is about striking a fair balance between those who have allegedly been subject to defamation and freedom of expression and speech. We believe that the defence in Clause 5 strikes a fair balance between all the interests involved. It will help freedom of expression by giving the poster of allegedly defamatory material an opportunity to stand up for it if they wish to do so, and it will give greater certainty to website operators. At the same time, it will enable claimants to secure take-down of the material on a short fixed timescale in the event that the poster does not wish to defend it. Where the poster does wish to defend it, it will also ensure that the Norwich Pharmacal process is more likely to give the claimant the information they need to pursue proceedings. I hope that on that basis my noble friend will be prepared to withdraw his amendment.
Lord Phillips of Sudbury
I am grateful to those who took part in this debate. I heard what the Minister said but I fear that I remain completely unassuaged. I think that we will rue the day that the Bill goes through in this form. All I can say is that I hope very much that when the regulations come to be drafted and debated, they will in some way compensate for what seems to my noble friend Lord Faulks, myself and indeed others to be a serious misbalance. On that basis, I beg leave to withdraw the amendment.
Defamation Bill
Lord Phillips of Sudbury Excerpts(11 years, 10 months ago)
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Baroness Hayter of Kentish Town
On behalf of my noble friend Lord Browne, I thank the Minister—and, even more perhaps, his officials who did the hard work—for bringing so promptly to us the response on Rutland. Perhaps I should declare an interest as someone who is married to a member of the Institute of Physics.
I support the thrust of the amendment, but will the Minister, or perhaps the noble Lord, Lord Mawhinney, clarify whether it would cover all letters from MPs to constituents? We had a case locally where an MP attached to a letter a copy of a letter that they had received from another constituent—a row was going on between two constituents, as often happens. Would attaching that letter be similarly covered by privilege if it was then given, as it was, to the press? However, we undoubtedly support the intention of the amendment.
Lord McNally
When a Front-Bencher stands up, that is usually a signal that it is the end of the debate.
Lord Phillips of Sudbury
It is only a short point. Will the Minister confirm that the amendment will not affect a situation where a constituent writes to a Member of Parliament a brazenly vicious and malicious letter designed to cast some other constituent in the most deplorable of lights? I think that I am right in saying that malice would destroy the qualified privilege. On that basis, it might be worth having on the record that we are not by this amendment upsetting the law in that kind of situation, because it should not go that far.
Lord McNally
My Lords, the noble Lord, Lord Phillips, is the most frustrating of colleagues, because, the moment that I am tetchy with him about his cavalier approach to procedure, he then intervenes to make a very helpful comment. The question that he has asked, as well as the one asked by the noble Baroness, Lady Hayter, are ones on which I would be interested to hear the view of the noble Lord, Lord Mawhinney, because my reply is going to be to preach caution to the Committee.
I know that the noble Lord, Lord Mawhinney, unusually for him, expressed a degree of cynicism about how long the path ahead was for us on this, but I think that we should proceed with caution at this stage. It is an issue of relevance in a wider context than just defamation proceedings.
As noble Lords will be aware—and this is partly an answer to the suggestion of the noble Lord, Lord Mawhinney, that the Government were somehow dragging their feet—the Government published a draft Bill and Green Paper on parliamentary privilege in April last year. This sought views on a range of issues, including, in the broad context which I have mentioned, those which form the subject of this amendment and those in subsequent groups. Consultation on the draft Bill and Green Paper closed at the end of September, and a Joint Committee of both Houses has recently been established to consider the issue further. Therefore, in these circumstances we consider that it is clearly preferable for the issues relating to parliamentary privilege to be left to the Joint Committee to consider and take forward rather than pre-empting its considerations by including the provision in the Bill. No doubt, the deliberations of the pre-legislative scrutiny committee to which the noble Lord, Lord Mawhinney, referred and, indeed, these contributions will inform the deliberations of the Joint Committee, but on that basis I hope the noble Lord will be prepared to withdraw the amendment and leave the matter in the hands of the Joint Committee that has been established.
Lord Phillips of Sudbury
My Lords, as has already been said, Clause 7 substantially amends the provisions of Section 14 of the Defamation Act 1996 and, in particular, Schedule 1 to that Act. Subsection (7) of Clause 7 deals with reports of proceedings at meetings of listed companies and stipulates that qualified privilege should attach to,
“A fair and accurate copy of, extract from or summary of any document circulated to members of a listed company”.
There are then listed three cases in which the privilege applies. The first is where the document is circulated with the authority of the board of directors, and the second case is where the document is circulated by the auditors of the company. So far, so good and so predictable. However, in relation to qualified privilege, Clause 7(7)(b) seeks to amend Schedule 1 to the 1996 Act by substituting sub-paragraph (3) of paragraph 13 as follows:
“A fair and accurate copy of, extract from or summary of any document circulated to members of a listed company which relates to the appointment, resignation, retirement or dismissal of directors of the company”.
