Broadcasting of Court Proceedings

John Whittingdale Excerpts

Wednesday 8th February 2012 Westminster Hall

[Mr John Whittingdale (Maldon) (Con)]

I am pleased to have the opportunity to hold a short debate on the subject of the broadcasting of court proceedings. I should perhaps make it clear at the start that I am not a lawyer. I have appeared in court, but only in the jury box—never as counsel and not yet in the dock.

However, during the past few months, both in my capacity as Chair of the Select Committee on Culture, Media and Sport and as Chair of the Joint Committee on Privacy and Injunctions, I have had dealings with many lawyers. In respect of the Joint Committee on Privacy and Injunctions, I read the report of the committee on super-injunctions recently prepared by the Master of the Rolls. I want to quote the opening section, in which the Master of the Rolls states:

“It has been a fundamental principle of the common law since its origins that justice is conducted, and judgments are given, in public.”

He then goes on to quote the Lord Chief Justice, who said only last year:

“Justice must be done between the parties. The public must be able to enter any court to see that justice is being done in that court, by a tribunal conscientiously doing its best to do justice according to law…In reality very few citizens can scrutinise the judicial process: that scrutiny is performed by the media, whether newspapers or television, acting on behalf of the body of citizens. Without the commitment of an independent media the operation of the principle of open justice would be irremediably diminished.”

I could almost end there, but I want to go on to say a bit about the background to the matter.

The ban on television cameras stems from a section of the Criminal Justice Act 1925, which I understand was passed to prevent the distraction caused by exploding flash bulbs of cameras in court. Of course, at that time television had not even been invented. Since then, there has been a long debate about whether our courts should be opened up to allow greater access to the media.

The debate about television cameras has been going on for more than 20 years. In 1989, Jonathan Caplan on behalf of the Bar Council produced a report that came out broadly in favour of allowing television, subject to certain very strict controls. Nothing then happened until 2004 when, after discussions between the Department for Constitutional Affairs and the broadcasters, it was agreed that a pilot scheme would be allowed to operate for a few weeks in the Lord Chief Justice’s court and then in the Master of the Rolls’s court.

That pilot scheme was never broadcast, but it demonstrated that the televising of court proceedings could be done without causing great distraction or disruption, or creating the dangers that people had spoken about. The broadcasting of proceedings could be done very discreetly and, most importantly, it could be completely controlled by the judge. During the pilot scheme, on a couple of occasions the judge pressed the button he had to shut off broadcasting. A large number of people have seen the results of that pilot and, as far as I am aware, it is generally regarded as a success. The pilot scheme did not lead to any great concerns being expressed and most people felt that it was a step forward both in allowing people to see the workings of the court and increasing understanding of the judicial procedure.

Although the pilot scheme was generally deemed to have been successful, nothing then happened. However, there have been one or two developments outside the English and Welsh court system. For instance, the Scottish courts have allowed very controlled broadcasting, but because anybody can object, it has not been used very much. When the Supreme Court was established, it allowed some televising of its judgments. Despite the fact that those are largely fairly detailed legalistic debates, I understand that the streamed feed from the Supreme Court made available by Sky has had a lot of viewers. Indeed, there have been around 50,000 this year, with 14,000 recently watching the ruling on the Assange case.

There have been other judicial procedures during which television cameras have been allowed, such as the Chilcot inquiry, the Hutton inquiry and, of course, most recently the inquiry carried out by Lord Justice Leveson. Given the fact that I am involved in considering similar material, I have been watching the proceedings of Lord Justice Leveson’s inquiry with great attention. Those proceedings have been carried in considerable part on both the Sky News channel and the BBC News channel. There are also plenty of examples in other countries. In fact, Britain is one of very few countries left that does not allow any televising of its judicial proceedings. Most comparable countries in the developed world allow broadcasting; indeed, even China and Russia allow broadcasting of their court proceedings.

So if the arguments are so strong, why has it not happened? There have been objections. A long-standing objection is that broadcasting proceedings might lead to grandstanding and that people will play to the cameras and want to become celebrities in their own right. I was not a Member when television cameras were introduced in the House of Commons, but I was active in politics and I remember precisely the same arguments being made then about what would happen with MPs’ behaviour and that they would similarly perform to the cameras. In large part, that has not occurred. Indeed, I think most people regard the broadcasting of Parliament as having been a great success.

There have also been objections that somehow the media might distort coverage, presenting a slanted view, and that there will be a loss of objectivity. Of course, any televising of court proceedings would be subject to the same restrictions on court reporting that exist at the moment for other forms of media—for example, not revealing the identity of jurors or of potential rape victims. Those rules would apply equally to television cameras as they do to newspapers. One has to say that in general—not just in terms of the coverage of judicial proceedings—television has a better record than newspapers for impartiality and objectivity because it is governed by strict rules requiring it to be impartial and objective.

I shall illustrate a recent case where the televising of proceedings certainly had a beneficial effect for me. I had read a great many fairly lurid accounts, particularly in the tabloids, of the Amanda Knox case and the murder in Italy. Many people felt such reports were not entirely objective and, indeed, that they suggested very strongly that Amanda Knox was guilty. I happened to be away at the time of the appeal hearing in the Italian courts, which was carried in large part on Sky News, and I watched much of the proceedings, including the broadcast of Amanda Knox appearing in the witness box. At the end of the proceedings, I had considerably more doubt about the case. Therefore, when the court delivered its verdict that she should be released and was not guilty, it came as less of a surprise than it would have done to those people who had only read about the case in the tabloid press. That is an area where broadcasting can increase understanding and serve justice well.

