Defamation Bill
Lord Phillips of Sudbury Excerpts(11 years, 4 months ago)
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Lord Phillips of Sudbury
Does my noble friend have any comprehension of just what that last process would require from the complainant—the time that it would take and the costs that would be incurred in getting the court order to reveal the identity of the poster? In reality, that puts an absolutely impossible barrier against anything like a reasonable remedy for the complainant.
Lord Ahmad of Wimbledon
As I alluded to in my opening comments, this is about getting the balance right. If there were such a case, and I totally accept that there are issues that would arise here, there would be a cost element to this process. At the same time, there are many occasions when a balance must be struck on this, whether we are looking at professional websites or websites where people often post under a pseudonym and may be posting for good reasons of safety and security to protect themselves. That being said, though, I hear what my noble friend has said. I assure him again that we continue to consult with stakeholders across the board on the contents of such regulations and have sought their views on the practicality aspect of this new process. As I have said, this is something that we are looking at, and any suggestions that are made are looked at and discussed. I am sure that we will return to this, if not in Committee then on Report.
As I have said, we are looking at the issue of whistleblowing and the necessity at times to protect confidentiality, and setting that against the very arguments that have just been put forward by my noble friend. We feel that Clause 5 strikes the right balance. As my noble friend Lord Lester said earlier, there are two sides to the coin. The process set out in Clause 5 provides a quick and easy way for the claimant to obtain the necessary detail where the poster has no objection to providing it, but then places responsibility back on the claimant to secure a court order where the poster is unwilling to share the detail. This broadly reflects the position that applies in relation to anonymous material published offline. Where a claimant is unable to identify the author of a defamatory statement, and in the offline context does not wish to pursue the publisher, they can seek a court order for release of that information by whoever is in possession of it.
Amendment 26A would make a drafting amendment to Clause 5(4), replacing “was” with “is”. I can understand why this amendment has been brought forward, but I hope that I can reassure the noble Lords on this point. When the clause refers to posting, it is the act of posting with which we are concerned. No matter whether the posting stays up or comes down, that act has happened in the past, so it is our view that “was” is the most appropriate word. The amendment however raises important questions about what a website operator’s responsibility should be where a posting has already been removed. We are seeking views as to the content of proposed regulations and will take that issue away and consider it alongside the responses that we receive.
Finally, Amendment 29, in the name of my noble friend Lord Phillips, provides that a Clause 5 defence be defeated in cases where the claimant can prove malice by or on behalf of the website operator. The Clause 5 process requires the website operator to act in accordance with the process and entirely neutrally. It is difficult to foresee circumstances in which a website operator who complied with the Clause 5 process could do so maliciously. If it is the poster who is acting with malicious intent on behalf of the website operator, the claimant will still be able to bring proceedings against the person responsible for posting the statement. Therefore, we do not see what an amendment such as this would add to the clause.
Lord Lester of Herne Hill
My Lords, that may be so, in which case I made a false point on that. However, my main point is that it is not enough—and the regulations seem to accept this, in draft—to simply say that it is defamatory. It must in some way indicate that it is unlawful. That is probably common ground in the way in which I read the draft regulations. If that is so, and that is what we are told in our reply, it may well be that my amendment will not be necessary.
In my attempt to be brief, I appear to be arousing too much interest. I give way to my noble friend.
Lord Phillips of Sudbury
I think I know what my noble friend means in the distinction between what is defamatory and what is unlawful. However, it would be helpful to be clear with the Committee what distinction he sees between “defamatory” on the one hand and “unlawful” on the other.
Lord Lester of Herne Hill
I am sure my noble friend Lord Phillips understands that I am speaking clothed in the majesty of the Joint Committee on Human Rights as well as my personal view. That committee and its advisers came to the view that simply saying “defamatory” was not good enough. All that “defamatory” means is that there is a false statement which is seriously harmful to the reputation of the claimant, whereas “unlawful” means that one also looks at what the Bill defines as unlawful and what the defences are. We are attempting to make that as clear as possible. Therefore, the complainant, in order to invoke this whole procedure, ought to do something more. It seems as through the draft regulations are aimed in that direction. I beg to move.
Lord Phillips of Sudbury
My Lords, I persist in seeing this Bill from the point of view of the little man. Others tend to see it more from the point of view of web operators—I refer not only to my noble friend who has just spoken. One has constantly to bear in mind the hardest case. Unless we get it right for the hardest case—that is, a person of few means but a reputation that he or she cherishes who is grotesquely, viciously, maliciously and intentionally libelled—and unless there is some protection in this measure against the web spreading it at rapid rate across the world, we will not have done our job properly.
I strongly support Amendment 26, although I wonder whether my noble friend thinks that the lay person would find the clause easier to understand if it said “unlawfully defamatory” rather than “defamatory and unlawful”. However, that is a small point.
On Amendment 27, I was most grateful to the noble Viscount, Lord Colville of Culross, for what he said about the cost problems of a Norwich Phamarcal application. It is a great tribute to his fair-mindedness that he made that point. I tried to make it when responding to the Minister, who dismissed my earlier amendments. We have had a case in my office just recently in which there were four separate applications to the High Court to get at the identity of the defamer. Each time, it has led on to another anonymous name, and another and another. I think that the client has now given up, but the costs are in excess of £12,000. We cannot allow that state of affairs to persist, but I must move on, as that relates to other amendments.
The only point that I will make on Amendment 27 is that I have a certain anxiety about paragraph (f), which says that the regulations,
“may make provision for a procedure whereby a complainant can obtain from the court a declaration that his notice of complaint under subsection (3)(b) has met the requirements of this subsection”.
That is couched in discretionary terms—the regulations “may”. If the Government take this up in the regulations, it must remain discretionary. To force every person to lodge a notice of complaint through a High Court procedure—albeit before a Master and albeit, as my noble friend Lord Marks suggests, a special procedure—would in my view simply be impractical for the vast majority of individuals. They will not get near it. It is terribly easy for us lawyers to forget how formidable and forbidding it can be—
Viscount Colville of Culross
I emphasise that this must be a voluntary process. I said that this was a probing suggestion for people to talk about. It should be voluntary and the ability to use the procedure should be open to all parties.
Lord Phillips of Sudbury
I simply wrap up my point by saying that I am anxious about having this paragraph in the amendment, because I think that it could give the wrong idea to those who have to interpret it in future. I would be wholly against a way of lodging a complaint that involved a formal legal process, even of a stripped-down kind, if I can call it that, because it would, I suggest, make remedy more or less impossible for the vast majority of people.
The Earl of Erroll
I shall make a couple of comments about Amendment 27, particularly after the remarks of the noble Lord, Lord Phillips of Sudbury. Given the expense of trying to track someone down on the internet and finding out who is who, it will be impossible to identify absolutely reliably everyone who logs on. Unless we put a chip inside everybody and log that, it will not work. There are too many ways of concealing who you are. The banks have enough trouble with their “know your client” procedures, so what kind of trouble will an internet service provider have? It is not realistic to be able to nail down identity over the internet at the moment in the way that some people think that you can.
The point about expensive resolution led me to think about what the noble Lord, Lord Allan of Hallam, said about alternative dispute resolution. The website operator needs somehow to know whether to take something down. If a claimant is not willing to reveal who they are, there may be a public interest reason for it to stay up and there may be support from other places for its staying there. Nominet is operating a successful service for alternative dispute resolution on domain name conflicts. Otelo—the Office of the Telecommunications Ombudsman—also works terribly well in resolving disputes in an inexpensive way. In fact, the industry in each case bears the costs and it is not expensive. I wonder whether it would be worth exploring that.
Amendment 27 is interesting because it could provide some of the information that would be the framework on which a judgment could be made. For instance, a website operator could apply and say, “We would like to know”, through the alternative dispute service. Personally, I think that going through the courts every time would be far too expensive for all the small organisations and ordinary people trying to defend themselves against something malicious that was online.
I was amused by the concept of whether or not regulations could be used maliciously. That is an interesting concept and it probably has wings, as well as legs. There is an old saying that regulations are for your enemies, and it is amazing how maliciously you can use them.
Lord Phillips of Sudbury
My Lords, the clause stand part debate notice is in my name and that of the noble Lord, Lord Browne of Ladyton, and the noble Baroness, Lady Hayter of Kentish Town. I consulted them when we last considered the clause—it seems aeons ago. The feeling between us was that, in view of the extended consideration of Clause 5—we have had two and three-quarter hours today and I think that we had an hour or two last time—it might be appropriate not to debate the Motion given that so many aspects to Clause 5 need further consideration.
Clause 5 is central to the Bill and, as my noble friend Lord McNally just said, the little man is liberated as well as in jeopardy. I am the first to accept that, but a great deal more thought needs to be given to it and I see no point at this juncture in debating whether the clause should stand part of the Bill, because it is at the heart of the Bill. I suggest that those of us who feel that we need to consult the Ministers and their team do so. I entirely concur with what the noble Lord, Lord Browne, said about the consultation, because the regulations will themselves be at the heart of the Bill, in a way that they rarely are. If some formal means could be found to enable the Committee to look at a preliminary draft of the regulations, that might be appropriate and helpful to all.
Lord Lester of Herne Hill
The Libel Reform Campaign is strongly opposed to this amendment but I shall not elaborate on what it says about it. I want to draw attention to one thing that may not have occurred to some Members of the Committee, which is how this debate will be regarded in Beijing. In Beijing, they have precisely this kind of amendment in their extraordinary firewall regulations because what they most want to do is identify political dissidents of one kind or another and then go after them for violating their internet regulations. This is exactly what they have and want to maintain, and if we give it any currency at all, they will use the fact that the United Kingdom has done so, even though our context is entirely different and we are not doing it to persecute dissidents and so on. I suggest that we should be very careful, in the lawmaking that we are indulging in now, to think about the transnational implications.
Lord Phillips of Sudbury
My Lords, I hear what my noble friend Lord Lester of Herne Hill has just said, and it is a very strong point. None the less, we have to legislate for our own circumstances. I come back to the point that we cannot leave the Bill in a state where individuals can be grotesquely, viciously and intentionally defamed, where huge platforms—website operators—can grow rich in allowing that to happen with total impunity and with no possible remedy for the individuals concerned. That cannot be right. I am reminded slightly of some of the arguments about the banking sector and the banks that are “too big to fail”. We cannot get into a mentality where website operators are too big to pay. We have never had a satisfactory answer for why website operators could not take out comprehensive insurance so that, if they were sued by individuals because of the defamations of those who post on their platforms, they could pay up in the normal way.
I have great sympathy for the way in which the noble Lord, Lord Mawhinney, put his case for Amendment 30, not least because we are all grappling with fiendish and unprecedented problems with no easy answer. Generally, I come down on the side of saying that nobody should have the right to defame others—in a way, incidentally, that will travel further and faster than any other system of publication in the history of the world—and be able to say, “Ooh, no, you can’t reveal my name; that’s a breach of my human rights”. There is another breach of human rights involved in defamation—indeed, it is worse because the defamer is doing it intentionally. I am, of course, taking the worst case. If you have to place in juxtaposition the vicious defamer on the one hand and on the other the possibility that that defamer’s particulars may have to be revealed by the website operator in the process of complying with our new legislation, I am afraid that I have to come down on the side of the person who has been defamed.
Lord Lucas
My Lords, speaking again as a web operator, I do not know any way of establishing a person’s identity just because they are posting. One could establish a web identity, but that may have a very fuzzy relationship with any individual. If someone posts, gives me an e-mail address and I verify that e-mail address, that is about as far as I can get. However, I think that we can reasonably insist on that. If we are offering website operators the protection of this Bill against being sued for what is posted on their sites, we can ask them at least to have verified a web identity. We can ask that they take some steps to have a method of communication with this person and do not just allow straightforward anonymous postings. Then, something put up on the net should come from someone with whom the website operator knows that they have an established means of communication. Whether or not that works, is fake or just ends in silence, I do not think you can ask the website operator to determine. But you can at least make them take the first step.
Lord May of Oxford
This is a sensitive and difficult issue but I find myself in agreement with the noble Lord, Lord Lester, and others that the downside of doing this outweighs the upside. However, it was also my impression—which may just reveal that I did not understand what was going on—that quite a significant recourse is already given by what we were discussing under Clause 5.
Lord Phillips of Sudbury
Not if the complainant does not know the name of the author of the posting.
Lord May of Oxford
I apologise. I forget the curious thing that you must stand up, thus rendering the microphone less effective. Be that as it may, I thought that there was some recourse and a real encouragement to the person running the thing not to permit really bad behaviour, because there is that recourse against the person who owns the website.
Lord Phillips of Sudbury
With respect, there is no recourse against the person who runs the website if they take the posting down. However, by that time, the damage to the complainant will have been done and will have reverberated around the world—and there will be no redress.
Lord May of Oxford
Did I misunderstand the part of Clause 5 that said there was a responsibility on the owner of the website not to permit outrages of the kind that the noble Lord just referred to? If there is, can you not sue?
Baroness Hayter of Kentish Town
This is an interesting one, particularly in respect of the use of the word “unattributed”, as opposed to “anonymous”. It seems to signify that you are looking at attribution, which may be to a group or something like that, and that it is about trying to find out who was responsible for this without necessarily naming them; I mean that it is about method, not necessarily the actual name. We are interested in the Government’s response to this, because it clearly highlights an ongoing view that what we do not want from the Bill—any more than we want what the noble Lord, Lord Lester, is afraid of—is to give a signal that the more anonymous the better.
Lord Mawhinney
My Lords, I will chip in again. When I responded to the amendment from the noble Lord, Lord Hunt of Chesterton, I said that it was subject to further work being done on the definition of recognition. I know that the noble Lord, Lord Browne, said that he was talking about something different, but I think that he and I are basically saying the same thing. In light of this further conversation, I say to the noble Lord, Lord Hunt, that if his amendment is saying that the existing people become the judge and jury for their own individual production, then I am not sure that that is in keeping with the spirit of what the Joint Committee said.