My amendment seeks to add, “or its auditors”.
Lord Bew
My Lords, I rise to support the amendment moved by the noble Lord, Lord Mawhinney, and to say that he has accurately recalled the discussion and the feeling of the Joint Committee. My sense is that we actually did get differing evidence. For example, I seem to recall that the Master of the Rolls was sceptical about extending privilege to academic conferences for the reasons that the noble Lord, Lord Mawhinney, has given us. On the other hand, we had a former Lord Chancellor, for example, who took the view that it was right to extend privilege. So there was a genuine difference of evidence from significant people. We were certainly much keener to protect peer-reviewed journals than we were to offer a new measure of protection for conferences for the simple reason that all of us who are academics have attended conferences that we are not sure would deserve this privilege. The Government may well have things to say to expand their thinking to produce a more enthusiastic response—on my part, at any rate. However, it is worth saying that they were somewhat cagey on this matter.
Perhaps I may say very briefly, referring to the privilege matters discussed and to what is about to come, as the one person who was a member of the Joint Committee on Parliamentary Privilege and of the Joint Committee on the Defamation Bill, that I am finding the discussion so far extremely helpful, I expect to find further discussions even more helpful, and I am learning a lot.
Lord Phillips of Sudbury
Given the noble Lord’s deep involvement in this issue, I understand what he is saying about the amendment proposed. However, is he not very concerned, along the same lines, by the provisions of Clause 7(5), which would allow,
“a press conference held anywhere in the world for the discussion of a matter of public interest”,
to have qualified privilege? It seems to me that you would be in the bizarre position of having a conference to which qualified privilege did not apply, but the press conference after the conference would be the subject of qualified privilege.
Lord Bew
The noble Lord makes a very good point, one that I was actually aware of. While I fully understand the ambiguity to which he referred, the reason why I am more open to the provision as it stands for press conferences is that in recent time we have had, to my knowledge, at least one celebrated case where a particular government department gave a press conference and people subsequently wrote perfectly legitimate articles on the basis of what was said by that department but none the less, the case went to court and substantial payments were made.
I cannot bring myself to say that it is reasonable that if a department of government holds a press conference and people actively report or elucidate on what is said there, there should subsequently be libel actions, which there have been in recent times. That is the reason why at the moment I am living with the press conference issue.
I am open to persuasion on this question of conferences, but those of us on the Select Committee want to know that the Government have thought enough about the fact that some academic conferences are not very well run and are somewhat chaotic, and that they have some way of thinking that responds to that. A fundamental thinking of our committee was that the deepest problem is that academics, in the sciences or in the humanities, can be driven by their research to certain conclusions, and at this point there is a chill point that means they would discover it was difficult to find an academic outlet because a journal might say, “Our budget is so small that if there is a libel action here, even though your research looks very interesting to us, we can’t possibly publish it”. We know that this is currently going on, and that seems to be the greatest single evil in this field that needs to be addressed. I feel less concerned in principle about defending the rights of someone who may be spouting off a little at a conference.
Lord Lester of Herne Hill
We are not supporting the amendment. We are urging the Government to accept that the amendment is not necessary because the matter is well within its scope.
Lord Phillips of Sudbury
Before this mini debate concludes, I would just say that I agree with my noble friend Lord Lester about the particularity of the post of auditor. It is not like the lawyers of the company. They are not officials of the company; they have a unique role, and I simply put it to the Committee that they should be on the same footing vis-à-vis defamation as the directors. They are not as it stands because of the point to which the noble Lord, Lord Browne, referred. Clause 7 refers only to privilege extending to documents circulated by the auditors of the company, but proposed new sub-paragraph (3), where the amendment would bite, refers to documents circulated by the company to the members of the company. At the moment, it gives qualified privilege to those documents vis-à-vis appointments, and so on, of directors but not of auditors. I am saying that it should be there, but it can be reflected on.
Lord McNally
Most certainly. That was the point that the noble Baroness, Lady Hayter, made, with which I heartily concur. It is interesting that when the Bill was debated in the other place, the move in the direction of conferences and other gatherings was warmly welcomed. I will reflect, but these proceedings will of course also be read by the scientific community. Perhaps it will help me. I have made this point time and again: I want to be able to look the scientific and academic community in the eye and say, “Look, this is the best that we can do in giving scientists and academics the maximum of freedom to indulge in proper debate and criticism in their areas of expertise”. I certainly accept that suggestion by my noble friend Lord Mawhinney. There has been a general welcome for our attempt to extend this more widely than the very narrow context of peer-reviewed articles in magazines of repute.
