Defamation Bill
Denis MacShane Excerpts(12 years, 3 months ago)
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Jeremy Wright
New clause 1 deals with an issue raised in Committee by the hon. Member for Newcastle-under-Lyme (Paul Farrelly). He was concerned that circumstances could arise in which a claimant who had successfully brought an action against the author of defamatory material online could be left unable to secure the removal of the material. That situation might arise as a result of the fact that an author might not always be in a position to remove material that had been found to be defamatory from a website, while the new defence in clause 5 might prevent the website operator from being required to do so. The Government indicated in Committee that we would consider whether anything further was needed to address such situations.
We have concluded that although such situations are likely to be rare, it would be appropriate to include a provision in the Bill to ensure that claimants in such cases do not experience any difficulty in securing the removal of material that has been found to be defamatory. New clause 1 therefore provides that where a court gives a judgment for the claimant in a defamation action, it may order the operator of a website on which the defamatory statement is posted to remove that statement. Such an order could be made either during proceedings or on a separate application. New clause 1(2) ensures that the provision does not have any wider effect on the inherent jurisdiction of the High Court.
In speaking to new clause 1, it may be helpful if I speak also to Government amendments 5 and 6, and to amendment 7, which has been tabled by the hon. Member for Stoke-on-Trent South (Robert Flello). Government amendment 5 relates to the circumstances in which a claimant might defeat the defence set out in clause 5. Such circumstances are set out in clause 5(3), paragraphs (b) and (c) of which require a claimant to show that he gave the operator a notice of complaint in relation to the statement in question and that the operator failed to respond to it in accordance with provisions to be set out in regulations. In addition, paragraph (a) requires that a claimant must show that it was not possible for him to identify the person who posted the statement. Amendment 5 clarifies what is meant in paragraph (a) by the word “identify”. Again, concerns were raised in Committee by the hon. Members for Newcastle-under-Lyme and for Stoke-on-Trent South that the meaning of the word “identify” was unclear and that possible difficulties in obtaining the true identity of the author—for example, when he was using a pseudonym—might mean that the claimant was left without a remedy. In the light of those concerns, we undertook to consider the position further.
Amendment 5 clarifies that, for the purposes of subsection 3(a), it is possible for a claimant to “identify” a person only if they have sufficient information to bring proceedings against that person. The amendment will ensure that claimants are not left in limbo, unable to bring proceedings against an author because they lack information that would enable them to do so, but also unable to defeat the defence of the website operator if the operator failed to take steps to assist. We consider that that will ensure that the new process operates fairly and effectively and strikes an appropriate balance between the interests of claimants and those of website operators.
Amendment 6 makes it clear that if the website operator moderates material posted by third-party users on his site, that fact alone will not defeat the defence that is available under clause 5 to a website operator who can show that he did not post the statement complained about on his website. We share the view, expressed by the Joint Committee on the draft Bill and Members of this House, that responsible moderation of content should be encouraged. We have listened to the concerns raised in Committee and consider that it would be helpful to include a provision giving reassurance on that point. Amendment 6 therefore provides that the defence under clause 5 is not defeated by reason only of the fact that the website operator moderates the statements posted on the site by others.
There might of course be situations when an operator goes too far. They might, for example, moderate content on the website so much as to change the meaning of what the author had posted in a way that makes it defamatory or increases the seriousness of the defamation. In such cases, the courts will have to consider whether the operator’s actions were sufficient for them to be regarded as having posted the material.
We have considered carefully the merits of seeking to prescribe the particular circumstances in which moderation might or might not lead to the operator being regarded as having posted the material. Precisely when an operator should become responsible for a statement they moderate will depend heavily on the individual circumstances of the case. On balance, we think it is right that the courts should have flexibility in making that assessment. We consider that these are sensible and helpful amendments that will aid the effective operation of the new process under clause 5.
Amendment 7, by contrast, would remove clause 5 from the Bill. I will of course listen carefully to what the hon. Member for Bishop Auckland (Helen Goodman) has to say on the matter, but I am sorry to say that we do not consider removing the clause to be an appropriate move. The current law in this area is unsatisfactory and has created a situation in which website operators, to avoid any risk of being sued, choose to remove material from sites they host on receipt of a complaint, whether or not the material is actually defamatory. That chills free speech.
However, we recognise that when people are defamed online they need to be able to take prompt and effective action to protect their reputation. Including clause 5 in the Bill will mean that the author of a statement is given an opportunity to defend it, rather than it simply being taken down on receipt of a complaint. Should the need arise, complainants will be able to bring proceedings against those truly responsible for statements.