A redefinition, or indeed a definition, of “recognised” has to have some element of other people endorsing the view of those who want to produce. I encapsulated that in referring to a clearer definition of “recognition”. The noble Lord, Lord Browne, and I are probably saying much the same thing, and I hope that those who spoke to the noble Lord, Lord Hunt, recognise that being in a learned society is not in itself sufficient. There has got to be further definition of the word “recognition”. However, subject to that, which does not seem to me to be an insurmountable problem, I still welcome the amendment.
Lord Phillips of Sudbury
My Lords, I strongly support this group of amendments in the name of the noble Lord, Lord Hunt. I am sure that all the academics at the University of Essex, of which I am chancellor, would be cheering on their stools if they could hear this.
I just have one question for my noble friend Lord McNally, which may seem rather an odd one. This is all built around scientific or academic journals. That seems an odd pairing to me because I would have thought that most scientific journals were academic journals, although not vice versa. If there is to be a careful consideration of the terminology in the amendment tabled by the noble Lord, Lord Hunt, which I think is necessary and indeed essential, the Minister might consider whether or not “scientific or academic” is the happiest wording, as if one excluded the other.
Lord McNally
My Lords, the more that I hear about academia from the noble Lord, Lord May, and about the law from other Members, I am glad that I am in such a straightforward profession as politics.
This debate, again, has been extremely helpful. I worry, as I think a number of contributors have, that if the concept of “journals” includes those online, there is a question of how and where it stops. That is why we have tried to consult on this issue. It is interesting that when the legislation was first put forward by my noble friend Lord Lester, he did not make any provision for the protection of scientific journals, but particular concerns were expressed about the impact of the threat of libel proceedings on scientific and academic debate. We therefore believe that the addition to the general protections offered by the Bill of a specific defence of peer-reviewed material is appropriate. Other aspects of the Bill and work associated with it, such as the serious harm test and actions on cost protection, will also help to support free speech in these areas.
Let us be clear: right from the start, I wanted to provide protection for genuine academic and scientific debate. I have to say to my noble friend Lord Phillips that “academic and scientific” is a term that is generally understood—it does not mean the Beano. People know one when they see one. Within that, there is also the important context that we are looking for genuine peer review, which, again, is understood. I worry, as I think the noble Lord, Lord Bew, does—I will also be interested in the response from the noble Lord, Lord Hunt, to the specific questions—that we must not push the envelope too far on this, otherwise we will run into some of the problems that the noble Lord, Lord Browne, raised. We are right to be cautious.
As I say, the issue featured prominently in our discussions with the scientific community. We also held discussions with the editors of all the key journals to ensure that appropriate conditions were attached, so that the clause applied only where responsible peer-review process was used. We shared the relevant aspect of the clause with those editors to confirm that this was achieved.
Amendment 31 would extend the defence to peer-reviewed material on,
“a website edited and controlled by a chartered professional or learned body”.
We are concerned that this would make the defence too widely available. We believe that it is important to ensure that only bona fide publications with appropriate procedures are given the protection of the new defence. That is why we have focused the clause on scientific and academic journals, where there is a well established process for peer review. I can confirm that the existing clause would cover peer-reviewed material that was published by such a journal in an electronic form. However, a potentially wide range of bodies may fall within the categories proposed by the noble Lord, and we are concerned that this would extend the defence into areas where peer review is not a common practice. That may lead to the defence being available in instances where it is more likely that the peer-review process will not have been applied sufficiently robustly.
The other substantive amendment in this group, Amendment 35, would privilege any assessment of a peer-reviewed statement’s scientific or academic merit if it was written by one or more persons with expertise in the scientific or academic matter concerned and was approved by the editor of the journal or website. This would appear to be aimed at extending the defence to statements such as replies to or commentaries on peer-reviewed material without the requirement that they themselves be peer-reviewed. Again, we consider that this would extend the scope of the defence too widely.
I was asked a couple of specific questions. The noble Lord, Lord May, was worried about the meaning of “malice”. We would expect courts to use the same test as applied in other forms of qualified privilege; that is, a defendant would forfeit the defence if they could be shown to have acted with ill will or improper motive. On the points made by my noble friends Lord Phillips and Lord Lucas about the term “scientific and academic journal”, we believe that the term is widely understood and that a definition of “journal” is unnecessary.
I think that I have covered the points raised; indeed, I think that some of the most pertinent questions were addressed to the noble Lord, Lord Hunt, who may take the opportunity to make a brief reply. However, as the noble Lords, Lord Browne and Lord Mawhinney, invited us to do, we will look at this matter. As I said in discussion with the noble Lord, Lord May, I genuinely want to get this legislation right for the scientific and academic community; indeed, it is one of the most important challenges for the legislation. I am certainly willing to examine whether we have got our definitions and our scope exactly right, and I welcome the debate that the noble Lord has provoked with his amendment. I ask him to withdraw it.
Transforming Rehabilitation
Lord Phillips of Sudbury Excerpts(11 years, 4 months ago)
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Lord Ahmad of Wimbledon
My Lords, we have yet to hear from the Conservative Benches.
Lord McNally
I take that very wise advice and will do my best to ensure that there is continuity.
Lord Phillips of Sudbury
My Lords, will my noble friend give an assurance to the House that in the consultation—for which we are all very grateful—the Government will be open-minded about the issue of the private sector, and the notion that it is appropriate that this extremely difficult task be dealt with by competition and the profit motive? Are the Government open-minded to the prospect that after the consultation this be omitted from the new scheme?
Lord McNally
That is always a possibility. In a way, we are all on payment by results, even Ministers—fortunately, we have to wait until 2015. Obviously, we are bringing forward a programme which builds on initiatives from the last Government and which suggests that some kind of payment-by-results incentive programme encourages efficiency and innovation. We do not bring forward proposals with the anticipation that they are either going to be rejected or are going to fail. I hope that they will bring forward really constructive responses. There has been a good and constructive response from the Opposition today. I am sorry that we squeezed out the noble Lord, Lord Myners, because I am delighted that he is the new chairman of the Howard League and I look forward to working with him on this and other areas. As always, almost by default as a Liberal Democrat, I enter this period of consultation with optimism.
Defamation Bill
Lord Phillips of Sudbury Excerpts(11 years, 5 months ago)
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Lord Phillips of Sudbury
My Lords, Amendment 11 seeks to amend the second condition of the defence to libel of honest opinion. This requires that the statement complained of “indicated” in general or specific terms the background to the supposedly defamatory statement. The importance of that is very evident and I acknowledge that this clause is largely codificatory of existing law.
My concern is simple, as the amendment indicates. There needs to be a qualifying adjective before “indicated”. I do not believe that left on its own it necessarily carries any qualification as to adequacy or sufficiency of the indication given about the basis of the opinion that is supposedly defamatory. I am reinforced in my sense that we need the qualificatory adjective by reference to other parts of this short Bill. For example, Clause 4(3) refers to “accurate and impartial”. Clause 6 refers to “fair and accurate”. Indeed, there are multitudinous references to that phrase in Clause 7. On its own, “indicated” is a rather bleak word which needs the qualification of “adequately” to do justice to the parties.
Amendment 12 again is designed to provide a more satisfactory outcome in terms of this clause, “Honest opinion”. Clause 3(6) states that a person sued for a libellous statement does not lose his or her defence if that person was not “the author” of the libel but only a secondary publisher and that they published the original statement. My amendment would extend that protection to a situation where the publisher does not simply republish the original statement but publishes it,
“in a form which is substantially the same”.
Again, this qualification is necessary.
Clause 8 deals with the statute of limitations and how to assess when a publication shall run from in terms of the limitation. Clause 8(1)(b) refers to a publication that,
“subsequently publishes (whether or not to the public) that statement or a statement which is substantially the same”.
My amendment seeks to introduce the qualification of a statement which is “substantially the same”. As worded, under Clause 3, the defence would be lost unless it was a statement precisely the same as the original statement.
The Minister may tell the Committee that the Government believe that the provisions in Clause 8 under the single publication rule should be read into Clause 3. If that is what he says, I find it difficult to reach that construction given the way in which Clause 8 is worded, with no reference to Clause 3 and vice versa. I hope that whatever the noble Lord, Lord McNally, says on Report, we can make this clear on the face of the Bill. I beg to move.
Lord Lloyd of Berwick
Amendment 13, in my name, has been grouped with this amendment, but it raises a separate point. It is concerned with the defence of honest opinion or fair comment, as it used to be called. In 1975, the Faulks committee described fair comment as the bulwark of free speech and so, indeed, it is. A few years earlier, that great defender of free speech, Lord Denning, had made exactly the same point, adding that fair comment as a defence must not be whittled down by legal refinement.
My case will be that the defence of fair comment has been whittled down not, I hasten to add, by Clause 3 of the Bill, but by a decision of the House of Lords in 1992. The name of that case was Telnikoff v Matusevitch and I must declare an interest, since I gave the leading judgment in the Court of Appeal in that case, together with Lord Justice Glidewell and Lord Justice Woolf, as he then was. We were, unfortunately, reversed in the House of Lords, so I have a rather selfish interest in satisfying myself and, I hope, persuading the Committee that the Court of Appeal was right and the House of Lords was wrong.
The facts of the case were very simple and typical. The plaintiff wrote an article, published in the Daily Telegraph, criticising the BBC’s Russian service for recruiting its staff entirely “from Russian-speaking ethnic minorities”. The defendant, an emigré Russian Jew, took great exception to the article and, five days later, wrote a letter to the Daily Telegraph referring to the article by title and giving the date on which it had appeared. The letter contained the following sentence:
“Mr Telnikoff demands that [the BBC] should switch from professional testing to a blood test”.
As it stands, that statement looks, on the face of it, like a statement of fact: that that is what he had demanded. If so it was clearly defamatory, if untrue. However, if you look at the same sentence in its context, including the article to which the letter had referred, it looks very different. It was obvious, looking at the article, that the plaintiff had not demanded a blood test, so the words complained of were not a statement of fact at all but a comment. It was a strongly worded comment, but a comment none the less.
The crucial question on which the Court of Appeal and the House of Lords differed was whether you could look at the article as part of the context in which the letter was written. In the Court of Appeal we held, without much difficulty, that you could and should. Accordingly, we upheld the defence of fair comment in the interest of free speech and the action failed.
The case went to the House of Lords and there we were reversed. The only reason that their Lordships gave was that somebody might read the letter without having read the article. To such a reader, the letter would indeed appear defamatory, even though it would not appear defamatory to anyone who had read both the letter and the article. Therefore it followed that the writer of such a letter, if he was going to take a safe course, should set out the whole of the article, or the substance of the article, on which he proposed to comment—or, if he was even more determined to take a safe course, should consult a lawyer.
It seemed to me at the time that the decision was wrong. It did exactly what Lord Denning said one should not do: namely, whittle down the defence of fair comment by a legal refinement. Even so, I might not have been bold enough to table my amendment but for one other factor: the dissenting speech of Lord Ackner in the House of Lords. If ever there was a tour de force, this was it. I should like to quote the whole speech—I had the whole speech before me on Monday of this week—but perhaps I should confine myself to the two sentences that contain the answer. Lord Ackner said that,
“the defence of fair comment is not based on the proposition that every person who reads a criticism should be in a position to judge for himself. It would be absurd to suggest that a critic may not say what he thinks of a play performed only once, because the public cannot go and see it to judge for themselves”.
There could not be a stronger support for the amendment than the speech of Lord Ackner in the House of Lords in that case.
It is true that Lord Ackner was only one of five Law Lords—but five judges in all were in favour of the amendment, if one includes Mr Justice Drake, a great expert in this field, together with the three of us in the Court of Appeal. That makes five in favour of the amendment, with only four against. I hope that the noble Lord, Lord McNally, will find time during the Christmas vacation to read the judgment of Lord Ackner. He may well have time on his hands from now on. At Second Reading, the Minister went as far as to say that he thought that the view of Lord Ackner was probably right. I hope that he is still of that view and will maintain it when he has read Lord Ackner’s speech.
This brings me to the question that I asked at the end of my speech: is the wording of Clause 3(3) sufficiently clear and specific to enable the court to say—and in particular, to enable textbooks to say—that the decision of the House of Lords in Telnikoff v Matusevitch is no longer good law? The noble Lord said that his officials wished to consider the question and would write, but unfortunately they never did. If they had, I feel sure that we could have agreed. My view is that Clause 3(3) is not sufficiently precise. If Parliament is going to reverse an important decision of the House of Lords—and it was an important decision—in the field of defamation, as I hope we will, we must make it absolutely clear that that is what we are doing in the Bill. That is the only purpose of my amendment. The point would then be picked up by the textbooks—this is an important argument—so that we will not have to wait until a decision of the court, which would only add to the waste of time and money involved. We can do this now, and I hope that the noble Lord will agree to do so and accept the amendment. It will in no way detract from Clause 3(3), but it will cover a specific case, as we often do. I can think of literally no good reason why the Government should not accept the amendment now. I hope that the Opposition will take the same view.
Lord May of Oxford
I suspect that I am the only non-lawyer around the table but I wish to express my enthusiasm for the amendment.
Lord Phillips of Sudbury
My Lords, I should be interested whether the Minister who is to sum up can tell the Committee whether there has previously been a conspiracy of judges frustrated in the manner that we have seen today.
Lord Ahmad of Wimbledon
My Lords, I note with great interest that everyone referred to my noble friend Lord McNally, but it falls upon me at least to attempt to address some of the issues raised. I am mindful also of the fact that some holiday reading was put forward, and I now realise why my noble friend suggested that I deal with these amendments—I will be travelling to Australia and, rather erroneously, I asked him to suggest some reading for my long trip. Now I know what it will be.