Amendment 42 would extend qualified privilege, subject to explanation or correction, under Schedule 1 to the Defamation Act 1996 to peer-reviewed articles and fair and accurate copies and reports of material in an archive where the limitation period for an action against the original publisher of the material has expired. In speaking to the amendment to Clause 6 tabled by the noble Lord, Lord Hunt of Chesterton, I expressed concern about extending the protection for peer-reviewed material more widely than in respect of articles in scientific and academic journals. This amendment would extend that protection even more widely to any peer-reviewed material, wherever it appears, and, as a result, would serve only to increase the risk of the defence applying in instances where the peer-review process had not been applied in a sufficiently robust way.
In respect of extending qualified privilege to archives, this is something that I know the Joint Committee on the draft Bill, chaired by the noble Lord, was in favour of. We indicated in the government response to the committee that we would consider this proposal. However, after considering the position further, we came to the conclusion that extending qualified privilege to archives would potentially make the defence available to a very wide range of material. There would also be considerable difficulties in defining what types of archive should or should not be covered. We believe that this would risk not providing adequate protection for claimants, and therefore we do not consider this amendment to be appropriate. There is no generally agreed definition of what constitutes an archive, and this amendment would potentially cover a very wide range of material.
I am have to say again—and I am not opening any gates for reconsideration on this—that I was, until a few weeks ago, the Minister for the National Archives. I am extremely proud to have held that position because it is one of the jewels in our crown in terms of a national asset. As I said to the noble Lord, we are again worrying about where to draw the line. On this occasion, we draw the line, as far as he is concerned, on the wrong side of his amendment, but I hope he will agree to withdraw it.
Lord Phillips of Sudbury
I am grateful for what the Minister said and for the contributions to the debate on this amendment which have prised out a matter not hitherto appreciated. However, rather than prolong this debate, I suggest that there be a conversation with the Minister hereafter and perhaps a return on Report.
Lord McNally
It might be an indication of how confused the Minister gets that it was subsequently clarified to me that the noble Lords, Lord Lester and Lord Browne, were both supporting me—something that I was not aware of when I heard their speeches.
Lord Phillips of Sudbury
That does not change my reply. I beg leave to withdraw the amendment.
Lord Phillips of Sudbury
My Lords, I do not know whether my few words in Amendments 45 to 47 could be described as eloquent.
Lord Phillips of Sudbury
Oh, elegant. Well, they are certainly not elegant and certainly not eloquent. Nevertheless, they are designed to make life a little easier for whoever hereafter will read this Act of Parliament. They are very modest drafting amendments, putting the definition right up where it first appears in two places, dispensing with the need for subsection (2) and saving words—which is never a bad thing in legislation. It is as simple as that.
As to the much more substantial amendment moved by the noble Lord, Lord Browne of Ladyton, and supported by the noble Baroness, Lady Hayter of Kentish Town, I await what the Minister has to say with more than usual intensity. I can quite see that there are many issues of some subtlety around this that need, as always, to be weighed. I am inclined to support them but I am waiting to hear from him.
Lord Marks of Henley-on-Thames
My Lords, I support the principle of Amendment 44A moved by the noble Lord, Lord Browne of Ladyton. The single publication rule in this Bill is an important reform for avoiding multiplicity of actions and is thoroughly welcome, but its impact is markedly diminished by restricting its application to republication by the same publisher. I can see no justification in principle for restricting a claimant suing on a second publication by the original publisher but permitting him to sue on a publication at a later date by a second publisher.
Lord Mawhinney
My Lords, politics is frequently described as the art of the possible, but it is also described as dealing with truth and people’s perception of the truth, and the latter is frequently harder than the former for politicians to handle.
I was reminded of this particular issue because there have been a number of very high profile legal cases called, mainly in the tabloid press, libel tourism. Because they have been high profile and involved lots of money, a perception has been created that this is a major problem. In fact, though, the evidence given to the Joint Committee was that it was not a major problem, in the sense that it happened not frequently but occasionally. However, the perception of it being a major problem probably meant that it needed to be addressed, and the Government, in my view and that of the Joint Committee, have sought to address libel tourism in Clause 9. My amendment would clarify that if you are resident in this country you could take out legal proceedings wherever the libel was alleged to have taken place. This country has a reputation of being a friendly place in which to bring major libel cases, but in many of the few they have precious little to do with England and Wales—and “precious little” is probably a euphemism for practically nothing.
We as a Committee were keen to ensure that, in defining what you could not do, we did not raise any question about what a bone fide resident in this country could do, irrespective of where the libel took place, so long as the UK resident could show that he or she had been seriously and substantially harmed. If something defamatory was said in a far-flung part of the world and no one in this country ever heard about it, that would not pass this test. On the other hand, it would pass the test if there was perceived to be serious harm done in the perception of people in this country. The amendment is not complicated, nor does it seek to persuade the Government to go into new territory that they do not want to go into. It is with the grain of the Government’s thinking but would clarify that trying to address libel tourism does not diminish the right of residents of this country, subject only to the harm test.