It is easy to think of cases that will obviously be attractive to the broadcasters. Such cases will not only be sensational, lurid murder trials, although I have no doubt that some of those will be broadcast. I shall give three recent examples where there would have been real merit in having broadcast coverage. The first—this is a painful subject for all of us in this place—is that of the recent trials of MPs for abuse of their expenses. There was a huge public interest in people who were paid from the public purse, and it was very important that it was shown that nobody should be above the law. If those trials had been broadcast, they would have received a lot of interest and coverage.

Secondly, there were the riots, and the cases involving those who were convicted of rioting last summer. Again, there was a very big public interest. There was, perhaps, a lack of understanding about some of the sentencing policy. If people had had the opportunity to see the judge deliver a sentence and explain why he had reached that decision, that would also have increased understanding.

Thirdly and most recently, there was the Stephen Lawrence case. The fact that justice was finally done received huge coverage in the newspapers. It would have been even more powerful if the case had been broadcast and people had had the opportunity to see justice finally being done.

I was therefore extremely pleased to hear the announcement by the Lord Chancellor last September that the Government intend to move towards allowing the televising of court proceedings. Of course, there should be a step-by-step approach.

[Mr Andrew Smith (Oxford East) (Lab)]

I congratulate the hon. Gentleman on securing this important debate. I agree with the thrust of his argument. It is important that justice is not only done, but, as he says, seen to be done.

On the step-by-step approach, does he agree with the points made by the Master of the Rolls in his speech to the Judicial Studies Board on 16 March 2011? He asked,

“from a public interest perspective might there not be an argument now for its hearings”—

that is, the Supreme Court—

“and some hearings of the Court of Appeal, being televised on some equivalent of the Parliament Channel, or via the BBC iPlayer.”

Broadcasting court proceedings could start there. We could then see how that goes, and extend it later.

[Mr Whittingdale]

I agree entirely with the right hon. Gentleman. The pilot scheme started in the Court of Appeal. In their review of the pilot scheme, the broadcasters said that they would have liked it to have gone further, and that it should have been allowed to cover Crown court proceedings, and perhaps to have shown witnesses as well as the counsel and judge. That needs to be done in a step-by-step way. There are genuine concerns and to allay them, we need to proceed gradually. I hope that in due course we will have much greater access, but let us start, as the right hon. Gentleman and the Master of the Rolls say, with the Court of Appeal. That would be a major step forward and is, I think, what the Government hope to do.

The obstacle is the requirement for primary legislation. There is no doubt that it will take time for the rules to be worked out, and secondary legislation will probably be needed to set out in detail how this will work. However, none of that can begin to happen until there is primary legislation. The broadcasters—in a letter that was sent this week by the head of BBC news, the chief executive of ITN and the head of Sky news: a joint letter from all three of the main news broadcasters in this country—have stated that they are very keen for the process to get under way, but that primary legislation would be required in the Queen’s Speech. My request and plea to the Minister this morning is not just to confirm the Government’s intention to move gradually and carefully down this road, but to do so at the first opportunity—the Queen’s Speech.

In conclusion, this is a reform whose time has not just come, but is long overdue. I hope the Minister agrees and is able to provide us with more details this morning.

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

I congratulate my hon. Friend the Member for Maldon (Mr Whittingdale), who is the Chair of the Culture, Media and Sport Committee, on securing this timely debate. In an impressive and knowledgeable speech, he presented a view that is fairly close to that of the Government.

Open justice is a long-standing and fundamental principle of our legal system. Justice must be done as much as it must be seen to be done if it is to command public confidence. As my hon. Friend set out, the Master of the Rolls said last year:

“Public scrutiny of the courts is an essential means by which we ensure that judges do justice according to law, and thereby secure public confidence”.

Very few people have direct experience of court proceedings. In principle, our courts are open to all members of the public who wish to attend, but in practice very few people have the time or opportunity to observe what happens in our courts in person. For many, the criminal justice system is still seen as opaque, remote and difficult to understand. We need to make it a reality that our courts are open and accessible to as many people as are interested in seeing them work.

Media coverage is often the prime source for public understanding of the criminal justice system, and many people base their views of the courts on their portrayal on television or film. Those dramatised accounts inevitably do not give an entirely accurate portrayal of what happens in a court case. The Government and the judiciary are committed to improving the public’s understanding of the criminal justice system through increasing transparency. The more informed people are about the justice system, the more confidence they will have in it.

Our evidence shows that a key element of confidence in the criminal justice system is how fair the public believe it is. People want information that has not been spun about what happens to criminals and why. The majority of respondents to the Department for Constitutional Affairs consultation on broadcasting in courts in 2004 believed that broadcasting could increase understanding of court processes and make courts more accessible. That is why the Government believe that removing the current ban on filming in courts will improve public understanding of the justice system.

The Lord Chancellor and Secretary of State for Justice announced last year that the Government plan to allow judgments and sentencing decisions in cases before the Court of Appeal, in both the criminal and civil divisions, to be broadcast. We intend to introduce legislation to give effect to those reforms as soon as parliamentary time allows, although I cannot, as I am sure my hon. Friend the Member for Maldon appreciates, pre-empt the Queen’s Speech. We are working very closely with the judiciary to take that work forward.

My hon. Friend made a case for the eventual full recording of all trials. That is not being reviewed at the moment, although I appreciate that he understands that a step-by-step approach, which was how he put it, will be required. Over a longer period, we expect to extend broadcasting of sentencing remarks to the Crown court, given a reasonable time after the introduction of broadcasting in the Court of Appeal.

All hon. Members will remember the media furore over the O. J. Simpson trial in the United States of America, and, more recently, the trial of Michael Jackson’s doctor. My hon. Friend mentioned selected excerpts from the Knox case. The Government and the judiciary will not permit our courts to become show trials for media entertainment. We therefore have no current plans to allow the broadcasting of trials from the Crown courts, other than sentencing remarks.

