Transforming Legal Aid

Bob Stewart Excerpts

Thursday 5th September 2013 Commons Chamber

[Chris Grayling]

That has been a central part of what we have agreed with the Law Society; there has been an acceptance from both of us that these changes will lead to consolidation. They will lead to bigger, but not giant, firms, which are more equipped to deal with a tough financial climate but will continue to deliver a quality service. That is what we are looking to achieve.

[Bob Stewart (Beckenham) (Con)]

Does my right hon. Friend agree that a minimum of £225 plus VAT a day for a barrister in a court case is very fair?

[Chris Grayling]

I hope that it is fair. The aim is to ensure that there is a degree of certainty in all of this. We have put in place a taper mechanism, which I believe will reassure younger members of the Bar about the amounts they will be paid for the work they do in trials. That seemed to me to be a sensible development in our original proposal, and I hope that it will be welcomed.

Legal Aid Reform

Bob Stewart Excerpts

Thursday 27th June 2013 Commons Chamber

[Peter Aldous (Waveney) (Con)]

I am grateful to the hon. Member for Brent Central (Sarah Teather) for securing this debate. I shall concentrate mainly on the proposals relating to price competitive tendering. My concern is that these are not suitable for a county such as Suffolk, which covers a large geographical area, much of it rural in nature. Suffolk has three principal urban centres: Ipswich, Bury St Edmunds and Lowestoft, the latter being the principal town in my constituency. All are some distance from each other.

Having lived in Suffolk my whole life and having worked there as a chartered surveyor for many years, I do not believe that it is practical for a firm of solicitors based in one of the three towns to provide a good service across the whole county. If the proposals are implemented in their current form, I fear it could result in significant parts of the county being left without ready access to good legal advice. One would, in effect, be creating advice deserts, as many Members have said.

This would be bad for my constituents and bad for those towns and market towns where the presence of solicitors on the high street, often long-established family firms or partnerships, could be put at risk. There is a need for their continued presence. Large multi-discipline firms have their place, but we do not want a system that encourages all solicitors to locate on business parks, often inaccessible to public transport, on the edge of remote urban centres. My worry is that the proposals could eradicate those small legal firms who best know their clients, and this would be bad for community justice. These high street firms are not legal fat cats gorging on legal aid.

I do not like the idea of a state-imposed system of providing criminal legal aid, rather than that of allowing a market to develop organically. I shall make three observations to highlight my concerns.

First, I do not believe that four firms can provide comprehensive coverage across the whole of Suffolk. Rather than applying the same straitjacket to each of the 42 criminal justice service areas, would it not be more appropriate to look more closely at the make-up of each area and come up with a system that takes account of such features as rural sparsity and the location of the main police stations, police investigation centres and local courts?

Secondly, I am concerned that requiring firms to expand substantially to cover such large procurement areas could mean that solicitors spend most of their time sitting in their cars driving to courts and police stations. In Suffolk, Lowestoft is 45 miles from Ipswich and 54 miles from Bury St Edmunds. Is it realistic to reduce automatically by 17.5% fees that have been pegged back in any case for many years, and then expect a firm in, say, Ipswich to provide a comprehensive and good service in Lowestoft? Will such firms have a proper and full understanding of the needs, challenges and concerns of people in the Waveney area? Is it practical for solicitors to drive an hour through the night to attend at police stations? Driving up and down the A12 or along the A143 are not the easiest journeys at the best of times.

Thirdly, it has been suggested that one way in which solicitors can improve their productivity is to make greater use of paralegals. That would involve those who are not fully qualified and have lower hourly charge-out fees carrying out more routine work. Such an approach may well be practical in other legal fields where there are fewer legal obligations, but not in criminal legal aid, which is fundamentally different from other legal work.

We all must accept that savings have to be found. To find them, one must adopt a strategic approach, looking at the whole criminal justice process, from the police station through to the courtroom. I would be grateful for an update from the Minister on whether the Government will increase magistrates’ custodial sentencing powers from six months to 12 months, which will enable justice to be delivered more efficiently and quickly by magistrates who live in, and have a good understanding of, the communities they serve, and, according to my understanding, would produce significant savings of up to £40 million a year.

[Bob Stewart (Beckenham) (Con)]

On that point, I listened carefully to what my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) said about the Crown Prosecution Service not being up to the job. Surely more savings could be made there.

[Peter Aldous]

To find savings, we should look across the whole criminal process, from the police station on the first night through to the courts, whether magistrates courts, which I believe should have a bigger role, or the Crown court. We must look at the CPS as well, and my right hon. Friend the Member for Haltemprice and Howden, who is not in his place, made a very good point about that.

The Secretary of State should look again at the proposals for price competitive tendering. There is a need for a more local approach that takes account of the individual features and characteristics of different areas and communities, an approach that enables small and medium-sized firms of solicitors to have a sustainable and viable future, and an approach that provides local communities with access to legal advice and support from professionals who have local knowledge of the particular problems and challenges in their area.

Marriage (Same Sex Couples) Bill

Bob Stewart Excerpts

Tuesday 21st May 2013 Commons Chamber

[Geraint Davies]

I accept that the assurances that have been offered to faith groups should be delivered and guaranteed, but what we are talking about is widening the franchise of equality so that people can be married whether they are of different sexes or the same sex and whether they are humanists or people of faith. As I said, faith groups do not have a moral monopoly. A quarter of people say that they have no religion—obviously, the situation is changing over time—and there is no reason why such people should not be embraced within the fraternity of marriage.

[Bob Stewart (Beckenham) (Con)]

I am much taken with the idea of having some form of humanist marriage, but I am worried that by agreeing to such marriages, we would cause problems for religious marriage. That makes me think that perhaps we are rushing the proposals through too quickly and that we should perhaps slow down or stop and think again.

[Geraint Davies]

Clearly, we are here to debate the Bill. The people who push for delays and referendums tend to be those who oppose the Bill in any case. The debate on same-sex marriage has been going on for a long period, and not just in this House at this time. In the run-up to the Bill, there has been an enormous amount of discussion in faith communities, among people of no faith and in political communities. Internationally, we have seen equal marriage proposals move forward in a number of developed countries. I think that we have a role to play in providing leadership.

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[Dr Huppert]

I find it very bizarre. There are a number of anomalies in the whole process because of how it is set up, but a gender recognition certificate may be applied for only two years after someone has transitioned into the acquired gender full time, so there has already been quite a long time to try to sort out other issues. Amendments 13 and 14 would simply end the spousal veto, so that people who transition do not have to rely on their spouses to give approval. Some spouses will not give permission for that to happen.

Amendment 16 deals with marriage and birth certificates when there are transgender issues. It argues that replacement marriage certificates should be available for people who have transitioned, so that we do not force them to be outed every time they have to show a marriage certificate. We would reissue a marriage certificate with the original date and new names. That is a simple thing, but it will make a big difference. Not everybody who has transitioned wants to be known as somebody who transitioned. Many people just want to be known by their new name and new gender, and they do not wish to explain their past in every case. They already face that often enough when dealing with various institutions and medical issues. We should not force people to out themselves every time that they need to present a marriage certificate.

[Bob Stewart]

There will be problems with police records, for example, if people change names like that, and that will cause a big problem.

[Dr Huppert]

The hon. Gentleman makes an interesting point. In many cases, of course, there is no problem, and there are technical ways in which the issue has been resolved. It is already possible for people to transition and the state manages to cope—income tax, HMRC and other systems manage to cope and each have detailed arrangements. I do not think that would pose a problem for somebody transitioning to avoid their previous criminal record, but it would avoid their being outed inadvertently or accidently, which is a genuine fear for a large number of transgender people.

At the moment, a child’s birth certificate cannot be reissued on the parent’s transition. Again, that raises concerns about privacy and outing, not just for the transperson but for their families, for example, when applying for school places. Under the amendment, replacement birth certificates could be issued with the new gender and with the consent of the child once they have reached an age at which they are able to consent. Older children should clearly have some say in this. Such a provision would protect the privacy of the person who has transitioned where such information should not be revealed.

Clause 12 relates to an interesting aspect of the Matrimonial Causes Act 1973, which gives grounds to void a marriage. It states that a marriage can be voided if

“the respondent is a person whose gender at the time of the marriage had become the acquired gender under the Gender Recognition Act 2004.”

If somebody marries somebody who has already transitioned, they can at any point cancel the marriage on that ground. Technically, that applies only if the person did not know that their partner had transitioned, but the problem is that, if someone is not public about the fact that they have transitioned, they are at risk of their partner, at any time, saying, “I did not realise.” There would be little proof, unless we expect transpeople always to tell others.

We could get rid of that anomaly and still allow normal divorce proceedings to be started. The marriage could still be ended if there was an incompatible breakdown when a person discovers the history of their partner—there would still be a way out for them if they feel they cannot continue—but we should remove the automatic sense that somebody has done something wrong simply by being transgender. That is a real concern. There have been such cases in Scotland—they were not to do with marriage, but with other sexual interactions—and there have been sex-by-fraud cases simply because somebody was transgender. We simply should not allow that to happen. Those are small and specific issues, but the proposals will make a difference to a persecuted minority within our country.