Two other amendments are linked with this one. On Amendment 49, it is quite clear from the Government’s Bill that the court has to make a decision about what is “appropriate”. What is “clearly appropriate” will therefore fall into the same category. My sense is that “clearly” is a higher level than “appropriate”. A court is perfectly capable of deciding “appropriate” and “clearly appropriate”, and at this stage I am ambivalent until I hear from the Minister why he thinks this is a good or bad idea, because I can see arguments in both directions.
Initially, I had a sympathetic reaction to Amendment 50A. However, I started to think a little more about what the words say. In our law we do not often require people to demonstrate that they have funds available before they begin proceedings; indeed, if that were a general tenet of the law of this country, Members of Parliament would have a lot less to do because constituents would stop coming to them and saying, “I won a law case but the person doesn’t have the wherewithal to meet the bill”. Indeed, I have been in that situation myself.
I am not entirely clear how you would prove to the court’s satisfaction that not only did you have the money but it would still be there when the judgment was made. Having the money before you start and still having it when you finish are, conceivably, two entirely different issues, so I have some hesitation about the amendment of the noble Lord, Lord Singh of Wimbledon. Again, I would also be interested to hear what the Government have to say. I beg to move.
Lord Phillips of Sudbury
My Lords, I speak to Amendment 49 in my name. I believe that Clause 9(2) goes too far in requiring a court to be not merely satisfied that England and Wales is the most appropriate place to bring an action but clearly satisfied. It is not clear to me quite what that would mean in any event. Is it applying a criminal law test of “beyond reasonable doubt”? I think it loads the dice against a person who is not domiciled in the UK.
Lord Mawhinney
What the clause actually says is,
“satisfied that … England and Wales is clearly the most appropriate place”,
not,
“clearly satisfied that … England and Wales is the most appropriate place”.
Would that make any difference to his argument?
Lord Phillips of Sudbury
I am obliged to my noble friend for picking up my slackness. No, I do not think it would. The wording, as the noble Lord, Lord Mawhinney, just said, is:
“England and Wales is clearly the most appropriate place”.
I think it is quite enough to leave it to the judge to decide whether it is the most appropriate place. That is a strong test in itself and, as I say, I do not think it is right to load the dice in this regard. In my view, what is provided for in Clause 9 goes far enough to stop the most undesirable cases of libel tourism.
On Amendment 50A in the name of the noble Lord, Lord Singh of Wimbledon, I am afraid I agree with my noble friend Lord Mawhinney. It would make the position of the poor litigant wanting to protect his or her name and reputation even more unequal than it already is. We know that legal aid does not apply to defamation proceedings and to have a provision that requires him or her to satisfy a court that they have resources to meet costs arising from an unsuccessful action means that at least half the population will never be able to protect their reputation, and that cannot be right.
Lord Singh of Wimbledon
On that point, it is the litigant from abroad that I am concerned about, not the defendant in this country—a litigant with substantial funds.
Lord Phillips of Sudbury
With respect, it says:
“Action against an individual domiciled in the UK”.
It does not say anything about where the plaintiff is domiciled. It talks about where the defendant is domiciled. If I were suing the noble Lord, he is domiciled in the UK but so am I. This clause does not affect my domicile, only his.
Lord Singh of Wimbledon
My Lords, this whole amendment is concerned with protection against those domiciled abroad using their wealth and remoteness to chill freedom of expression in the UK. It could be that the wording is clumsy. I will come back to that. It is intended to be applicable equally to wealthy businesses and religious cults. My concern is with the latter.
Many in this House will be aware of the power and influence of powerful cult leaders who claim deep religious insights denied to the rest of us. They often attract and get large donations from rich businessmen and media celebrities, which they use to acquire property and business interests, and often to fund expensive lifestyles. More worryingly, they also prey on the superstitious and vulnerable, promising to use their influence with God to help people meet life’s challenges or to cure incurable diseases. In one case, a cult leader got a woman to sign over her property in return for a promised cure for cancer. Sadly, the woman died soon after. I believe that it is in the public interest that such activities are exposed.
There are many more such cases in which superstitious and vulnerable people are deprived, sometimes of virtually all that they have. The power and attraction of such organisations is totally dependent on uncritical acceptance of their claims to special powers; they use their might and muscle to silence those who, in the public interest, dare to challenge them. Many such organisations are domiciled in the subcontinent of India, or in the United States and Canada, and use their wealth and power to stifle any public-interest questioning of their activities. They also use their remoteness from the UK to avoid paying the costs of any finding against them.
There are many examples. I will give one of a young journalist, who questioned the practices of an Indian sect and found himself in a ruinous lawsuit. After three nightmare years facing financial ruin, he eventually won his case but has no prospect of recovering some £50,000 spent in doing so, as this would involve further protracted litigation in Indian courts. The attitude of such foreign-based litigants is very much, “Heads I win, tails you lose”. It might be that the amendment’s wording is clumsy but its intention is very clear. I believe it will significantly deter those who use power and remoteness to intimidate those in the UK who are genuinely concerned about their activities..