Currently, the Criminal Justice Act 1925 prohibits anyone taking, or attempting to take, a photograph in any court except the Supreme Court. Furthermore, the Contempt of Court Act 1981 prohibits the use of a tape recorder, or other device, to record the audio of the court proceedings. Primary legislation, as my hon. Friend made clear, will be required to amend that legislation, and any proposals the Government bring forward will be subject to proper parliamentary scrutiny and debate.

With certain limited exceptions, most courts are open to the public, and journalists are allowed to be present in court and report what they see and hear, subject to reporting restrictions. At the end of last year, the Lord Chief Justice published new guidance for journalists wishing to use live text-based communications, including Twitter from mobile phones, in courtrooms during the conduct of a court case. Journalists and legal commentators no longer need to apply to use text-based devices to communicate from a court during a case, although the presiding judge always retains full discretion to prohibit such communications in the interests of justice.

Broadcasting of court proceedings is not without precedent in this country, as my hon. Friend made clear. We already allow broadcasting of live footage of the UK Supreme Court, and many people watched Julian Assange’s appeal to the Supreme Court last week. All hearings in the Supreme Court can be viewed online from anywhere around the world through the live stream on Sky’s website. Figures from the first three months of broadcasting from last summer show that that stream was seen 139,000 times, proving there is a public appetite for watching court proceedings. Limited televised excerpts from inquiries—my hon. Friend mentioned the Hutton and Leveson inquiries—have been broadcast, and have engaged the public as they have progressed.

We must remember, however, that the courts deal with very serious matters that can affect the liberty, livelihood and reputation of the parties involved. It will be vital that proper safeguards are introduced to ensure that the parties are treated fairly, and that their rights are respected. Our paramount concern in opening up our courts to broadcasting must remain the proper administration of justice.

We are very clear that television must not give offenders opportunities for theatrical public display. Offenders will not be allowed to be filmed, and we are clear that the judge will have the right to stop filming in the event of any demonstration or disruption in the courtroom. We will also not allow victims, witnesses or jurors to be filmed. Victims and witnesses will be protected, and we will not introduce any measures that would make their court experience even more difficult or make them even more reluctant to give evidence. We are seeking the views of victims’ groups on our proposals, and potential safeguards to ensure that the identities and rights of victims, witnesses and jurors are protected.

[Mr Whittingdale]

I accept, of course, that this will be a step-by-step process, but I hope that the Minister will not close his mind completely to the suggestion that eventually witnesses should be allowed to be televised. I know that it is not the same, but I chair televised hearings, one or two of which have achieved quite large audiences. I know that appearing before a Select Committee may be intimidating, but I do not think that it makes a great deal of difference if it is broadcast. The fact that witnesses are appearing in a parliamentary forum may be intimidating, as it might be in a court, but the cameras are very discreet, and people are largely unaware of them.

[Mr Djanogly]

Such an inquiry may be similar to a criminal trial, but often it is not. The circumstances and sensitivities may be different, as may the outcome.

Existing reporting restrictions on cases will continue to apply to broadcasting, and in all cases the judge will have the final say on whether proceedings should be broadcast. We are considering how to ensure that any use of the footage is appropriate to the dignity of the courts as part of the legislative framework. This will not happen overnight. The 2004 pilot of filming in the Court of Appeal, which was not for broadcast, demonstrated that it is possible for cameras to be allowed into courts without disrupting the administration of justice. However, before any plans can be agreed, we must take into account the views of a wide range of interests, and we will have discussions with the judiciary and others to ensure that we have considered the complex legal, practical and technical issues.

Allowing the broadcasting of judgments and sentencing remarks is one of a number of measures intended to open up the court process to the public, including to those who do not have the occasion or opportunity to attend court in person. The Government are committed to providing the public with information on the operation of public services in their area, and the justice system is no exception. We are taking significant steps to open up the courts to the public, and to get as much information as possible about their performance at local level into the public domain.

On 24 November last year, we published anonymised, individual-level sentencing data by court so that the public can see what sentences are being handed down in their local courts, and can compare different courts on a wide range of measures, such as timeliness. At the beginning of this year, on 12 January, we published performance data for individual courts that enable local communities to find out how their local court is performing on a range of measures. The data include, among other measures, information on case timeliness in criminal, civil and family courts, and the proportion of cracked and ineffective trials at the Crown court. That represents a significant step forward in keeping the public informed about how the courts are operating in their area. In May, we will go a step further and provide justice outcome information on police.uk. That will enable the public to see what happens after a crime is reported—police actions followed by justice outcomes—and will reinforce the link between crimes being committed and justice being delivered.

In addition to the new data we have published on court performance, the Government have taken other steps to provide the public with information on how the criminal justice system works. For example, our release on court-level sentencing data in October 2010 was made available in a user-friendly format on the “Making sense of criminal justice” microsite, and was significantly more popular than normal statistical releases. Crucially, the data were released alongside the award-winning “You be the Judge” tool, which aims to promote public understanding of the sentencing process. The Government believe that providing adequate contextual information to increase public understanding of the criminal justice system is key to making data meaningful to the public, and we plan to provide such information with every transparency-data release.

I believe that the crime and justice sector is at the vanguard of transparency across Whitehall, and good progress has been made to date. However, we are committed to making the justice system more transparent, and I am confident that we will continue to make good progress in this area. The Government believe that television has a key role to play in increasing public confidence, and that is why we plan to introduce broadcasting from courts. However, although it is important for justice to be seen to be done, it is more important that justice is done. The administration of justice remains our primary aim, and our proposals to permit broadcasting from courts will not be allowed to affect that in any way.

