Defamation Bill

Lord Prescott Excerpts

Tuesday 5th February 2013 Lords Chamber

[Lord Phillips of Sudbury]

My Lords, I rise to point out a bit of a car crash in Amendment 20 and Clause 10 in the light of Amendment 17, in which the Government, to the approbation of the House, introduced the issue of malice. If the operator of a website was actuated by malice, it will deprive him of his defence. That is no longer consistent with the provisions in Clause 10(1), because in effect it says that you cannot sue,

“unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher”.

So far this evening, the noble Lord, Lord Browne, has discussed Clause 10 and his Amendment 20 exclusively in terms of booksellers, but it applies equally to website operators. It will completely undo the introduction of the issue of malice into Clause 5 if Clause 10 allows an operator to avoid being sued for having allowed something to be posted with malice on the part of the operator if, in the language of Clause 10(1), it is reasonably practicable to sue the author, editor or publisher. I apologise for not having picked this up earlier, but we need to do something about it. It also infects Amendment 20, where the same issue prevails.

I have a second issue. I am sorry to have to object to this amendment, but in proposed paragraph (c) in Amendment 20, there is a “not” in the first line that should not be there. As worded, it would mean that a court would not have jurisdiction to hear a complaint unless, among other things, it was satisfied that the bookseller,

“did not know that the statement was defamatory”,

et cetera. The point surely must be that the bookseller did know that the statement was defamatory. I do not quite know what we do at this time of night on Report, but if I am correct, and I have a horrible feeling that I am, it undermines both the amendment and the present state of Clause 10.

[Lord Prescott]

My Lords, I agree with the amendments put forward by my noble friend Lord Browne. The noble Lord, Lord Phillips, has made a point about the confusion between the interpretation on the websites and in this amendment with regard to books. This is about whether the statement is known to be defamatory. I want to raise an unusual matter; I believe this House made a defamatory statement in the very committee that was set up to review the situation.

Noble Lords will know of the Joint Committee on Privacy and Injunctions. In pre-legislative scrutiny, it took evidence from a Mr Burby on super-injunctions. His first piece of evidence was entirely about super-injunctions, which anyone could give. His supplementary evidence was about himself. The courts had told him, after his acts of blackmail and harassment, that under the injunction he could not make any of these statements publicly. So he came along to the Joint Committee and gave the evidence at a meeting chaired by Mr Whittingdale. In his supplementary evidence, he repeated all the things that the court had told him he was under an injunction not to say anything about. He repeated evidence about the allegations and the whole case which the courts were considering.

The lawyers of the lady who was the subject of these charges objected to his evidence. I am most concerned that not only did he repeat them as evidence but that the Daily Telegraph, true to form, then printed them, arguing that they were covered by parliamentary privilege. Simply because he had given evidence to the Joint Committee, he claimed parliamentary privilege.

In the other place, normally if a case is under way it is considered by the Speaker to be sub judice and cannot be discussed, so there is no conflict between the court and Parliament. In this case, the lawyers of the lady concerned complained to the Joint Committee, which chose to go ahead and publish, again arguing parliamentary privilege. I was concerned about this and asked the Clerk of the Parliaments how this could happen. I asked him why it is not ruled that the committee publishing evidence on its website, citing all those things which the court has told the witness he cannot say, is able to say that the injunction does not matter because we are the ones who make the decision here. That evidence is still being published today. It is on a website now in the name of this House, and it repeats all the things that the court said could not be printed.

This raises a number of issues. When I approached David Beamish, the Clerk of the Parliaments, he said, “Oh, well, it is very difficult, but you can discuss it when the report comes to this House”. Well, the report did not come to this House. While the other place had a chance to discuss it, we did not, simply because the Easter holidays came along, or whatever it was. I was told I could discuss it when we came back. The House of Commons quickly moved on to Second Reading, so I was denied the opportunity of raising this important issue here as the Clerk of Parliaments had suggested.

Now we have the Bill here. Because I am in the Council of Europe, I am unable to take on the obligations to go to the committee all the time. I think the House will understand that, but that means that the matter must be raised here.

This raises some pretty fundamental issues. In the other place, it is certainly the convention that if you discuss an issue that is under an injunction, it is considered sub judice. The Speaker will intervene and say that you cannot discuss it, although that has been breached a few times; a Member of Parliament from Leeds made the point about the footballer and the super-injunction.

The issue here is a discussion by the Joint Committee about super-injunctions. The allegations that Mr Burby repeated were not subject to a super-injunction, although he alleged that they were. The courts have since made clear that there was no super-injunction. It was simply an injunction, which basically means that it was not relevant to the Joint Committee’s inquiry but the committee chose to ignore that. Mr Whittingdale in his statement says again that it was a super-injunction. I am afraid that the courts have made clear that it was not, so it really is not right for us to publish evidence that continues to be available on a website—I even have a copy of it today—making all these claims which the courts have said should not be repeated.