Lord Marks of Henley-on-Thames
My Lords, I rise briefly to support the amendment proposed by the noble Lord, Lord Mawhinney. Again, this was a recommendation of the Joint Committee. We took the view, I suggest rightly, that it is entirely correct that cases against those who are not domiciled here or in a convention country should be restricted if they are brought by claimants who are themselves domiciled outside the jurisdiction. But I do not think it right for a local potential claimant within the jurisdiction to be debarred from suing a foreign defendant for a libel that has caused the local claimant serious harm here, even if there may be other countries that are at least as appropriate. For example, an Italian newspaper could publish a libel in Italy and England that would cause a local English claimant damage in both jurisdictions. There may be reasons for the defendant to argue that Italy would clearly be the most appropriate forum for the resolution of the dispute but, as it stands, this section would debar the English claimant from suing in England.
The clause is intended to restrict libel tourism so far as is consistent with the Brussels and Lugano conventions. It does that, but it should not also restrict local claimants from suing foreign defendants here when their reputations have been damaged here, even if there may be other jurisdictions in which they might equally well or better sue.
The amendment achieves what should be the aim of the clause. I am not sure that the proviso relating to harm is necessary, because I would be content to rely on Clause 1 for the serious harm test. But subject to tidying it up, I suggest that the amendment proposed by the noble Lord, Lord Mawhinney, is entirely justified.
Lord Phillips of Sudbury
My Lords, I briefly comment on what the noble Lord, Lord Singh of Wimbledon, said. I have to stick to my earlier analysis, but after hearing what he said, if his amendment had incorporated the purport of that I would have been very sympathetic to it—notwithstanding what my noble friend Lord Lester said, because his clause would address a different issue. The only question I have is whether the security for costs arrangements that can be invoked here might not come to the aid of the person to whom he refers.
Lord McNally
My Lords, this has been an extremely useful debate. From the beginning there has been a question of whether libel tourism exists, and there are varying views on this. Indeed, without breaking too many confidences, when I explained to a very senior member of the Government that we were trying to curb this so-called libel tourism, he said, “Are you sure? Should it not be the more the merrier?”. He had the idea that if foreigners wanted to come and use our excellent legal and judicial services they should be welcomed. In another respect, of course, we make a great play of the excellent facilities at the Rolls building for doing just that. However, there was a problem not only with the numbers but in the use of threats to stifle publication or opinion—the so-called chilling effect—and it is right that we have had this debate.
Amendment 48 would mean that the effect of the provisions on libel tourism reflected in Clause 9 would be narrowed as cases where the claimant is domiciled in England or Wales would no longer be caught even if the main impact of the alleged libel was outside England and Wales. The Government do not consider that narrowing the scope of Clause 9 is appropriate. It would mean, for example, that a Russian oligarch domiciled in England and Wales could sue a person outside the UK/EU in the English courts in circumstances where the alleged main harm to his reputation has occurred in, say, Uzbekistan.
Although I am sure the hearts of my colleagues behind me will sink, I have listened to the debate and I will study again the remarks made and the example given by the noble Lord, Lord Marks.
Lord Phillips of Sudbury
Perhaps I may make a comment, but not to pick up the point so clearly made by the noble Lord. It occurs to me, especially in the light of the amendment tabled by the noble Lord, Lord Singh of Wimbledon, that it is odd that if this is dealing with libel tourism, it is about actions by plaintiffs not domiciled in the UK rather than dealing with defendants not domiciled. It seems to me that it is the wrong way round, but that could be the subject of discussion.
Lord Phillips of Sudbury
My Lords, I, too, am extremely unhappy with the amendment. To take a literal point, why only a senior figure in public life? Why not a senior figure in the private sector, for example, where the consequences of the substance of a libel trial may be at least as important as for a senior figure in public life?
Above all, this provision—although I perfectly understand that my noble friend Lord Mawhinney did not advance it in any spirit adverse to the principles of our legal system—as my noble friend Lord Lester just said, would create a privileged class of person. It is not compliant with equality before the law. What is more, it trenches on the discretion of the judge, which I believe is the only reasonable way of limiting the right of privilege of trial by jury, given that that judge will be able to take into account all factors that seem to him or her relevant in that particular case. I am also bound to say that I cannot think of another provision in English law that discriminates in this way. I hope very much, although this was persuasively argued by my noble friend, that it will not be given credence by the Government.