Oral Answers to Questions

John Whittingdale Excerpts

Tuesday 17th May 2011 Commons Chamber

[Mr Blunt]

No, it is not. The hon. lady is referring to a decision by the management of London prisons, which are principally local prisons, to focus on short-term offenders who are incarcerated in London as well as in local prisons supporting the courts. We are going to change the system so that restorative justice is embedded in the criminal justice process from beginning to end. The hon. Lady supported her party for a very long time in trying to get that done. I assure her that we shall absolutely deliver it.

[Mr John Whittingdale (Maldon) (Con)]

2. If he will estimate the number of existing injunctions granted on the grounds of invasion of privacy.

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

The Ministry of Justice currently holds some limited data on the numbers of injunctions applied for in the county courts, but they do not allow identification of anonymity injunctions. The Department’s chief statistician is currently considering how robust data on the number of anonymity injunctions issued by the courts might be collated in the future.

[Mr Whittingdale]

Is my right hon. and learned Friend concerned about the possibility that the large number of injunctions that appear to be being granted on a routine basis suggests that the courts are paying insufficient regard to section 12 of the Human Rights Act 1998, which was intended to protect press freedom? Given that, and given the huge speculation on the internet about the identities of those who have obtained injunctions, does he feel that the time is approaching when Parliament may need to revisit the issue?

[Mr Clarke]

I do not think any of us know whether the number is increasing. As far as I am aware, there have been two super-injunctions since the John Terry case, but the word “super-injunction” gets used very widely. I realise there is increasing concern, however. I personally have strong views on the secrecy of justice. We have a tradition of open justice in this country. Plainly, I believe in the freedom of the press and freedom of speech in this country, even when it is sometimes exercised provocatively, as it is supposed to be in a free country, but there are also areas where an individual is entitled to have their privacy protected. The time is certainly coming when the Government are going to have to look at this matter, although we will probably wait until we have had the report of the Master of the Rolls, who is looking rather more closely at the procedural aspects.

Reforming Civil Justice

John Whittingdale Excerpts

Tuesday 29th March 2011 Commons Chamber

[Mr Clarke]

When I took over the right hon. Gentleman’s desk and chair about 11 months ago, one of the first things I picked up was the Jackson report, which he had commissioned. As he says, it was on his desk, but he had not had time to implement it. I was immediately attracted by its approach to cutting costs, so I am glad that he and I continue to agree on that. I am astonished to hear his description of insurance companies selling claims, although I have come across it. They do not all do it, but this just adds gloss to the strange way in which this has all developed. I am also struck by the huge cost of these practices for institutions such as the national health service, which, in a bad year, can spend about £400 million—little short of half a billion—on legal fees. In many areas of practice, the legal fees are the biggest bill for the defendant. They often exceed the amount of compensation paid to the claimant. The right hon. Gentleman was obviously anxious to reform the system, and I am anxious to do so as well. I am glad to have taken up the baton.

[Mr John Whittingdale (Maldon) (Con)]

Is my right hon. and learned Friend aware that the Culture, Media and Sport Select Committee received considerable evidence that the massive increase in the cost of libel actions that can result from the use of conditional fee arrangements is having a seriously chilling effect on investigative journalism? Does he accept that the measures he has announced this afternoon are in some ways even more important for sustaining investigative journalism and scientific debate than the measures contained in his draft Defamation Bill?

[Mr Clarke]

I think that is right. This will have a big impact on defamation cases where people threaten the publisher of something they do not like with enormous costs if they want to defend the action. This is having, to use the jargon phrase, “a chilling effect” not only on scientific and academic work, but on proper investigative journalism. When we put the draft Defamation Bill together with what we are proposing to do in the light of Rupert Jackson’s proposals, the way in which we are setting up no win, no fee generally and the announcements I have made about the jurisdiction of the courts, I think we will make a significant impact on lowering the costs of all this litigation to the advantage of plaintiffs who have a legitimate grievance and of defendants. We are going to stop the whole thing being a high roller’s gamble, which is what it is at the moment, as to whether the other side dare face the risks of the huge costs being piled up the moment a claim is brought.

Defamation Law

John Whittingdale Excerpts

Thursday 15th July 2010 Westminster Hall

[Mr John Whittingdale (Maldon) (Con)]

It is a pleasure to follow my Select Committee colleague, the hon. Member for Newcastle-under-Lyme (Paul Farrelly), who played a very substantial role in the Committee’s inquiry, both because of his background as an investigative journalist and as a strong proponent of the reform of libel law.

I am extremely pleased to have this opportunity to debate the Select Committee report. It occupied more than a year of our time, and the coming of the general election prevented it from getting the debate that I felt it merited. At the start, it was not the Select Committee’s intention particularly to focus on libel law. We realised that it was part of the agenda, but it was not the main issue. We were especially concerned with two things: the behaviour of the press in their reporting of the McCanns case, and what appeared to be the growth of a privacy law in the UK, particularly as a result of the judgment regarding Max Mosley. We devoted a lot of time to both those issues and were then slightly sidetracked into another important matter: the behaviour of the News of the World and one of its journalists in intercepting telephone calls. I do not wish to talk about that this afternoon; we spent a lot of time on it in the Committee. My main concern is to highlight the fact that, in my view, the report’s most important recommendations, which did not get the attention they merited because of the distraction caused by those other issues, were on libel, and on the concerns that are now widely felt, both in this country and around the world, about how UK libel laws operate.

