Lords Sitting of 20 December 1995

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Bristol.

Lord Winston
Robert Maurice Lipson Winston, Esquire, having been created Baron Winston, of Hammersmith in the London Borough of Hammersmith and Fulham, for life—Was, in his robes, introduced between the Baroness Blackstone and the Lord Carter.
Lord Wallace of Saltaire
William John Lawrence Wallace, Esquire, having been created Baron Wallace of Saltaire, of Shipley in the County of West Yorkshire, for life—Was, in his robes, introduced between the Lord Holme of Cheltenham and the Lord Dahrendorf.

St. James's Park Pelicans
2.58 p.m.
Lord Stodart of Leaston Lord Stodart of Leaston asked Her Majesty's Government:
Whether the arrival of two pelicans from Prague was the result of a request made to the Government of the Czech Republic; and whether there are more to come to join Vaclav and Rusalka with a view to restoring the number of pelicans in St. James's Park.
The Parliamentary Under-Secretary of State, Department of National Heritage (Lord Inglewood): My Lords, the two pelicans, Vaclav and Rusalka, joined the white pelican and the eastern white pelican at St. James's Park in September. They were brought from Prague Zoo. There are no plans to acquire any more.
Lord Stodart of Leaston: My Lords, I thank my noble friend for such a positive reply. Is he aware of the fact that over the past 30 years or so, when this subject has been discussed, questions have been asked about the possibility of reproduction among the pelicans in St. James's Park? On each occasion the Minister answering the Question has been obliged to say that because of his ignorance of the sex of the pelicans he has been unable to provide any information. On this occasion, the two pelicans have been supplied with Christian names. Does that give my noble friend the possibility of adding a plume to his cap by refuting the claim that has always been made that the only thing that knows the sex of a pelican is another pelican?
Lord Inglewood: My Lords, I am sure that your Lordships are grateful to my noble friend for having the interests of the pelicans in St. James's Park so close
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to his heart over so many years. As my noble friend commented, the two newly acquired pelicans are called Vaclav and Rusalka. Vaclav is the same name as Wenceslas, a male name, and Rusalka is a female name. When the pelicans left Prague Zoo, the experts there identified the sex of each of the pelicans. In order to ensure that they are no longer in the predicament of not knowing the identity or the sex of the pelicans, the Government have ringed each of them so that the knowledge can be retained.
Lord Campbell of Croy: My Lords, the Minister who replied to a similar question on this subject in 1988 indicated that the park pelicans had not laid an egg for 300 years. Is that because conditions in the park are not propitious for the propagation of pelicans? If so, is it kind to import those pelicans and so deny them a normal life with a mate, including the patter of little webbed feet.
Lord Inglewood: My Lords, an egg was laid by the pelicans in St. James's Park but it was infertile. I am advised by ornithological experts that the reality is that pelicans tend not to produce fertile eggs unless they are part of a larger flock of a minimum of about 10 birds. I understand that London Zoo plans to try to establish such a flock. As for the nature of the community in which pelicans live, it is similar to that experienced in monasteries and nunneries.
Lord Strabolgi: My Lords, is it true that there have been pelicans in St. James's Park since the reign of Charles II and if there are no pelicans there, according to historical myth, dreadful things will happen? Can the noble Lord elucidate on that at all?
Lord Inglewood: My Lords, the first pelicans in St. James's Park were presented to King Charles II by the Russian ambassador in the early 1660s. In February 1665, John Evelyn noted that he had seen a pelican which was,
"a fowle between a stork and a swan".
I have no detailed knowledge of the myth to which the noble Lord refers.
Lord Gisborough: My Lords, in view of the importance of the pelicans and the amount of traffic in St. James's Park, will the Minister consider putting up some pelican crossings?
Lord Inglewood: My Lords, that is a matter for the Department of Transport.
Lord Annan: My Lords, will a third pelican be added so that, as in the days of the last war, they can be referred to as Chiefs of Staff?
Lord Inglewood: My Lords, I am sure that it is possible to add a pelican. But if more than four pelicans are in St. James's Park they have a tendency to behave very badly towards the other water fowl on the lake; in particular, they eat up the young ones. That goes against the wish of the Royal Parks Agency.
Lord Donoughue: My Lords, I am sure that we all welcome more beautiful birds, especially at this time of the year. However, can the Minister reassure the House

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that those birds are in fact legal and not illegal immigrants? Can the noble Lord further assure the House that, if they ask for political asylum, they will not have their benefits reduced? Finally, I should like to wish the House a very happy Christmas.
Lord Inglewood: My Lords, I can confirm that the pelicans were legally imported to this country; indeed, I understand that they went through their period of quarantine on Duck Island, together with the pelican to which I referred which went to London Zoo. I can assure the House that the pelicans are being properly looked after. Each pelican eats four pounds of whiting a day at a cost of £78.50p per week for all the pelicans. In addition, they receive supplements of vitamin tablets.
Lord Stoddart of Leaston: My Lords, I merely rise to thank my noble friend the Minister for giving the House more detailed information on the Question than we have ever had before.
Lord Inglewood: My Lords, I endeavour to provide whatever information your Lordships may seek of me.

HM Prisons: Bullying
3.5 p.m.
Lord Harris of Greenwich Lord Harris of Greenwich asked Her Majesty's Government:
What action they propose to take to combat bullying of women prisoners, following the report of Her Majesty's Chief Inspector of Prisons on HM Prison, Risley, in which it was stated that "without the direct involvement of the area manager it was impossible to arrange transfers of difficult women."
The Minister of State, Home Office (Baroness Blatch): My Lords, the Government take the issue of bullying in all prisons very seriously. Since 1993, the Prison Service has published an official policy on bullying which provides clear guidance for establishments to address and reduce the problem. The transfer of male and female prisoners who persistently display bullying behaviour is used as a last resort when all other means have failed. If that becomes necessary, transfer procedures are in place. The Prison Service is currently examining ways of making the transfer process even more effective.
Lord Harris of Greenwich: My Lords, I thank the Minister for that reply. However, can she help the House and tell us what is actually happening in women's prisons at present? First, we have the situation at Risley where it has been made clear that there have been a number of serious sexual assaults on women inmates. Secondly, we have the situation at Holloway where General Sir David Ramsbotham had to withdraw his inspection team because of the degrading conditions that he found there. Thirdly, we hear today of the report on New Hall women's prison. Is not the Minister becoming increasingly embarrassed at having to defend such an appalling situation?
Baroness Blatch: My Lords, as regards the sexual assaults, I can tell the House that the situation was
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promptly dealt with. The governor has put it in the hands of the police who are dealing with the matter. Therefore, it would be improper for me to make any further comment. As for the transfer of people, I have said that that is a last resort. It is very much a matter for the governors to deal with in the first instance. It was a very serious incident and the six people who were suspected of participation had to be dispersed very quickly. That gave rise to the problem.
I turn now to the inspection of Holloway Prison. I share the concern expressed about the situation; indeed, we should all do so. However, it is not about money, because extra money was put into Holloway for more staff and improved training even before the inspector withdrew his team. Senior management at headquarters is working with the governor and setting firm targets for improvements and dates by which those improvements must be achieved. So that matter is also in hand. Therefore, although we are concerned about such matters, as long as the governors and the Home Office are taking them seriously, I am happy to come to the Dispatch Box and account for them.
Lord McIntosh of Haringey: My Lords, the Minister said that it is not a question of money. However, is it not a fact that when we learnt about the appalling conditions at Holloway, we also learnt that the prison is overcrowded in that there are 561 inmates when there should be only 507? Surely that is a question of money.
Baroness Blatch: My Lords, the prison estate for female prisoners is not overcrowded. There are 2,065 female prisoners, so overcrowding is not the issue; and it is certainly not the issue as it relates to the Question on the Order Paper.
Lord Campbell of Alloway: My Lords, if it is not a question of money or overcrowding and if there are enough staff, can my noble friend the Minister tell the House what it is?
Baroness Blatch: My Lords, perhaps I may say to my noble friend that it is partly a question of management.
Lord Harris of Greenwich: My Lords, the Minister has just made a statement which implies criticism of the present governor of Holloway Prison. Is that her position? Is that what she is saying?
Baroness Blatch: My Lords, the noble Lord has a fertile imagination when interpreting what I say. I said that it is sometimes a question of management.
Lord Stoddart of Swindon: My Lords, is the Minister aware that, on being questioned during a television news programme as to what conditions were like at Holloway, an inmate who had just been released said, "Yes, it is tough and security is tough; but what else do you expect? It is a prison, not a holiday camp."?
Noble Lords: Oh!
Baroness Blatch: My Lords, some noble Lords seem to be sympathetic to the point that the noble Lord makes. That indeed is one of the issues. There is laxity in some prisons and it is a question of management. Where there is good management usually there is minimal trouble.
Lord Gilmour of Craigmillar: My Lords, the Government evidently knew some time ago that the conditions in Holloway were appalling. I visited Holloway a few weeks ago and the situation was so bad that the prisoner I visited was half an hour late in arriving because there was no one in Holloway to bring her down. Why did not the Government do something about this a long time ago?
Baroness Blatch: My Lords, the Government have responded to the situation. As I said a moment ago, extra staff and extra training have been provided at Holloway. Targets have been set. They have not all been met but time limits have been set for meeting those targets. Sending in the inspectors is all part of monitoring the adequacy of the service for my right honourable friend the Home Secretary.
Lord Richard: My Lords, the House may be slightly mystified by what the Minister has said. When she replied to the question of the noble Lord, Lord Harris of Greenwich, she said that he had a fertile mind. I would ask the Minister what constitutes management if it is not the way in which the prison is run? Is she criticising the way in which Holloway has been run, and, if so, what are those criticisms? Can we please have some more detail?
Baroness Blatch: My Lords, I was asked to give reasons why sometimes there are problems in prisons. I said that it is often a question of management. It is often a question of management, but that is not the only reason. There may be other reasons. In the case we are discussing obviously more staff were needed and more staff have been provided. More money was needed and more money has been provided. The inspector set a programme for the prison to enact. The Home Office has set management tasks for the prison to meet and has set dates by which those tasks must be met.
Lord Richard: My Lords, I am sorry to press this point—
Noble Lords: Order!
Lord Richard: My Lords, I hope I may make this point and then I shall willingly shut up and give way. I wish to ask the Minister a relatively simple question. Is she criticising the way in which Holloway has been run? Is that what she means by ascribing a fault to management because, if so, she ought to say so?
Baroness Blatch: No, my Lords. I said that often the problems in prisons have something to do with management in prisons. Anyone who has a supervisory position in a prison has a management responsibility. When the inspector returns to the prison he will expect that what he has asked to be achieved will have been achieved. The Home Office will also expect its targets to have been achieved by the management of the prison.
Lord Hailsham of Saint Marylebone: My Lords, has my noble friend seen the rather disquieting reports in the press about the shackling of women inmates and about the treatment of women who are about to give birth?
Baroness Blatch: My Lords, I have seen those reports. It is true that the handcuffing of prisoners was applied unequally. It was applied in a more lax way to women prisoners and in a more serious way to male prisoners. The result was that more women prisoners escaped. The policy now is that handcuffing is applied equally to both sexes.

