Will the Minister explain why there is no scope under Clauses 397 and 400 of FiSMA, which I can quote if he wishes, to pursue individuals and the officers who supervise them? Surely an amendment could be put into the Financial Services Bill. It would be welcome if there was any way for it to be retrospective. Can he also explain why it was the CFTC in the United States that jumped on the issue in May 2008, based on information from whistleblowers, whereas with the same information the FSA did not become engaged

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until 2010? Obviously, I am dependent on media reports. Can we please look at the powers, resources and capacity of the FSA to ensure that it is never again in such a position?

Lord Sassoon: My Lords, first, I will not comment further on the senior executives of Barclays. Clearly the chief executive is coming before the Treasury Committee later this week and will be asked a lot of questions that will further elucidate those aspects.

On the question of prosecution, the basic flaw is that the setting of LIBOR was not and is not a regulated activity, so the FSA does not have a direct way in. My noble friend is right to be quizzical and shake her head but that is the position as it was under FiSMA and the construct put in place by the previous Government. If the FSA wanted to bring criminal prosecutions, as it has done with the civil settlement, the attempted fixing of LIBOR is an activity that is ancillary to a regulated activity. The construct is difficult and the chairman of the FSA has pointed out the difficulties.

As I said in repeating my right honourable friend’s Statement, most normal people would assume that there was a prima facie case to look at the Fraud Act and false accounting and that is precisely what the SFO was doing. Through the inquiries that are going on, we will look at what needs to be done to plug gaps in the financial services legislation. For the avoidance of doubt, I should tell my noble friend that there will certainly be no retrospective legislation in respect of criminal action because—before anybody else jumps up—it would be against the European Convention on Human Rights. I am sure that my noble friend would not want us to go there—and she acknowledges that.

As to which regulator started work when, I would not rely too much on what the newspapers say. As with all these things, I am sure that in due course the regulators will look into their conduct and the lessons to be learnt. I certainly would not take as gospel the newspaper reports of who started when.

Lord Barnett: My Lords, the Minister is obviously aware that this has not just started. It has been going on for years and it could not have involved only Barclays but virtually every major bank, not only in the UK but elsewhere. Barclays could not have been handling this on its own. Listening yesterday to the chairman of the FSA, the noble Lord, Lord Turner—who unfortunately is not in his place—the FSA knew nothing whatever about it, nobody in the Bank of England seems to have known anything about it, and now the noble Lord, Lord Sassoon, tells us that the Treasury has known about it apparently for only a short while. We obviously recognise that to be the truth, but should there not be criticism of some of the people involved here? The sheer incompetence of not knowing anything about it deserves some kind of criticism.

I appreciate that the Minister cannot say that he will listen and change anything, because it is a matter for the Chancellor. However, my noble friend Lord Eatwell put a lot of serious points to him and I hope that he will take them back to the Chancellor to ensure that there are some changes. There should be some changes now.

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Lord Sassoon: My Lords, first, as we discussed last week, there are a significant number of other banks under investigation. Secondly, we could debate the history of this for a very long time, but this Government are moving extremely fast on a number of fronts to plug the gaps through one or both of the pieces of legislation that are or will shortly be before Parliament. We need to get this right, which is what we are doing.

Lord Blair of Boughton: My Lords, could I ask about the statement that the FSO will begin to consider criminal charges in the next month? I follow the noble Baroness, Lady Kramer, in referring to the level of outrage in the country about these events. The SFO could announce today that it is launching a criminal investigation. It is about not criminal charges but a criminal investigation into conspiracy to defraud, because if this is not a conspiracy to defraud, then I have never seen one—and I have seen a few.

Lord Sassoon: My Lords, just to repeat: the SFO is actively and urgently considering the evidence to see what criminal charges can be brought. It expects to come to a conclusion by the end of this month. That is exactly where it should focus its efforts.

Lord Marlesford: My Lords, unlike the noble Lord, Lord Eatwell, I see much merit in a parliamentary inquiry, especially if, as has been suggested, it includes people of the talent and experience of my noble friend Lord Lawson. There are many from all sides in this House who can do this. It is an inquiry that needs, above all, practitioners and people from the financial world rather than lawyers, and it does not prevent further inquiries in due course.

However, four points of action were put forward by the Prime Minister under the heading of banking in his Statement. Three of them are quite clearly covered by the Chancellor’s Statement but one is not. That is a confusing matter and I would like enlightenment. In the four actions proposed by the Prime Minister, one was,

“increasing the taxes banks must pay”.

What was the Prime Minister referring to?

Lord Sassoon: I am grateful to my noble friend for confirming that a Joint Committee is the way to take this forward. We have already increased the tax on the banks by putting a special levy on them so that the big banks effectively do not take any advantage of the lowering of corporation tax, which other parts of industry have already benefited from. This tax on the banks is enduring and will raise far more than the one-off tax that the previous Government brought in. So we have already done that.

Lord Myners: My Lords, I broadly welcome the Chancellor of the Exchequer’s Statement, and in particular the appointment of a Joint Committee, the report to be produced by Mr Martin Wheatley and the timetable to which both those reports are working.

I would like to return to the point I made to your Lordships’ House earlier about the BBA. It is increasingly clear that the British Bankers’ Association was very

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aware of what was going on—the collusion that was leading to fraud. The chairman of the BBA at that time is now a Minister in Her Majesty’s Government. Will the Minister assure us that the work being done by Mr Wheatley will look at the BBA’s role? It appears that there is a prima facie case that the BBA colluded in and supported a corrupt act. I am grateful that the Minister and the Chancellor have confirmed that there is no lacuna in legislation that prohibits criminal prosecution of the quite monstrous things that appear to have occurred here.

I have two further short questions. There was no suggestion by the Minister that any action would take place to lead to an inquiry and the payment of compensation to those who lost out as a result of this systemic collusion and manipulation of an important rate. That includes taxpayers, because there were a number of arrangements between the central bank, the Treasury and banks that were based on the LIBOR rate. Will the Minister confirm that there will be an appropriate investigation about whether the taxpayer was disadvantaged? Finally, will the Minister explain why the FSA’s fine was so small compared with the fines imposed by the American regulators?

Lord Sassoon: My Lords, on the first point, presumably if there is evidence that the BBA colluded in criminal activity, that will be well within the scope of the work that the SFO might do. As for the wider question about the role of the BBA, the review of LIBOR will look comprehensively at governance, which comes very much back to the BBA role and what, if any, that should be in the future framework.

On the question of whether there should be compensation, our difficulty at the moment is that we do not know whether LIBOR was successfully manipulated as opposed to there being an attempt to manipulate it. From the evidence that has already been made public, we know—

Lord Myners: The American regulators were very clear that LIBOR was manipulated. They were unequivocal in that statement. They understand the subtleties of the issue.

Lord Sassoon: My Lords, if the noble Lord will hear me out, we know that there was attempted manipulation from the evidence that has already been made public. I do not know on what basis the American authorities have come to that conclusion, and it may just be semantics, but the authorities are currently investigating whether LIBOR was actually manipulated.

It is also worth bearing in mind that, in the case of Barclays, it was the dollar LIBOR rate and not the sterling LIBOR rate that was the subject of the attempted manipulation that has come out. I completely agree with the noble Lord, Lord Myners, that these investigations need to carry on, but we cannot come to any conclusion about the answer.

Lastly, I answered a question about the fine last week, but I will repeat it in summary. This is the largest fine that the FSA has ever handed down, which indicates the seriousness of this matter within a UK context—the US has a completely different approach

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to the way it imposes penalties. The most important and relevant point is that this is the largest ever fine in the UK handed down by the FSA.

Lord Higgins: My Lords—

Lord Elystan-Morgan: My Lords—

Lord De Mauley: My Lords, there is plenty of time. Perhaps we can hear from the Cross Benches and then from my noble friend.

Lord Elystan-Morgan: My Lords, if I may, I will make a point in support of the very pertinent submission made by the noble Baroness, Lady Kramer. This is not a question of who should prosecute or who can prosecute. A simple, straightforward criminal offence was created in Section 397 of the Financial Services and Markets Act 2000; I checked it. That provision deals with a false statement or declaration that is made deliberately or misleadingly and that distorts a market. It is an offence that is punishable on indictment with a maximum of two years’ imprisonment. There would seem to be ample prima facie evidence that such an offence has been committed. In the circumstances, bearing in mind the damage done and the ruthlessness with which such practices were conducted, is there any reason why persons responsible should not stand trial?

Lord Sassoon: My Lords, I am sure that the FSA will listen to the analysis given by the noble Lord, Lord Elystan-Morgan; and if it has not already got to the bottom of it, it will take his points on board. The authority is acutely aware that it needs to press on, but the noble Lord, Lord Turner of Ecchinswell, has made it clear that it is very difficult, which is why the FSA seems to be taking the lead on this.

Lord Higgins: My Lords, it would seem that Barclays’ defence is, “We had to cheat in order to preserve our reputation”. That suggests that the bank is seriously misguided in the way it looks at these matters. Certainly there is a case for a parliamentary investigation, which I support. It is equally true that we should be absolutely clear that the terms of reference are the right ones for such an investigation.

If I may, I will make a very narrow point. As I understand it, the proposal is that the Joint Committee should be chaired by the Member for Chichester, Mr Tyrie, for whom I have the very greatest respect. However, as I was myself chairman of the Treasury Committee for some 14 years, I question whether it is appropriate that his energies should be diverted from the Treasury Committee, where he is doing an excellent job, by being chairman of this authority. This is too heavy a burden for one person, however talented, to take on, and we ought to consider that point.

Lord Sassoon: My Lords, on my noble friend Lord Higgins’ first point, there were two distinct periods during which Barclays was found to have attempted its manipulation. The first period was before the financial crisis, when its traders appear to have been driven by pure greed and tried to drive rate up. The second period was during the financial crisis when the preservation of Barclays’ reputation seemed to be the

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main driver and it was attempting, it seems, to move the interest rate down. I think there were those two distinct motivations.

Regarding the committee chair, notwithstanding the suggestion that the chair of the Treasury Committee chairs the Select Committee, I would guess that the formal position is that the committee itself will decide who the chair will be. I imagine that this will be taken up either in the Motion itself, in which case your Lordships will have a chance to take a view on it, or the committee will decide who the chair will be in due course.

Baroness Williams of Crosby: My Lords—

Lord Lea of Crondall: My Lords—

Lord De Mauley: My Lords, it is the turn of the Lib Dems.

Baroness Williams of Crosby: My Lords, I want to pursue for a moment the sheer seriousness of the situation that the noble Lords, Lord Eatwell and Lord Blair, and my noble friend all pointed to. I can think of nothing more likely to undo the prospect of this country’s return to prosperity from the crisis than the present, huge doubts about the trustworthiness of the financial system. When I extensively read newspapers from the United States, what comes out very loud and clear is the view that as a result the major beneficiaries will be countries that are in direct rivalry and competition with the City and that hope to gain from what they regard as an extremely dangerous problem that we have brought upon ourselves.