I would like to put on record a few words of thanks. My thanks go to the staff of the Committee, who had to work very long hours over a lengthy period—not just the staff of my own Committee under Tracey Garratty, our principal Clerk, but Hannah Stewart, who was seconded to us from the Justice Committee. We also had the benefit of the advice of Professor Brian Cathcart and Sara John. We also had a lot of help from lawyers. None of the members of the Select Committee were lawyers and we were dealing with very technical and often complicated legal issues, which required several towels around the head on many occasions. We had a lot of advice particularly from people who came and gave up their time: Sir Charles Gray, recently retired from the High Court, Alasdair Pepper of Carter-Ruck, Andrew Caldecott QC, and Desmond Browne. If they had billed us at their normal rates, the House of Commons would probably have been bankrupted. They gave advice as part of a pro bono publico exercise, which was greatly appreciated.

[Joan Walley (Stoke-on-Trent North) (Lab)]

Members of Parliament who do not have the time to sit on a Select Committee or who are not appointed to one owe a debt of gratitude to those who do serve. As a Member of Parliament who is not on a Select Committee, I should like to say that many of us have really valued the very detailed, technical and legalistic work that has been done by this Select Committee. Does the hon. Gentleman agree that that makes it all the more important that the Minister, in his response, should recognise that these are not just the recommendations of this particular Committee as a result of the work done by people such as my hon. Friend the Member for Newcastle-under-Lyme (Paul Farrelly) and others, but that this is the Select Committee speaking on behalf of the whole of Parliament? That is why it is important that the Government respond to the individual detailed recommendations.

[Mr Whittingdale]

I entirely endorse the hon. Lady’s comments. That is exactly the value of Select Committees, and I am pleased to say that they are becoming more widely recognised. When we set off, we did not anticipate that the inquiry would be quite as long and detailed as it was. It was, however, one of the most fascinating and satisfying inquiries in which I have participated. At the same time as we were having the debate in the House, there was a substantial debate and a growing clamour outside the House. I should pay tribute, as my colleague from the Committee has already done, to the work of Index on Censorship, English PEN and Sense about Science. As part of their campaign they mounted a petition, which I think received 52,000 signatures, and I imagine that every Member of the House will have received e-mails from constituents expressing their concern about the operation of the libel laws. It is not an immediately obvious subject for generating great concern, but it is becoming such an important issue that a lot of people feel very strongly about it.

The two principal conclusions that we reached—I will go into a little detail in a minute as to why we reached them—were that, in this country, the way the libel laws are balanced and the costs attached to going to court in a libel action are having a seriously damaging effect on investigative journalism, standards within the press and legitimate scientific debate. As a passionate believer in freedom of speech and in the essential role that a free press must play in a healthy democracy, I believe that that matter should be of concern to every Member of the House.

However, as if that were not enough, the Committee also discovered that Britain is now cited alongside authoritarian countries as a place where the press is being suppressed because of the actions of the state—in this case, the libel laws. Committees are sometimes criticised for going on foreign trips, but, in this example, it was immensely valuable that we were able to go to America and talk to some of the people who were directly affected, including authors and journalists. We also discussed with the American judiciary how they viewed our system, and we spoke to legislators at state and federal levels. I shall deal later with libel tourism, which is very important.

A host of different issues affect the operation of our libel laws. Some of them are being dealt with, or at least addressed, in Lord Lester’s Defamation Bill, and I was pleased to hear my hon. Friend the Minister speak about the Government’s intention to examine all the issues and, in due course, to produce a draft Bill that we can debate at length. It is reassuring that they have taken on board the necessity of addressing the matter urgently. However, as the hon. Gentleman said, probably the biggest issue affecting the whole libel system in the UK—how much it costs for somebody to defend a libel action—is not covered by Lord Lester’s Bill. None of us imagines that lawyers are ever cheap, but, in the case of libel, trials are often very long, no legal aid is available, and solicitors and barristers charge, frankly, eye-watering sums.

We had a slightly surreal debate in the Committee between various lawyers as to whether the average was £400, £500 or even £600 an hour. To most people, any of those three figures is extraordinary, and, given the time that can be taken, it is easy to see how the clock ticks quickly and the amount of money increases rapidly, to the extent that it is now said that the cost of a libel case in the UK is some 140 times the European average.

[Paul Farrelly]

Does the hon. Gentleman agree that the hourly rates actually double in many of the cases that are brought under conditional fee arrangements? The record shows that the so-called no win, no fee scenario is, as one would expect, nearly always a case of always win, double the fee.

[Mr Whittingdale]

The hon. Gentleman pithily encapsulates the situation, which I shall come on to later. He is absolutely right, and that makes the situation even more damaging for any defendant facing a libel action.

My hon. Friend the Minister referred to the work of Lord Justice Jackson, who gave evidence to the Committee alongside the Master of the Rolls and addressed the broader question of costs in all civil litigation. I know that the Government have listened to his advice, which was that we should not pick out one particular branch of civil law and address that, but address the whole thing together. As my hon. Friend said, that was not the view of the previous Government, and I have some sympathy with their position. The matter is urgent, which is why the then Justice Secretary, the right hon. Member for Blackburn (Mr Straw), decided to move on defamation cases ahead of the rest of civil litigation. I hear what the Minister says, but I hope that there will not be further delay—we must address the matter quickly. By all means, let us address it in the round and look at all the costs involved in civil litigation, but let us not spend a long time doing so.

Various solutions have been advocated, and we probably need to adopt a combination of them. The first thing the Committee considered was the suggestion simply to cap costs—to set a limit beyond which one should not be able to go. We accepted the evidence we received that that is a blunt instrument. It is difficult to predict the direction of a case, so capping is probably not a realistic solution. However, various solutions undoubtedly could be introduced: greater cost budgeting and case management, and a pause every now and again to see how costs are progressing. Those are sensible options, but the real problem, as the hon. Gentleman said, is conditional fee arrangements, which were introduced with wholly good intent. I absolutely accept that the wish to make the legal process available to people who would otherwise struggle to afford it is an entirely worthy objective. The intention was that a legal practice would be allowed to charge a success fee if it won a case, in recognition of its risk in taking on a CFA. If it lost the case, it would not get any money, so the fee was a return for the risk.