Noble Lords: Oh!
Baroness Blatch: My Lords, I would say to the noble Baronesses opposite that the exception to that policy is that women are not handcuffed when they are actually giving birth. However, when prisoners are being transferred from one prison to another and even when they are being transferred to hospital they are made secure by handcuffs.
Baroness Williams of Crosby: My Lords, is the noble Baroness aware that, as far as I am aware, only women give birth or breast-feed and therefore equal opportunities to shackle them do not seem to exist in this case? Will the Minister please look closely at the necessity for this? When a woman is about to give birth she is unlikely to try to escape; and the same is true if she is breast-feeding. As a former Minister for prisons, I would add that it was not necessary to follow that policy in the past. Can the Minister tell us why it is necessary to follow it today?
Baroness Blatch: My Lords, I said that women prisoners are not handcuffed when they are about to give birth. That is the exception to the equally applied policy. I also said why it is necessary to have an equal policy for handcuffing with the exception of prisoners being attended to medically; and that is because more women were escaping as they were not handcuffed in situations where male prisoners were handcuffed.
Lord Elton: My Lords, given that the Question has gone much wider than that on the Order Paper, may I bring it back to Holloway, which is closer to the Question on the Order Paper? I suggest that my noble friend was extremely wise—she was supported by most of your Lordships—to resist any attempt to make her give a judgment on a developing situation in a prison on which a report is expected but has not been completed. The proper time to make a judgment is when the report has been completed.
Baroness Blatch: My Lords, I am grateful to my noble friend for that comment. The responsibility for conditions at Holloway will be very much a matter for the Home Office, the Prison Service and indeed for Holloway Prison itself. We would be wise not to discuss the details of that until the inspection report is made public.

Former Yugoslavia: Human Rights
3.16 p.m.
Lord Judd Lord Judd asked Her Majesty's Government:
What action they are taking to ensure that human rights are central to the reconstruction plans for former Yugoslavia.
Lord Chesham: My Lords, the London Conference on 8th and 9th December underlined the relationship

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between the fulfilment of commitments in the Dayton Peace Agreement. These include observance of the highest standards of human rights and the readiness of the international community to commit financial resources for reconstruction and development. It also created a human rights task force in Sarajevo, to be chaired by the High Representative or his deputy, to bring together the organisations and agencies involved in the implementation of the peace agreement.
Lord Judd: My Lords, does the Minister agree that in view of this important commitment to human rights, conditionality in the availability of aid for reconstruction should be central in our policy towards former Yugoslavia? Can he tell us what benchmarks will be put in place to measure progress towards the fulfilment of human rights and who will have responsibility for monitoring progress? Specifically in terms of the role of the World Bank in the reconstruction, as the World Bank is charged by its articles of agreement to operate on economic criteria alone, what ad hoc arrangements can be made to ensure that it is looking to the fulfilment of human rights too?
Lord Chesham: My Lords, I shall try to cover those points. The new constitution of Bosnia and Herzegovina guarantees all the people the highest level of internationally recognised human rights and fundamental freedoms as set out in the European Convention for the Protection of Human Rights and Freedoms. The Dayton agreement creates a commission on human rights to safeguard the rights guaranteed by the constitution. The commission has two parts: an ombudsman and a human rights chamber. I have further details if the noble Lord requires them. The World Bank will be in the lead as regards reconstruction. However, it will be advised by the steering board which will provide political guidance for the World Bank programme. The EU clearly has an important role to play together with the World Bank and with other donors such as the US, the OIC and Japan.
Lord Boyd-Carpenter: My Lords, is my noble friend aware that this is a country in which human rights have never been accepted and honoured except, paradoxically, when there was a communist dictator in the person of Marshal Tito?
Lord Chesham: My Lords, my noble friend may well be right. However, what we are trying to do is to make sure that it has excellent human rights from here on.
Lord Avebury: My Lords, with regard to the prosecution of war criminals, have the complaints of Judge Goldstone regarding the availability of resources and regarding UN bureaucracy obstructing his work been fully resolved? Is he satisfied that the mechanisms of war crimes prosecutions can now proceed rapidly so that all those responsible for atrocities will be brought to court and punished?
Lord Chesham: My Lords, the Government strongly support the tribunal. We believe that those responsible for atrocities should be tried and will be taken to task.
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We have done more than most. In addition to co-sponsoring the resolution setting up the tribunal, we have given financial support, donated equipment, seconded staff and provided valuable evidence to the prosecutor's office.
Lord Beloff: My Lords, does the Minister not agree that preparatory to having a trial it is necessary to have possession of the accused? Is it not a fact that NATO has been given a very vague assignment as to the arrest of alleged war criminals? Could that assignment be made more precise?
Lord Chesham: My Lords, I thank my noble friend for that question. IFOR's prime role is the separation of the forces and monitoring of the military arrangements. However, the North Atlantic Council has authorised IFOR to detain those persons indicted by the War Crimes Tribunal with whom it comes into contact in the execution of its assigned tasks in order to ensure the transfer of those persons to the tribunal.
Lord Kennet: My Lords, the noble Lord mentioned in the course of his answers the role of the High Representative in this matter. Can he make it clear to the House whose High Representative he is, and towards whom or in what company he is the representative? Normally one represents somebody else to a third party or in a third assembly or party.
Lord Chesham: My Lords, I certainly can. The main roles of the High Representative will be to co-ordinate the activities of the organisations involved in civilian aspects of the peace settlement, for example, the OSCE, United Nations High Commissioner for Refugees and the World Bank. He is also to consult with those heading the NATO operation to ensure the efficient co-ordination of civilian and military efforts. The Dayton agreement provides for joint civilian and military structures.
Lord Judd: My Lords, can the Minister clarify whether aid for reconstruction, both bilateral and multilateral and including that from the World Bank, will be available on the basis of demonstrable progress towards the fulfilment of human rights? If it is to be dependent upon demonstrable progress towards the fulfilment of human rights, how will that be established?
Lord Chesham: My Lords, yes it will be. The World Bank will be advised by the steering board which will advise on the progress towards human rights in respect of political aspects. The World Bank will be required to take that advice into account when funding reconstruction.
The Earl of Sandwich: My Lords, is the Minister aware that the international church agencies met recently in Skopje to discuss reconstruction and that psychological rebuilding is regarded by the Churches as of equal importance? Can the Minister reassure the House that donor governments will give that equal emphasis?
Lord Chesham: Yes, my Lords, I certainly can.

Electricity: Supply and Demand
3.23 p.m.
Lord Dubs Lord Dubs asked Her Majesty's Government:
What action they have taken to prevent a collapse in electricity supply as almost happened on 19th July and 17th November.
The Minister of State, Department of Trade and industry (Lord Fraser of Carmyllie): My Lords, there was no need for the Government to take any action as there are long-standing procedures in place to deal with events of this kind. They proved effective, as at no time was electricity supply even near collapse on the dates in question.
Lord Dubs: My Lords, does the Minister not understand that we came within a hair'sbreadth of losing electricity supply on two occasions this year—and that at a time when the weather was not cold and there was no need to assume that the system was going to break down? Is not the problem that the pressure for profits on privatised industries means that there is not adequate investment and that the future safety margin between peak demand and supply is getting dangerously thin?
Lord Fraser of Carmyllie: My Lords, I cannot accept that. I certainly do not accept that there was anything like the crisis that the noble Lord seems to believe. To find that we were something like 0.38 of a herz below the minimum for three minutes 20 seconds hardly seems to me to indicate a massive breakdown of the system. It is important that there should be a proper balance and as reasonable a prediction as possible of the balance between demand and supply. Otherwise the effects would feed through to consumers, and electricity prices would rise. I am sure that the noble Lord will also appreciate that one does not want to take the risk of creating any unnecessary environmental pollution.
Baroness Gardner of Parkes: My Lords, does the Minister agree with me that this Question is alarmist in nature and quite unwarranted? Is he aware that when I was a member of the London Electricity Board before privatisation we had a total loss of power due to a major breakdown, when the whole of the City of London lost power for just under four hours? Had that breakdown lasted for four hours, every firm in the City except one would have lost material on their computers. However, in this instance the loss of power lasted only three minutes 40 seconds. Does my noble and learned friend agree that since privatisation the grid has controlled the electricity supply very well and operates most efficiently and competently?
Lord Fraser of Carmyllie: Yes, my Lords. I am grateful to my noble friend for her remarks, which are clearly based on experience. The precise concatenation of events which occurred when the interconnector failed and another generator failed to come off within seconds of each other was beyond reasonable prediction. Indeed the performance of the grid since privatisation has been remarkable. The number of incidents involving loss of
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supply to consumers declined from 14 in 1987-88 to eight in 1994-95, and the duration of those breakdowns was shorter.
The Earl of Halsbury: My Lords, is it not a standard problem in all public utilities that one must decide whether one is going to plan for the most extreme conditions in 25 years, 40 years, 50 years or 100 years, and that if one does not take it to the latter extent then once in 100 years one will be caught short?
Lord Fraser of Carmyllie: Indeed, my Lords. There has to be a basis for making reasonable predictions. It is for the National Grid, as best it can, to make that prediction. I understand that it makes a calculation on a day-to-day basis. There will be times when a number of events coincide which make it extremely difficult to meet those demands. I emphasise that on the two occasions that have been highlighted there was no loss of power to consumers.
Lord Ezra: My Lords, while it is satisfactory to note that there were no serious consequences on the two occasions referred to in the Question, nonetheless it raises the issue of who is ultimately responsible for ensuring that adequate supplies of electricity are available. Does the noble and learned Lord recall that under the Electricity Act 1957 that duty was squarely placed on the shoulders of the CEGB? In present circumstances, is it the responsibility of the regulator, the National Grid Company, the regional electricity companies or the generating companies? Is the situation not a little confusing in that respect?
Lord Fraser of Carmyllie: No, my Lords, I do not believe that it is confusing. There are clearly set out duties upon the grid, the suppliers and the director general. The noble Lord should not allow the ghosts of Christmas past to haunt him. The lights are not going to go out this Christmas. As he reflects on the new year, he may wish to reflect that in the course of the next year, because of the success of the new National Grid, he will receive a bonus of some £50.
Lord Marlesford: My Lords, did not the noble Lord, Lord Dubs, put his finger on the crucial point when he referred to privatisation, namely, the level of investment? However, did he not get it wrong, because it is a simple fact that in the private sector the industry is able to call on private capital, which is not in short supply as is seen by the scramble to invest in the electricity companies, whereas when it was in the private sector the industry had to compete with everything else, which made it much more difficult to have a decent electricity service?
Lord Fraser of Carmyllie: My Lords, my noble friend makes a very good point. I understand that there is a view that there might be greater opportunity for generating provision in the south of the country. There is clearly now a much better prospect of that being achieved as privatised companies have access to the equity markets.

Dangerous Dogs (Amendment) Bill [H.L.]
The Principal Deputy Chairman of Committees (Lord Tordoff): My Lords, I beg to move the Motion standing in the name of my noble friend the Lord Chairman of Committees.
Moved, That, as proposed by the Committee of Selection, the following Lords be named of the Select Committee on the Bill—

L. Birdwood,

L. Butterworth,

E. Grey,

B. Mallalieu,

V. Simon,

L. Templeman (Chairman),

B. Warnock;

That the Minutes of Evidence taken before the Committee shall be printed and, if the Committee think fit, delivered out;
That the Committee have power to appoint specialist advisers;
That the Committee do meet on Monday 15th January 1996 at a quarter-before five o'clock.—(The Principal Deputy Chairman of Committees.)
On Question, Motion agreed to.

