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Lord Lester of Herne Hill: I should make it clear that I move this amendment not with any intention of dividing the House or, probably, of disagreeing with the Government's position. The reason for bringing it back at Third Reading is that when we debated this on

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28 October-together with our decision to abolish the common-law offences of sedition and seditious, defamatory and obscene libel in England, Wales and Northern Ireland-I then raised a question about the other common-law offence emanating from the Star Chamber, namely blasphemous libel, and pressed for that to be abolished, too, in Northern Ireland. It is a reserved matter and, therefore, one that can be dealt with only by the Westminster Parliament. The Minister kindly concluded the debate by offering to relay to the Minister of State at the Northern Ireland Office the points that I and other speakers had made. I am grateful to the Minister for having written to me on 3 November and for having met with me and his officials. It would be helpful to have him on the record with his response.

12.45 pm

I shall make a couple of points. I perfectly understand that devolution and the devolution settlement is extremely important and that, when criminal law is transferred to Northern Ireland, it will be for the Northern Ireland Assembly, subject to the general law regulating the Assembly, to debate the issue of blasphemy. The reason why it remains my belief that at this stage it would be preferable to abolish blasphemy on this side of the Irish Sea and in Northern Ireland relates to my own experience in a case in which I must declare a professional interest. I acted for the Family Planning Association for Northern Ireland against the Department of Health, seeking guidance to be given to doctors, nurses and women and girls about the lawful termination of pregnancies in common law. The Northern Ireland Court of Appeal, in a unanimous judgment, required the Government to give that guidance. After a couple of years the guidance was given, but the Northern Ireland Assembly, having received this order of the Court of Appeal and the guidance of the Government, descended into a long political wrangle, seeking to frustrate the decision of the Court of Appeal and of the Northern Ireland Department of Health.

It would be regrettable, when we do not have the benefit of a Court of Appeal Northern Ireland judgment or a decision of the Northern Ireland Government, were anything similar to happen here. It would be regrettable because, south of the border in the Irish Republic, there has been a complete shambles over blasphemy whereby, owing to de Valera's 1937 constitution, the present Government of the republic have reintroduced the offence of blasphemy by statute this summer in a most curious way, after their own supreme court decided that it was unenforceable and there to protect only the Church of England.

I have two final points. First, Northern Ireland already has a very strong law on incitement to religious hatred, going back to 1987. Secondly, our rights as citizens of the United Kingdom of Great Britain and Northern Ireland should not vary on fundamentals according to which part of the territory we are in. That I believe to be a profoundly important conservative and unionist principle-that we do not wish to see the rights of citizens of the UK dependent on where we happen to be at any particular time. Here there are rights about freedom of religion and free speech. It would be most unfortunate if that were not to continue.

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I am heartened by a paragraph in the letter to me from the noble Lord, Lord Bach, in which he talks about enabling,

I seek an assurance that the Government intend, with all deliberate speed, to secure this change in Northern Ireland, taking account of any local debates and discussions. I beg to move.

Lord Henley: My Lords, at the last stage I made it clear that the view from these Benches was that this was a matter that should be left to the Northern Ireland Assembly to deal with in due course. Despite listening to the blandishments of the noble Lord, Lord Lester, that remains our view, and I do not think that I can add anything further to the debate.

Lord Morrow: My Lords, I want to make a few observations on this matter. I have noted that the noble Lord, Lord Lester, said that he does not intend to divide the House on this issue. However, I would like to make a few brief remarks. In my opinion, the amendment has a secularising agenda. Before the blasphemy law was repealed in England, the Government held a consultation with the Church of England. I am aware of no such consultation being held with the churches in Northern Ireland in relation to the amendment by the noble Lord, Lord Lester.

I am sure that noble Lords are aware that Christianity plays a more prominent role in Northern Ireland society than in the rest of the United Kingdom. Research carried out by the relief agency Tearfund and published on the BBC News website in April 2007 found that 45 per cent of people in Northern Ireland are regular churchgoers. That compares with 15 per cent in other regions of the United Kingdom. A survey of young people in 2007, carried out by the CBBC programme "Newsround", found that 95 per cent of young people in Northern Ireland believed in God, and that 65 per cent of Northern Ireland children prayed most days.