Mr Denis MacShane (Rotherham) (Lab)
What comment will the Minister make on the fact that Wikipedia publishes biographies of people that are then regularly amended to include untrue, defamatory and unpleasant language? Does he think that Wikipedia should inform those people whose biographies have been re-written in such a way that causes them damage and then allow a truthful statement to be made? At the moment, Wikipedia is an absolute disgrace, allowing the British National party, fascists, anti-Semites and other extremists to alter people’s personal entries.
Jeremy Wright
I understand exactly what the right hon. Gentleman is saying, but he will appreciate that the limits of the Bill are quite constrained, and it is difficult within the confines of our discussion on Report to cover all the issues he raises. What I will say is that clause 5 attempts to strike a balance between protecting freedom of speech on the internet, which he and I are both in favour of, as I am sure is the whole House, and ensuring that there is a quick and effective method by which those who, for example, have their biographies on Wikipedia amended can address the wrong that is done to them. That is the balance we are attempting to strike and that we believe is struck by clause 5 as it stands, which is why I am afraid we cannot support amendment 7. We stand by clause 5 but believe that it can be improved, which is why we ask the House not only to reject amendment 7, but to accept amendments 5 and 6 and new clause 1.
Mr MacShane
Inadvertently, the Minister has just torn up, buried, driven a stake through one of the oldest principles of journalism: when in doubt, leave it out. That has saved a lot of newspapers in a lot of countries from defamation cases, so it is a very good idea. He is reversing that by saying, “Let it be published. If you have doubts, let’s see whether the person we are defaming can get an action and then a decision from a court judge.” I hope that when the Bill goes to the other place we will enshrine the very good principle of journalism: when in doubt, do not publish and leave it out.
Jeremy Wright
The right hon. Gentleman slightly over-dramatises the position; I am not saying that at all. I am saying that particular circumstances apply to the clause dealing with website operators. New clause 1 is designed to assist us in striking the balance that I have mentioned several times. We hope that the effect of the Bill as a whole will be to encourage all those inclined towards publishing statements that are potentially defamatory to think carefully before they do so. However, we want to strike the right balance between that and ensuring that people are not so afraid of having actions brought against them that they do not allow free speech to operate, either on the internet or elsewhere. I have accepted many times that this is a delicate balance to strike, but we believe that we have done our best to strike it.
John McDonnell
Let us not go into it now; we can discuss it another time.
I am the secretary of the parliamentary group of the National Union of Journalists, which obviously has taken an interest in the Bill. The right hon. Member for Bermondsey and Old Southwark (Simon Hughes) said that this is something of a dress rehearsal for what comes out of Leveson and, as my hon. Friend the Member for Newcastle-under-Lyme (Paul Farrelly) said, there is real concern about the Bill’s practical implications and what might arise from Leveson.
It is clear, as hon. Members have said, that good journalism is essential for a healthy democracy and that investigative journalism plays a vital role. As the right hon. Member for Bermondsey and Old Southwark said, we have heard today about the worst journalism, in the form of the performance of The Sun on Hillsborough, but there are examples from recent years of the best journalism, such as the exposure of corruption in the House with MPs’ expenses and of ministerial relationships. For me and the NUJ, it is critical that the Bill does nothing to undermine the vital role of good journalism and the contribution that it makes to our society. Of course, it is also important to ensure that journalists uphold decent standards of behaviour, so we must get the balance right, and I have tabled amendments to deal with the Bill’s practical implications on the basis of the way in which journalism operates and the pressures and pace of journalistic practice.
Although I welcome the context of clause 4 and the range of factors of which a court must take account when reaching a decision about the protections of privilege, the measure raises questions about practice on the ground. Subsection (2)(f) deals with the court taking account of
“whether the defendant sought the claimant’s views on the statement before publishing it and whether an account of any views the claimant expressed was published with the statement”.
Amendment 1 inserts a reasonableness test with the words
“within…a reasonable amount of time following initial publication”.
The aim is to broaden the potential for journalists to claim the defence of having contacted the claimant within a reasonable time frame, not necessarily before publication.
We all agree that it is good practice for a journalist to contact the claimant before publication, but that is not always possible for a variety of reasons, some of which relate to the way in which the courts have been used—the threat of a lawsuit or the triggering of an injunction or a super-injunction, and, in some cases, the threat of physical force. Often injunctions are sought by the rich and powerful, who are keen to prevent the publication of a detrimental story, or to delay its publication until they have had time either to hide the damaging evidence, or develop an appropriate public relations strategy to limit the damage. I believe that it should be a defence that the claimant’s views were published either concurrently with or within a reasonable time after initial publication, as existing journalistic codes already demand.
