Oral Answers to Questions

Stephen Phillips Excerpts

Tuesday 26th January 2016 Commons Chamber

[Stephen Phillips (Sleaford and North Hykeham) (Con)]

T1. If he will make a statement on his departmental responsibilities.

[The Lord Chancellor and Secretary of State for Justice (Michael Gove)]

I have already had occasion in the House to offer my thanks and gratitude to Nick Hardwick, the outgoing chief inspector of prisons, and to Paul Wilson, the outgoing chief inspector of probation. Their expertise will not be lost to the criminal justice system, however, because, as I am delighted to announce today, I will be appointing Nick Hardwick as the new chair of the Parole Board. He will succeed the current chair, Sir David Calvert-Smith, who is due to leave at the end of March. I thank him for his service.

[Stephen Phillips]

The courts Minister, my hon. Friend the Member for North West Cambridgeshire (Mr Vara), will know that last year I wrote a report on former service personnel in the criminal justice system that recommended, among other things, training for members of the Bar, solicitors and judges to deal with this cohort—albeit a small cohort—of offenders. What steps is my right hon. Friend taking to ensure that court staff—those actually employed in the courts—receive appropriate training to deal with these individuals?

[Michael Gove]

My hon. and learned Friend, who is a distinguished veteran as well as an outstanding silk, makes an important point. He produced an excellent report on offenders who have been in the armed forces. Court staff are trained to deal with the specific needs of veterans, and we are aware that there are particular needs, which might relate to post-traumatic stress disorder and associated mental health concerns, to which court staff need to be sensitive.

Psychoactive Substances Bill [Lords]

Stephen Phillips Excerpts

Monday 19th October 2015 Commons Chamber

[Mike Penning]

Under this legislation, the highest penalty for selling or purchasing these products—particularly for selling—will be seven years, which is not a light sentence. It indicates the severity of the offence. We do not want to criminalise a whole group of people who have, for many years, been buying a product that was perfectly legal, but there are some real changes that we need to make on behalf of our constituents, which is why we are all in this place. For once, we should get ahead of the drug dealers and chemists. Huge amounts of money are involved not only within the paramilitaries but within organised crime. By having a blanket ban, there are real concerns that we will be banning things that we all enjoy. I am talking about caffeine—

[Stephen Phillips (Sleaford and North Hykeham) (Con)]

Nutmeg.

[Mike Penning]

Yes, nutmeg and the scent of a flower. That would be complete and utter tosh. We will ensure that we insert what we want to insert, just as the Government did in the Republic of Ireland, while at the same time having a blanket ban.

--- Later in debate ---

[Mike Penning]

I can confirm that. There are uses for some of these drugs within industry, and we want that to continue, particularly in the research field. We cannot help the people who are addicted to some of these substances if we do not give them the right support. If it is seen that someone is producing a product for an industrial use, or for any other use, but they are knowingly selling it, they will be prosecuted. It will be an offence whether or not the product carries that label. That is imperative as we take these measures forward.

[Stephen Phillips]

Further to the point made by my hon. Friend the Member for Pendle (Andrew Stephenson), it seems to me that the difficulty is that there will be a defence for suppliers of so-called legal highs under clause 5(2) if they do not know or are reckless as to whether the substance is likely to be consumed. If people can say that they are not selling products for human consumption because all that happened was that someone came in and asked for some plant food, it does not necessarily follow that they will be committing an offence under the Bill and that the head shops referred to by the hon. Member for Bassetlaw (John Mann) will close straight away.

[Mike Penning]

My hon. and learned Friend has studied the Bill and I have worked with him on other Bills, so I know exactly where he is coming from. The intent of the Bill is there. The evidence from the Republic of Ireland is that that did not happen, but if we need to tighten the provisions in Committee we can do so; I think there is consensus across the House on that. The head shops closed literally overnight in the Republic of Ireland, and the problem with that type of sale fell through the floor. If we pass the programme motion later this evening, we will be in Committee next week and we can tighten the Bill if consensus allows.

We can go through all the clauses, but I am sure that everybody has read the Bill so in the time available I want to concentrate on two points. First, what is the purpose of the Bill? It is intended to save people’s lives. I completely get where my former right hon. Friend the Member for North Norfolk (Norman Lamb)—he is still my friend—is coming from. We might not agree 100% on the method, but let us take the Bill through Committee and let us consider the evidence. I know that there is some other evidence from the Republic of Ireland: I have seen it, I have sat with the scientists and I have sat with the Ministers. Let us see whether we can save lives, bearing in mind the 129 we lost last year. That figure is growing dramatically year on year, which is why there has been a campaign for the Bill for some time.

--- Later in debate ---

[Mike Penning]

My hon. Friend makes an important point. As I said earlier, this is only one part of a campaign to make sure that people understand the dangers and the change in legislation. The police are starting to talk to people and are going into schools. Treatment is important too, but it is a difficult area. My hon. Friend is absolutely right to raise the issue.

[Stephen Phillips]

I confess to the Minister—I am trying to help—that I am a little confused as well. I do not think that the Bill creates an offence of purchasing so-called legal highs. Importing is a different matter, and is dealt with in clause 8, which he will no doubt confirm. If he can do so the debate about people buying so-called legal highs and being criminalised will go away.

May I tax the Minister on something else? It is my understanding that if a user of legal highs purchases three or four pills over the internet that are not for human consumption, then gives them to his mates on a night out he has committed an offence. In Committee, we may have to look at whether we intend to criminalise those individuals in the Bill.

[Mike Penning]

I apologise if I have confused hon. Members. Let me try again. There are relevant provisions: producing a psychoactive substance, which is dealt with in clause 4; supplying, or offering to supply a psychoactive substance, which is dealt with in clause 5; possession of a psychoactive substance with intent to supply under clause 7; and importing or exporting a psychoactive substance under clause 8. I apologise: I kind of misled the House unintentionally on individual possession. I was talking about intent to supply, not intent to use. Making a purchase from a foreign website would be caught, but the purchase on its own from a website or foreign website would not, and I apologise if I misled the House on that point.

--- Later in debate ---

[Lyn Brown (West Ham) (Lab)]

The Opposition support the principles of the Bill. The 2015 Labour manifesto included a commitment to ban the sale and distribution of dangerous psychoactive substances, which is why we are with the Minister tonight.

The illicit drugs situation in the UK and throughout the world is constantly changing. Protecting young people from harm is our responsibility, even if we know that there is no silver bullet to reduce the trade in drugs. New psychoactive substances can be a significant danger to public health, and they have taken people’s lives. Jimmy Guichard was a fun-loving, sporty 18-year-old bloke living in Kent. He had heard of legal highs and decided to try them. He bought a packet of Clockwork Orange from a local head shop, and he may have taken a high dose, possibly the same as he would have done for ordinary cannabis. He had a severe reaction, suffered a heart attack and, sadly, died the next day.

Owain Vaughan was 14 when he tried a brand of synthetic cannabis with friends and was overcome by its potency. He described the effects to BBC News:

“It made me physically ill, I collapsed, I started fitting, I tried to get up, but fell straight back down and banged my head…I felt my own heart stop and I was scared.”

Unfortunately, stories like Jimmy’s and Owain’s are not isolated incidents. The Office for National Statistics reports that there were 67 deaths in England and Wales involving psychoactive substances in 2014, so the problem is clearly growing.

We do not have comprehensive evidence about the overall harm of psychoactive substances, but people have died as a result of taking these drugs. Some of the substances can cause severe adverse effects such as heart palpitations, panic attacks, hallucinations and even psychotic episodes.

The supply of these drugs is becoming an industry. They are made, marketed and supplied by unprincipled organisations for financial profit. Our understanding of the dangers of legal highs has been greatly enhanced by the work of the Angelus Foundation, and I pay tribute to Maryon Stewart, who established the foundation after losing her daughter Hester, a medical student, to the legal high GBL in 2009. Research by the Angelus Foundation has estimated that there were more than 250 head shops in the UK selling these products in 2013. According to the crime survey of England and Wales, around a third of all new psychoactive substances purchased in the UK came from such businesses. Head shops claim that they do not sell illegal substances, but Home Office tests have shown that almost 20% of packets of new psychoactive substances contain illegal drugs.