I am satisfied with the prospect of a parliamentary inquiry and I accept what the noble Lord said about the necessity for speed and getting on with it. The noble Lord, Lord Eatwell, and my noble friend Lord Higgins asked about the terms of reference. The missing term of reference that troubles me is the inquiry’s relationship to the role of the regulators. The Daily Telegraph may not be a very good source, but it is becoming completely clear that there were seminars, discussions, meetings and debates throughout 2007 and 2008 about LIBOR, and if anything is likely to be true about those rumours and suggestions it is vital that we explore whether our present regulatory structure is adequate to deal with an issue as serious and as far-reaching as this one. I therefore, with great respect, suggest to the Minister, probably with the support of the Opposition, that the terms of reference should at least extend to the roles of regulators, to the reasons why they failed to probe into this matter at an earlier stage and to what steps could now be taken to give them the confidence and the resources to enable them to do better in future.

Lord Sassoon: My Lords, I certainly agree with my noble friend that these are all relevant and important questions. It is equally important that the proposed Joint Committee’s terms of reference should be clear and should focus on transparency, culture and professional standards. The role of the regulators is rather different, but I am sure that the Treasury Select Committee, in the normal course of its business, will want to ask questions about those matters in due course. However, I take on board what my noble friend has to say.

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Lord Lea of Crondall: My Lords—

Lord De Mauley: My Lords, I am sorry but we must move on.

Crime and Courts Bill [HL]

Crime and Courts Bill [HL] Committee2nd Report from the Constitution Committee 2nd Report from the Delegated Powers Committee

Committee (5th Day (Continued))

5.37 pm

Schedule 13, as amended, agreed.

Clause 20 : Payment of fines and other sums

Amendment 147 (formerly numbered 77)

Moved by Lord Touhig

147: Clause 20, page 17, line 23, at end insert—

“( ) In fixing such an amount, and subsequent additions, account must be taken of the person’s relevant weekly income, excluding housing benefit and child benefit, and allowance must be made for the protection of a reasonable financial subsistence level, in the manner used to determine the initial fine.”

Lord Touhig: My Lords, this amendment will extend the means-testing system currently used in the calculation of court fines so that it also applies to the calculation of additional costs which, under Clause 20, will be imposed on people as a result of late or incomplete fine repayments.

The rationale behind means-testing in the justice system is laid out clearly in the magistrates’ court sentencing guidelines, which make clear that while financial punishments should cause a degree of hardship, they should not force people below an income level required to meet their most basic needs. Furthermore, they should impact equally upon offenders regardless of their financial situation. On this basis, fines are set as a percentage of the offender’s relevant weekly income, minus child benefit and housing benefit.

However, as the Bill now stands, those who miss payments for whatever reason will be liable for extra costs that take no account of their means at all. Consequently they may be left owing significant sums that they simply cannot afford, even being forced to cover repayments using benefits that were protected in the calculation of the initial fine.

This has raised serious and urgent concerns among charities and others working with vulnerable individuals and families. The Catholic Children’s Society in Westminster has said that imposing costs on parents without taking account of their financial means presents a serious risk to their children. It states:

“Child benefit exists to support children’s basic needs and is quite rightly excluded from the calculation of fines … It would be iniquitous to undermine this by adding further non means-tested costs that could jeopardise children’s wellbeing … Ultimately, under the government proposals children will suffer because of their parent’s inability or failure to meet payment deadlines. This is neither a just nor acceptable situation”.

If the current system of means-testing is applied to the new financial penalties outlined in the Bill, such a situation can easily be averted. Offenders with dependent children will still be penalised for not meeting fine payments in full or on time, but the sanction will protect the amount required for meeting those children’s

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essential needs. Similarly, all those required to make extra payments, regardless of their family situation, will maintain the basic amount needed to cover fundamental costs such as food and housing.

It should be emphasised that, with basic subsistence levels being accounted for in this manner, the Government’s aims of incentivising timely payment and reducing the cost of recovering fines will not be undermined. In fact, with means-tested amounts as opposed to arbitrary or standard sums being imposed, repayment may be more likely, as people will be subject to payments that they can realistically meet rather than face mounting debts that they may have no real chance of ever paying off. Equally, by maintaining safeguards against forcing people into unsustainable financial situations, the public purse will be protected from potentially significant expenses in the long term.

In response to the points that I made at Second Reading, the Minister, the noble Lord, Lord McNally, said that,

“if the offender provides accurate means information at the outset of their engagement with the justice system and keeps to the payment plan set out by the court, enforcement action will not take place”.—[

Official Report

, 28/5/12; col. 1067.]

However, as those working on the front line know only too well, in reality a whole array of circumstances prevent people keeping to their payment plans.

I welcome recent government pilot schemes to aid compliance such as text-messaging reminders when payments are due, but these will not provide a universal fail-safe against offenders defaulting on amounts owed, nor are they intended to do so. As I have previously stressed, people should face up to their financial responsibilities and should not be exempt from covering any extra costs that the Courts and Tribunals Service incurs as a result of their deviation from their agreed payment plan. However, the principles of equality and basic subsistence that underpin other financial penalties must apply here. I hope, therefore, that the Minister will take that on board and consider extending the current means-testing system to apply to the new financial penalties as outlined in the Bill. I beg to move.

Lord Elystan-Morgan:My Lords, I support the amendment proposed by the noble Lord, Lord Touhig. Clause 20 as I understand it writes new Section 75A into the Magistrates’ Courts Act 1980. Under that new section, the costs incurred in the collection of a fine should be added to it. No discretion is given to a magistrates’ court, once the machinery has commenced, to decide whether to make an order. The Bill states quite baldly that those costs shall be added. There is no question, therefore, of a court saying, “Well, in the circumstances, we do not think that it would be appropriate to make an order here”. Once those basic facts have been proven, the machinery runs in a way that is less than fair.

5.45 pm

The principles relating to a fine are well known, not only to magistrates’ courts but to the Crown Court as well. For a fine to be appropriate in the circumstances, it should be a reasonable disposal in the light of the offence committed and should, by its size, be a reasonable

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order in the light of the all the relevant circumstances. All the relevant circumstances, to my mind, would include the three main provisions that are incorporated in the noble Lord’s amendment. It may be, and is so in many cases, that a person will not pay a fine because he is contumelious. He challenges the court and says, “They’ll have to drag it out of me”, and it is like taking blood out of a stone. It may on the other hand be that there has been such a change in circumstances since the fine order was made that it is impossible for that person to contribute. Between those two extremes, all manner of possibilities are true.

I have no doubt that any reasonable magistrates’ court looking at the situation would inevitably take into account those three elements spelt out in the amendment, if it was doing its duty, as I am sure it would do. What is wrong therefore in spelling them out at this stage, especially since Clause 20 is drawn in such wide terms? It would mean that, once that sum of money had been added to the fine, all the sanctions which would have been appropriate in relation to the fine would be relevant in relation to the added amount.

Lord Ponsonby of Shulbrede: My Lords, I support my noble friend Lord Touhig in the detail of what he is proposing. I agree that when costs are added they should be means-tested as were the original fines when they were put in place.

I want to raise a separate issue which I raised also at Second Reading, and this is probably the best amendment with which to do so. When magistrates impose new fines, they very often do not know the level of the outstanding fines. It is not unusual for a magistrates’ court to go through hundreds of cases in a day when they are dealing with small matters and to put on hundreds of fines. They will never know, in my experience, what the level of outstanding fines is. This is clearly unsatisfactory because it can, and in many cases does, force people into an unstable financial situation. If the courts had known the level of the outstanding fines, they might have looked at other sentencing alternatives which were more appropriate for the person who is unable to pay their fines.

I have raised this issue with colleagues who are magistrates. It is feared that, if this provision were made mandatory, the administrative procedures would be brought to their knees because, as I said, literally hundreds of fines can go through in a single sitting. The administrative system should be set up so that magistrates and judges can get information on the level of outstanding fines in reasonable time before they go ahead and sentence. As I said, this is a slightly different matter from the burden of the amendment, but it goes to the heart of practicality of imposing fines.

Lord Beecham: My Lords, in speaking to my noble friend’s amendment, I shall deal also with my opposition to the question that the clause stand part. Before I do so, I am sure that your Lordships would wish to join me in extending to the noble and learned Lord, Lord Mackay of Clashfern, who is not in his place today, congratulations on his 85th birthday. It would be good to see that in the record of the House.

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I support the amendment moved by my noble friend Lord Touhig and have little to add to it, save that the Minister will have received a letter from Mr Paul Nicolson of the Zacchaeus Trust which was sent to my noble friend and copied to a number of your Lordships. It illustrates the nature of the problem that my noble friend has addressed, but with particular reference to the outsourcing of the collections enforcements system under Clause 20(2). This proposes an amendment to the Magistrates’ Courts Act which prescribes that:

“All functions of fines officers may be contracted-out”;

my opposition to stand part refers to this.

Mr Nicolson’s letter sets out a case for doing that. The amendment went down before I had heard from him, so we were of a like mind without knowing it at the time. One of the concerns that he expresses—which has been touched on by my noble friend—is that the cost of enforcement is likely to rise significantly to the extent that it is contracted out: courts officers do not, of course, charge the same amounts as bailiffs. The Minister will have seen from Mr Nicolson’s calculations that whereas court costs and a fine officer might add £135 to a fine of around £200, where bailiffs are involved, that figure could rise very substantially indeed because they charge a great deal more. I will be moving an amendment in relation to bailiffs a little later.

The letter suggests that the privatisation, if you will, of enforcement is likely to aggravate the problem. It says that contrary to the Government’s view—and I do not know if the Minister will be able to comment on this—

“fines officers do make judicial decisions”.

If they were privatised, that would be effectively privatising an element of judicial discretion. The letter goes on to say that, at present:

“The magistrates will set the level of the fine and then issue a collection order. It is then the fines officers’ duty to collect the fine. They decide: a) the weekly/monthly level of payment; b) whether it should be changed if there has been a change of circumstances; c) to send out bailiffs to defaulters”,

and, importantly,

“d) whether to send the case to the magistrates for reconsideration”,

if it is found that the defaulter is vulnerable or the fine is disproportionate and should be reconsidered.

Mr Nicolson supposes that the Government will argue that these are purely administrative tasks; I do not know whether the Minister will be advancing that argument. However, from his point of view, and I guess that of the Zacchaeus Trust, these are effectively part of the judicial functions of the court and should not be privatised, with all the additional costs to defaulters that that would involve.

I therefore support the amendment. My opposition to clause stand part is designed to invite the Government to explain the rationale for further contracting-out of this function, how it might operate, and to what extent it is expected that this service will be privatised and at what cost to the public purse and to debtors. I hope that the Government will perhaps reconsider this. We may otherwise have to revert to it at Report. It seems a step too far in terms both of the burdens it will impose, and of the principle of contracting out a significant role like this beyond the court system.

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Baroness Northover: My Lords, I thank the noble Lord, Lord Beecham, on behalf of my noble and learned friend Lord Mackay. The age of 85 is indeed the new 65, as he clearly manifests. I also thank the noble Lord, Lord Touhig, for his amendment.

Clause 20 enables the costs of collecting or pursuing unpaid fines to be recovered directly from the defaulting offender and ensures that there are strong incentives for offenders to pay fines promptly. Ultimately, collection costs, as the noble Lord has outlined, will be added directly to an offender’s fine if the offender fails to pay the fine to the agreed timetable and costs are occurred in pursuing payment.