I should like to respond to the various amendments in the group, Amendments 11, 11A, 12 and 13. Amendments 11 and 13 relate to Clause 3(3). The subsection reflects the test that has been approved by the Supreme Court in the case of Spiller v Joseph. This provision has been included to address the concern of the Joint Committee on the draft Bill that unless an indication of the subject matter on which the opinion is based is included it is difficult to assess the real nature of the criticism that has been made.
Including the word “adequately”, as proposed by Amendment 11 in the name of my noble friend Lord Phillips, would make no difference to how the provision would operate in practice. In order to succeed in establishing the defence, or indeed any other defence, the defendant will have to show that all the conditions attached to the defence are adequately met. If the way in which they are met is not adequate, it will be inadequate and by definition will fail. We therefore do not consider that this amendment is necessary at this time.
My noble friend also referred to Clause 8, which deals with a different situation, where the material is republished by the same publisher. Clause 3(6), however, deals with situations where the defendant is not the author of the statement—that is, where the newspaper editor publishes a comment piece written by someone else.
I move on to Amendment 13, in the name of the noble and learned Lord, Lord Lloyd of Berwick. It is true that this issue was flagged up at Second Reading. He referred to the specific assurance that he suggested was given, whereby a detailed letter was to be sent to him. If that has been overlooked, I am sure that the officials and my noble friend have noted that, and we will write to him quite specifically.
Lord Lloyd of Berwick
I am very grateful to the noble Lord, Lord Lester, for his support for this amendment, and indeed to other Members of the Committee, some of whom have spoken with particular knowledge of this aspect of the law. The noble Lord, Lord Lester, was concerned about the language of the amendment, and of course I accept that the wording could be improved. It may be that it is in fact too narrow in the sense that it refers only to newspapers and not to other places where articles might be published. It is the sort of thing that can be dealt with very easily if only one could have some sort of conversation on these matters with Ministers.
The noble Lord also said that it might be dealt with sufficiently with a statement under Pepper v Hart. There I think I would disagree with him. The point in Telnikoff v Matusevitch is so important in the law of defamation that it ought to be dealt with specifically so that it is on the face of the Bill, not just through a statement from the Minister. Nevertheless, I am grateful for his support.
As to the reply, of course I accept the apology offered by the noble Lord, Lord Ahmad. However, these things should not happen and it is not the first time it has happened, even to me. One is told that one is going to be written to, but then one is not, so it is important that when the Government say that they are going to write, they should in fact do so. There is simply no purpose in raising points at Second Reading unless they can be dealt with properly at the Committee stage. In this case, of course, that has not been possible.
There were two questions for the Government to consider. First, do they accept that the decision of the House of Lords was erroneous? They have not dealt with that at all. Secondly, if it was erroneous, is that point made sufficiently clear in Clause 3 as it stands? On that I very much echo the statement of the noble Earl on the other side of the table. My view is that it is not sufficiently clear and I can see no reason why it should not be made sufficiently clear. It does not cost the Government anything to accept an amendment of this kind. Although I necessarily will not press the amendment, I intend to raise the matter at the next stage.
Lord Phillips of Sudbury
My Lords, to be frank with my noble friend, I do not feel that his response to Amendments 11 and 12 really addressed the case I was making. However, I do not propose to say anything further today. I will reread what he said; I hope he will reread what I have said; and I hope that there may be discussions before Report, when I can perhaps convince him otherwise.
The Deputy Chairman of Committees
Page 2, line 34, leave out paragraph (b) and insert the new paragraph (b) as printed on the Marshalled List. As an amendment to that amendment, I call the noble Lord, Lord Phillips of Sudbury, to move Amendment 15.
Lord Phillips of Sudbury
My Lords, I was going to ask my noble friend a question. Is it too late to ask him?
Lord Phillips of Sudbury
In that case, it is very important, in the light of the amendment in my name, to know whether the words, “the defendant reasonably believed”, inserted by Amendment 14 to Clause 4(1)(b), are construed in an objective or a subjective way. If that is an unfair question then we will have to wait for a reply, but it is very important.
The Deputy Chairman of Committees
My Lords, to get us back on to the straight and narrow, an amendment to Amendment 14 has been proposed.
Amendment 15 (to Amendment 14)
(c) the defendant acted fairly as to the manner, balance and content of such a statement”
Lord Phillips of Sudbury
I have rather lost the plot. Can the Minister reply to my question before I move my amendment? I may not have to move it if he answers in a certain way.
Lord McNally
I would have to take advice on those matters. In a room full of lawyers, I am not going to make comments ex cathedra, ad hoc, on the hoof, or whatever description they might say. Why not ask your questions? By the time I come to reply I might even give you an answer.
Lord Phillips of Sudbury
My Lords, I am grateful to my noble friend and sympathise with his predicament. In the light of what he has said, and as we have an opportunity to discuss this at a further stage, I will not move Amendment 15 at this time.
Lord Lester of Herne Hill
I am sorry—I am always very bad on procedure.
Clause 4 is at the heart of the Bill. The Government have done an extremely good thing. Originally, like my Bill, and like the judgment in Reynolds of the noble and learned Lord, Lord Nicholls of Birkenhead, there was a checklist of factors. In practice, the checklist proved unworkable. It was a list of factors that could not be weighed one against another. As the noble Lord, Lord McNally, said, there was great opposition to it. The Joint Committee on Human Rights, on which I serve, expressed the conclusion in paragraph 15 that the checklist was inappropriate and that we needed instead a generic test. The Constitution Committee expressed the same conclusion in paper 86.
The inventor of Clause 3 was Heather Rogers QC. The inventor of Clause 4—as it is proposed that it should be amended—is neither me nor the Government but Sir Brian Neill. He is in hospital at the moment, otherwise he would be here, but he will be delighted to know what is happening today. It was he who asked why on earth judges would need a checklist of factors when one could produce a proper, objective test coupled with a reasonable belief. One can then leave it to judges to decide on a case by case basis whether there has been responsible publication. Whether there has been such publication requires the answer to two simple questions. At least, the questions are simply stated; they are not always simply answered.
The first is whether, objectively, the publication is about something of public interest. The second is whether there has been responsible publication—I do not say responsible journalism because this applies to everybody, not just the press—in that in newsgathering, editorial judgment and the rest of it there has been compliance with the professional standards appropriate to a newspaper or to other circumstances. That means that this is not a charter for irresponsible publication. For example, if a newspaper publishes something that is defamatory and untrue, it cannot be covered by Clause 2. If it is not just a matter of opinion, it cannot be covered by Clause 3. If it is not covered by statutory or common-law qualified privilege, it cannot be covered by that. It can be covered only by Clause 4—and it has to earn it because this is a privilege that is being given in the public interest. It is not a privilege because the newspaper or whatever should have a special right. It is a privilege because the public, through the eyes and ears on the media, are entitled to have information provided to them on matters of public interest.
This is a far better solution than the one I tried to persuade the Law Lords of when I did Reynolds, which was the New York Times v Sullivan approach in the United States. What came out of Reynolds was a compromise on the American position. The reason why the American position does not make much sense—with respect to the great court that decided New York Times v Sullivan—is that it focuses on the identity of the publisher and not the content of the publication. It asks: is the publisher a public figure? That is the wrong question. It does not matter whether the publisher is a public figure. What matters is whether it is in the public interest to publish what is in the publication. In the United States—I say this as someone who greatly admires the American legal system—not just, for example, a servant of the state but a basketball coach or a restaurant owner is defined as a public figure because they want to find a way to say rude things about restaurant owners. The beauty of Clause 4 is that we have now got rid of the checklists, we leave it to the courts which are well capable of considering matters on a case-by-case basis, and there is a generic formula. I pay great tribute to my noble friend Lord McNally, under whose leadership all this has become possible. We have had great arguments about this in the past few months and he has listened. What has been produced, thanks to Sir Brian Neill, does not need any further amendment. It is fine as it stands.
Lord Marks of Henley-on-Thames
My Lords, I found the question of whether we should or should not have a list of factors in Clause 4 a very difficult one. In the Joint Committee I was certainly of the view—a view I expressed at Second Reading—that a list of factors would be helpful, primarily because it would enable members of the public to look at the statute on the internet to see what kind of factors might or might not be important in determining whether a publisher would be held to have acted responsibly.
I remember the arguments around this issue in Joint Committee, and my noble friend Lord Mawhinney may like to think back to them. However, I have now been persuaded that the list of factors arising out of the Reynolds case has been treated as a checklist and used by claimants and defendants alike, and by their solicitors, to put their opponents to very costly proof at the pre-action stage in a way that has tended to be oppressive and increase costs. There is a serious risk that a codified list of factors as set out in the unamended Bill would have the same effect. I now accept that a statement of general principle is the right approach, but I have reached that conclusion with some difficulty.
It is important to note that the way the test is now expressed in government Amendment 14 combines an element of subjectivity with an element of objectivity. That is really the answer to the question put by my noble friend Lord Phillips of Sudbury to my noble friend Lord McNally when he decided not to move his amendment. I am bound to say that I thought that my noble friend Lord McNally did himself an injustice in declining to answer the question because he had in fact already answered it in his opening remarks on his own amendment. The element of subjectivity is that the court will have to look at what the defendant believed, and that is a subjective test. It will then have to look at whether that belief was reasonable, and that is an objective test. That combination will enable the court to develop the law on the basis that it is an issue of fact which will necessarily take into account all the circumstances of the case. My concern is allayed by that because it seems unlikely that the case-by-case development—the cottage industry development to which the noble and learned Lord, Lord Morris, referred—will not create too much difficulty. However, it is a danger, and I hope that it is one that the courts will be careful to consider.
Amendment 15, tabled by my noble friend Lord Phillips—
Lord Phillips of Sudbury
I entirely take what my noble friend has said and agree with it. However, would it not be advisable, if only to help the general public and the lawyers? Under Amendment 14, in the name of the noble Lord, Lord McNally, the double test—the subjective and objective tests—which he outlined, could be more clearly enunciated.
Lord Marks of Henley-on-Thames
I am bound to say that I am worried about the way in which the amendment in the name of my noble friend Lord Phillips makes that suggestion. I appreciate that he does not intend to move it. It seems to me that one can do no better than require the court to look at all the circumstances of the case. As a matter of drafting, I am not entirely sure that the amendment in the names of the noble Lord, Lord Browne, and the noble Baroness, Lady Hayter, is necessary. It seems to me implicit that,
“all the circumstances of the case”,
have to be taken into account. That phrase is usually used in statute to say that all the circumstances of the case “included but not limited to”, and then it goes on to a checklist. We are not having the checklist so I am not sure that that requirement is necessary to be expressed.
My worry about the way in which my noble friend Lord Phillips—
The Deputy Chairman of Committees
Before we go on, perhaps I should remind the Grand Committee that we are discussing an amendment to a government amendment in the name of the noble Lord, Lord Phillips of Sudbury. It was called and therefore it will need to be withdrawn. Since it is in the same group, it does not particularly matter for the purposes of the debate. But that is the position.
Lord Marks of Henley-on-Thames
I would rather that my noble friend Lord Phillips did not withdraw it. I was about to address it in terms that agree precisely with the interruption helpfully made by my noble friend Lord Lester but at a little more length. It seems to me that the amendment in the name of my noble friend Lord Phillips invites the judge to enter into a critique of the position of the defendant and, in using the words “manner, balance and content”, one is requiring the court to decide on whether the defendant should have written what he has written. That seems to me to be inimical to freedom of speech and to go very much against what this defence is trying to do. The importance of the defence is that it is a liberalising defence. It seems to me that that would narrow it in an unacceptable way.
Finally, I turn to Amendment 22, which, rather unfairly, I will comment on before the noble Lord, Lord May, has spoken to it. The question is whether the words used should be “editorial” judgment or “the publisher’s” judgment. It may be that one could argue for the use of both phrases but it seems to me that we need these concepts to go wider than simply editorial judgment. We live in a world where many of the statements to which this defence will be referable will never go anywhere near an editor: they will be published on the internet by individuals and will not bring editorial judgment to bear. It seems to me that the beauty of the amendment in the name of the noble Lord, Lord May, or something very like it, is that it allows for a publication with a much wider ambit than the government amendment. However, by and large, I support the government amendment wholeheartedly.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall)
Perhaps I could assist the Committee by suggesting that the noble Lord, Lord Phillips of Sudbury, has proposed an amendment as an amendment to Clause 14. Does he wish to move it?
Lord Phillips of Sudbury
I do not. The noble Lord, Lord McNally, has given as satisfactory a reply as is possible in the circumstances.
The Deputy Chairman of Committees
My Lords, perhaps I may suggest to the noble Lord, Lord Phillips, that if he is not going to move his amendment he should not speak to it.
Lord Phillips of Sudbury
My Lords, I shall speak to Amendments 24, 25 and 29 in my name. I agree with virtually every word that the noble Baroness, Lady Hayter of Kentish Town, has just delivered to the Committee. I should also say—and I think this will come as some relief to the Committee—that, in the spirit of Christmas, I do not propose to oppose the Question that Clause 5 stand part of the Bill. However, that is not to say that my discontent with the position of web operators is in any way lessened by what has been heard, because I believe that the one weakness of the status quo is just that—web operators have a degree of impunity that is not justified in the public interest.
I spent a few years as a libel solicitor—not exclusively so but I had a steady diet of libel work, always for individuals. I reiterate what I said at Second Reading: there is an unintended bias in the Bill and in much comment in favour of the media and journalists. I have as much commitment to the free press as anyone. For 10 years, I was a member of the Scott Trust, which owns the Observer and the Guardian. However, when I heard the noble Baroness, Lady Bakewell, talk about the millstones around the necks of journalists, I have to be frank and say that if you look at it from the point of view of the individual—particularly the individual who is not affluent—the millstones all seem to be on the other side.