Head shops and other high street retail outlets normalise drug taking and encourage people to experiment with and use drugs. The names and packaging are designed to attract young adults to experiment, and free samples are regularly used as part of marketing strategies. The fact that substances can be bought on the high street in broad daylight without any sanction whatever gives the illusion that the substances are both safe and legal. There are hundreds of internet sites that sell these substances online, with little or no knowledge of who they are selling to. The Home Office estimates that the industry has an annual turnover of £82 million. Overall, the UK has the largest new psychoactive substances market in Europe.

As the Minister stated, drugs have traditionally been controlled in the UK through the Misuse of Drugs Act 1971, under which the Home Secretary has the power to put substances on a banned list, so long as he or she has consulted the Advisory Council on the Misuse of Drugs. Since the middle of the previous decade, that mechanism has been put under great strain by the explosive growth of new psychoactive substances. We have managed to control some of them, but let us be under no illusion—that has not solved the problem.

The relatively easy process of creating new psychoactive substances means that these new drugs are appearing on the market all the time. In each of the past six years, more substances appeared on the market than was the case in the previous year. The Home Office and the Advisory Council on the Misuse of Drugs cannot keep up because the traditional process of classifying the drugs, with its independent and objective process of assessing the overall harms of a particular substance, can be cumbersome. It is a game of whack-a-mole that the authorities are hard pressed to win. In 2011, the Government tried to deal with the problem by introducing temporary class drug orders. TCDOs allow the Government to ban the production and sale of new psychoactive substances while the ACMD gathers more information on the risk and harm associated with those drugs.

There are problems with TCDOs. First, they are inherently reactive, and there is always a time gap between a drug coming on to the market and being subject to control. The second problem is that TCDOs last for only 12 months, which puts significant pressure on the ACMD to assess the harm caused by the drug quickly. Another approach taken by the Home Office under the Labour Government was to add generic groups, rather than specific compounds, to the list of controlled substances. Although this procedure has had some success in controlling new psychoactive substances, it is clear that we are dealing with an evolving problem that our current legal framework cannot get to grips with.

In December 2013, the Government appointed an expert panel that recommended that the most effective way to deal with new psychoactive substances would be to introduce a blanket ban on the supply, importation and exportation of any psychoactive substance that was not specifically controlled or exempted. This approach, as we have heard, is modelled on legislation passed in the Republic of Ireland in 2010. There were 102 head shops in Ireland at that time, according to the Irish police force, and they have now “virtually disappeared”. The expert panel was clear that the number of clients attending drug treatment services had declined: 368 people received treatment for problems in 2011 and that number fell to 220 in 2012. Although I accept that it is too early to make a long-term judgment on the success of the Irish model, it seems to have made a start at tackling the problem.

The Bill takes up the expert panel’s recommendation and makes it a criminal offence to produce, supply, import or export these drugs. I am not so naive as to think that we are going to shut down the industry altogether, even though that is what many people would want, but by more quickly containing production and supply upstream, we will hopefully reduce the harms to young people downstream.

[Stephen Phillips]

Does the hon. Lady share my concern, which we need to consider when we think about the Bill, that the closure of the head shops makes it possible that the entire trade will be driven underground, that it will link itself with the illegal drug trade, and that those who might at present go on to the high street or into a garage and purchase what they think are legal highs, which may be very dangerous for them, will end up using much more serious class A and class B drugs?

[Lyn Brown]

I accept what the hon. and learned Gentleman says, but one of the things I find particularly repulsive is that our young people see these head shops in front of them on the high street, and then think that the shops are legal and safe because if they were not, the police would have come along and nabbed them. I will answer him later because we do need to think about what happens with an underground market.

This Bill sends out a message to young people who are unaware that these substances are dangerous. Many of those that are sold in the shops are illegal now, let alone before we ban the lot of them. As I support the aims and general approach of the Bill, I want to ensure that it is drafted and implemented as effectively as possible, so I will press the Government on several issues and worries. I hope that the Minister will take my recommendations and concerns in the constructive manner in which they will be intended.

My first point is about education. The Bill is an appropriate way to try to tackle the supply of dangerous psychoactive substances, but we need to reduce demand. Unfortunately, there is a load of misinformation about psychoactive substances. Research by the Royal Society for Public Health found that a quarter of young people aged between 16 and 24 believed that so-called legal highs were safer than illegal drugs. This is a dangerous misunderstanding, because some of the new psychoactive substances have gone on to be controlled and designated as class A, indicating that they were some of the most harmful drugs around before they were controlled. Passing this legislation has the potential to put to bed the dangerous myth that psychoactive substances are safe, but the measure will do so only if it is supported by a concerted communication and education strategy.

The Labour Administration in Wales have shown us how that can be done by putting education at the forefront of their drug prevention strategy. There is now a core substance misuse education programme in 97% of Welsh primary and secondary schools to ensure that almost all Welsh schoolchildren receive accurate, consistent and credible information about the potential harms of drugs, rather than having to rely on myths and guesswork. Labour Members have consistently emphasised the role of PSHE—personal, social, health and economic education—in reducing drug use. I have voted to make PSHE compulsory in schools, and that needs to be considered again.

--- Later in debate ---

[Lyn Brown]

I thought I had said that, but I obviously did not say it well enough. However, I thank my hon. Friend for his assistance.

I understand that the ACMD has offered to work with the Home Office to try to overcome the problem of needing to prove psychoactivity, and that the ACMD believes the issue can be resolved. I look forward to the Minister informing the House about what progress is being made on that issue so that we can be assured that the Bill has the teeth it needs. The definition of psychoactivity should be at the core of the Bill, so I am rather surprised that the Government felt able to move the Bill’s Second Reading without that point being resolved. The ACMD recently met the Home Secretary, and the House really needs some detail on how the discussions are progressing.

I want the Minister to consider monitoring and evaluation. I am pleased that the Government are now making a statutory commitment to review how well the Bill works. However, it is important that we are given more details of the intended scope of the review. We need to know that we are breaking up not just the legal market, but the overall supply chain as well. Ultimately, the ban may have the effect of reducing the number of users of NPSs, but of increasing the risk for those who continue to use them. It is clear that a wide-ranging and comprehensive review, backed up by thorough and better research, will be necessary.

I also want the Minister—he can see that I have a long list—to speak to his colleagues in the Ministry of Justice to see whether the impact on prisons can be given particular attention. I am sure that he was as alarmed as I was by the prisons and probation ombudsman’s report in July, which found that new psychoactive substances were a factor in the deaths of at least 19 prisoners between 2012 and 2014. The annual report of Her Majesty’s chief inspector of prisons was just as concerning. It found that NPS

“has had a severe impact and has led to debt and associated violence.”

That is a real problem for our prisons, and we need to know that it is being dealt with.

[Stephen Phillips]

A point that may not have occurred to the hon. Lady arises from the two points that she has put to the Minister—the impact on the MOJ’s budget of the difficulty of proving that something is a psychoactive substance within the meaning of clause 2. That issue will inevitably have to go to a jury, and will therefore require expert evidence on both the prosecution and the defence sides. Has she considered the potential financial effects on the legal aid budget if clause 2 is not amended?

[Lyn Brown]

I am clearly being far too subtle. I am not often accused of that. I talked about resources and clearly we understand that that will be an issue. I thank the hon. and learned Gentleman for drawing the point out and for being so succinct.

The Home Secretary has said that the Home Office is actively considering the point about prisons and intends to table an amendment in Committee. I hope that that is still the Government’s intention. I will examine any such amendment carefully.

Oral Answers to Questions

Stephen Phillips Excerpts

Tuesday 8th September 2015 Commons Chamber

[Andrew Selous]

I most certainly will. I had the pleasure of visiting Thorn Cross myself not so long ago. I met a number of prisoners who had undertaken the Sycamore Tree course, and they told me what a benefit it had been to them. I commend the hon. Gentleman very warmly for stressing the importance of families and strong family relationships for prisoners. The chief inspector of prisons highlighted that in his recent report, and he was right to do so.