Once a person has failed to pay their fine, much of the work that goes into pursuing that fine clearly involves labour intensive processes; for example, sending reminder letters, tracing offenders, validating offender information or arranging deductions from benefits or earnings. It cannot be right that a proportion of offenders do not pay their criminal fines in full or in a timely manner. This undermines the effectiveness of fines as a criminal punishment and costs millions of pounds per year to pursue. It cannot be right that the taxpayer should have to pick up the costs of pursuing unpaid fines from some.

We recognise that we must, of course, make allowances for the fact that some offenders lead chaotic lives and are vulnerable. Therefore, these costs will not apply to those who pay as ordered or who remain in contact with the court and comply with their payments plans which fines officers are more than willing to set up for those offenders struggling to pay their fine. This clause is aimed at those who deliberately evade payment.

We understand the concerns of the noble Lord, Lord Touhig, in this matter. Clearly we must make allowances for the fact that some people find themselves in hardship and find it difficult to pay their debts. That does not mean that the courts ought to permit those convicted simply to ignore the sentence imposed on them. Fines are a criminal sentence and taxpayers should not be subsidising those who avoid payment for whatever reason. If a person is vulnerable or is having difficulty paying their financial penalty, this needs to be discussed with the fines officer.

Under the fines collection scheme, much of the work of managing the payment of fines is the responsibility of the fines officer. Fines officers can arrange more manageable payment terms with offenders who have not defaulted and provide a key link between the offender and the court to ensure that the fine is paid as ordered by the court. Fines officers can also provide advice to offenders to help them understand what has been ordered by the court and can explain the implications of default. This includes advice on where offenders can get help with managing their finances where that is needed.

Indeed, as my noble friend Lord McNally said at Second Reading,

“if the offender provides accurate means information at the outset of their engagement with the justice system and keeps to the payment plan set out by the court, enforcement action will not take place”.—[

Official Report

, 28/5/12; col. 1067.]

Hence, no additional cost will be incurred. We really cannot emphasise strongly enough the need for offenders, especially those considered to be vulnerable, to keep in

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continuous engagement with the fines officers. In addition, if on experiencing financial hardship a person wishes to appeal or to be referred back to the court, the court will have the discretion to remit part or all of the administration costs following consideration of all the issues.

In setting the level of fine, it is the judicial responsibility of the court itself to evaluate the circumstances and seriousness of the offence against the financial means of the offenders. Under Clause 20, it is proposed that the administrative costs will be fixed and proportionate to the actual costs of collection, and will be applied where there is default in payment after sentencing. It would not be appropriate to give the fines officer the ability to exercise a judicial discretion when setting the level of costs in the same way as is done for fines.

Following sentencing, where a person’s financial information has not been supplied or verified, fines officers and administrative staff set about trying to engage with the offender, gathering further information, such as whether the person is in receipt of benefits, and verifying the person’s income and other details. Fines officers can then assess the best approach to assist the offender and enable payment. Our aim in the future is significantly to improve the level of information that a court has in order to fix the fine at an appropriate level in the first instance. That is an important step in ensuring that fines are more manageable for those in hardship while remaining an effective punishment for committing a criminal offence.

6 pm

The noble Lords, Lord Elystan-Morgan and Lord Touhig, asked about a person’s right to appeal the decision. The court will be able to remit part or all of the collection costs under Section 85 of the Magistrates’ Courts Act 1980. If a person wishes to appeal the fines officer’s decision, perhaps on the grounds of vulnerability or incorrect financial information which has led to a substantially higher penalty which the person cannot pay, the fines officer can at any stage refer the case back to the magistrates’ court. At that point, the court can review the original sentence and/or collection costs which have subsequently been imposed by the fines officer. I hope that that reassures noble Lords.

The noble Lord, Lord Beecham, flagged up the point about the judicial or other role of the fines officer in response to briefing that he had received. Choosing the sanctions or collection method is not a judicial function. It has been performed by administrative staff since the Courts Act 2003 fines collection scheme was introduced in 2006. It is governed by regulations subject to authorisation by the Lord Chancellor. As long as the Lord Chancellor has authorised the collector to make such decisions, it is an administrative task to ensure that the penalty imposed by the court is complied with as far as possible. The fines officer tries to assist in carrying out what the court has decided. The court makes the decision on what the fine should be.

The noble Lord, Lord Beecham, also asked about privatisation. Our aim in all this is to increase the number of people who comply with their court-ordered fine and reduce the need for courts to use compliance actions, such as bailiffs. Our future strategy looks to increase the number of people who fall into that

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category. Fines officers are obviously extremely important in trying to ensure that whatever the court has decided is complied with. They can vary payment plans or arrange for money to be automatically deducted from benefits or earnings, but that can be done only if the offender gets in touch with the fines officer so that those issues are addressed early on.

We are satisfied that the combination of the powers available to the court to remit part or all of the costs and those at the disposal of the fines officer in Schedule 5 to the Courts Act 2003—for example, the power to vary payments or set up deductions in the way that I have suggested—are adequate for the purposes of assisting those offenders who find themselves in financial hardship and provide enough recourse for those who want to challenge the decision. We do not believe that those powers need to be extended to provide judicial discretion for fines officers to means-test the administrative costs.

I hope that, in the light of those explanations, the noble Lord will be prepared to withdraw his amendment.

Lord Touhig: Would I be right in thinking that, without any form of means test for the additional fine, it could be greater than the original fine?

Baroness Northover: In theory, I suppose that that could be the case. The important issue here is that the offender stays closely in touch with the fines officer. If an offender has a very small fine decided because of their circumstances, ways to pay that should be sorted out and the offender assisted in that regard. Only a very small fine would be overtaken by the cost of pursuing it, one would imagine. As I said, it is extremely important for the offender and the fines officer to work through the implications of the decision taken by the court.

Lord Touhig: My Lords, I must say that I am somewhat disappointed by the Minister’s response. I entirely agree—I said it at Second Reading and I have said it today—that people should be responsible for paying the debts that are due. If they are fined for an offence, they should be responsible for paying those debts. However, as the Minister said, people often live chaotic lifestyles. We think that it is right that the guidelines of a magistrates’ court make it clear that, although the fine should provide a degree of hardship, it should not leave people with an income on which they cannot survive. Surely we should protect children and the person’s ability to pay for food and housing. Those are three basic things: children, food and housing.

Baroness Northover: I remind the noble Lord that I said that, if offenders find themselves in the circumstances that he describes, they can go back to the court and the administration cost, too, can be varied or set aside. It is not as cast-iron or concrete as the noble Lord suggests.

Lord Touhig: I apologise. I accept the point that the noble Baroness made in her earlier response. The point I seek to make is that if we think that the guidelines to the magistrates should take account of those elements, surely it is right that any additional fine should take account of those elements. At the end

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of the day, because of the lifestyles of some people, some fines will never be paid. That is wrong, but they will not. The taxpayer will end up paying more if children are not properly cared for. Social services will be involved. Someone will lose a house and have to go into emergency accommodation. The Government are storing up a problem here which could be avoided by simply saying, yes, if a form of means testing is used to determine the initial fine, any additional fine should have the same application.

I regret that the Government do not see it that way. There is clearly much work that we must do as missionaries to persuade the Government, before the Bill passes, of the error of their ways. With those few remarks, I beg leave to withdraw the amendment, but give notice that I shall come back to it at a later stage.

Amendment 147 withdrawn.

Amendment 147ZA

Moved by Lord Beecham

147ZA: Clause 20, page 17, line 41, at end insert—

“75B Minimum size of charging order

The Secretary of State shall by regulation prescribe the minimum amount above which a charging order may be granted in respect of a judgment debt, which shall be laid before, and approved by a resolution of, each House of Parliament.”

Lord Beecham: This is a probing amendment dealing with the question of charging orders. Creditors may seek to obtain a charging order against the assets of a judgment debtor, including his or her home, and that can lead to an order for sale. In 2009-10, 566 such orders were obtained.

The Government have been consulting on a proposal to impose a financial threshold below which such action could not be taken in respect of unsecured debts, particularly in relation to consumer credit cases, where the debtor is in fact already paying a premium for the loan through higher interest rates affecting the risk to the creditor.

The whole process began with a report from Citizens Advice in 2009 called Out Of Order, which recommended just such a threshold and which led to the previous Government publishing a consultation paper in February 2010. That was followed in March 2010 by an OFT publication entitled Irresponsible Lending Guidance—in itself an admission of the seriousness of the problem. The key guidance called on creditors to make it clear that charging orders might be obtained which could lead to the sale of the property charged and therefore to the loss of the home at the time of the entry into the consumer credit agreement. It also, significantly, warned creditors not to harass or threaten debtors with the loss of the home if they did not in fact intend to enforce such an order. This, of course, underlines the fact that the problem is not just a financial one, but also encompasses the anxiety and stress caused to debtors and their families. As the evidence base for the recent consultation points out:

“In considering whether to make an order for sale, the court will balance, against the rights of the creditor to recover the debt, the rights of the debtor and his/her family in respect of the family home under Article 8 of the European Convention on Human Right … in all cases judicial discretion will be exercised”.

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While the latter point is true, it is unlikely to assuage debtors’ fears of losing the family home pending a hearing and a judicial determination.

At present, the information about the number of relevant cases is limited. It would be reasonable to infer that in the past two years numbers will have risen in light of the recession—the “Breadline Britain” so poignantly portrayed in the recent Guardian series. However, the figures rely on monthly returns from individual county courts, so again in the words of the evidence base, there is “scope for collection error” in the statistics, both as to the total numbers and whether they are ultimately enforced. There is still less information about the cost to the public purse of the consequences of people losing their homes—for example, through re-housing, temporary accommodation and children being taken into care.

Given the move to a single county court, will the Government consider establishing a more robust system for tracking the data and costing the outcomes, so that policymakers, and indeed the public, are given a clearer view of the dimension of the problems? The coalition agreement pledged action to deal with this problem and at page 12 of the Government’s programme for government promised, among other things, that they would,

“ban orders for sale on unsecured debts of less than £25,000”.

Unsurprisingly, the credit industry opposed the principle of a threshold, both when the idea was first floated in 2009-10 and during the recent consultation. In the event, it appears that the Government have substantially backtracked and have announced an intention to apply a threshold of only £1,000, so that charging orders and the threat of losing one’s home will remain for debts of that very modest amount or above. This is surely a major breach of the pledge in the coalition agreement. By definition, it threatens homeowners, not people in social housing or in receipt of housing benefit whom the Prime Minister and other Ministers, regretfully, are too often at pains to vilify. It is another example of a policy that will hit the working poor hard, just as some of the other changes will hit this group as hard or harder than the very small minority who abuse the system.

The Government have pointed out that creditors who are thwarted under a threshold scheme might resort to bankruptcy proceedings. I suppose that risk exists. If they did, however, at least they would not rank above other creditors who had not priced for the risk in the first place by charging a premium for the credit.

I hope that the Government will reconsider the level of the threshold. This amendment does not seek to prescribe a particular level, but rather to establish the principle and a requirement for parliamentary approval of any regulation establishing such a level. That is what the Delegated Powers Committee recommended in its second report; an affirmative resolution procedure for the establishment or alteration of a threshold level. It is clearly necessary for the threshold to be realistic and proportionate, and £1,000 patently does not meet those criteria. It would be interesting to learn from the Minister—perhaps not today because this is not, after all, her departmental

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concern—the rationale behind the Government’s abandonment of its pledge in the coalition agreement and its reduction of the threshold from £25,000 to the nugatory figure of £1,000. I beg to move.