The disparity of arms between claimant and defendant is nowhere more vivid than in relation to the web operators, many of which are huge multinational companies. They do not do this for fun—they are not like a village notice board. They do it for profits, and mighty big profits, and some of them do not even like paying taxes on those very big profits. They are the Goliath in the defamatory relationship, so to speak, and in my view their impunity is not justified in terms of freedom of speech. Freedom of speech has to be balanced by respect for truth and protection of the reputations of individual citizens. I know that this is common ground between us and I should say—because I do not think it has been fairly represented—that the Libel Reform Campaign itself makes that point. Freedom of speech has to be balanced by a countervailing duty of responsibility and truth, otherwise one has a tyranny. I cannot understand how we got into the position in Clause 5 of web operators having no responsibility whatever for defamation, however grotesque and damaging, so long as they do not originate the defamation on their website—that is in Clause 5(2)—and so long as, if and when they receive a notice of complaint, they act in accordance with the regulations still to be made under Clause 5. I am delighted that the Government have listened to what was said at Second Reading and have now prescribed a positive procedure for those vital regulations under Clause 5 (5).
However, one can imagine a rerun of something comparable to the recent BBC-McAlpine debacle, or imagine that the most sordid and graphic statements are posted on the web about a public figure, statements that would inevitably be taken up and repeated across the wide world of the internet, with or without embellishment. Under this clause, such defamatory statements—the damage of which will, in the nature of things, linger for ever and cause the acutest pain and damage to the reputation of the person concerned—do not touch the operators of the websites that first published the statements. Under Clause 5, the operator will not even have to moderate the libels until it receives a notice of complaint. Indeed, an operator with an axe to grind against the person who is defamed may even welcome or encourage the posting of the defamations. That is a situation to which my Amendment 25 refers. It would dislodge the defence under Clause 5(2) if there was any malice or bad faith at behind the defamations.
Consider this: if a person or company associated with the operator—whether by way of partnership, joint venture, interlinked companies or however—posts defamatory statements on a website, the operator, under Clause 5, still has impunity. That cannot be right. My Amendment 24 deals with that. I am the first to confess that if my amendment is acceptable to the Government, one will need on Report to refine what is meant by an associate. However, I thought that at this stage it would be satisfactory to leave the amendment as it is.
The phrase “chilling effect” has been much used in these debates, and that is fair enough. However, I again remind the Committee that the chilling effect is on both sides of the fence. If Goliath has a chill running down his spine, as was notably enunciated by the noble Viscount, Lord Colville, think of the individual who is facing up to this media behemoth. I have been in the position again and again of dealing with individuals who have been grotesquely libelled. I am not talking about the responsible media but, let us face it, parts of the media in this country will resist the most rightful claim, knowing that they can get away with it because the costs are simply way beyond their reach. They can delay and string out the case, and I have experienced that. This Clause 5 puts a web operator into a wholly unwarranted position of unreasonable strength against the public interest. I therefore hope that the amendments to moderate that impunity will be taken on board by the Government. From everything that I have heard so far, I do not believe that they will be content for this imbalance to remain.
Lord Phillips of Sudbury
Why should the expense and risk be on the side of the citizen?
Lord Lucas
Absolutely—the expense should be on the citizen who, having made the comment, is the target of the defamation action; but the website should not be forced to take down the comment just by the threat of a defamation action against the person who originated the comment. Otherwise, it becomes all too easy to wipe complaints off the public record. It is not that I wish the person complained against not to have any means of action but it should be against the person posting the comment and not against the website that is hosting the comment, until it has been proved to be defamation and a court order comes saying, “You must take this down”.
Lord Phillips of Sudbury
My noble friend is putting forward a situation which has no parallel, for example, in newspapers, or radio or television. It is no good the newspaper saying, “Well, this isn’t my letter, this is the letter of John Smith and therefore it is nothing to do with me”. Why should it be any different for the web operator?
Lord Lucas
We are dealing with the web operator as a conduit and not as a publisher. If I want to make a particular statement about a company that I feel has wronged me, I will do so using public media such as Facebook, Twitter or other sites on which I might post a comment. That is me making that statement. If I am identifiable, which I think is quite proper, then the action should be against me. Otherwise, it means that those who are behaving badly and wish to hide that bad behaviour can simply wipe all record of my complaint off all public websites without any risk or trouble to themselves. I would say that it is in the public interest that I make my views on this particular company known, but I am going to be deprived of all means of doing so in an electronic world because I will have no access to what becomes the medium of communication, because as soon as I say anything there the company that I have complained about can wipe it out. That seems to me an entirely unreasonable situation.
We have to recognise that we are dealing, as the noble Baroness, Lady Hayter, said, with a different world and a different way of doing things and that if we want news of bad practice to spread, we have to allow it to be published. Allowing it to be published means holding harmless those who are acting as a conduit. I am a publisher and recognise that if I publish something unpleasant about some school or person then I, as a publisher, take that on the chin. That is part of my remunerated business. However, the owners of Twitter are getting no benefit from the fact that I have tweeted something on it—there is no revenue with which to offset the cost of establishing that I have a right under law to say what I have said, so they will immediately take it down, if complained against, unless we provide them with some kind of “hold harmless” defence. So it is very important that the conduits, if they behave well, establish the identity and share it with the complainant, and can continue to publish until the point has been reached where it has been established in a court of law, or by agreement or otherwise, that what has been said is defamatory.
I agree with the noble Baroness, Lady Hayter, that it is very important that, where something has been said about a company or a person that is considered defamatory, a statement from the person who is being defamed should be published alongside the original statement. That is a relatively easy technical thing to do, and I do not think people should have to wait seven days. It should be relatively automatic. These days, one day—certainly one working day—is enough to do that. That should be an automatic right, because it is easy to do and balances things reasonably.
I am also interested in the question of moderation, which has been referred to. The status of moderation under this clause seems to be very uncertain. By moderating to any extent, do you become the publisher of what has been said? A lot of sites will just allow unrestricted publication, and that appears to be safe, but we and many other sites will moderate; that is, we will want to see what has been said before we decide that it can be published. If we moderate and then publish, have we assumed liability for what is said? Have we assumed a liability for checking it? If not, it becomes impossible to moderate and you are saying, “We wish the web to be entirely unmoderated and we think that the process of moderation is undesirable”. I am not sure that that is what the Government intend to say.
If you allow moderation, do you allow within that any kind of editing or advice? If someone posts a comment and it appears to be a statement of fact rather than opinion, are you allowed to say to that person, “You have not phrased this as a statement of opinion. If you resubmit it as a statement of opinion, we will publish it”. Is that taking responsibility for what as been said? I think of moderation as something we should encourage. It improves the quality of the web as a whole, although it is an expensive thing to do. We should be clear in this clause about the extent to which we are prepared to support and protect the process of moderation.
Lastly, I come back to what the noble Baroness, Lady Hayter, said about TripAdvisor. I think that it is barking up the wrong tree. I suggest that it employs what we have effectively used over many years and I will call the Good Schools Guide defence. If a school starts to complain about comments we have made, we merely post the fact that we are not prepared to allow comments on this school because we do not agree with the school’s policy on taking down comments. That is as good as anything. If TripAdvisor were to do that to a hotel, that would be worse than any comment that anyone could possibly publish. It would achieve the end result it wanted without pain.
Lord Phillips of Sudbury
To equate the world wide web with a pub discussion is bizarre. The thing about a pub discussion is that it goes no further than the pub and it is all within a context that people understand. The problem with the web is that the defamation can shoot around the world in 24 hours and remain out there for years.
Lord Allan of Hallam
I agree with the noble Lord. The new concept has been described. There is a lot of thinking and literature being developed around this. We are talking about private speech in a public space. Essentially, the speech is made in a private tone but the reality is that the speech is publicly accessible, because of the nature of the technology, to anyone in the world. That does not mean that we ignore it, with which I completely agree. In this clause, we are aiming to get towards a sensible way of dealing with that speech and recognising that it is different from the speech traditionally regulated through defamation law, which was speech through editorialised large organisations.
Crime and Courts Bill [HL]
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Baroness Howe of Idlicote
My Lords, as someone who has put her name to amendment after amendment on this issue of why on earth we did not include women in a Bill on crime and courts, I hope that the Government will do something about it. The Corston report is totally brilliant. We have all agreed that. It set out the areas that needed attention and not just that: we all know that there were many reports before it. It is not just a question of five years, but of report after report making special recommendations about the needs of women offenders. We all know the degree of mental health problems and sexual and other forms of abuse that these women have had over the years. Equally, we know of the terrible damage to children when families are broken up and children taken into care.
Returning to what my noble friend said about young offenders, I was looking at a report by the probation inspectorate. Ofsted and, I think, Estyn did a sample looking at the support that these young people had. Many of them have, no doubt, come from homes such as this, and have been in care for goodness knows how long. More than a third of these children examined by the inspectorate were placed more than 100 miles from home, and a lot of them were found in situations where they were almost next door to offenders. One was found having sex with a 15 year-old boy in a children’s home. It is not exactly a pretty picture.
Although we did not manage to reach these amendments on the days that we were promised they would be reached, and therefore could not vote on them and cannot vote on them now, will the Government please think very hard about making these changes? I have waited a long time this afternoon and have not taken up time on other amendments. We should not wait just because we have a brilliant Minister; I am sure that she is brilliant. Above all, I hope that we can now ensure that mention is made in the Bill of the needs of women, who are a very important group.
Lord Phillips of Sudbury
My Lords, I hope I will be forgiven if I contribute briefly to this debate because I have taken little part in it hitherto. However, I cannot resist rising to speak strongly in favour of Amendment 10.
I started my life in the legal profession traipsing around the magistrates’ courts of eastern England. For several years, I said to myself at the end of every day that there but for the grace of God would I have gone. We are an extraordinary race. We are so intelligent and forward-thinking in many ways, yet when it comes to penal affairs, we have an extraordinary ability to fail to see our own best interests. Today, we would all agree that community life is at a low ebb, and the weaker that the communities of this country are, the greater the likelihood of certain groups of young adults casting themselves adrift and offending against the mores of society, which, unfortunately, they often do.
We are in a society obsessed with money, celebrity and sex. There is a group of young men and women who think nothing of themselves and are thought nothing of. They have succeeded at nothing and failed at everything. Educationally, they are a failure. They have little prospects, little ambition, little self-esteem and no respect. It is this group who Amendment 10 seeks to help. Again and again, we allow our distaste for the behaviour of many of these young people to stand in the way of intelligent redress. It is in our self-interest to ensure that this amendment, or something like it, is passed and that Governments of all persuasions are required to do something specific about it. It is for those reasons that I strongly support Amendment 10.
The Earl of Listowel
My Lords, as we have heard, many of these women will, as children, have been abused in their own homes. A disproportionate number will have then entered the care system, and a disproportionate number of those will then have their children taken into care. A disproportionate number of the young people we have been discussing will have been abused in their homes when they were children and will have been taken into the care system. Although there have been improvements in that system, many will have experienced multiple foster placements—as many as 30, and some more than 30. They will often have experienced many changes in social worker.
I commend these amendments to the Government and I particularly commend the words of my noble friend Lord Ramsbotham when he said that what these young people need is a long-term, enduring and reliable relationship with a responsible adult. Again and again, reports into the care system identify that continuity and reliability is the key to improving outcomes for these young people. I hope that the Minister can give some encouraging response to these amendments, as I am sure that he will.
Defamation Bill
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Lord Mawhinney
My Lords, I am not sure what the proprieties are but for the record I had the privilege of chairing the Joint Committee, the report of which is a seminal document in the consideration of this Bill. Before I turn to the amendments in my name and the amendment in the name of the noble Lord, Lord Browne of Ladyton, and the noble Baroness, Lady Hayter of Kentish Town, I should say that the committee was enormously assisted by two noble Lords present this afternoon: namely, the noble Baroness, Lady Hayter of Kentish Town, and the noble Lord, Lord Bew. All the outcomes of the committee’s deliberations were supported by both my noble friends. I shall use that word in its normal rather than parliamentary setting. The report was greatly enhanced by their contributions, for which I thank them.
The report also acknowledges the considerable help that the noble Lord, Lord Lester of Herne Hill, contributed to our conversations and deliberations. He knows that we are appreciative of that. I add to that the name of the Minister—the noble Lord, Lord McNally. His door was always open to me and we had a number of very good and constructive conversations. I thank him and express with great confidence the hope that the spirit which imbued our earlier conversations will continue to prevail in this Committee.
Amendments 2 and 3 stand in my name, so I shall start with those. The first seeks to change the test to “serious and substantial”. As I told your Lordships’ House at Second Reading, this emanated from the evidence given to us by the noble and learned Lord, Lord Mackay of Clashfern, who is probably one of the most highly regarded Members of your Lordships’ House. He was quite explicit. He apologised to me privately for not being able to be here today. I told him that I had put down an amendment to try to persuade the Committee, and subsequently the House, that the test should be “serious and substantial”. He said, “It is quite straightforward, Brian. ‘Serious’ means that what is said can be very damaging but may not be substantial if the ripple effect—the extent of publication—is very limited. On the other hand, it might be only borderline serious but the extent of publication may be so great that substantial harm is done, so there are arguments for the ‘serious and substantial’ test”. The committee was impressed by the evidence given by the noble and learned Lord, Lord Mackay, and we translated what he said to us into our report.
The noble Lord, Lord Browne of Ladyton, makes a good point when he says that we are in danger of leaving everybody slightly confused by the terms “substantial”, “serious and substantial” and “substantial to serious”. That raises another question as to whether or not the Government are seeking in this Bill to codify or to write new statute. Paragraph 27, to which the noble Lord, Lord Browne of Ladyton, referred, addresses this point.
The Secretary of State for Justice, the right honourable Kenneth Clarke, said in his evidence to us that Government were looking for new statute. He was accompanied at that evidence session by our Minister, and after I queried exactly what the Government’s position was supposed to entail, he wrote and said that we were essentially only seeking to codify the law. I must therefore say to my noble friend that we really do need to know whether the Government want to codify or to write new statute. We in the committee were fairly clear that new statute needs to be written, because as the noble Lord, Lord Browne of Ladyton, said, our view—and the view of almost everybody who gave evidence to us— was that the present bar is too low.