Litigation and the Professions
3.30 p.m.
Lord Cocks of Hartcliffe Lord Cocks of Hartcliffe rose to call attention to the increase in litigation and the consequences for the professions; and to move for Papers.
The noble Lord said: My Lords, on 6th November of this year the House discussed breast cancer screening. It was put to the Minister that while 250 specialist units were needed, only 170 specialist care nurses were available—and would more money be put to that cause? I thought to myself that we were talking as though there were some great supermarket where cancer care nurses sit on the shelf waiting patiently until they are required. That is hardly the case. Everyone who enters the profession makes the deliberate choice that that is the way in which they wish to serve the community. The burden of my case is that the growing threat of litigation is proving a serious deterrent to people who wish to enter the caring services. I say straight away that I have no wish to protect incompetence; and I have no wish to make any party political points. The issue is so all-embracing and serious that it must be discussed in an entirely rational and objective manner.
We are all aware of the situation in the United States. One of the great pleasures of going to the United States is to hear all the jokes which are constantly retold about lawyers. My favourite is this: why is all the high-level nuclear waste in New Jersey, whereas all the lawyers are in Washington? The answer is that New Jersey had first choice.
There is a serious side to this. At random I have chosen a few articles to illustrate the point. First, the
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Daily Telegraph on Wednesday 1st February 1995 states:
"A group of British smokers has been granted legal aid to sue the tobacco firms. Robert Hardman fears we are following the US on the path of litigation lunacy".
Next, the Independent on Sunday on 21st May 1995 states:
"America seeks to curb litigation frenzy—as Britain catches it".
My last example is from the Sunday Times of 12th November of this year which states:
"Huge legal suits threaten US firms. Litigate and make your fortune".
Perhaps I may refer to the marketing of this aspect. The Financial Times on 8th July 1994 published the results of a survey by KPMG Peat Marwiick forecasting that there would be a large increase in the amount of litigation business,
"in the property, construction, banking and fraud sectors … and personal injury".
The survey stated that one reason for the growth was the increasing awareness of litigation opportunities, partly because of marketing by lawyers. I have already drawn the attention of the House to an appointment card that I received from a hospital on the back of which was an advertisement by solicitors asking whether people who felt that their treatment was not entirely satisfactory wished to contact them in order to take the matter further. In a local paper on 9th November 1995, Lloyd & Associates, Solicitors, asked:
"Have you been injured in a traffic accident, at work, tripping or slipping? Have you received negligent service from a bank, accountant, doctor, builder or other professional?".
The advertisement offers a free half-hour interview.
I believe that it is a serious and growing situation. We have all been aware for some time of the grave difficulty of enrolling people into the specialisms of obstetrics and gynaecology. However, a survey in the Doctor, the weekly newspaper for the medical profession, of 7th December, states:
"Quality candidates for partnerships are increasingly scarce … When does a deteriorating recruitment problem in general practice become a crisis?".
It gives alarming figures. In another place a Question was asked which elicited a reply reported in the Daily Telegraph of 18th December. The article states,
"NHS 'forced to employ more locums'",
and refers to junior doctor vacancies and unfilled consultant posts and generally gives a black picture.
I hope that the answers will not be used to berate the Government over the shortage of general practitioners because I do not believe that there is very much they can do about that. People are still attracted to medicine but they shy away from the sections where there is a lot of patient contact. The more contact and exposure there is with a large number of people, the greater the probability that sooner or later some sort of trouble will lead to litigation.
We are all aware of the growth in defensive medicine and the way in which tests for the most obscure possibilities are multiplying in order to protect the doctor or specialist against possible legal action. There seems to be a growing attitude in society that if

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something goes wrong someone must be to blame. That is compounded by the constantly rising expectations which society now has. General practitioners are extremely exposed in their situation and are becoming increasingly anxious.
It is also becoming more difficult to recruit nurses. Nurses find themselves having to write more and more voluminous reports instead of attending to patient care. Those reports become more and more detailed in order to include every possible factor which might be required in the event of legal action. I heard a similar remark from a dentist recently that more and more time is having to be spent on writing up reports. People are constantly looking over their shoulders, worrying all the time.
Those factors apply to medicine which is probably the most clear example. However, the problem also spreads into education. The teaching profession is becoming increasingly alarmed. Litigation within schools is increasing and is seen as a real threat to both class teachers and senior management. At present it is used as a threat and as a way of intimidating, almost bullying, staff to concede points to angry parents and children. "Do as I say or I shall sue you", is the tenor of the remarks. Children and parents know that one can sue staff, even if they are mostly unclear about what and about how to do it—although no doubt more and more solicitors will be only too keen to advertise that their services are available. At this stage the threat is rarely carried out, but I am sure that if matters continue as they are there will soon be a change for the worse.
The fear of litigation is real for all staff in schools, partly because it involves the law, with which most staff are not conversant, and the accompanying threat of media coverage. If we do not do something, that fear of litigation will spoil the climate in our primary and secondary schools.
Let us take the social services departments of our local authorities. Staff are becoming much more nervous than a few years ago. An atmosphere of fear and uncertainty is building up. Staff are concerned all the time with the allocation of finite resources so they have to make choices. People who are left out of various aspects become disgruntled. Therefore every time staff allocate those resources they are at risk that somebody left out will become resentful.
We know of the child protection cases—staff are between the devil and the deep blue sea. If they do not do something in some cases they are heavily criticised. If they do something in other cases they also attract criticism. Again, one has a large group of desperately needed people in society who are looking over their shoulders all the time and worrying.
Accountants have recently been shaken by the Binder Hamlyn case involving £105 million. Architects and the construction industry are also worried. Litigation in the construction industry is inevitably expensive, not least due to the multiplicity of participants and the difficulty in establishing complicated issues of fact which brings about an apparent need for vast numbers of expensive
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expert witnesses. It is frequently, therefore, a cost-led activity, with sometimes unworthy, potentially costly claims being made as a ruse to thwart worthy but less expensive ones. It even spreads to surveyors, where there is a growing trend for clients to threaten legal action, not only to recover damages arising from professional negligence but also to extract work from an under-resourced consultant.
Even the voluntary agencies are not exempt. Let us consider an organisation like St. John's. We are all familiar with the uniformed figures who stand-by at functions in case anyone is taken ill. When they are on duty they may treat a casualty in good faith, but at the end of a case they may finish up as the target for legal action. Such threats are always at the back of their minds. We are becoming an introverted and egocentric society.
The example to the rest of the world is not good. I recently purchased a copy of the magazine The Big Issue and, like all noble Lords, allowed the vendor to keep the change. The issue of 27th November to 3rd December contains an article headed
"Doctors use Pill disclaimer" which states:
"A medical practice in County Durham is asking women who want to continue using combined contraceptive pills following last month's health scare to sign a disclaimer saying that they accept the risks involved".
The form is admitted to be some sort of protection,
"against litigation in the future".
The point about that is that we are constantly pressing the developing world to do something about their population problems. We tell them that it is their responsibility to use contraceptive methods. Yet here we are—one of the most widely-used methods is coming under query. If we go to such countries and say, "Use this method", they will reply, "But in your own country people have to sign a form saying that there is no legal responsibility on the person who prescribes it". That is another form of neo-colonialism: we try to get people to do something while at the same time putting up our own defensive barriers.
I have referred to that in the past on the subject of energy. Having for two or three centuries used fossil fuels and created the most appalling pollution, and having built up a standard of living on that basis, we are now trying to lecture the rest of the world on not using fossil fuels and finding substitutes because of the greenhouse effect. That is another form of neo-colonialism. If we are not careful about that kind of thing, we shall create a situation in which the rest of the world is extremely resentful because it will not be a case of "Do as I do" but "Do as I say".
I can offer no solutions today. However, I am grateful to those who have listened to me because I believe that this is one of the most serious problems which faces our society today. I beg to move for Papers.
3.43 p.m.
Baroness Hooper: My Lords, the subject of the Motion before us affects all professionals, as the noble Lord, Lord Cocks, indicated. Most recently, chartered accountants have been under fire in a big way, but even

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lawyers themselves are under threat. Like the noble Lord, Lord Cocks, I wish to concentrate my remarks principally on health issues and the medical profession in particular. In doing so, I must declare an interest as a non-executive director of the Medical Defence Union.
The MDU is a professional association which provides doctors, dentists and other healthcare professionals with advice and assistance in medico-legal matters arising from clinical practice. One of its main functions is to support members who are sued under tort law for professional negligence and to pay legal costs and damages awarded against them. So there is a real interest in the subject of the debate.
In deciding to speak to the terms of the Motion of the noble Lord, Lord Cocks—and I should thank him for tabling it and for introducing the debate as he did—I sought some facts and figures from the Medical Defence Union. It is true that year on year we have seen a 10 per cent. increase in the number of claims made and a 5 per cent. increase in the amount of costs claimed. Earlier this year, my noble friend Lady Cumberlege stated that the Department of Health is seeing an increase in the number of cases brought to court and in the amounts of money now being awarded through court action. She stated that, although 96 per cent. of the cases brought were settled out of court, the sums are increasing alarmingly. In the past three years they have risen from awards amounting to some £60 million to £125 million. The burden on professionals to insure adequately has therefore greatly increased.
But far worse, I believe, is the effect on the morale of medical and dental practitioners, to which the noble Lord, Lord Cocks, referred. The danger of drop-outs from the profession is great and there is evidence to show that there is a direct correlation between drop-outs and complaints brought. Even worse, there are non-entrants into certain high risk categories of medical practice. There is also the danger that doctors and GPs in particular will go in for defensive medicine. Since primary-led healthcare is the first of the six National Health Service priorities in healthcare, it is to be deplored if GPs, instead of making decisions, refer patients to hospitals or play safe rather than taking risks, albeit based on professional expertise and judgment.
Clearly one would not wish to dispute that patients have rights and I was all in favour of the Patient's Charter. I am in favour of the efforts of the Department of Health to provide more easily accessible and streamlined complaints procedures. We must have a little more evidence of the results to see how the procedures work.
The noble and learned Lord, Lord Woolf, is currently conducting an inquiry into medical negligence and I believe the report is due out in its final form next year. The inquiry is exploring various ways of finding alternatives to court action. As I understand it, there have been considerable consultations with agreement on the need to find alternatives to court action. It is well known that at present many patients sue, particularly for small amounts, when what they most want is explanations, a proper hearing of their complaint and
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perhaps an apology. They do not usually receive any of those. What they get is a long and exhausting hassle, sometimes with money at the end of it. We need effective and useful alternatives to litigation and I hope that the Woolf Report in its final form will be helpful in that area.
Another issue has affected the number of complaints brought. The noble Lord, Lord Cocks, touched on it and it is the issue of legal aid. The vast majority of clinical negligence cases are brought by people entitled to legal aid and the number of legal aid certificates issued for clinical negligence cases in 1994-95 was, I understand, 8,167. That apparently represents a 7 per cent. increase over the previous year. Although not all certificates issued resulted in cases coming to court, there is a very important point to bear in mind in relation to legal aid proceedings; namely, no costs may be awarded to the defendant, even if he or she is successful. I shall be very interested to hear the views of my noble and learned friend the Lord Chancellor in the light of the work that he has been doing in the area of legal aid.
To return briefly to the Woolf Report, I understand that the noble and learned Lord may advocate a fast-track procedure for medical negligence claims. I question whether it is desirable that issues concerning professional reputations should be decided without the facility to call oral factual and expert evidence. I was asked to make that particular point in this debate, and I think it will be well understood.
Finally, I raise the issue of the role of judges in relation to the awarding of damages. Again, I ask my noble and learned friend the Lord Chancellor: what sort of guidelines exist, and what sort of method may be applied to try to avoid some of the excesses of the United States, to which the noble Lord, Lord Cocks, has already referred?
In summary, it is absolutely necessary to get the right balance between the rights and needs of consumers in relation to whichever branch of the profession is under fire and the need to have proper and expert advice and practice from the professional.
3.52 p.m.
Lord Ackner: My Lords, I hope that the noble Lord, Lord Cocks, will forgive me if I describe him as enigmatic. I do so for the following reasons. On 5th February 1990, on the occasion of the sixth day in Committee on the Courts and Legal Services Bill, Clause 44 provided for what is known as conditional fees, speculative litigation, contingency fees, or whatever one wishes. The noble and learned Lord, Lord Rawlinson, moved that that clause should not stand part of the Bill. There was a detailed debate, during which seven Law Lords, the Master of the Rolls, the former Lord Chancellor, my noble and learned friend Lord Hailsham of Saint Marylebone, and the former Attorney-General, the noble and learned Lord, Lord Rawlinson, all spoke in favour of his Motion. The Motion that the clause should not stand part of the Bill was defeated, in some measure due to the noble Lord, Lord Cocks, who voted with the Government for that clause to stand.