The problem we discovered fairly rapidly was that the practices that specialise in CFAs are very thorough and do not actually take any risks. They go through the cases that are put to them for potential CFAs and accept them only if they are almost certain that they will win. We struggled to get the exact figures for the proportion of CFA cases that were won and lost, but it was clear that, overwhelmingly, cases taken on a CFA were a pretty safe bet. On that basis, we found it difficult to understand why firms needed a 100% success fee on top of their costs. As I said, the costs are astronomical to begin with; they then double them, as the hon. Gentleman indicated, by imposing a success fee.

That is not the end of the story. An additional cost is after-the-event insurance, which is a premium taken out by the claimant in case they do not win, and which is chargeable to the defendant in the event that they lose. Such insurance can cost anything up to £65,000 plus tax for every £100,000 worth of cover, so we are now talking about almost 270% of the costs that can be awarded against a defendant in a libel action. The extraordinary thing about after-the-event insurance is that if the defendant loses, obviously he will have to pay the claimant’s premium, but if the claimant does not succeed, he does not have to pay the premium. The insurance is marketed on the basis that one can take it out but not have to pay for it at all. It is simply another cost imposed on the defendant, and, because there is really no incentive for a claimant to keep costs down, it is a licence for companies to set their own sums and print money.

The effect of those three things taken together is that now many newspapers will not seek to defend a libel action, even if they are convinced that they have a strong case. They will regard it as quicker and cheaper to settle out of court. Perhaps even more worrying is that often they will not print the story in the first place, simply because of the danger that they might get sued. That chilling effect on press freedom and journalism causes great concern.

[Paul Farrelly]

The hon. Gentleman mentioned cost-capping and the importance of speedy reform. Does he agree that costs have become so surreal that when capping is mentioned as a measure to try to reduce them, a great number of the legal fraternity argue that it could increase costs because of the cost of cost-capping meetings, and that, as a consequence, nothing happens?

[Mr Whittingdale]

I entirely agree with my hon. Friend—I call him my hon. Friend in the spirit of the Select Committee. What he describes introduces another legal argument, which is, of course, billable. I will not say that this is a racket, but the lawyers do very well out of the process.

The Committee came up with a couple of recommendations to address these problems. The previous Government suggested that a 10% cap be set on success fees, but as my hon. Friend the Minister rightly said, the proposal did not find favour in the House when it was introduced before the election. The Committee’s solution was not quite to introduce a straight 10% cap, but to say that the success fee that could be recovered from a defendant should be set at 10%. We did not feel it right to interfere with the arrangement between the claimant and their legal representatives; if the claimant wishes to pay a proportion of their damages in the form of a success fee, that is a matter for them. However, we said that the legal entitlement to recover from the defendant could be capped at 10%. Furthermore, for the reasons that I have set out, I view after-the-event insurance with some scepticism, and the Committee said that it should be made irrecoverable in its totality. I remain of the view that those two measures are sensible and would go a long way to removing the sting in conditional fee arrangements. Obviously, that will be a matter of great debate over the coming months, and I leave it to the Minister to ponder those issues.

The issue is not just costs; there is a whole variety of other issues, many of which Lord Lester’s Bill addresses. One issue is the multiple publication rule. Libel laws were written when the internet did not really exist, and its advent has changed everything. That is true of the permanence of articles and statements, which can now be found on Google at the press of a button. The old Duke of Brunswick case also becomes much more serious in the age of the internet. Clearly, it is widely recognised that that should be addressed.

There are a couple of defences that must, on the face of it, make sense, but which are slightly unclear in legal terms at the moment. One is the defence of fair comment, and I want to say a quick word about the impact of libel law on proper scientific debate, an issue on which Sense About Science has done a lot of work. I pay particular tribute to Simon Singh, who is a very brave man for deciding not take lying down the legal action brought against him by the British Chiropratic Association after he suggested that there might be some debate about the medical effectiveness of chiropracy in treating certain conditions. He was willing to put up a great deal of money from his own account to appeal the judgment. Several scientific journals now say that they hesitate before carrying perfectly legitimate scientific papers that contribute to debate, because of the potential for organisations, and particularly big corporations, to bring libel actions. Libel is about whether someone is defamed; it should not be used to interfere with scientific discourse, which is important if scientific knowledge is to advance. The fact that Simon Singh was willing to defend himself and proved triumphant in the end was important and drew attention to the fact that the issue needs to be addressed.

The other defence that the Committee looked at, and which the hon. Gentleman mentioned, is the Reynolds defence of responsible journalism. The two landmark cases of Reynolds and then Jameel set out the hurdles that a defendant must demonstrate they have got over before they can use the defence of responsible journalism. There is some debate about the difficulty of meeting each of those tests, with the result that few defendants have used this defence, which has been a cause of concern to us.

It was drawn to my attention not more than two hours ago that the outcome of the Flood v. Times Newspapers case has been published. This is the first occasion on which the Court of Appeal has overturned a Reynolds defence. Times Newspapers used a Reynolds defence in an action brought against it by a Metropolitan police sergeant. It said that what it had published was in the public interest and that it had met the relevant tests, but the Court of Appeal overturned the initial judgment on appeal. I do not want to say anything about the merits of the individual case, but I imagine that the fact that there is a further constraint on using the Reynolds defence will mean that adopting it becomes even less attractive to serious newspapers. I share the view of the hon. Gentleman that putting these things into statute carries a risk as well and that it might not be the most sensible way of strengthening them. However, it is important that it should be a legitimate defence for journalists investigating stories that are plainly in the public interest—we are talking not about muck-raking, but about serious investigative journalism—to show that they have used their best endeavours to meet all the various tests. We may need to look at that again in the light of certain developments.