Baroness Northover: My Lords, I thank the noble Lord, Lord Beecham, for bringing to the Committee’s attention the issue of charging orders. The power to prescribe the minimum amount above which a charging order may be imposed already exists, although it has not yet been implemented. That power is enshrined in Section 94 of the Tribunals, Courts and Enforcement Act 2007, which gives the Lord Chancellor the power to make regulations to provide that a charging order may not be made to secure a sum of money below a certain amount. While differently expressed from the noble Lord’s amendment, it will achieve the same end.

It should also be borne in mind that a charging order is only a means of securing a sum of money ordered to be paid under judgment and that it requires an order for sale of the charged property for ultimate enforcement. Section 94 of the 2007 Act includes a second power for the Lord Chancellor to provide that an order for sale may not be made to enforce payment of a sum below a certain amount.

6.15 pm

Following a consultation paper in March 2011, the Government will introduce a minimum threshold of £1,000 in applications for orders for sale in Consumer Credit Act cases. It is also worth noting that as well as this statutory limitation, the court must take into account all the circumstances of the case before deciding whether to make an order, and this judicial discretion provides protection against disproportionate applications.

In terms of the conversion of charging orders into orders of sale, only a very small percentage are converted—less than 0.5%. In terms of the coalition’s commitment to a threshold for orders for sale at £25,000, evidence in the consultation did not support a £25,000 limit. People had reservations about this threshold, fearing that it would exceed the level for bankruptcy, which would risk creditors making debtors bankrupt instead. It would not affect the availability of credit or it might do, according to my note—I am afraid that I am not sure.

We have no current plans to exercise the power to prescribe the minimum threshold for a charging order, as opposed to that for an order for sale. As I have said, this is because of the concerns expressed in response to the consultation that such a minimum threshold could have an impact on the cost and availability of unsecured lending and the ability and rights of creditors and small businesses to recover smaller business debts.

I welcome the opportunity to expand on this area and hope my reply has provided the noble Lord with some information in response to his questions. I hope also that, in light of my explanations, the noble Lord will be prepared to withdraw his amendment.

Lord Beecham: My Lords, I am grateful to the Minister for her reply. She has certainly supplied some information, but I am afraid she has far from convinced me that the Government’s stance is correct. The effect of this failure to set a minimum threshold is to put

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homeowners in a particularly invidious position. By definition, it is only they whose homes are threatened if they are in debt. As I say, it stems from a consumer credit arrangement that already insures the creditor because they charge more for credit. Effectively, they are getting two bites of the cherry; they receive more for the credit facility and will have the opportunity to take these proceedings. Of course, judicial discretion exists, but as I have already indicated, it will leave people in considerable fear of losing their homes, pending an outcome. That is deeply unsatisfactory.

The noble Baroness has referred to evidence that was received. Obviously the consumer credit industry would be opposed to the imposition of a threshold which should apply both to the charging order and to sale, but it would be interesting to know what other groups were against it.

For the moment, I am prepared to withdraw the amendment, but it is something to which I think we shall be returning on Report.

Amendment 147ZA withdrawn.

Amendment 147ZB

Moved by Lord Beecham

147ZB: Clause 20, page 18, line 6, at end insert—

“36B Regulatory system for bailiffs

The Secretary of State shall establish a new regulatory system for bailiffs.”

Lord Beecham: My Lords, I am engaged in a series of probing exercises today. Not being a dentist, it is not a familiar role. This amendment deals with the thorny question of bailiffs. Again, this is an area of law on which the Government have been engaged in consultation with a view to strengthening the system of debt collection and debt enforcement. They have come up with some proposals, but rather than deferring action until the next Session of Parliament, I would urge them to take the opportunity to bring forward those proposals for inclusion in this Bill. We will, after all, still be in Committee when the House returns after the summer Recess. If it were delayed beyond then, there may well not be time in this Session of Parliament to deal with this issue. Admittedly, the consultation has only just ended—I think it ended last month—but I suggest that it is not beyond the Government’s capacity to seek to deal with it by an addition to this Bill after the summer.

There has long been concern about the law covering debt enforcement by bailiffs, whether under county court judgments, under a warrant for execution or under the magistrates’ court, to collect fines, council tax arrears, compensation or maintenance in family cases, when acting on a distress warrant or liability order. In the High Court, High Court enforcement officers are employed to enforce writs of execution. The whole area is, in the Government’s view, “complex, unclear and confusing”, with a history stretching back centuries and sometimes with language to match. It is understandable that, as the Ministry of Justice stated in its consultation paper of February 2012:

“This confusion can result in bailiffs and enforcement officers misrepresenting their … authority”.

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I must stress that the concern is not, essentially, over the actions of employees of the courts but over private bailiffs. There are unfortunately many cases in which bailiffs have acted in unacceptable ways and beyond their powers, and there is widespread concern about their charges, which the debtor must meet. I cite one example, which was quoted by the Zacchaeus 2000 Trust—again, chaired by the Reverend Paul Nicolson—in its briefing on what was the LASPO Bill. It cited the case of a firm of bailiffs that, without going through the necessary procedure, seized goods from a single mother with an 11 month-old baby and another young child. She was on benefits and suffered mental health problems. She owed £2,365—a substantial amount. The goods seized included a kettle and a toaster. The firm said that it was permissible to seize the kettle and toaster because the mother had a pot and a cooker.

There are worse cases than that. Last September, a bailiff called on a pregnant woman, saying that she owed £58 in council tax. She had received no communication about this. When she asked the bailiff to hold on while she got dressed and moved to close the door, the bailiff kicked the door in, injuring her leg and hip. When the police were notified and sought information from the bailiff’s firm, they were denied on the rather spurious grounds of data protection. There was another case in Wales in which a bailiff obtained a walking possession illegally, harassed a woman in the street in front of her friends and contacted her through a social networking website. As a final example, in south-east England a 19 year-old woman failed to pay a £118 fine for improper use of a child’s train ticket and, although she requested a payment plan, was visited by a bailiff who threatened to seize her mother’s goods—not her’s but her mother’s—if the bailiffs were not paid £418. He abused the young woman’s mother, threatened to remove her car and said that he could take anything in the house and break the door down to do it.

These are matters of great concern and, in fairness to the Government, they have acknowledged that there needs to be considerable improvement in the whole system. The previous Government sought to address some of these issues in the Tribunals, Courts and Enforcement Act 2007, which was designed, inter alia, to improve the regulation and practices of bailiffs and change the way that debt collection and enforcement is carried out. Part 3 of that Act, which has yet to be implemented, would introduce a complete code setting out the bailiffs’ power of entry onto premises, what goods can be seized and sold, what fees can be charged and the whole process from the serving of notice to the distribution of sale proceeds.

One aspect of Part 3 of the 2007 Act would create a proper system for the independent regulation of bailiffs, which is at present sadly lacking. There is no nationally recognised qualification or standard of competence for bailiffs, who can merely be certificated by the county court in relation to certain types of debt enforcement, including road traffic debts, council tax and non-domestic rates. In addition, they need to be certificated to distrain for rent—although Part 3 of

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the 2007 Act, if and when it is implemented, would also limit that to cases of commercial properties and rents, rather than domestic rents.

The previous Government made some initial moves to improve matters by setting up an online register of certificated bailiffs—so that debtors could check whether the bailiffs were in fact recognised to that extent—a Criminal Records Bureau check for would-be bailiffs when applying for certification and some minimum training requirements. The present Government took matters forward in January, and I welcome that, by setting out the National Standards for Enforcement Agents to be adopted by councils and other authorities for use by those working for them. This is a voluntary code and requires, for example, that bailiffs refrain from using threatening behaviour or unlawful force to gain access to premises, or from discussing a debt with anyone except the debtor. They have to withdraw if only a child is present on gaining entry and have a duty of care to elderly, disabled or vulnerable people. So far as they go, those are useful measures and, to their credit, the Government seek to enshrine these principles and other measures in law, and to reply to the consultation that concluded in October.

However, it is critically important that the new regime includes rigorous criteria for the independent accreditation of bailiffs, backed by an effective regulatory regime with regular monitoring and an accessible complaints system. The courts and other statutory bodies must have a special responsibility both for staff they directly employ on enforcement and those with whom they contract. In my view, the Government are moving in the right direction but need to act to carry out the intentions of the 2007 Act and take them further, so that we can avoid the disgraceful behaviour of what are no doubt a minority of bailiffs, who were exemplified in the cases to which I have referred. I again urge the Government to clarify today what they have in mind, if they can, but certainly, if at all possible, to go beyond simply replying to the consultation in October by bringing forward amendments to this Bill so that the matter can be dealt with as part of this legislation and concluded in this Session. I beg to move.

Baroness Northover: My Lords, I am grateful to the noble Lord, Lord Beecham, for explaining his thinking behind this amendment. He described what are, indeed, horrendous accounts. There have been debates over many years about this problem. Let me start by saying that we understand the concerns about bailiffs. The Government have given a commitment to providing more protection against aggressive bailiffs and are working to this end. I thank the noble Lord for his welcome for the progress that we have been making.

In January, the Government announced the updating of the National Standards for Enforcement Agents, with a view to defining acceptable behaviour for bailiffs. This was the first step in the Government’s plans to change the way that bailiffs are regulated and to make sure that they operate fairly to all concerned. Then, in February, we launched a public consultation which set out how we plan to provide more protection against aggressive bailiffs while still enabling effective enforcement.

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The package of proposals seeks to restore balance to the system; to improve clarity so that both debtors and creditors know where they stand; to strengthen protections for the vulnerable; and to ensure that individuals, business and government are able to collect the debts that they are owed.

Our aim is to respect the competing rights of both the creditor and the debtor. Unless there is prompt and effective enforcement, the authority of the courts and public confidence in the justice system are undermined. Creditors are entitled to collect what they are owed, while debtors should be protected from the kind of oppressive pursuit of their debt that the noble Lord has just described. This consultation set out a number of specific proposals, which, among other things, seek to: set out to whom and under what circumstances reasonable force to enter premises will be available; set out when and how a bailiff can enter a property; create minimum entry standards and certification processes to ensure bailiffs are fit to operate; prohibit the use of force against a person, with additional safeguards to protect children; make clear which items an enforcement agent may not take from someone’s home; make clear what fees bailiffs can charge for the range of debts that they collect for local government, courts and businesses; and remodel and clarify the complaints process available to the debtor. I hope that all of those proposals would address the noble Lord’s points.

The consultation, as the noble Lord, Lord Beecham, acknowledges, closed only recently on 14 May and we are now carefully considering the responses, with a view to publishing our response in the autumn. This has therefore been a timely debate and we will certainly take account of the noble Lord’s views. I will make sure that what he has just said is fed into the MoJ.

Like the noble Lord, the Government are clear that aggressive bailiff activity is unacceptable. We are committed to bringing forward effective proposals in due course to protect the public and ensure that bailiff activity is proportionate. I hope that, with those assurances, and having had the opportunity to raise this important issue, which we fully recognise, the noble Lord will be prepared to withdraw his amendment and await the Government’s proposals later in the year.

