House of Commons Public Bill Committee Proceedings

Session 2012 - 13
Internet Publications
Other Bills before Parliament

Report Stage Proceedings: 18 March 2013
319

Crime and Courts Bill–[Lords], continued

Amount of exemplary damages

12  (1)
This paragraph applies where the court decides to award exemplary damages

under section [Exemplary damages].

      (2)
The court must have regard to these principles in determining the amount of

exemplary damages—

(a)
the amount must not be more than the minimum needed to punish the

defendant for the conduct complained of; and

(b)
the amount must be proportionate to the seriousness of the conduct.

      (3)
The court must take account of these matters in determining the amount of

exemplary damages—

(a)
the state of mind of the defendant (or of persons acting on behalf of the

defendant);

(b)
the nature of the rights infringed by the defendant;

(c)
the nature and extent of any loss or harm caused, or intended to be

caused, by the defendants conduct;

(d)
the nature and extent of any benefit the defendant derived or intended

to derive.

      (4)
The court may regard to the importance of deterring the defendant and others

from similar conduct.

Taking account of defendant’s means

13  (1)
If the court decides to award exemplary damages it must indicate the amount

it has in mind to award irrespective of the defendant’s means.

      (2)
If the defendant shows that the defendant does not have the means to discharge

an award of that amount without undue hardship, the court must take account

of the defendant’s means in deciding the amount of exemplary damages.

      (3)
If an amount awarded as exemplary damages would have been more but for

subsection (2) the award must specify what the amount awarded would have

been but for that subsection.

      (4)
The defendant’s means include anything falling to be paid under a contract of

insurance against the risk of an award of exemplary damages.

Multiple claimants

14  (1)
This paragraph applies where a defendant is found liable to two or more

persons in respect of a claim.

      (2)
In deciding whether to award exemplary damages, or in deciding the amount

of exemplary damages (whether to one or more of the persons affected), the

court must, if the defendant consents, take account of any settlement or

compromise by any persons of a claim in respect of the conduct to which the

claim relates.

      (3)
If the court awards exemplary damages to two or more of the persons affected,

the total amount awarded must not punish the defendant excessively.

      (4)
If the court awards exmplary damages to any of the persons affected, no later

claim may be made for exemplary damages as regards the conduct to which the

claim relates.

Multiple defendants

15  (1)
Liability of two or more persons for exemplary damages is several (and not

joint or joint and several).

      (2)
Sub-paragraph (1) has effect subject to the law relating to—

Report Stage Proceedings: 18 March 2013
320

Crime and Courts Bill–[Lords], continued

(a)
vicarious liability;

(b)
the liability of a partner for the conduct of another partner.

      (3)
Where the liability of two or more persons for exemplary damages is several,

no contribution in respect of the damages may be recovered by any of them

under section 1 of the Civil Liability (Contribution) Act 1978.

Vicarious liability

16  (1)
A person may be vicariously liable to pay exemplary damages in respect of

another’s conduct.

      (2)
Where a person would be vicariously liable to pay exemplary damages

awarded against a defendant, references to the defendant in this Schedule are

to the other person.

      (3)
If the court decides to award exemplary damages and a person is vicariously

liable to pay them in respect of another’s conduct, references to the “defendant

and his means” in section 78L reads “means of the person vicariously liable or

the person in respect of whose conduct he is vicariously liable”.

Awards of aggravated damages

17  (1)
This paragraph applies where—

(a)
a relevant publisher is a defendant to a relevant claim;

(b)
the conduct complained of arose out of activities carried on for the

purposes of, or in connection with, the publication of any material

(whether or not the material was in fact published), and

(c)
the defendant is found liable in respect of the claim.

      (2)
Aggravated damages (meaning damages awarded in respect of a defendant’s

motive or exceptional conduct, not being exemplary or restitutionary damages)

may be awarded only to compensate for mental distress and not for purposes

of punishment (irrespective of whether they otherwise could be awarded for

the purposes of punishment).’.