[Stephen Phillips (Sleaford and North Hykeham) (Con)]

My hon. Friend will know that last year, at the request of the previous Secretary of State, I wrote a report on former service personnel in the criminal justice system containing 15 recommendations designed to ensure that that cohort does better as regards reoffending rates. Will he update the House on how those recommendations are being implemented?

[Andrew Selous]

I am very grateful to my hon. and learned Friend. We are taking his report extremely seriously and working through the recommendations. In particular, I commend to him the work of the charity Care after Combat, with which I am sure he is familiar. Having spent a lot of time seeing its work, I can tell him that it is expanding across the prison estate and will help us to achieve the points he rightly raised in his review.

Oral Answers to Questions

Stephen Phillips Excerpts

Tuesday 12th November 2013 Commons Chamber

[Chris Grayling]

As the hon. Gentleman knows, the Parole Board and its decisions are independent, but I hope that one benefit of the establishment of the national probation service, with expertise in dealing with the highest-risk offenders, will be a greater degree of expertise sitting alongside the Parole Board to advise it on when it is appropriate to release someone and when it is not. I share his concern about ensuring it is safe to release people on to our streets and that they do not continue to pose a threat to society.

[Stephen Phillips (Sleaford and North Hykeham) (Con)]

T4. My right hon. Friend will be aware that there has previously been considerable disquiet within the country over the effectiveness of community penalties, in both marking the gravity of offences and ensuring the effective rehabilitation of offenders. I know that he is alive to those concerns, but I would be grateful if he told the House what steps he is taking to ensure they are met.

[Damian Green]

I entirely share my hon. and learned Friend’s concerns about public confidence in community sentencing, which is precisely why we have changed the system so that in the future every community order must contain a punitive element. Indeed, the Offender Rehabilitation Bill creates a new flexible rehabilitation activity requirement to aid the rehabilitation of offenders while they are doing some community activity.

Anti-social Behaviour, Crime and Policing Bill

Stephen Phillips Excerpts

Tuesday 15th October 2013 Commons Chamber

[Stephen Phillips (Sleaford and North Hykeham) (Con)]

I do not wish to detain the House for any great period. I had the great privilege and honour of serving on the Bill Committee with my hon. Friend the Member for Poole (Mr Syms), who was not always given an easy time by those whom he was whipping, even on his own Benches. As a number of hon. Members have done, I pay tribute to the proceedings in the Bill Committee. It was a great pleasure of course to work with the right hon. Member for Delyn (Mr Hanson) and with the Minister for Policing and Criminal Justice and the hon. Member for Taunton Deane (Mr Browne), who was also taking the Bill through Committee.

The Bill has shown the House at its best. It has been improved throughout the Bill Committee, both by Opposition amendments that the Government have taken on board—they have brought changes to the Bill before the House on Report—and by amendments tabled by Government Back Benchers, which the Government have also taken into account. I want to pay particular tribute to my hon. Friend the Member for Chatham and Aylesford (Tracey Crouch) for her work during the passage of the Bill, which a number of us were pleased to support and which has led to the vast improvement of the Bill before it leaves this place.

I am grateful to the right hon. Member for Delyn for indicating he will not divide the House on Third Reading, but insofar as there is any difference between the two sides of the House on the Bill, it appears principally to centre on whether ASBOs have been a good thing. I understand that there is politics around this and the Labour party is deeply attached to the idea, but as I pointed out in our debate yesterday, whether or not ASBOs were originally effective, as matters now stand they have turned out not to be effective at all. As the hon. Member for Cambridge (Dr Huppert) pointed out, they have become a badge of honour for some teenagers, and the breach rates of ASBOs among teenagers in particular have risen to such levels that they have proved completely ineffective at controlling antisocial behaviour. It is therefore entirely right that the Government have moved to tackle this issue—as, I say to the right hon. Member for Delyn, I suspect that that would have been the position even if his party were in government.

[Lady Hermon]

We had to wait and wait impatiently for years for the Labour party to introduce ASBOs in Northern Ireland, and we were very grateful indeed when we had them extended to Northern Ireland and we have found them very effective.

[Stephen Phillips]

I hear what the hon. Lady says, but the breach rates among teenagers have in some places reached as high as 90% and in those circumstances it is absolutely plain, at least in England and Wales, that ASBOs are not working to control antisocial behaviour. The poll to which I referred yesterday and to which the hon. Member for Cambridge has referred today found that the vast majority of people in this country do not see ASBOs as an effective way of tackling antisocial behaviour. The position in Northern Ireland may be different, but the reality is that whichever party was in government, this issue had to be grappled with. I am pleased the Government have done so and have brought forward measures to deal with antisocial behaviour that are largely welcome on both sides of the House.

As the Bill leaves the House, there are great sadnesses. One of them is that we are yet to have a proper debate on the extradition provisions. We have had the Scott Baker report, yet that has never been debated at length in this House. My hon. Friends the Members for Enfield North (Nick de Bois) and for Esher and Walton (Mr Raab) have repeatedly sought to have a proper debate on extradition, and it remains a matter of great sadness to me—and, I know, a number of other colleagues—that we have not yet had that debate. I therefore hope that, as this Bill leaves the House with these effectively undebated provisions relating to extradition, they will receive a great deal of scrutiny in the other place.

When my right hon. Friend the Minister opened the Third Reading debate he pointed out that one of the things this Bill will do is put the victim at the absolute heart of tackling antisocial behaviour. That is greatly to be welcomed. I had some concerns about the way in which community remedies were going to be dealt with in the Bill, but the Government have listened to the concerns I and a number of others had around how those provisions were to be interpreted and whether or not guidance should be given. That is one of the ways in which the Bill has been improved, and it serves to show this House in its best light.

The Government have listened and brought forward measures designed to improve the Bill, so that when it is rolled out across the country, it tackles the things it is designed to tackle. I have paid a number of tributes already, but may I pay a final one? It is fair to say that the officials at the Home Office and the Department for Environment, Food and Rural Affairs were given a great deal of work to do by the Bill Committee during the passage of this Bill, and I am sure that my right hon. Friend the Minister would wish to join me in congratulating them on all the work they did. As this Bill goes to the other place for further consideration, I can say that, in its drafting and the way in which it has been improved, it is, in my short tenure in this House, one of the best Bills the House has considered.

Question put and agreed to.

Bill accordingly read the Third time and passed.

Anti-social Behaviour, Crime and Policing Bill

Stephen Phillips Excerpts

Monday 14th October 2013 Commons Chamber

[Mr Reed]

My hon. Friend makes an interesting point, but antisocial behaviour can happen in any community. Government Members ought to listen to the people they represent, who do not wish to see them watering down the responses and toolkit available to tackle antisocial behaviour.

To refer again to my experience, Lambeth council increased the use of ASBOs to achieve a reduction in antisocial behaviour not for the slogans or press releases, or to try to look tough, but because it was needed to get a grip of our streets and return confidence to the law-abiding majority of residents. Government Members cannot tell me that ASBOs do not work because I saw how crime fell when a newly elected Labour council worked alongside the police to use ASBOs to great effect in making our streets and our communities safe again.

ASBOs work in part because they are backed by a criminal sanction. Breaching an ASBO is not something to be taken lightly—it is a criminal offence. Persistent antisocial behaviour is deeply damaging to local communities, and people expect effective sanctions. With Labour’s ASBOs, that is exactly what they got. Instead, the Government propose to take away the criminal sanction. Offenders can breach IPNAs in the full knowledge that they are not committing a crime. If the police or local councils want action taken against someone who has breached their IPNA and who is terrorising a local community, they will not get support from the criminal justice system. There is no automatic penalty. Instead, the breach of an IPNA will lead to the potential of civil action brought under the contempt of court proceedings. Offenders across the country will be rejoicing that the Government have gone soft, while the law-abiding majority will be horrified.

The Government’s proposal is not only a weak response to antisocial behaviour, but the police and local councils will pay for it themselves. Instead of criminal proceedings being brought by the Crown Prosecution Service, the police will have to bring a civil action in the courts at their own expense.

[Stephen Phillips (Sleaford and North Hykeham) (Con)]

Why, if ASBOs with criminal penalties attached are so successful, do 70% to 80% of teenagers against whom they are made breach them?