Amendment 2 is designed to acknowledge the fact that, yes, journalists should take all reasonable steps to check the accuracy of facts, but to recognise also the pressures of a news environment. While rushing to print is no excuse for poor journalism, journalism is part of a commercial operation and getting the story first is often crucial for a newspaper or broadcaster’s commercial viability.
Mr MacShane
Many years ago, early in my trade union life, the Daily Mail made up quotes, attributed to me, regarding a BBC meeting on a strike issue. When I remonstrated with him, the journalist said, “Oh, come on Denis, it’s the kind of thing you’d have said anyway.” It was, but that missed the point, which was that I had not used those words. I am worried that a future judge, reading my hon. Friend’s speech as he tries to work out how to interpret the clause, will think that it is quite all right to wait until after a story is published to seek a quote. Paul Dacre would thoroughly approve.
John McDonnell
I would say that falls on the basis of clear malice on the part of the journalist.
The point of the amendment is to recognise the commercial environment in which journalists work. To have a scoop, it is important to get out there and publish a story. Of course, if there are errors or inaccuracies, there is the opportunity at a later date to publish the appropriate corrections. Often, public interest news stories are perishable, lasting only a limited period. It is important to get a story out there while it can influence the public debate.
Amendment 3 follows on from the points made by my hon. Friend the Member for Newcastle-under-Lyme about codes of conduct. Under the amendment, the courts, when considering matters of privilege, would have to have take into account whether the defendant had abided, or tried to abide, by the standard code of practice, which was introduced by the National Union of Journalists and developed from the 1930s onward. That code of conduct includes a requirement that the journalist
“Strives to ensure that information disseminated is honestly conveyed, accurate and fair…. Does her/his utmost to correct harmful inaccuracies”
and
“Differentiates between fact and opinion.”
The NUJ says that within the code of conduct
“material for stories should be obtained by honest, straightforward and open means”.
Only exceptionally in the public interest should any other means necessarily be used to obtain a story.
We all know from the evidence provided to Leveson the pressures that are applied to journalists. Michelle Stanistreet, the general secretary of the National Union of Journalists, presented evidence collected from journalists about the pressures put on them to fail to abide by that code of conduct, which is one reason we tried to amend employment legislation. We wanted the code of conduct to be written into employment law, so that journalists would have protection against wrongful dismissal if they were seeking to abide by the code and refused to write a story that broke it or went against it. This measure is another way of introducing the code in legislation, which we should use to uplift the standards of journalism and give people protection.
Finally and more contentiously, I wish to add to clause 4 a further category for consideration. Amendment 4 states:
“In determining public interest, the court shall have regard to whether the claimant is someone in public life, which should be taken to include (amongst others) politicians, public officials, celebrities and others whose influence, earnings or social status is dependent on a public image”.
I introduce that provision with some trepidation, because it is a red light for any journalist who wants to trawl through my private life to demonstrate how someone could be defended on that basis. I do not have any criminal convictions—I have spent a few nights in the cells as a result of demonstrations and so on—and I have no bizarre sexual proclivities that I am aware of, although I have noticed my wife and her friends reading “Fifty Shades of Grey”, so I shall keep Members updated on that one.
The whole point of the provision is to recognise that there are two different categories of people. Civilians do not rely on their public reputation for their earnings and do not parade their standing or use their public image to that effect. Journalism has a role in exposing the wrongdoings or antisocial behaviour of individuals in public life. It has been an essential part of our democracy for centuries in enabling us to judge whether someone is suitable for public office. That applies too to those celebrities who earn a living from their celebrity status and exert some influence in our society. There is case law on this, including a recent case involving Steve McClaren, in which Justice Lindblom said that it was clearly in the public interest to expose a story about someone whom he described as “undoubtedly a public figure”.
In America, there is a public figure defence, which establishes some form of privilege. That means that someone in public office would have to prove either a reckless disregard for the truth or malice when damaging information is published. Refusing to print corrections or clarifications, for example, would constitute evidence of reckless disregard. My proposal recognises what the public appear to appreciate, even if others do not do so: those who enter into public life should be open to public scrutiny. As long as that scrutiny is honest and produces evidence that can be substantiated, they have to take the rough with the smooth. On that basis, we can maintain both the standards of journalism, by making sure that journalists report accurately and fairly, as well as the role of journalism in exposing falsehoods, lies and corruption.
