I thank the Secretary of State for Culture, Media and Sport, my right hon. Friend the Member for Basingstoke (Maria Miller), and the right hon. and learned Member for Camberwell and Peckham (Ms Harman) for introducing this section of the debate. It is clear that Members on both sides of the Chamber have worked extremely hard to bring the matter to a head. As I said in the debate opened earlier by the
Prime Minister, everyone must be congratulated, but we must not oversell it or exaggerate the claims for the solution that may have been found.
I was interested in looking at some of the new clauses and new schedules to see that the statutory framework that seems to have been set down for the Crime and Courts Bill makes some changes to the law, but only up to a point. If one looks at new clause 21A, provision is made for the award of exemplary damages unless the defendant was a relevant publisher. But that is cancelled because the court can disregard subsection (2), and that is cancelled because under subsection (4) the court is not prevented from making an award of exemplary damages for other reasons. It rather disappears up its own grammar—I was about to use a rather unparliamentary term. We might need at some stage to reconsider the English used in the new clause if it is to be understood by the people we wish it to attract.
The other point we ought to think about—something my hon. Friend the Member for Hexham (Guy Opperman) and I were discussing only a moment ago—is that we must be careful not to set up two regimes for exemplary damages. There already exists a common law regime for exemplary or punitive damages. Broadly, it is available where a state actor has behaved in an unconstitutional or high-handed fashion, for example when the police or the Prison Service grossly misbehaves in relation to someone in custody. That example is perfectly easy to describe: the court will award punitive and exemplary damages to mark society’s disapproval of the behaviour of that arm of the state.