[Mr Reed]

I have given the hon. and learned Gentleman examples of how we successfully used ASBOs to drive down antisocial behaviour and offending of that kind, so I do not take his point.

--- Later in debate ---

[Dr Huppert]

It is a pleasure to follow the hon. Member for Hayes and Harlington (John McDonnell). I agree with much of what he said, particularly about the consequences of the riots, which I shall come back to. Let me start by welcoming the Minister of State, Home Department, my hon. Friend the Member for Lewes (Norman Baker) to his new post and by congratulating him on his promotion to Minister of State. His injection of liberalism into this Department will be hugely welcome after decades in which Conservative and Labour Governments have clamped down on civil liberties and taken illiberal approaches wherever possible, playing to populism’s worst flaws. I greatly look forward to him playing his role as Minister of State in this Department.

I disagree with what the hon. Member for Croydon North (Mr Reed) said about the effectiveness of ASBOs. I do not think they were effective at all, but I do think substantial improvements can be made to the Bill. I hope this new Minister will take the opportunity to reflect on our comments and come up with something that takes them all into account.

[Stephen Phillips]

Whether or not ASBOs were effective originally, does my hon. Friend agree that, over time, they have become increasingly less effective? The breach rates are now so significant—up to 90% for most orders—that they have become utterly meaningless.

[Dr Huppert]

I agree; my hon. Friend is right that ASBOs simply do not work, so the idea of continuing them does not make much sense.

--- Later in debate ---

I believe that the amendment should be withdrawn, and that further discussions should take place. In my view, for the Government to railroad through the House a measure about which they are unclear is a constitutional disgrace.

[Stephen Phillips]

I intend to speak to the amendments for which I am at least in part responsible, and which were necessitated by our proceedings in Committee: amendments 1, 17, 45, 46 and 39 to 41. Before I do so, however, let me welcome my hon. Friend the Minister to his new post, and congratulate him on his promotion. Let me also welcome the hon. Member for Croydon North (Mr Reed) to his place on the Front Bench. He has been in the House for only a short time, and I am sure that his promotion is well deserved. No doubt we shall see a great deal more of him in due course.

Having congratulated the hon. Gentleman, however, I am afraid that I must take issue with some of the points that he made this evening. I have to tell him that while there was a lot of hot air about Labour’s great policy of the ASBO, the truth of the matter on the streets—whether in urban or in rural Britain—has been very different. Year on year, ASBOs have been breached in increasing percentages. While the hon. Gentleman, as the former leader of Lambeth council, may well have thought that he had solved problems by securing ASBOs for those who were engaging in antisocial behaviour which was affecting people in the area, the truth is that merely securing the orders achieved precisely nothing. It was their enforcement that was important. As I am sure the Minister will tell us in his response, breach rates now stand at 70%, 80% or 90%.

[Sir Peter Bottomley (Worthing West) (Con)]

Drawing the attention of those on the Opposition Front Bench to the speech that my hon. and learned Friend is making may be to their advantage, as opposed to the advantage of the House. Would it be possible for them to stop talking to each other and listen to my hon. and learned Friend, who is making rather a good speech, mainly about the Opposition spokesmen themselves?

[Stephen Phillips]

I am grateful to my hon. Friend for his intervention, but I fear that it may be counter-productive. I thought I was having rather an easy ride, at least in terms of how my speech will read in Hansard. There has been no intervention so far from the hon. Member for Croydon North, and I suspect that there can be no intervention from him now, because he has not heard anything that I have said. Be that as it may, however, this is not Third Reading, so I shall now deal with the amendments with which the House is being troubled principally as a result of what some would describe as my intransigence in Committee.

Let me begin with amendments 1 and 17. They relate, I am afraid, to words that were inserted in the Bill as a consequence of amendments to clauses 1 and 7, which were suggested by me and were carried in Committee. Clause 1 concerns the general power to grant injunctions. Subsection (5) states:

“Prohibitions and requirements in an injunction under this section must, so far as practicable, be such as to avoid”

a list of occurrences including, for instance,

“any conflict with the respondent’s religious beliefs”.

In the form in which it was considered in Committee, the Bill made no reference to the fact that those against whom injunctions might be granted might have caring responsibilities, particularly in regard to children. Because I thought that that was an important omission, I proposed—and the Committee agreed, in circumstances that I shall describe in due course—that the court should be required to take into account

“any conflict with the respondent’s caring responsibilities including, in particular, any caring responsibilities for a child”.

That seemed to me—and still seems to me—to be particularly important. Children’s life chances are not fixed, and if an IPNA is granted against their parents, they may be significantly and substantially affected by something for which they are not responsible. In those circumstances, it seems appropriate for the court expressly to take into account caring responsibilities, particularly caring responsibilities for children—and, perhaps, for those who suffer from disabilities. The Government’s position is, as I understand it, that those matters will be taken into account by a court under the general powers in the Bill—that is the assurance I have been given. Indeed, the draft guidance produced last week in accordance with the undertakings given to the Public Bill Committee contains wording that requires those seeking IPNAs—regard will no doubt be paid to this by courts as well—to take into account caring responsibilities.

On that basis, and although the decision has not been easy, I am not minded to oppose the Government’s desire to remove my first attempt at legislation in this House, successful as it was, because the Committee did not divide on the amendment I was proposing to clause 1. My amendment was accepted by the Minister who was then in charge, although there was a reservation when the “like” amendment was proposed to clause 27 that the Government reserved the right to come back to this matter on Report, as they have now done. Be that as it may, I am not going to take further the point that the Committee did not divide. The simple fact is—the Minister needs to make this clear from the Dispatch Box, so that it is clear to courts in due course—the one matter that has to be taken into account when an injunction is granted are the caring responsibilities of those against whom it is to be granted. That addresses amendments 1 and 17.

Government amendments 45 and 46 relate to clause 93 —we are see-sawing around a lot because of how the amendments have been grouped—which deals with community remedies and the community remedy document. As the House will know, every Member having read the Bill in detail, that is a list of community remedies—punishments, if one prefers—that can be handed out, which is drafted by a local policing body. Before it came into Committee, the Bill provided no guidance as to what that document might contain. As I pointed out in Committee, it might have provided that one punishment or remedy that could be handed out was to place someone in the stocks for two or three hours and have oranges hurled at them. Many of our constituents would doubtless think that a very sensible community remedy to be contained in a list of punishments or remedies that might be handed out to those guilty of antisocial behaviour. Obviously, the police and crime commissioners who gave evidence to the Public Bill Committee indicated that some form of guidance would be both desirable and necessary, and that has been taken on board by the Government. I tabled, but did not move, a probing amendment in Committee and it has been picked up by the Government, in that they have tabled amendments 45 and 46 to deal with the possible problem that one might have ended up with rogue and inappropriate remedies. Those measures therefore have my full support and I hope they will also have the support of the House.

I do not wish to detain the House for too long, but I wish to discuss amendments 39 and 40, which relate to clauses 70 and 73 and the time within which those who obtain orders must return to court. The Bill specifies a relatively short period—no doubt the Minister knows precisely what it is—but for the purposes of computing time no account is taken of days when the courts might be closed. I proposed to the relevant Minister somewhat longer periods, because it seemed to me that a problem might arise in respect of bank holidays and public holidays, as the courts would not be able to deal with these matters sufficiently quickly to enable the time limits to be complied with. Some of that has been taken into account, because the Government now propose that Christmas day will be removed from the period of calculation in these clauses, but there remains a difficulty with which the Minister needs to grapple.

I wrote to the Minister for Policing and Criminal Justice and it was suggested that specifying Christmas day was sufficient in this regard, but what about Easter? As we know, it consists of two public holidays, Good Friday and Easter Monday, so we are talking about a four-day period. The Home Office’s response has been, “The courts are able to deal with this because they may open over the weekend.” The Minister needs to reassure the House that that is the position and that there is therefore enough time over the Easter holiday, in particular, for these orders to be dealt with appropriately and for the Bill’s time limits to be addressed.