[Paul Farrelly]

Does the hon. Gentleman agree that the conclusions of the libel working group also highlighted the danger that a codification in law could become a rigid checklist in itself? It would also be very costly to mount a defence. However, the group was more sympathetic to statutory backing for the principles that underlie a defence of responsible journalism, which have already been developed in common law. That might be a fruitful way of proceeding.

[Mr Whittingdale]

The flexibility that that might provide is clearly better than having a very detailed set of boxes, each of which has to be ticked. The hon. Gentleman’s suggestion is probably a sensible way to develop things.

Taken together, all these issues would go some way towards not weakening our libel laws, but restoring people’s absolute right to defend their character and reputation. The other side of that coin, however, is the right of the press to investigate and to expose, and the right of scientific journals to carry out legitimate debate. I hope that all those things will feature in the Government’s draft Bill.

I turn now to the way Britain’s libel laws are viewed overseas, because that should be of huge concern to the Government. The issue is encapsulated in the case of Rachel Ehrenfeld, whom the Committee met when it went to the States. She wrote a book in which she suggested that a Saudi Arabian business man, who has Irish citizenship, was in some way providing financial support to al-Qaeda and terrorism. An action was brought against her in the UK on the basis that 23 copies of the book had been sold here. Obviously, it was also accessible on the internet, so there was publication in that sense as well. However, the book was not widely available in the UK, and it is fairly clear that the case was brought here not because this was where the damage was done, or because Rachel Ehrenfeld or the Saudi Arabian had British citizenship, which they did not, but because the libel laws here were seen to favour claimants. On the back of that, we discovered that there are now widely shared fears in the United States. The Association of American Publishers submitted a statement to the Committee on the Judiciary of the US House of Representatives, which described libel tourism as

“the cynical exploitation of plaintiff-friendly foreign libel laws as a weapon to intimidate and silence U.S. authors and publishers.”

There is no doubt about which foreign libel jurisdiction it had in mind.

[Dr Julian Lewis (New Forest East) (Con)]

I am not an expert in the area in question, although I have more than once had to bring a libel action. I think I am right in saying that in America pretty much anyone in the public eye can falsely be accused of quite serious wrongdoing but will have no recourse to a defamation suit. I acknowledge that the case that my hon. Friend used as an example is worrying, but I hope that he will not argue that we should adjust the libel laws in this country to prevent people who are defamed from taking action, just because in America people who are defamed are not allowed to take action. It would be a retrograde step to allow open season on reputations to the extent that that is allowed in the USA.

[Mr Whittingdale]

My hon. Friend raises an important point, and I agree. My hon. Friend the Member for Shipley (Philip Davies), who sadly cannot be present, thinks that we should move towards the American system, where two things apply. First, the burden of proof is reversed and it is up to the people concerned to prove that they did not do what is alleged, whereas here a newspaper or journal must demonstrate that they did. Secondly, in America the first amendment trumps virtually everything. It is essentially impossible to get a pre-publication injunction. The Committee was told by people in public life that for such people there is essentially no defence against libel other than to make their case in public and try to convince people that what was said was wrong.

I do not go that far. Some of the criticism of the UK’s libel laws in America is based simply on the fact that they disagree with our stance and think that we should adopt their system. That is not the reason I am concerned. I am concerned about the use of the UK courts by people who have no connection with the UK; it is the tourism aspect. That is a much narrower, but nevertheless very important, issue. As an example of the consequences I want to quote a joint submission to the Select Committee by Advance Publications Inc., the Association of American Publishers, Associated Press, Bloomberg, CBS television, Global Witness, Human Rights Watch, the Los Angeles Times, Macmillan, NBC, The New York Times and others. Perhaps the most important passage reads:

“Leading US newspapers are actively considering abandoning the supply of the 200 odd copies they make available for sale in London—mainly to Americans who want full details of their local news and sport. They do not make profits out of these minimal and casual sales and they can no longer risk losing millions of dollars in a libel action which they would never face under US law. Does the UK really want to be seen as the only country in Europe—indeed in the world—where important US papers cannot be obtained in print form?”

[Paul Farrelly]

I do not want this to become a conversation between members of the Select Committee, but does the hon. Gentleman agree that in the internet age matters go rather further than that? We received evidence that aggressive firms in the field of so-called reputation management—the two names that came up most frequently were Schillings and Peter Carter-Ruck and Partners—were finding so-called defamatory articles on the internet and scouring the world for potential plaintiffs on whose behalf they could act, simply because the article was accessible from the UK. They could point out to such people the fact that they might well win under Britain’s libel laws and say, “So bring an action.”

[Mr Whittingdale]

I think that there is evidence of that. I hesitate before accusing the two firms that the hon. Gentleman named, although they happened to crop up time and again in evidence. Concerns have been expressed about the way CFAs are used in ambulance-chasing cases—with ads on television saying, “Have you fallen over? Ring up this lawyer, because you can win thousands of pounds.” This is basically the same thing, so there is a legitimate concern.

I think that what should really make the Government concerned, in relation to attitudes towards the British system, is the fact that it is not only publishers and newspapers that are making such comments. The UN Committee on Human Rights, members of which we met, has been very critical of the UK system. In addition, the US Government, at state and federal level, is taking action in response. We went to Albany, where New York state has passed what is called the Libel Terrorism Protection Act. The title is intended to suggest that we have been giving active succour to terrorism through our libel laws. The Ehrenfeld case was the cause of it; indeed, Rachel Ehrenfeld went to the New York state legislature to press for action to be taken.

