Crime and Courts Bill [Lords]

John Bercow Excerpts

Monday 18th March 2013 Commons Chamber

[Guy Opperman]

My hon. and learned Friend is making a very good case. Does he agree that the PCC was notoriously fallible when resolving large newspaper disputes, but very effective at resolving disputes involving local media and newspapers, which genuinely respected and obeyed its procedures? The danger with the new system, which my hon. and learned Friend is outlining eloquently, is that the local paper will be stuck with the same regulatory process, which is clearly meant to be a sledgehammer, as large national newspapers such as The Sun and the Daily Mirror. I suspect that that will result in the process being more expensive for the smaller paper—

[Mr Speaker]

Order. The hon. Gentleman’s intervention is exceptionally lengthy. I know that he has a distinguished record at the bar. If he were being paid by the word he would be greatly enriched, but I trust that he has made his point to his satisfaction. If not, he can always have another go in a moment.

[Sir Edward Garnier]

What the PCC was good at was dealing with unfairness—the hideous intrusion on private grief, the doorstepper, the camera coming through the letter box, the knock on the door demanding a photograph of the dead child and so on. The PCC dealt with that extremely well, but what it could not deal with was the multi-issue disputes that I have outlined.

It is not just a question of assessing the truth or falsity of words or of whether they are defensible and honest comment. On honest comment and certain forms of qualified privileged defence, the judge or the arbiter has to consider the question of malice and the respondent newspaper’s motive when it published the words complained of. I do not think, even with the best will in the world, that the proposed arbitration system for relevant publishers, under a recognised regulator, good though it will be, will be sufficiently well breeched and resourced to substitute itself for a disinterested judge when dealing with the case.

When it comes to disciplinary measures or the incentivisation of costs to bring people into this scheme, either as claimants or defendants—this goes back to a point that I made in the earlier debate—it will not be possible to deal with many expensive cases cheaply and quickly. They will need to go to a more formal, court-like, if not court, system. They will require proper arbitration with qualified arbiters, the sifting and assessment of evidence, the judging of witnesses and the reading of lots of documents. Those are functions of any form of arbitration dispute and it will not be quick or cheap.

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[Several hon. Members]

rose—

[Mr Speaker]

Order. Just before I call the right hon. Member for Bermondsey and Old Southwark (Simon Hughes), I will just point out that there are four Members seeking to contribute. The Secretary of State will want briefly to wind up on the new clause, and the knife falls at 10.21 pm. I am sure all Members will wish to take account of that; it would be good to get them all in.

[Simon Hughes (Bermondsey and Old Southwark) (LD)]

I rise to thank the Secretary of State for introducing this group of new clauses and amendments, and to support them. They are in the name not just of the Prime Minister, the Secretary of State, the Home Secretary and the Leader of the Opposition, but the Deputy Prime Minister. They are the additional provisions on exemplary damages and costs agreed as a result of the labours of recent days. I have paid tribute to various people, but I just want to add my tribute to my hon. Friend the hon. Member for South Dorset (Richard Drax), who was more thoroughly engaged, and later into the night, than many of us throughout pretty much all of this process. He must be thanked, too.

I am relieved that agreement was reached, because otherwise it would have been my name leading on 10 amendments, new clauses and schedules, and I would have had to explain all the technical matters on exemplary damages, costs and so on, on behalf of the coalition and other parties, instead of the Secretary of State. I therefore thank those who came to the rescue and did the deal. I will make just a couple of simple points and follow your request, Mr Speaker, to make sure there will be time for the other Members who wish to speak.

As we have all done, I went back to what Lord Justice Leveson said on these matters in his report. He was clear, in paragraphs 66 to 70, about what he was seeking to do. He led into that in paragraph 57, in relation to the body he recommended. He stated that it should

“order appropriate redress while encouraging individual newspapers to embrace a more rigorous process for dealing with complaints internally…and provide a fair, quick and inexpensive arbitration service to deal with any civil law claims based upon its members’ publications.”

I agree absolutely with the deputy leader of the Labour party that an arbitration service is an indispensible part of the structure. I hear, of course, what the hon. and learned Member for Harborough (Sir Edward Garnier) said—that that does not necessarily produce a quick, speedy or cheap outcome—but to get something by agreement, rather than full-frontal litigation, is clearly a good thing.