Government amendment 41 would alter clause 81, which deals with the recovery of costs against the owner of premises where an order is made—I have forgotten which part of the Bill this relates to, but the Minister will doubtless remind me. The Government’s point is that where such an order is made—for example, against a nightclub—the police should be able to recover their costs, and that is absolutely right. However, as I pointed out in Committee, nightclubs or late-night premises often are not owned by the people who occupy the premises where the nuisance occurs. For that reason, we need to include the word “occupier”, as the Government are now proposing. I am pleased that that piece of advice, which I gave for free—that is rare—was accepted. The amendment is therefore sensible and I hope it will command support across the House.

--- Later in debate ---

[Mark Field]

Naturally, I will try to be constructive. I wholly agree that the lower level nuisance and annoyance behaviour covered by an IPNA does not always warrant the threat of criminal prosecution, which perhaps happened in the past with ASBOs. Among the concerns expressed earlier was that elements of those ASBOs were not being properly enforced. We should rightly look to avoid criminalising the country’s youth wherever possible, but in practice the specific problems that we face with, for example, the very professional, aggressive begging on the streets of Westminster, literally within yards of where we are all sitting tonight, can currently be tackled only through the use of ASBOs on application. We rely heavily on the genuine threat of arrest to protect victims and to deter professional aggressive beggars, who are completely different from the 16-year-old who has got into trouble by graffitiing a bus-stop, for example. We lose that threat under the new proposals.

I want also to speak briefly about the antisocial behaviour committed by people with no fixed UK address. From the experience in Westminster city council area, but also in the City of London area that I represent, I know that tackling antisocial behaviour often involves dealing with organised aggressive begging gangs from across the EU. I fear that we will hear a lot more of this in the months to come. Some individuals travel to the UK in large numbers, with the sole intention of doing a short, but profitable begging stint before returning to their home. These people enter the UK according to their rights as EU citizens, and cannot currently be deported unless they remain in the country for longer than three months or commit a criminal offence. While they are in the UK, and particularly while they are here in central London, they have no fixed address and are completely transient in nature, with many sleeping rough.

Where we have previously dealt with such individuals through ASBOs on application, under the IPNA system the local authority will be able to apply for an arrest warrant only after a breach has occurred, by which time the individual in question may well have left the country, entirely unchallenged, to return at a future date. These people are deliberately off the grid, and we must have some legislation in place that closes this potential loophole and does not actively encourage the gaming of the system.

[Stephen Phillips]

My hon. Friend raises an extremely important point, to which I hope the Minister will respond. Might provisions in other statutes be used, under which, where a crime had been committed, people could be deported without an ASBO having to be made against them?

[Mark Field]

I cannot use ignorance of the law as an excuse, but my hon. and learned Friend knows considerably more about these matters than I do. He makes a relevant point, which is that we do not necessarily have to go entirely down that route. The ASBO legislation and this concurrent legislation is designed to look at the whole issue of antisocial behaviour in a constructive and codified way. The problems to which I have referred apply not simply to the City of Westminster, Southwark or inner-London boroughs. Increasingly, it will become apparent in places such as Manchester, Leeds and Birmingham, so we should look at it fairly urgently. Without being overly negative about the potential open-door arrival of a significant number of people from Romania and Bulgaria, there is no doubt that some of the specific problems in central London in recent months have come disproportionately from groups who have already come to this country from those other EU states. We need to ensure that local authorities are given a chance to take action. As such, I feel strongly that the Bill should be amended better to reflect the circumstances that affect inner-city areas, recognise the particular challenges that are faced in the UK’s major cities and specifically enable a court to grant IPNAs with automatic powers of arrest in a wider variety of circumstances.

This matter will have to be dealt with in amendments in another place. To answer directly the question put by the right hon. Member for Bermondsey and Old Southwark (Simon Hughes), I hope that we will have a further amendment to clause 3 to add an additional subsection applicable only in major city centres or other designated areas, which varies the conditions under which a power of arrest attachment can be made to include wording such as “deliberately organised antisocial behaviour”. That will have to be dealt with in our further deliberations on the Bill.

I take this opportunity, Mr Deputy Speaker, to thank you for allowing me to make a brief contribution. I accept that the Minister is aware of some of the specific concerns for Westminster, but I also very much accept that he may wish to deal with this in writing rather than going into it in great detail this evening.

--- Later in debate ---

[Norman Baker]

I am certainly not dismissing them, and they have been looked at carefully, but it is important to look at the IPNA and the criminal behaviour order in tandem rather than merely concentrate on one of them.

[Stephen Phillips]

Does my hon. Friend agree that rather then relying on letters from the great and the good, perhaps the best thing to do is to rely on the British people? He will no doubt remember that in 2012 Angus Reid conducted a survey in which only 80% of people said they thought that ASBOs had been effective in tackling antisocial behaviour. Is not that why we need to change the regime?

[Norman Baker]

That is exactly right. The shadow Minister said that the recent crime survey showed that 80% of people think that antisocial behaviour is increasing. That suggests to me that the current regime is not working and needs to be replaced by something more efficient.

--- Later in debate ---

[Norman Baker]

There was particular concern about processions and picketing. That is why they were singled out for mention in the Bill. I have made it plain this evening that where a behaviour is lawful and is not causing harassment, alarm or distress, the test for the use of the dispersal power will not be met. I hope that that gives my right hon. Friend the reassurance that he seeks.

Amendment 177 would remove the ability of landlords in England to seek to evict tenants when they or members of their household have been convicted of an offence at the scene of a riot anywhere in the United Kingdom. The Government believe that clause 91 sends out the strong and important message that if somebody gets involved in a riot, whether it is near their home or not, there may be consequences for their tenancy. However, Members have asked me to reflect on that matter and I will, of course, listen to the House and reflect on it without prejudice to the outcome of that reflection. We will respond fully to the report of the Joint Committee on Human Rights in due course. For now, however, I hope that my right hon. Friend will not press amendment 177 or new clause 33.

The shadow Minister and the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), who is no longer in his place, spoke about amendment 82, which is a consequential amendment to the Government of Wales Act 2006. Provisions on antisocial behaviour orders are among the exceptions to the legislative competence of the National Assembly for Wales in respect of local government matters. Amendment 82 simply updates that exception to recognise the abolition of the ASBO, thus preserving the status quo with regard to the Assembly’s competence. The UK Government is firmly of the view that amendment 82 is purely consequential upon the abolition of antisocial behaviour orders, so a consent motion is not required. It is also difficult to wait for the outcome of the Silk commission, as a failure to amend the Government of Wales Act now would alter the legislative competence of the National Assembly. Our intention is therefore to preserve the status quo and no more.

[Stephen Phillips]

Is it not a difficulty, though, that even though the amendment may be intended simply to be consequential and to replace the provision relating to the ASBO, it is drawn so broadly that, as Opposition Members have pointed out, it might also have an effect in other areas in which the Assembly currently has legislative competence?

[Norman Baker]

The advice I am getting from officials is very clear—that this is an appropriate conclusion to reach. However, three Members have now raised that matter, and they have done so in quite strident or convinced terms, so I will write to them with a firm conclusion.

Oral Answers to Questions

Stephen Phillips Excerpts

Tuesday 8th October 2013 Commons Chamber

[Jeremy Wright]

I quoted directly from the Act, and the right hon. Gentleman knows that I quoted correctly. I was asked a question about what the Act says. I quoted what it says. How he might have meant it to be interpreted is something else. I am afraid he and his hon. Friends must recognise that if they passed a law they did not mean to pass, that is not our problem but theirs.

[Stephen Phillips (Sleaford and North Hykeham) (Con)]

The British people are sick and tired of those given long custodial sentences being released early as a matter of right. I know that my right hon. Friend the Secretary of State for Justice recently made an announcement on those given the longest custodial sentences, but can he confirm to the House that it is his intention in due course to remove the automatic right of those who serve custodial sentences to an automatic discount?

[Chris Grayling]

I do not like the concept of automatic early release at all. My hon. and learned Friend will be aware of the financial limitations that we face at the moment, which is why I made a start with the most serious and unpleasant offenders, but it is certainly my desire, when resources permit, to go further on this.