That leads me to another point. The noble Lord, Lord Browne of Ladyton, quoted—I think—my honourable friend Mr Djanogly in saying that this legislation needed to be clear, because Parliament set the law and the judges interpreted it as if it was a new and bold step forward into the unknown. That is how our constitution works. We have to decide what we want to tell the judges to use as the basis of their judgments. It is not complicated; it is quite straightforward. This Committee therefore needs to focus on whether “serious and substantial” would be so confusing to our judges that they could not handle it. Frankly, I do not believe that for an instant, but that is an argument that has been floated. We need to be crystal clear what the will of Parliament is. The will of Parliament as reflected by the Joint Committee was that the bar should be raised, and the will of Parliament as reflected by our committee was that this required new statute rather than a codification of existing common law.
That leads me to Amendment 3, which is in my name. The committee formed the view that while ultimately it is for judges to decide whether defamation has occurred or whether the charge is serious enough that it should be pursued in court, the evidence we received and the judgment we formed was that that process is delayed too long. Guidance needs to be issued to the judiciary in whatever form is appropriate. I am not a judge, so I am not going to leap into waters which may very quickly get above my head, but we were quite clear that there needed to be guidance in order for the judiciary to come to an early judgment as to whether this test had been met; and if so whether the case should proceed; and if not that it should be terminated immediately.
Lord Phillips of Sudbury
I thank the noble Lord for giving way. Will he explain to us—because it is not clear to me—whether this process of the Secretary of State issuing guidance goes through any secondary legislative procedure? It does not on the face of it appear to do so.
Lord Mawhinney
I think the truthful answer to my noble friend is that I cannot tell him that. However, my understanding from listening to hours of evidence is that pathways by which the Government can issue guidance already exist, and I assume that that would be covered by that arrangement. If this is not the case, I would encourage my noble friend, who knows more about these things than I do, to put down appropriate amendments on Report to clarify the issue that he has raised.
Therefore, it is question of new statute, not codification; of raising the bar; and of the judiciary making early judgments as to whether these cases before them should proceed. I stress that because—and I am not going to apologise to noble Lords—I fear I am going to return regularly through these sessions to one of the overwhelming judgments that we made. That was that the cost of defamation has risen to such an extent that it is driving way beyond the means of ordinary people their ability to seek the protection under the law to which they are entitled.
The committee occasionally, in trying to balance legal action against cost, came down on the side of cost. Legal niceties are good, important and proper but they are irrelevant if the ordinary man on the street cannot afford to go to law in the first place. Therefore cost is going to be a recurring theme. I encourage the Minister to take that point seriously so that he does not get irritated with me. He is presiding over a system that is out of the financial reach of most of our fellow citizens. This legislation ought, to some extent, to reverse that procedure—not wholly, we are all sensible and grown up and there is cost attached to these legal procedures. However, as many people as possible ought to be enabled to use the law to defend themselves and that is simply not the case at the moment.
What I have said indicates that I have sympathy with the first amendment tabled by the noble Lord, Lord Browne of Ladyton. “Publication” and “the extent of publication”, “serious” and “and substantial”, fall in the same ball park and I look forward to hearing the Minister’s reply. I have pleasure on behalf of my committee as well as personally in speaking to both of the amendments in my name.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I shall begin with my usual disclaimer. I am not a lawyer. As I often say about my friends in this House who are lawyers, we are in their debt because if we had to pay them we could not afford them. We get the benefit of considerable legal expertise. The only problem is that it does not always point in the same direction. Nevertheless, it is welcome—as is the approach of the various groups that have become involved in this Bill. I pay tribute to my colleague and noble friend Lord Lester, who launched us on this path with his Private Member’s Bill, and the noble Lord, Lord Mawhinney, and his group, who in the pre-legislative scrutiny committee were extremely thorough. I also pay tribute to the Opposition, who played a very constructive role, and the various lobby groups that have come in. As has been said, it is a task of achieving balance.
I am grateful for the comments made about my own attitude. I take the view, particularly on this Bill, of President Harry Truman, who when asked whether the Marshall plan should be called the Marshall plan or the Truman plan said that it should be called the Marshall plan, as it is amazing how far you will get if you share a little of the credit.
I want to share the credit because my sole aim and intention in taking this Bill through is to leave us with a piece of useful legislation which will address some of the problems to which the noble Lord, Lord May of Oxford, has just referred of us having an unwelcome reputation for libel tourism, and to address some of the unfairness of costs.
As my noble friend Lord Lester indicated, we will be returning to this matter but I draw the Committee’s attention to my letter of 10 October, which is in the Library of the House and informs noble Lords that we were referring the matter of costs to the Civil Justice Council, an independent advisory body chaired by the Master of the Rolls, to advise us on this matter by the end of March 2013. As Members of the Committee may have noticed, the Government have subsequently announced that they have accepted Lord Justice Leveson’s recommendation that cost protection should be extended to defamation and privacy cases. Therefore, one of the matters which has been commented on most often, costs, is being addressed as this Bill moves forward. Whether we get the balance right is a matter for—
Lord Phillips of Sudbury
I am sorry to interrupt but I am trying to be helpful to my noble friend. I think that he just referred to a letter of 10 October.
Lord McNally
It was my fault. I thank my noble friend for drawing my attention to that. I hope that that sets a pattern whereby his interventions will be entirely helpful—as they always are. Before I dig deeper, I should turn to the amendments before us. In the light of requests from a number of noble Lords for information on what the serious harm test is intended to encapsulate, it may be helpful for me to explain as fully as possible the Government’s thinking behind Clause 1.
The introduction of a serious harm test reflects the Government’s view that there is merit in legislating to ensure that trivial and unfounded actions do not proceed. It is the first time that there has been a statutory threshold of this nature in defamation proceedings. In the draft Bill, we consulted on the following provision. It said:
“A statement is not defamatory unless its publication has caused or is likely to cause substantial harm to the reputation of the claimant”.
In formulating this provision, we examined a series of cases over the past century in which the courts have considered the question of what is sufficient to establish that a statement is defamatory. A recent example is Thornton v Telegraph Media Group Ltd, in which an earlier House of Lords decision on Sim v Stretch was identified as authority for the existence of a “threshold of seriousness”. In Jameel v Dow Jones and Co, it was established that there needed to be a “real and substantial tort” in the jurisdiction for a claim to be able to proceed. The claim which failed that test was struck out as an abuse of process. The “substantial harm” clause aims to encapsulate the tests applied in these and other cases. Our view at that point, which we expressed to the Joint Committee on the draft Bill, was that this would reflect and strengthen the current law. Establishing in statute a substantial harm test for the first time would give this requirement a new prominence and would help to discourage trivial and unfounded claims being brought.
In its report, the Joint Committee on the draft Bill took the view that a stricter test was appropriate and that,
“a threshold test that focuses on the seriousness of the allegation would raise the bar in a meaningful way and give greater confidence to publishers that statements which do not cause significant harm, including jokes, parody, and irreverent criticism, do not put them at risk of losing a libel claim”.
It recommended a test of serious and substantial harm.
Lord Browne of Ladyton
If the noble Lord will excuse me, I will give way to his noble friend the solicitor first; then I will get to the barrister.
Lord Phillips of Sudbury
I must confess to being confused by the noble Lord’s argument. He started with a passionate point about making the law more accessible and understandable to the ordinary bloke, which is what the noble Lord, Lord Mawhinney, was concerned about. But how can it serve that purpose to have two words instead of one in circumstances where we already have had very experienced lawyers disagreeing as to the meanings of those two words? I note that the noble Lord has not advanced any view on the difference between “substantial” and “significant”. It seems to me that his recipe would confuse the layman.
Lord Browne of Ladyton
I am grateful to the noble Lord for his intervention but I am perfectly happy to adopt the distinction that the noble and learned Lord, Lord Mackay of Clashfern, offered the Joint Committee and that the chair of the Joint Committee has reported to us. I will live with that. I am happy to accept that. But that is not my point. Although I am speaking to amendments in my name and that of my noble friend, I am using them as a device to try to get some clarity of the Government’s thinking so that our Parliament can say, “We support that thinking. Therefore, people outside can have some understanding of what at least we think we are doing with the law”.
If anyone goes away and reads this, here we have an interesting debate in which a number of differing opinions have been expressed, all supported by eminent lawyers. If that leads to clarity, I am happy to go along with it. It may not be possible to provide the clarity that people crave. But my argument is that in our debates we should at least give some clear indication to people outside—they should not need a law degree for this—about where we are setting this bar and what it means. There are a number of ways in which one can do that, including reference to examples.
I turn now to the Minister’s response. I am grateful to him for the way in which he engages in the debate on these issues. Perhaps the noble Lord, Lord Lester, will allow me to make this point, then I shall take his intervention. I am grateful to the Minister for the way in which he engages in the debate and I know that he will listen carefully to any further points that I or anyone else want to make. I will go away and look carefully at what he has said.
While the Minister was speaking, I was looking carefully at what Jonathan Djanogly said in the equivalent debate in the House of Commons. He will be pleased to know that there was a lot of similarity. But there was some difference and it is that difference for which I am grateful.
Lord Phillips of Sudbury
My Lords, the noble Lord, Lord Hunt of Wirral, is not here, but he made me think that I should have declared an interest at the beginning as a solicitor whose firm is Bates Wells & Braithwaite, which I now do. I have one general concern about these two amendments and one technical point that I want to make. The first issue has been referred to again and again, and it cannot be referred to enough; namely, the deeply unsatisfactory nature of libel and slander in terms of costs. None of us has much idea of what to do about it. Right from 1948, it was never part of the legal aid scheme, for perhaps understandable reasons. It has got worse as costs have risen faster and further, as the noble Lord, Lord May, among others, has said.
I hope devoutly that the good Lord Dyson will be bold in the way in which he looks at all this. As my noble friend Lord Lester has said, we need to think well outside the box. I also wonder whether there is the possibility of some insurance answer to this. For example, if all household policies had a libel insurance provision, the cost might be relatively insignificant when spread across the whole population.
In these two amendments, I am anxious about the ethical reputation of companies. The noble Lord, Lord Faulks, correctly drew our attention to that part of the Joint Committee on Human Rights report which distinguished between a huge, quoted multinational on the one hand and a small, owner-occupied, so to speak, business on the other, but I do not want to have a sheep and goats approach to reputation and corporations. I think that everyone in this Committee would agree that one of the great disappointments of the past 10 or 20 years has been the weakening of any ethical identity on the part of the great corporations. In the financial world, you can almost talk of a demoralised—literally de-moralised—community of companies where ethics and moral identity are now almost absent. I must confess that I do not want to add to that by saying that corporations can never sue in respect of an attack on their ethical identity.
One thing that one of the noble Lords who tabled this amendment might enlighten the Committee on is whether confining actions to where there is or is likely to be substantial loss can deal with the more difficult case. The noble Baroness, Lady Hayter, talked of the Perrier case, in which the loss was pretty direct, obvious and immediate. However, there are many other situations where serious defamation would be extremely difficult to calculate in terms of any direct financial consequences. That concerns me, because I want corporations to re-enter the world of ethics. They have a character and a personality—or they can—and therefore I am anxious about them.
My last point is in respect of Amendment 8(3), which mentions “for profit” organisations and then goes on to exclude charities, non-governmental organisations or other non-profit making bodies from this limitation. This point concerns the drafting only. Many charities and NGOs are profit-making, but not profit-distributing. I think that subsection needs to be changed, because a charitable hospital, for example, needs to make profits in order to invest in equipment, buildings and so on. That is well accepted and entirely consistent with charitable status, but, of course, such an organisation is not profit-distributing. That is a technical point.
Civil Legal Aid (Merits Criteria) Regulations 2012
Lord Phillips of Sudbury Excerpts(11 years, 5 months ago)
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Lord Goldsmith
I want briefly to support both amendments. So far as the amendment moved by the noble Lord, Lord Pannick, is concerned, it is not necessary to say very much after a former Lord Chancellor and a former Lord Chief Justice have both criticised the order as it stands because of the way it operates in different ways. I can summarise my view in relation to it very briefly. This order already recognises that there may be “reasonable” and “not reasonable” alternative procedures. It does that in Regulation 39. However, if one then reads Regulation 53(b), it is very clear that the word “all” must be read as meaning “all”. Therefore, if one expands the meaning, what is being said as it stands is that there will not be legal aid unless the individual has exhausted all reasonable and unreasonable alternative procedures. As soon as one poses the question that way, it becomes absolutely plain that it must be wrong to impose that obligation. I do not think it is necessary to say anything more than that to summarise why the noble Lord, Lord Pannick, and the noble and learned Lords, Lord Mackay of Clashfern and Lord Woolf, are absolutely right.
Let me turn to my reasons for supporting my noble friend Lord Bach in his amendment. I recall very well the clear and powerful way in which the noble Baroness, Lady Doocey, moved the amendments which led to this particular issue. They were strong and supported by a majority of this House. I have read the debate—though I did not listen, as my noble friend Lord Bach did, to the debate itself—which took place in the other place. It seems clear to me that what was being said was that a way would be found to enable legal aid to be provided in the first tier where there were points of law. The concern expressed by the Government was that they did not want that to be a point of law just because it was so stated by the claimant or the claimant’s lawyer. That is clear in column 266. However, the Government have not ended up with that at all. They have ended up with something which appears—if my understanding of the way the procedure works is right, and it follows that of my noble friend Lord Bach—to mean that legal aid does not come into the picture until after the event. That may be appropriate in certain other circumstances, but not here.