I say to the Minister that clearly somebody needs to sort this out. It is a difficult problem, and something that is increasingly breached. MPs decide to get a bit of publicity, because that it what it is about, and name somebody before the Speaker can stop them. I do not know what the position is in the House of Lords, but it is clearly an issue.

Finally, I would like to see that evidence, which is being published in our name, removed. That act of publication is breaching the injunction that has been laid down, and Parliament does it with a certain amount of contempt. I hope that the Minister might look into this matter and find out what the circumstances are. Perhaps he could let me know if he is satisfied or whether it is under review. I bring it to the attention of this House on this occasion, and I am sorry to burden your Lordships with it so late in the night.

[Lord McNally]

Perhaps I may try to deal immediately with the intervention of the noble Lord, Lord Prescott. I am not quite clear which committee received this evidence.

[Lord Prescott]

It was the Joint Committee on Privacy and Injunctions chaired by Mr Whittingdale.

[Lord McNally]

The noble Lord will know that we recently set up a Joint Committee on Parliamentary Privilege. To a certain extent, I am flying blind but I certainly think that his point should be drawn to the attention of that committee. I am a member of the Privileges Committee of this House and I will draw his remarks to that committee’s attention as well. It is a very difficult area. As he said, we have had one or two examples of honourable Members and noble Lords pushing the envelope as regards parliamentary privilege, which is one of the reasons why the Joint Committee was set up. I believe that this is the first example of a member of the public abusing it in that way. The noble Lord’s remarks certainly should be looked at by both committees.

As regards the eagle eye of the noble Lord, Lord Phillips, and possible contradictions, perhaps I may consult the parliamentary draftsmen on whether he is right. We still have time before Third Reading to iron out any wrinkles that he or others have spotted.

On the central issue raised by the noble Lord, Lord Browne, I will try again to see whether he is any more satisfied. As he explained, the amendment is at least in part an attempt to codify the defence of innocent dissemination. We explained in Committee, and previously in the other place, the Government’s concern about a provision such as this, which requires the court, as part of an assessment on jurisdiction, to assess at least to some extent the merits of the case before it. We think that such an approach has the potential to be unnecessarily confusing.

However, I will focus my response on the substantive issue at hand here—the defence of innocent dissemination. We have acknowledged the debate that exists over the terms of Section 1 of the 1996 Act and how this compares to the common law defence. During the Committee stage the noble Lord, Lord Browne, asked me to be “more courageous” in articulating how the Government saw Section 1 and the common law interrelating. When this House was considering what became Section 1 of the 1996 Act in Committee, my noble and learned friend Lord Mackay of Clashfern, the Lord Chancellor at the time, indicated that the Act would “supersede” and “replace and modernise” the existing law. There was debate at the time as to quite what the test for innocent dissemination was and whether Section 1 properly captured it. The Government of the day took the view that it did but the debate continues.

Under Section 1, a secondary publisher is at risk of liability once it is put on notice that a statement is defamatory. It is argued that, at common law, the secondary publisher retains the innocent dissemination defence provided it honestly and reasonably believes that a defence is available in respect of that publication. Carter-Ruck on Libel and Privacy describes the Section 1 defence as generally being more generous to secondary publishers. On this issue, however, it suggests that while the position is not without doubt, the better view is that the Section 1 defence is more easily lost than innocent dissemination at common law. Gatley on Libel and Slander takes the view that it is “possible” that the statutory defence is narrower than the common law in this respect.

The Government’s view is that it is right to say that Section 1 has, in effect, superseded the common law defence of innocent dissemination. As I have tried to illustrate, the position at common law prior to the 1996 Act was not as clear as certain lobby groups would like to suggest. We could have explored the option of extending the Section 1 defence but, as with Clause 5, the Government have taken the view that the better approach is to remove the secondary publisher from the process.

We believe that the approach that we have adopted in Clause 10 will provide effective additional protection for secondary publishers such as booksellers. It is consistent with the approach that we have taken elsewhere in the Bill in that the focus is on directing the claimant towards those who are actually responsible for the defamatory material. In the unlikely event that it is not reasonably practicable to sue the author, editor or publisher, Clause 10 allows a claimant to bring an action against a secondary publisher such as a bookseller. However, nothing in the clause would then prevent that bookseller from deploying any defences that may be available to him. We believe that this is a proportionate approach that is fair to all those concerned.

I will say in addition that in my discussions and evidence regarding the point that the noble Lord, Lord Browne, made about the intimidation of booksellers, the sending of a letter on high-quality, posh paper represents a kind of bullying. I hope that this clause and what I have said will give booksellers the protection to resist that and that they can use the protections in the Bill against such intimidation. I have tried to be as candid and clear as I can to the noble Lord about our approach to this. Whether it is courageous enough, I do not know.