Abolishing the offence of blasphemy does not demonstrate neutrality; rather, it contributes to a wider campaign of imposing a secular ideology, which would actually be hostile to religion. There is no neutral ground here. Every society has some cherished beliefs that it protects in law. The amendment would remove the offence of blasphemy from law at the same time as the Government are increasingly adopting hate-speech laws which are, in a sense, a form of replacement.

Christianity has profoundly influenced society in Britain and Ireland. Over the centuries, the Christian worldview has given us individual liberty and parliamentary democracy. Christians have been to the forefront of humanitarian endeavours; we need only call on such names as Wilberforce, Shaftesbury and Josephine Butler. I am not aware of a single political party or church denomination in Northern Ireland calling for the offence of blasphemy to be overturned, and certainly none of the major churches-or indeed the minor ones-have been consulted on this. I quite agree with those who say that the best place for this issue, and the best arbiter on it, would be the Northern Ireland Assembly. It is in place, it has 108 Members, and it otherwise crosses all the straddles of political opinion in Northern Ireland.

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Lord Monson: My Lords, perhaps I might make a short observation on the amendment by the noble Lord, Lord Lester. He said that he wanted the rights of citizens throughout the United Kingdom to be uniform, wherever in the United Kingdom they happened to be. However, he will surely acknowledge that since Scottish devolution the rights of people north and south of the border have, at times, varied quite considerably. There are the rights of drinkers and of foxhunters, to name but two. They may coincide temporarily, but after the next election they may once again vary. Perhaps the noble Lord will take that on board.

Lord Browne of Belmont: My Lords, first I declare that I am a Member of the Northern Ireland Assembly, and noble Lords will surely be aware that, since its establishment, considerable progress has been made in achieving a stable and peaceful society there. Currently, a Bill on policing and justice is being considered by all the parties in Northern Ireland, and when there is public confidence there is the likelihood of that being devolved to the Northern Ireland Assembly. Therefore, I firmly believe that this issue should be considered by all 108 Members of the Assembly, who will then have the opportunity to consult with all of their constituents and, obviously, come to make a well-informed decision on this. I therefore oppose the amendment.

Lord Bach: My Lords, the noble Lord, Lord Lester, tabled similar amendments to these on Report to bring about the abolition of blasphemy and blasphemous libel in Northern Ireland. Members of the House understood, of course, the concern that he raised about what appears to be the law, even if there is no record of either of those offences ever having been prosecuted in Northern Ireland. At the same time, a number of noble Lords shared the Government's view that these are matters better left to be considered by the Northern Ireland Assembly when it assumes responsibility for the criminal law. On the last occasion, the noble Lord, Lord Browne of Belmont, who has spoken again today, spoke of the particular sensitivity around religious issues in Northern Ireland, and of how it was important for the people of Northern Ireland to have their say. The noble Lord, Lord Henley, agreed from the Opposition Front Bench that the offences were arcane and redundant, but felt that the matter should be left for the devolved Administration-a view that he has expressed again today.

I recall that the right reverend Prelate, the Bishop of Winchester, had similar reservations about this Parliament legislating for Northern Ireland on a matter of this kind. He has been good enough to communicate to me, first, that he is surprised that this matter has returned to the House today and, secondly, that he thinks this matter should be dealt with in Northern Ireland. As the right reverend Prelate rightly said, the arguments that were powerfully adduced by the minority when the abolition of blasphemy and blasphemous libel in England and Wales was debated, during the passage of the Criminal Justice and Immigration Bill, are held with a great deal more force on all sides of the community in Northern Ireland than, perhaps, they are on this side of the water.

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I undertook to convey to the Minister of State for the Northern Ireland Office the views that the noble Lord, Lord Lester, and other noble Lords expressed in the previous debate. I have done so, and the Minister's strong view is that the right forum for consideration of this sensitive issue is the Northern Ireland Assembly, once it has assumed responsibility for justice. Given the strength of feeling on this matter, however, he has undertaken to ensure that the matter is fully researched, by drawing on the helpful analysis of the noble Lord, Lord Lester, and that advice on it is prepared so that a devolved justice Minister would have immediate access to it. In dealing with this issue, those in Northern Ireland will also need to pay close attention, as they obviously will, to the right to freedom of expression and the right to freedom of conscience, thought and religion enshrined in the ECHR.