Defamation Bill

Stephen Phillips Excerpts

Wednesday 12th September 2012 Commons Chamber

[Paul Farrelly]

Amendment 9 is the first of a series aimed at either improving or clarifying the Government’s thinking on clause 4 regarding “responsible journalism”. Clearly, the right hon. Member for Bermondsey and Old Southwark (Simon Hughes) has given the Government more food for thought, and he usefully clarified that his new clause 4 would in no way be a replacement for clause 4 but that it would be an additional safeguard. I want to say at the outset that I welcome the Bill’s recognition that responsible journalism should be protected, in the public interest. However, during the passage of the Bill we want to make sure that what is codified is not a step back from the current case law that has been largely welcomed, and we also do not want to give a charter for sloppy, frivolous, inaccurate or sometimes downright nasty journalism.

The clause in effect codifies the defence of qualified privilege established in the judgments in the cases of Reynolds v. Times Newspapers Ltd and then Jameel v. Wall Street Journal Europe, as we have heard. One of the concerns among serious journalists about the current state of the law, and therefore about the construction of this clause, is that the list has the potential to be interpreted by lower courts in particular as an inflexible tick-list: a set of hurdles, each and everyone of which needs to be surmountable before the defence can be deployed.

In his landmark judgment in the Reynolds case in 1999, Lord Nicholls enumerated 10 different matters that a court could take into account in allowing a defamatory article the protection of qualified privilege. They are slightly different from the nine in paragraphs (a) to (i) in subsection (2), but clause 4 seeks to capture their essence. Lord Nicholls made it clear from the start that his list was by no means exhaustive and was meant to be flexible, depending on the circumstances. He said:

“The weight to be given to these and any other relevant factors will vary from case to case”.

That important point was underlined in 2006 in the very different case of Jameel v. Wall Street Journal Europe. The first case concerned an article in The Sunday Times regarding the former Irish Taoiseach Albert Reynolds, whereas the Jameel case concerned a Wall Street Journal article in the aftermath of the events of 9/11 saying that US law enforcement agencies and the Saudi Arabian central bank were monitoring bank accounts associated with prominent Saudi business men. The central question was what sort of reporting might be in the public interest, even when the imputations and the allegations carried might be untrue and defamatory. In the Jameel case, Lord Bingham of Cornhill set out very clearly how the Reynolds factors should be interpreted:

“Lord Nicholls....intended these as pointers, which might be more or less indicative, depending on the circumstances of a particular case and not, I feel sure, as a series of hurdles to be negotiated by a publisher before he could successfully rely on qualified privilege.”

That is indeed how the lower courts had interpreted the list. In the Jameel case, the House of Lords was critical of the High Court—in that instance, Mr Justice Eady—and the Court of Appeal in denying qualified privilege on one narrow ground taken from the list.

Indeed, because of the operation of the lower courts, newspapers and non-governmental organisations also prepare for and approach Reynolds defences according to a tick list. That accounts for the complaints about how costly it is in practice to “run a Reynolds”. The likely bill would be calculated by totting up how much it would cost to satisfy the court that each of the 10 factors had been satisfied.

In Committee, the Government said that the wording in the preamble to subsection (2) of clause (4) already made it quite clear that the list was not exhaustive. The purpose of amendment 9 is to make it even clearer that a court should take all circumstances into account. I admit that the wording is essentially not mine, but is taken from the noble Lord Lester’s Defamation Bill, a private Member’s Bill that gave much impetus to the Bill that we are now considering.

Amendment 10 is aimed at probing, as we did in Committee, whether or not clause 4 is a step back from the case law as it has developed. The right hon. Member for Bermondsey and Old Southwark mentioned the case of Flood v. Times Newspapers, which came up in Committee. For the uninitiated, that concerned the case of a policeman, Detective Sergeant Gary Flood, who was being investigated internally by the Metropolitan Police over alleged corruption by wealthy Russians but who was later cleared. The central question for the case was whether it was in the public interest for the fact of an investigation to be reported, with the officer’s name, even though the allegations were plainly defamatory and he was eventually cleared.

The Supreme Court found this year that in the circumstances of that case, the newspaper group could rely on qualified privilege. The case is very recent, coming just weeks before publication of the Bill, and I mention it in relation to the amendment because there is concern among serious journalists and defamation lawyers that the clause as drafted is a step back from Flood. Indeed, the case is not even mentioned in the explanatory notes.

The concerns crystallise around the drafting of clause 4(2)(g) and the question of whether courts will require newspapers in every case to investigate and prove the truth of allegations that are subject to investigation—for example, by the police, as they were in the Flood case. As drafted, paragraph (g) appears to go beyond Reynolds, where one of Nicholls’ factors or tests is to “verify the information”, which is a very different thing to verifying the truth of the allegations. That is where the concerns about paragraph (g) lie.

[Stephen Phillips (Sleaford and North Hykeham) (Con)]

I understand the hon. Gentleman’s point about the reporting of investigations, but is not one of the problems with the potential removal of paragraph (g) the fact that it essentially enables journalists to print almost anything, subject to the other conditions, without taking any steps to verify the truth of something that is not under investigation? If the paragraph is removed from the Bill, it will amount to a charter for libel.

Defamation Bill

Stephen Phillips Excerpts

Tuesday 12th June 2012 Commons Chamber

[Stephen Phillips (Sleaford and North Hykeham) (Con)]

Thank you, Mr Deputy Speaker and hon. Members on both sides of the House for that very warm welcome.

I rise to speak, having had the enormous privilege of sitting among significantly more distinguished colleagues from this House, including the right hon. Member for Tottenham (Mr Lammy), and indeed from the other place, on the Joint Committee that considered this Bill when it was subjected to pre-legislative scrutiny during the last Session. Let me indicate from the outset in a non-controversial way that the Bill enjoys my support as it enjoys the support of the official Opposition and of all parties.

Like other hon. Members, I have little doubt that the Bill is capable of being improved in Committee, where it will no doubt be debated appropriately, properly and, I hope, at length, particularly in respect of certain Joint Committee recommendations that the Government have not adopted. As it stands, the Bill supplies some, if not all, the certainty required regarding the deficiencies in our libel and slander law previously identified by the noble Lord Lester and others. For that reason, if for no other, I welcome the Bill’s support across the House, as I welcome the Opposition’s decision not to divide the House on the Second Reading of a Bill that evidently does and certainly should enjoy cross-party support.

This Bill is perhaps not the most eye-catching piece of legislation in this Session and perhaps not even the most eye-catching piece of reform in the arena of the ongoing debate on the balance that needs to be struck between free speech on the one hand and other fundamental rights on the other. For reasons that I will attempt to explain in the course of my remarks, it is none the less important.

Let me begin with the problems—not merely those inherent in the existing law, but those of a more fundamental nature concerning any law that seeks to address defamation, whether in this jurisdiction or elsewhere. The first of those problems is naturally the fact that the mere existence of a law of defamation is an intrusion into the area of free speech. Not one Member of this House can possibly begin to doubt the importance of free speech both as a principle of general application in any mature society and, more important, for the health of our democracy and our democratic institutions.

The powerful need to be held to account. They need to be answerable to those in whose name they seek to exercise power. They need to be exposed to hypocrisy or inconsistency, where necessary. Most certainly, as we all know they need to have the balloon of pomposity associated with their position punctured from time to time, perhaps even frequently, and without remorse. That is the nature of free speech. As I say, surely no one can doubt its importance.

But there are other important rights that need to be addressed in a civilised society—even if, on this point at least, I disagree with my hon. Friend the Member for South Swindon (Mr Buckland) that there is no hierarchy of rights and that there ought not to be. The right to a true reputation is particularly important to well-being, given the importance attributed to character in human affairs. The right of those who have not opened up their private lives to scrutiny to keep their affairs private is equally important. That is a right that used more ordinarily to be respected without the need for intervention of the law, but recent events and recent experiences point to those in the media no longer being able to respect that without appropriate restraints. Finally, there is a right not much talked about thus far in our debate—the right to redress, speedily and efficiently, when either of the rights I have already mentioned is dealt a blow from which in an age of immediate global communication neither may recover unless effective solutions to set the record straight are also available.