Paragraphs 66 and 67 read:

“The need for incentives…has led me to recommend the provision of an arbitration service… Such a system…would then make it possible to provide an incentive in relation to the costs of civil litigation. The normal rule is that the loser pays the legal costs incurred by the winner but costs recovered are never all the costs incurred”—

everyone who has been to law knows about that—

“and litigation is expensive not only for the loser but frequently for the winner as well. If, by declining to be a part of a regulatory system, a publisher has deprived a claimant of access to a quick, fair, low cost arbitration of the type I have proposed, the Civil Procedure Rules (governing civil litigation) could permit the court to deprive that publisher of its costs of litigation in privacy, defamation and other media cases, even if it had been successful.”

Lord Justice Leveson then sets out how that would happen in relation to exemplary damages, and concludes in paragraph 69:

“Such a system would also work the other way round. If an extremely wealthy claimant wished to force a newspaper publisher that was a member of the regulatory body into litigation (in the hope that the financial risk would compel settlement), it would be open to the publisher to argue that having provided a recognised low cost arbitral route, that claimant, even if successful, should be deprived of costs, simply because there was another, reasonable and cheap route to justice which could have been followed.”

Then there is an easy-to-understand set of recommendations at the back of the Lord Justice Leveson’s introduction on the process for damages.

The really good thing is that, without anybody, including the Secretary of State, pretending that the drafting is perfect for all time, those of us who were involved in the discussions have sought to strike a balance: if a publisher is part of the system, the presumption—I use the word in a non-legalistic way—will be that it will not be subject to exemplary damages, but if it is outside the system, the presumption will be that it could be subject to them. It is not quite that straightforward, but that was the general idea—and it was a good idea. It is an incentive-disincentive system, which was what everybody was working towards, so I join others in calling on the press to join up. If they do, there will be a system ready for them to make. This is not a pre-made system. The starting point is the existing code, but it will be up to the press to make the system work, and we all encourage them to do that. I am glad, then, that we have a platform from which to proceed.

I want to make three final points. First, I understand that further amendments might be necessary. The House of Lords has that opportunity, and the Liberal Democrat team is certainly willing to collaborate with Conservative colleagues, Labour colleagues and colleagues from elsewhere to ensure that we get it right, if we need to make further, more technical amendments in the Lords. We have time to do it. Secondly, I join others in thanking Hacked Off, which became the assembly of people speaking on behalf of victims. It was hard work at times, as all of us who were in the negotiations know, but it had a justified case. Its job was to remind us why we went down this road and, rightfully, to hold our feet to the fire and ensure that we did not forget why we were doing this. It is about the lives of people not in the public gaze.

Finally, we have referred to people—the McCanns, the Dowlers and others have been cited—who suddenly find themselves unexpectedly in the public eye. The other people referred to by at least one colleague are those who become part of the public commentary simply by their association with somebody who is in the public eye. That is equally unacceptable. It is the children, the mother, the elderly parent, the former wife, husband or partner, the friend or the associate—those people often get dragged in completely unwittingly. Perhaps they happened to be in a photograph or were at the house when somebody knocked on the door. We have to have a system that understands that if there is due cause for complaint about a politician, a sports celebrity or a business person, that is fine, but that does not mean that anyone has a free rein to go after all the other people who are absolutely innocent appendages to their lives, which happen to be public lives.

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The House proceeded to a Division.

[Mr Speaker]

I ask the Serjeant at Arms to investigate the delay in the Aye Lobby.

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[Mr Speaker]

With this it will be convenient to discuss the following:

Government new clause 16—Restraint orders and legal aid: supplementary.

Amendment 1, in clause 24, page 21, line 22, at end insert—

‘(6A) In fixing such an amount, and subsequent additions, account must be taken of the person’s relevant weekly income, excluding housing benefit and child related benefits, and allowance must be made for the protection of a reasonable financial subsistence level, in the manner used to determine the initial fine.’.

Amendment 103, page 21, line 25, leave out subsection (2).

Amendment 96, page 22, line 3, at end insert—

‘(5A) The Lord Chancellor must, by regulation, in statutory instrument of which a draft has been laid before and approved by resolution of each House of Parliament, provide the amount of any costs for services carried out for the purposes of collecting sums.’.

Amendment 97, in clause 25, page 23, line 11, leave out ‘person’ and insert ‘civil servant’.

Amendment 98, page 24, line 1, leave out paragraph (3).

New clause 12—Provision of intermediaries for very vulnerable witnesses—

‘(1) The Secretary of State must provide for intermediaries to be assigned to very vulnerable witnesses in all court cases.