Government amendments on pensions and transgender people are welcome. I thank the Government for making that step, which is welcomed by the trans community and is to be supported.

Before I conclude, I want to highlight amendment 49, which is in the name of the hon. Member for Brighton, Pavilion (Caroline Lucas). I hope she does not mind my speaking to it before she does. The amendment would end a bizarre anomaly. If I marry somebody and die, they get a survivor’s pension related to the amount of time that I have spent in work. However, if I have a civil partnership with somebody and die, the payment they receive is related not to the time when I started work, but to the time when civil partnerships came into existence. That is bizarre. Any insurer would not know whether I would choose a marriage or civil partnership. It seems odd that one pension is backdated to when I started work, and the other goes only part way. It would make sense if both pensions dated back to the date of the marriage—I can understand the logic, although I do not believe that that is the right solution—but there is a blatant and odd inequality.

Most employers pay no attention to the anomaly because they are keen to be helpful to their employees. Many of them can nominate people to whom they are not married to receive the survivor’s pension. However, we should not have such inequality written in law. I apologise to the hon. Lady for saying that before she has had a chance to do so.

I hope that the Government take those issues seriously, because we can fix anomalies of the past and avoid making further ones in the present.

Crime and Courts Bill [Lords]

Bob Stewart Excerpts

Monday 18th March 2013 Commons Chamber

[Michael Connarty (Linlithgow and East Falkirk) (Lab)]

It is a genuine pleasure to follow the hon. and learned Member for Harborough (Sir Edward Garnier), who made a considered and reasonable contribution in a mellow way. It is right to say that the royal charter is not a solution to all the problems that occurred in the past, and that it is possibly not a solution for the future if malevolent forces out there wish to break the law and the arrangements in the charter.

I welcome the Leveson-compliant solution—that is the key: it is Leveson-compliant. I did not take part in the earlier debate, although I listened to all the contributions in what one of my constituents phoned to say was a bit of a love-in in the House of Commons, given the amount of self-congratulation across the Chamber. Let us be frank—I am a very frank person as you know, Mr Speaker: my constituents and the general public know that the Government, the Prime Minister and the Secretary of State were cajoled, bullied and harassed into solving the problem with a Leveson-compliant solution. Let us not avoid that. If MPs had not been present in large enough numbers to vote the Government down, there was no possibility that the weak proposal put forward by the Prime Minister would have been amended to what we have now. That must be said so that people know the truth.

I heard the atrocious comments on the radio this morning by the person I now consider to be not the Minister for Culture, Media and Sport, but the Minister for spin, about dragging the Labour party along and defending the press from the terrible things that the Labour party was going to do through statute. In fact, however, what those on the Labour and Liberal Democrat Front Benches, including the Deputy Prime Minister, sought all along was a Leveson-compliant solution, and that is what we have.

I am worried about the Minister’s approach to the amendments in her speech. She was either incentivising publishers and publications to join up to the charter—I thought that was done in a better and more balanced way by the deputy leader of the Opposition—or it sounded to me that she was trying to assure publishers and publications that if they sign up to the arrangement as amended, they will not find it much more demanding of their own self-discipline than under the discredited Press Complaints Commission. People should read her speech in some detail because lots of signals were put out that I believe were wrong.

This is an opportunity for the press to right the wrongs of the past by signing up to self-discipline through this form of charter. If, however, the system is not more demanding or effective than the Press Complaints Commission, the first time the press create another victim of a new abuse, perhaps of a different sort, Parliament will be brought into serious disrepute. That is what the Leader of the Opposition and the Deputy Prime Minister were trying to avoid by putting together a measure that is Leveson-compliant.

[Bob Stewart (Beckenham) (Con)]

I very much hope that the charter will act as a catalyst for good behaviour, as well as everything else. My children were doorstepped in their school when I was in Bosnia and not a public figure, and my mother had her door pushed in and photographs were taken. I hope that the press will try to regulate itself and stop such things so that they never happen and the press never have to come before any regulator.

[Michael Connarty]

I normally lean on the optimistic side—the sun rises every morning; I am glad I am still alive and my heart is still beating. That is two-up for me and I am happy to go on with the day with a positive view. Recently, however, some of my constituents were in Algeria, one of whom was a captive and in the trucks that were bombed. He managed to run away but he had bombs hanging round his neck as he did so. The press insisted on trying to get to that person’s home. I must pay a compliment to MSP colleagues in my constituency, who both happen to be SNP. We agreed that we would not talk to the press or the media, and that we would not give out the names of the people involved. The press still found a way to the family home and tried to get into the house to interview the young people involved, one of whom was still very traumatised by their experience. The press therefore still have a form of approach to the public whereby they see them as another byline without thinking about the consequences of what they do. The charter might help with that. It might not help, as the hon. and learned Member for Harborough said, but I hope it does.

Human Rights Act 1998 (Repeal and Substitution) Bill

Bob Stewart Excerpts

Friday 1st March 2013 Commons Chamber

[Charlie Elphicke]

I absolutely agree with my hon. Friend who makes a characteristically forceful argument. For too long, human rights have been interpreted under the convention in what lawyers have called an “objective test”. It asks people “Do you have a family?” and “Do you have a right to family life?”—and if the answer is yes, end of story. The British common law way, however, asks people “Do you have a family?” and if the answer is yes, it says it is important to preserve it, but it also asks whether they have acted in such a way according to a subjective test to establish whether that right should be allowed as far as that person is concerned. That is a key point, which goes to the heart of why human rights are in such crisis in Britain today, and it is a key plank of the change I am seeking to make through the Bill.

There are more cases. A Pakistani man was found by the deportation tribunal to be an al-Qaeda operative who posed, and still poses, a serious threat to the national security of the United Kingdom, and another man was found to be willing to participate in the former man’s plans for a mass casualty attack in the UK—in other words, these people were plotting terrorism. The man could not be deported back to Pakistan because of the risk that he would be maltreated by the Pakistani intelligence service.

[Bob Stewart (Beckenham) (Con)]

If someone cannot be tried properly in their own country, the International Criminal Court may well try him or her—and I speak as someone who has given evidence for the prosecution in five ICC trials. I think it is quite a good system. It is one way round the problem we are discussing.

[Charlie Elphicke]

I thank my hon. Friend, who speaks with great experience. He is not only a war hero himself, but has pursued justice and kept the peace in dangerous places throughout the world for so many years, dedicating his life to such causes. I completely agree; there should be such a system. If we have a system in which we have to second-guess the justice of other countries, putting them down by saying they are not good enough and will not come up to the standard, perhaps there should be an international mechanism for people to be tried and made to answer their crimes.

I feel very uncomfortable about the fact that someone can butcher people and commit genocide in Rwanda, yet still be allowed to drive a taxi around Essex today. That is wholly wrong. I worry about the passengers in that taxi, who may not know the driver’s background, previous conduct or behaviour. They may be literally putting their lives at risk by getting into that taxi. My hon. Friend’s idea of having an international court for these cases is one that should be explored.

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[Charlie Elphicke]

I have a great deal of sympathy with that view, and, as my hon. Friend will have noted from the polling evidence that I quoted, a large majority of the British people have an enormous amount of sympathy with it, too. I hope that, if the Bill is given a Second Reading and if my hon. Friend becomes a member of the Bill Committee, he will table an amendment to clarify the provision in question, and we can engage in a wider debate on it.

In March 2011, a YouGov poll found that 51% felt that human rights laws were bad for British justice. Significantly, there was strong support for rights being dependent on the conduct of the individual asserting them, and 64% rejected the motion that everyone should be entitled to have their human rights protected even if they had broken the law themselves. That is a key aspect of what I said earlier about the objective versus the subjective test. As my hon. Friend the Member for Christchurch (Mr Chope) pointed out, British people have an instinctive feeling about the issue of coming to court with clean hands. The principles of equity run deep in the psyche of the British people.

Seventy-five per cent. of those polled believed that the Human Rights Act

“is used too widely to create rights it was never intended to protect”.

That too is a key issue, which people often talk about. In February 2012, a YouGov poll found increased concern, with 72% agreeing that

“human rights have become a charter for criminals and the undeserving.”

Just 16% disagreed with that proposition.

The polling evidence highlights the extent to which the British people reject the UK’s current human rights settlement. People clearly and consistently do not feel that the right balance has been struck to restore public trust in our basic rights. The UK’s human rights settlement ought to be revised, and that is why I tabled the Bill.

It is worth reflecting on the UK’s history in relation to human rights. We have a long and proud history of protecting the rights of individuals against the Government. The development of those rights—which we now call “human rights”—stretches back at least 800 years, and includes Magna Carta and the 1689 Bill of Rights. Various settlements and Acts have changed the constitution over a long period. Many people think that we do not have a written constitution, but of course we do: it exists in many different documents.