Baroness Hayter of Kentish Town
My Lords, when coming back to this it is helpful to have been a member of the Joint Committee and heard the evidence. Before I address the amendment, given that it is the only one on the clause, it is worth saying how important the clause is; the removal of the presumption in favour of a jury is one of the most important parts of the whole Bill. I thought that we ought to get that on the record. While juries are very rarely used, the fact that they can be used at all is what has added to cost with regard to the extension of time in this. They drag out action, mostly because they deny the ability of the judge to take early views on issues that, quite properly, they feel must wait in case there is a jury trial, so they have not been able to take an early view until the doors of the court swing open. It was our view on the Joint Committee not only that this was important for the reduction of costs but that we hoped that judges would seize the opportunity for some really good case management, and tried to pull this stuff back as much as possible to get the time and therefore the money reduced. I do not think that we will ever go quite as far as the American system of case management, but I think that we were mentioning an urge to be as early and robust as possible.
The Joint Committee did not go as far as saying that there should be no jury trials, although some people suggested that. As the noble Lord, Lord Mawhinney, has said, it seemed that there were cases, such as a judge, where, for reasons of public confidence, a jury would need to be there to ensure that it was not one judging their own, if you like. Again, as much for public confidence as for anything else, that could also mean people who were involved in appointing judges, or people who were very senior in Government. In such cases an independent jury is there as much to give the public confidence in the hearing as for any great insight that the jury may bring.
The feeling of the Joint Committee, which I support, is that such cases should be few and far between. Most importantly, the Bill, and I think that this is the purpose of the amendment, should signify that we are talking about a very few cases in exceptional circumstances. This does not really relate to a TV star or a celebrity, in the word of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, or an athlete or the head of a business. We were looking more at those people who are involved in the broadest sense in the judicial and legislative process who, to the outside world, perhaps seem a bit cosy. Those are the sorts of cases that would be the exception.
We were looking for some indication to be given, because otherwise the fact that there could be a jury will have exactly the effect that has been suggested—possibly more cases, and people arguing that they should have a jury. We therefore want to try to shut that off as early as possible. A final decision still has to be made by a judge. Whether it is easier or harder for the judge to do that, it is important that they are given some guidance. Those in our Lordships’ House who have been judges know better than I whether it is easier or harder to do that without guidance. In a sense, guidance needs to be given to those who might be either claimants or defendants about whether they have a small or a large chance of getting a jury trial. They need to know that the circumstances are very limited.
We were partly searching for some indication to be given that we are talking about a very small number of cases. Cases where public confidence would almost demand that they were heard not simply by a jury should be few and far between. We look forward to the Minister’s response on this.
Lord Browne of Ladyton
My Lords, Amendment 51C would disapply the LASPO Act in relation to defamation proceedings and Amendment 51D would apply one-way costs shifting to defamation proceedings. Both the amendments are probing amendments. I have some sympathy with the Minister in being prodded on this issue again. He may have thought that he had seen it off with his letter of 10 December and the assurances that he has repeatedly given us, but I am afraid that I shall invite him to discuss again costs in relation to defamation.
As noble Lords will be aware, and as I think the Minister is acutely aware, this issue was addressed during the passage of the LASPO Bill, when calls were made to disapply it in relation to defamation and privacy proceedings. Assurances were given by the Minister that this would be addressed in the Defamation Bill. I do not seek to keep him specifically to that assurance, because I suppose that, on one view, a substantial amount of water has passed under the bridge since that debate and many other things are going on. Whatever intention other noble Lords may have in the debate that will ensue on this, I have no intention of transgressing into the debate about the Leveson recommendations and their consideration in tri-party talks; I have managed until now not to mention “Leveson” anywhere in your Lordships’ House, and I had intended to keep it that way.
Throughout the passage of this Bill, we have had further assurances that something will be done to address the cost of defamation proceedings, and the Government recently gave a commitment that LASPO would not apply to defamation until they had resolved the situation in relation to costs. That stay of execution, as it were, is very welcome. Our amendments are, however, designed to elicit further information from the Government as to the timing of these proposals and what they will consist of, to the extent that the Minister is in a position to share that information with me.
I want to make one very specific point to the Minister which I hope he will address when he responds. I have before me his letter of 10 December 2012, which was very welcome and very helpful in covering a number of issues before the Committee convened to consider this Bill in detail. Under the heading “Cost Protection in Defamation and Privacy cases” it sets out that,
“the Government is keen to provide some form of cost protection so as not unduly to damage the interests of impecunious parties. The Government has asked the Civil Justice Council (an independent advisory body, chaired by the Master of the Rolls) to advise on this by the end of March 2013”.
So I realise that we will have to be patient until the end of March 2013 to see what the council under the chairmanship of the Master of the Rolls advises. In order to instruct those deliberations, we have the benefit of annexe A to the letter, which sets out the terms of reference of the Civil Justice Council’s remit.
I am limited in my understanding of all of this, never having practised in this jurisdiction, but I understand that cost protection is designed to protect a party from the liability to pay the other side’s costs if their case fails. If my case fails, cost protection is designed to protect me from the liability to pay costs, or to reduce my liability. That addresses half of the problem. The serious part of the problem is how does one deal with the impecunious client who does not have the ability to institute proceedings in the first place if LASPO and the Jackson reforms are applied to defamation? How does one encourage lawyers to take on cases on some form of contingency basis, in the light of the application of LASPO and the Jackson reforms? The Government may believe that that is dealt with through the cost protection order process, but I am not satisfied that it is. Will the Minister address that issue? I beg to move.