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It may be that the noble Lord did not appreciate what might be the consequences. But that particular defence, if that is the right way to describe it, could not have existed after 7th February 1995 when, as the noble Baroness, Lady Hooper, just mentioned, there was a Starred Question concerning medical negligence. It was tabled by the noble Lord, Lord Campbell of Croy, who raised the question:
"Is it correct that claims are increasing in number, not because there is more negligence but because more of the public are now inclined to enter into litigation following a trend in the United States?"—[Official Report,7/2/95; col. 97.]
The noble Baroness, Lady Cumberlege, answered:
"We are seeing an increase in the number of cases brought to court and the amounts of money that are now awarded through court action. We do not believe that there is an increase in clinical accidents".—[col. 97.]
The 96 per cent. of cases settled out of court referred to by the noble Baroness, Lady Hooper, was specified.
The noble Lord, Lord Cocks, took part in exchanges on the Starred Question. He complained about the advertisements that solicitors were inserting in newspapers with a view to obtaining retainers to litigate on behalf of persons anxious to sue hospitals.
After the intervention by the noble Lord, Lord Cocks, I said:
"does the Minister accept that the position will be exacerbated when the Government allow the practice which has hitherto been prohibited—the contingency fee system—which will exacerbate the enthusiasm of lawyers to take up cases and bring them forward, particularly in the field of personal injuries?"—[col. 98]
The noble Baroness, Lady Cumberlege, who did not have notice of the question, very wisely said:
"that is something that the Government need to consider".
So the noble Lord, Lord Cocks, was well aware of that trend.
Therefore, it becomes the more surprising, when on 12th June this year (some six months ago) I sought to amend a draft order which the Lord Chancellor laid before the House to implement the speculative litigation, that the noble Lord should vote in favour of the order. The gravamen of my submissions was that the Lord Chancellor's proposal that a lawyer should be able to double his fees—a mark-up of 100 per cent.—where he succeeded on behalf of a client, was excessive, and that it should be no more than 20 per cent., which was the Lord Chancellor's second thought (his first thought had been 10 per cent.); or alternatively that, in order that the whole of the damages that might be recovered should not be eaten up by the 100 per cent., a cap should be put on the damages that could be recovered as 20 per cent.
We lost that amendment by only five votes. One of the votes against us was that of the noble Lord, Lord Cocks. We should have won that Motion if the Opposition Front Bench had been prepared to follow their troops into the Lobby through which they urged them. But apparently, by some strange precedent, that is not done. I do not blame the noble Lord, Lord Cocks, for that, but I do find it strange that he should be railing against the increase in litigation when so much of it at the moment is—and so much more will be—caused by speculative litigation.
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The noble Lord referred to the building industry. At the present moment the conditional fee is permissible only in regard to personal injuries, insolvency matters (I believe), and matters in the European Court. But from a logical point of view there can be no basis for stopping the extension of speculative litigation into the field of construction work.
The Law Commission, whose views are usually respectfully followed by the Government, was not asked for them on the Green Paper on speculative litigation published in 1989. It therefore took the initiative of providing them without being asked. It was hostile to the whole concept of speculative litigation. It recounted the recommendation and observations put in by the official referees—who, as noble Lords will know, are the judges who deal with the complex building industry litigation. The official referees said:
"We think that architects, engineers and surveyors, also doctors and other professionals, could be particularly vulnerable to claims brought or threatened on a contingency basis. The damages recoverable in most construction cases would make receiving a proportion of them attractive, while for the professional, even to report the claim to his insurers will probably result in an increase in his next premium. In consequence, however strong the professional's case, he might think it expedient to make a 'nuisance payment'; if the professional goes to his insurers and the action shows signs of being fully contested, with large costs involved, a speculative solicitor can always advise his client to discontinue".—[Official Report, 5/2/90; col. 536.]
It will be said that that is all water under the bridge. The policy of allowing speculative litigation in the manner permitted at present has been approved by Parliament. But in my submission that is not a situation in which one sits back and does nothing. The purpose of the rule against speculative litigation, which made speculative litigation agreements unenforceable as being contrary to public policy, was twofold: first, to prevent the exploitation of the litigant; and, secondly, to promote the interests of justice.
The question therefore remains: how does one ensure that the consumer is properly protected? That was a matter very much uppermost in the mind of the Lord Chancellor's very own Advisory Committee on Legal Education and Conduct. It has been strongly at odds with the Lord Chancellor with regard to his 100 per cent. uplift policy. It went public about that on the basis that it was a statutory committee and should tell the public how it felt.
In a lengthy letter to my noble and learned friend in April 1995, my noble and learned friend Lord Steyn, the Chairman of that committee, dealt with, inter alia, the question of monitoring. He wrote:
"Given the novelty and potential risk for the litigant inherent in setting up a system of conditional fee agreements, the committee remains concerned that there must be effective monitoring of the results. The need for effective monitoring would be even greater if, contrary to the committee's advice, you"—
that is my noble and learned friend the Lord Chancellor—
"were to permit a maximum uplift to 100 per cent. The committee does not believe that monitoring will be effective if it has to rely on a sample which may well be unrepresentative. The committee believes that it should be possible, given co-operation between the professional bodies, to require registration of every case with the Law Society, for example, without requiring the disclosure of the parties' names".

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A separate letter dated 7th April 1995 to my noble and learned friend's department set out, with some particularity, the information which should be provided. That included the type of proceedings to which the agreement relates; the legal representative's estimate of the chances of success, the legal representative's estimate of the amount of damages; the extent of percentage uplift on fees and expenses specified; any variation subsequently made to the agreement; the outcome of the proceedings; the actual amount of damages, if any, recovered on behalf of the client; the amount of the legal representative's fees and expenses, less any increase; and the amount of the fees and expenses paid by the client under the agreement.
I understand that research on a fairly moderate scale will be funded, because all that is being provided by way of grant from the Lord Chancellor's Department is some £20,000. It will be carried out by the Policy Studies Institute. It does not involve any follow-up. It is based merely upon a sample. I would submit that that is quite inadequate.
I have the impression, because monitoring was not something which was offered by my noble and learned friend the Lord Chancellor in response to the fairly firm criticism which was made in the debate in June, that monitoring is not taken at all seriously. In that debate, the Lord Chief Justice described the legitimation of such speculative litigation as letting loose:
"an alien creature in our justice system".—[Official Report, 12/6/95; col. 1559–60.]
I should have thought that that fully justifies monitoring and I would suggest monitoring not only from the point of view of the litigant himself—the consumer—but from the point of view of the defendant in order to see to what extent there is an abuse against a professional because of the threat which exists where one finds a solicitor prepared to take up speculative litigation.
4.7 p.m.
Lord Colwyn: My Lords, I should like to thank the noble and enigmatic Lord, the noble Lord, Lord Cocks, for introducing this debate this afternoon. I should also like to express some sympathy for my noble and learned friend the Lord Chancellor. The debate has tended to become slightly medical and therefore I too shall confine my remarks to the practice of medicine and dentistry. Here I must declare an interest. As well as being a practising dentist, I am a council member of the Medical Protection Society. That is a mutual defence organisation which has 82,000 members practising in the United Kingdom and 150,000 members throughout the world. I am also chairman of Dental Protection, the dental defence scheme, which has 35,000 dental members in all parts of the world. I am an adviser on both medical and dental cases committees.
When we talk about professional negligence, we are not discussing a new phenomenon. The first reported malpractice case in English law occurred more than 600 years ago. The MPS (Medical Protection Society)
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has been in existence for over 100 years and is run exclusively by doctors and dentists in order to protect and safeguard the interests of their colleagues.
A classic definition of negligence, as stated in the case of Donaghue v. Stephenson in 1932, is the omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or something which a prudent and reasonable man would not do. The noble and learned Lord, Lord Denning, stated that in order to test whether an error of judgment by a professional person amounted to negligence:
"You ask the average competent and careful practitioner: is this the sort of mistake which you yourself might make? If he says, 'Yes, even doing the best I could, it might have happened to me', then it is not negligent".
From that judgment flows the test standard of whether a doctor or dentist has been negligent in diagnosis, advice and treatment: is it that of the reasonable practitioner of similar training and experience? That implies that the standard of care demanded by the profession is not static but changes with the state of the art at the material time and must keep pace with changes in medical practice and technological advances.
The noble Lord, Lord Cocks, warned us that the increase in litigation may well prevent many would-be surgeons, doctors and dentists from entering the professions. However, I am informed by the specialists at the Medical Protection Society that there is little evidence for this.
It is worth remembering that the surest way of reducing the incidence of claims is to improve the standard of delivery of healthcare. Public perceptions are of considerable importance. The belief of the hospital, health authority or medical and dental staff that they are providing a superb clinical service will count for little if the public perception in the community is of a poor standard of service.
Good communications remain of considerable importance if serious inroads are to be made into the level of complaints and claims. The hospital or health authority must do its best to create an environment conducive to the provision of caring and competent healthcare provided in an atmosphere of sympathetic understanding, kindness and tolerance in dealings between staff and patients. Communication is a two-way process and requires that the practitioner has time to listen to what the patient wishes to tell him or her.
The noble and learned Lord, Lord Donaldson, said in the inaugural address to the Professional Bar Association in April 1991:
"There are very few professionals who can honestly claim that they have never made any negligent mistakes, usually it has been put right before the damage occurs but whether this is or isn't the case is largely a matter of pure chance".
One reason why patients are becoming more litigious is that there are many hungry lawyers, some of whom actively encourage their clients to litigate and others who advertise for likely clients. Noble Lords will be aware of that from the popular press. We heard from the noble Lord, Lord Cocks, about the advertising on

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appointment cards, and I am aware of groups of lawyers who are actually setting up offices within hospital premises.
Sadly, the volume of claims may be nowhere near the actual number of incidents. Studies in a large American hospital found that only one person in 65 injured by the negligence of a health worker went on to seek compensation. A study by the Harvard Medical Group found that only one person in eight made any claim. The Journal of Clinical Pathology, in 1991, wrote,
"All adult deaths at Peterborough District Hospital over a six month period were examined for discrepancies between clinical and pathological findings and for performance as judged by clinicians. 80% provided additional information, unsuspected diagnoses were found in 30% and in 13% the cause of death was 'completely wrong'".
The Journal of the Royal Society of Medicine in 1991 wrote,
"Monthly audit meetings of the surgical unit at Southampton identified 89 'avoidable' deaths over 10 years".
The question may be asked whether malpractice litigation has improved the quality of medical and dental care. No one can answer that question with any degree of certainty. It is difficult to see how the threat of malpractice litigation could result in the professional using less care than he would otherwise exercise. However, it is realistic to believe that the threat of being called to answer for wrongful conduct might have a salutary effect on practice. It certainly has a salutary effect on the practitioner. I remind noble Lords that in a practice span of 40 years, doctors and dentists can expect to be accused of negligence at least two or three times. That does not mean that they acted negligently; but even the accusation can be worrying. It is in that context that I prefer to think of negligence in terms of the concept of avoidable harm. If a patient is harmed and it was avoidable, then, if proved, that is called by lawyers "negligence" and the patient is compensated, usually in the form of money. In many ways the accusation of negligence to a professional person is as potentially damaging as the negligent act itself.
Prior to the introduction of Crown indemnity in 1990, defendants were in a much stronger position than plaintiffs, with a small number of competent lawyers—together with the defence organisations—handling claims. After the introduction of Crown indemnity, each hospital or health authority started handling its own claims, which led to a dissipation of expertise. At the same time, the plaintiffs started to get their acts together and, generally speaking, were better organised than the defendants.
Before Crown indemnity, doctors were represented by their defence organisation which had control of the claim. After Crown indemnity, control of the claim moved to the employer. Though there was some disquiet among the professions, no real evidence emerged to imply that that system caused problems with professional reputations. The previous system, whereby doctors subscribed to a defence organisation, was unsustainable because of the ever-rising cost of belonging to the organisation.
Settlements in the NHS hospital sector are currently running at around £150 million per annum with outstanding liabilities—those that have been incurred
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but not reported—unknown, but estimated to be around £1 billion (about 2.7 per cent. of the total healthcare budget).
Noble Lords may be aware that the Government recently created a new scheme for dealing with that, the aim being to try to contain or reduce the costs of clinical negligence. It is called CNST—Clinical Negligence Scheme for Trusts. The Medical Protection Society, in conjunction with the insurers Willis Corroon, were chosen as the most experienced organisation to run it. The Government set up the NHS Litigation Authority which will be operational in January 1996. However, there are factors which may make the cost of clinical negligence even higher.
Conditional fees for lawyers which are likely to affect claims valued at less than £100,000 means that seven out of eight patients who do not currently sue, may now be tempted. In my view this "no fault" compensation will both increase the costs of compensation and the pressure on the professions. The experience in New Zealand has shown that, despite the "no fault" element, patients still want their pound of flesh and complaints have increased dramatically since its introduction in 1974. "No fault" is only about compensation; it is important to distinguish it from accountability issues.
Changes to the way in which special damages are calculated by the courts are likely to put up the cost of high value claims. Some of the proposals of the Woolf Inquiry, which appears to be very much plaintiff-driven, are likely to make it more difficult to defend claims and increase costs. The continuing government promotion of consumerism with patient's charters, details of how to complain and the Wilson inquiry, all carry a price tag in the form of increased numbers of complaints which may lead to claims.
It is prompt action which enables early settlement of many claims and I am uneasy that the introduction of allowing medical claims to be made to the ombudsman in the near future may be a further delaying factor. The fundamental principle of English claims is that the claimant is entitled to a once-and-for-all lump sum payment. In claims of maximum severity, such as brain damage, there are profound implications for health authorities and defence organisations where sums of between £0.5 million and £1.5 million may be involved.
There is some pressure to reform the law and structured settlements may have something to offer in that regard. Also, in the past five years or so, it has been possible for courts to make orders for provisional damages with a right for plaintiffs to return at a later date for supplementary awards depending on changes in circumstances. A move away from lump sum payments to annuity-type payments may be considered to be more just, despite the fact that such a system would lead to greater uncertainties in the funding of such awards.
The noble Lord, Lord Cocks, drew our attention to the increase in litigation. Nothing can be certain, but it seems unlikely that the appetite of the media and the knowledge of the public with its wish to understand and question the care that the medical and dental professions provide, will reduce.