Simon Hughes

Mr Ben Bradshaw

Ian Paisley

Mr Elfyn Llwyd

Caroline Lucas

Mark Durkan

Not selected  NS4

To move the following Schedule:—

‘Costs and Exemplary Damages: Publication Proceedings: Regulation

Part 1

Introduction

Interpretation: “the media”, “news publisher” etc
5
1    (1)
In this Schedule “the media” means—

(a)
media organisations; and

Report Stage Proceedings: 18 March 2013
321

Crime and Courts Bill–[Lords], continued

(b)
servants and agents of media organisations in the performance of

functions relating to the activities of those organisations.

      (2)
In this Schedule “media organisations” means organisations which—
10
(a)
make broadcasts within the meaning of section 95(1) of the Wireless

Telegraphy Act 2006;

(b)
publish, for circulation anywhere in England or Wales, a newspaper,

magazine or periodical (or online content associated with a

newspaper, magazine or periodical), a substantial proportion of which
15
consists of news of, or opinion and discussion about, current affairs;

(c)
in the course of a business, publish content on a website, a substantial

proportion of which consists of news of, or opinion and discussion

about, current affairs in England and Wales.

      (3)
In this Schedule “news publishers” means media organisations referred to in
20
sub-paragraph (2)(b) and (c).

      (4)
In this Schedule “publication proceedings” means proceedings for—

(a)
defamation;

(b)
malicious falsehood;

(c)
misuse of private information;
25
(d)
invasion of privacy;

(e)
breach of confidence;

(f)
harassment under the Prevention from Harassment Act 1997; and

(g)
breach of statutory duty under the Data Protection Act 1998 against a

news publisher.
30
      (5)
In this Schedule “regulated publisher” means a news publisher which

subscribes to a recognised regulator.

      (6)
In this Schedule a reference to “conduct” includes a reference to omissions;

and a reference to a person’s conduct can include a reference to a person’s

conduct after the events giving rise to a claim.
35
Part 2

Regulation

Recognition

2    (1)
In this Schedule “recognised regulator” means a body which—

(a)
in the opinion of the Recognition Commission is established as a
40
voluntary regulatory body for the purposes of those sections; and

(b)
is certified by the Recognition Commission for the purpose of this

subsection.

      (2)
The Recognition Commission shall be established in accordance with the

provisions of Part 3.
45
      (3)
In deciding whether to certify a body the Recognition Commission must

consider, in particular, whether the body—

(a)
has sufficient guarantees of independence, including suitable

independent, fair and transparent procedures for appointments and

funding;
50
(b)
has suitable functions, powers, personnel and resources to ensure that

it can fulfil is principal objectives effectively;

(c)
has an appropriately prepared standards code;

(d)
has effective processes for upholding standards;

(e)
has an efficient procedure for handling complaints;

Report Stage Proceedings: 18 March 2013
322

Crime and Courts Bill–[Lords], continued

55
(f)
has an effective and accessible arbitration service; and

(g)
includes subscribers which are clearly in separate ownership.

      (4)
The Recognition Commission may not certify a body unless satisfied that it

complies with the minimum requirements specified in Part 4.

      (5)
The Recognition Commission must review each recognised regulator—
60
(a)
at least once during the period of two years beginning with the date of

certification; and

(b)
at intervals of not more than three years after that.

      (6)
The Recognition Commission must also review a recognised regulator if in the

Commission’s opinion there has been, or may have been, a significant change
65
in the structure, processes, independence, fairness or effectiveness of the

recognised regulator.

      (7)
The Recognition Commission may not carry out a review under sub-paragraph

(6) unless the Commission has given the approval regulator reasonable notice

in writing of the proposal to do so; and the notice must specify the
70
Commission’s reasons.

      (8)
The Recognition Commission must prepare and publish a report of each

review under this section.

      (9)
A review under this section of a recognition under this section is a review only

of the extent to which the recognised body is meeting requirements for
75
certification in sub-paragraphs (1), (3) and (4).

    (10)
If having reviewed a recognised body the Recognition Commission is no

longer satisfied that it complies with sub-paragraphs (1), (3) and (4), the

Recognition Commission must consult the body and give directions designed

to ensure that the body complies with sub-paragraphs (1), (3) and (4).
80
    (11)
If the body fails to comply with directions given under sub-paragraph (10)

within a reasonable time, the Recognition Commission must revoke the body’s

certification.