The magic thing about our constitution is that, because it exists in those various documents and because it was not set in stone 200 years ago like the American constitution, it is easy to change and easy to keep up to date. It is easy for our constitution to bend like a reed when the breath of fresh air of social change sweeps across the country, and I think that it works well.

[Bob Stewart]

So my hon. Friend’s change is a two-phase change. Phase 1 involves making a change here, and phase 2 involves changing the European Court of Human Rights so that it accords with what we want in this country.

[Charlie Elphicke]

My hon. Friend is right. The European convention is a document that was drafted 50 years ago following the tyranny of the totalitarian regimes in the second world war and the blood that they spilt across Europe. We ought to have a document that is living. One of the biggest problems with the convention is that it is not a living document, but a document that was set in stone 50 years ago, and it has not kept up with or changed with our times. Europe has moved on, but the European convention has not moved on with it. One of the key problems with the whole idea of having written constitutions is that they cannot change over time. The Americans spend an inordinate amount of their time arguing about whether they have the right to bear arms, which strikes us as absurd. We in the UK can easily change things.

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[Charlie Elphicke]

My hon. Friend is absolutely right in what she says. I have been roundly criticised on social media by people who, oddly, seem to be lawyers in this area. I wonder whether part of the reason for their criticism is that they feel that I might be threatening their livelihoods. They are milking the system and the legal aid budget for every penny and pound they can get out of it in order to put forward their too-often spurious human rights claims. As a former lawyer, I have little sympathy for lawyers who seek to milk the taxpayer to fatten their wallets. That is important, and I have made it clear in my responses to people that they have a conflict of interest in terms of human rights issues and their own livelihood.

The sixth pillar is that the right to vote should not apply to convicted prisoners, a matter on which this House has expressed concern. The seventh is that legislation passed by Parliament should be changed only if Parliament so decides. Courts believing that legislation breaches human rights should declare their opinion, yet Parliament should make the final decision on whether laws ought to be changed.

The eighth pillar is that public authorities should not be penalised for applying legislation that is approved by Parliament, because that has happened too often, creating uncertainty and making their lives extremely difficult. They think they are doing what they have been told to do by Parliament and suddenly end up with a human rights claim and a member of the Bar pursuing a compensation claim, not only on his or her client’s behalf but on his or her own behalf, to get money out of the taxpayer. The ninth is that UK law should not be automatically interpreted in line with the rulings of the European Court of Human Rights. In deciding human rights cases, UK courts should take into account centuries of common law rulings from the UK and elsewhere in the common law world.

Finally, the UK social contract is not just about rights. It is about responsibilities and the contract should include responsibilities as well as rights.

[Bob Stewart]

I am not a lawyer, but it seems to me that there is a worry here. If my hon. Friend’s principles are put into law, will anyone in this country who disagrees with them and wants to avoid extradition, for example, have any right to go to the European Court and say, “This is wrong, may I appeal to you?” in order to delay the process? Will that process be negated by the Bill?

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[Rory Stewart]

That is a telling intervention. The answer is that we have signed and ought to respect and uphold the United Nations universal declaration of human rights. It exists; we are signatories to it.

[Bob Stewart]

We have signed up to it.

[Rory Stewart]

Yes. As my hon. Friend points out, we are signatories to that declaration of human rights. We were the first signatories to it in 1948 and it is the precursor to the European convention. We have signed it and we should respect it. Should we establish a court to uphold the information in the UN universal declaration of human rights? I think we should be very cautious of doing that. The UN declaration includes many elements that would be difficult for a court to rule on and that would be difficult to apply to the 200 members of the United Nations. For example, the declaration includes a right to paid holiday. That is difficult to imagine in Chad, Mali or the Congo. It is difficult to imagine what would be involved if somebody in a developing country who lives on a dollar a day asserted their right to a paid holiday, and it is therefore difficult to imagine an international court that would rule on that kind of information.

Nevertheless, in certain circumstances we should respect the UN declaration and international courts. A classic example is the International Criminal Court or the International Criminal Tribunal for the former Yugoslavia. Britain is a signatory to all cases with the ICTY and the ICC and upholds the rulings of those courts that deal with crimes against humanity. To return to the beginning of the argument, we sign up to such bodies because we accept that crimes against humanity can be committed anywhere by anyone in any circumstance, and the sovereignty of an individual Parliament or country does not trump an individual’s rights to be exempt. Not even the sovereignty of this Parliament. Not even this Parliament ought to be allowed to commit crimes against humanity—to put the most extreme situation. We sign these things at international level, and we constrain the power of our Parliament, as we should, in those specific cases.

In other cases, the moral, legal and philosophical arguments are better conducted in the domestic context.

[Bob Stewart]

Is it not the case that the International Criminal Court and the International Criminal Tribunal for the Former Yugoslavia try crimes against humanity and crimes of genocide only if there is no way that a national jurisdiction will deal with the problem? Only then does it go to the ICC or the ICTY.

[Rory Stewart]

That is a fundamental principle, and my hon. Friend is correct to raise it. In the international system, we have an important conception of state sovereignty. The only argument being made today is that state sovereignty is not absolute; it does not trump everything else, but to return to the language that my hon. Friend the Member for North East Somerset does not like, up to a certain threshold, state sovereignty obtains. Up to a certain point, there must be the opportunity to attempt to resolve the situation domestically, but at that point, when the state concerned has failed to deal with crimes against humanity, it is not only legal under the international system but morally correct for an international court to overrule the national Government.

European Union (Approvals) Bill [Lords]

Bob Stewart Excerpts

Monday 4th February 2013 Commons Chamber

[Damian Green]

It is fair for the House to assume that were it equivalently done on the basis of previous treaties, the precedent set by the decision would apply, but I would hesitate, off the top of my head, to take that any further.

I turn now to the detail, starting with the electronic version of the Official Journal of the European Union. The Official Journal is the gazette of record for the EU. It is published every working day and records the decisions made and legislative acts of the EU institutions. The electronic version of the Official Journal has existed in parallel with the print version for some years, but a European Court of Justice judgment found that only the printed version was authentic. EU legislation is necessary, therefore, to enable the electronic version to have legal effect.

The EU institutions believe that if publication of the electronic version is given legal effect, access to EU law would be faster and more economical. At the moment, anyone wishing to access the authentic version must order and pay for printed copies of the Official Journal. This proposal will not affect those who wish to continue to have access to the printed version. This is a sensible measure in a world in which electronic communications have revolutionised how information is distributed and accessed. It will have no significant impacts or effects on the UK.

The second proposal for which the Bill seeks to provide approval is the work programme of the Fundamental Rights Agency, established in 2007. Its role is to support the European institutions and member states—when they are acting within the scope of EU law—to take measures and actions that respect fundamental rights. The agency does this through the collection and analysis of information and data. It also has a role in communicating and raising awareness of fundamental rights.

The agency’s work is regulated by a five-year work programme setting out the thematic areas of the agency’s activity. These must include the fight against racism, xenophobia and related intolerance and be in line with the European Union’s current priorities. The work programme, defined by the Council of Ministers, gives the member states control over where the agency undertakes its work.

The agency’s first work programme covered the period 2007 to 2012. In December 2011, the Commission brought forward a proposal for a new work programme to cover the period 2013 to 2017. The proposal was amended through negotiations. The measure for which approval is sought very much continues the themes set out in the previous work programme, although there are some adjustments in the terminology.

The agreement of a new work programme will not alter the tasks of the agency, and nor will it change the agency’s role or remit. The work programme does not set out or define these elements. Those are set out in a completely different instrument—the agency’s establishing regulation—and that instrument is not under review at this time. The work programme simply sets out the themes under which the agency will work. Failure to agree the work programme will deprive the Council of the opportunity to set the direction for the agency by defining these themes.

I turn now to the third element in the Bill: the draft decision to maintain the number of EU commissioners at the equivalent of one per member state. The proposed reduction in the size of the commission and the subsequent loss of a guaranteed commissioner emerged as a concern of the Irish during the ratification of the Lisbon treaty. In order to secure Ireland’s ratification of the treaty, it was agreed that a decision would be taken to maintain the number of EU commissioners before the appointment of the next Commission in 2014. The European Council has put forward the draft decision to fulfil the commitment made to Ireland.

This Government are committed to creating a leaner, less bureaucratic European Union and to improving efficiency in the EU institutions, including the Commission. We believe there is significant room for savings in administration and will continue to push for substantial reductions in the EU’s administrative costs. However, it is also important that the UK maintains its EU commissioner. By agreeing to this draft decision, the UK will retain its guaranteed commissioner and be in a stronger position to influence the make-up of the next Commission. Furthermore, the draft decision states that it should be reviewed before a new Commission is appointed, in 2019, or when the number of EU member states reaches 30, whichever is earlier. The draft decision does not give the go-ahead for the Commission to continue expanding ad infinitum.