I shall not press my amendments to a Division. Overall, they seek to put into context the reality of journalistic practice. We live in a fast-flowing, 24-hour multi-media world. There are limited staff resources, and journalism is highly competitive, with immense pressures just to survive. Journalists need protection just as much as other individuals if they are to perform their role in society and if we are to value them as the foundations of our democratic society.
Mr MacShane
It is vital that the other place slows the Bill down because it is in lock-step with Leveson. There is complete and utter parallelity or parallelness between the two—[Laughter.] Hansard can sort that out. I strongly second what the right hon. Gentleman says.
Simon Hughes
I agree that there is complete and utter whatever-it-is between the two.
Mr MacShane
This is a welcome Bill. I welcome the constructive approach of the new Secretary of State and his team and congratulate them on their appointments. The Bill will now go to another place, where we are rather more well provided with learned friends, the lawyers, who may have some thoughts on how it might have to be amended.
Nearly two years ago, in an exchange with the Secretary of State’s predecessor, the right hon. and learned Member for Rushcliffe (Mr Clarke), I asked:
“Do we not need a small claims court for libel cases which could quickly…at a low cost in damages and expenses deliver remedial justice, apology and correction?”—[Official Report, 29 March 2011; Vol. 526, c. 161.]
I very much hoped that this Bill would satisfy that request, but to be honest, it does not. It tidies up many of the problems to do with libel tourism and scientific publication that have caused a great deal of concern and brought together a big coalition of different campaigners who have influenced all parties. However, that does not allow the small person—what one patronisingly calls “the little man”—to have the quick, swift redress that exists in other countries when he has suffered a clear wrong in a newspaper. That is why the parallel work of Lord Leveson must be taken into consideration in the other place and when the Bill comes back here so that we have a complete package of reform that puts right many of the injustices that so many people have faced at the hands of a mixture of very powerful media oligarchs and legal oligarchs.
I want particularly to refer to the problem of libel tourism. Right now, there is an ongoing case initiated by a Mr Pavel Karpov, who is a 35-year-old Interior Ministry employee in Russia. He was involved in the sequence of events that led to the death of Sergei Magnitsky, which has attracted much attention in this House. Through a unanimous resolution of the House of Commons, it has been decided that he and 59 other named Russian officials should not be allowed to enter Britain, although the Foreign Office and the Home Office are still equivocating on that. On 1 August, Mr Karpov filed an action in the High Court against William Browder, who is a British citizen, and Jamison Firestone, who is an American citizen resident in the United Kingdom—Sergei Magnitsky’s former boss and direct boss respectively—in order to silence them in their campaign to bring about justice for Mr Magnitsky. Pavel Karpov has hired Geraldine Proudler, the partner and head of the reputation and media litigation practice at Olswang, at roughly £600 an hour, when he himself earns $600 a month. He has hired Andrew Caldecott QC—
Mr Speaker
Order. May I ask the right hon. Gentleman to confirm that the cases that he is describing are not the subject of active proceedings?
Mr MacShane
No, Sir, they are not. They are just filed at the moment and can be discussed. No charges have been initiated.
Such cases are a prime example of libel tourism. One of President Putin’s chief functionaries still thinks that he can get away with libel tourism in this country. I hope that someone in the Russian embassy reads this Bill and understands that that kind of libel tourism is no longer acceptable.
Sir Peter Bottomley
You, Mr Speaker, and the right hon. Gentleman may remember that when we debated the Sergei Magnitsky case and the scandalous way he had been treated, an offer was made in public that the Russian ambassador might like to have a discussion with Members of Parliament. Will the right hon. Gentleman join me in extending that invitation to the Russian ambassador?
Mr MacShane
I will freely do so. I do not want to drag this debate into the Magnitsky affair, but it is remarkable that, around the world, people think London is still a town called Sue. Pavel Karpov is a $600-a-month state functionary, employed in Russia, who is hiring the most expensive lawyers, QCs and solicitors, and who has even hired a public relations company called PHA Media, which is run by Mr Phil Hall, a former editor of News of the World, to manage his campaign. I hope that the Karpov case will be the first to fall as a result of tonight’s Third Reading, which will go through unanimously.
