Defamation Bill [HL]
Lord Thomas of Gresford Excerpts(13 years, 10 months ago)
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Lord Thomas of Gresford
My Lords, I also congratulate the noble Baroness, Lady Hayter, on her maiden speech and, as a Welshman, welcome her to this House. She reminded me of an occasion some years ago when I spoke at Peking University in Beijing about this House of Lords. I had some 200 students looking at me rather blankly, even when I said that this House was full only when we were discussing sex and fox hunting. That should give your Lordships an idea of how long ago that was. I wondered if there would be any questions. At the end, I was asked by a young lady, “To what extent do the provisions for pensions brought in by the Labour Government reflect the values of the Fabian Society?”. To be asked that question in Peking University in Beijing rather floored me, and I asked her to tell me the answer. I am quite sure that she knew what it was.
I welcome the Bill and the initiative of my noble friend Lord Lester in bringing it forward. The common law treated freedom of expression as a residual liberty, that is to say, a liberty which existed in the gaps between the criminal law of obscenity, libel or contempt of court. If historically there ever existed a recognised freedom, it was a freedom to express opinions or disclose information when the actual expression of those opinions was not forbidden by law. In 1885, Dicey, in his Introduction to the Study of the Law of the Constitution stated that,
“at no time has there in England been any proclamation of the right to liberty of thought or to freedom of speech”.
Legislation frequently fails to bring about the consequences it was intended to achieve. We thought that the Human Rights Act would have acted as a magic potion to resolve all the problems involving or relating to freedom of expression, yet here we are today. However, the Human Rights Act focused minds on the whole concept of freedom of expression, and in so doing altered perceptions. More people today are alive to their right to freedom of expression than at any time before. That is a spontaneous reaction which is to be applauded, but as soon as people became aware of another right, the right to privacy, the tension between that right and the right of freedom of expression inevitably followed. The clash of the tectonic plates, a phrase that my noble friend Lord Goodhart used, then emerged
The Human Rights Act places demands on our judges which they may not have entirely succeeded in meeting. The jurisprudence which has emerged reflects those tensions. There has been some inconsistency of approach and a certain muddle. It is that muddle which brought about the super-injunctions, that concept which figured in the Trafigura case, the injunction used to prevent the publication of a report on alleged dumping of toxic waste in the Ivory Coast. There was an attempt to invoke that ban on the subsequent reporting of parliamentary questions asked by Paul Farrelly MP relating to that report. Although that application was eventually withdrawn, the matter has not really been settled once and for all.
Perhaps once such a situation developed, the terms of the injunction should have been varied, but there ought never to have been any room for doubt whether parliamentary proceedings could be subjected to a super-injunction of that type. The Parliamentary Papers Act 1840, which was meant to provide such a degree of protection, was not strong enough to resolve the matter beyond dispute. A major advantage of my noble friend’s Bill is that it abolishes the 1840 Act, but Clause 7 places parliamentary proceedings on a distinct, protected statutory footing by affording them absolute privilege. It may not prevent an application for a super-injunction in future, but it will curb encroachments into areas that ought never to have been curtailed in that way. It is a very good example of what the Bill does to achieve simplicity.
As my noble friend Lord Lester said, the internet throws up new difficulties. Pressures on freedom of expression have grown with the internet and the dominance of the clickerati. As one commentator put it, internet users do far more than just download information. A single download may unwittingly create a legal quagmire that crosses continents and encourages challenges and hard-fought legal battles which threaten long-cherished principles. Freedom of expression touches everyone: lawyers, politicians, journalists, newspaper editors, internet providers and servers, celebrities, scientists, large corporations, small charities, NGOs, or even ordinary individuals. The example cited by the noble Baroness, Lady McIntosh, from Mumsnet, shows what a burden it is for an organisation such as that to have continually to edit its internet site. The whole area of the law is as complex as the issues or interests which it is required to address.
I commend my noble friend on having cut through the maze and on introducing a degree of clarity into the arena. He has done so at a price, knowing full well that he will not be able to satisfy everyone, as our debate today demonstrates. Nor can he address every issue in the Bill; he has had to leave out certain considerations and, in doing so, he has opened himself to criticism. However, he has put together a Bill, which, to use his words, could pass, could be effective and be brought into law. It is a reflection of judicial interpretive trends over the past decade and of his professional experience and knowledge of this area of the law. He has, modestly, invited help in fashioning this vital piece of legislation, and it will be up to the Members of this House to consider how wide-ranging the Bill should be in the absence of a complete overhaul of the law, but we would not be here if it were not for my noble friend zeroing in on the principles which, to cite him, seek to strike a fair balance between reputation and public information on matters of public interest.