I hope the House will agree with our assessment that these measures, although necessary, are administrative in nature, improving the accessibility and legal certainty of the EU’s official record, providing an EU agency with a work programme and fulfilling a commitment to the Irish people.

[Bob Stewart (Beckenham) (Con)]

Does this mean that we will be able to get an electronic version of what has happened in the European Union within, say, three hours, as we do for proceedings in this House, and that if one does not have that, it will take several days to get a printed version?

[Damian Green]

My understanding is that there will be no alteration to the accessibility of the printed version. The electronic version already exists; this Bill means that it can be taken as an authentic record of what has happened. The Bill simply changes the status of the electronic record, which—I am told—is published every day. I hope that will assuage my hon. Friend’s concerns, and I commend this Bill to the House.

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[Chris Heaton-Harris]

I completely understand the cultural point that the hon. Gentleman makes, but the European Central Bank uses only a couple of languages and many international institutions manage to cut down the number of languages they use, and they do so purely to keep costs down. The European Commission, the European Parliament and other European institutions do not do that and perhaps they should examine their approach. I merely wanted to make that point in relation to how difficult it is to produce the Official Journal for the very next day in written and electronic form. The Government have given political—not legally binding—agreement to the proposed regulation, with the Council supposedly ready to adopt it and the European Parliament having given its consent.

The Bill also deals with the proposed EU decision establishing a multi-annual work programme to cover 2013 to 2017 for the European Union Agency for Fundamental Rights. Again, one can give a parting shot, at least, about the growth in the number of these EU agencies; there is a huge number now and, as with commissioners, one at least has to go to each member state. In 2007, the EU adopted a regulation, based on the flexibility clause, establishing the agency, which is based in Vienna. Its objective has been outlined by the hon. Gentleman, but according to article 2 of its founding regulations it is to provide “assistance and expertise” to support member states in fully respecting fundamental rights. Under article 4 of its founding regulations, the agency’s activities include: gathering, analysing and disseminating information; publishing reports; and developing “a communication strategy” and a

“dialogue with civil society, in order to raise public awareness of fundamental rights”.

In 2013, the agency will receive a subsidy of €21.3 million from the EU budget, about half of which will be spent on staffing. According to article 5 of the agency’s founding regulation, the Council needs to adopt five-year multi-annual frameworks that set out

“thematic areas of the Agency’s activity, which must include the fight against racism, xenophobia and related intolerance”.

In addition to the multi-annual framework, the agency can respond to requests from the Council, the European Parliament or European Commission for it to conduct studies or produce conclusions on particular topics.

The draft Council decision before Parliament is the proposed multi-annual framework for the four years between 2013 and 2017, proposed by the European Commission on the basis of the flexibility clause. Under that decision, the thematic areas of the agency’s work in that time period will be: access to justice; victims of crime, including compensation for victims of crime; the information society, particularly respect for private life and the protection of personal data; Roma integration; judicial co-operation, except in criminal matters; the rights of the child; discrimination based on sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or other opinion, membership of a national minority, property, birth, disability, age or sexual orientation; immigration and the integration of migrants, visa and border control and asylum; and racism, xenophobia and related intolerance. The Government have given political but not legally binding agreement to the proposed decision. The Council is apparently ready to adopt the proposal and the European Parliament has already given its consent.

That leaves us with the final measure, which is probably more controversial than was originally said: the retention of one European commissioner per member state under clause 2. The European commission consists of one national of each member state, so there are 27 commissioners and there will soon be 28 when Croatia comes in. Following great debate in the European Parliament and many other EU institutions and in the Parliaments of many member states, the treaty of Lisbon introduced the ratio of two thirds commissioners to member states. The logic was quite sensible: it was an attempt to stop bureaucracy growing out of control and to maintain some easier management of the bureaucracy from the top. The member states whose nationals would be commissioners would be decided

“on the basis of a system of strictly equal rotation between the Member States, reflecting the demographic and geographical range of all the Member States”.

The system would be agreed by unanimous decision at the European Council and each commissioner’s term would be five years.

Article 17(5) of the treaty on European Union states that the European Council, acting unanimously, can vary the size of the Commission from November 2014. As the Government’s explanatory notes to the Bill state in paragraph 12:

“when the Irish people voted ‘no’ in a referendum on Lisbon Treaty ratification in June 2008 the loss of a guaranteed”

Irish commissioner in every Commission

“emerged as a key concern. Without Irish ratification the Treaty could not enter into force, and as a result EU Heads of State and Government offered concessions to Ireland”.

One of the main concessions, offered in December 2008 and reiterated in June 2009, provided that when

“the Lisbon Treaty entered into force, a decision would be taken…to the effect that the Commission shall continue to include one national of each Member State”.

Those concessions seemed enough for the Irish people, who voted in the second referendum in October 2009 and approved that treaty.

The draft European Council decision based on article 17(5) has now been introduced and provides that from November 2014 onwards that the number of commissioners will continue to equal the number of member states. The draft decision states that it will be reviewed in advance of the appointment of the Commission due to take office in 2019, but for the decision to be altered there will need to be unanimity in the European Council, meaning that any member state can veto such a change. Having a European commissioner is a big deal for many, if not all, of the countries of the European Union, so it is highly unlikely that the change will ever be made. We will therefore continue to build on the number of European Commissioners.

[Bob Stewart]

Does that mean that every European Commissioner will need a department to be built to support them or will there be commissioners without portfolio?

[Chris Heaton-Harris]

I shall address that point in a moment, but yes, no commissioner is merely in charge of paper clips. Every commissioner needs a cabinet—a group of people around them from the top of the civil service—and normally brings an extra language with them, so a huge amount of cost and bureaucracy is associated with it.

The Government have given political but not legally binding agreement to the proposed decision, which is scheduled to be formally adopted by the European Council some time this year. Agreeing with the decision sits slightly oddly with something that the Prime Minister said in his speech on EU policy last week under the theme of competitiveness:

“Can we justify a Commission that gets ever larger?”

That is a fair question, considering that many other European bodies—the European Court of Auditors, for example—have an appointee from each member state, and work by having so many cooks making this particular broth. Appointments to EU agencies, as I have said, seem to be farmed out nearly one per member state, and it has almost got to the point where we need to have a serious discussion about how, if the European Commission is to work effectively, that can be done.

It is a particularly thorny issue, and warrants much more discussion. It is amazingly political. As I have said, it was one of the more important assurances gained by the Irish to secure a yes vote in their referendum. Everyone in Parliament will remember that the UK, along with four other large countries, had two commissioners, but we gave up our second commissioner with the enlargement of the EU in 2004. It is de rigueur in the EU for each country that comes into the club to get a commissioner—a seat at the main decision-making table in Europe. While that is a fine principle, it brings with it, as my hon. Friend the Member for Beckenham (Bob Stewart) suggested, some powers to guide and oversee, but also a mass of bureaucracy. I believe that that is one reason why my right hon. Friend the Prime Minister raised that question in his excellent speech at Bloomberg the other week.

One does not have to be pro-European or Eurosceptic to see that the European Commission has become unwieldy in size, and while this might not be the time to sort out the issue for good, it would be a good opportunity to raise this thorny issue for discussion with our European counterparts. With many new accessions down the line, it seems that this is an opportunity missed. Certainly, it would be an interesting discussion to have at roughly the same time that the multi-annual financial framework is decided. I wonder, if we had a reasonable debate on the subject, whether proposals at least to trim the Commission’s total budget for the next seven years could be achieved, even if it is not possible to trim or cap the number of commissioners.

I conclude where I began. It is really good to see some proper scrutiny as a result of the European Union Act 2011. I thank the Government for introducing that excellent piece of legislation and for sticking to both the letter and the spirit of it.

--- Later in debate ---

[Bob Stewart]

It might not be of much importance that the electronic publication of the Official Journal goes ahead, but I put it to my hon. Friend that it is pretty important how many commissioners are appointed, because that has a direct spin-off in cost terms.

[Jacob Rees-Mogg]

There are two parts to my hon. Friend’s point. On the first part, I disagree with him. The form in which instructions are sent out is important, and it is right that people should know about it. It is a long-standing principle of our law that ignorance of the law is no excuse. If that is fair, it is also fair that knowledge of the law should be made available to people in a timely and efficient way, because it is something that might affect their lives, and that when a change to the method of notification takes place, that should be debated in this Chamber and passed into law. On the second part, I completely agree that the number of commissioners is significant.

The second point that I raised with my right hon. Friend the Minister is crucially important. It relates to the change from article 308 of the previous treaty to article 352 of the treaty on the functioning of the European Union. Article 352 is broader in scope. Had it been assumed that anything previously incorporated under article 308 could be transmuted under article 352, that could have allowed all sorts of laws—my hon. Friend the Member for Daventry (Chris Heaton-Harris) went through a number of them—to pass into the body of European Union powers without any further scrutiny by this House. As is often the case, something that is in itself minor has set an important precedent in protecting the rights of this House to scrutinise these matters and to ensure that the interests of our constituents are protected.