What the Bill is designed to achieve, as the preamble tells us, is to amend the law of defamation. In so doing, I understand it to be the Government’s aim—it was certainly the aim of the Joint Committee on which I sat—not only to balance the competing rights to which I have drawn attention, but to bring the law more into line with the world in which we now live. In that regard, the potent mechanism of the common law, able as it is to develop and deal with new situations, is not always enough. Occasionally, as in this area, development can run behind the times because of the lengthy processes associated with litigation and as a result of the disincentive afforded by cost to litigants who find themselves in novel situations. When that happens, it is for Parliament to act, triggered where appropriate by a Government’s legislative programme. That is necessary because it is not always the case that we can outsource the change that the common law might deliver, which would require litigants to dip into their own pockets to seek the intervention of the courts to adapt the law to their needs.

That, as I perceive it, is the position in which we find ourselves in relation to the law of defamation. The genuine and general support that Lord Lester’s Bill enjoyed both within and without Parliament demonstrated precisely that. Lord Lester and those who assisted him are to be commended for their initial efforts in this area in the last Parliament, even if they did not bear fruit. This Government, I have to say, are to be commended for having taken forward that work, having established a distinguished Committee—personal exceptions apart—to consider the matter, and having now brought forward appropriate legislation to address the issues in an area that is, as I have already indicated, unlikely perhaps to attract either headlines or even much credit.

[Amber Rudd]

We have heard much about this Committee and its various members, including my hon. and learned Friend. Is it correct that the Committee was unified on most of these points? It appears that the House is unified on the Bill, but did the Committee find itself unified on its key points?

[Stephen Phillips]

I am extremely grateful to my hon. Friend for her intervention. My recollection—it is only that—is that the Committee was unanimous on almost all points. I think there was one division—and one only—on the final report; I see my hon. Friend the Member for Cambridge (Dr Huppert) nodding. Unlike with the Joint Committee on Privacy and Injunctions, on which my hon. Friend the Member for South Swindon sat, there is considerably more cross-party agreement in this area.

The Bill of course comes at an interesting and even opportune time, as, indeed, we are all aware. A mile or so down the road—a little less far than the hon. Member for Bishop Auckland (Helen Goodman) suggested—Lord Justice Leveson is sitting in a far more high-profile environment, examining the culture, practices and ethics of the media. The legitimacy and desirability of what an untrammelled free press has recently been up to, for which we as politicians bear some measure of the blame, has rightly been called into question by recent events, which few can have viewed with anything other than horror and disgust.

As we have heard in this debate, another Joint Select Committee of this Parliament in the previous Session, on which my hon. Friend the Member for South Swindon sat, has now reported to both Houses on the subject of privacy and the use of injunctions. New technologies have thrown up new challenges in a number of areas. That they are being addressed piecemeal, although not entirely desirable, as hon. Members have indicated in their contributions, is understandable. That they are being addressed at all is a matter for congratulation, I venture to suggest, for all concerned. Where precisely we will find ourselves at the end of the process is no doubt a matter of debate, but the overall aim is clear: to preserve free speech while respecting other competing rights and the responsibilities that each of those rights entails. For my part, I merely add that this is unlikely to be the end of the process. As the report of the Joint Select Committee on which I sat indicated, there is still work to be done on the issue of parliamentary privilege, just as there remain loose ends to be tied up in relation to those parts of the common law of blasphemy and sedition which remain part of our law.

Thus far, I have dealt in generalities, but the greater raft of problems—at least in terms of number, if not seriousness—relates to the specific difficulties encountered with the mechanistic aspects of the law of defamation. The second issue with which it is necessary to grapple in any reform in this area is, therefore, the cost that is associated with defamation litigation and, when necessary, court proceedings. The evidence taken by the Committee demonstrated that those costs were prohibitive to the defence of reputation by the majority; but, even more important, they are inimical to free speech itself.

Few individuals, save perhaps the very brave such as Dr Ben Goldacre, have been prepared to put their lives and fortunes at stake and raise their right to express the truth above their own financial security and that of their families. As anyone who does not enjoy the luxury of parliamentary privilege is all too well aware, the powerful have deep pockets and frightening lawyers with heavy notepaper and even heavier language. The costs associated with defamation not only prevent ordinary people from defending reputations that are so easily damaged in an age in which anonymous posting online can wrongly create a rapist or a paedophile at the click of a mouse, but prevent public figures who lie, cheat and steal from being revealed for what they are.

How, one is driven to ask perhaps all too often—even if rhetorically—have the individuals who have been involved in many of the scandals that we have seen in the past got away with it for so long? The truth, frequently, is that they had, and continue to have, good lawyers who are adroit at putting those who might otherwise hold them to account through the preventive mills of cost and stress. Any reform of the law of defamation needs not only to take account of that, but to address cost at each and every turn. Yes, legitimate reputation is important in a civilised society, as is the prevention of false accusations which damage it; but such protections ought not to be purchased through prevention of the exposure of that which ought to be in the public domain, something which is perhaps all too often a result of the chilling effects associated with any defamation litigation. Indeed, as the Committee concluded in its report,

“the reduction in the extremely high costs of defamation proceedings is essential to limiting the chilling effect and making access to legal redress a possibility for the ordinary citizen.”

This is, none the less, an appropriate moment at which to pause and recognise a fact that—given the evidence taken by the Committee and the views of many commentators—may be obvious, at least to practitioners: the fact that the true problem with the costs associated with defamation proceedings is driven not by substantive rules but by procedure. Any significant reform to reduce cost is therefore not something that can be exclusively, or even primarily, driven by Parliament. As has been pointed out by Members on both sides of the House today, what we need are reforms of procedure to provide new and effective procedural mechanisms that will level the playing field as between those with deep pockets and those without them.

Much, in general terms, was achieved in that respect by the reforms of civil procedure for which we are eternally in the debt of Lord Woolf, but I should like the Minister to state categorically that the Government, in the person of the Lord Chancellor, will instruct the Civil Procedure Rule Committee—if, indeed, they have not already done so—to review the civil procedure rules relating to defamation proceedings, as well as the pre-action protocol, in an attempt specifically to strengthen the parts of the overriding objective that are directed to addressing the cost associated with litigation and the necessity of ensuring equality of arms between litigants.

The third difficulty, which both the Committee and the Government have sought to address, is one that I have already mentioned: the difficulty posed by technological and other advances. The last statutory intervention in that regard was made in 1996, under the Administration of Sir John Major, mention of whom is, perhaps, opportune today. Even I can remember vaguely what the world was like then, and it was different. For a start, there was no Human Rights Act—legislation on which, as many know, I have my own strong views, but which, in terms of general principle, has had a significant effect on the law of defamation by recognising privacy rights that have been used as a back door to circumvent free speech protections developed in the arena of defamation over centuries. That affords yet another reason why the 1996 Act is, at the very least—I put it neutrally in deference to my hon. Friends—problematic. We had human rights in this country before the Act was passed, but we did not recognise them in the way that we have now, which has enabled judge-made law in one area to trespass on the will of successive Parliaments and higher courts in others.

What is even more important in the present context, however, is the fact that when Parliament last considered this issue in 1996, the internet was in its infancy. Nothing was known of how matters would develop.

[Heather Wheeler (South Derbyshire) (Con)]

Given that technology is moving so fast, as others have pointed out, does my hon. and learned Friend think that, like anti-terrorism legislation, this legislation should be reviewed and renewed more often than annually?

[Stephen Phillips]

I should like to say that I am grateful to my hon. Friend, who has put me on the spot with a point that I do not think that the Government would like. I suspect that whatever legislation is in place, we will need to look at it from time to time to ensure that it correctly balances the right to free speech with the right to reputation in the light of the technological developments that will take place over time. How the Minister and his colleagues will want to do that, and whether it will be dealt with in the winding-up speech, is a matter for them. However, I see the force of the point that has been made by my hon. Friend and, indeed, other Members.

[Mr Buckland]

Might not a possible solution be for the Justice Committee to conduct some post-legislative scrutiny of the Act a couple of years down the line, as is currently happening with the Freedom of Information Act?

[Stephen Phillips]

What a fine idea. I am sure that my hon. Friend the Minister will be able to tell us whether that is the Government’s preferred solution—as, given the quality of my hon. Friend’s intervention, it may well be.

