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House of Lords

Tuesday, 1 December 2009.

2.30 pm

Prayers-read by the Lord Bishop of Liverpool.

Introduction: The Lord Bishop of Gloucester

2.36 pm

Michael Francis, Lord Bishop of Gloucester, was introduced and took the oath, supported by the Bishop of London and the Bishop of Liverpool.

Libel

Question

2.41 pm

Asked By Lord Pannick

Lord Tunnicliffe: The Government will consider very carefully all the recommendations in the report published by English PEN and Index on Censorship alongside those of the Culture, Media and Sport Select Committee, the report of whose inquiry into press standards, privacy and libel is expected shortly.

Lord Pannick: I am grateful to the Minister. Does he accept that for the courts of this country to entertain libel proceedings that are brought by people who have no connection to this country against publishers who are based abroad, such proceedings being founded on the incidental publication in this country of a few copies of a newspaper, book or magazine published abroad, is very damaging to free speech worldwide and to the reputation of this country? Will the Government consider introducing reforms to prevent such libel tourism?

Lord Tunnicliffe: My Lords, the Government are indeed concerned about libel tourism. Part of it is geographic extent, which is touched on in the Question. However, there are three other issues: the arguably penal cost system in London; the multiple publication rule; and the balance between reputation and freedom of speech, which at least the US Supreme Court believes is unreasonably weighted in favour of reputation. The report covers all these issues. The Government hope to respond to it, alongside the Select Committee's report, within two months of the latter's publication.

Lord Borrie: My Lords, does my noble friend the Minister agree that scientists, other scholars and medical experts are becoming increasingly wary of challenging dubious claims-about health products, for example-because of the chilling effect of the various aspects of libel law, one of which has been usefully touched on by the noble Lord, Lord Pannick? There are other aspects

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as well, such as the weighting of libel law generally against freedom of speech and the "availability of contingency fee" system, which encourages actions that may be undeserved.

Lord Tunnicliffe: My Lords, without committing the Government too much, I generally take those points. The Government take this issue very seriously, in about five areas. The Master of the Rolls asked Lord Justice Jackson to look at all aspects of the cost of civil litigation, including libel law; he will report by the end of the year and that report will be published on 14 January. The Government consulted on 24 February with the document Controlling Costs in Defamation Proceedings. That was responded to on 24 September and new measures were introduced on 1 October. The Government also started a consultation on 16 September, with Defamation and the Internet: The Multiple Publication Rule, which ends on 16 December. As I said, the report will be considered in two months. The Justice Secretary is setting up a working group to examine a range of issues around libel, including libel tourism. It will consist of media lawyers and government experts. The aim will be to make recommendations on reform.

Lord Henley: My Lords, does the Minister accept-I think that he partially did in his first Answer-that the real problem is the costs in libel cases, particularly the very high costs in London, rather than necessarily any problems within libel law itself?

Lord Tunnicliffe: Being a Whip, I have had to learn all about this in the past two days. I do not accept that any one of these issues is quite as heavy as the noble Lord suggests. There would be no magnet to London if our balance were the same as that in the US. These libels will be prosecuted at the appropriate place. There is no question, though, but that cost is a serious issue. The costs are accentuated by the conditional fee agreement with the 100 per cent uplift and the after-the-event insurance, which could be 65 per cent of the cost, meaning that the defendant can end up with 165 per cent more costs than were actually incurred. It is undoubtedly true that the costs are a substantial part of the chilling effect.

Lord Thomas of Gresford: Would the Minister spend another day in considering the Irish Defamation Act 2009, which provides for defences of honest opinion in matters of public interest in respect of the author and for innocent publication where the person or publisher who publishes the alleged libel is not the originator? Those are bang-up-to-the-minute revisions designed to protect press freedom and freedom of speech. Or would the Minister not start from there?

Lord Tunnicliffe: I am sure that the working party that the Justice Secretary has spoken of will consider international examples. On the specific outline of the law, I will hand that over to my noble friend Lord Bach when he comes back from Europe tomorrow.

Lord Elystan-Morgan: My Lords, while I accept that there is much to be said for the comprehensive study or series of studies referred to by the Minister, is there not a danger that the study may be so comprehensive and wholesome that it will not lead to anything in the short term? In the mean time, our courts will be

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cluttered by litigants who are often utterly ruthless in seeking to stifle the truth, particularly in the field of medical science, where systems and situations that are at best bogus are often revealed.

Lord Tunnicliffe: My Lords, the Government are seized of the point made by the noble Lord. The Justice Secretary is particularly concerned that, in the reaction to the various studies that I outlined, there is some sense of speed in righting some of these problems.

Regulation of Investigatory Powers Act 2000

Question

2.47 pm

Asked By Lord Naseby

The Parliamentary Under-Secretary of State, Home Office (Lord West of Spithead): My Lords, the Regulation of Investigatory Powers Act 2000 provides a number of safeguards. Proportionality is explained in statutory guidance in the form of codes of practice and is subject to inspection by independent commissioners whose annual reports to the Prime Minister are laid before Parliament. In addition, anyone who believes that they have been subject to any unlawful action under RIPA may complain to the Investigatory Powers Tribunal.