When the Bill is debated in the other place, I hope that changes will be made to it to help the small man. Much of the Bill—I do not have time to go through the details—remains an absolute paradise for lawyers. The very first clause states that a statement is not defamatory unless it
“has caused or is likely to cause serious harm to the reputation of the claimant.”
Occasionally I read comments about you, Mr Speaker. I do not know whether they cause serious harm and I certainly do not think that you would wish to comment on whether they do, but you would have to shell out six times your salary to pay m’learned friends as they debated whether it did. Even the first clause, therefore, opens the door for more money to flow into the coffers of our undoubtedly underpaid legal fraternity.
It is good that we have debated the Bill and that the Government are prepared to co-operate. I agree with my right hon. Friend the Member for Tooting (Sadiq Khan) that the Bill is seriously flawed and hope that it will be re-examined in the other place and brought back here in a more helpful condition, and that, together with Leveson and, possibly, privacy legislation, we can produce a panoply of laws for our nation that will ensure for decades to come that this is a country not only where good journalism flourishes, but where people cannot be unfairly traduced by things said and printed about them.
Mr Garnier
Yes, especially for free.
The Derbyshire county council case was a development of the common law. The judges decided that it was no longer appropriate for a local authority to bring an action for damages in defamation. As it happened, it was against our right hon. Friend Lord Tebbit—but I am sure that that had no influence on the judges. As I understand it, nothing in the Bill has any bearing on whether the Court of Appeal or Supreme Court can reach a similar decision based on argument in respect of a learned society. Since we have a Bill and if we are to do that, however, we might as well think about it between now and October or November—whenever the Bill moves to the other place—and deal with it in legislation, not least because the issue is hot and strong following the Simon Singh case.
The Bill has good intentions and contains some good, defensible and sensible clauses. It also probably promises more than it can deliver, particularly in relation to libel tourism. I disagree with the right hon. Member for Rotherham about its being a bad thing that people want to come to London to litigate. Nobody seemed to complain the other day when Abramovich sued Berezovsky were in this jurisdiction. That demonstrates that in the United Kingdom people can find uncorrupted judges who will deal fairly with difficult cases. If foreigners want to sue other foreigners in our courts, I see no problem with that. Before the right hon. Gentleman rises again to defame others under the cloak of absolute privilege, he might consider that if the courts find that there is no real connection between the litigants and the jurisdiction, they can strike out the claim under the Spiliada principles, with which I am sure he is familiar. They essentially mean that that court is not the appropriate forum in which to bring an action.
Mr Garnier
I have clearly puzzled the right hon. Gentleman so I will let him intervene.
Mr MacShane
The concept of forum non conveniens—I think that is the Latin phrase—is quite well known. An employee of the Russian state has been accused in this House by a Commons resolution of being linked to the murder of someone employed by a British firm. He earns $600 a month but is hiring the most expensive QC, lawyer and media company to sue a British citizen in connection with a huge international scandal. This week, the United Congress will pass its “Justice for Magnitsky Act”, banning Mr Karpov and 59 other named people. That has nothing to do with protecting reputation; it is a cynical abuse of London’s reputation in which any lawyer can be brought to defend anybody on any cause.
Mr Garnier
I do not want to descend into the right hon. Gentleman’s difficulties with lawyers and he will have to sort out his own problems. If the courts find that the claimant referred to by the right hon. Gentleman has no proper basis for bringing a case in this country, they will knock the case out. That applies to contract, privacy, defamation and any other cause of action. I am looking for a proper assessment of the dangers and damage that could be caused to our integrity as a jurisdiction by the use of our courts by overseas litigants. I think such danger is wildly exaggerated and that the ability of our courts to discipline those hopeless cases is underestimated, so I hope we can deal with the issue in a calm and sensible way between now and Third Reading in the other place.
I wish the Bill well as far as it goes. I hope that tonight’s proceedings are not controversial and that we do not have a Division, as that would be unnecessary and unhelpful. I look forward to listening to or reading the debates in the other place, and trust that when the Bill is returned to this House—if it is returned—it will be improved. Surely that is what we expect of the parliamentary process. This is not a politically controversial piece of legislation; it is deeply technical and, some would say, rather tedious. I wish the Bill well, however, and I repeat my congratulations to the Lord Chancellor and Secretary of State for Justice and his two colleagues.