In 1996, Larry Page and Sergey Brin were still at Stanford university. They had met only the previous year, and Google was still two years away from being incorporated. For what it is worth, Mark Zuckerberg was 12 years old at the time. If any Members foresaw what the internet would do for the instantaneous communications that we now have, they were entirely silent in the debates that led to what became the Defamation Act 1996. I know that, because I have read the reports of those debates. We, however, are in a different position. We have the benefit of subsequent events, and—with the possible exception of my right hon. Friend the Member for Louth and Horncastle (Sir Peter Tapsell)—not one of us can now contemplate life without the technologies on which we rely for our daily existence. Perhaps it was ever thus with technological change, but, by the same token, change brings specific issues that must be addressed.

Chief among those issues here has been the ability not only to create defamatory material that is instantly accessible to millions of people with internet access, but to disseminate that material anonymously. Even this week, the common law has demonstrated the flexibility of existing mechanisms to assist those who are determined to protect themselves, but, as always, that has come at a cost. I believe that when Parliament intervenes in an area such as that addressed by the Bill, we must do what we can to help, and the Bill does that—although, like my hon. Friend the Member for Mid Bedfordshire (Nadine Dorries), I have not the slightest doubt that it is another area that we will have little option but to address again, certainly within the next decade, as user-driven change in internet and other technological architectures develops further.

The scale of the problems—the need to balance free speech against other competing rights, the need to address the costs associated with striking that balance correctly, and the need to deal with technological and other changes—is vast. In those circumstances it might well be thought that ambitious reform was called for, but, again, that sort of understandable reaction must be balanced with the caution that good legislators enjoy, and which has been the hallmark of the House from time immemorial. Too frequently, ambitious legislative change reveals itself not only to have unintended consequences, but to stultify the development of appropriate solutions by the courts to problems of which no one has yet dreamt. That point was made earlier by my hon. Friend the Member for South Swindon. Incremental change has been the hallmark of good legislation in this and other areas, and the Bill is rightly no exception. The Government are to be commended on that.

I want to deal with three specific aspects of the Bill: the provisions that seek to codify existing substantive law in a manner that is readily accessible and understandable to the layman, the provisions that deal with the defences for which free speech calls in a modern society, and the provisions that seek to bring reputational protection within the reach of those who have not the funds with which to instruct expensive lawyers.

As for the first—the attempted codification of parts of the existing common law as it has now developed, particularly in recent years—my colleagues who sat on the Joint Committee with me are aware that I and others, notably Lord Morris, had our reservations. The difficulty Parliament faces in this area is that our attempts to reduce the nuances of the common law to writing are on occasion ineffectual. The Marine Insurance Act 1906 was a codifying Act prepared by Sir Mackenzie Dalzell Chalmers when he was permanent under secretary at the Home Office. He was subsequently chief justice of Gibraltar. As the draftsman of both the Bills of Exchange Act 1882 and the Sale of Goods Act 1893, if anyone could achieve the codification of four centuries of common law, he was the man. Yet subsequent events tell us that he got things wrong, such as the test in relation to loss, which now differs between marine and non-marine insurance. Can he be criticised? No, but the experience teaches a valuable lesson: that codification is not always successful in reflecting either the existing law or its nuances or flexibility.

Attempted codification can, through drafting error, lead to uncertainty, change and stultification, all of which can lead to increased costs for litigants. However, I am persuaded that it is desirable in clauses 1 and 2—as well as in part of clause 3—only for two reasons: first, because the codification is modest in scope; and, secondly, because, as Lord Mawhinney, who chaired our proceedings, persuaded those of us who were sceptical about either the necessity or desirability of pursuing this path, if the protection of the law of defamation is to be made more accessible, it must be written down as simply as possible in a manner that most can understand. That point was made well by the right hon. Member for Tottenham. While I had reservations, therefore, I am now persuaded that these clauses have their rightful place in the Bill. Better and more erudite minds than mine will have addressed the question of whether or not they do what they are supposed to do. If they do not, it will not be for want of trying.

The second area I wish to discuss is the defences with which the Bill deals. One clause at least—clause 3—involves a slight amendment to the existing defence of fair or, as the Supreme Court seems to have taken upon itself to rename it, honest comment. We are now renaming “honest opinion”. It is my understanding that the change is minor—I would be grateful for confirmation of that from the Minister—and merely removes the necessity for it to be shown that the matter on which the opinion is expressed is in the public interest. If so, there seems to have been little justification for any such limitation in the first place. Any such limitation between public interest and private interest is unjustifiable and unprincipled.

That step is therefore to be welcomed, as is the new defence—in so far as it is a new defence—based upon, or clarifying, Reynolds v. Times Newspapers: responsible publication on a matter of public interest. That does much to clarify what would no doubt have been clarified by the common law in due course, but at vast expense and inconvenience to litigants and those defamed.

The third area on which I want to touch is those parts of the Bill that I perceive to be addressing substantive matters that affect cost and accessibility. Among those is the removal of the presumption of jury trial. In no other significant area of civil litigation has jury trial been retained, at least in practical terms, and the evidence that the Committee received appears to demonstrate that, even in the field of defamation, trials have increasingly been conducted before judges alone. However, the threat of jury trial—with the processes it involves and the reluctance of judges to intervene early to remove matters from a jury, with the consequent prolongation of litigation and considerable increase in cost—has long exacerbated the chilling effects of the existing law, and many of us are only just persuaded that it should even be possible to retain a discretion to permit a jury in a libel or slander case.

[Paul Farrelly]

I agree with what is being said. I have inquired into these matters for several years. The publishing industry and the newspapers have long pleaded for an early resolution of meaning, and the retention of juries is inimical to that. It plays into the hands of those litigants who have no interest in a resolution because their intention is to use force of money and arms to prolong the agony as long as possible.

[Stephen Phillips]

The hon. Gentleman makes a valid and compelling point, and I agree with him. I do not sit on civil cases, but I do still sit as a recorder for a few weeks each year. When judges know there is going to be a jury, they are reluctant to take anything away from the jury because it is supposed to be determining the factual issues. In order to reduce the costs associated with litigation, in most defamation cases there should be no jury, just as there is no longer a jury in other cases heard in the Queen’s bench division, whereas a century or so ago there was the discretion to order one, and, indeed, one was frequently ordered, with all the consequent increase in cost and delay.

The third area on which I want to touch is the one I consider to be the most important aspect of the Bill, clarifying or codifying as it may be: the requirement that in order to be actionable a statement must cause, or be likely to cause, serious harm to the reputation of the claimant. There is, of course, once again every indication that this is the direction in which the common law was moving in any event, but here, in an age when trivial statements are capable of being published immediately, we, as a Parliament, can give our sanction to this worthwhile development and enshrine it once and for all as part of our law. It will lead to fewer cases—certainly fewer trivial cases—being brought forward and therefore to a reduction in costs. It is consistent with the balance that I believe must be struck between free speech and the protection of reputation; it is consistent with the need to render the law accessible in a written form to ordinary individuals not versed in the intricacies of precedent; and it is consistent with enabling courts to act at an early stage in order actively to manage cases and to drive settlement and compromise in those which are serious and require early redress. Like the rest of this Bill, in my judgment—which I think the House shares—these provisions are to be welcomed. They deserve, and should command, our entire and full support.

Legal Aid, Sentencing and Punishment of Offenders Bill

Stephen Phillips Excerpts

Tuesday 24th April 2012 Commons Chamber

[Stephen Phillips (Sleaford and North Hykeham) (Con)]

The concession that the Government are making goes some way to dealing with the concerns that many on both sides of the House have expressed in relation to mesothelioma, but it does not deal with the point raised in the other place by Lord Thomas yesterday, which was that success fees should not be claimed in such cases because liability is not in issue. What will the Government do about that?

[Mr Djanogly]

As I have said, this is not an issue of causation. I heard Lord Thomas speak in the other place yesterday, and I very much agree with what he had to say, which was essentially that in cases in which causation is not an issue, there is—in many respects—no reason why solicitors should have a success fee for that type of work. But the Opposition have made their case, as have others, and the Government have to deal with things as they stand. That is why we are offering to make this concession, but it is a time-limited concession only. The overall Jackson reforms stand as our preferred way to move forward.