I hope that that will give the noble Lord, Lord Lester, some reassurance that even if we differ from him on how the matter should be progressed-and indeed we do-we are taking it seriously and laying the foundations for a future change in the law. I am grateful to all of those who have spoken in this short debate, and I now invite the noble Lord to withdraw his amendment.

Lord Lester of Herne Hill: I am very grateful to everyone who has spoken, including the Minister, who has now put on record his important statement. My noble friend Lord Alderdice apologises for the fact that he cannot be here today, and the noble and right reverend Lord, Lord Eames, who was another supporter of the amendment, was also unable to speak.

In answer, quickly, to some of the points made by the noble Lord, Lord Morrow, first, a Select Committee of this House looked into all of these questions and examined closely, on the basis of evidence, the situation in Northern Ireland. There was very full consultation when that happened; I am not sure whether he would be aware of that. The Northern Ireland law was expressly referred to in the course of it. Secondly, this is not about any hostility to religion. On the contrary, the problem is that one person's religion is another person's blasphemy. The vice in the common law on blasphemy, which has never been used in Northern Ireland, is that it immediately leads to demands by, for example, Muslims that it be extended to their religion-something which has, extraordinarily, been done in the Republic. Thirdly, it is there to protect Christianity, which is regarded as divisive by non-Christians.

Concerning the point made by the noble Lord, Lord Monson, I was referring to the fact that the Convention rights are written into the Scotland Act, the Wales Act and the Northern Ireland Act in order to ensure that those basic rights do not vary from place to place. That is what I had in mind before, but there are of course variations in the pattern of legislation, provided that it is subject to those basic rights.

Finally, the Government of the Republic of Ireland decided not to have a referendum on this question for the very reason that the kind of arguments that one has heard would have been aired in the Republic. This is, if I may respectfully say so, largely hot air, given that blasphemy at common law has never operated in Northern Ireland.

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I very much hope, as I am sure that the Government do, that this problem will at last be put to sleep in Northern Ireland as it has been here, and not left as it is in the Republic. Having said all that, I beg leave to withdraw the amendment.

Amendment 16 withdrawn.

1 pm

Amendment 17

Moved by Lord Tunnicliffe

17: After Clause 79, insert the following new Clause-


(1) The Secretary of State must review the operation of this Chapter and prepare a report of that review.

(2) The Secretary of State must lay a copy of the report before Parliament before the end of the period of 2 years beginning with the day on which section 74 comes into force."

Lord Tunnicliffe: My Lords, the amendment makes provision for a statutory review of investigation anonymity orders within two years of the commencement of Chapter 1 of Part 3 of the Bill. The amendment has the same effect as a similar one tabled by the noble Lord, Lord Henley, on Report, which I accepted in principle. The amendment is self-explanatory, and I therefore beg to move.

Lord Henley: My Lords, I am grateful to the Minister for moving the amendment. We look forward to the review in a couple of years' time, which will help us to keep an eye on developments. Scrutiny is right on this occasion.

Amendment 17 agreed.

Amendment 18

Moved by Lord Bach

18: After Clause 149, insert the following new Clause-

Damages-based agreements relating to employment matters

(1) The Courts and Legal Services Act 1990 (c. 41) is amended as follows.

(2) After section 58A insert-

"58AA Damages-based agreements relating to employment matters

(1) A damages-based agreement which relates to an employment matter and satisfies the conditions in subsection (4) is not unenforceable by reason only of its being a damages-based agreement.

(2) But a damages-based agreement which relates to an employment matter and does not satisfy those conditions is unenforceable.

(3) For the purposes of this section-

(a) a damages-based agreement is an agreement between a person providing advocacy services, litigation services or claims management services and the recipient of those services which provides that-

(i) the recipient is to make a payment to the person providing the services if the recipient obtains a specified financial benefit in connection with the matter in relation to which the services are provided, and

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(ii) the amount of that payment is to be determined by reference to the amount of the financial benefit obtained;

(b) a damages-based agreement relates to an employment matter if the matter in relation to which the services are provided is a matter that is, or could become, the subject of proceedings before an employment tribunal.

(4) The agreement-

(a) must be in writing;

(b) must not provide for a payment above a prescribed amount or for a payment above an amount calculated in a prescribed manner;

(c) must comply with such other requirements as to its terms and conditions as are prescribed; and

(d) must be made only after the person providing services under the agreement has provided prescribed information.

(5) Regulations under subsection (4) are to be made by the Lord Chancellor and may make different provision in relation to different descriptions of agreements.