Prisoners: Voting Rights

Lord Prescott Excerpts

Thursday 22nd November 2012 Lords Chamber

[Lord Prescott]

My Lords, I welcome the Statement as it offers a number of options. You can accept the changes and, therefore, observe the rights of the convention; or, if you refuse, you can leave it. To reject and leave the convention would be a proper exercise of parliamentary democracy. Is the Minister aware that I am a member of the human rights committee in the Council of Europe? That committee has received reports of many abuses of human rights, particularly in eastern European countries. I was sent to release 130 people from an Armenian jail, who had been accused of threats to the state simply by holding a public protest. I was able to get them out of jail because I was able to argue that Armenia is in breach of human rights. However, having listened to them, I know that they would like parliamentary sovereignty to overrule the human rights convention and they are watching Britain to see whether we do this.

[Lord McNally]

My Lords, I am aware of the service of the noble Lord, Lord Prescott, not only on the human rights committee, but more generally, to the Council of Europe. That council and its membership is something of which Britain has, rightly, been proud. His illustration is a perfect follow-up to what the noble Lord, Lord Dubs, referred to. I hope that the committee and the other place, when they weigh in the balance the various competing issues, take full account of the fact that we might seem to be setting a precedent whereby it is optional whether one complies with the convention and the court. There are those on whom we have previously been able to exert pressure where that pressure will be the less because we have provided them with a precedent. It is not a complete and convincing argument but it is one that should be put into the mix for careful consideration.

Leveson Inquiry

Lord Prescott Excerpts

Wednesday 25th April 2012 Lords Chamber

[Lord Puttnam]

My Lords—

[Lord Prescott]

My Lords—

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

Perhaps we may hear from the noble Lord, Lord Puttnam, first.

[Lord Prescott]

Why is that?

[Lord Puttnam]

My Lords, while entirely agreeing with the noble Lord, Lord Fowler, that the situation must change, many of us worked in this Chamber for two years on the Enterprise Act 2002 and the Communications Act 2003 to ensure that no Secretary of State was ever placed in the position in which Jeremy Hunt placed himself. We thought that we had achieved that. I agree with the noble Lord, Lord Fowler, that we need to find another way forward.

However, I have a greater concern that I will put to the noble Baroness. On 9 July 2009, David Cameron, who was then the Leader of the Opposition, made a speech that became known as the “bonfire of the quangos” speech. He mentioned only two quangos but picked out Ofcom as one that needed to be trimmed back and to have its powers curtailed. I do not think that there is anyone in this Chamber or in the other place at the moment who would suggest that this is a moment for Ofcom’s powers to be curtailed. Three months later, the Sun came out in support of the Conservative Party. Was this a coincidence, and could politicians of all parties think twice before they start talking about reducing the power of regulators and regulation?

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Prescott Excerpts

Tuesday 27th March 2012 Lords Chamber

Moved by

[Lord Prescott]

25: Clause 46, page 33, line 18, at end insert—
“( ) The amendments made by subsections (2) and (4) do not apply in relation to proceedings that include a claim for damages or other relief in relation to—
(a) interference with personal information or breach of privacy; or(b) defamation.”

[Lord Prescott]

My Lords, Amendment 25 stands in my name and in the names of my noble friend Lord Bach and the noble Baroness, Lady O’Neil of Bengarve.

This is a simple but important issue. However, I do not want to delay the House, as we have had a number of debates on these matters. The amendments in this group would retain the recovery of success fees and “after the event” insurance premiums from the losing side in privacy and defamation cases. The Bill removes these costs and puts them on to the complainant, and I consider that to be fundamentally wrong, particularly in view of what we have seen of late in the way of actions by the press.

It is argued that such recovery of fees may prevent defendants—normally powerful and wealthy people in the media, and in this case the press—defending themselves against a complaint of breach of privacy. I understand that point but I would give more weight to an individual complainant who had suffered breach of privacy from the media or the press. The absence of conditional fee arrangements will prevent the complainant with no personal financial resources seeking legal redress in a case of breach of privacy. Indeed, in this type of case the defendant and complainant are not on an equal footing, and we have to take that into account.

I have benefited from the current no-win no-fee arrangement in pursuing my case against the Murdoch press and the Metropolitan Police. I would not have been able to pursue that case without such an arrangement because, quite simply, I would not have been able to afford it. This Bill strengthens the media’s case by reducing their costs, even if they are found guilty and damages are awarded against them. However, not only does it reduce their costs but it transfers the costs to the successful complainant. However one looks at it, it is not justice for the person who wins the case to be penalised by further costs.

Perhaps I may take my case as an example, although this is not just about me; it would apply to most people in the same situation. The average level of damages awarded in these cases is approximately £40,000. So, in my own case, £40,000 was awarded in damages, there were £40,000 of costs on my side and £40,000 of costs on the media’s side. Put together, that is a considerable cost to be carried by the complainant. However, added to that is the success fee, which is compensation for lawyers taking on difficult cases. In a case such as mine, the success fee would be carried by the people who lost the case. The other type of cost is insurance. If you are going to gamble on winning a case, you have to take out insurance so that it is the insurer and not you who pays the costs. Those success fees and insurance costs are now to be transferred in some form to the side that wins the case, so in a case like mine the damages would not completely cover the costs.