Oral Answers to Questions
Denis MacShane Excerpts(13 years, 8 months ago)
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Mr Clarke
I agree with my hon. Friend and her quotation. Jury trial is rarely used in defamation cases, but it greatly adds to the length and the cost when used, so there is a wide consensus that it is not usually appropriate. It also cuts out the ability of the judge to settle a lot of preliminary points before going on to the full hearing, in a way that cuts down costs and speeds up justice for all parties. So far, there has been a favourable reaction to our proposals that in defamation cases there should be a presumption against jury trial. That has nothing whatever to do with the coalition Government’s commitment to the use of jury trial in criminal cases.
Mr Denis MacShane (Rotherham) (Lab)
But does the Lord Chancellor accept that one organisation that he will not be able to meet is the organisation of the little man and the little woman, because it does not exist? They are the ones who most often face defamation and malicious or inaccurate comments and reports, as do even right hon. and hon. Members occasionally, difficult as that may be to believe. Do we not need a small claims court for libel cases which could quickly and expeditiously, at a low cost in damages and expenses, deliver remedial justice, apology and correction?
Mr Clarke
I think we need low-cost, quicker, simpler and more efficient procedures in most of the civil justice system. The statement that I hope to be allowed to make at half-past 3 will take that further in various ways. Defamation has never been eligible for legal aid, but anything that simplifies the process and gets more matters treated as preliminary questions will make it more accessible to the ordinary citizen when his reputation is unfairly tarnished.
Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Bill
Denis MacShane Excerpts(13 years, 11 months ago)
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Mr Djanogly
I am very grateful for being put right on that point, so fifth place it was. My right hon. Friend could no doubt have chosen any one of numerous topics from his own extensive experience without consulting anyone, and I am sure that it would have been a topic well worth debating and, perhaps, legislating on. Instead, however, he decided to consult the Law Commission and ask whether any of its recommendations, as he said earlier, were suitable for a private Member’s Bill and unimplemented. Those discussions led him to the commission’s draft law reform (succession) Bill, which was published in the Commission’s 2005 report, “The Forfeiture Rule and the Law of Succession”.
The provisions of that draft Bill had, by the time my right hon. Friend was considering what to do with his place in the ballot, been published with minor modifications as part 3 of the draft Civil Law Reform Bill. Those provisions, which my right hon. Friend adjusted in the light of the response to the distribution of estates provision in the draft Civil Law Reform Bill, form the basis of the Bill that we are debating today.
As the Minister responsible for the general law of succession in England and Wales, and as a Minister in the Department that sponsors the Law Commission, I am doubly pleased to be able to announce the Government’s support for this Bill on the law of succession; and I was pleased to hear from the hon. Member for Stoke-on-Trent South (Robert Flello) that the Opposition support the Government’s position in that context.
My hon. Friend the Member for Christchurch asked why the commencement date is not three months after Royal Assent, and the simple answer is that that is to allow the professionals and others to prepare for commencement: there will be wills to be re-looked at and so forth. Before considering the substance of the Bill, I should like to record the Government’s thanks to the Law Commission for its work on the forfeiture rule and the law of succession.
Law Commission Bills are by their nature likely, legally speaking, to be very technical, and this Bill is no exception. There is more to a law reform Bill than technical accomplishment, however; we have to be sure that it delivers the desired policy outcome effectively and efficiently. In that respect, the Bill has the additional advantage of having already in effect been carefully scrutinised by the Justice Committee. I know that my right hon. Friend the Member for East Yorkshire has paid careful attention to the Committee’s conclusions, and I thank my right hon. Friend the Member for Berwick-upon-Tweed, who as Chairman of the Justice Committee considered the draft Civil Law Reform Bill and, I am delighted to say, has returned to that role in the current Session. I am also grateful to the other hon. Members who served on that Committee with him when they scrutinised the draft Civil Law Reform Bill.
My right hon. Friend the Member for Berwick-upon-Tweed, the hon. Member for Stoke-on-Trent South and my hon. Friend the Member for Bury North asked in different ways about the Law Commission’s wider Bill and the Government’s attitude to the commission. The Government are committed to ensuring that the law is modern, simple and accessible, and we hold the commission’s work in high regard. I am confident that the measures flowing from the Law Commission Act 2009, both the protocol and the duty to report annually to Parliament, along with the new House of Lords procedure for Law Commission Bills, will help to improve the implementation rate of commission proposals. A higher rate of implementation will help to ensure more effective and accessible law, delivering better value for money as valuable Law Commission work is put to good use.
Five reports have been implemented or received Royal Assent over the past year: those on the rules against perpetuities and excessive accumulations, third parties’ rights against insurers, trustee exemption clauses, on reforming bribery and parts of its murder, manslaughter and infanticide reports.