    (12)
In making decisions under this Schedule, the Recognition Commission must

aim to adopt procedures which are transparent and must, in particular—
85
(a)
publish information and invite representations about applications

made to it;

(b)
publish information about the progress of proceedings on

consideration of applications; and

(c)
publish the determination of applications.
90
    (13)
Interference with the operation of the Recognition Commission by Ministers

of the Crown, public officials or news publishers shall be unlawful (and any

actual or threatened breach of this provision shall be actionable in the High

Court at the instance of the Recognition Commission).

    (14)
The Recognition Commission shall not be involved in the regulation of any
95
media organisation.

Reports by Recognition Commission on Failure

3    (1)
Within three months of a trigger event specified in sub-paragraph (2), the

Recognition Commission must send a report to the Secretary of State and to

the Speaker of the House of Commons drawing their attention to the fact that
100
the system of regulation is not sufficiently effective.

      (2)
The following are trigger events—

(a)
the first anniversary of the commencement of section (Recognition), if

there is no recognised regulator certified under that section;

Report Stage Proceedings: 18 March 2013
323

Crime and Courts Bill–[Lords], continued

(b)
the end of any continuous period of six months, after the first
105
anniversary of the commencement of section (Recognition), at which

there is no recognised regulator;

(c)
the first anniversary of the commencement of section (Recognition), if

in the opinion of the Recognition Commission there is a significant

news publisher who is not a subscriber to a recognised regulator;
110
(d)
the end of the period of three months, beginning with the date of

revocation of a recognised regulator’s certificate of recognition, if in

the opinion of the Recognition Commission a significant news

publisher which was at the time of revocation a subscriber to that

recognised regulator is not a subscriber to a recognised regulator; and
115
(e)
the end of any continuous period of six months, after the first

anniversary of the commencement of section (Recognition), during

which in the opinion of the Recognition Commission a significant

news publisher was not a subscriber to a recognised regulator.

      (3)
For the purposes of this section, a “significant news publisher” is a news
120
publisher which in the opinion of the Recognition Commission has a weekly

readership which would place it within the first 20 of a list of news publishers

ranked in descending order of weekly readership.

      (4)
The Secretary of State must, within three months of the receipt of a report

under sub-paragraph (1), lay proposals about the regulation of news publishers
125
before Parliament for approval by each House of Parliament within one month

of their being laid.

      (5)
If proposals are not approved under sub-paragraph (4) (or this sub-paragraph)

the Secretary of State must within one month lay amended proposals before

Parliament for approval by each House of Parliament within one month of their
130
being laid.

Data protection

4
In considering the exercise of any of its powers in relation to news publishers,

the Information Commissioner shall have regard whether such publishers are

subscribers regulated by recognised regulator with the purpose of reducing the
135
burden of regulation on such news publishers.

Public functions

5
The functions of the Recognition Commission and of a recognised regulator

are to be treated as public functions.

Part 3
140
Recognition Commission

Introduction

6
This part provides the method by which the Recognition Commission shall be

constituted.

Appointment of the Recognition Commission
145
7
The appointment of the first Chair of the Recognition Commission together

with at least four initial other members shall follow a fair and open process,

independent of news publishers, politicians and the Government to be

conducted in the manner, and by the persons, described in this Schedule.

Report Stage Proceedings: 18 March 2013
324

Crime and Courts Bill–[Lords], continued

8
The responsibility for identifying and appointing the Chair of the Recognition
150
Commission shall be that of an Appointments Committee, constituted in

accordance with paragraphs 10 to 15, and the Appointments Committee shall

ensure that the Chair is appointed before the appointment of any other member.

9
The other initial members of the Recognition Commission shall be identified

and appointed by the Appointments Committee, acting together with the Chair
155
of the Recognition Commission.