I wish briefly to discuss the number of commissioners. I do not have the confidence that some hon. Members have in our commissioners, and I do not feel happy that we have one representing us. Commissioners take an oath that they will act in the best interests of the European Union. Some have argued that that is directly contrary to the oath that they have taken as Privy Counsellors, and we should be concerned about that. They are there, by design, to represent the interests of Europe, not of the United Kingdom. Perhaps because of our history and our civic traditions, our commissioners tend to take that very seriously, whereas commissioners from some other countries may simply represent the nation state that has sent them. I do not have great confidence that the person representing the United Kingdom is waving the Union Jack; they could just as well be waving that awful European Union flag.

--- Later in debate ---

[Mr Cash]

I do not want to be drawn too far down that route, but the simple reason for primary legislation is that, without it, there would not be adequate legislative authority, even for the questions that arise under this Bill.

I shall now turn to one or two issues relating to the Bill that required a considerable amount of consideration by the European Scrutiny Committee. I will give a tiny bit of history on the multi-annual framework for the European Union Agency for Fundamental Rights, but I will try to be as brief as possible. The Justice Minister, Lord McNally, stated in an explanatory memorandum that was issued to the House and the European Scrutiny Committee in January 2012 that he thought that the proposal was justified. He said that the Government would have opposed the proposal to extend the multi-annual framework, but wanted to consider whether the technical issues that they disliked had been addressed.

The European Scrutiny Committee reported on the proposal on 1 February 2012. We asked the Government whether they accepted the view of the European Commission that

“with the entry into force of the Lisbon Treaty, the Agency’s remit automatically extends, in principle, to all areas of EU competence under the TFEU, and that the Agency may therefore undertake activities within the field of police and judicial cooperation in criminal matters without any further amendment to its founding Regulation”.

We questioned the Government’s view that this decision satisfied the exemption requirements under section 8(6)(a) of the 2011 Act and would not require an Act of Parliament. Our 10th report, which was published on 17 July 2012, set out our concerns in greater detail. The draft decision remained under scrutiny.

The former Lord Chancellor, who is now the Minister without Portfolio, told the European Scrutiny Committee in July 2012 that a political agreement had been reached on the draft decision which excluded any new activity covering EU policing and criminal law measures. In a letter that he sent on 22 November, he told the European Scrutiny Committee that, having heard what we had said, the Government were now—although they had not been before—of the opinion that the exemption did not apply in this case, and that primary legislation would be introduced.

That is why we have this Bill—the European Scrutiny Committee did its job and asked for further clarification. [Interruption.] I am extremely grateful to the Under-Secretary of State for Foreign and Commonwealth Affairs, my hon. Friend the Member for Boston and Skegness (Mark Simmonds), for nodding his head, because sometimes people wonder what all the detail is about and whether we have to be so intricate. The bottom line is that the European Scrutiny Committee, by pointing out the legal objections and having a dialogue with the Government, who in turn had a dialogue with the European Commission, helped to make the legislation better. We helped to guarantee that there would be primary legislation and that, in the absence of the authorisation through the 2011 Act that had been deemed to be appropriate, this House would have the opportunity to consider the matter in the way we are considering it today. Indeed, after this debate, there will be a Committee stage and a Report stage.

The European Scrutiny Committee reported on the proposal again on 28 November. We cleared the document, but in January 2013 we pointed out to Ministers that the Government’s uncertainty about whether the exemptions applied to this decision had prevented the new measure from being agreed in good time. That is the history of this matter and it is important to put it on the record.

The draft decision on the number of European Commissioners provides another example of the European Scrutiny Committee takings its findings to the Government and, thereby, to the Commission. We received an explanatory memorandum and a letter from the Minister for Europe on 27 September. He stated that the size and composition of the European Commission was a fraught subject. He went on to say that it was difficult to identify a solution that was equitable, legitimate in terms of the relative size and weight of different European countries, and efficient. That is all in our report.

The European Scrutiny Committee considered the draft decision in its 13th report, which was published on 2 November 2012. We noted that because of delays in the draft decision being communicated to member states and because Parliament was in recess, it was not possible for us to scrutinise the proposal before political agreement needed to be reached on the draft decision at the General Affairs Council on 16 October 2012.

I put that on the record because it is important that these matters have a proper legal base and that Parliament has an opportunity to debate them. We are having this debate on the Floor of the House, so it is open to any Member of Parliament to discuss these proposals, to oppose them, to examine them in Committee and to table amendments.

[Bob Stewart]

Will my hon. Friend give way?

[Mr Cash]

I will give way in just a moment, if I may.

The problem is that when we provide for amendments to be made to matters that have been through the Council of Ministers, we are obliged under section 2 of the European Communities Act 1972 to continue to pass that legislation through our Parliament. That poses the very questions regarding the role of national Parliaments that the Prime Minister raised in his recent speech. The European Scrutiny Committee is currently conducting an inquiry into scrutiny and that is among the matters that we are considering.

If the House of Commons—or indeed the House of Lords, although I will stick to the House of Commons for my purposes—were to take exception to a provision that was included in an Act of Parliament for lack of a legal base or for some other substantive reason and wanted to vote against it, that would raise the very question that was embedded in the White Paper of 1971, which led to the passing of the 1972 Act. Under section 2 of that Act, we must implement all decisions that have been decided in the Council of Ministers, irrespective of any other factors. Under section 3, we must agree to all decisions of the European Court.

In the context of the Prime Minister’s speech— I welcome his comments on the referendum, although I think it will come too late—we have to evaluate where the power lies in passing legislation. We need an Act of Parliament for the provisions contained in the Bill for the reasons that have already been given, which I endorse. However, could Parliament veto the provisions that it covers if we did not want them to go through? We should be allowed to do so, and that will be part of the inquiry that the European Scrutiny Committee is now conducting. It is difficult to justify to the British people the fact that if they vote in a general election to have certain legislation implemented, they can then find that it is all decided in the Council of Ministers, where 91.7% of votes go in favour of European proposals. That brings up the whole business of how UKRep advises, or even decides, on such legislation, which is a vital question that affects the daily lives of this country’s voters.

[Mr Cash]

It is difficult to make sense of a lot of things that come out of the European Union, and I am reminded of what Alice said in “Alice’s Adventures in Wonderland” about believing half a dozen impossible things before breakfast every day. That is possibly one example.

The reality is that there are 27 member states, and there was a lot of discussion about whether there should be an equivalent number of commissioners. It was decided that each member state would continue to have a commissioner. I understand well what my hon. Friend says, and it is quite difficult to justify given countries’ comparative size, geography, GDP and so on. On the other hand, if some countries were to be denied a European commissioner, I suppose some people would say that they were being treated unfairly. Finally on the number of commissioners, I have argued in the past that the European Commission should be relegated to the role of a secretariat rather than the role that it currently enjoys.

[Bob Stewart]

My hon. Friend has eloquently, and at some length, posed and answered the question that I was going to put to him earlier. I was going to say that whatever we do here, it will have no impact on the number of commissioners.

[Mr Cash]

That is correct, given that the veto that was promised to us has been taken away.

Right at the beginning, when the European Communities Act 1972 went through, the functions of the European Union were fairly restricted. Up to the Single European Act in 1986, which I voted for, there were a limited number of qualified majority voting arrangements. That Act greatly expanded them, and I tabled an amendment at the time suggesting, “Nothing in this Act shall derogate from the sovereignty of the United Kingdom Parliament”. I was then advised by the Clerks—indeed, I went to the Speaker about it—that it was not possible to move such an amendment, because it would challenge the fabric of the 1972 Act. Time has moved on, and qualified majority voting is now used in a lot more cases.

There was a qualification in the 1971 White Paper, which led to the passing of the 1972 Act by a mere six votes. It stated that there would be no essential erosion of British sovereignty, and that we would have to retain the veto in our vital national interest, because doing otherwise would undermine and endanger the very fabric of the European Community itself. I repeated that point the other day and will do so again and again, for one reason—the mass of legislation that there has been since the referendum in 1975, including all the treaties, with some 35 million people in this country never having had an opportunity to express their view on that legislation. As I said in The Times the other day, treaty after treaty has gone through on a three-line Whip, without a referendum. There has been a vast accumulation of qualified majority voting, and all that legislation has been passed.

The Bill contains just one provision. Matters that would normally require a Bill have gone through both Houses of Parliament without one, but this one, which is based on a few lines in a directive or regulation, is in a Bill. There is a complete mismatch in proportionality in how we legislate.

There may well be no Division this evening, but that does not alter the fact that we have done our job, both in the European Scrutiny Committee and in the House, by examining a matter that would otherwise not have had a legal base under article 352. It is dangerous to legislate without having the power to do so. The rule of law is essential to the running of a stable Government and a stable European Union—if there is to be a European Union, it had better be stable and in accordance with the rule of law. Increasingly, the EU is demonstrating its lack of regard for the rule of law on matters such as the stability and growth pact. We also see it in the unlawful manner in which 25 member states went ahead after the Prime Minister had exercised the veto. There are many other examples. When a body that vaunts the rule of law as much as the EU is blatantly in breach of its own rules, there is trouble ahead.