Lord Naseby: My Lords, how can more than 500,000 such requests be proportionate? One of them was the keeping of petrol without a licence. Secondly, is it really proportionate for the Government to announce on 9 November that the provisions are to be extended to every single e-mail, telephone call, text or website posting? If the threat is so great to require that, surely it should be done only with legal sanction and not just by some council official, senior policeman or senior government manager?

Lord West of Spithead: My Lords, there are a number of issues there that need to be unpacked. It is important to note that RIPA is not anti-terrorist legislation: it regulates covert techniques. Before the 2000 Act, none of these things was regulated at all and no check was kept on how local councils might have carried out intrusive investigations that now, post RIPA, they are not allowed to do at all. To be absolutely clear, the Government accept that minor offences such as dog fouling or littering were never intended to be subject to these techniques, and RIPA was not what put them in place. That is using powers incorrectly and that is why we have now had a long period of consultation through the summer looking at these issues and will come out with a number of proposals in January that I hope will make this even clearer than it is at the moment.



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Baroness Hamwee: My Lords, does the Minister agree that some of the local issues for which RIPA has been used, such as rogue traders selling knives to children, are serious matters and that it is right that local authorities should use the powers available to crack down on them? Does he also agree that what is really important is that the orders are made at a sufficiently senior level; that there is a framework within which the powers are used; and that they are used accountably and transparently?

Lord West of Spithead: My Lords, the noble Baroness is absolutely right. Following our consultation we will certainly raise the level of authorisation. We will also make sure that elected councillors are involved, so that they are privy and party to all of this. We will put this in statutory instruments in January.

Baroness Neville-Jones: My Lords, can the Minister be specific on this point: following the consultation that the Government are conducting, will local authorities still be able to use covert investigation techniques?

Lord West of Spithead: My Lords, yes, they will be able to use them, as they have always been able to use them. There are restrictions because of RIPA. Before the Act local authorities were not so restricted. For example, in communications data, because of RIPA, they are not allowed to use traffic data because that is the most intrusive. They are not allowed to use intrusive surveillance. However, there are a number of powers that they have always been able to use, and they use them. Some of these are rather important.

I have many examples but a good one is that of North Yorkshire council's trading standards people. They prosecuted three roofers who had ripped off 11 elderly victims, two of whom had lost their entire life's savings. It was quite appropriate that there should have been some form of covert investigation of that. It came out with a very good result. Those people ended up in prison, one of them for six years, one for five and one for three. It is appropriate that that should be done. Equally, it is totally inappropriate that a council should use this for matters that are not proportionate. That is what the consultation has come out with and that is what we are now trying to make even more certain. It would be wrong to use these powers over matters such as dog fouling, littering and so on. It is not proportionate.

Lord Harris of Haringey: My Lords, given that there was no oversight of the use of investigatory powers by local government until RIPA in 2000 and that there is now a complaints system and scrutiny of what happens, is it not the case that it is this Government who have protected citizens from improper intrusion by local authorities into their lives and are now increasing the level of protection by the new regulations which are being consulted on?

Lord West of Spithead: My Lords, my noble friend is absolutely right. I have to admit that I had not realised that, until 2000, none of these things was regulated at all. It is very interesting that the Chief Surveillance Commissioner said in his report for 2008-09:

"I am satisfied in general that the use made"-



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of RIPA-

and this is talking about the minor things-

Baroness Manningham-Buller: Would the Minister mind correcting the point that there was no authorisation for these methods before RIPA? There was not for local authorities but, of course, the Interception of Communications Act 1985 and the Intelligence Services Act 1994 authorised the most intrusive methods. Secondly, would the Minister agree that the way to approach this sensitive and difficult issue is to regard the powers authorised by RIPA as a hierarchy; that the most intrusive powers should be used only in the most serious cases, when all other approaches to investigation have failed; and that the least intrusive should also be used infrequently and with great care and caution? There should be a hierarchy of both authorisation and intrusion.

Lord West of Spithead: My Lords, the noble Baroness touches on two points. The first is to do with interception. Interception was different and that is why I did not specifically mention communications data. Interception was covered by a specific Act before 2000. Of course, that is still not allowed to be used by local authorities. It is restricted to a small number of law enforcement and intelligence agencies. It is right that none of these powers should be used unless it is used proportionately. What they need to take into account is the severity of the offence and how useful these powers will be to the investigation. I gave a good example of where I thought it was proportionate to use them. However, we must not get this out of context. For example, the number of requests to use communications data of the type that local councils can use-they cannot use all of them-was only 0.3 per cent of all the demands for communications data. The bulk of them came from the intelligence agencies and the police. That is the way it should be, but that does not mean we should not do even better. That is why we have had the consultation and will bring in statutory instruments in January next year.