It is a difficult balance to strike. Dr Dario Milo, an outstanding South African lawyer and academic, in his UCL thesis, The Constitutionalisation of the Law of Defamation, argued that constitutional rights must shape the contours of modern libel law: freedom of speech, rights to reputation and dignity and the protection afforded to the public interest. He pointed to the clash of constitutional rights in the decision of the Canadian Supreme Court in the Toronto Star case, where the court ruled that a new defamation defence was required as a result of the constitutional protection of freedom of expression, the defence, as the court put it, of reasonable, responsible communication on matters of public interest. That is the concept which my noble friend Lord Lester has adopted in Clause 1. What was fair comment is now termed by my noble friend in Clause 2 as “honest opinion”. That is an easily understood expression founded in the Dr Singh case, to which the noble Baroness, Lady McIntosh, referred. He was accused of libel by the British Chiropractic Association. The Court of Appeal stated in that case that judges would not rule on matters of scientific controversy, as it was not up to them to disentangle fact from opinion where scientific controversies were concerned. The court felt that the term “honest opinion” better reflected the realities of the issues.
In stating the key issues to be addressed by the Bill, my noble friend Lord Lester has rightly put the public interest at the forefront, and has attempted to resolve the issues relating to privilege, be it absolute or qualified, and to place responsible journalism on a clear footing, following the Reynolds guidelines and the Jameel case. I noted the criticisms of the noble and learned Lord, Lord Hoffmann, about the attempt to include in the Bill the principles stated in the Reynolds guidelines, but a number of judgments were given in that case, and my noble friend has attempted to put together a list of guidelines drawn from a number of judgments. Like the noble and learned Lord, Lord Hoffmann, I have some reservations about Clause 13. I acted for the leader of the Workers’ Party of Singapore, Mr Ben Jeyaretnam—Jeya—when we brought an action for libel in this country against the Straits Times, which had disparaged our success in Jeya’s earlier appeal to the Privy Council. That was a successful appeal which caused Singapore to abolish appeals to the Privy Council. The action was struck out on the basis that the Straits Times had little circulation in this country—about 1,000 copies were distributed—and that Jeya had no reputation here to speak of. That was the decision, which could not be appealed because of cost.
When Jeya died last year, the Guardian and the Times carried obituaries, which indicates the reputation he had in this country. I also represented him in Singapore in one of the libel cases which were brought against him by the then Prime Minister and others. We lost, surprisingly, but at least I did not suffer the fate of Mr George Carman QC who appeared in the next case brought against Jeya in a Singapore court: the damages were doubled because Jeya’s counsel pursued the slightly dangerous line that that Government used actions for libel as a means of ruining political opponents—it was absolutely true at the time.
Introducing this political element reminds me of the election we have just had. The success of the leader of our party in the prime ministerial debates led to the most incredible flood of abuse from some of the right-wing popular press. I had a letter published in the Guardian saying that it is an illegal practice under the Representation of the People Act to defame a candidate, even though my noble friend had successfully removed criminal libel from the statute book only months before, which might have been a better way to proceed.
Libel actions are all about cash. You have to be wealthy, destitute or mad to bring proceedings in this country. We acted for Jeya pro bono, which is the only way in which people can bring an action unless they fall into one of the categories to which I referred. There are, of course, many problems to be resolved: costs, damages, conditional fee agreements and success fees, which were referred to by the noble Baroness, Lady Kennedy. I am particularly concerned that the ordinary individual is inhibited and denied access to justice. His reputation may be badly damaged in his own area by a local newspaper or other media outlet, but there is no remedy for a person in such circumstances. I hope that these are matters that we will pursue at another time, but I urge noble Lords to support the Bill and to give it a fair reading.
Immigration: Refugee and Migrant Justice
Lord Thomas of Gresford Excerpts(13 years, 10 months ago)
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Lord McNally
My Lords, the UK Border Agency has been asked to treat RMJ clients with common sense and to allow time during this period of adjustment. Therefore, according to my briefing, the right reverend Prelate’s first assertion is not true.
Lord Strathclyde
My Lords, there is room for both. Let us listen to the noble Lord, Lord Thomas of Gresford.
Lord Thomas of Gresford
My Lords, RMJ says that it is owed £1.8 million by the Legal Services Commission. Is that the correct figure? The Legal Services Commission was supposed to be abolished by the noble Lord, Lord Bach. Will the coalition Government revive it, or would it not be better for it to disappear as soon as possible?
Drugs and Crime
Lord Thomas of Gresford Excerpts(13 years, 11 months ago)
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Lord Thomas of Gresford
My Lords, I, too, congratulate the noble Baroness, Lady Meacher, on introducing us to this important discussion paper. I declare an interest as having, over many years, represented and prosecuted in many drugs cases, involving the use and possession of drugs, drug-related crime and the importation of drugs.
