Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, I listened with great interest to the speech of noble Lord, Lord Bach. He will remember that when he was a Minister in the previous Government, his master, the right honourable Jack Straw, decided that the present regime of costs was oppressive and unfair because it imposed a chilling effect on the publishers of newspapers and other media. Mr Straw decided that it was an abusive system because of the effect that it had on free speech. The effect arose from the fact that unscrupulous, greedy or perhaps simply normal lawyers acting for claimants were taking advantage of success fees and running up enormous legal costs that dwarfed any claim for damages, leaving a publisher defendant, for example, with a damages claim for £20,000 accompanied by a costs claim for £250,000. In the Naomi Campbell v Mirror Group Newspapers case, the European Court of Human Rights found that the circumstances breached the right to free speech enshrined in Article 10 of the European convention. In that case, exactly what I described happened in a gross and abusive way. Mr Straw and the previous Government recognised that the system was an abuse and proposed a rather crude mechanism to cut down success fees to an arbitrary figure. Although this House passed the measure, the other place refused to do so and it fell. As I shall explain in a moment, I have great sympathy with the problem. However, at the moment I am dealing with the existing abuse. I begin by dealing with it because the amendments in this group, which refer to defamation, privacy and breach of confidence, would leave in place precisely the scheme that has been held to be contrary to the European Convention on Human Rights, on free-speech grounds. They would leave in place the exact conditional fee agreement and success fee scheme, with all its capacity for abuse. For that reason, the amendments should be resisted. Of course, I agree with the noble Lord, Lord Prescott, and others who spoke, that there is a problem in defamation and privacy cases. It is that the normal costs regime does not work very well in those cases, where often what are sought are not massive damages but other forms of remedy that cannot be dealt with under the scheme in the Bill. That is why at a previous stage I tabled an amendment to introduce what I hoped would be a proportionate way of dealing with the problem. The noble Lord, Lord Prescott, put his name to the amendment. I am entirely at one with him in saying that there needs to be a special and proportionate regime that applies to defamation and privacy cases. We are entirely at one in our aim, and that is exactly what our colleagues in the other place indicated in the view that they took on the matter. The question is: what is the best way of meeting this legitimate aim? A means must be found of dealing with the David and Goliath problem—both ways. In one case there may be an extremely rich and powerful claimant and an impoverished defendant—let us say a citizen critic, or a little NGO, who cannot afford to pay the costs of the claimant. In another case the claimant may be a weak or impoverished individual who is up against a powerful newspaper or other big corporation, and the same problem will arise. We need to find a scheme that ensures equality of arms—a level playing field—between the strong and the weak in these cases such as privacy and defamation claims where the remedy in the Bill is not suitable. Sir John Whittingdale's Joint Committee on Privacy and Injunctions drew attention, in its report published yesterday, to the need for this to be dealt with in some way. I agree with the committee on that. However, the amendments cannot solve the problem because all that they would do would be to leave in place the present, bad system without any change. Therefore, what is needed is a reply from my noble friend the Minister explaining the Government's approach to changing the costs regime. This does not have to be in a defamation Bill. As I understand it—although this needs to be confirmed—there is ample power for costs rules to be altered, especially for privacy and defamation cases, without the need to write the power into a defamation Bill. If I am right, whether a defamation Bill is in the Queen's Speech hardly matters; the point is that the Minister will have the power to make adjustments. Since I strongly support the introduction of a defamation Bill—as do many noble Lords—I hope that the changes will be made as part and parcel of a Bill, and will therefore be worked out. I am sorry to have taken so long. I am trying to say, with respect, that the amendments are misconceived; I hope that the House will not divide on them. They would violate the European Convention on Human Rights and would retain the very abuses of which the right honourable Jack Straw was so conscious. They would not fit the Bill as a matter of process. What is needed is for the Minister to reply, to recognise that there is such a problem and to indicate whether the Government have the power to tackle it in the way that I suggested.