Retirement Age

Question

2.55 pm

Asked By Lord Sheldon

The Parliamentary Under-Secretary of State, Department for Communities and Local Government & Department for Work and Pensions (Lord McKenzie of Luton): My Lords, we recently legislated to increase the state pension age to 68 by 2046 as part of a package of pension reforms. The timetable set out in the Pensions Act 2007 is based on the projected increases in average life expectancy available at that time. However,

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we have always made it clear that the changes to state pension age should be kept under review in the light of new evidence about life expectancy.

Lord Sheldon: My Lords, I am grateful to my noble friend for saying that there could be changes, which I certainly would expect given that over many years the retirement age of 65 for men has not changed while life expectancy has increased very considerably. Should there not be a greater formal relationship between the pension age and life expectancy? I note that the pension age is set to increase to 68 for men and women in 2044, so far ahead are we making these assumptions. Is this not quite unacceptable, given the increase in life expectancy, which will increase very considerably over the next 30 years?

Lord McKenzie of Luton: My Lords, it is undeniably the case that there has been a difference of more than a year in average life expectancy between 2004 and 2008. However, increasing the state pension age is an integral part of our package of state pension reforms that are designed to make it fairer, more generous and more widely available. We have responded proportionately to the demographic challenge, which will ensure that linking the basic state pension to average earnings is affordable in the longer term and ensures that the costs of rising longevity are shared fairly between those contributing to and those receiving the state pension. Unlike the party opposite, we have no intention of bringing forward the change from 65 to 66, which is due to take effect between 2024 and 2026.

Baroness Morris of Bolton: My Lords, does the Minister agree with the noble Lord, Lord Turner, that, with hindsight, the proposals on reforming the pension age should have been more radical?

Lord McKenzie of Luton: No, my Lords, I do not. As I said a moment ago, we have no intention of disturbing the 2024 change; it would be quite wrong to do that, particularly for people in their fifties who are getting close to retirement. If we were to bring forward the state pension age to 70 by 2030, as the noble Lord, Lord Turner, suggested, that would increase the change far in excess of projected life expectancy. We need to bear in mind the impact of this on lower-than-average life expectancy because it would mean fewer people reaching state pension age. Around 79 per cent of men are projected to reach 70 in 2030, compared to nearly 84 per cent who are expected to reach 66 in that year.

Lord Oakeshott of Seagrove Bay: My Lords, while it must be right to keep the rapidly increasing life expectancy under review, does the Minister agree that surely the priority is not to make it harder for people who are looking forward to the very mean basic state pension but to get a grip on the totally unaffordable cost of public sector pensions going forward? At a time when an average police officer or fireman is retiring in his early fifties with a £1 million pension pot, and many civil servants will be retiring under the age of 60 for 30 years to come, is it not important to close this very dangerous public/private sector divide?



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Lord McKenzie of Luton: My Lords, I am sorry that we have heard yet another attack on public sector pensions. The noble Lord cites a particular example, but the average public sector pension is of the order of £4,000 or £5,000. In the test of whether public sector pensions are affordable, you have to look at the cash-flow effect over the long term. Long-term financial projections make it clear that they are affordable.

Baroness Greengross: My Lords, does the Minister not agree that the speedy-and I emphasise, speedy-abolition of the default retirement age would help many older people who want to continue to work to do so, and enable our economy to benefit, as evidence has clearly demonstrated, from what their skills, loyalty and willingness to work can give to our country as we emerge from the current recession?

Lord McKenzie of Luton: My Lords, the noble Baroness makes an important point. Changing the state pension age is one thing; if you do not facilitate the opportunity for people to work longer, the savings that might be generated by that change would be negated by increased claims for benefits. We have already announced that we will bring forward to 2010 the review of the default retirement age, rather than having it in 2011 as originally promulgated. Since 1997, the number of people in employment aged between 50 and state pension age has increased from 64.8 per cent to 71.7 per cent in 2009. There are now 1.4 million people working past state pension age.

Lord Hamilton of Epsom: My Lords, given that under this Government there has been a systematic degradation of occupational pension schemes, will not many people have to work beyond the age of 65, whether or not that is the official retirement age?

Lord McKenzie of Luton: My Lords, there is no such thing as an official retirement age. We have been talking about the age at which people can access the state pension. I reject the assertion that there has been a degradation of pensions under this Government. Everyone knows that the consequence of the changes to defined benefit schemes in particular is generated by changes in longevity and assumed market returns that were wildly optimistic.

Lord Low of Dalston: My Lords, I declare an interest, because my wife recently stood down as a member of the Care Standards Tribunal on reaching the age of 70. When the Government review the default retirement age in 2010, will they include compulsory retirement ages provided for in legislation, such as those that apply to tribunals, which would seem to be in conflict with other equality legislation?

Lord McKenzie of Luton: My Lords, the noble Lord makes an interesting point. I cannot assure him that that will be covered, although I hope that it will. I shall take the matter up and write to him.


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