If there has clearly been a serious breach—in my case, it was phone hacking, criminal acts and all the things that we are aware of from the Leveson inquiry—it cannot be right for the complainant who has suffered from those acts to be poorer. More importantly, it cannot be right that the press should have their costs reduced. I understand that it is a heavy cost but that is part of the penalty. The situation is almost like that of the polluter pays. You should think very carefully before you say some of the things that you say and you should not carry out what are clearly criminal acts. If you commit the offence, you pay the price of legal action against you, and the current no-win no-costs arrangement allows many people to sue in such a situation.

The Government are shifting the balance of payments and costs on to the complainant, even when the complainant is found innocent and the defendant is found guilty. I do not think that that is right. I have tried to think of the Government’s reasons for doing this. In some of the debates it has been argued that it is down to the cost to the public, but no evidence has been given for that. What is the cost to the taxpayer? I agree that there are probably heavy legal costs and I have referred to some of them, but if you want to do something about that there are plenty of regulations and powers that can be used. It could be argued that in some cases that is what is happening now. The burden should not be put on those who make the complaint. The defendant in this case should carry the full costs.

Then one wonders who is demanding this change. Clearly, the Government agree with it but who is pressing the Government? The answer is: a very powerful body of media. I know that because they tried to get the previous Labour Government to make this change in the law but they would not agree to it as they thought it was unfair. I see a look of puzzlement on the Minister’s face. Jack Straw may have felt that there was something in it but there was no government decision on it. I leave it at that—we refused to go along with it. However, when this Government came in, I do not know whether it was at a dinner at No. 10 but they obviously got together with some very powerful people and said, “Right, we’re going to do this for you”. It is clear that they want this change and I have given some of the reasons. The innocent parties who have suffered from breach of privacy or phone hacking are not calling for these changes. To be frank, they could not have taken up their cases without the no-win no-fee arrangement. The only people who seem to have argued powerfully for it are the media, and I am not just talking about the red tops or Murdoch. I have referred before in this Chamber to a survey of all the media—the press and television—in which they said unanimously that they wanted their costs to be cut. They did not argue that those costs should be transferred to the claimant; they just wanted their costs cut, and they were unanimous in that.

The people who have certainly not asked for this change are the McCanns, the Dowlers or Mr Jefferies. They sent a letter to the Prime Minister asking him not to do this as it would disadvantage people like themselves who had been injured by the actions of the press. We should take that into account. I noticed that in the Naomi Campbell case, curiously, the British press argued that a change should be made to human rights law. That is not usually their line on human rights but in this case they claimed that their human rights had been damaged by Naomi Campbell. She is a very rich lady and could certainly afford to bring a case. However, that is not the norm. We have to think of people such as the McCanns and the Dowlers, who have been greatly affected, as has become clear from the Leveson inquiry.

The issue is clear; it is about justice. On which side will we apportion the change? Where does the balance lie between the strong and the weak? That is what we do all the time in legislation. This loads it against the weak in favour of the powerful, which is fundamentally wrong. This legislative framework does not follow what we normally try to do. The Minister is talking about whether this can be put into the Defamation Bill. If it is right to put it in that Bill, why wait? I fear that when the Defamation Bill is debated it will be all about defamation costs but there will be very little about privacy breaches, which is what the amendment is concerned with. If the Minister wants to leave the defamation issue, he should leave it to the Defamation Bill, but if the issue is important, he should do it now and change it, or at the very least send it to the other place to consider it further. To duck behind the Defamation Bill and say that it will be dealt with then is frankly not giving the issue the justice that it is entitled to. I am saying that we should side with the weak in this case, not the powerful. Let us have justice. That is what this place is about.

--- Later in debate ---

[Lord McNally]

That is precisely what I am saying. I have not brought this Bill this far to score such an enormous own goal. Noble Lords, particularly those who have been in government, know full well how these processes are carried forward. Nothing will happen that will not be fully and thoroughly debated in both Houses of Parliament. I know that various groups have been briefing and arguing for action now. I do not think that these amendments carry us forward in any way.

I give noble Lords as full an assurance as I can. Bills have to go through Cabinets and Cabinet committees, et cetera, but they also have to go through two Houses of Parliament, where this issue is extremely live. I cannot imagine that the kind of issues that the noble Lord, Lord Prescott, has raised tonight will not be dealt with fully in that Defamation Bill. With that, I urge the noble Lord to withdraw his amendment.

[Lord Prescott]

I certainly do not withdraw the amendment and I hope that the House will vote on it.