Lord Phillips of Sudbury
My Lords, I cannot clearly say whether I do or do not support these two amendments as they have all sorts of ramifications and implications. What is common ground between the noble Lord, Lord Browne, and the noble Baroness, Lady Hayter, is that the position of not only the impecunious would-be litigant, but that of the not-well-off would-be litigant in relation to defamation, whether as plaintiff or defendant, is astonishingly unsatisfactory. It makes this branch of law, more than any other, one in which equality before the law is frankly mythical, unless one finds an extraordinarily public-spirited solicitor who will in effect act for nothing if his client’s case collapses. Even then, there would be costs possibilities for the poor litigant, whether as defendant or plaintiff, in that he or she may end up having to pay the other side’s costs. All I am doing is sympathising with my noble friend Lord McNally in having to answer these two issues. At the moment, there is no ready answer, although the idea of changing the recently passed LASPO legislation for defamation has its own problems if one believes, as I do, that the methods of paying lawyers under the conditional or contingency fee system have led to great problems of public interest. That is a rather ineffectual contribution to the debate on these two amendments.
Lord McNally
My Lords, I will not, at this hour, reopen the debate on LASPO except to say that what we were addressing, following the advice of Mr Justice Jackson, was the inflationary effect of the no win, no fee regime that we have replaced. How it will work out in terms where any success fees will be paid from damages we will have to see. But let us not be in any doubt that there was a problem that was generally agreed had an extremely inflationary effect on the cost of justice in this country.
Lord Mawhinney
My Lords, just as I paid tribute earlier to the noble Lord, Lord Bew, for his contribution, so I pay tribute also to the noble Baroness, Lady Hayter, and the noble Lord, Lord Marks. Without them I am not sure that the Committee would have come to this conclusion. The noble Lord, Lord Marks, has just eloquently explained our thinking and our reasoning. Indeed, my noble friend Lord McNally may remember that the noble Baroness, Lady Hayter, had one or two questions for him on this subject when he came to give evidence.
The noble Lord, Lord Browne, said that we proposed a pilot, and the noble Lord, Lord Marks, has confirmed that. I would add that we proposed a pilot in part because we thought that this was such a radical idea that the Minister would need some help in dealing with the legal profession. We could hear the legal profession lining up against this idea and we wanted to side with the Minister, so we suggested a pilot. However, he should not be unaware of the fact that he will have one or two sessions of arm-wrestling with people who were not overly persuasive to the Committee before, hopefully, he gives effect to this particular amendment.
Lord Phillips of Sudbury
My Lords, I add my strong support for this amendment. You could almost say that we have been mourning the failure to provide justice in the defamation field for more years than I can remember. The Society of Labour Lawyers published a document, Justice for All, back in the 1960s. The Society of Liberal Democratic Lawyers published its blueprint 20 years ago. Every legal body that I am aware of has bemoaned the intractable problems related particularly to defamation. However, I see here the seeds of a breakthrough. It is very difficult for us lawyers to accept that sometimes the best is the enemy of the good, and I would far rather have some rough and ready justice within a sensible, practical framework such as might be provided under this amendment than I would see justice spurned. I hope that we can be open-minded and a bit imaginative and, before this Bill is done, provide something that will remedy what is at present a shame for us all.
Lord Browne of Ladyton
My Lords, I am grateful for the support of the noble Lords, Lord Marks of Henley-on-Thames and Lord Mawhinney, but I am not surprised by it because the amendment draws support already from the report of the Joint Committee. I am grateful also for the overt support of the noble Lord, Lord Phillips of Sudbury.
I have to thank the Minister for his flattering if somewhat inaccurate and probably libellous description of me. It is unworthy of him to suggest that I am a bandwagon-jumper in any sense. I will privately produce evidence to him that this is an issue which I have been discussing with members of the legal profession in England in various guises for some months now, because it is not entirely what he and the noble Lord, Lord Faulks, described and discussed. This very specific provision is presented in this fashion, taking advantage of the specialist Patents Court, to make another criticism that I think the Minister will have to face should he seek our shared ambition of moving these cases to the county court—that is, there are already specialist judges who do these cases, but they are in the High Court. There will be, I predict, resistance on the part of the judiciary, among others, who will say that this difficult, complicated work, which requires High Court judges, has to be kept there.
The reason why I presented the amendment in this fashion, having thought about it for some time—since long before the exchange between the noble Lord, Lord Faulks, and the Minister took place—is that I cannot think of a more complicated area of law and fact than patent law. If a specialist court at county court level, with specialist judges, works for that area of the law, then I believe it can work for defamation.