(2) In the Youth Justice and Criminal Evidence Act 1999, after section 29 there is inserted:

“29A Intermediaries for very vulnerable witnesses

(1) A special measures direction must be made to provide for any examination of a very vulnerable witness (however and wherever conducted to be conducted through an interpreter or other person approved by the court for the purposes of this section (“an intermediary”).

(2) In addition to the functions set out in subsection 29(2), an intermediary must be assigned to very a vulnerable witness through their whole experience before, during and after court.

(3) For the purposes of this section, “very vulnerable witness” has the same meaning as defined in section [Court arrangements for very vulnerable witnesses] (5) of the Crime and Courts Act 2013.”.’.

New clause 14—Court arrangements for very vulnerable witnesses—

‘(1) The Secretary of State must make arrangements for specialist courts for very vulnerable witnesses.

(2) A specialist court for very vulnerable witnesses will consist of a partnership programme within the criminal court structure.

(3) In establishing the specialist court, the Secretary of State must involve the following partners—

(a) the judiciary;

(b) court officials;

(c) the Crown Prosecution Service;

(d) police forces;

(e) witness support services;

(f) victim support services; and

(g) any other specialist services that the Secretary of State deems appropriate.

(4) In cases where there is a very vulnerable witness—

(a) no judge can sit on the case unless he has taken part in appropriate training provided by the Judicial College;

(b) a single court usher, who has taken part in appropriate training provided by Her Majesty’s Courts and Tribunal Service, must be assigned to the witness throughout their time at court;

(c) the case will be assigned to a court with all necessary facilities to offer the full range of special measures set out in sections (23) to (30) of the Youth Justice and Criminal Evidence Act 1999;

(d) before allocating time for trials the court must take into account the impact of delays on very vulnerable witnesses; and

(e) the services of independent sexual violence advisors must be offered to very vulnerable witnesses in cases involving sexual offences.

(5) The Secretary of State must issue a code of practice giving guidance about court arrangements for very vulnerable witnesses, which must be published, and may be revised from time to time.

(6) Before issuing or revising a code under subsection (3), the Secretary of State must lay a copy before each House of Parliament for approval within a 40 day period.

(7) For the purposes of this section—

“very vulnerable witness” includes the victim in a case of child sexual abuse.

“independent sexual violence advisers” are victims-focused advocates who work with victims of recent and historic serious sexual crimes to enable them to access the services they need in the aftermath of the abuse they have experienced.’.

Government amendment 119.

[Damian Green]

Given the time pressure on our consideration of this large and disparate group, I propose to speak to the Government amendments—new clauses 15 and 16 and amendment 119—which relate to legal aid, and then, if possible, respond to the other amendments once I have had an opportunity to hear the arguments put forward by their sponsors. I hope that will provide a proper balance between Front-Bench and Back-Bench contributions to the debate.

Access to legal aid is a fundamental part of our legal system. However, difficult decisions relating to how the legal aid budget should be spent are made every day. We must remember that legal aid is not free and that we do not have unlimited resources. As such, we need to ensure that the limited funds are used effectively and directed to those who really need them.

At present, the Proceeds of Crime Act 2002 prevents restrained funds from being released to a defendant for legal expenses in relation to the offences to which the restraint order relates. Before the 2002 Act, there was a risk that individuals might recklessly dissipate assets through lavish spending on their defence in order to try to secure an acquittal at any cost. In 2002, the then Government decided that it was better to allow access to legal aid than to allow a defendant to draw down restrained funds to pay for their defence. However, that has led to a public perception that rich offenders with significant restrained assets are receiving vast sums of legal aid when they could afford to make a contribution to their defence. For example, over the past three years more than £14.3 million in legal aid was paid to just 49 high-profile individuals. Let us not forget that we are talking about individuals suspected of involvement in serious and organised crime, including drug smuggling and large-scale fraud, the victims of which are all too often numerous. [Interruption.]

[Mr Speaker]

Order. I apologise for interrupting the Minister. May I gently say to the House that a number of Back Benchers on both sides have new clauses or amendments to which they wish to speak, and there is such a hubbub that it is quite difficult to hear properly what the Minister is saying? Let us please have a bit of order, in everybody’s interests.

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[Several hon. Members]

rose—

[Mr Speaker]

Order. Before I call the next speaker, I would like to accommodate others as well, if at all possible, and that requires extreme self-discipline.