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There is increasing pressure on the professions. The increase in litigation must demand higher standards, more openness and guarantees that the care and treatment that is received is appropriate and effective. Government changes to the legal framework are likely to increase numbers of claims and complaints over and above the amount that may be expected as a result of increasing consumerism.
4.19 p.m.
Viscount Bledisloe: My Lords, on previous occasions your Lordships have debated the effect of modern litigation on professions, particularly the accountancy and medical professions. Although those debates demonstrated a clear consensus in the House that there was a serious problem which was getting worse, on those occasions the Government seemed reluctant to do anything about it. I hope that today we are going to get better news.
The fact that there is a serious problem has been highlighted recently by the much reported case where every partner in a major firm of chartered accountants faces a massive personal liability not covered by insurance from a fault which was nothing to do with the principal partner but was the fault either of one of his partners or probably an employee in the firm. Today the noble Lord, Lord Cocks, has widened the scope of the debate to cover other professions, particularly the caring professions. The House will be very grateful to him for doing so. In the light of the wide scope of the debate my remarks will be somewhat random, though I shall not follow the noble and learned Lord, Lord Ackner, in his continuing and courageous battle on the topic of contingency fees. While he may well be right that they are liable to make the problem worse, I doubt that so far they have had much to do with the problem, and even without contingency fees the problem would be very serious.
In making my remarks I must declare an interest or, to be somewhat more accurate, I must declare two conflicting interests. First, I am a practising barrister who, in view of his total ignorance of the law, must be very liable to frequent claims for negligence. On the other hand, most of my practice consists of professional liability work, either suing or defending accountants and such like. Therefore, if my speech today is successful in curbing this danger, I shall be kicking myself in the financial teeth.
Although the malconsequences of this problem may manifest themselves differently in different professions, the problem is basically the same for all. There are two causes. First, as the noble Lord, Lord Cocks, said, there is a modern philosophy, or lack of philosophy, which says that whenever anything goes wrong someone must be blamed for it. That philosophy is undoubtedly fanned by the media, but it is now a general attitude. No longer when an operation is not a success does someone say that the doctor tried enormously hard but unfortunately it did not work. He says, "I wasn't cured', or, "I've got something else. Who do I sue? Who is to blame?". That theme is taken up by the press and so on.
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Secondly, the other basic cause is that the law of negligence has been extended to new fields and, in practice, whatever high and learned judges may say, the test of what constitutes negligence is now very low. When one examines, as cases now do, for many days a routine procedure which was conducted in as many minutes as the case takes days, it is very easy to find something which was not according to the rules or which, with the benefit of cold hindsight, does not seem to have been perfectly done, although at the time probably no one would have thought that there was anything wrong with it. Whatever the tests may say—that it has to be a shocking case where another professional would throw up his hands in horror—it is now very easy to prove negligence, or there is a serious risk that a professional sued for negligence will be found to blame, although at the time probably no one watching him doing it would have thought that he was doing anything wrong.
It is no good blaming the present state of affairs on lawyers, with the possible exception of the few ambulance chasers mentioned by the noble Lord, Lord Cocks. If the law is in a state where it gives a reasonable prospect of success to a plaintiff, it is the lawyer's job to advise him of that and do everything to pursue the case. Though it is always nice to blame lawyers for everything, one cannot blame lawyers for the fact that they advise their clients that they stand a decent chance of getting substantial damages, if that is the actual state of affairs.
The other problem is that when something goes wrong the professional man bears the massive brunt of the claim because he is probably the one person with either the insurance or the assets to pay the substantial sum. Therefore, even though he may bear only a small part of the fault, he may well find himself bearing all the damages, while the others who were much more at fault but have no readily available insurance or assets escape. The professional man is then sued. Not only does he have an enormous bill to pay but the highlight of the blame is on him. I suggest that it is only in the professions that we have this whole concept of a massive disaster falling upon one because of a single fault of a moment committed for the first time in one's life.
That treatment of professionals conflicts with the whole thinking of our treatment of others. The thesis of the criminal law seems to be that a first offender must not be sent to prison. Indeed, the first time that one's employee makes a mistake, unless it is a dramatic one, he cannot possibly be dismissed. In all other spheres of life one is to be helped over one's single first mistake, whereas the professional who makes a single mistake and all those who may be in partnership with him may find themselves struck with disaster because of it.
It might well be thought that this was a bleat that professionals would set up. But I suggest to the House that it is by no means solely a concern of persons who may be sued. Although some individuals receive substantial sums, the cost of those and of the claims is borne by the world at large. As the noble Baroness, Lady Hooper, pointed out, more and more awards mean higher insurance costs and those insurance costs are

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passed on to everyone—if it is a paid profession, directly in the fees, or if it is the National Health Service, in the cost to the taxpayer. We know of the example of the United States where, if you can get insurance at all if you are a professional, the cost is massive. In some states of America a GP pays as much in professional insurance as a GP earns in total in this country. That means that his fees have to be very high.
Secondly, that generates the entire prophylactic attitude, where the professional man finds himself doing things not because he thinks they are good for the client but because it says so in the rules and if he does not do it he may be sued. It encourages him to hedge and to avoid pursuing bold and clear conduct or giving bold and clear advice. It does not make a good professional operate better. Doctors do not say to themselves, "This patient will not sue me. Let's slash at this one any old how and get it over quickly". Lawyers do not say, "This client cannot sue me. I won't bother to read the papers". Professionals go into their professions to do their job well and they do not do it better because they may be sued.
Thirdly, there is the enormous time spent and the cost involved in the procedures which are designed to guard against a claim, such as filling in forms, recording and so on. People went into the professions to do the work of the professions and not to keep dreary records. Devoted and enthusiastic nurses like my young daughter find it very discouraging that a large part of their time is spent filling in pieces of useless bumf to be filed away in case some dreary lawyer comes along five years later and says, "You did not treat that case properly". They would much rather get on and do the job of nursing, which is why they went into the profession.
Then one is going to find more and more that people will not take responsibility. There is a strong feeling now that a person is mad to take a partnership in a firm of accountants: why not just be salaried and avoid the responsibility? It is no answer to say, "If they were not at fault at all, it will all come right in the end because the judge will get it right". There is an enormous amount of hassle, concern, worry and waste of time spent in dealing with such cases.
Another disadvantage is the sheer dilemma that one faces. If one is a social worker it must be difficult enough, if one believes that a child is being maltreated, to know whether the child should be taken away from its parents. If the child is taken away the parents may sue; if the child is not taken away and is injured, the newspapers may criticise and there may be a prosecution. That makes the decision of the social worker more difficult; I do not believe that it makes the decision better.
It has been suggested that where something has gone wrong very often patients simply want a sensible explanation and an apology, if that is appropriate—then one will find out what one's insurer will say if one has given a sensible apology to someone and it turns out that it is being used as evidence of one's liability!
The speeches today have demonstrated quite clearly that there is a problem, but it is fair to say that they have been pretty short on remedy. I see that the noble and
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learned Lord on the Woolsack is rather agreeing with that. I suggest to him, at least for serious consideration, some possible remedies. I suggest that the time has come to have a comprehensive review of the whole concept of the level and test of fault liability. I do not believe that we should switch to no-fault liability. But we should consider whether what is blameworthy negligence has gone too far and whether in practical terms the test of where one should be held liable should be raised.
Secondly, I urge on the noble and learned Lord a system for the limitation of liability to the levels of compulsory insurance. The professionals should be compelled to take out insurance at various levels if they practise in various fields and their liability should be limited to those levels.
Thirdly, I suggest that we should contemplate what I believe some Americans are contemplating—restricting the extent of a professional's liability to the extent to which he is to blame. If an accountant is 25 per cent. to blame and the directors are 75 per cent. to blame but have no money, why should the accountant bear more than 25 per cent. of the overall loss?
Finally, surely we need to do something to encourage a proper appreciation of the unsung work done by the professionals as opposed to homing in on the occasions when things go wrong.
4.34 p.m.
Baroness Gardner of Parkes: My Lords, when I was
a dental student we studied a subject called "dental jurisprudence". We were taught that if one became a general dental practitioner, one's responsibility was to do one's best for the patient within the limits of one's training and experience. If one was incapable of doing a specialist's job, then the patient should be referred to a specialist who had a greater responsibility.
That practice seems to have gone completely now. It now seems that everyone expects everything to be done perfectly all the time. The point has also been reached where none of us wants to accept responsibility for our own actions in life. There is the matter of pension advice, and the case of the man who tripped on Brighton Pier who said that the council should have displayed a notice; I believe that he was awarded£75,000. Whether or not it is because of television, we are all a little litigation-happy; we look to someone else to lift the problems off our shoulders and give us a nice cash handout. It is very worrying.
I am chairman of the Royal Free Hospital, which is the largest single-site teaching hospital in London; we receive a great many complaints each year: in fact, I encourage them. I do not look on them as complaints as much as feedback. One does not know that a person had difficulty getting to the lift unless that person writes in and says so. One does not know that someone did not like a sandwich. Some of the complaints are very easily dealt with. I believe that the noble Viscount, Lord Bledisloe, was very clear on that. Many patients are simply looking for a solution so that a particular incident does not happen again to someone else. They like to know, for example, that there is a porter near the lift to