(6) Before making regulations under subsection (4) the Lord Chancellor must consult-

(a) the designated judges,

(b) the General Council of the Bar,

(c) the Law Society, and

(d) such other bodies as the Lord Chancellor considers appropriate.

(7) In this section-

"payment" includes a transfer of assets and any other transfer of money's worth (and the reference in subsection (4)(b) to a payment above a prescribed amount, or above an amount calculated in a prescribed manner, is to be construed accordingly).

"claims management services" has the same meaning as in Part 2 of the Compensation Act 2006 (see section 4(2) of that Act).

(8) Nothing in this section applies to an agreement entered into before the coming into force of the first regulations made under subsection (4)."

(3) In section 120(4) (regulations and orders) after "58(4)," insert "58AA"."

Lord Bach: My Lords, these amendments provide for the statutory regulation of damages-based agreements relating to employment matters. Previous amendments on damages-based agreements were tabled for Report stage. However, as the House will recall, I withdrew those amendments in light of the concerns raised by some noble Lords, including the noble and learned Lord, Lord Woolf, and of course the noble Lords, Lord Hunt of Wirral and Lord Thomas of Gresford, about the wide scope of those amendments. I undertook to bring back at Third Reading revised amendments, which would be narrower in scope and limited to the regulation of damages-based agreements in respect of employment tribunal claims. These amendments achieve that objective.

It may be helpful if I briefly explain how these agreements work. Damages-based agreements allow for the representative to claim a percentage of any damages awarded to the claimant. In contrast, of course, conditional fee agreements, which are typically used in court proceedings, allow for an "uplift", or success fee, on top of the representative's normal fee. Unlike conditional fee agreements, damages-based agreements are not permitted in court proceedings and the amendments do not change this. They are,

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however, commonly used by some solicitors and some claims managers in proceedings before the employment tribunal.

Recently published research into claimants' experience of employment tribunals, by Professor Moorhead of Cardiff University, shows the worrying absence of specific consumer protection in respect of this type of agreement, particularly in relation to information about costs and charges, and the potential availability of other forms of representation. The Government believe that damages-based agreements, like conditional fee agreements, require specific statutory regulation to ensure that claimants have the protection they require. They do not currently have that specific statutory regulation.

While these amendments set out the broad regulatory framework, the details of the regulatory requirements will be set out in regulations to be made under the new statutory provision. These regulations will be subject to the affirmative resolution procedure.

We published a consultation paper on the regulatory requirements, seeking the views of the judiciary, the Law Society, the Bar Council and others. The consultation closed at the end of September and we published a summary of the responses on 27 October 2009. While some questioned the need for statutory regulation, others highlighted the need for, and welcomed the introduction of, more specific statutory requirements in the interests of protecting consumers in employment tribunals. It is envisaged that the first regulations could include, among other things, a requirement for representatives to provide claimants with clear and transparent information on all likely costs and expenses, and to provide claimants with information about other sources of funding to which they may be entitled and which may allow them to keep all of their damages.

These amendments are necessary now to ensure consumer protection for claimants in employment tribunals. I emphasise that the amendments only seek to regulate damages-based agreements in respect of employment matters to ensure that these claimants are protected from the outset. These amendments do not extend beyond employment matters that may go to the employment tribunal. In particular, any potential extension of damages-based agreements to civil litigation would require further consideration by us at a later date. As the House knows, this is being looked at by Sir Rupert Jackson in his review of civil litigation costs, which is due to report by the end of December. We all await that report with interest and will consider carefully any recommendations for further legislation in this area. I beg to move.

Lord Lester of Herne Hill: My Lords, I declare a professional interest, as I have been involved in litigation in an employment context-by which I mean equal pay, which I take to be included in what is meant by "employment"-where there has been real abuse because of the absence of regulation in this area. I do not want to go into embarrassing details to illustrate the precise nature of the abuse, but I am certainly aware that trade unions have been concerned that, for example, women are induced to enter into relationships with lawyers whereby a cut is obtained out of the damages that may be claimed for, say, an equal pay case, without

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the woman being properly informed. They are told by the solicitor that they cannot settle a case without the solicitor's consent, in a situation where the solicitor will have a stake in the outcome. On the basis of my own experience, I am convinced that it is important that there are safeguards for the consumer in this context.

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