Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, this has been a very useful debate, with a good deal of passion. During parts of it, I was reminded of a saying that my old mentor, the late Lord Callaghan, used to be fond of, that a lie is halfway round the world before truth has got its boots on. He used to say that 30 years ago; what would he say today, with the internet, tweeting, blogging and the rest? Perish the thought. We are in a very difficult area. Many of the issues that have been raised today are currently before various inquiries and committees of the other place, and, indeed, in litigation, so I shall tread carefully on this. I have to tell the noble Lord, Lord Prescott, that even under the present regulations, legal aid for judicial review is means-tested, and so I doubt whether he would get legal aid even in the present circumstances. A number of very emotive cases have been raised. I saw the publicity around the Dowler case letter. I thought at the time, and I still think, that it is almost inconceivable that the Dowlers would not have been able to pursue their case under conditional fee agreements. The idea that they would have been powerless in the case that they had is perhaps countered by the fact that the matter was settled out of court—and if reports are to be believed, at a cost of £3 million to the offending company. I am not so sure that the argument that they would have been left powerless stands up in those circumstances. I shall deal with the various issues raised. First, it is true that the Government are looking for an opportunity to legislate on defamation. We will have to await the Queen’s Speech to see whether it can be taken in the next Session, but we have made a lot of progress on it. We have had my noble friend Lord Lester’s Private Member’s Bill, which I then took to a government draft Bill. It has now had a very good and thorough examination by a Joint Committee of both Houses for pre-legislative scrutiny, under the chairmanship of my noble friend Lord Mawhinney. In turn, that committee has produced a very good report. We are certainly ready to look at reform of defamation, but I would say—and again, this touches on much of what has been discussed today—that we are looking to try to remove some of what has been described as the ““chilling effect”” of our present defamation laws on the rights to free speech, as against the rights of the individual which the noble Lords, Lord Prescott and Lord Martin, have outlined today. It is important that we get the balance right. I say with no sense of bitterness that 10 years ago, when I tried to introduce a modest amendment to strengthen and put some backbone into the Press Complaints Commission, I was told from this Dispatch Box by the Labour Minister of the day that my proposals were the, "““slippery slope to state control””—[Official Report, 6/5/03; col. 1067]—" of the press. That is where the Labour Government were 10 years ago. We have to get the balance right between freedom of the press, which is so important to a functioning democracy, and proper responsibility on the part of that press. I hope that one of the things to come out of the recent discussions, debates and inquiries will be a much better form of accountability and regulation that addresses the very point made by the noble Lord, Lord Martin, about the speedy and cheap resolution of damage to reputation. We have come a long way from the time when people went into libel or defamation cases expecting to come away with football pools-sized awards. That is not the case. As has been said on a number of occasions, these days the likely costs of litigation always outstrip the likely awards. I think that there is a good and useful account on this. We have to await the outcome of the Leveson inquiry, although I strongly believe that the opportunity to reform defamation is a separate matter. I would be very worried if Leveson produced a kind of tsunami of debate that swept away the real opportunity to go ahead with defamation reform. Let me go back to the point with which the noble Lord, Lord Bach, opened the debate, after which I will comment further on the media issue. He mentioned professional negligence claims. Under our reforms people will still be able to bring cases on CFAs in areas in which they are currently used. After all, we are returning the CFA arrangements to their original form. I am aware of concerns about professional evidence claims that can involve, for example, claims against negligent building surveyors, accountants or solicitors. We have carefully considered the consultation responses on these types of case but remain unconvinced that there is anything fundamentally different about them to justify an exemption from the general principle of no recoverability of success fees and ““after the event”” premiums. The noble Lord also mentioned financial services. A number of bodies could deal with those kinds of cases, including the Financial Ombudsman. As to how these reforms would affect small businesses, the Federation of Small Businesses, which is not always ready to support the Government’s approach, supports the proposals in this Bill. The noble Lord, Lord Beecham, frankly said that this is one of a number of probing amendments to see whether the broad architecture, which provoked the original debate today, would be changed in any way. This and a number of debates to come will