My hon. Friend the Member for Bury North also asked what we are doing about the wider Civil Law Reform Bill issues. Decisions not to take forward the Law Commission’s excellent work are always difficult, and they are not taken lightly. It is a difficult time at the moment, and the Government have to be realistic about what they can achieve when there are other pressing priorities and a reduction in resources.
A great deal of the Law Commission’s work requires primary legislation to implement it, and it is very difficult at present to secure parliamentary time for legislation that is not a high priority or that does not deliver significant financial savings. Deciding not to take forward the proposal in the Law Commission’s reports on damages, personal injury, medical, nursing and other expenses, claims for wrongful death and pre-judgment interest on debts and damages, was not easy. However, in the current financial climate we need to focus our resources on delivering key priorities.
Having said that, I think that the new protocol on best practice between the Government and the Law Commission, agreed in March last year, should help. The protocol aims to ensure that the Law Commission takes forward only projects to which Departments are fully committed; that there is a close working relationship during the project; that the Law Commission produces impact assessments looking at the costs and benefits of proposals; and that Departments respond quickly once the Law Commission reports.
The Law Commission will soon be putting forward proposals for its 11th programme of work. That will be the first programme agreed in the light of the new protocol, and I am confident that it will assist in reducing delays both in responding to the Law Commission when proposals are accepted and in implementing them.
However, neither the Law Commission nor the Justice Committee could function as effectively as they do without the support of those who respond to consultations and calls for evidence. The experts who give freely of their time and experience are perhaps the unsung heroes of law reform work. It is invidious to single out organisations or individuals, but I note that the Law Society and the Bar Council replied not only to the Law Commission’s 2003 consultation and the Ministry of Justice’s 2009 consultation, but gave evidence to the Justice Committee in 2010.
I would like to thank all those who have replied to the Law Commission, the Committee and my own Department over the years. Unsurprisingly, the Bill does not reflect all their views, but I can assure them that their comments were all carefully considered and taken into account. I am confident that this Bill would command the support of the overwhelming majority of them.
I will now explain why the Government are supporting this Bill. Obviously, we are pleased that the Bill represents a return on the investment of public money in the Law Commission. The Government are committed to ensuring that the law is modern, simple and accessible. Usually, and properly, it is the Government who introduce Law Commission Bills; there is, however, no reason at all why the introduction of Law Commission Bills should be the preserve of the Government alone. Indeed, I would encourage hon. Members who in future years find themselves well placed in the ballot for private Members’ Bills to consider whether they might imitate the example of my right hon. Friend and discuss with the Law Commission whether any of its Bills might be suitable for debate. My right hon. Friend has set a very good example, and I thank him for that.
However, more fundamentally, the Government support this Bill because it will make the law fairer. To understand what is wrong with the law, it is necessary to go back to 1994 when a certain individual was convicted of the murder of both his parents; various hon. Members have referred to the incident. He was described in the press as an “evil conman” and
“a grasping son who repaid his parents’ lifelong devotion by bludgeoning them to death”.
He duly received two life sentences, but it is not the monstrosity of his crimes that underlie the Bill before us today—rather, it is what happened to his parents’ property, which was apparently worth more than £1 million and highlighted the problem with the law.
Apparently, the killer’s parents had made it clear to their son that they would not provide for him on their deaths; they would provide only for his young son, their grandchild. To go back to the point made by my hon. Friend the Member for North East Somerset, if only they had made clear wills in favour of the grandchild, their apparent wish to support him would have been accomplished. However, no wills were found and their property was distributed according to the statutory intestacy rules.
Mr Denis MacShane (Rotherham) (Lab)
On a point of order, Mr Deputy Speaker. We are being informed by television that Mr Andy Coulson, one of the most important figures in Her Majesty’s Government and one of the Prime Minister’s closest aides, is now resigning. As the House is sitting, I believe that it would be appropriate for the Prime Minister to come to the Commons, explain why that is happening and give the public the full details here in the House of Commons, rather than burying the news on a day when, frankly, an awful lot of other news is taking place. This is the Commons, where the Prime Minister should—
Mr Deputy Speaker (Mr Lindsay Hoyle)
Order. That is not a point of order, as the right hon. Gentleman, who has long been a Member of the House, knows. The fact that a member of the Prime Minister’s staff has resigned has nothing to do with the House.