6.30 pm

Lord Beecham: I thank the Minister for her very full reply. I am certainly prepared to withdraw the amendment. Can she give me an indication as to whether the Government will at least consider using the Bill as a vehicle for the welcome changes that she suggests will follow? I would have thought it feasible to do that, given that we will not have completed Committee by the time we return. When we return, we will have further work to do on the Bill as it stands and since there is likely to be very broad support across the House for the changes that she proposes, it would not be too difficult to add these matters to the Bill. I do not ask for a firm commitment but for an indication that the Government will at least consider doing that.

Baroness Northover: As an extremely junior member of the Government, that would be going way beyond what I am allowed to do, but the important thing is

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not to pre-empt consideration of the consultation. The noble Lord may assume as to what may emerge from people’s responses to that consultation, but it is appropriate for Government to give due consideration to what comes in, and we will make proposals in due course.

Lord Beecham: I beg leave to withdraw the amendment.

Amendment 147ZB withdrawn.

Clause 20 agreed.

Clause 21 agreed.

Clause 22 : Enabling the making, and use, of films and other recordings of proceedings

Amendment 147ZC

Moved by Lord Beecham

147ZC: Clause 22, page 21, line 28, at end insert—

“(1A) Before issuing any order under subsection (1), the Lord Chancellor shall first report to Parliament that the following principles have been adhered to in any decisions made under subsection (1)—

(a) the protection of witnesses, victims, defendants, parties and jurors, who shall under no circumstances be recorded;

(b) the promotion and proper administration of justice;

and filming shall not be permitted if it would cause undue prejudice to any person involved in the proceedings.”

Lord Beecham: We now come to debate the broadcasting of court proceedings. This has already taken place in respect of certain proceedings of the Supreme Court. There is a suggestion in the Bill that this should be significantly widened. My amendments support the principle, but set out guidelines as to the way in which change might be made and also take into account—implicitly, I have to say, rather than explicitly—the recommendation of the Delegated Powers Committee that any changes should be made by regulation; again to be approved by parliamentary vote.

Amendment 147ZC proposes that in making an order as to which categories of case might be broadcast and when that might happen, the Lord Chancellor should apply principles that should be first reported to Parliament. The basic principle is surely that broadcasting of court proceedings is for the purposes not of entertainment but of promoting understanding of the judicial system and thereby reinforcing public confidence in it. It is not by any means to be a YouTube of incidents, as opposed to proper, sensible coverage of an important area of public life, the justice system.

Amendment 147ZC requires the Lord Chancellor, in making any order extending categories of broadcasting, to confirm that principles have been adhered to, including, most essentially, the protection of witnesses, victims, defendants, parties and jurors, who shall under no circumstances be recorded; the promotion and proper administration of justice; and that filming should not be permitted if it would cause undue prejudice to any person involved in the proceedings. That is a fairly straightforward provision designed to protect the integrity of the system.

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The decision in an individual case should, of course, be a matter for the judge. There may well be cases in which the judge decides that it is not appropriate, in all the circumstances, to take advantage of the permission to allow broadcasting that the Bill, if enacted, would confer. Amendment 147B simply says that, in making a direction that broadcasting should be permitted, the court or tribunal should have regard to the principles that I have adumbrated, which would, if the amendment is accepted, apply to the Lord Chancellor in widening the range of potential broadcasts in the first place.

Clearly there are legitimate concerns about the extent to which broadcasting might impinge on people’s positions, particularly parties to the case. I do not think that the Government envisage extending coverage to the whole process of trials, rather to particular aspects. Some of these are mentioned in other amendments, in particular sentencing, remarks on sentencing, and perhaps arguments by a counsel. Such matters should be dealt with properly by regulation, taking into account the factors mentioned in Amendment 147A.

I hope that the Government will respond positively to these suggestions and I look forward very much to hearing the views of other noble Lords who have tabled amendments. This is an area of considerable public interest and concern. There is a way forward, the Government are on the right lines, and with some safeguards we would be prepared to support the principle of extension. The question, of course, is where one draws the line and that is a matter which we will no doubt be debating this evening and further on Report. I beg to move.

Baroness Hamwee: Amendment 147A is in my name and that of my noble friend Lord Thomas of Gresford. I do not take issue with the principles set out in Amendment 147ZC, moved by the noble Lord, Lord Beecham, except that I question the term, “undue prejudice”. I wonder whether filming should be permitted if it might cause any prejudice, but that is a minor point.

I am pleased to see the government amendment providing for the affirmative procedure; it will give us the opportunity to debate the extension of the subjects that can be broadcast. I have no doubt with my amendments that the Government intend to see how it goes, limiting the items as they have described. The two paragraphs listed in our amendment may look less than the Government had proposed for the initial—experiment is perhaps too loaded a term—experience of filming, recording and broadcast, but my noble friend Lord Thomas corrected my drafting and said that the term “judgments” covered everything that was needed in the first paragraph. However, this development seems to me to be so significant that I am not convinced that it should not be stated in the Bill and that any extension of it should not be the subject of primary legislation.

I agree with those who predict pressure from the broadcasters for an extension so that there is livelier material for the 6.30 news and so on. Even “Today in Parliament”, admirable though it is, chooses the livelier and racier exchanges, and that is entirely understandable—it seeks to balance those with the important items that get discussed in both Houses,

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and it has half an hour to do so. When one is looking for a clip of only a few seconds, one is bound to want something that will grab the audience’s attention. Of course, a wider understanding of the justice system must be a good thing. I do not want to sound too paternalistic, but there must be a danger that an extension that popularises and simplifies would lead to a loss of subtlety and complexity. The noble Baroness, Lady Kennedy of The Shaws—who has far more experience of the courts than I do—spoke powerfully about this at Second Reading.

At Second Reading I mentioned the issue of counsel playing to the gallery. It occurs to me that others may do so as well. The experience of the riots last summer, and what came out regarding the behaviour of some of those who were charged and what was prompting them, has made me wonder whether people in that situation might themselves seek to use proceedings that were broadcast in order to continue the political statements that they were making. The Government always say that we must beware of the lack of legislative opportunities but, as we generally get a criminal justice Bill each year, that does not necessarily seem to be the best argument.

When we have secondary legislation—I acknowledge that there have been improvements in the reporting by departments of consultation that has taken place before secondary legislation comes before your Lordships—it is likely that there will be a variety of views on the details of the extension and the parts of court proceedings that would be covered. These will be difficult to deal with because of the inability to amend secondary legislation. My general point is that this is so important a step that it should require the closest consideration.

As ever, when one looks at one’s own drafting immediately before standing up to speak to an amendment, one sees the faults in it. I should perhaps have included the word “only” after the phrase,

“an order may be made”,

but this is Committee so I hope that your Lordships will not hold that against me. I do not regard approval of the very limited recording that is currently proposed as amounting to approval in principle for recording and filming in court to such an extent as to avoid the need for the consideration, on the basis of primary legislation, of an extension to this.

Lord Thomas of Gresford: My Lords, I support my noble friend in the amendment that is also in my name. She referred to people using television for their own purposes. There has been an example of that recently in Norway, where your Lordships will recall that a defendant has made every use that he possibly could to carry his message to the public. Your Lordships may think that that is an example of the sort of thing that we wish to avoid.

The noble Baroness, Lady Kennedy of The Shaws, was somewhat caught today by the two back-to-back Statements and was due to preside over the important recognition of the anniversary of the 7/7 massacres. Consequently, she is not able to be here to promote her Amendment 147AA. She has no problem in relation to the higher courts and neither do I—there is no reason why the Court of Appeal or the Supreme

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Court should fear exposure to the cameras—but she is concerned, and I share her concern to a considerable degree, that the sentencing remarks can possibly lead to problems, as my noble friend Lady Hamwee has just pointed out.

I have no doubt that sentencing remarks would be used only in high-profile cases with salacious details or where celebrities were involved. It would not be long before there was pressure, when sentencing remarks were made, for the camera to show the face of the defendant as he received his sentence or, even worse, the faces of the victim or their families at that critical moment about which I spoke at Second Reading. I am very concerned about that. We must avoid the business of the court being made entertainment for people. Criminal court is a very serious matter and the parameters must be considerably restrained. I support the amendment in my name and that of the noble Baroness, Lady Kennedy.

Lord Pannick: My Lords, I welcome Clause 22. Broadcasting will enhance the public understanding of our justice system, which in general works efficiently and fairly. It is important that members of the public are able to see that this is so through modern means of communication. As is often said, justice should be seen to be done.

There is also, of course, the possibility that allowing the cameras in may illuminate areas of court proceedings that are in need of reform. I entirely agree with what has already been said about the fundamental undesirability of cameras showing the evidence or, as the noble Lord, Lord Thomas of Gresford, said, the reactions of witnesses or victims at any stage of the court proceedings. I am sure that the Minister’s intention is to have regulations that would prohibit any of that, and I look forward to hearing what he says about why that matter should not be addressed in primary legislation.

I am a bit concerned by the final words of Amendment 147ZC, moved by the noble Lord, Lord Beecham, which say that filming would not be permitted if it would cause “undue prejudice” to any person involved in the proceedings. I can well understand that a defendant in a notorious case, in which there was a very strong argument for broadcasting the sentencing remarks, may say that to single him out for broadcasting would indeed involve prejudice. It would be most undesirable if people were able to present such an argument.

I am very concerned about Amendment 147A in the names of the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Hamwee. As I understand their amendment, it would prohibit the broadcasting of any part of the argument in, for example, the divisional court or the Court of Appeal, despite the fact that the issues raised may be of considerable public importance. If that is the noble Lords’ intention, that seems highly undesirable.

Baroness Hamwee: Perhaps I could make it clear: in this amendment we aimed to set out what we understand the Government’s current intentions to be.

Lord Pannick: I am grateful to the noble Baroness. I would hope that the Government would allow, at the discretion of the judge, the broadcasting of the arguments

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in the divisional court and in the Court of Appeal—cases, of course, where there are no witnesses. There is no evidence; these are matters of law. Some of them—one could easily give examples—are matters of fundamental public importance. If, as is the case, the whole of the proceedings in our Supreme Court can be broadcast, including the arguments that are being addressed, it would seem highly desirable that the broadcasters should be allowed, at the discretion of the judge, to broadcast the arguments in the lower courts.

The noble Baroness, Lady Hamwee, expressed a number of concerns about broadcasting. I am sure the noble Baroness is right that the danger is that broadcasters may be looking at the most sensational cases, and will broadcast snippets of the proceedings and may sensationalise matters. However, that is already the case in relation to print journalism and I see no reason at all why Parliament should be more concerned to regulate the content of what is communicated to the public through broadcasting than through print journalism.

I also have to say, as someone who has appeared in a number of cases in the European Court of Human Rights and the Supreme Court that have been broadcast, that her fears that counsel will play to the gallery are unfounded. I am not aware of any evidence that, once the case gets started and the submissions are being made, those who are presenting the arguments do other than focus on persuading the court. Indeed, were they to do otherwise and present themselves as actors with a view to impressing a wider audience, they would undoubtedly soon suffer the unemployment that is endemic in the acting profession. They are also regulated by the Bar Council.