I am also told that it is in the nature of the legal profession that our very senior judges tend to have been in the profession for a period of time and retire. I am not entirely sure what further lifespan on the Bench—that is the wrong phrase—what further time on the Bench the judges in the High Court who are specialists on defamation have. Although I do not know this, the suggestion was made to me that there is a probability that they will retire, or at least that a significant number of them may, within a comparatively short time. I am not sure whether that is right but they will have to be replaced sometime, and it should not be beyond the ability of the legal profession to produce judges at county court level who have this specialism.
I am not entirely sure whether the Minister is right that the creation of a specialist court or courts, such as the patent courts, does not require primary legislation. If it does not then I am interested to know why the patent courts were created by primary legislation if we can create specialist county courts without it, but maybe the law has been changed since they were created.
Lord Phillips of Sudbury
Might the noble Lord encourage the Government to look at the possibility of empowering registrars of county courts to do much more of the preliminary work? They could have a much bigger role, but again that might require primary legislation.
Lord Browne of Ladyton
I am grateful for that intervention from the noble Lord, Lord Phillips. The best that I can say is that I am sure the Minister has heard that suggestion, and when he is deliberating further on this potential development I am sure that he will take into account.
I am reassured that this is sufficiently high among the Government’s priorities to be a possibility—that is the best that we can expect at this stage. We will continue to keep an eye on this issue while the Bill is before the House.
Baroness Hayter of Kentish Town
My Lords, the Committee has heard from me before, as has the House at Second Reading, on my admiration for the concentration of the noble Lord, Lord Mawhinney, both on the ordinary citizen—particularly in Peterborough—who might get caught up in a libel case, whether as claimant or defendant, and also on the need of anyone involved to be able to read and understand the Bill after enactment without the need of lawyerly guidance, as he has just outlined. This is his final throw and we should support him.
We do not want the courts to so run away with interpretation and reinterpretation of the Act that a simple reading of it would give very little guide to the current law on defamation, so nuanced will it have become in learned judgments. I imagine that the noble Lord, Lord Mawhinney, would want Parliament to come back to this at that stage and say, “Look, the Act no longer represents the law; we should amend it”. We concur completely with his desire that untutored people should know their rights and their duties in regard to defamation and we hope that the Government can respond positively to the amendment.
In the mean time, as we close this part of our scrutiny of the Bill, I thank the Lords Deputy Chairmen who have guided us through procedures; the Bill team, who have assisted us throughout, both here and in other meetings, for their patience; the Ministers for their mostly good humour and occasional cheekiness; and our colleague, Sophie Davis, for keeping my noble friend Lord Browne and myself as close to the straight and narrow as was in her ability to do.
Lord Phillips of Sudbury
I associate myself and these Benches with the most recent remarks of the noble Baroness, Lady Hayter.
Lord McNally
A few weeks ago in the House I tried to make a Churchillian quote and got it completely messed up. I shall have another go.
“This is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning”.
I have got it right this time.
The only doubt I have had is about how vigorously the Committee have taken up my invitation for discussion. I will not make that mistake again. Next time, I will be utterly Stalinist in ramming the Bill through.
Our considerations of the Bill have been extremely useful. The constructive way in which the Opposition have approached the Bill and brought their experience to it, and the fact that the noble Lord, Lord Mawhinney, has seen his duty as chairman of his committee not ending with the delivery of the report but has helped and guided us on the thinking behind so many of the recommendations, have been extremely helpful. My colleagues on these Benches have been extremely helpful and it has been great to have the help of some distinguished judges.
We now move on to Report and it is rather sad that I cannot accept the final amendment tabled by the noble Lord, Lord Mawhinney, as it stands. He was an experienced Minister and will know that the two things that I have been told to avoid, even in my brief ministerial career, are annual reports to Parliament and sunset clauses, which are usually the stuff of Opposition amendments. I cannot accept an annual report because, as the noble Lord will know, arrangements already exist for post-legislative scrutiny. The Ministry of Justice is committed to fulfilling the requirements of post-legislative scrutiny in relation to this legislation.
However, taking up the point which was partly implicit in what the noble Lord, Lord Mawhinney, said and in the final remarks of the noble Baroness, Lady Hayter, I cannot make commitments on spending money in the Ministry of Justice because we have not got any. The noble Baroness is absolutely right that once this legislation is passed, a simple guide for laymen and laywomen on what we have done, how we have done it and how it will be applied, both on our website and in printed form, would be extremely useful. In that spirit I will take away the amendment and hope that the noble Lord will withdraw it.
Lord Phillips of Sudbury
Would it not be possible to think of what was done in the Charities Act 2006? This is landmark legislation in defamation. Could there not be a review within four or five years, which would not impose, obviously, the obligation of an annual review but would ensure that this did not go by the board because there was another Government with other priorities?
Lord McNally
But, my Lords, that is exactly what will happen. There will be post-legislative scrutiny within three to five years of this Act passing.