--- Later in debate ---

[Mr Chope]

In that case, Mr Deputy Speaker, I shall raise my voice to make it obvious that this is not a private conversation. My hon. Friend the Member for The Cotswolds (Geoffrey Clifton-Brown) would like to have this conversation on the record—it certainly would not be on the record if it took place in the Tea Room. The short answer to his question is that we have a great opportunity, because the FRA has its multi-annual framework approved every five years. If we believe it has the wrong priorities, this is the moment to change it. The Bill could be amended to reflect the concerns of this Parliament.

[Bob Stewart]

I will talk directly to you, Mr Deputy Speaker, but also to my hon. Friend on my right flank. It would be impossible to amend the framework. As my hon. Friend the Member for Stone (Mr Cash) said, what hon. Members say will have little impact on the final decision.

[Mr Chope]

I hope that that is not correct. My hon. Friend is demonstrating pessimism—or realism.

Church of England (Women Bishops)

Bob Stewart Excerpts

Wednesday 12th December 2012 Commons Chamber

[Mr Bradshaw]

Indeed, and I understand that there have been spontaneous meetings at local and synodical level all over the country. At an emergency meeting this week, the synod in Bristol voted in a similar vein. There has been a real upswelling of indignation and sadness among many ordinary Anglicans.

As I was saying, things may be no better in the new Synod. The conservative evangelicals are well organised and motivated. If we look at the voting figures in the House of Laity, we see that the majority of lay representatives from some dioceses voted no, even when their diocesan synod had voted overwhelmingly yes. Of course I hope and expect that there will be conversations at local level with these people, to whom it should be gently pointed out that they have not really represented the views of their diocese very well. I have had quite a lot of dealings with the opponents, and particularly conservative evangelicals, and I am not filled with confidence that they will be persuadable.

[Bob Stewart (Beckenham) (Con)]

As I understand it, the Synod vote was not about whether there should be women bishops; apparently, that has been agreed already. The vote may well have been—I stand to be corrected—about how the Church can be kept together, in light of the fact that a minority of people, perhaps for theological reasons, cannot accept the oversight of a woman. That might be the nub of the problem. That is a question, as much as a statement.

[Mr Bradshaw]

The answer, of course, is yes, but the Measure made very generous provision for opponents of women priests and bishops; it would have allowed them to continue to have their own bishop. Supporters of the Measure believe that the concessions were pretty generous, and I do not think that they will become any more generous in the weeks and months to come.

That is why I say to the bishops that there comes a time in any organisation, whether it be a political party or a Church, when it is no longer sustainable or possible to move at the pace of the slowest, which in this case means not moving at all. The overwhelming majority of Anglicans do not want more delay. They believe that the opponents of women bishops will never be reconciled. If some of the opponents decide to leave for Rome or to set up their own conservative evangelical sect, so be it. Similar threats were made over women’s ordination. In the event, far fewer people left the Church of England than was predicted, and as time has gone on, more and more parishes that originally decided that they did not want women priests have come to accept and celebrate them.

Leveson Inquiry

Bob Stewart Excerpts

Monday 3rd December 2012 Commons Chamber

[Mr Andy Slaughter (Hammersmith) (Lab)]

I want to talk about costs in libel, privacy and other proceedings against the press. This is not an ancillary issue, either in itself or in the context of providing an effective self-regulatory system, according to Lord Justice Leveson. It will require fresh legislation to correct the current state of the law and to give effect to the whole Leveson framework. That is something that Leveson has said, and that the Government have conceded as well.

Prior to the enactment of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, it was possible for persons grievously wronged by the press to sue using conditional fee—no win, no fee—agreements. The McCanns, the Dowlers and Christopher Jefferies used them. On the back of spurious attacks on personal injury claimaints, the Government legislated in part 2 of the LASPO Act to remove the protection from such claimants in bringing libel or privacy claims. They claimed that they were following the recommendations in Lord Justice Jackson’s report on civil litigation costs, but they were not.

Under the LASPO Act, no win, no fee is available only if the claimant’s solicitor receives their costs from the claimant’s damages, up to 25% thereof, but the damages in libel cases are now quite low—perhaps £10,000 or £20,000—and it is not possible to run a libel case on £2,000 or £4,000. Even if it were, no claimant would risk bankruptcy, as it is no longer possible since after-the-event insurance premiums became non-recoverable to insure against losing a case and paying the defendant newspapers astronomical costs.

[Bob Stewart (Beckenham) (Con)]

Could not the independent regulator give good advice to people who have clearly been wronged and, with it, some assistance with getting recompense for the hurt that they have suffered? Going to court is so expensive for normal people, and it would be really good if the independent regulator could do something to put that right.

[Mr Slaughter]

That is what Lord Justice Leveson recommends, in a rather more organised way, but he says that it must be underpinned by statute.

Going back to my previous point, I want to quote Sally Dowler, who said:

“At the outset we made clear that if we had to pay the lawyers, we could not afford to bring a claim; or if we had any risk of having to pay the other side’s costs, we couldn’t take the chance. If the proposed changes had been in place at that time we would not have made a claim. Simple as that, the News of the World would have won, because we could not afford to take them on.”

Lord Justice Jackson said that the losing claimant should be given protection in costs—so-called qualified one-way costs shifting—but the Government ignored him. The result of that has been summed up by Lord Justice Leveson, on page 1507 of his report:

“In the absence of some mechanism for cost free, expeditious access to justice, in my view, the failure to adopt the proposals suggested by Jackson LJ in relation to costs shifting will put access to justice in this type of case in real jeopardy, turning the clock back to the time when, in reality, only the very wealthy could pursue claims such as these…An arbitral arm of a new regulator could provide such a mechanism”—

this relates to the point made by the hon. Member for Beckenham (Bob Stewart)—

“ which would benefit the public and equally be cost effective for the press”.

Those matters were discussed at length in proceedings on LASPO in both Houses. Victims of phone hacking, including Lord Prescott, raised the plight of all the victims and received this response from Lord McNally:

“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.”—[Official Report, House of Lords, 27 March 2012; Vol. 736, c. 1332.]

Yet nothing was in the Defamation Bill when it was published. On its Second Reading in this House, my right hon. Friend the Member for Tooting (Sadiq Khan) quoted Lord McNally’s promise, and added:

“Yet I do not see those issues being dealt with anywhere in the Bill. If the Government do not bring forward proposals to address this deficiency in Committee, we will have to do so.”—[Official Report, 12 June 2012; Vol. 546, c. 196.]

Indeed, that is exactly what we did. In Committee, we offered a variety of means for restoring the position of the claimants, but each of them was rejected by the Government, using what became a mantra that was repeated at all stages of the Bill, and that has been repeated today by the Secretary of State—namely, that the Government would look at the rules on costs protection for defamation and privacy proceedings when the defamation reforms came into effect. I am going to ask the Minister what exactly that means.

First, however, let me read out what Lord Justice Leveson says about costs. This is in paragraphs 68 to 72 of the executive summary:

“The need for incentives, however, coupled with the equally important imperative of providing an improved route to justice for individuals, has led me to recommend the provision of an arbitration service that is recognised and could be taken into account by the courts as an essential component of the system…Such a system (if recognised by the court) would then make it possible to provide an incentive in relation to the costs of civil litigation. The normal rule is that the loser pays the legal costs incurred by the winner but costs recovered are never all the costs incurred and litigation is expensive not only for the loser but frequently for the winner as well. If, by declining to be a part of a regulatory system, a publisher has deprived a claimant of access to a quick, fair, low cost arbitration of the type I have proposed, the Civil Procedure Rules (governing civil litigation) could permit the court to deprive that publisher of its costs of litigation in privacy, defamation and other media cases, even if it had been successful. After all, its success could have been achieved far more cheaply for everyone. These incentives form an integral part of the recommendation, as without them it is difficult, given past practice and statements that have been made as recently as this summer, to see what would lead some in the industry to be willing to become part of what would be genuinely independent regulation. It also leads to what some will describe as the most controversial part of my recommendations. In order to give effect to the incentives that I have outlined, it is essential that there should be legislation to underpin the independent self-regulatory system and facilitate its recognition in legal processes.”

He then goes on to explain, as mentioned by other Members, what the legislation would achieve and what its purpose was. The third of his three reasons is that

“it would validate its standards code and the arbitral system sufficient to justify the benefits in law that would flow to those who subscribed”.

What that means is that, as far as Lord Justice Leveson is concerned, the costs issue is at the heart of his principles and legislation is needed for it to take effect.