Rape Defendants (Anonymity)
Denis MacShane Excerpts(14 years, 6 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Caroline Flint
Yes, it was in neither the Conservative nor the Liberal Democrat manifesto at the general election, although I would have thought that that was the platform from which to make such a proposal. I really think that it was nine short words that conveyed this policy in that coalition agreement, and those nine short words developed a policy that has not been thought through, but is very dangerous.
Mr Denis MacShane (Rotherham) (Lab)
I have been participating in these late-night Adjournment debates for 16 years and I have never seen so many Government Members paying such attention as they are paying to what my right hon. Friend is saying. I pray and hope that what she is arguing tonight will be well received and that we can have a change of policy. Without making a great party claim of victory, the coalition Government have got it wrong, and they should be man and woman enough to accept that tonight.
Caroline Flint
I thank my right hon. Friend for that intervention. I hope that we can end this proposal tonight, because the real issue—the real injustice—is not the rights of defendants, but the plight of tens of thousands of women who are raped but never see their attacker brought to justice. Our priority must be delivering justice for victims of rape and protecting the public from dangerous offenders.
The last time a Government made proposals to grant those accused of rape anonymity was 1975. Despite making much of their parties’ modern, progressive credentials during the 2010 election campaign, the coalition Government’s proposals would take us back to a time when there was a residual doubt about rape victims built into the criminal justice system, which denied thousands of victims justice.
When victims of rape are afraid—afraid of what has happened, afraid to come forward, afraid that no one will believe them—we must show them that we will believe them. When rapists believe that they can attack with impunity, and go on and on wrecking women’s lives and never face the consequences of their actions, we must show them that we will bring them to justice.
When proposals such as this are made—dangerous proposals, I am afraid to say, that insult victims of rape and inhibit the ability of the police to catch dangerous criminals—in this House we must show, through the strength of our case and the passion of our arguments, that we will speak up for those without a voice.
Mr Blunt
No, if the hon. Lady will forgive me. Let me get to the conclusion of my remarks. [Interruption.] I am grateful for the hon. Lady’s sedentary comments. It is the debate of the right hon. Member for Don Valley. I am certain that she and the House will want to hear my remarks—
Mr Blunt
Plainly, the remarks have been carefully prepared in conjunction with other Government Departments—[Interruption.]—but not entirely, I am delighted to say. I have already made clear—[Interruption.] The right hon. Gentleman is not behaving in a way that does credit to the subject. It is not one that lends itself to barrack-room style interventions from a sedentary position. I would be grateful if right hon. and hon. Members on the Opposition Benches would do me the courtesy of listening carefully to these remarks. If they continue to intervene from a sedentary position—
Mr Blunt
No, and no. I should be grateful if the right hon. Lady would, as we ought to in handling such cases, try to take the temperature out of the debate and turn to evidence rather than supposition. Let me continue with my remarks.
If the defendant is acquitted, quite apart from the lingering suspicion of guilt that might remain, there might be a range of adverse material about that individual in the public domain which would otherwise have remained private and which cannot even be expunged by an acquittal. Our approach to defendants who are accused of rape but not convicted will be based on what is just. There are a number of possible options on the timing and scope of anonymity. On timing, it could extend from the point of the accusation until the time the defendant is charged; or to the beginning of the trial; or to the point of conviction.
Further options relate to the scope of the anonymity in so far as the offences are concerned. It could cover anonymity in rape cases, but it could go wider. There are reasons why it might also be applied to other offences. I remind the House that our coalition agreement also states that we will give anonymity to teachers accused by pupils and take other measures to protect against false accusations. The principle is linked to anonymity in rape cases, as the tragic case of Nick Drewett showed. It was the reputational damage that caused him to take his own life, and, although we recognise the difficulties in any extension to particular professions or classes of offence, anonymity for those in positions of trust could apply more widely than to sexual offences. We have not yet discounted any options.
Whatever our conclusions, I can make it absolutely clear that we have no intention of extending similar protections to rape defendants once convicted. The media will be able to report the cases of convicted defendants in the usual way. A reason in principle for bringing forward the proposals is to help to restore the balance in rape cases with the anonymity given to complainants. It has often been said that the justification for complainant anonymity does not apply to defendants, on the basis that the purpose of complainant anonymity is to encourage more complainants to come forward—a factor that does not apply to defendants.
Mr Deputy Speaker
Order. The right hon. Member for Rotherham (Mr MacShane) is behaving disgracefully and not assisting a debate of this kind. Now he really has enough experience of this House, as a Minister and as a Back Bencher, to realise that what he is doing is out of tune with how we should conduct our business in this House. I hope that I will not hear from him again.