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see people get in and out or that the freshness of a sandwich is checked. Many people's complaints fall into those categories and they are very easily resolved.
There are also some very serious complaints. Some of them are serious right from the outset, and clearly so. Every complaint made to the hospital is investigated. There may be a major issue, such as a case I know of where a patient was shot in the hospital by a contract killer. That required a full internal hospital investigation. I do not know whether such an incident has ever happened elsewhere in the United Kingdom. That occurred just before I took up my appointment as chairman at the hospital. There was a coroner's inquest because it was a major incident. All kinds of experts were required to give opinions and advice. I believe the police had their own inquiry: almost everyone had an inquiry on this matter. That is a rare incident that no one could have foreseen and, apart from the killer, no one could be blamed because nothing could be done.
However, if a similar case occurred and it came out at the inquiry that someone could have done something—for example, perhaps an operation was an hour late or the wrong blood was given—we would certainly wish to deal with that within the hospital straightaway. It might be that that particular patient had grounds for bringing an action.
What worries us very much is that in any litigation, under the rules of disclosure, the details of the internal inquiry of the hospital could be demanded by the other side. We are very worried about that because it means that there is a great disincentive to hold full internal inquiries. Concern is expressed by various practitioners at the hospital as to whether their defence unions—we have heard two speeches on that point today—will allow them to give evidence. The unions may say that they do not want their staff to give evidence if they may be involved. Shall we reach a point where we shall be unable to have a really frank, open and valuable inquiry that will provide the information that we need in order to deal with an issue and to make sure that it does not recur, without creating a ready-made legal case for someone and handing it to them on a plate? Therefore, it is a cause for concern.
I have a number of questions for the noble and learned Lord the Lord Chancellor as to how one screens out those who might be litigious from those who are not. That is a question that needs to be answered. New National Health complaints procedures are just being introduced. That is why I am so pleased that this debate is being held today because it is timely. There is a major report by the review committee on NHS complaints procedures entitled Being Heard. It is now referred to as the Wilson Report, and it is just coming into force. There is a section in that report—paragraph 69—entitled "Fairness to practitioners and staff' with which we all agree. The next heading is, "Avoidance of unnecessary litigation", which states,
"Complaints procedures have sometimes been presented as an alternative to, or [a] way of avoiding, civil litigation. This motivation has affected how the procedures themselves have developed and how complaints are handled under them.
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One effect of this has been a reluctance, particularly by doctors, to provide any statement which might be taken as an admission of liability. Although an apology need not be such an admission, this has sometimes meant apologies have been delayed or denied to complainants. In fact, the policies of the medical defence organisations now encourage apologies to be made".
Another part of the report says that impartiality is what is looked for in the investigation of complaints. Of course we all want there to be impartiality, but how impartial can we be if we have to be defensive at the same time? Not only does the authority have to be defensive, but the very people upon whom we rely to give us honest and accurate reports of what has happened are also being defensive.
The noble Lord, Lord Cocks, mentioned the number of probably unnecessary hospital tests that are done. As a major teaching hospital, we could probably undertake some research into what tests are unnecessary and unrelated to certain conditions. If there were evidence to prove that tests were unnecessary that could be a defence, and doctors would not feel obliged to carry out 100 tests when five were all that were needed. That is another interesting point.
My concern relates to the rules on disclosure. The Wilson Report and the NHS have made interim proposals which are to be considered. They are informal measures to try to resolve difficult and delicate issues where all the parties involved are under stress. Anyone who complains is under stress because of what has happened, their state of health, or how they were treated. However, which of those cases will result in legal action? How do we reconcile the dilemma of disclosure with the lay person's suspicion that something is being hidden? Legal minds should be devoted to trying to reconcile those two positions. Clear guidelines are needed to protect all parties. The intention should be to ensure that information is properly and accurately recorded, and, above all, to resolve the original issues speedily and effectively to the greatest satisfaction possible, without turning the matter into a legal complaint.
My questions relate to privileged information. At one time our legal advisers told us that if our inquiries were chaired by a lawyer (a solicitor or a barrister, but I am not sure which) that might make the information privileged. However, I have been told that there have been court cases subsequently which have disproved that, and even if the inquiry is conducted by a lawyer, on behalf of the hospital, the information would not be privileged. Will my noble and learned friend the Lord Chancellor tell us whether there is any way in which we could have such inquiries so that they would be privileged?
Under stage 2 of the Wilson Report, legal representation will not be permitted. Stage 2 of the complaints procedure is when the matter passes from the hospital because it has not been possible to resolve it. A vast number of complaints are resolved simply at the early stages. When the complaint passes beyond that, it goes to an external group, and a person is allowed to have a friend present but not a lawyer. However, there is nothing to say that the friend cannot be a lawyer. So that legal element again comes into the matter. The

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friend can he legally qualified. No restriction is placed upon who can be one's friend. How can we ensure having proper, open, frank inquiries, designed to prevent the recurrence of whatever problem there may be, if the parties involved will not participate?
Will the NHS be able to subpoena doctors to give evidence designed to throw light on an issue which may implicate them? Will the new procedure be an encouragement to keep inadequate records so as to avoid disclosing the information which should be available? Where does the Data Protection Act come into all this? Does even material held on computers have to be disclosed? What about the confidentiality of records?
Everyone in the NHS wants to know the truth lying behind any untoward incident. I believe strongly in transparency, but I ask my noble and learned friend the Lord Chancellor to ensure that at this time of major administrative change within the NHS complaints procedure, the new procedures will be carefully and fully studied from the legal point of view to ensure that any guidelines issued by the NHS and the national health authorities will bear in mind the legal implications of what is to happen.
On television I see people in the United States claiming the fifth amendment if they do not want to be implicated in a matter. Is there anything equivalent in the UK? What rights do people have here to refuse to give evidence? Do bodies such as the medical defence organisations or the trade unions have the right to prevent their members from taking part in inquiries? Is the answer to all of this litigation to keep no records, or would one then face further litigation for failing to keep records?
4.46 p.m.
Lord Lester of Herne Hill: My Lords, the whole House will be grateful to the noble Lord, Lord Cocks of Hartcliffe, for introducing this important subject. I am grateful to him for not having voiced his well-known aversion to members of my profession, the legal profession, to which I am proud to belong. It is of course easy to make jibes at the expense of the legal profession, whose public standing is only slightly higher than that of the noble Lord's own profession, the politicians, or that of journalists.
I have a rich collection of anti-lawyer jokes, and I commend to the noble Lord for his seasonal merriment the New York book of lawyer cartoons. There he will find a cartoon showing a concert pianist being introduced as, "Edwin Neils accompanied, as always, by his lawyer". The noble Lord will also see the cartoon of the attorney observing to his client, "You have a pretty good case, Mr. Pitkin. How much justice can you afford?".
Joking apart, what of the substance of the Motion? The debate has been unbalanced. None of the noble Lords who have spoken has talked from a plaintiff-driven perspective. The debate has been almost entirely defendant-driven. I have no personal interest in personal injuries litigation, and I shall attempt to give some facts and figures to provide a fairer balance to the debate.
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To place the matter in perspective, according to the 1994 annual report of the Lord Chancellor's Department, the overall volume of civil litigation in this country is declining and not increasing. The county court has seen the most dramatic decrease in litigation. The number of plaints entered has fallen by about 28 per cent. since 1991. In the Queen's Bench Division of the High Court the number of writs and originating summonses issued has more than halved since 1990. They declined by a quarter between 1993 and 1994. In the Chancery Division 10 per cent. fewer proceedings were commenced in 1994 compared with the previous year.
Litigation has not, however, declined in every area of law. One area in which the volume of litigation has increased substantially has been in applications for the judicial review of decisions taken by Ministers, government departments, local authorities and other public authorities. I declare an interest because I practise in that field. The number of applications for judicial review, unlike those other areas, has increased hugely during the past 20 years. More than 3,200 applications were received last year, an 11 per cent. increase on 1993. Only about 10 per cent. succeed. But whether they succeed or fail, they are an essential safeguard of democratic government according to law.
The growth of judicial review has not been because of so-called judicial activism, nor has it been because of lawyers' greed. It has to do with the vastly expanded reach of government. The judges have not been activist in the sense of seeking to usurp the functions of Parliament or of government. Our courts have been scrupulously careful not to exceed their judicial powers or to trespass into the area of politics. The judges apply the law laid down by Parliament. They are extremely careful to respect the supremacy of Parliament under our constitutional system of government.
Just as liability for negligent conduct, to which I shall turn in a moment, is essential to the rights of the victims of negligence and other tortious conduct, so judicial review is of great importance in protecting the individual against the misuse of public powers and in ensuring high standards of public administration. I shall not give many examples—your Lordships will have read them in the newspapers—of the important issues decided in the past year in judicial review cases. However, perhaps I may give a few.
The first is whether the Cambridge District Health Authority could refuse life-giving treatment to a child dying of leukaemia; secondly, whether the Home Secretary could under his prerogative power introduce a scheme for compensating victims of crime inconsistent with a scheme enacted by Parliament and never brought into force; thirdly, whether the two-year employment retirement for benefits under the employment protection legislation unjustifiably discriminated against women workers; fourthly, whether the Defence Secretary could ban avowed homosexual men from the Armed Forces; fifthly—heard last Friday—whether the rail passenger franchises could be sold allowing private operators to make substantial cuts in service levels. Our fellow citizens have sought access to justice in these and other important cases in spite of the great impediments to