Appointments Committee

10
The Appointments Committee shall consist of four individuals.

11
The Chair of the Judicial Appointments Commission shall be ex officio Chair

of the Appointments Committee.
160
12
The Chair of the Appointments Committee shall appoint to the Committee—

(a)
two members who, in the Chair’s opinion, are independent of political

parties, the Government and news publishers; and

(b)
one person who, in the Chair’s opinion, is independent of political

parties, the Government and news publishers and is a Public
165
Appointments Assessor (appointed pursuant to the Public

Appointments Order in Council 2002) nominated for membership of

the Appointments Committee by the Commissioner for Public

Appointments for England and Wales.

13
In order to ensure the independence of the Committee, the following shall be
170
ineligible to be appointed to the Appointments Committee—

(a)
a serving editor or current employee of a publication of a relevant

publisher;

(b)
a relevant publisher or a person who is otherwise involved in the

publication of news or current affairs in the United Kingdom;
175
(c)
a person who is involved in the governance of or is employed by a

recognised regulator or by a body which is seeking recognition as a

recognised regulator;

(d)
a person who is, or has been, a member of the House of Commons, the

House of Lords, the Scottish Parliament, the Northern Ireland
180
Assembly or the National Assembly for Wales and whilst a member

has been affiliated to any political party;

(e)
a person who is, or has ever been, a Minister of the Crown, a Scottish

Minister, a Northern Ireland Minister, or a Welsh Minister;

(f)
a person who has held an appointment under Article 3(2) of the Civil
185
Service Order in Council 1995 (or its predecessor or replacement);

(g)
a person who has in the previous 10 years held elected political office

at principal local authority level or above or who is or has been

employed by a political party.

14
A person may not be appointed to the Appointments Committee under
190
paragraph 13(a) unless the Commissioner for Public Appointments in England

and Wales has published written confirmation that—

(a)
the selection process was fair and open and independent of political

parties, the Government and news publishers; and

(b)
that the person is independent.
195
15
The members of the Appointments Committee shall serve in a personal

capacity.

Report Stage Proceedings: 18 March 2013
325

Crime and Courts Bill–[Lords], continued

Criteria for Appointment to the Recognition Commission

16
In making an appointment under this Schedule, the matters set out in paragraph

17 shall be used for—
200
(a)
determining the overall nature of the membership of the Recognition

Commission; and

(b)
assessing the suitability of any particular person to be appointed as the

Chair or a member of the Recognition Commission.

17
The criteria for appointment as a member of the Recognition Commission are
205
that every member shall have an understanding of the context within which a

Regulator will operate and at least one member of the Recognition

Commission should—

(a)
have legal qualifications and skills, together with an understanding of

the legal framework within which the Recognition Commission must
210
operate;

(b)
have financial skills, including experience of delivering value for

money;

(c)
have experience of public policy making, particularly in the context of

consumer rights;
215
(d)
be a man;

(e)
be a woman.

18
In order to ensure the independence of the Recognition Commission, the

disqualifications in paragraph 13 apply to the Commission.

19
A person may not be appointed to the Recognition Commission unless the
220
Commissioner for Public Appointments in England and Wales has published

written confirmation that—

(a)
the selection process was fair and open; and

(b)
the person appointed is independent.

Terms of membership
225
20
Each Member of the Recognition Commission, including the Chair, shall hold

and vacate office in accordance with the terms of this Schedule.

21
Each Member shall be eligible to serve for an initial term of six years and shall

be eligible for reappointment for a further period of three years.

22
The Recognition Commission may make arrangements for the payment of
230
allowances to members; the amounts shall be set having regard to the

prevailing rates payable to the members of equivalent public sector bodies.

Termination

23
A member of the Recognition Commission may resign by giving notice in

writing to the Recognition Commission.
235
24
The Chair or any Member of the Recognition Commission may be dismissed

by a majority vote of the Commission where they are satisfied that the Chair

or member is unwilling, unable or unfit to discharge functions under this

Schedule.

25
The Chair or a member may not be dismissed unless the Commissioner for
240
Public Appointments in England and Wales has published written

confirmation that the dismissal process was fair, open and independent of news

publishers, of political parties and of the Government.



© Parliamentary copyright	Revised 19 March 2013