What one needs in these circumstances is the ability to identify a point of law which will be relevant and necessary for a particular applicant—particularly a claimant of the sort to which the noble Baroness, Lady Doocey, referred—to be able to put that point of law before the tribunal. I fully endorse her point that most claimants do not recognise a point of law when they see it. I suppose that as a practising and paid lawyer, I am quite pleased, on the whole, that that is the case, although I do not actually practise in this area. The point is this, however, and I ask the Minister to answer this question: why could the way the Government limit this not be by the chairman of the tribunal identifying the point and certifying it at the outset rather than waiting until after the event?
There is one point which connects these two amendments, and it is what drives me to want to persuade the House to support them. In LASPO, we were faced with changes which, for many of us, were very difficult to accept. The Government put them forward on the basis of economic necessity. However, there was a strong belief that there were cases where justice required that there should still be some opportunity for legal advice to be taken and used. In these particular cases—public law and cases involving claimants with disabilities, for example—the Government are failing to give effect even to that limited, modest exception that they were prepared to allow. I very much hope that the Government will think again in the light of this debate.
Lord Phillips of Sudbury
In the light of what I am going on to say to my noble friend Lord McNally, I would first like to say that the whole House well understands the exigency that led to the LASPO Bill. However, as my noble friend Lady Doocey forcefully pointed out, and it cannot be repeated enough, in the realm of social welfare law, there is a singular obligation on us as parliamentarians to will the means of accessing those benefits. Unless we do that, everything that Parliament does is a charade or a sham; because it is cynical on our part not to give the people most in need in our blessed country—the poor, those lacking in self-confidence, those without a scintilla of understanding of the law and those who can scarcely read a Bill and understand it—the real opportunity to access the benefits we are proud to bestow on them. It puts this realm of public expenditure into a special bracket. There are very few areas of expenditure, I suggest, that really come within that narrow purview.
It was interesting to hear the noble and learned Lord, Lord Goldsmith, talking about lawyers looking forward to these rather nuggety issues in social welfare—it was a joke of course—but the reality is that no lawyer goes into the realm of social welfare law to line his or her pockets. I can tell the House that only the most socially minded lawyers subject themselves to practising in this field.
I hope my noble friend Lord McNally will accept my next point. In all the fields of law, there is nowhere more complex than the forest of social welfare legislation. It runs to hundreds and thousands of pages. It is utterly futile to pretend that the ordinary bloke can begin to put together the grounds for going to the director to ask for support to launch an appeal if he or she has got to understand the legal background and legal prospects, because that is way beyond the capacity of all but a very small number.
My final point is this. When the noble and learned Lord, Lord Mackay of Clashfern, was five minutes into his speech, I wondered whether he had, by mistake, picked up my notes. Every single word he said about the clash between Regulations 39(d) and 53(b) was absolutely the same as what I was going to say. The only thing I would add to it—and this is addressed to my noble friend Lord McNally—is that, as the noble and learned Lord, Lord Mackay, made clear, Regulation 39(d) is expressly imported into Regulation 53, but the language in Regulation 39(d) and Regulation 53(b) is not consistent.
That raises further problems. If things proceed as they are, for example, it is unclear what is meant by the word “unavailable” in Regulation 53(b). It is also not apparent to me how to construe the words in Regulation 53(a),
“appears to be susceptible to challenge”,
with the word in the following subsection (b), “procedures”, which are available to challenge. The refinements in the language and, I believe, the confusion are such as to render this part of the regulations not fit for purpose. I very much hope that my noble friend will be able to give the House an assurance at the end of this debate that there will be amendments to the regulations hot on the heels of the passage of the same.
Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2012
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Lord Bach
There is a framework Act of Parliament, passed by Parliament, which I have never sought to go behind. These orders add flesh to those bones. This is a very important order. In any event, the Government would have to have some kind of order on these matters. On this occasion, the Government have, in effect, not kept with the intention that they certainly had in the House of Commons. By announcing what they did in the Commons, they managed not to lose a vote and to get the Bill through. As a consequence, it is a serious matter.
Lord Phillips of Sudbury
I am grateful to the noble Lord, Lord Bach—I almost said “my noble friend”, which he is. My noble friend Lord McNally has not commented on the noble Lord’s fundamental assertion on which, for me, the strength of the case rests; namely, that the former Lord Chancellor made a clear undertaking which is now not being kept. Would it not be helpful to the House for the noble Lord, Lord Bach, to ask my noble friend Lord McNally for his comment on that?
Crime and Courts Bill [HL]
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Lord Marks of Henley-on-Thames
My Lords, I shall speak also to Amendments 35, 45, 46 and 47. These amendments would broadly remove the restriction of deferred prosecution agreements—DPAs—to corporate bodies, partnerships and unincorporated associations by permitting DPAs to be entered into with individuals and would instead restrict DPAs to cases where a sentence of imprisonment would not be likely on a guilty plea. The later amendments in my name, along with the amendment in the name of the noble and learned Lord, Lord Goldsmith, would widen the offences for which DPAs might in future be permitted beyond the range of financial or economic crimes.
To put these amendments in context, I welcome the innovation represented by the introduction of DPAs into this country by this Bill for two principal reasons. First, they are an effective device to ensure that criminal behaviour—sometimes very complex criminal behaviour—is met by a sanction. The compulsory imposition of a financial penalty, which is the subject of an amendment in my name in the next group, would ensure that that was the case. They bring about a saving of trials which in this country are, and have been, notoriously uncertain of outcome, as well as extremely expensive, so that they have used up a very large part of the criminal justice system’s overall budget. Secondly, they offer an opportunity for prosecutors to agree a programme of compliance requirements with offenders, and thus offer a chance to change behaviour, so they are part of the toolkit of the rehabilitation revolution, about which we have heard so much in the context of the Bill.
DPAs are for use only in suitable cases. It is important to avoid the worst excesses of such arrangements in the United States where it has been said that they have been used as the rich man’s route to plea bargaining. I suggest that they can and should be used to achieve voluntary compliance in the future with the requirements of the law across a range of fields. The limit on that is that it should not be acceptable for DPAs to be agreed where otherwise a sentence of imprisonment would be appropriate.
It follows that Amendment 23 removes the requirement that a DPA may not be agreed with an individual. In support of that amendment, I ask rhetorically the question, why the distinction? Why should it be that a criminal offence by a corporation, a partnership or an unincorporated association should be treatable by a DPA, but not an offence by an individual? As I suggested in the Second Reading debate we had in Committee, the question is not whether an offender is an organisation or an individual but whether the nature of the offence is suitable for a DPA. The distinction has been drawn that an individual can be imprisoned and an organisation cannot. But I suggest that that distinction is artificial because it is of course possible to provide that DPAs will be entered into only in cases where imprisonment would be unlikely in the case of an individual.
At Second Reading, my noble friend Lord Phillips of Sudbury suggested to me that nothing in the Bill explicitly stated that DPAs were not appropriate for an offence warranting imprisonment. The answer is that in the Bill as it stands such a provision would be unnecessary because it applies only to corporations, partnerships and unincorporated associations. But if it were extended to individuals, I suggest that it would be necessary to make it clear that it was not to be seen as an alternative to imprisonment.
I quite take the point made by the noble and learned Lord, Lord Goldsmith, at Second Reading, that, because of the behaviour-changing arrangements that can be made in DPAs, they might in some circumstances be suitable for drugs offences and the like which would otherwise warrant a sentence of imprisonment. At this stage at any rate, with this very new procedure, I would be wary of introducing a system that could be seen as allowing offenders effectively to buy their way out of a sentence of imprisonment.
Hence, under Amendment 35, we confine DPAs to offences not warranting such a sentence even if the limit to individuals were to be lifted. That would happen at the preliminary hearing where, on the application by a prosecutor for a declaration that a DPA might be appropriate, that would not be able to be granted were a sentence for imprisonment to be appropriate.
Amendments 45, 46 and 47 in my name and Amendment 44 in the name of the noble and learned Lord, Lord Goldsmith, concern the types of offences that might be made the subject of DPAs. The noble and learned Lord’s amendment would effectively allow the addition of any offence by removing the restriction to economic and financial crime. I should make it clear that my amendments are sample amendments only. They are not intended at all to be exhaustive and I have not attempted to conduct a trawl through the statute book to look for appropriate offences. They are intended to be probing and to give examples only of the way in which categories of offences might be usefully made broader.
Amendment 45 suggests that,
“a breach of regulations which is not punishable by imprisonment”,
taken at its broadest, might be an appropriate amendment. Amendment 46 deals with environmental offences under the Protection of the Environment Act. Some of those are punishable by imprisonment as well as by fines but, were the restriction to be only to those offences which would not be likely to warrant a sentence of imprisonment, that would be appropriate.
Similarly, health and safety offences seem to me—as indeed they seemed to be to the noble and learned Lord, Lord Goldsmith, at Second Reading—to be an appropriate area for such broadening of the offences. I have some experience from practice of the way in which the Environment Agency operates in respect of cases of environmental pollution. In fact, it has been operating for some time on the basis that it will agree not to prosecute offenders in circumstances where the offenders agree to pay compensation to clean up pollution and to put in place with the Environment Agency programmes of compliance with legal requirements for the future. That system works well and I suggest that it could be extended on a formal basis, as is suggested in the schedule, far more widely.
I ask noble Lords to support these amendments, and for the Minister to consider taking them back and doing something with them.
Lord Phillips of Sudbury
I am not getting at my noble friend because he referred to my intervention last time, but I hope that he will forgive me if I am misunderstanding this. Perhaps other noble Lords are also unsure as to the impact of the removal of the words, in paragraph 4 on page 261, line 32,
“but may not be an individual”.
Does that not mean that the only persons who may enter into a DPA with a prosecutor are the ones mentioned, namely,
“a body corporate, a partnership or an unincorporated association”,
so the removal of the words in his amendment will not actually make any change?
I see that my noble friend has tabled Amendment 24, which does refer to individuals. However, I wonder whether that is not, so to speak, negatived by the removal of those words; but, as I said, I may well have got this wrong.
Lord Marks of Henley-on-Thames
My Lords, my noble friend is, as always, entirely on the ball. My amendment is wrong in exactly the way that he mentioned. It should be “or an individual” rather than,
“but may not be an individual”.
So the words that ought to go are, “but may not be”, to be replaced by the word, “or”. For that, I apologise, and I hope that I will be allowed to alter my amendment accordingly. I am not proposing to press it in any event, but we can bring it back on Report if necessary, in a better form.
Lord Phillips of Sudbury
I am most grateful to the noble and learned Lord for giving way. Does he not have a residual concern that if one allows individuals into this plea-bargaining regime it could give rise to the sort of scandal that my noble friend Lord Marks referred to of rich, powerful and well lawyered individuals escaping the opprobrium of prosecution and appearance in court that might otherwise be the way forward?
Lord Goldsmith
I am not concerned about that for this reason. There are two very powerful safeguards in the Bill that should prevent that. First, the DPA has to be agreed by a prosecutor and, as the debate on the previous amendment demonstrated, not just any old prosecutor but either the Director of Public Prosecutions or the director of the Serious Fraud Office—or, possibly, a person designated by the Secretary of State. I leave aside the locum tenens that might come in; the Minister will tell us at some point how likely that will be. First, the prosecutor has to decide whether it is appropriate. Having spent, as the Committee will know, a lot of time with prosecutors when I was in office, I had a high regard for their understanding of what the public interest and public reaction is. They know when people need to go to prison, if they are convicted, and they know when it is appropriate for them not to do so. We can rely a great deal on them to decide which cases are appropriate and which are not.
There is then a second safeguard. Under the Bill as it stands, it has to go to court twice, and the court has to be satisfied that it is appropriate and proportionate for such a step to be taken. Those safeguards mean that one can be much more relaxed about the risks to which the noble Lord, Lord Phillips of Sudbury, refers. Of course, I would entirely agree with him that if we had a situation in which the system operated only to the benefit of the rich it would be wholly unsatisfactory. That is one reason why I think that extending the ability of DPAs so that they cover the sort of offence that I have referred to and individuals would meet part of that concern. If anything, I am worried that by limiting this to economic crimes for companies and partnerships one sends the very message that the noble Lord, Lord Phillips of Sudbury, does not want to be sent. I invite the Government to think very hard about that.
Those are the two safeguards. My personal preference would be not to add any other barriers. I would not add the barrier of the offence being likely to carry a sentence of imprisonment. As the noble Lord, Lord Marks, recognised, if this was extended to cover the sort of case with which I have been concerned it would rule those cases out. I would leave it to the good sense, judgment and sense of public interest of the prosecutor and the court to limit the cases. For the same reason, I would leave the ambit of cases that could be covered open. I would not try to cherry pick through the statute book to find other offences that might be appropriate. I would leave that to the prosecutor and then to the court to say whether it was appropriate to use it for this sort of environmental offence or that sort of health and safety offence. I predict that fairly soon we will have a code giving guidance, and no doubt there will be debates in this House and in other places from time to time as well, and we will see the sort of offences that are appropriate. It is a very useful tool. Other dispositions are not normally limited in this way to particular offences, individuals or specified periods in prison. When I move my amendment, I will invite the Government to consider those points very carefully.
Lord Beecham
I am talking about public perception, which might well be less grounded in those more fundamental objectives than we might give it credit for when debating it in this environment, dominated as it is—looking around the Chamber—by lawyers. We have to carry the public with us. The noble Earl, Lord Attlee, is aghast: unfortunately for the legal profession, perhaps, the lawyer gene apparently did not pass from his grandfather. We have to take public perception on board and it is in that sense that I use the term.
Lord Phillips of Sudbury
My Lords, forgive me for speaking after the noble Lord, Lord Beecham, but I hope to add a few words to what he said because I was slow on the uptake and did not realise that the last amendment on this schedule is in this group. I endorse 100% the argumentation of the noble Lord, Lord Beecham, for the five-year review. I think I am alone in this House in being fiercely opposed to the whole schedule on principle. I understand the extremely persuasive arguments advanced by all who have spoken tonight—shortly to be enlarged upon by my noble friend Lord McNally—but I am profoundly concerned that we are stepping into a realm that we have no past experience of and which could work out to be far from the hopes of the Government in advancing this proposed plea-bargaining regime.