Legal Aid: Social Welfare Law

Lord Prescott Excerpts

Monday 5th March 2012 Lords Chamber

[Lord McNally]

My Lords, the Government get a wide range of advice, and The Spirit Level does make a strong case for the linkage between inequalities, poverty and criminality. Nevertheless, as I have said quite often from the Dispatch Box, poverty and criminality are not inevitable—people do have a choice. The range of measures that the Government are taking is aimed at dealing with some of the unfairnesses in our society and giving people a proper and rational choice in how they lead their lives.

[Lord Prescott]

My Lords, does the Minister accept that the massive cuts in police resources and manpower are to be replaced by privatised security companies that will do the work of constables but with private personnel? Does he accept that this is more than an operational matter to be discussed with ACPO—that it requires discussion with this House and, indeed, with the community? Does he agree that the elections to be held in November for police and crime commissioners were specifically intended to serve as the voice of the community? The Government are rushing forward this decision before November and denying the people a say in this fundamental change in our police forces.

[Lord McNally]

No, my Lords: the police forces can look at outsourcing various parts of the service but they cannot outsource the fundamental responsibility of the police, which will remain a public service. I note that the noble Lord, Lord Blair, said in today’s Guardian that police need to modernise their budgets and reduce unit costs. I am sure that the police commissioner for Hull will have that high in his or her priorities when he or she is elected.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Prescott Excerpts

Monday 30th January 2012 Lords Chamber

[Lord Lester of Herne Hill]

I shall just say something about Amendment 124 in relation to defamation and privacy. This could take hours of a separate debate, but I am going to try to be extremely brief. As the noble Lord, Lord Bach, has indicated, this has to be seen in the context of a defamation Bill that has not yet been published. We have had my Private Member's Bill, a government draft Bill and consultation, and I hope very much that there will be an actual Bill in the Queen’s Speech in the next Session.

I suggest that it is perhaps not appropriate to be moving amendments at this stage so far as costs and insurance are concerned until one knows the substance of the actual defamation Bill. I take it—and the my noble friend the Minister will slap me down if I say something that he strongly disagrees with—to be one of the objects of the reform of defamation law to secure a fair balance between the rights of claimants and the rights of defendants; and between the fundamental right of claimants to vindicate their reputation and their right to personal privacy on the one hand and the right of defendants to freedom of expression on the other. Claimants, so far as libel is concerned, have tended to be the rich and the wealthy, not always, but mainly. The rich and the wealthy, whose lawyers are also rich and wealthy, have abused their power in the past, as the previous Justice Secretary, the right honourable Jack Straw, recognised when he introduced his proposals about capping success fees and conditional fee agreements in this area. They have abused their power by running up enormous legal costs, even in cases where there was no real defence, with the result that the defendant, normally a regional or national newspaper, was faced with a situation where the damages might be £20,000, but the legal costs might be £250,000. It was that abuse that led the European Court of Human Rights in the Mirror Group case to indicate that that had a serious and unnecessary chilling effect on the freedom of speech of publishers. I emphasise that.

The second thing I want to emphasise is that just as claimants have tended to be rich and powerful, although one wishes that the poor would also be able to vindicate their reputations, defendants are not always rich and powerful national newspapers. They may be the citizen critic accusing a public authority of abusing its power, an NGO or a small regional newspaper with very little funds to meet legal costs. I take it to be an objective of the defamation Bill to reduce the costs of litigation and to discourage litigation in the area of reputation and privacy by encouraging the use of lower courts, say county courts, not just the High Court, focusing on alternative dispute resolution and finding ways of securing equality of arms, to use the European phrase, between the parties where there is inequality of arms at the moment. All that needs to be tackled in the context of a future defamation Bill, when we can look at procedures and costs in relation to those reforms which must be designed to secure a fair balance, not a charter for rich newspapers or rich claimants. I think that until we know the Government’s final thinking on this and are able to debate it, it is premature to try to adjust the costs and insurance provisions of this Bill in order to try to tackle the kind of issues that I have inadequately summarised.

[Lord Prescott]

My Lords, I apologise for missing the first few minutes of this debate. The debate I listened to earlier on Clause 43 showed that there is a great deal of feeling about an injustice being perpetrated here in all forms of the use of no win, no cost. I have been in an interesting situation that I would like to relate to noble Lords as an example of what can happen under these new changes.

At Second Reading, I made it clear that I thought this Bill moved power and resources to the wealthy and more powerful and away from the individual, and that the individual was going to be the victim because they were seeking legal redress. These amendments will make it much more difficult to achieve that. It is really about strengthening the more powerful in our society, particularly in regard to individuals and the press. The evidence is clear in the many examples. They do this by changing the rules of no win, no cost under the 1999 Act and other legislation. Under this Bill, the cost of the insurance to take out these cases and, indeed, the changes in the risk payments, will transfer not from the loser, but from the one who has won the case. If you win the case, you are still going to pay a penalty.