I was unable to intervene on the Secretary of State, so I would like the Minister to address in his winding-up speech the question of what type of legislation—primary or secondary—the Government envisage introducing to deal with the costs issue, which they have been promising for about two years, ever since the misguided legal aid, sentencing and punishment of offenders proposals first came about. If the legislative principle is ceded in the process—as my hon. Friend the Member for Rhondda (Chris Bryant) said—there will of course be some legislation relating to regulation of the press and here is a clear example, or a central example, according to Lord Justice Leveson, providing the entry to the entire regulatory system—it is the incentive given by the arbitral system and by the cost penalties that will lead to the whole self-regulatory body operating.

If that is ceded, what problem do the Government have in ceding the concept of legislation on the other two points that Lord Justice Leveson made? The first of those is

“to protect the freedom of the press”

and the second is to

“provide an independent process to recognise the new self-regulatory body and reassure the public that the basic requirements of independence and effectiveness were met”.

At the end of the day, that is all that Opposition Members—and, indeed, from what I have heard today, many Government Members, too—are asking for. The Government are setting up straw men in order to knock the proposals down. They are colluding with the proprietors of newspapers who are talking in the most arrant and nonsensical terms about what the implications of this will be. I believe that dealing with the costs route will justify the proposals that Lord Justice Leveson has made.

Defamation Bill

Bob Stewart Excerpts

Tuesday 12th June 2012 Commons Chamber

[Dr Huppert]

I thank the hon. Lady for her comment. She is right that we need to encourage more educated scientific debate among the general public. That is a larger issue than the subject of the present debate. The question is how far one goes in providing the sort of privilege that we are talking about. Peer review processes are significantly better developed than what we see in newspapers. I would expect newspapers to have more access to lawyers who could advise on libel because they deal with a range of issues. But there may be ways of going slightly closer to what the hon. Lady suggests and I would encourage something like that to happen.

[Bob Stewart (Beckenham) (Con)]

Is it not possible that we could have a sort of citizens advice bureau for people who are thinking of publishing something so that they could go to someone who understands the issues, without having to go through the law to get guidance quickly, so that good debate is not stifled?

[Dr Huppert]

I thank the hon. Gentleman for his comment, and I can see where he is coming from. The clause goes further than that and it is better. It says that for peer-reviewed academic publications, unless they are malicious, there is no risk. So the citizens advice bureau approach is not necessary. Anybody publishing in this way knows that they are fine, as long as they are not being malicious, and I hope people would not seek to be malicious in this way.

However, we do see such cases, and not only the famous ones. In the past six years one in 10 of all High Court libel cases have involved an academic or scientist. It is a real issue, and I believe firmly that scientists and other academics should focus on doing research in their field, not on researching the law. That protection is very welcome.

Clause 10 is another welcome addition to the Bill, particularly because it protects booksellers. As the hon. Member for Hastings and Rye (Amber Rudd) mentioned, they sometimes face cases on questionable materials. If they are selling two such books a year and are not interested in defending the case, they just remove the book from their stock. It should be the author who is responsible, wherever possible.

I support most of the other clauses. I am pleased to see clause 7, which extends some of the privilege protections, clause 8—the single publication rule—and clauses 9, 11 and 12. I am pleased to see clause 13, which gets rid of the Slander of Women Act 1891. Society has moved on slightly in terms of gender roles since 1891.

This is a good Bill, but there are still some areas of concern. I agree with those who have said that one of the key areas that has not been looked at enough is costs. It is key to get the costs right, but that is not entirely within the Bill. Cost is not just a matter of writing legislation. Legislation alone does not solve every problem. The Government need to do a little more work to make it clear how they will reduce costs, in addition to the legislative changes that are being made.

Then there is the issue that has been touched on recently about corporations and other non-natural persons. I agree with my right hon. Friend the Member for Carshalton and Wallington (Tom Brake) that non-natural persons are not natural persons: companies are not the same as people. They do not have feelings in the same way and they could be treated differently. There have been many cases, such as the McLibel case, of corporations which abuse their power and their resources to take unreasonable libel actions.

The Joint Committee recommended that corporations should have to prove that they have actual, substantial financial loss and that they should have to get permission from the court in order to take actions. That seems a modest way to go, given some of the other proposals, which are quite tempting. An extreme view is that corporations should not be allowed to take libel action at all. This has been tried in Australia, so that only corporations with fewer than 10 employees are allowed to take any sort of libel action. I have spoken to a number of lawyers in Australia, and that does not seem to be the best way to go. I hope the Government will not go ahead with that idea, although I was initially attracted to it.

I rarely disagree with comments from the Libel Reform Campaign, but I do not like the idea of courts being asked to make declarations of falsity. I was initially persuaded of that, as people who served on the Committee are aware, but I think on balance that it is hard to expect a court to say definitively, “This statement is false,” because new evidence can come up. It is a very hard thing for any court to say.

Lastly, let me turn to clause 5, which deals with an incredibly complex area. I think that the idea of a new defence is a good approach, but it needs to be tweaked somewhat and the Government’s proposed regulations should be published and available for discussion alongside the Bill. I hope that the Government will be absolutely clear that this new defence is an optional one that website operators can use but do not have to. It does not impose on them a duty; it merely gives them a defence if they comply with some regulations. Furthermore, I hope that the Government are absolutely clear that the existing defences from the e-commerce directive remain in place and that the rules about being a mere conduit and so forth still apply in exactly the same way they have done. It is very important that we do not see any inadvertent weakening of the protections available.

It is also important that we are clear that the good practice of post-comment moderation used by some website operators, whereby they try to do their bit to filter out the things they can tell are inappropriate, does not itself bring about liability, so long as that does not change the meaning in a damaging way or significantly increase the scale of publication. This was recommended by the Joint Committee and accepted by the Government, because if the BBC, for example, spots something inappropriate and removes it, it is important that that does not render it more liable to the thing that they could not have spotted because they would not know the facts of a case.

It is also important that there is an ability to preserve some anonymity. It is right that action should be taken against a person who posts something online, but there will be cases, such as those of whistleblowers and dissidents, in which there is a real reason why anonymity should be preserved. The key point is that there should be a communication channel between the person complaining and the original author, even if that is mediated by a third party.

This is a very complex area, and I welcome the fact that the Secretary of State said at the beginning of the debate that he was open to considerations to try to get it right. I hope that either he or the Minister will be able to arrange for the Bill team to meet me and the Libel Reform Campaign, internet service providers and organisations we have been talking with, such as Facebook, Google, Yahoo and Mumsnet, to discuss how we can get this right so that we get what we all want: something that works in a clear and simple way and gives the right protection to the people we wish to be protected. This is a good Bill and I am delighted to support its Second Reading.

--- Later in debate ---

[Michael Ellis]

I recognise my hon. Friend’s point, and the common law will no doubt develop in this area, but I hope that, if this Bill becomes law and removes the presumption in favour of jury trials, judges will recognise that jury trials will be less frequent than heretofore. I will be corrected if I am wrong, but I seem to recall that until relatively recently juries in defamation cases had a part to play in deciding the quantum of damages after successful defamation proceedings, and I recall also some rather large figures for damages awarded against various periodicals. I am a great fan of Private Eye, possibly because I have not featured in it—[Interruption.] I am not inviting it, and I emphasise that!

[Bob Stewart]

I have, and you are about to.

[Mr Deputy Speaker (Mr Nigel Evans)]

Order. “He” is about to.

--- Later in debate ---

[Guy Opperman]

I accept the possibility that my hon. Friend was not referring to that, but was referring to the development of events over the past few years.

It is absolutely vital to ensure that we have a free press and an ability to speak out without fear or favour—that is fundamental—but justice must be accessible to the people who receive comments from such a press. The Bill definitely increases that accessibility, and I welcome that wholeheartedly. Any interpretation of such legislation must take account of the countless stories told throughout this debate of people whose reputations have been annihilated on the internet and elsewhere.

[Bob Stewart]

Would it not be fair for people of little means to have the opportunity to go to, say, a defamation ombudsman who could give them advice and help them before they spend one penny? At the moment, the law seems to be available only to those who can afford it, and that is wrong. It should be possible for a man or woman of no means to be able to go and get decent advice from someone who knows what they are talking about.

[Guy Opperman]

I am delighted to say that to a certain extent such advice does exist. There more developed citizens advice bureaux and victim support organisations are able to provide such assistance, as are the Bar Pro Bono Unit and the Free Representation Unit. I have represented individuals in libel cases as part of the Bar Pro Bono Unit, and there will certainly continue to be such accessibility. However, my hon. Friend identifies one of the fundamental flaws in the Bill, which I hope will be remedied in Committee.