There are a number of unknowns here that could, in the event, show that, overall, Schedule 17 works against the public interest. There should be a pause after five years so that that can be looked at very clinically, impartially and clearly so that we can take stock of what is a revolutionary change in our criminal law. Let us make no bones about it: this is one of the greatest revolutions in our criminal law system in 100 years. It is not a change that has been signalled well to the public. There has been extraordinarily little comment in any of the broadsheets, magazines or television programmes. In fact, I have not seen reference to this innovation anywhere. For those reasons and many others, I hope that my noble friend the Minister will accede to the amendment. After all, if the Government are right in their arguments for Schedule 17, they have nothing to fear in a five-year review.
Lord Ahmad of Wimbledon
My Lords, I welcome the broad support for the introduction of DPAs. I align myself with the words of the noble and learned Lord, Lord Goldsmith, about my honourable friend Edward Garnier in terms of the work he has done in this field.
My noble friend Lord McNally and I have listened very carefully to the arguments and discussions that have taken place on the amendments in front of us. I can assure your Lordships’ House that this Government are about listening and hearing about experiences. While the proposals are quite specific at the moment, this does not rule out returning in future to the extension of the remit of DPAs, particularly where issues beyond economic crime are concerned.
Lord Goldsmith
More than once in this debate it has been said that this is an entirely novel approach. I invite the noble Lord to consider the fact that we already have deferred sentences, under which judges say, “If you do certain things”—and they are supposed to say what they are—“over the next three or six months, I will take a different course”. We have suspended sentences. I have already referred to the fact that we have conditional cautions. I challenge the proposition that the Government’s proposal is so novel, and invite the noble Lord and his office to consider that.
Lord Phillips of Sudbury
That applies in a case that has been tried in open court and a conviction has been made. It is vastly different from the plea-bargain situation where there is no open-court hearing, no obloquy and no public shame.
Lord Ahmad of Wimbledon
I thank my noble friend for his intervention. As I said in my opening comments, it is not something that the Government are entirely ruling out, but it is the Government’s view at this stage that because this is something new to our justice system, the provision would be focused on organisations. However, I hear very clearly and my ears have not been closed to the points made by the noble and learned Lord. It is a matter that we will examine at some future point in time when this particular DPA scheme is reviewed, as I am sure it will be.
Generally speaking, the law on corporate criminal liability is such that, in order to achieve a conviction, a prosecutor must show that the “directing mind and will” of the organisation satisfies the necessary fault element for the offence. This is often difficult to show, especially in increasingly large, globalised and more sophisticated organisations. Cases can often involve lengthy and protracted investigation, with associated high financial and resourcing costs, with no guarantee of success.
Our proposals will not change the law on corporate criminal liability. However, they will offer an additional route for holding to account organisations that are willing to engage in the process and might otherwise face prosecution. These issues are not present to the same extent in relation to prosecuting individuals. However, I have noted with great interest what the noble and learned Lord, Lord Goldsmith, has said about his personal experience and the experience of the United States in this regard.
Furthermore, one of the elements that the Government considered as regards prosecuting economic crime committed by organisations is perhaps not the same as that which applies to other areas such as health and safety. Therefore, an extension of the proposals to other forms of offending does not appear necessary at this time. In particular, we are not persuaded that a DPA would be the appropriate response where direct physical harm has been caused to an individual by the organisation’s wrongdoing.
As this process is new to our criminal justice system, the Government would like to tread carefully. Our view is that a narrow, targeted approach is the best course of action to begin with. As I have already assured the House, I shall keep the points raised by my noble friend and the noble and learned Lord, Lord Goldsmith, under review. At a future time, should a case be made for applying deferred prosecution agreements to individuals, or for applying them to a broader range of offences, as the noble Lord, Lord Marks, has mentioned, it is right that we come back to Parliament with the necessary primary legislation to extend the scope of the scheme rather than seeking to do it through secondary legislation.
The noble Lord, Lord Beecham, spoke to Amendment 48. The Government’s view is that that amendment is unnecessary. We have already provided an undertaking that we will review the operation of the scheme following its introduction, which is of course essential given the novelty of DPAs in our criminal justice system. Returning to a point that was raised by my noble friend, the Government are in any event committed to reviewing all new primary legislation within five years of Royal Assent. That was the previous Government’s policy on post-legislative scrutiny. We do not need to put such a review on a statutory footing or to sunset the scheme provided for in the Bill. If, following the review, changes to the scheme are necessary or desirable, we can of course bring forward further primary legislation at that stage.
The noble Lord, Lord McNally, and I have listened very closely to the compelling arguments that have been made. With the assurances that have been given to ensure that the matter is reviewed, I would be grateful if my noble friend Lord Marks and the noble Lord, Lord Beecham, would agree to withdraw the amendment.
Crime and Courts Bill [HL]
Lord Phillips of Sudbury Excerpts(11 years, 6 months ago)
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Lord Phillips of Sudbury
I am most grateful to my noble friend. Can he tell the Committee where that provision is to be found in the proposed schedule?
Lord Marks of Henley-on-Thames
It can be inferred from the fact that there is a proposal that the prosecuting authority has to go to a judge at the preliminary hearing to persuade the judge that the case is suitable for a DPA. If a prison sentence ought to be imposed on the person “P”, that agreement would not be forthcoming. That, I suggest, would be the effect of the proposal, although it may be necessary to make it clear by amendment; I appreciate that.
My second point is that the offences covered in Part 2 are economic and financial, and only financial and economic offences may be added to the list by delegated legislation. I wonder whether the restriction, not as to the legislation but as to the offences, is entirely justified. Environmental offences, for instance, seem appropriate. There are other random examples of offences contrary to regulation that might be suitable, such as offences against fishing regulations regarding net mesh sizes and permitted catches. Those may be examples, and there are many more. There are other regulatory provisions where DPAs might be appropriate. Perhaps it may be as well to let us see how DPAs work with the offences listed in the schedule at this point and then look to amend the legislation in the future. Certainly as a member of your Lordships’ Select Committee on Delegated Powers and Regulatory Reform, I see the difficulty of adding large numbers of offences to the list by delegated legislation, as the noble Lord, Lord Beecham, pointed out. However, I suspect that our early suspicions of DPAs will wane in practice and that they may become tools of wider use and greater utility than is now envisaged.
Lord Goldsmith
I am grateful for that. It makes sense because the questions I want to raise are very much in the nature of those put in a Second Reading debate. Let me explain first why I am broadly in favour of this approach. While I agree with a number of the points made by the noble Lord, Lord Marks of Henley-on-Thames, I think he missed the main point. The main point of DPAs is not so much to substitute a financial penalty or something of that kind for a conviction, it is to provide a mechanism to change behaviour. The critical point is to agree conditions which act as a carrot and a stick. If you go forward and you comply with conditions that change your behaviour, you will not find yourself being prosecuted and convicted. A classic example of this which is not in the field of economic crime—I want to come back to that point—would be disposals in relation to people who have been involved in drug offences. You want to find a way there of changing their behaviour in taking and dealing drugs. In some jurisdictions in the United States, that is done by having in effect a deferred prosecution agreement under which they agree some pretty tough conditions about how they deal with their drug problem, including treatment, regular testing and so forth. If they fail, they go back to court and are dealt with very heavily; if they succeed, it is very much to their benefit, and also of course to that of the public, that the problem is removed.
The idea of a deferred prosecution agreement, in my mind, is to change behaviour by having a carrot and a stick. Therefore, the conditions that the schedule provides may be entered into include conditions, for example, for future compliance—which is critical, it seems to me—by someone who is subject to a DPA of their business, because that is the way this is drafted at the moment. That is desirable. Indeed, I became of the view that something like this was necessary during the course of my time in office when I recognised that we did not have the ability under English law to say to somebody, “OK, you say you are contrite and that you are prepared to do all these things. That is very good and we will give you credit for it, but I am sorry—you are still going to be convicted. You will have a conviction, which means that when you come to take employment or apply for whatever it may be, you will have that against you”. I thought it was a tool that we ought to have to be able to avoid that. It plainly does not apply in every case—let me make that very clear—and many offences require very significant and severe penalties to be imposed. I am not a softie when it comes to any of that at all. However, I came to the view that we ought to have something of that sort.
We did not have it, although my noble friend Lord Beecham is right that we ended up, I think, with the Criminal Justice Act 2003. I may have got the Act wrong, as we did pass one or two Criminal Justice Acts in our time—noble Lords will forgive me if I cannot distinguish them all from each other with absolute precision. We provided for a conditional caution, which is different from a fixed penalty, as it was a caution with conditions attached; for example, to go on an anger management course, a drug or more likely drink treatment course. A prosecution did not take place at that time, but if the person did not comply with the conditions, they could be prosecuted and sentenced for the original offence. That idea is already in our system, although, as my noble friend has said, quoting my words, at the other end of the scale of offending. In principle, it is a good idea. We commissioned a review on fraud with the Chief Secretary to the Treasury in the belief that we did not deal adequately with economic crime in this country on a number of grounds. It came up with some recommendations, including something along these lines.
I will turn, with that degree of general Second Reading-type support, to the some of my questions. The first is the one raised by the noble Lord, Lord Marks, about whether it is right that this should be limited to companies or business organisations. There is a lot to be said for having this tool available in relation to individuals as well, and I have already given a couple of examples where that could be useful. I recognise that, as it stands, the proposal gives rise to the concern that this is just for business to buy its way out of prosecution. Actually, if this was a broader power, which was only applied appropriately, that concern would start to disappear. There are circumstances in which I believe individuals and the public would benefit from such a power. If one is limiting it to corporations and businesses, it is quite difficult to fully justify that. If this were restricted to offences such as those under Section 7 of the Bribery Act—where I think this will be used quite a lot—that do not involve what we would call a “guilty mind” on behalf of a corporation, in that it is an offence that it is guilty of despite a lack of intention to commit the offence, it might be justifiable. However, the offences that are included potentially include offences where the corporation or partnership would only be guilty if there was a guilty mind. I am not convinced and would like to hear more from the Minister as to why it is thought to be right.
Along with the noble Lord, Lord Marks of Henley-on-Thames, I am not convinced that it is right to limit the availability of this power to economic crime. He mentioned a number of areas. I cannot comment on the fishing side, as I am just a town boy and have never understood that side of things, but he is right about environmental issues, which are terribly serious, where sometimes you want to impose some form of regime that means that the business will operate in a much better way in the future, although you may have some penalty attached at that time as well. Health and safety is another area. I do not want to minimise health and safety offences, which are very important, but that is another area where businesses, and the public, might benefit from this sort of review. I invite the noble Lord to say a little more about why it is limited in this way. Is it because it is thought this might get it through this House and Parliament or are there other, more principled, reasons? It gives rise as it stands to the objections that my noble friend has raised.
I will raise some more specific points on paragraph 5. It is noted that a DPA, in the statement of facts, may include “admissions made” by the person who is subject to the order. This is unlike the conditional caution regime, which requires admission for it to operate. I assume that this is a deliberate decision by the Government so that DPAs can be imposed on people who are not admitting the offence at all. I do not object to that, as it may be quite a good way of dealing with certain situations where the prosecution are not sure that they can prove the case but someone is prepared to pay a penalty, pay compensation and change their behaviour for the future. However, I ask the noble Lord whether that is the intention behind this. Paragraph 5(3)—
Lord Phillips of Sudbury
Does the noble and learned Lord not think that if he pursues that line, it will enable the party that has entered into the DPA to get away even more with what they have done? I think I am right in saying that in the United States, with a plea bargain, they at least have to admit that there has been some wrongdoing. If they do not even have to admit that, the public relations impact of one of these DPAs will be even less that it will be anyhow.
Lord Goldsmith
The noble Lord may be right about that. I am asking the Minister a question about the thinking. One has to recognise that there are cases where the prosecution cannot actually prove the case, or it would be enormously expensive to do so, with uncertain prospects. I can see that there may be circumstances where getting a regime that for example secures compliance for the future may be worth while. However, that is only my speculation as to why “may” is there rather than “must”, which I would have expected based on the conditional cautions.
Paragraph 5(3)(e) talks about the implementation of a “compliance programme” and I would like the noble Lord to say something about what sort of compliance programmes the Government have in mind, and whether they would include, for example, the putting in place of monitors, and whether that is something that can be sufficiently dealt with by the words here or whether it needs some specific language. As regards paragraph 6 of the code on DPAs, is it intended, as my noble friend Lord Beecham asked, for the code to be placed before Parliament—as is the code for the crown prosecutors, if my recollection serves me right? I can see that Parliament would have an interest in that.
Paragraphs 7 and 8 would require the prosecutor to apply at different stages for declarations in certain terms that entering into a DPA is likely to be,
“ in the interests of justice”—
and that the proposed terms of the DPA—
“are fair and reasonable and proportionate”.
Is it necessary to ask a court to do that? Plainly, the court must be asked to approve the solution. However, I am not sure whether one should also ask the court to make declarations as to these matters. I would like to hear from the Minister as to the thinking behind that. As I understand it, under paragraph 8, the final hearing must be in public, whereas the preliminary application would be in private. I would be grateful for confirmation as to that.
Paragraph 11 deals with discontinuance of the DPA. I am probably missing it but I looked for a clear statement that if there is a finding of non-compliance by the court, that is likely to result in criminal proceedings being instituted. Finally, I, too, would welcome hearing what the proposals are in relation to addition to this schedule and the procedure that will be adopted.
I apologise for that quite long list. This is an important provision. It is a bit difficult to see how we are going to deal with it in a second Committee stage. I am looking forward with great interest to seeing whether the Minister is actually moving the whole of the schedule now so it goes into the Bill and we then apply to amend it, but I accept his assurances that if that is what happens, we will be able to apply to amend it hereafter.