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justice in our legal system, including the cost, inadequately met, through the current legal aid provision, unacceptable delay and the complexity of the law.
Perhaps I may take legal aid as one example. In recent years there has been a steady decline in the number of people qualifying for legal aid. Applications for legal aid have also declined; for example, in the past two years there has been a fall of 10 per cent. Lord Justice Otton's working party recently found that one in three applicants to the Court of Appeal are unrepresented compared with one in 10 between 1989 and 1990. The problem has not been of too much litigation but rather of inadequate public funding to enable individuals of moderate means to have effective access to justice. That is the reason why I, unlike some noble Lords, greatly welcome the work being done by the noble and learned Lord, Lord Woolf, and his interim proposals to improve effective access to justice. We all await his final proposals with impatience.
The debate has concentrated on the threat to professionals—for example, health care professionals, accountants, surveyors, architects, barristers, solicitors and so forth—of negligence claims. I submit that the victims of negligence are as much deserving of public protection and of public sympathy as the victims of crime. That is why the House was so concerned when the Home Secretary sought to dilute the scheme for compensating the victims of crime.
Several noble Lords referred to American nightmares. I agree that in the United States there is a nightmare situation of excessive litigation, far too many lawyers and astronomical damages awards. However, I do not see that applying in this country, and perhaps I may briefly explain why. First, since 1933 jury trials for negligence cases have been abolished in this country. One of the main reasons why negligence awards are so high in the United States is that it has preserved trial by jury.
Secondly, in the United States there are class actions coupled with contingency fee systems. I agree with the noble and learned Lord, Lord Ackner, in his concern about the recently introduced contingency fee regulations in this country, and I also agree that there is a need for careful monitoring in order to avoid the vice of speculative litigation. However, having heard the views of the House on that matter, I am sure that the noble and learned Lord the Lord Chancellor will ensure that there is extremely careful monitoring.
We are very far indeed from the American situation of class actions, with speculative fees and with no liability for costs, where the loser has to pay the winner. In this country one of the great sanctions against frivolous, vexatious or unreasonable litigation is the Draconian cost rules to punish the plaintiff who loses.
The Medical Defence Union has been mentioned. Dr. Michael Saunders, chief executive, on being appointed in June 1995 said that complaints against the medical profession are likely to increase, not least because of the Department of Health's commitment to introducing a more accessible and responsive
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complaints system for patients. We should surely welcome that. We should welcome the fact that the Government have become committed to a more accessible and responsive complaints system. If that leads to more complaints, so be it; it helps to ensure the accountability of the medical profession.
Medical premiums are rising, but they have not reached American levels. According to the Medical Defence Union, a general practitioner earning £40,000 a year will pay an annual premium of about£1,500. In my view, that is not an excessive burden to impose upon a qualified professional lest his negligent conduct imposes severe loss or injury on one of his or her patients. Surely it is for the good that the public are increasingly calling the professions, including my own, to account when things go wrong. Those professionals concerned may be doctors, lawyers, accountants or whatever.
As regards the courts in this country, there is no substance in the view expressed by some that our judges have diluted the threshold in negligence claims. So far as I am aware, the duty of care has been the same since it was formulated before Donoghue and Stevenson; and the courts have been extremely careful to ensure that no excessive liability is placed upon defendants. Indeed, in the recent case of Caparo Industries, the Law Lords made quite clear that accountants, for example, would not be liable for economic loss except in very special circumstances.
I am aware of no evidence that personal injury awards made by judges have been excessive. Indeed, last week Mr. John Monks, General Secretary of the TUC, wrote to The Times in the wake of the admirable decision of the Court of Appeal to limit damages awards in libel cases. He pointed out that so far as concerns trade unions and their members, awards for damages for personal injury are far too low.
It is not self-evident to me that the lack of nurses or other health care professionals is caused by the effects of negligence litigation or the risks of litigation. What, I ask myself, about low pay or poor working conditions as more probable reasons if those professions are understaffed.
I agree with noble Lords who referred to the need to avoid unnecessary litigation. I believe that our legal system does that well. I believe also that we should pursue alternative dispute resolutions; and I know that the noble and learned Lord the Lord Chancellor, among others, has been in the vanguard of seeking to do that.
Therefore, with respect to those of your Lordships who have spoken thus far, I am not persuaded that there is a very serious mischief calling for the kind of rather extreme remedies which have been advocated in the course of this debate. It seems to me that our system of justice is fairly balanced between plaintiff and defendant. I can see a case for firms of accountants, for example, being permitted to incorporate and to limit their liability and matters of that kind. But I do not share the view, which I think was the view which motivated the Motion in the name of the noble Lord, Lord Cocks, that here is a serious social evil which calls for some kind of emergency action.
5 p.m.
Lord Peston: My Lords, I too must declare an interest. I am a lay member of the Council of the Royal Pharmaceutical Society of Great Britain. I emphasise the word "lay".
I thank my noble friend for introducing this important and interesting discussion. My point of departure is slightly different. It is the fact that in recent years, the professions have been subject to attack and there is even a sense of crisis in some of them. There are several origins of that onslaught but the two which immediately come to mind are the Government and the consumer movement. The professions are worried that people no longer trust them and are losing confidence in them. Those outside the professions seem to believe that they should be subject to the most critical scrutiny. In fact, the evidence of a decline in the public support for the professions is non-existent. As has already been pointed out, doctors—the most obvious example—are extremely highly rated by the public, rated far higher than the politicians who attack them.
My purpose is to say a few words in economics terms about what is meant by the professions and to assess whether professional ideals and ethics and all that may be said to comprise a profession are compatible with the welfare and interests of households. In that connection, I emphasise that in my judgment, professions are not valuable in themselves. They are valuable for what they do. They are valuable if they please the customers, households and clients that use them.
Therefore, in asking whether the professions are compatible with the welfare and interests of households, we must ask whether it is true, as some critics allege, that the professions are just a high-flown way of engaging in restrictive practices or in certain areas, or whether they are fundamental to the protection of consumers and the maintenance of their welfare. Are education and validation of qualifications merely the means of restricting supply and raising fees or are they a guarantee of quality and a path to redress for poor service?
I regard all those topics as highly controversial and none of us will be able to answer the questions which I have raised or that other noble Lords have raised with a simple yes or no. But I hope that what I say will at least help noble Lords to take a view.
As I say, it is probable that in no circumstances would it be valid to take a strong position and I do not doubt that the professions are worthy of critical scrutiny. But my main question is to ask whether changes are desirable. In particular, I must ask whether it is possible for the professions to take the consumer more seriously and to operate in a more market-dominated environment but without destroying professional ideals.
I must make a few remarks on the meaning of the word "professional". In common parlance, the word takes on a meaning as the opposite of amateur. That implies both a concern with money and a high degree of seriousness of approach. For example, in sport it is associated with effective behaviour which can often be regarded as unethical. One may refer to the professional foul in football; and, in cricket, the batsmen who never
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walk. Perhaps I may say en passant that I have never known a time in my life when ethical standards in sport on or off the field have been as low as they are at present.
But our concern is not with professionalism in those pejorative senses. We must distinguish between professional motivation which brings a good monetary reward and monetary motivation per se.I believe that we all agree that the essence of a profession is its ethic. To reply in part to the question which I asked, I believe that that ethic, far from being anti-consumer, properly interpreted and put into practice must be for the benefit of consumers. I do not say that that is always so but that it should be so.
Another aspect which I must raise is professional autonomy. That is connected with self-regulation which is demanded by all sorts of people such as those providing financial services who are not professionals in the traditional sense. But it is also to do with the right to make an independent professional judgment. A classic example is the clinical freedom so dear to the medical profession. Whatever else one says, I should not like to see any developments which undermine that kind of professional independence.
What then do the economists say generally about that? It will not surprise your Lordships that viewing the professionals as they are normally organised, the economist's immediate response is to dislike the restrictive practices involved with having a profession. But the general view which I think most of us accept is that in this case, what we might call the departures from free competition, although they look like a restrictive cartel, whether we are discussing doctors, lawyers or anybody else, are palatable to the public and the only way in which they become palatable to the public is because of the assurance of a high quality service which the professions give. I argue that a competitive model would not give that. But it seems to me that that places the emphasis where it should be placed; namely, less on theoretical questions and much more on practical questions such as what the professionals actually achieve.
As I see it, the central question is one of—if your Lordships will forgive the language—asymmetric information between buyer and seller. By definition, the seller is an expert professional and the buyer is not. Of course, that is how it should be, otherwise we should not have the division of labour that we want. It would be absurd if the market or anybody else required the patient to know as much as the doctor or the client to know as much as the lawyer. But the position is worse than that because if a consumer is sold a dud second-hand car, that soon becomes apparent to him. That is equally so as regards a bad meal or an unbecoming haircut. But in relation to professional services, performance is difficult to judge even ex post facto. Other noble Lords have alluded to those examples. The fact that one loses a case or fails to recover satisfactorily from medical treatment does not mean that the lawyer or doctor did not do his professional best. The problem is how one knows that.

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That problem gives rise to the need for externally constrained rules of contract and why we must have statutory restrictions on entry to the professions.
That is also why professionals should be treated differently from other people providing a service. The essential point is that if the professional does his best and is not negligent, he may still be subject to litigation and costly insurance. That is why control of entry to the professions is so important and is also why the maintenance of professional standards within them is equally important.
A further point to bear in mind is that if anyone can practice a profession or, indeed, there are professionals who act with less than the highest ethical motives, that imposes a cost on their fellow professionals. Again, that is why ethics committees are so important. I am interested in the concern that solicitors are having at present in relation to low-cost conveyancing. As an economist, that is fascinating to me because if the behaviour of those carrying out low-cost conveyancing characterises everybody who is carrying out conveyancing, then that has a deleterious effect on the public view of all people doing conveyancing which could raise the insurance costs for everyone.
Therefore, although I accept the fact that one worries about restrictive practices in that respect, I well understand the dilemma that faces solicitors. I believe that the same point applies to all the professions. A pharmacist who acts improperly damages the reputation of all pharmacists; indeed, that is also true of doctors and everyone else. That is why we have to take the matter seriously.
I turn now to my next point upon which I have made one or two remarks; namely, that there is a certain lack of balance. Of course I agree with those who condemn the sort of person who argues in every case that someone must be to blame. I take the view that we do not want that to happen. However, logically we should not go to the other extreme and argue that it is never the case that someone is to blame. The real problem is precisely—to use a word that the noble Baroness, Lady Hooper, used; and I agree very much with what she said—to seek some kind of balance.
In saying that it is a matter of balance and reminding ourselves that we are discussing a wide variety of professions, I am afraid that we cannot avoid discussing lawyers and the practice of law specifically. I speak as someone who, as an undergraduate, was offered a choice between law and mathematics as an ancillary subject. I chose mathematics, and have never regretted doing so. But we must accept that there is a problem so far as concerns the cost of using the law. Although I agreed with a great deal of what the noble Lord, Lord Lester of Herne Hill, had to say, I was somewhat disappointed at one or two of his remarks which did not seem to be quite as critical of his colleagues as perhaps they ought to have been. Most ordinary people are not eligible for legal aid, but they also cannot meet the cost of legal proceedings. Even going to a solicitor for something simple may appear to be open ended in the sense that one does not know beforehand what the cost will be.
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I am not saying that lawyers are failing to meet professional standards or that they are overcharging clients; but I am saying that there is a good deal of uncertainty involved. In saying that, I must tell your Lordships that I spoke to several lawyers on the matter. They rather laughed at me and asked me whether I knew the standard joke that whereas an accountant can afford to use an accountant and a doctor can afford to use a doctor, not even a lawyer can afford to use a lawyer. I would not quite go that far, but I am quoting from legal friends.
My own view is that if the law is too expensive, then surely that is an unsatisfactory state of affairs and one which must lead to a sense of grievance which is actually harmful to all our democratic processes. I have to say that the problem is not so much recompense for damage done, but much more a feeling of injustice that someone has got away with something and is therefore above the law—that they are, if you like, laughing at the rest of us.
Perhaps I may refer to a personal experience. I have had the experience of being defamed by a Sunday newspaper. I am glad to see that the noble Lord, Lord Wakeham, is sitting in his place because I am about to make a critical remark or two which, as he knows, is very unusual for me. My lawyers told me that, without a shadow of a doubt, it was defamatory; but they also begged me and strongly advised me not to go to law unless I had virtually unlimited sums of money to commit. I can shrug my shoulders about that, but I am not alone in having had such an experience. In noting the presence of the noble Lord, Lord Wakeham, in the Chamber, I have to say that the Press Complaints Commission is quite pathetic in its lack of response to the scale of insinuation and libel which permeates our newspapers.
I believe that the noble and learned Lord the Lord Chancellor has published a paper on fast-track proceedings with respect to libel. I wish him well, just as I am supportive of the lines that the noble and learned Lord, Lord Woolf, wishes .to develop. However, there is the general problem which is more than just the specific aspect of libel law. I refer to the need of trying to get something simple and straightforward, as the noble Baroness, Lady Hooper, said, when dealing with all sorts of grievances. We wish somehow to cope with the behaviour of the professions where, in a tiny minority of cases, they are not doing quite what one has in mind. But one does not wish to deal with the complaints which arise on the basis of a large and expensive resort to the law. That is just what one does not want to do.
In my own judgment—and I speak both as a consumer and a lay person—those who have senior positions in the law and senior positions in the professions need themselves to address the matter and provide us with procedures which are simple and inexpensive and which, above all, give the public greater faith in self-regulation. I reiterate: I do not want to see more litigation; and I do not wish to see the professions more tightly regulated. Moreover, in echoing the remarks made by my noble friend Lord Cocks, I certainly do not want people to be deterred from