The paper accords very closely with Liberal Democrat policy, as set out in the report of the commission under the chairmanship of my noble friend Lady Walmsley some years ago. It is a serious problem that costs the economy a huge amount, as the noble Baroness herself pointed out—some £19 billion a year. However, the punitive approach has not proved successful for drug addicts and alternatives must be found to the sanctions of the criminal justice system.
Drug dependency is brought about by a multitude of factors, as set out most clearly in the report. They include a history of social and personal disadvantage; temperament and personality traits; prenatal problems; poor education; adverse childhood experiences that lead to non-existent self-esteem; a lack of bonding within the family that creates social isolation; and, sometimes, psychiatric disorders. Drugs are seen by many such individuals as a panacea to relieve adverse conditions—a form of escapism. We are dealing, in most cases, with vulnerable and damaged individuals.
Heroin does not cause people to become violent, as alcohol does, but, as the noble Baroness, Lady Afshar, said, it does make people unemployable. It has that great impact on our society, accordingly, of carrying these people along. I remember one defendant being asked, when cross-examined severely by the prosecution for having administered drugs to his girlfriend, who had died, “How do you know she liked it?”. He said, in a chilling way, “Everybody likes heroin”. It was freely available to him, and more available, he told me, in prison than it was outside. That is one of the factors that we must grapple with.
I cannot follow the noble Lord, Lord Mancroft, in referring to people who take recreational drugs in a moderate way. Those who think that taking cocaine socially is clever should remember that their affluence is promoting the importation of drugs by very serious and dangerous criminals, who do not hesitate to use violence to protect their trade in the cities of this country. As for cannabis, I am afraid I missed the 1960s; I was bringing up a family at the time. However, I recall prosecuting three men for growing cannabis. In fact, what they were growing was agricultural hemp and they had to smoke 10 spliffs to get the effect of one. Nevertheless, they got three years’ imprisonment for it and what that did for them I cannot imagine. Imprisonment exacerbates all the problems. It exposes the individual to older criminals, gangs, illicit drugs within the prison estate—which I referred to—and a worsening addiction which, on release, can be the root cause of further reoffending.
It has been demonstrated that more than half of the prison population in the United Kingdom uses drugs, whether it is heroin or crack. If they are there for just three months, or serving a short sentence of that sort, they cannot be dealt with in any constructive way. No treatment can be effective within that period. As the noble Baroness, Lady Masham, pointed out, prison presents additional health problems from HIV to TB to other factors due to overcrowding and prisoners being locked up for substantial periods. These worsen the psychological factors that led to the original drug dependency.
The noble Lord, Lord Rea, referred to drug courts, as mentioned in the report. We on these Benches have watched the pilot scheme under which drug courts have been rolled out in England, particularly the west London drug court. Its statistics are impressive. According to Judge Julian Philips, a stipendiary magistrate since 1989 who was appointed judge in the west London drug court in 2005, there has been a drop of 20 per cent in shoplifting in the area. He said that his methods have been extremely effective. Perhaps others can speak about that. A confirmed addict needs £100 for one day’s worth of drugs. That means that he has to fence £400 or £500 worth of stolen goods to feed his addiction. An average addict will commit 127 crimes a year. Following the approach adopted in west London, some 60 per cent of addicts do not reoffend during the course of a court order, and 20 per cent remain drug free. That compares with an average over the country of 3 per cent, as reported by national treatment agencies.
A complete review is needed of how the resources are used. We should not waste money sending drug addicts to prison but use those resources in a positive and constructive way along the lines that this most helpful paper sets out.
Queen's Speech
Lord Thomas of Gresford Excerpts(13 years, 11 months ago)
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Lord Thomas of Gresford
My Lords, may I say what considerable pleasure it is for me and those around me to see the noble Lord, Lord McNally, put his hands on the Dispatch Box and to discover that in becoming a Minister he has not lost his wit and good humour? We congratulate him most sincerely.
I start with a quotation:
“Liberals will switch the emphasis in combating crime to prevention and rehabilitation. We will expand the police force and the probation service, improve pay and conditions to attract high quality recruits. To reduce the prison population, we will make greater use of alternatives to imprisonment; extend experiments in prison reform and remand procedure; improve after-care service, and appoint independent inspectors to visit prisons and investigate complaints”.
Wait a minute, we already have independent inspectors: the noble Lord, Lord Ramsbotham, and his successor Dame Anne Owers. I am quoting from the 1964 Liberal manifesto for the very first election that I contested as a Liberal in West Flint against Mr Nigel Birch, and the principles that we enunciated in those days are just as relevant today.