In looking at the circumstances—and I shall refer to my court case on telephone hacking—one can see the fundamental difference. I am talking about individuals who see their rights being breached by the media. For example, under the system we have at the moment, I was awarded £40,000 damages. My solicitor’s costs were about £80,000. That means that I got £40,000, my solicitor got £80,000 and the insurance and the risk were included in that. What we are proposing now is to limit the amount of money paid to lawyers for the risk factor—I shall not go into all the arguments that have been made here—which is how they secure more money to take on more risky cases for more people to get access under this no win, no cost situation.

In my mind, that is straightforward. The damages come to me, they are mine. The lawyers get their full costs. Who carries all these costs? The people who lost the case, the ones who have been phone hacking, who have been breaking the law, which we are all aware of, and who have even been paying the police. In those circumstances, why should they not pay the full penalty? I understand that they quote the Mirror Group case at the European Court of Human Rights. In that case, the costs were high. Why? It has always been the practice of the press to fight until the last minute. If anybody wishes to pursue them with no-win no-fee, they say, “Sue us”. You may well have a case, but they will make you sell your house and everything else before you have sufficient resources. At the end, when you have done all that, they say, “Okay. We’ll concede the case”, and they will offer you some kind of damages. That is the pressure that puts costs up in the courts in these cases.

What would have been the effect if I had pursued my case under these new rules? Believe me, this press is not going to go away; it is still going to be committing the same offences. We have a PCC that is particularly useless and will continue to be unless we make fundamental changes. Anyone listening to the Leveson inquiry must hear that the press has not changed its mind; it is still going to go ahead and do the same things because that is how it sells newspapers. Let us assume I have a complaint of a similar nature against the press. This would mean that I would have to get a no-win no-fee situation. Given that they have already reduced the risk costs, it is highly unlikely that they may find this a risky situation. In fact, when I was complaining in this House and elsewhere about what the press was doing about phone hacking and about Murdoch, I was almost a lonely voice.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Prescott Excerpts

Tuesday 20th December 2011 Lords Chamber

[Lord McNally]

Thank you, Cambridge. This is the value of the House of Lords—there is always an expert around to help you. Queens’ College, Cambridge, comes to my aid.

[Lord Prescott]

The noble Lord would not have made that mistake if he had not been reading it out.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Prescott Excerpts

Monday 21st November 2011 Lords Chamber

[Lord Prescott]

My Lords, I cannot declare an interest or experience as a barrister, a lawyer, a solicitor or, indeed, a judge, but I can declare some experience from my seafaring days when the ship owners used to call me a barrack room lawyer. I did not have legal aid, but a bit of industrial muscle helped. Perhaps I can just declare one interest. I am presently, after the comments made by the noble Lord, Lord Martin, involved in a no-win no-fee situation with the Metropolitan Police. Indeed, I concur with what the noble Lord has said. If you try to get justice for an offence committed by the press, they just ignore you or say, “We’ll sue you”, and you have to think about whether you will take on a no-win no-fee case. I identify with those circumstances.

I want to concentrate my remarks on what people have criticised about the Bill, which is that it is about cutting costs and money. Indeed, everybody admits that. But the people who are carrying the burden are the most vulnerable in our society, and that too is agreed across all the Benches. However, I disagree with it. I shall address my comments to the biggest interest group in this country—namely, our press. They are the ones that have real influence. They are the ones that have committed most of the injustices against individuals. They are the ones that can claim to do whatever they like in the name of the public interest, usually at the cost of the private individual’s interests and rights. I shall therefore concentrate on Part 2, which deals with litigation.

It has been said that many more cases are taken on under conditional agreements. Naturally so, and many have been won that way. Why is that? It is because people could not afford to take on the press before, who in contempt would not make any kind of apology. By the way, if you did get an apology, it was usually printed on page 25, even if you had probably been given the front page, as they often did with me. But eventually, when you win the case for an apology—by the way, they do not use the word “apology”; they say “correction”—basically it is put on the back pages. They are in contempt of justice for the individual. We therefore now have an opportunity to take into account how this Bill affects this area.

What offends me most about the Bill is that it strengthens the most powerful group against the vulnerable individual. The press have the money, the lawyers and the influence, and they use all that effectively against the individual. What this Bill seeks to do is strengthen that strong group by helping to reduce its costs on the one hand and by increasing its influence in these situations on the other. Look at what the Bill is actually proposing on damages—and we are talking about an industry that does not look as if it is going to change. Listen to the inquiry being conducted by Lord Leveson, or to what was said there today by Milly Dowler’s family. The press are still carrying on with business as usual. This is a group that does not want any change or a statutory framework. It is making it clear that it wants to keep the voluntary system. That has to be questioned.