The Jackson report that was instituted by reason of the Legal Aid, Sentencing and Punishing of Offenders Act 2012, which we passed on 1 May, ensured that there is no ability to recover the cost of insurance for the litigation. The consequence of that is that individuals who wish to bring such litigation against a newspaper would have to risk a great deal were they unsuccessful. There is a way round that. The way forward is for the courts is to develop what they have developed in other branches of the civil litigation arena—a protective costs order. In the case of Compton v. Wiltshire primary care trust, the protective costs order was extended to a local group of individuals to make the case a matter of public interest. This means that were someone to wish to bring a civil action against a public organisation or a newspaper and it was in the public interest for them to do so, they would be protected were they to lose the case because the very fact of bringing that action constituted something that was in the public interest. I suggest that we will see that development in libel and defamation law. As my hon. Friend the Member for Northampton North said, common law will develop to accommodate the fact that, sadly, there is no legal aid and precious little to assist the individual litigant in taking a case against the newspaper or public institution that has defamed them.

The nature of this Bill is such that there is general agreement that we need to move forward and have a better understanding of such access to justice, which is patently not there at the moment. I should make a declaration as a trained mediator and as someone who was at the Bar and has earned a moderate living as a barrister. [Interruption.] I was not a very good libel lawyer, I hasten to add. The shadow Minister just said that I used to practice extensively at the Bar in this field, but I assure him that I was of no quality whatsoever in libel cases; I got far too irate. A greater use of mediation at an early stage can only assist. Looking at the various problems that arise in libel, the mediation and the apology at the early stages are most important, not necessarily the damages that are ultimately sought, but we get so enmeshed in the process of litigation that we end up with a case that has mushroomed way beyond the reality of the loss entailed. I therefore welcome the extra mediation and alternative dispute resolution processes that the Bill will bring about.

I warn that there can be a sad tendency to have a great deal of discussion at the early stages of the litigation process. I have witnessed that in many a case. One has to clear hurdles at the outset to prove that the nature of one’s case gets over a certain threshold and it would be not unheard of for a newspaper or a public organisation with deep pockets suddenly to attack the individual and say, “We don’t accept the judge’s finding that you’ve got over this hurdle—we shall appeal this.”

I represented Mrs Compton in the case of Compton v. Wiltshire primary care trust, which concerned the health services in the constituency of my hon. Friend the Member for South Swindon (Mr Buckland). There were 14 separate pieces of litigation involving the primary care trust that went all the way to the House of Lords on seven separate occasions. Her original hurdle was overcome and tested all the way to the House of Lords. These early hurdles must have a finite end. If one has a preliminary hurdle to get over in a defamation case, as is now set by the Bill, there should be one single right of appeal and then the matter moves on. Without that sort of process, an individual may find themselves enmeshed in ever-deeper litigation before the case has even got off the ground. By that stage, years have passed, their reputation is gone, and their ability to respond to the libel or defamation has totally dissipated. I warn the Minister that there needs to be strict guidance on the maintenance of the alternative dispute resolution process as it goes through.

I am glad that my hon. Friend the Member for South Swindon has returned to his seat. I sat through his lengthy and impressive speech, in which he said, if I remember correctly, “The law, like the Ritz, is always open.”

--- Later in debate ---

[Heather Wheeler (South Derbyshire) (Con)]

It is a pleasure to follow my hon. Friend the Member for Hexham (Guy Opperman). I come at the Bill from a completely different perspective, because I am definitely not a lawyer. I am very much a poacher turned gamekeeper on this matter, because in another life I was an insurance broker—even worse than a lawyer—and I used to place libel and slander policies at Lloyd’s. When I saw this debate on the Order Paper, I therefore thought, “You know what? This is one for me.”

Having sat here since half past 3, I have been considering whether to give the five-minute speech, the 10-minute speech or the 15-minute speech. I have not had the nod and the wink from the Whips to say that it should be the three-minute one because we are getting to the later stages of the debate. As has been said, there is cross-party agreement on this matter. Is that not a breath of fresh air in this Chamber?

Clauses 2, 3, 4 and 9 are particularly helpful. They have all been expanded on by learned friends, so as a mere humble Back-Bencher and political hack, and not a lawyer, I do not need to expand on them further.

[Bob Stewart]

And not learned.

[Heather Wheeler]

Indeed, not learned at all.

What is fascinating to me is that the Bill is drafted so clearly that the person on the Clapham omnibus will be able to understand it. Two years into this glorious coalition Government, is it not something that we are finally getting a Bill about which the person on the Clapham omnibus will be able to say, “That protects me. I understand that.”? It can be understood not only by lawyers, but by MPs and ordinary people who do not earn their money by standing before people with wigs—you are not wearing a wig tonight, Mr Deputy Speaker, so I can genuinely say that. We have found a Bill that the people will rejoice at. There should be greater publicity about the process by which this Bill has come about. It should be held up as a burning light to demonstrate what Parliament can do when it does the right thing and gets behind something.

It is an even better Bill because it fits with the great coalition pledge of one-in, one-out. We are getting rid of a horrendous piece of law that has been in force since goodness knows when.

Transparency and Consistency of Sentencing

Bob Stewart Excerpts

Thursday 2nd February 2012 Commons Chamber

[Neil Carmichael (Stroud) (Con)]

I am grateful to be called to address the House on this important subject. I am minded of the observation of my hon. Friend the Member for Shipley (Philip Davies) that this debate might become a bit like a lawyer’s dinner. I have never been to a lawyer’s dinner because I am not a lawyer, so there will be no comments from me about the law. However, I think it is important to raise the issue of what people perceive to be going on in our systems.

Oddly enough, one of the first things I did when I became the Member of Parliament for Stroud was to campaign to save the magistrates court—and we successfully managed exactly that. I had to go to see what I was saving, and that was my first trip to a court. I do not expect to go to court in any capacity other than as an Member of Parliament showing interest. That magistrates court showed me just how detailed the thinking of the magistrates is when they decide how to deal with the people coming before them. I was impressed by the quality of advice they sought and by the advice they were able to give themselves. I was also impressed that young children regularly came to the court, as organised by Gloucestershire magistrates, to make them more familiar with the court and court processes.

That brings me to the first point I want to ram home. We need to understand that there are a large number of cases, that the public cannot know everything about any of them and that the public will certainly not have a proper grasp of the nature of the deliberations throughout a case. The Secretary of State for Justice quite properly acknowledged that point in his opening speech.

That leads us on to problems with the media and their gung-ho approach to sentencing, which can effectively mislead the public—not necessarily deliberately, but because they are sometimes so enthusiastic about making a general point. That does not help the debate. It is therefore important to recognise that the media can be damaging in this as in many other areas when they come out with relatively simplistic explanations of the circumstances they describe.

That is not to say that we should not encourage transparency. We certainly should do so, because the more we know about things, the better, particularly given the number of cases and the number of people who end up with custodial sentences. Information is important in the debate about sentencing and encourages people who are interested in the subject to talk about the issues in more concrete terms, with facts at their disposal. Transparency is absolutely necessary.

[Bob Stewart (Beckenham) (Con)]

I have been listening to the debate in my office when I had the time. I have been on a RAF parliamentary scheme, but I wanted to come to the Chamber to make a simple point about transparency. In June 1986, I gave evidence at a trial in Belfast after the murder of 17 people. Five people were found guilty and were given life sentences. A few years later, I was informed that they had all been released. One of the things that I found upsetting was the fact that it was never explained why those people were released so early although they had killed so many. I think that the public would appreciate it if transparency operated in instances such as that. They would like to be told,“ These people have been released for the following reason, and that was the judgment of the court.” I appreciate that judges are very clever people and that they have sight of all the facts, but it would be nice if it could occasionally be explained why someone has been released early. I am sorry; that was a long intervention.

[Neil Carmichael]

I thank my hon. Friend. What he has said reaffirms my view that transparency is important. I do not doubt that the Secretary of State listened to that carefully as well.

The rule of law is essential to us as libertarians, as politicians, and as a country with common law at its core, and it is important to bear in mind that the separation of powers makes the rule of law work well if we respect that separation of powers. It is vital for us to recognise the independence of judges, to understand that—as the Secretary of State said—they are there to make judgments, and to understand that they are likely to be the best people to talk about a case because it is they who are judging it and know all about it. I think that politicians are heading into dangerous territory if they become too prescriptive about the way in which they think judges should be sentencing.

I also think it dangerous—this point was made by my hon. Friend the Member for South Swindon (Mr Buckland)—to think in terms of a sort of toolkit that forces certain decisions to be made because of what we think is happening in a relatively abstract way. It is important to make the distinction between specific cases and setting rules, which is what we are talking about, and to respect the fact that the separation of powers is core to our way of proceeding.

Why do we give out sentences? Surely one of the most obvious purposes of sentences is to ensure that people stop misbehaving, and that is what we need to talk about in this debate. Several Members have referred to the number of individuals who are reoffending, and it is true—I have checked the facts myself—that 57% of short-term jail sentences result in reoffending within 12 months. That is completely unacceptable: it is not what we are doing the job for. We need to understand why there is so much reoffending. I think that many aspects of the problem are connected with the way in which prison operates. For instance, a number of my constituents have encouraged me to think about the standard of literacy in our prisons, and quite right too. Far too many people who end up in prison, especially the young, cannot read or write properly.