Baroness Hamwee
My Lords, I admit that I have not read these provisions in whole more than once, but when I first read them I, too, thought that this smacked of plea bargaining. My reaction was—and perhaps I should be forced to face up to this—rather more xenophobic than I would really care to admit. Discussing the provisions at this early—perhaps too early—stage has led me to cross out an awful lot of what I might have mused aloud about. We almost need a seminar on this rather than a Second Reading.
My instinctive reaction was, as the noble Lord, Lord Beecham, has expressed, against being able to negotiate and pay one’s way out of trouble and conversely being tempted to acknowledge guilt for the wrong reasons. The foreword to the Government’s response to the consultation says that this will be,
“a more just and effective system”.
I am not sure what “just” means in this context. If it means anything, I think it means something about encouraging a change in behaviour, as the noble and learned Lord has said. Is it effective—as distinct from efficient? I can see that it is efficient but I wonder about effective. If it is effective, it will be effective in deterrence, reparation and so on, and that is my analysis of “just”. But perhaps none of this will matter when we get down to the detail.
The fact sheet that the Ministry of Justice has issued to accompany this says:
“A criminal prosecution will continue to be the most appropriate course of action where an organisation’s alleged wrongdoing is such that prosecution is the only real option”.
I am not sure where I see that in the provisions, except by implication.
I think my noble friend said that the code would be available to Parliament. I understand that such a code may not normally be appropriate for legislation of any type, or maybe not even for public consultation, but paragraph 6(1) says that the code will give guidance on,
“the general principles to be applied in determining whether a DPA is likely to be appropriate in a given case”.
That seems to be such a significant part of the code that it really ought to be in legislation.
Finally, on the requirements to which the noble and learned Lord, Lord Woolf, has referred, I will be interested to know, during the recommitment of these clauses, when it will be thought appropriate that a donation is made to charity and how one reaches that conclusion. There is a lot for us to disaggregate, analyse and understand in this schedule.
Lord Phillips of Sudbury
My Lords, I did not expect to be able to be here this afternoon. In many ways, I wish I was not, because I am afraid that I take a rather different view from anyone who has spoken so far—except the noble Lord, Lord Beecham. I sympathise with my noble friend the Minister because this is a really difficult area to address in terms of a change in the law, because plainly the present situation is utterly hopeless.
Following the staggering series of events of the past five years, with the collapse of the financial centres of the world, in particular the City, which has required £80 billion of taxpayers’ money to shore up a system that has, let us be frank, been deeply corrupted—a great deal of the failure of the markets was not through lack of prudential wisdom but through market manipulation and criminality of various kinds—not one single person has been prosecuted and put behind bars. I accept what my noble friend the Minister said in opening, that we need to do something, but what we need to do is not to compromise the basic principle of equality before the law—because that is what we are doing—it is to beef up, hugely, the prosecuting authorities in this country. We have played boys’ games with these matters until now.
I had a meeting with the previous head of the Serious Fraud Office and I think I am right in saying that there are a puny number of highly qualified lawyers there to deal with what are the most difficult forms of prosecution on earth. He told me that his entire team would be outmatched by the lawyers and accountants hired by a bank to face a would-be prosecution that the SFO was considering.
It is not right for us to contemplate this fundamentally unacceptable measure until and unless we have summoned the necessary political will to give the prosecuting authorities a chance of doing their job because, hitherto, we have not. I for one would be willing to see a tenfold or twentyfold increase in the necessary personnel, with the necessary increase in their remuneration. The noble Lord, Lord Beecham, was correct that the disparity in remuneration between the gentlemen and ladies in the Serious Fraud Office and the private sector is crazy. I would confront those difficulties and pay for their remedy. Were there effective prosecutions in this country, the fines that resulted from prosecutions of very large institutions for very large frauds would, I suspect, pay for the increase in the prosecuting resources many times over.
We have to be honest with ourselves and with the country over this. This is plea-bargaining. This is breaking the rule of equality before the law because it places huge, powerful, sophisticated companies engaged in premeditated and long-term fraud in a different position from that of a man or woman had up before the local magistrates for shoplifting. That is another form of economic crime. We are driving a coach and horses through the ancient and proper traditions of this country by giving privilege—that is what it boils down to—to the already rich and powerful. My noble friend said in opening that they are not “getting off lightly”. Well, I have to disabuse him: they are getting off extraordinarily lightly. To start with, there is no naming and shaming. When these matters are brought before the court for approval, there will not be facts there given that will hold up for public contempt the main architects of whatever fraud we are talking about. Least of all will there be prosecution and conviction, which will then of course strike very hard at the reception of that by the individuals who are prosecuted and convicted. Perhaps I may ask my noble friend this important question. Will this legislation prevent individual directors and executives of companies entering into a DPA being prosecuted afterwards for their part in the frauds concerned? If they are not susceptible to subsequent prosecution, that is a further failure of the proposed new regime.
This is a more important departure from the status quo than some may realise. This is pure realpolitik of a sort that it is not right for us to contemplate until— I repeat—we have tried giving prosecuting authorities the resources to deal with the offences being committed. As I have said, we are a million miles from that.
Lord McNally
My Lords, again, this has been an extremely useful exercise. I am glad that we have done it in a way which has allowed this Second Reading-style debate. My noble friend Lord Phillips said that he wished that he was not here. I sometimes share his ambitions in that regard.
My noble friend demanded 10 times the budget and 20 times the personnel for the Serious Fraud Office, with an increase in their remuneration. I say with no sense of arrogance that that is the difference between making speeches up there and making them down here. It would be very easy to say, “Oh, well, we’re going spend all this money”, but the reality is—
Lord Phillips of Sudbury
My noble friend does not do my argument justice. I was saying that if the Serious Fraud Office did that, and if prosecutions were brought and convictions obtained, the fines that resulted would cover those costs. A couple of years ago in New York, KMPG was fined $450 million on a plea bargain. That would pay for a lot of people.
Lord McNally
Yes, I did hear the tail end of my noble friend’s argument where he said that it would all be self-financing, which is always another dangerous thing to say in government.
But, yes, I agree. As the noble and learned Lord, Lord Goldsmith, indicated, it has been the ambition of successive Governments to nail down the problem of white collar crime. If they have not done so, it has not been for want of trying. This is obviously a toe-dipping exercise. The noble Baroness, Lady Hamwee, said that we really needed a seminar. I had the benefit of a seminar at an early stage of the process, because Sir Edward Garnier, when he was Solicitor-General, was the first to try to convince me of the usefulness of deferred prosecution agreements. They are, I freely confess, a very pragmatic approach to the problem. It is not as pure an approach as that for which the noble Lord, Lord Phillips, very powerfully argued, but it seems to me to offer real results. As has been pointed by a number of speakers, it is not entirely new to English law in that there are some parallels with environmental legislation and the 2003 legislation to which the noble and learned Lord, Lord Goldsmith, referred.
This is a test to see what kind of results we can get from this approach, with an opportunity perhaps to extend it later. I heard what was said by the noble and learned Lords, Lord Woolf and Lord Goldsmith, and the noble Lords, Lord Beecham and Lord Marks, about individuals as well as companies. We decided not to take it that far. The noble and learned Lord, Lord Woolf, said that we should look again and I am sure that an appropriate amendment will be tabled for the second part of this Committee stage that allows me to address the Government’s concerns about taking it more widely at that point. At the moment, the Government’s view is that this is a prudent move in the direction of seeing whether deferred prosecution agreements can work effectively, and if they do, they would then, as the noble Lord, Lord Marks, said, start to find their way into our system more easily. I fully agree with the noble and learned Lord, Lord Goldsmith, that it would not just be a matter of patching up previous behaviour but of making sure that there was, as part of any agreement, monitored good behaviour for the future.
Defamation Bill
Lord Phillips of Sudbury Excerpts(11 years, 7 months ago)
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Lord Phillips of Sudbury
My Lords, to be the 13th speaker in this distinguished list is not the best of positions but I promise to try to avoid repeating what others have so eloquently said. I think I may be the only solicitor speaking in this Second Reading debate, which is perhaps surprising but it does give me a particular view of the issues in hand because for a number of years part of my practice was defamation work. Indeed, I am happy to report that I managed to sustain the reputation and the bank balances of four of my former leaders in the course of that time.
I absolutely take on board what a fiendishly difficult topic this is to deal with and how the great clash between the freedom of speech of the press on the one hand and the right of any man and woman to have his or her reputation reasonably sustained on the other is exceedingly difficult to resolve. I hope noble Lords will not mind my saying that many who have contributed their thoughts to this debate seem to me to have overstretched the first principle at the expense of the latter. For the life of me I cannot see how the freedom of the press can be exercised at the expense of the freedom of any man or woman to have his or her reputation maintained—if you like, at the expense of honest and responsible reporting and speech. Trying to bridge those two is, as we all know and are finding today, very difficult. But I, like others, support 90% of this Bill very strongly. I have a considerable number of detailed points but I will not burden the House with them tonight; I will raise them at the appropriate time in Committee.
I thank the many contributors, not just in this debate but the many outside organisations. There is a panel of libertarians called the Libel Reform Campaign which has done great and important work. The fact that I do not agree with all of its outcomes is neither here nor there. I also thank my noble friend Lord Lester, the Minister and the shadow Minister for the way in which they have dealt with this matter. It is a great credit to the House that we have in our ranks such an extraordinary array of extraordinary experience which will stand us in good stead as we go along. I declare an interest, as I have already said, as a solicitor. My firm, Bates, Wells & Braithwaite, still does a lot of libel law work, although I have not been in that field for 10 or 15 years. I will also say in the light of the remarks I am about to make that I was for 10 years a member of the Scott Trust and am wholly apprised of the difficulties the press face. I heard particularly what the noble Viscount, Lord Colville, said about the BBC and the way that it is inundated with futile but expensive claims.
There is a David and Goliath aspect in libel in my experience. I have mainly acted for individual claimants and theirs is an infinitely more frightening position than is that of the media outlet which they are suing or being sued by. Some of the contributors today have not really understood just how formidable it is to pursue a libel claim. I have to say from hard experience that the number of claims that I have seen dropped—good claims by good people against bad journalism—grieves my heart. One of the unresolved dilemmas for us all, which I do not think we have come near resolving because I do not know that there is a resolution for it, is the sheer cost factor. I happen to believe that the LASPO reforms were necessary to preserve the integrity of the process and the profession but I readily accept that this is the most expensive field in which to get engaged as a litigant on either side, and if we can come up with some thoughts on that I would be delighted. At the moment I do not see them, except the vital point made by a number of Peers in this debate about simplifying, speeding up and consensualising as far as possible the preliminary stages in libel claims. I believe that we can hope to achieve a much better resolution than we currently do under this extremely classic system which lumbers along at an extraordinarily steady amble at an amazingly high cost.
I want to say a few words before finishing on Clause 5 which deals with operators of websites. Quite a number of pressure groups and interest groups which contributed to all of us prior to this debate are anxious about the terms of Clause 5. Indeed, the website operators themselves are, not surprisingly, extremely miffed about some of its provisions. I happen to think that it is one of the most important provisions in the Bill because it gives the individual who has been defamed on a website a chance of getting some solace—some satisfaction. The clause requires the operator of a website to reveal to the claimant the identity of the person who posted the defamatory statement. That is an immensely important requirement. Without the internet operator being able to do that, he or she will lose the defence given them by Clause 5 against the claimant.
I have to tell noble Lords that I spoke last week with one of my colleagues in the office regarding the cost of getting from internet operators the particulars to enable the claimant who has been grotesquely libelled to get at the person who made the statement and obtain an apology, a retraction and, in certain circumstances, damages. The difficulties of doing that are almost impossible to exaggerate. It is not just a steeplechase; it is in some cases like climbing Everest. It takes years because, just as you obtain a court order that requires the internet service provider to reveal the particulars of the person who has made the defamatory comments, you find that the particulars given are not sufficient. You need a further court order and a further order. Spending £10,000 or £15,000 getting to the identity of the person is not uncommon. That is ludicrous and unfair.
I should like briefly to touch on two points in Clause 5, because it should be strengthened. First, Clause 5(2) states:
“It is a defence for the operator to show that it was not the operator who posted the statement”,
on the website. That is insufficiently sophisticated because it would be possible in some circumstances for the internet operator to be complicit with the person, who may be a foreign company, putting the libellous material on the web without being caught by subsection (3)(a). That needs to be changed.
The other thing that is plainly wrong, and to which my noble friend Lord Lester and the noble Lord, Lord Browne, referred, is that regulations under Clause 5, which are important and provide a lot of the pith and bone of this part of the Bill, are to be made by the negative annulment procedure. That is not adequate. I note, surprisingly and sadly, that our own Delegated Powers and Regulatory Reform Committee said that it thought that that procedure was all right because the clause is detailed, difficult and so on. The complexity and detail made it inappropriate for us to deal with under the positive procedure. That seems to me to be a good argument the other way. In any event, really important matters are left for regulations. For example, one of the elements of defence for the operator is that,
“the operator failed to respond to the notice of complaint in accordance with any provision contained in the regulations”.
Noble Lords can see there that what the regulations will allow is absolutely crucial to the nature and strength of the two parties who are arguing over whether or not the operator of the website is or is not liable for defamation.
Lastly, is it not odd that a local newspaper should be liable for libel in respect of a defamatory letter written to it, yet if someone posts an anonymous statement on a website that goes international, where the potential damage to an individual can be vast, that is said to be less important than your little local newspaper? There is a double standard at work. I understand that people like to keep the web free and open and so on, and no one stands up for free speech more than I, but we have to have a better balance than that. Given the grievous damage that can be done to an individual, which it is never entirely possible to erase, even if you obtain apologies and the rest, we have not only to stand by Clause 5 but to make it stronger.