The importance of that, particularly for this Bill, is: how do you bring an action against a powerful interest group like this? It is accountable to the useless Press Complaints Commission. It is absolutely useless. We have had Members of this House chairing the commission—I think the noble Baroness, Lady Buscombe, was one. In fact she was the chair of this pretty useless group when it was fined or had to pay damages for libel against one of the lawyers in the hacking case. In that case, did the press pay her legal fees and did they pay the damages? I keep asking but I get no answers. But I can tell you for a cert that it would have been carried by the industry. The PPC is a total failure. It does not carry out its job. Why is that? It is because it is self-regulated. It is controlled by the Editors’ Code of Practice Committee and by its code. If anybody saw the apology made by the Daily Telegraph in regard to Vince Cable, the Business Secretary, about what it did to him, they will see that the newspaper admitted that it was in the wrong and in breach of the Editors’ Code of Practice, but thought that it could still go ahead with the story. Publish and be damned because it could not care a damn, quite frankly, as long as it sells newspapers. That is the only interest of the press in these matters, and they ride over the rights of the individual simply to secure those sales.

This Bill will actually help to reduce the costs of the press, which they are moaning about, and not only in individual cases. Last July, we had a debate in this House on the private Defamation Bill introduced by the noble Lord, Lord Lester. The press were worried about libel tourism and who would carry the costs of that when our judges were making judgments on damages in some of the other cases that they thought to be excessive. Are they excessive when they breach the law and breach people’s rights and even object to judges giving a decision? Look at the case of Mr Dacre, who attacked the judge for making a judgment on human rights issues in regard to the Mosley case. That was totally unacceptable. It is the judges’ right to make the decision about the balance between public interests and private rights. That is what we ask them to do. Mr Dacre was saying it is not the job of the judges to do that. Journalists want human rights legislation changed, so it is not only in regard to individual claims that we have to watch this powerful interest group. They want changes right through the system. They want changes to reduce costs and damages so they can continue to pay them, limited as they are, in order to publish and carry on. That is what concerns me most.

In my own regard, the police constantly opposed my application for a judicial review. Thank goodness the judges eventually made a judgment that I should have one. But the police were contesting it. Who pays the police’s costs if there are damages involved? Who pays for them to employ the best barristers? That is paid, presumably, by the Metropolitan Police, which means by the public. I could not have taken out a case against the press if I had not had the chance to use the conditional system and to pay insurance. We now hear that the Government in this Bill are going to transfer insurance and other costs on to those who win their case. That is totally unacceptable, frankly. We talk about individuals paying damages if they have lost a case, but here we are talking about a powerful, wealthy body called the press which is asking us to make these changes.

There have been recommendations by Alan Rusbridger, editor of the Guardian. He suggested having a proper press complaints procedure with intervention and mediation by the Press Complaints Commission. He is absolutely right. He said it should be an independent body. He is absolutely right. But he does not want it to be a statutory one. How are you going to enforce everybody to be part of the PCC unless there is a statutory framework? How are you going to enforce sanctions, if you believe in doing that? I would suggest to him that in no-win, no-fee cases, the PCC should consider acting in mediation, and if courts or individuals refuse to accept that, then let the Press Complaints Commission take the complaint. Let it offer a conditional agreement so that the individual can then take the case, and let that be a cost to the industry, because it might be an effective deterrent if it has to pay to put something on the front page that is wrong. The Government in this Bill are reducing those penalties and strengthening the press and that is not acceptable.

This House will be debating a number of pieces of legislation. One is the legal aid Bill which is now before us. The second will be a defamation Bill that will presumably come before this House. There will be a new Human Rights Bill, a Bill of Rights or whatever, which normally comes to this House. And there will be a new public complaints or mediation facility and perhaps even a cross-media ownership issue. All these involve the media. This is an opportunity for this House to get a very clear idea of how the press fits within the framework. I believe in a free press—I think it is necessary—but one that defines what the public interest is, not one that is out of control. The Guardian’s proposal is that the editors should determine the public interest. Editors determining the public interest? They are only concerned about their own private interest and the selling of newspapers. To suggest, against the background of what our press has been doing, that they should define the public interest is unacceptable. They have defined it and they have no time for it. It is all about press freedom. I hope when we come to debate this legislation, we will consider all these parts. This is about the role of the press in a free society but not one where it is business as usual, as they are now proposing.

European Convention on Human Rights

Lord Prescott Excerpts

Thursday 19th May 2011 Lords Chamber

[Lord Prescott]

My Lords, I congratulate my friend of many years, my noble and learned friend Lord Irvine, on the presentation that he has made today and on the call for these papers on human rights to be brought forward. There could not be a more appropriate time than now to raise this particular issue. The role of human rights and the protection of private interest and public interest, as embodied in the European Convention on Human rights, were not challenged for a number of years but that has not been the case over the past five years. Clearly there is a fundamental challenge under way. The Minister of Justice in the other place has now admitted that the Government are looking at how they might change human rights legislation. We will have the presidency under the Council of Europe perhaps to do some of that. We look forward to the debate and the conclusions of the Government.