test whether we are likely to change our mind and make any exceptions from that broad architecture. The Government do not see that any exception to this is justified except in relation to ATE insurance premiums in respect of clinical negligence expert reports that we have previously discussed. I therefore resist all these amendments, as they seek to undermine the Government’s reform of civil litigation funding and costs. The current arrangements with a recoverable success fee and ATE insurance allow for risk-free litigation where claimants have no real interest in the legal costing incurred on their behalf. This has led to an increase in the costs of civil litigation and must be addressed. The judgment of the European Court of Human Rights in the January 2011 case of Mirror Group Newspapers against the UK, usually called the Naomi Campbell case, found that the existing CFA arrangement with recoverability in that case to be contrary to Article 10, on freedom of expression, of the convention. Changes are therefore necessary and the current regime cannot continue. The Government are aware of concerns about access to justice and the ability of those with modest means to pursue claims against often powerful media organisations. However, we do not believe that it is necessary to make any special provision in relation to the costs of privacy or defamation proceedings. We will continue to monitor the position following the introduction of the CFA reforms and other reforms to the law and procedure for defamation claims on which the Government have recently consulted. As the coalition agreement made clear, we are firmly committed to reform of the law on defamation. The right to speak freely and debate issues without fear of censure is a vital cornerstone of a democratic society. We want to ensure that a fair balance is struck between the right to freedom of expression and the protection of reputation. There are real concerns that the threat of libel proceedings is being used to frustrate robust scientific and academic debate, and to impede responsible investigative journalism and the valuable work undertaken by non-governmental organisations. The draft Bill, which we published last year, aims to bring the law up to date and ensure that the right balance is achieved. We are also looking at ways of speeding up court cases so as to cut the costs involved in defamation proceedings, and encouraging the use of the alternative dispute resolution in order to facilitate early settlements. The Government are also aware of concerns about professional negligence claims, which can involve, as I have said, claims against surveyors, accountants or solicitors. We carefully considered the consultation responses in respect of the impact of professional negligence cases, but remain unconvinced that there is anything fundamentally different about them that would justify an exemption from the general principle of abolishing the recoverability of success fees and ““after the event”” premiums. I can assure noble Lords that the Government have considered all these amendments individually and in the round. If accepted, the amendments to which I have referred would undermine the overriding objectives of the package of reforms, which are to make the costs of civil litigation more proportionate. The Government believe that lawyers will take on meritorious cases without recoverable success fees, including in cases to which these amendments relate. It is not unreasonable for any success fee to be paid by the party entering the CFA. In respect of the risk of an adverse costs order, different considerations apply in respect of different proceedings. The Government have said that qualified one-way cost shifting should apply in personal injury cases. Lord Justice Jackson suggested that QOCS might be considered for introduction in some non-personal injury claims as an alternative to recoverable ATE insurance. The Government are not persuaded that the case for this has been made at this stage. Personal injury cases, as a class, are different form other types of litigation. There are hundreds of thousands of personal injury cases each year. They are typically run on CFAs with ATE insurance and involve claims by individuals against generally well resourced or insured bodies. These claims have a high overall success rate and the primary remedy sought is damages. The position is different and less clear-cut in non-personal injury claims. CFAs are very much a minority form of funding in these claims, and rolling out QOCS to these would distort the market by imposing substantial changes on all cases in a particular category of proceedings for the benefit of a small number of claimants. The Government will examine the experience of QOCS in personal injury claims before considering whether it should be extended further. Different considerations apply in different types of case. Environmental claims, for example, typically involve more than one claimant who can contribute towards the costs. ““Before the event”” legal expenses insurance may be available in relation to the provision of goods and services. I have listened carefully to the arguments advanced in respect of exceptions in individual areas covered in this group of amendments. However, I am concerned that making these exceptions could undermine the benefits of these reforms. I therefore urge noble Lords not to press their amendments.