In 2009, 65 per cent of Britain’s prison population were serving sentences of less than 12 months’ duration. Many of them were illiterate, a quarter were addicted to drugs or alcohol, and half were suffering from some form of mental illness. The system today is designed in such a way as to make it easier to commit another offence rather than to break the habit of a lifetime. The noble and learned Lord, Lord Woolf, referred to the tariff on mandatory sentences for murder. An immediate task for the new Justice Ministers in this Government is, in the name of fairness, to tackle the shame and disgrace of indeterminate sentences. I quote one of the conclusions of the thematic review by the inspectorates of prisons and probation in March this year:
“The current situation is not sustainable. IPP prisoners now constitute around one in fifteen of the total prison population. As of December 2009, only 75 IPP prisoners had been released and stayed out, while there were around 70 newly sentenced IPP prisoners every month entering prison. Of the 5,788 IPP prisoners in custody, 2,393 had passed their tariff date, i.e. the period announced by the judge as the due punishment for the offence”.
The report called for a policy review at ministerial level and said that,
“these numbers far exceed the capacity of the probation service and the prison system … and the Parole Board”.
I recently defended a man of 58 years of age who was sentenced to an IPP for manslaughter with a tariff of nine years. “It is”, he said, “a life sentence. I will never come out”. He will never come out because of the way in which the system is organised today. These sentences have done immeasurable damage both to those imprisoned and to their relatives. It is Kafkaesque; despite trying to do everything that is asked of them, there is no way out.
The second task that I put to Justice Ministers is to review the effectiveness of the system of civil orders—ASBOs—that were adopted by the previous Government in an attempt to control behaviour. A report by the Metropolitan Police that was published on 13 May—a fortnight ago—shows that in London there are currently 1,261 ASBOs, and, in 2009, 1,127 arrests were recorded for their breach. These ASBOs do not work. Although trumpeted by the previous Government, there are no violent offender orders, although the Metropolitan Police have applied for one this year: the first in the United Kingdom. There is one risk of sexual harm order and one foreign travel order in the London area. The court charges £200 fees for sitting, and legal costs are considerable, but no overall cost has been calculated.
The feature of these orders is that they may be obtained under civil procedures, which include proof on a balance of probabilities that is based on hearsay evidence, which is usually no more than the report of an investigating police officer. Breach of the order is a criminal offence. Two youths may go into a pub. One is doing nothing wrong. The other is committing a criminal offence because he is in breach of a condition on his ASBO. These orders are a fundamental breach of the principles of fairness on which criminal law is based. Will the Ministers please consider whether they work and are effective? If not, let us get rid of the whole apparatus.
Similar considerations apply to dispersal orders under the 2001 Act. In 2007, the Joseph Rowntree Foundation reported:
“Dispersal orders convey stark messages about the status of young people in society and the way they are regarded by adults. They can reinforce a view of young people as a risk to others, obscuring the extent to which they are understood as at risk”.
That is another feature at which I would like the noble Lord to look.
The third task—here I come to a matter raised by the noble and learned Lord, Lord Lloyd of Berwick, naturally enough as he was my tutor—is to reconsider the age of criminal responsibility, which was highlighted this week at the Old Bailey. The proposal to reduce that age to 10 years was put forward by the party opposite in the Crime and Disorder Bill. On 9 March 1998, an amendment in the name of my noble friend Lord McNally—the Minister today—was moved in his absence by my noble friend Lord Goodhart. All the usual suspects, including me, spoke in support of the amendment. But the most compelling contribution was this:
“What worries me is not what the intention was in the drafting of the Bill, but that the effect of this part of it plays to a social attitude which wants to pile all the blame onto the shoulders of the young child who is in court; that it fails to accept the collective social responsibility for the situation in which the child finds itself. The child may come from an environment of appalling schools, appalling housing; media which plays to sensationalism and violence and parents who had no chance to develop their sense of responsible parenthood in their education, upbringing and environment”.—[Official Report, 19/3/98; col. 833.]
Everyone will recognise the tone and the passion of the noble Lord, Lord Judd, and I am privileged to be speaking from the place where he normally, in the past 13 years, has addressed this House. I have also warned my noble friend Lord McNally that this is where the noble Baroness, Lady Kennedy of The Shaws, used to speak.
This is an opportunity for the Minister to put forward the amendment that was put then:
“Where a child aged 10 or over is accused of an offence, it shall be a defence for him to show on the balance of probabilities that he did not know his action was seriously wrong”.
I invite him to return to his own amendment and to put it forward.
I should like to say a brief word on Wales, since the noble Lord, Lord Livsey of Talgarth, cannot be here today. The Queen’s Speech promises to implement the recommendations of the Calman commission in Scotland, which gives them £200 million. Wales is seeking fairness—the implementation of the Holtham commission report on funding by the reform of the Barnett formula. We in Wales are being short-changed to the extent of £300 million per year on the basis of actual needs. The previous Government talked about it and did nothing. I look forward to an assurance from the Minister today that this Government are committed to equality as between the devolved nations.
In my adoption speech in that 1964 campaign, as reported in the Rhyl Journal, I called for a Parliament for Wales, proportional representation and the abolition of the hereditary principle in the House of Lords. We are nearly there.