I should perhaps declare an interest, as the leader of the Labour group in the Council of Europe, leading a delegation from these two Houses. We have been concerned about the reforms that are necessary in human rights legislation. We made recommendations 10 years ago about the length of time taken for cases and about other matters. There is a need for reform, as has been said in this House on a number of occasions. However, I say to my noble and learned friend Lord Irvine that our debates in 1997 which he led in this House made a compromise that has not helped the situation. I refer to the role of the press complaints body that deals with some of the obligations of the press in observing public and private interests. We made a rod for our backs by not making public bodies accountable regarding the Council of Europe and human rights obligations. We exempted the Press Complaints Commission from that. If we did not have a body that claimed the right to be self-regulatory, we would be able to bring standards and provide advice to editors when dealing with these cases. The point that I want to make today is that in referring newspapers to another body for further discussion, the role of the Press Complaints Commission should be considered.

I attended the other place when it discussed the right of prisoners to vote. That was not a simple issue, and the Government recognised that the House should decide on whether there should be a vote for everyone or whether there should be an area of discretion or appreciation. We can decide on whether the right should be limited depending on how long a person is in prison and the offences involved. The House was not denied the opportunity to make that decision—and many other Parliaments have done that. Only three have said that they are not prepared to accept the ruling. However, the issue behind the debate in the Commons was about getting out of Europe. Those who wanted that did not distinguish between the Council of Europe or the European Union. They wanted to get out of those bodies. They said that Parliament should be the supreme body for legislation. They were same people who voted for us to join the European Union—and I voted against it in 1972. What gives them the right to override the supremacy of those bodies? The Lisbon treaty again makes that clear. We recognise that that is something that already happens to our legislation. The debate was really about how you get out.

I also heard during that debate that judges are ignorant, they are from foreign countries, and they are not elected. I have to say that I am one of the people who elected the judges to the European court. I do not know what the press will make of that, but nevertheless we were involved in exercising that democratic right through our delegation.

The other example was the Max Moseley case, in which our courts—our courts—under our legislation actually said that there was a breach of privacy that was relevant, if you like, to Articles 8 and 10 of the Council of Europe convention, and found a balance in that. Moseley went to the Europe court to seek a ruling on notification—that a person should be told in advance of publication. When I hear the Press Complaints Commission saying that we have a right to notification, we all know what that means. There is a call at 5 pm on a Saturday night saying, “We’ve got this story. Do you want to comment?”. They do not give you notification, and if you can afford to sue them, they do not give you notification, because they know you might go to the court. That is precisely what Moseley did. I can see what is involved in all this talk about rich people getting that right, but an awful lot of people cannot afford it. Why? It is because the press is made up of powerful rich bodies that prevent you taking any action under our legal system.

It is interesting to note that our press praised the common sense of the judges who rejected Moseley’s application for notification, but they condemned the same judges over the issue of prisoners. All of a sudden, those judges became well informed and wise. Frankly, that is all we can expect from our press. I am not a fan. Even the recent super-injunctions are sought under our law, not the European court’s law. I will not go into those arguments. I can see why people are getting increasingly concerned about them. I must say that I am not excited by the idea that some footballer can say, “Publication might affect my sponsorship money”. That is not about human rights; it is about commercial interests, which is the motivation of most of these injunctions. So there is this kind of anti-European dimension, which is not at all helpful.

I come to the point that I really wanted to make in this debate. I think we agree that Articles 8 and 10, which identify these rights, are rights in our constitution and in the European legislation. As the noble and learned Lord, Lord Hoffmann, pointed out in a debate in this House on defamation, the American system provides no rights for people or celebrities. There is just media freedom. That is what the press here is after. There is a clash between what we might call the European tradition and the American tradition. The American tradition hands over the freedom to the press. We have to decide here whether we have in legislation protection for individuals or a balance between the public interest and freedom of speech and indeed freedom of the individual. We will do that in legislation and we will do it in the consultation. However, I am worried about the Press Complaints Commission believing that somehow it can rule on that. In many cases the PCC ignored the Information Commissioner, who said that thousands of pieces of information were being obtained illegally and that thousands of pounds were being paid by hundreds of journalists. The PCC did nothing about it. It totally ignored that in the hacking inquiry. The Culture, Media and Sport Select Committee said that the inquiry was “simplistic”. It did nothing other than mouth the arguments of the press. Indeed, the chair of the PCC was found for a libellous statement in that very case. It is not very good for the chair to be accused of putting out unfair information.

Therefore, we need to look at the Press Complaints Commission. It was left out of the legislation but I hope that it will be covered by it. The noble and learned Lord, Lord Hoffmann, tried to seek out the essential issues, as did the noble Lord, Lord Lester, in his Defamation Bill. We should ensure that this whole matter is covered by legislation. I am not necessarily talking about statutory control but about the need for a body which is independent, accountable and answerable and which is concerned about the private individual, not just the editors who control them on their editorial board.