The noble Lord, Lord Thomas of Gresford, expressed understandable concern that there should be no risk in this country of any broadcast of the equivalent of the recent conduct of the Norwegian defendant. I suggest to noble Lords that a discretion for the trial judge would prevent that. In any event, witnesses, victims and defendants could not be broadcast.

We should welcome Clause 22. Many of the concerns that have been expressed, I submit, are unfounded, and I hope the Government will allow broadcasting at the discretion of the trial judge—certainly of sentencing remarks and judgments in the Court of Appeal but also, I would hope, of judgments in the lower courts such as the Divisional Court and the High Court generally, and arguments in the courts below the Supreme Court.

Lord Borrie: My Lords, after hearing my noble friend Lord Beecham on my own Front Bench and the spokesman from the Liberal Democrat Benches, I was a little anxious that we were going to be extremely restrictive on this opening-up of the courts to television, radio, et cetera. The noble Lord, Lord Pannick, has redressed the balance by putting an emphasis on what I might call “open justice”. The phrase, “Justice must be seen to be done” is not just one we trot out when dealing with matters of significance, in terms of enabling the public to know the arguments for this or that, it is a meaningful phrase that has its origins in the reality that people used to attend courts, especially the local magistrates’ courts, in great numbers. I remind your

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Lordships that in the 19th century, and to some extent the 20th century, newspapers, especially local newspapers, used to have journalists on tap who would report at great length—pages and pages—on the evidence, arguments and judgments given in the magistrates’ courts. That was the way in which the public could assess what was going on in their name in the courts of justice in this country.

As a matter of fact, sadly or otherwise, nowadays journalists on local newspapers very rarely go to magistrates’ courts and do that job that used to be done by their predecessors. It follows that people today know less about what goes on in their local courts than was the case, and the Government’s proposal in Clause 22 redresses the matter. I agree entirely with the noble Lord, Lord Thomas of Gresford, and found myself nodding as he said that we do not want such television performances as that of the Norwegian defendant in the case to which the noble Lord referred. The defendant was skilfully using the fact of being in court to retail political and other propaganda, for the benefit not of the justice system being better understood but of the kind of extreme views that he held.

As the noble Lord, Lord Pannick, indicated, it should be possible to broadcast lawyers and judges arguing legal matters or otherwise, or judges sentencing when a trial comes to an end. As the Government are making a relatively new and welcome advance in these matters, we should not be too restrictive. That does not mean I necessarily disagree with my noble friend Lord Beecham on the matter of detail to which he referred, but I had the feeling he might be a little too restrictive—or cautious, it might be sufficient to say—and preferred the open approach of the noble Lord, Lord Pannick.

Baroness Northover: My Lords, as we have heard, the amendments tabled by the noble Lord, Lord Beecham, the noble Baroness, Lady Kennedy, and my noble friends Lady Hamwee and Lord Thomas of Gresford seek to clarify, in their different ways, the circumstances in which court broadcasting is to be permitted. There are also a number of government amendments in this group, which I will explain.

The noble Lord, Lord Beecham, is right that this is about promoting understanding of our judicial system, as happens in various other countries, and I welcome what he and the noble Lords, Lord Pannick and Lord Borrie, said about the Government being on the right lines. We recognise the risks outlined by my noble friends Lady Hamwee and Lord Thomas of Gresford. We have considered this very carefully and I am sure the implementation of these changes will be carefully monitored by all. We have heard from both sides in this argument—from what the noble Lord, Lord Borrie, described as “open justice” to concerns that coverage should not have negative consequences.

Clause 22 will allow the Lord Chancellor, with the agreement of the Lord Chief Justice, to lift the ban on filming in courts in certain circumstances and set out the limitations surrounding those. The provisions build on the successful broadcasting of the proceedings of the Supreme Court. The Government initially plan to use the order-making power in this clause to allow the broadcasting of judgments and advocates’ arguments

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in cases before the Criminal and Civil Divisions of the Court of Appeal. Cases in the Court of Appeal normally deal with complex issues of law or evidence, and victims and witnesses rarely appear in order to provide new evidence. Given the complexity of legal issues in Court of Appeal cases, we believe that allowing advocates’ arguments to be filmed in addition to judgments would be more likely to improve public understanding than filming judgments alone. Over a longer period, we expect to allow broadcasting from the Crown Court, but to limit it to the judge’s sentencing remarks after the conclusion of the trial. We believe that this will help to increase the public’s understanding of sentencing, with low risk to the proper administration of justice.

7 pm

While we have no plans to extend court broadcasting beyond these two sets of circumstances, we believe that once Parliament has approved the principle of broadcasting selected court proceedings, the details should be set out in secondary legislation. Any secondary legislation permitting broadcasting in particular circumstances will require the agreement of the Lord Chief Justice and the Lord Chancellor and will be subject to parliamentary scrutiny. We believe that this triple lock provides sufficient safeguards to ensure that court broadcasting is introduced in a safe and proportionate manner.

Following the report on the Bill by the Delegated Powers and Regulatory Reform Committee, we intend further to strengthen this triple lock by providing, through Amendment 155C, for orders made under Clause 22 to be subject to the affirmative procedure, as that committee recommended. As a result, each and every extension of court broadcasting will not only have to be agreed by the Lord Chief Justice but to be debated and approved by both Houses.

The amendments tabled by the noble Lord, Lord Beecham, seek to amend the Bill to protect the interests of victims, witnesses, jurors, defendants and other parties as well as to safeguard the proper administration of justice more widely. The amendments in the names of the noble Baroness, Lady Kennedy, and my noble friend Lord Thomas are, we believe, motivated by the same concerns.

I shall comment on the concerns expressed by my noble friends Lady Hamwee and Lord Thomas of Gresford about trial by media. The Communications Act requires broadcasters to present the news with accuracy and impartiality. It also prohibits giving undue prominence to views on matters of political or industrial controversy and matters relating to current public policy. The broadcast media are regulated by Ofcom, which has the ability to impose substantial fines and even to revoke licences. We are aware of the concern that televising our courts may open the judicial process to sensationalism and trivialise serious processes to a level of media entertainment. That is why we are not proposing to allow full trials to be filmed. However, we believe that allowing people to see and hear judges’ decisions will increase their understanding of the courts without undermining the proper administration of justice. The parameters are severely constrained for the reasons that they gave.

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Protecting the interests of victims and witnesses is a key principle in the introduction of broadcasting court proceedings, and our paramount concern in opening up the courts to broadcasting will remain the proper administration of justice. I reiterate for the record that this Government will not consider any move that would make the experience of appearing in court more difficult for victims and witnesses or which may discourage them from giving evidence. Furthermore, we will not give offenders a platform for theatrical public display or to make a political point, a point to which many noble Lords referred and which concerned, in particular, my noble friends Lady Hamwee and Lord Thomas. I confirm that victims, witnesses, defendants and jurors will not be filmed. This will be clearly set out in any order which, as I have indicated, will be subject to the triple lock of having to be approved by the Lord Chancellor, the Lord Chief Justice and Parliament.

In addition, all existing reporting restrictions on cases will continue to apply, and in all cases the court will have the final say on whether proceedings should be broadcast. Furthermore, the judge in each case will also have the ability to stop filming if he or she believes it is necessary to protect victims and witnesses or there is any demonstration or disruption in the court room. This is set out in Clause 22(3), which provides that a court may stop filming or prevent broadcasting to ensure the fairness of proceedings or that any person involved is not unduly prejudiced.

I can deal briefly with the other government amendments in this group, Amendments 155A, 155B, 155D and 155E. They address a technical point highlighted by the Delegated Powers Committee. The amendments relate to the order-making power in Clause 29 which enables provision to be made consequential upon the provisions in the Bill. Such an order may, among other things, make consequential amendments to primary legislation. Our intention is that any such order should be subject to the affirmative procedure. As drafted, the Bill provides for a Clause 29 order made by the Secretary of State that amends primary legislation to be subject to the affirmative procedure, but that procedure does not also apply to an order made by the Lord Chancellor. These amendments remedy that deficiency.

I hope that I have reassured noble Lords that very careful thought has been given to this area. We are extending the protections that we had already put in. I hope that I have clarified how we intend to exercise the order-making power. Having now provided for the affirmative procedure to apply, I hope that the noble Lord will be content to withdraw his amendment and to support the government amendments in this group.

Lord Beecham: My Lords, I reiterate that the Opposition support the thrust of the Government’s policy. We are glad that the Government have accepted the recommendation of the Delegated Powers Committee about requiring the affirmative procedure. We share the Government’s view that it is important to develop understanding of the judicial process and to promote public confidence in the justice system to which, in our view, their proposals would contribute.

The Minister referred to a triple lock. There is, in fact, a quadruple lock because, as she said in the latter

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part of her reply, the judge or tribunal can determine what can be shown on the occasion of the trial. That is fundamentally important. We all agree with the horror expressed by the noble Lord, Lord Thomas of Gresford, at the prospect of anything like the Norwegian experience being replicated in our courts. It is clear that that would not happen under these proposals. However, I hope I will not be accused of scandalising the judiciary if I point out that it is not necessarily just the parties to a case that might play to the camera. There was a Judge Pickles—I do not think he was related to the Secretary of State of the same name—who acquired a certain reputation for playing not to the camera but to the media during his judicial career and, emphatically, afterwards. I do not think any of our present judges would follow that course. I am sure they would resist the temptation to do so.

Lord Thomas of Gresford: I hope that we do not get to the American situation where lawyers come out on to the steps of the court and make submissions about the way the case is going and so on. That is something that the profession should stop. I do not know that it is necessarily a matter for the Government.

Lord Beecham: I entirely agree with the noble Lord but, as the noble Lord, Lord Pannick, pointed out, the profession would be in a position to stop that at both levels. It would clearly be very undesirable for that to happen. It is clearly also incumbent on the media to behave responsibly, but we expect that of the media and all too often find them wanting in that respect. However, I think the framework here would be adequate to deal with that situation.

I am caught between two views of Amendment 147ZC. The noble Baroness, Lady Hamwee, would prefer that the word “undue” was removed so that the amendment would read,

“filming shall not be permitted if it would cause prejudice to any person involved in the proceedings”.

The noble Lord, Lord Pannick, would prefer all reference to prejudice to go. That suggests that perhaps my formulation is better balanced than either of the other propositions. Fundamentally, how far to permit broadcasting will be a decision for the judge taking into account the interests of all parties present. We have to have confidence that the judiciary will discharge that duty.

It seems to me that there ought to be some guidelines on the way that this is approached, perhaps embodied with the wording of the amendment or something of an improvement upon it. Perhaps the Government would wish to consider that matter when we come to Report. In the mean time, I think there is broad support for these proposals, which we welcome, and I beg leave to withdraw the amendment.

Amendment 147ZC withdrawn.

Amendments 147A to 147B not moved.

Clause 22 agreed.

Amendment 148 (formerly numbered 78)

Moved by Lord Pannick

148: After Clause 22, insert the following new Clause—

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“Scandalising the judiciary

Abolition of offence of scandalising the judiciary

The offence of scandalising the judiciary under the common law of England and Wales and the common law of Northern Ireland is abolished.”