The Act allows a judgment against an American citizen to be ignored or overturned in America if it is shown to be a breach of his or her first amendment rights. However, that has happened not only in New York state; such legislation is appearing in other states and has also passed into Congress. I have the report of 13 July—two days ago—stating that the Senate Judiciary Committee unanimously passed bipartisan legislation aimed at protecting authors and journalists from libel law suits filed abroad. Essentially, the New York Bill has now been taken up, and it looks as though it will pass into federal law.

When the previous Lord Chancellor, the right hon. Member for Blackburn, gave evidence to the Select Committee, he said first that he was not convinced that the situation was a great problem. Secondly, he did not seem terribly fussed even if foreign Governments were taking the attitude I have described. He said that we had learned that there had been no representations from the British embassy to defend our system; those concerned had sat by and let these things go on. I find it profoundly worrying that Britain’s closest ally—the country that, whatever one thinks of America, is regarded as a bastion of free speech—should regard us as so restrictive and hostile to the principle of free speech that it feels it necessary to pass an Act such as I have outlined. Although that Act does not specifically refer to the UK, it is perfectly clear that it is directed at this country. I hope that, given that the Bill is now actively passing through the Senate and Congress, the Minister will start to talk to American legislators as a matter of urgency, and perhaps reassure them that the Government intend to deal with the issue.

[Paul Farrelly]

Does the hon. Gentleman agree that, very soon after making those statements to the Select Committee, the previous Lord Chancellor was open-minded enough to change his mind completely? He added the issue of libel tourism firmly to the remit of the libel working group, and one of the four main areas on which it reported at the end of March was libel tourism and reforms to court procedures to stop abuse of process and abuse of forum.

[Mr Whittingdale]

Indeed, that is right, and the hon. Gentleman is correct to draw attention to it. I am delighted that the right hon. Gentleman came round to our view that the matter was a serious one, that needed to be addressed.

One or two other matters occurred to the Committee, one of which was referred to in passing by the hon. Member for Newcastle-under-Lyme, although, perhaps out of modesty, he did not devote as much time to it as it deserves. That is the issue of this place and the reporting of our proceedings. It is well known that the hon. Gentleman uncovered the existence of a super-injunction taken out on behalf of Trafigura and tabled parliamentary questions about it, which led to a spat between Carter-Ruck and The Guardian about whether it was legitimate to report the fact that those questions had been tabled. There is no question about where parliamentary privilege lies: the hon. Gentleman is completely protected under parliamentary privilege in tabling those questions.

The situation becomes a lot less clear—this was news to me—in respect of a newspaper’s right to report the fact that the hon. Gentleman had tabled the questions. Previously, I had the impression that the reporting of responsible activity was allowed, under the Parliamentary Papers Act 1840, but Carter-Ruck argued vigorously with The Guardian that the super-injunction prevented the newspaper from reporting the questions. The Guardian’s in-house lawyer confirmed that that was her view as well. It later became apparent that the House authorities probably shared Carter-Ruck’s view. In my view, that is a profound threat to this place.

In a way, there is no point in our being able to say things in Parliament or table questions if nobody is allowed to report them. In the Select Committee’s view, any uncertainty about reporting parliamentary proceedings and the extent to which privilege allows Members of Parliament to raise matters with a degree of protection against libel action needs to be addressed quickly and removed. Lord Lester has included this in his Bill.

The two last things that I will mention are not principally about libel, but touch on it. We Committee members spent a lot of time considering privacy, and the balance between articles 8 and 10 of the European convention on human rights, which has been used to bring in a privacy law in this country. That matter touches on libel because some people now choose to use privacy legislation rather than libel legislation. Those two kinds of legislation are not separate. Under privacy legislation, people do not necessarily have to say whether the story is even true—they can just use such legislation to prevent it from being published. That needs to be borne in mind if we are going to have the thorough overhaul that I hope the Minister intends.

The last area that I should like to mention, which is complementary to libel law, is the self-regulatory mechanism adopted by the press—the Press Complaints Commission—which the Committee supports. There is a lot of debate about the effectiveness of the PCC, but it offers an alternative. If people choose to go to court and mount a libel action, it can take a long time and cost a lot of money, but at the end they might get a definitive statement that they have been defamed—and they may get a lot of money as a result. The PCC can take action quickly and is free, but people do not get any money: the most that they can hope for is a judgment by the PCC that the newspaper was wrong to carry a story. Each option has alternative attractions; each mechanism is useful, and one cannot substitute for the other.

The Committee was concerned about the most serious serial libel that has taken place in the past 50 years—perhaps within memory—which is that suffered by the McCanns, who were subjected to libel not once, but day after day, and not just in one newspaper, but in newspapers across Fleet street. That was eventually recognised and a lot of apologies were made, and payments were also made, but it cannot have made up for what they suffered at what was already a terribly distressing time for them. We were concerned that the self-regulatory mechanism of the press appeared to have failed in that instance, and we made a number of recommendations about how it should be strengthened. The role of the PCC needs to be borne in mind when looking at libel, because it and the courts deal with similar problems, but perhaps from different ends.

I think that I have spoken for long enough, but I have spoken for so long because we in the Committee spent a great deal of time on this serious issue. I am pleased that statements in the manifestos of all three parties, and in the programme of the coalition Government, are now being progressed and that the Government have made it clear that they are determined to take action in this area. I hope that we, as a Committee, have helped that process and that we will continue to do so in the debate on the draft Bill when it appears.