Lord Pannick: In the absence of the noble Lord, Lord Lester of Herne Hill, for which he has asked me to apologise to the Committee, I move Amendment 148, which raises the question of whether it should continue to be a criminal offence to insult the judiciary. The amendment is in my name and those of the noble Lord, Lord Lester of Herne Hill, the noble and learned Lord, Lord Mackay of Clashfern, and the noble Lord, Lord Bew, who I am very pleased to see in his place.

This area of the law has been the object of ridicule since Mr Howard Gray, the editor of the Birmingham Daily Argus, was prosecuted in 1900 for an unflattering article about Mr Justice Darling’s conduct at the Birmingham Assizes. That judgment is the foundation of the modern law. The official law reports state, somewhat sanctimoniously, that it was not necessary to set out the offending remarks but fortunately the Law Times informed its readers of the contents. In his newspaper article Mr Gray had described the learned judge as,

“an impudent little man in horsehair, a microcosm of conceit and empty-headedness”.

He added that:

“No newspaper can exist except upon its merits, a condition from which the bench, happily for Mr Justice Darling, is exempt”.

The editor suggested that the judge, assessed on his merits, would have been, “a successful bus conductor”.

Mr Gray’s invective—one might describe it as 50 shades of Graywas not appreciated by the courts, although his comments are kinder than the view since taken by legal historians of Mr Justice Darling’s contribution to jurisprudence. Mr Gray was prosecuted, made a grovelling apology before the Lord Chief Justice, which kept him out of prison, and was fined £100 and ordered to pay costs.

When I was a law student in the 1970s cases such as Mr Gray’s from the early years of the 20th century were regarded as historical curiosities with little, if any, contemporary relevance. In 1984, in the Appellate Committee of this House, Lord Diplock described the application of contempt law to statements scandalising the judiciary as “virtually obsolescent in England”.

This area of our criminal law could, and would, have been left as a legal relic—a matter of concern only to historians and students—but it has recently had life breathed into it by the Attorney-General for Northern Ireland, Mr John Larkin QC. It is because of the recent case that this Committee is being asked to consider whether this area of the law should be reformed.

7.15 pm

Mr Peter Hain MP, the former Secretary of State for Northern Ireland, published his autobiography last year. All authors hope for a wide audience, but not necessarily one in the Attorney-General’s department, which was where Mr Hain’s book received most attention. Mr Hain was critical of the way in which a Northern

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Ireland High Court judge, Mr Justice Girvan, now a Lord Justice, had a few years earlier dealt with a judicial review application against one of Mr Hain’s decisions. Mr Hain had described the judge and his conduct as “high-handed and idiosyncratic” and he added that he thought the judge “off his rocker”. The Attorney-General for Northern Ireland, Mr Larkin, brought proceedings alleging that these comments were a contempt of court. Mr Larkin withdrew that charge after Mr Hain made clear in a letter, presumably on legal advice, that he had not intended to question the motivation or the capabilities of the judge.

This bizarre episode has damaged the reputation of the legal system in Northern Ireland and resulted in far more publicity for Mr Hain’s book than it would otherwise have received, or indeed merited. Whatever the merits or lack of—I take no position on this—in Mr Hain’s critical comments, surely a former Secretary of State, or indeed any citizen, should be able to express his views about a judge without being threatened with a prison sentence. If the Attorney-General for Northern Ireland is going to revive this otherwise moribund branch of the criminal law, Parliament should kill it off before it does any further damage. There is simply no justification today for maintaining a criminal offence of being rude about the judiciary—scandalising the judges or, as the Scots call it, murmuring judges. We do not protect other public officials in this way. Judges, like all other public servants, must be open to criticism because, in this context as in others, freedom of expression helps to expose error and injustice. It promotes debate on issues of public importance. A criminal offence of scandalising the judiciary may inhibit others from speaking out on perceived judicial errors.

I would be surprised to learn that this view was not shared by the vast majority of serving judges. The justification often given for retaining this offence is that we need to prevent public confidence in the administration of justice from being undermined. The irony is that public confidence in the judiciary is undermined far more by legal proceedings that suggest that the judiciary is a delicate flower that will wilt and die without protection from criticism than by a hostile book or newspaper comment that would otherwise have been ignored.

The other argument often presented in favour of this category of criminal offence is that judges cannot answer back. They can and they do. Lord Justice Sedley was the most recent judge to sue for libel, winning an apology in the High Court last year after bringing proceedings in respect of false statements in the Daily Telegraphabouthis conduct of a case.

I would also recommend the words of wisdom from Lord Justice Simon Brown, now the noble and learned Lord, Lord Brown of Eaton-under-Heywood, in a case in 2000. He said:

“A wry smile is, I think, our usual response, and the more extravagant the allegations the more ludicrous they sound”.

Since the Attorney-General for Northern Ireland has woken up this pitiful legal animal, we should take this opportunity to put it finally to sleep. I beg to move.

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Lord Bew: My Lords, I rise briefly to speak on Amendment 148 and to express my support for the sentiments expressed so eloquently by my noble friend Lord Pannick. There is no doubt, as he made clear, that the case for this amendment has been dramatised by the events of April and May of this year, when the Attorney-General for Northern Ireland raised his intention to bring contempt of court proceedings against Mr Peter Hain, former Secretary of State for Northern Ireland, on the publication of his memoirs and observations that he made therein on a member of the Northern Ireland judiciary and a case of particular importance when he was Secretary of State. The reaction of Parliament was quite dramatic, with 120 MPs rallying to Mr Hain’s defence. In Question Time on 18 April, the right honourable Mr David Blunkett in the other place asked the Prime Minister:

“Should not respect for the independence of the judiciary be balanced with the rights of individuals to fair comment on that judiciary?”.

The Prime Minister replied, expressing sympathy for that sentiment, and said that,

“there are occasions … when judges make critical remarks about politicians; and there are occasions when politicians make critical remarks about judges. To me, that is part of life in a modern democracy, and we ought to keep these things, as far as possible, out of the courtroom”.—[

Official Report

, Commons, 18/4/12; col. 317.]

In mid-May, following a less than enthusiastic response in the political world to his original move, the Attorney-General for Northern Ireland effectively set aside the proceedings. There has been a tendency to regard the whole business as an explosion of provincial self-regard now thankfully passed, but that is a short-sighted way in which to look at what has happened. The Attorney-General made it clear that he would not have set aside the proceedings until the receipt of the letter from the former Secretary of State for Northern Ireland, Mr Hain. In that letter, Mr Hain effectively argued that it had not been his intention in any way to challenge the independence and fairness of the judiciary in Northern Ireland. This is an important point, because I think it quite likely that the Attorney-General for Northern Ireland had in mind the dictum of Lord Russell of Killowen, perhaps the greatest of all the Northern Irish judges of the last century. In 1900, as Chief Justice of England, he offered a dictum in this sort of case that intention was crucial and that there had to be a calculated and clearly deliberate attempt to challenge the independence of the judiciary. By his letter, the former Secretary of State for Northern Ireland, Mr Hain, put himself on the right side of that dictum by saying that he had no intention in any way to challenge the independence of the judiciary in Northern Ireland.

What this reveals is that the Attorney-General and Sir Declan Morgan, the Lord Chief Justice, as far as I can understand from the remarks that he made at the time that this was a public matter, believe that there was in principle a case in law here, and a legal case that could be taken. That is why we have proposed this amendment. If there is any possibility that there could be such a case brought, which I think would widely be regarded as absurd, we must do what we can to eliminate that possibility.

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In this country, we have a long tradition of freedom of speech, from which the judiciary is not immune. John Bunyan’s The Pilgrims Progress is a classic example in the 17th century of how that tradition has operated. In the view of those of us who support the amendment, the common-law offence of scandalising the judiciary is obsolete and has an unnecessary chilling effect on free speech.

Lord Borrie: My Lords, some 40 years ago I co-authored a text book entitled The Law of Contempt. Some 50 pages were devoted to the subject now before us in this Committee of scandalising the court. I should add that the current edition of that book is written by a group of somewhat younger lawyers, and since my name appears only on the spine of the book I no longer receive any royalties and therefore have no interest to declare. However, I admit to a certain nostalgic interest for this curiously and rather charmingly worded crime of scandalising the court, which is the subject of Amendment 148. It is the opinion of a number of eminent lawyers; in addition to those who have spoken, we also have the noble Lord, Lord Lester of Herne Hill, and the noble and learned Lord, Lord Mackay, whose 85th birthday it is today. That has been recorded already by the Minister.

I accept from the noble Lord, Lord Pannick, that the offence of scandalising the court has somewhat dubious and ancient beginnings and that it has largely fallen into desuetude, at any rate in this country, although it is quite often used in ex-colonies of Britain that have adopted our law. The reason for its doubtful origins is that a Chief Justice in the 18th century gave a judgment that there was such an offence as scandalising the court but never actually gave that judgment in court. It was recorded and given as his view, but that to lawyers is a very dubious precedent.

As for the purpose of the offence, it is said to help to ensure that the authority of the courts is not undermined. Furthermore, potentially at least, as both proponents of the amendment, who have spoken already, have said, the offence or its existence has a chilling effect on freedom of speech and the freedom to criticise judicial decisions. However, I have to admit—this was not mentioned by the two previous speakers—that the 1974 Phillimore committee said that there was not much evidence that the press was unduly inhibited by this aspect of the law. In 1987, the Daily Mirror referred to the judges in the Spycatcher case as “fools”, alongside an upside-down picture of the Members of this House who were sitting in their judicial capacity. No prosecution followed.

It is over a century ago that in the case of Gray, to which the noble Lords, Lord Pannick and Lord Bew, referred, Lord Russell of Killowen said that,

“any act done or writing published calculated to bring a court or a judge into contempt, or to lower his authority, is a contempt of Court”.

I need not give the facts about the references to Mr Justice Darling, as they have been given by the noble Lord, Lord Pannick. In addition to the points that were made, one phrase used by the journalist there was that Mr Justice Darling was,

“a microcosm of conceit and empty-headedness”.

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Lord Justice Sedley, a current judge of the Court of Appeal, to whom the noble Lord, Lord Pannick, referred, wrote recently that the reference to Mr Justice Darling was among the,

“finest passages of invective in the annals of British journalism”—

not a bad record, I suppose. I think I am right in saying that there has been no successful prosecution for this offence since 1931. That surely gives a great deal of emphasis to the point made by the noble Lords, Lord Pannick and Lord Bew, that this offence is out of date. There would be hardly any loss, and not much gain either in practical terms, if the crime were abolished.

7.30 pm

However, I say to the noble Lord, Lord Pannick, whose speeches in this House I have admired over a long period, that I am rather surprised that he does not want pre-legislative scrutiny, which he is usually very fond of, and it seems a little odd that he does not want to refer this matter to the Law Commission, of which he speaks so highly; it is usually the first thing that comes to his mind when he is thinking of serious changes in the law. In this case he wants instant change, using the device of an amendment to a government Bill to get rid of this crime, which he has had marked up on his wall in chambers as something that ought to be got rid of.

Sad though I am that this crime may disappear, I cannot argue against the substantive arguments that have been raised. I shall be surprised if the Government can produce any against, and although I have teased the noble Lord, Lord Pannick, somewhat, he has made out a substantial case and I hope that the Government will react positively.

Lord Goldsmith: My Lords, the Minister may have something to say in support of this offence and I look forward to hearing it. Subject to that, the case made by the noble Lords, Lord Pannick and Lord Bew, is unanswerable.

However, I wish to make one or two comments about it. I know all the individuals who were referred to in the almost prosecution by the Attorney-General for Northern Ireland, Mr John Larkin, including the would-be defendant. I am sure that the decision to proceed was taken in good faith—they are all people of good faith—but it is the first time that I recall the potential use of that offence. I was the Attorney-General for Northern Ireland for six years and I was never asked to, nor did I, consider that offence in Northern Ireland—or, indeed, in England and Wales, of which I was also Attorney-General. There does not seem to be any need for the offence and I never saw any need for it at the time. It will be also interesting to know whether the Minister has anything particular to say in relation to Northern Ireland and to what the noble Lord, Lord Bew, had to say. I see also sitting in his place today a former Lord Chief Justice of Northern Ireland.

In supporting the noble Lord, Lord Pannick, and subject to what the Minister has to say, I wish to draw attention to one point and to sound a note of caution. The noble Lord, in the course of his observations, asked why we should protect judges as we do not protect other public officials. However, I am concerned

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about allowing too much freedom in relation to attacks on judges. I do not mean that we should protect them through the criminal law—that is not appropriate—but I believe that a degree of self-restraint is important in retaining public confidence. Indeed, it is not members of the public or even former politicians who often pose the greatest risk. From time to time when I was in office I had to have conversations, as did other legal officers, with members of our own Government about their observations on cases they had lost; they rarely made them about cases that they had won.

Expressing that reservation, and making it clear that I do not believe that the criminal law is necessary to protect judges in those circumstances, I hope that if the amendment is agreed it will not be taken as invitation to a free-for-all in relation to criticism of judges— there is a proper place for that. However, there is a need for self-restraint so that the independence of the judiciary is maintained; so that judges do not have to be involved in slanging matches when responding to accusations made against them; and so that confidence in the judicial system is maintained.

Lord Carswell: My Lords, as your Lordships are aware, I was for some 20 years a judge in Northern Ireland. In that capacity, I had the function on many occasions of conducting criminal trials without a jury of very serious terrorist offences. It was a very responsible and difficult job and, in that capacity, I was scandalised more than once. I do not know whether that is a declaration of interest, but it certainly explains what I am about to say to your Lordships.

I did not consider for a moment instigating a prosecution or suggesting to the Attorney-General—who was not the noble and learned Lord, Lord Goldsmith, but a predecessor—that a prosecution should be bought. There were deeply scandalous assertions in a certain newspaper that I had come to the conclusions I had reached in criminal trials on the instructions of the Government, more or less, without saying it, as their cat’s paw. I was deeply offended and I deeply resented it. I was scandalised, but not for one moment would I have considered asking the Attorney-General whether he would consider bringing contempt proceedings—or, rather, a scandalising prosecution.

My reason is very simple: judges have to be able to take these things. There may be a point beyond which they should not have to lie down and put up with the slings and arrows, but there are other ways of dealing with it than this offence. That is the reason it has fallen into desuetude: it is not necessary in modern conditions; not necessary for a sophisticated society; and not necessary for judges who have to have the hardihood to put up with comments which sometimes may be unfair, badly based and just plain vulgar rudeness. However, that is part of what they have to do: they have to shrug their shoulders and get on with it. It is for that reason that, although I was very cross at the time about it, I certainly did not invoke the criminal law. I support the amendment.

Lord Beecham: We are addressing these issues in wonderfully archaic language. The “scandalisation” of judges; the “murmuring” of judges in Scotland, which

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puts me in mind of the murmuration of starlings—it is, apparently, the collective noun for starlings—and here we are in this High Court of Parliament considering this arcane offence.

Like the noble and learned Lord, Lord Goldsmith, I deprecate the tendency of politicians of all political colours and Ministers of different Governments publicly to criticise judges when decisions have gone against them. I also deprecate the tendency of the tabloid press in particular to denounce the judiciary for perceived leniency, or whatever it might be, from time to time. However, as other Members of the Committee have made clear, that does not justify applying a criminal offence and criminal sanctions to those who are critical, rightly or wrongly, of what the judiciary has done.

Scandalising the judiciary has not always been the province of politicians or the media. One of the most frequent scandalisers of the judiciary was that eminent Conservative lawyer and Lord Chancellor, Lord Birkenhead, known as FE Smith. He frequently clashed with judges. On one occasion the judge, in an irritated spasm, inquired, “Mr Smith, what do you think I am here for?”, to which he replied, “My Lord, it is not for me to question the inscrutable workings of providence”. That came as near as anything to scandalising that particular judge. I do not think it was Mr Justice Darling, whose reputation has been adequately canvassed tonight.

We certainly support this amendment. It is clearly timely to dispose of the revival of a procedure that is quite antiquated and unnecessary. I hope that the Government will accept the amendment.

The Minister of State, Ministry of Justice (Lord McNally): My Lords, every so often this House produces a little nugget of a debate that is extremely important and that will bear further reading and study. I am grateful to all noble Lords for their contributions, and to the noble Lord, Lord Beecham, for his murmuring of starlings.

Lord Beecham: Murmuration of starlings.

Lord McNally: Murmuration. We learn something new every day in this House. I also thank him for another good FE Smith story.

The noble Lord, Lord Pannick, introduced the amendment with his usual eloquence and well-structured argument, marred only by a terrible joke about Fifty Shades of Grey, but at least yet another book was plugged in this debate. We have all been rushing to eBay to get the remaining copies of Borrie on defamation, which will be worth getting; and of course Peter Hain’s memoirs, as has been rightly pointed out, have been given far greater coverage than I recall their getting when they were published.

Nevertheless, what has been discussed is extremely important. I very much welcome the contribution of the noble and learned Lord, Lord Carswell. As a judge in Northern Ireland, he and his fellow judges were so important in upholding the rule of law in the most difficult of circumstances, and in so doing he not only has our admiration but we are all in his debt for his courage and consistency. For him to say that he thought that the law was not necessary weighs heavily in making

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any judgment. I also share the views of the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Beecham, about getting the balance right between politicians and judges.

I understand what the Prime Minister meant when he spoke in the other place about there always being a little bit of rough and tumble between the two in the modern age. I think I have said at the Dispatch Box that a little bit of dynamic tension between politicians and the judiciary in a democracy does not go amiss. The warning from the noble and learned Lord, Lord Goldsmith, is correct, and he will not be surprised to know that the present Lord Chancellor—I cannot speak for the present Attorney-General or the Solicitor-General—has not been slow to remind exasperated Ministers that it does not help to start opining on this. The balance of contributions was right that it will happen occasionally, but if it became too much of a free-for-all it would genuinely undermine public confidence in the judiciary and in the workings of our legal system. The warnings are well made.

7.45 pm

As the noble Lord, Lord Pannick, explained, the amendment would abolish in England, Wales and Northern Ireland the common law offence of scandalising the judiciary, also known as scandalising the court or scandalising the judge. Scandalising the court falls within the law of contempt of court and makes it an offence to engage in conduct that is calculated to bring a court or a judge into contempt or to lower his or her authority. Unlike other contempt offences, this applies to abuse or attacks outside the court and attacks unrelated to a particular case.

The justification for the offence is that it is said that it protects the public from the damage that might be done if the court’s authority is undermined or impaired, and if it is needed to protect the administration of justice. The law on contempt of court was considered in the 1970s, as the noble Lord, Lord Borrie, reminded us, by the Phillimore committee and the Law Commission, both concluding that an offence was still needed, although it should be narrower. The noble Lord, Lord Borrie, may be interested to know, as indeed will the noble Lord, Lord Pannick, that the Law Commission is once again reviewing the law on contempt of court and expects to report in 2014.

The offence of scandalising the court is within the scope of that review, but I accept that many noble Lords who have spoken in this debate are keen to address more quickly the concerns raised by the Peter Hain case. I agree with the noble Lord, Lord Bew, that the fact that the Northern Ireland Attorney-General dropped the case only after clarification and the promise that in future editions of the book there would be a footnote explaining the clarification suggests that the law is alive and kicking rather than dead. I know that there are concerns that this offence unduly restricts freedom of speech and that there may be a case for reform, or indeed straightforward abolition.

This offence is no doubt archaic, and some regard it as obsolete, as has been said this evening. It is rarely used. The noble Lord, Lord Borrie, is right that the last case was in 1931. However, before moving to the reform or the abolition of the offence, it is only right

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that we consider whether such a step could result in a gap in the law or have unwanted side effects. That said, I accept that any gap in the law is unlikely to be significant. The abuse of a judge in court is covered by contempt of court generally. Other serious interferences, such as corruption, threat or defamation, are covered by other criminal offences or civil remedies.

We also need to consult the Northern Ireland Administration, given that the criminal law is now a devolved matter. We might also wish to discuss with Scotland whether its similar common law offence might usefully be abolished at the same time. As your Lordships will be aware, we should not legislate in the Westminster Parliament on a devolved matter without the consent of the relevant devolved legislatures. I recognise the concerns raised by noble Lords about this offence and the desire to act quickly to abolish it. The Government are sympathetic, but we would like to consider the issue further and consult others, particularly the judiciary and the devolved Administrations, before taking a final view. To allow time for such consultation, I ask the noble Lord to withdraw his amendment at this stage on the understanding that we can come back to this matter on Report.

Lord Pannick: I am grateful for the Minister’s positive response to this debate. I share the views of the noble and learned Lord, Lord Goldsmith, that self-restraint in criticising the judiciary is to be encouraged. Much of the criticism of the judiciary that we hear is ill-founded and unsubstantiated. This amendment is certainly not intended to encourage criticism, and certainly not unfounded criticism; its only point is that the criminal law is not the appropriate means of protecting the judiciary’s reputation. As the noble and learned Lord, Lord Carswell, recognised in his superb work as Lord Chief Justice of Northern Ireland and told the Committee today, confidence in the judiciary is not simply promoted by criminal proceedings. As the Minister said, it is significant that the noble and learned Lords, Lord Carswell and Lord Goldsmith, with their experience, have spoken in favour of this amendment, to which the noble and learned Lord, Lord Mackay of Clashfern, added his name.

The noble Lord, Lord Borrie, pointed out that the continuing existence of the offence of scandalising the judiciary does not inhibit the press much. There are two responses to that. First, it is not much of a recommendation for maintaining this area of criminal law if it has no effect, with no successful prosecution since 1932. Secondly, and more importantly, the recent conduct of the Attorney-General of Northern Ireland unfortunately may well have an inhibiting effect on others who are considering making critical comments about the judiciary. The noble Lord, Lord Borrie, teased me about wanting instant change. It is of course 112 years since the prosecution of Mr Gray, and if no one can present an argument for retaining this offence, I do not see why it is necessary to wait for a Law Commission report in years to come.

The Minister accepted that there is unlikely to be a gap in the law. I entirely accept that on a matter of this sort, before bringing forward any amendment of their own, it is right and proper that the Government would want to consult the judiciary and the devolved

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Administrations in Scotland and Northern Ireland. By Report, I very much hope that the Government will have formed a view in the light of such consultation. For the time being, with grateful thanks to the Minister, I beg leave to withdraw this amendment.

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Amendment 148 withdrawn.

House resumed.

House adjourned at 7.53 pm.