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entering the professions because of the need to protect themselves against the continuing risk of legal confrontation.s
However, having said that, the public have genuine concerns, and in my view, they need more protection than they currently get or feel that they are getting. Therefore, I must conclude by asking: is it not right to consider whether our existing procedures in all those professional areas, even though they may have been reasonably good in the past, are perhaps not quite apposite for the present, let alone for doing the job for a very complicated, developing future?
5.15 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, it is with gratitude that I acknowledge the kindness of the noble Lord, Lord Cocks, in introducing today's debate. Obviously it is a matter of very considerable importance and it is right that your Lordships should have an opportunity to discuss it, such as is provided by this short debate.s
In the earlier parts of the debate, it might be said that the solutions to the problems were not so evident as statements about what the problems are. I believe that the general law which regulates the reliability of the professional person is that that person has to show a standard of reasonable care which is appropriate to that person's position in the profession. Perhaps I may take the point made by my noble friend Lady Gardner of Parkes. For example, a junior doctor is not expected to have the standard of care that would be exhibited by a very senior consultant in the profession. On the other hand, if a junior doctor has charge of a case, he has the responsibility for knowing when he should hand it over to someone more experienced. Indeed, there have been cases in the courts when junior doctors have failed in that respect. However, in my view, there is no doubt at all that the law does properly discriminate between such matters.
I also believe that the general law is unexceptionable. I do not know anyone who has formulated a better basic rule than the rule of reasonable care, having regard to the professional competence in question. Therefore, although the noble Viscount, Lord Bledisloe, indicated that at senior levels in the judiciary the law was thought to be "x", I believe that he also suggested that at lower levels in the judiciary the law was, perhaps, less than "x". Well, there are appeals systems which should redress that situation if it were so. Certainly I would take issue with that as a general principle. Obviously, sometimes a litigant is unhappy with a decision against him or her at first instance and might think that the law had been misapplied. But, so far as liability is concerned, I should have thought that the general law on the subject is unexceptionable.
I also believe that the general law on other subject matters that have been raised is unexceptionable. I have in mind the law relating to judicial review. Although it is a developing law in which it may not always be possible for a person likely to be subject to an application for judicial review to forecast its outcome—as, indeed, some of the cases that the noble Lord, Lord
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Lester of Herne Hill, referred to amply demonstrate—it is, in its general structure, a balanced law which I believe would command respect from all.
There are of course special questions in relation to liability as between different people. The noble Viscount, Lord Bledisloe, referred to that, in particular in relation to accountancy firms. On that matter there is a question whether what is referred to as joint and several liability is always fair. On the other hand, from the point of view of the injured or damaged person, the fact that there has been a fault which has given rise to a certain damage is the fundamental matter. It does not appear to me to matter too much to that person whether two or three others are also implicated as well as the person whom he or she chose to litigate against in the first place. There is a degree of question about this matter and I believe that the Law Commission is considering this as a general question at the present time. However, I do not think it is at all self-evident that the law would be a fair law which would make the liability of a wrongdoer only in that proportion which he would have with other wrongdoers as a measure of his liability to the plaintiff. I do not think that is established.
These are the main matters of law underlying this subject matter. As I say, as far as I have heard, these are not really capable of being seriously objected to. As my noble friend Lord Colwyn said, the obvious answer therefore, if this is the law, is that so long as the practice is a good practice there is nothing to fear. As he pointed out, the pressure to conform with good practice cannot be a bad thing. It cannot lower standards in any event. It is also important that complaints procedures should be good so that people can raise questions before there is any litigation. However, when it comes to a serious fault and something has gone wrong which is due to blame or negligence on the part of a professional person, it appears to me that, unless that is agreed, some form of procedure is necessary for resolving it. The courts are the ultimate forum for resolving these matters. However, I certainly believe that there are other ways of doing it which are appropriate to particular circumstances. The field of alternative dispute resolution is a wide one which contains many different possibilities. I believe there are possibilities within the medical profession, the dental profession, among accountants and others. In the ultimate there must be a court to decide matters if parties cannot otherwise resolve their differences.
This brings me to a matter that was raised by my noble friend Lady Gardner of Parkes. One of the difficulties and one of the essential prerequisites of a profession is what the noble Lord, Lord Peston, referred to as the asymmetric character of the information that the parties have. One does not expect the patient to know as much as the doctor because if that were the case at least the advice might not be necessary, although no doubt the operation might still require to be done by the doctor. This is one of the problems that gives rise to suspicion. If I go into hospital for an operation and I look all right when I go in but I come out with serious injuries in a part that did not appear to be affected originally by the illness for which I went into hospital, I would be apt to think as a natural consequence that

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something had gone wrong. However, I may not find it easy to say what has gone wrong. If the doctor is able to explain to me in terms which I can understand what has gone wrong, and that that was nothing to do with him but was the result of a natural condition that had suddenly developed coincidentally at the time when he happened to be operating, that would be all well and good. However, if when I complain a complete blind comes down and I cannot find out what on earth went wrong or what went on when I was in hospital, my suspicions are raised. There is no doubt in my mind that a good deal of trouble arises from such situations. The proposals to be made by my right honourable friend the Secretary of State for Health which were referred to are intended, at least to some extent, to deal with that point.
I do not believe that legal professional privilege or any other form of privilege is likely to attach to the sort of inquiry that my noble friend referred to as regards a hospital. After all, the patient in a case where something has gone wrong is the person in respect of whom something has gone wrong and is the person whom we might think has the most important interest of all. I am not sure why it should be thought proper or wise to restrict the patient's access to knowledge of what has gone wrong. I believe that better complaints procedures have a part to play in this matter. The noble Lord, Lord Lester of Herne Hill, mentioned some figures with regard to the level of litigation. These figures tend to indicate that perhaps there is not as much litigation as some may think. On the other hand the more complaints are dealt with and resolved without litigation, the better. I believe that the more we can do in that connection, the better things will be for everyone.
The noble Lord, Lord Cocks of Hartcliffe, referred to an attitude which suggests that, if something has gone wrong, someone must be to blame. That is certainly not the law. The law makes it clear that one cannot generally attack someone and receive compensation from that person. There are certain areas of strict liability but generally speaking the law states that one can only receive compensation in respect of a fault which has been proved to cause the loss in respect of which one is claiming. Therefore the attitude I have referred to is not the attitude of the law. Perhaps my profession should try to make that plainer and try at least to redress the balance and counter the suggestion that whenever something goes wrong someone must be to blame.
My noble and learned friend Lord Ackner and the noble Lord, Lord Lester of Herne Hill, referred to conditional fees. These were introduced last summer in a limited class of case. I do not believe that they have contributed as yet to anything of the kind that the noble Lord, Lord Cocks of Hartcliffe, mentioned. There is one extremely important point that arises in this connection which was also referred to by the noble Lord, Lord Lester of Herne Hill; namely, that in our country the courts as a general rule award costs against the unsuccessful party. Therefore those who litigate on an unfounded basis are running the risk of incurring considerable costs. Where legal aid is awarded—as has been pointed out—there are quite severe limitations in that respect. That is one reason why a litigant who is
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opposed by a litigant with legal aid is in quite a difficult situation, because often the chance of recovering any costs is small. Even if the likelihood of liability is not severe, it may be economic to settle the action if it concerns a small amount. That would not, of course, apply if large amounts were involved. Therefore legal aid is not an unmitigated benefit to all. It may have serious effects as regards those sued with the benefit of legal aid on the other side. That is a matter which I am seeking to address in the Green Paper published earlier in the year. Any noble Lords who have useful thoughts to contribute on that subject matter are warmly invited to do so.
As regards procedures, I am strongly in favour of the view that we should do what we can to improve our procedures. I believe that the noble and learned Lord, Lord Woolf, has given us an exciting taste of what is to come in his interim report. When someone suggests a simplification in legal procedure a host of people explain why it should not apply to their particular case because they want a full hearing. That was one of the points made by my noble friend Lady Hooper in relation to doctors, who may be slightly uneasy about a very simple form of procedure because they feel that it does not give them a chance fully to vindicate their professional reputation. It is difficult to move to simplification in every case when there are problems of that kind to deal with.
However, I believe that we should persevere. The noble and learned Lord, Lord Woolf, is persevering and I am looking forward with eager anticipation to his final report, which I hope will emerge in the course of this year. All of your Lordships are grateful to the noble and learned Lord, Lord Woolf, for the time and effort that he has put into that work. The extent to which his proposals have been seen as valuable and going in the right direction has been encouraging for him.
Those are the main matters to which I wished to refer. It may have been of some consequence that the noble Lord, Lord Peston, chose mathematics as his extra subject rather than law. That is a valuable basis on which to approach questions about the professions.
Lord Ackner: My Lords, before my noble and learned friend sits down, can he inform the House, in the light of the advice from his advisory committee to which I referred, what action he is taking or proposes to take in order to monitor the implementation of the conditional fee system to ensure that the consumer is properly and fully protected from potential exploitation?
The Lord Chancellor: My Lords, as my noble and learned friend mentioned, I have arranged for a research project to be carried out under the authority of my advisory committee. In the light of what transpires there I shall consider what else may be required.
As I said, and as my noble and learned friend mentioned, that project was limited in scope. I shall require to take some time before a decision is made as to its effect and whether it should be extended. My

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noble and learned friend said that there would be no reason in logic for not extending it. That is a question to he determined in the light of experience of its operation.
Baroness Gardner of Parkes: My Lords, before my noble and learned friend sits down, can he comment on the rights or otherwise of individuals to refuse to give evidence to inquiries and whether doctors could be subpoenaed by the National Health Service?
The Lord Chancellor: My Lords, except in so far as there is statutory authority—and in some types of inquiry there is authority for the issue of subpoenas—there would not normally be any right to issue a subpoena nor any obligation to comply with one. There are sometimes contractual conditions which require people to give evidence or information. I have no doubt that at least some of the inquiries to which my noble friend referred will have characteristics of that kind which will apply in respect of at least some of the officers involved.
In most cases it will depend entirely on the wish of the individual and what the individual thinks right. I should have thought that most of those who hold responsible positions in hospitals where something has gone wrong would wish to co-operate as fully as possible with those who are inquiring into the matter.
5.33 p.m.
Lord Cocks of Hartcliffe: My Lords, I should like to thank all colleagues who have taken part in the debate. In view of the concentration on medical matters, I should perhaps have declared an interest as a lifelong hypochondriac. I hope that those colleagues who concentrated on the medical aspect will bear in mind the problems of recruitment into the other callings that I mentioned.
With regard to the noble and learned Lord, Lord Ackner, probably the simplest thing would be for me to plead guilty as charged and throw myself on his mercy. I shall certainly try to obtain the book recommended by the noble Lord, Lord Lester. In the meantime, I beg leave to withdraw my Motion.
Motion for Papers, by leave, withdrawn.

Cheque-book Journalism
5.34 p.m.
Lord Dixon-Smith Lord Dixon-Smith rose to call attention to the case for statutory limitation on the use of cheque-book journalism; and to move for Papers.
The noble Lord said: My Lords, in moving the Motion standing in my name on the Order Paper I look forward to what I hope will be an interesting debate on this matter. In particular, I look forward to the contribution from the noble Lord, Lord Wakeham, in what will be his first speech to the House since he stood down as its Leader. I look forward to the response to the debate by the noble and learned Lord the Lord Chancellor. Both have kindly assisted me in my
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preparations. In addition, I particularly look forward to the contribution from the noble Viscount, Lord Exmouth, in what will be his maiden speech.
I was hesitant about putting this Motion down for debate, but the more I thought about the trial of Rosemary West, recently completed in Winchester, where witness after witness who appeared in the trial was under contract to sell his or her story to this or that newspaper, the more convinced I became that this is a proper subject for us to discuss.
I recognise that we are walking on eggs this afternoon, not because of what the press might say about the debate—the press will say what it must say and do what it must do—and so should we. Rather, we must tread with caution and consider carefully, because it is the press itself that has recorded what is going on and informed us of it. Any action which might inhibit responsible journalism must be avoided.
I do not wish to dwell for too long on the trial of Rosemary West, but as that trial developed it seemed that it was more and more possible for defence counsel to question the veracity of witnesses because they were under contract to the press. Indeed, one witness, Janet Leach, who at first denied that she was under contract, damaged her integrity as a witness when it was shown that she had such a contractual relationship.
It is inevitable that when one researches a subject such as this one finds oneself tilling fertile soil that has already been well cultivated. In December 1974 a committee appointed to consider contempt of court under the chairmanship of Lord Justice Phillimore reported to the House. At paragraph 55 the report states:
"Press interviews caused us some anxiety … The real danger of such interviews is that witnesses whose evidence is vital to the matter under investigation are questioned without any of the safeguards which obtain in our Courts of Law or Tribunals of Enquiry … Witnesses might also be tempted to give a version of the facts which they thought most newsworthy—particularly if a fee were being paid for the interview. When such a witness came to give evidence before the Tribunal they would either 'have to stick by what they had said, however inaccurate it might be—or reveal the true facts. In the latter event the weight of their evidence might be considerably shaken by the discrepancy between what they are telling the Tribunal and what they said previously".
At paragraph 56 the report considers the specific issue of payment of witnesses. It states:
"One particular situation with witnesses deserves special mention. It arose in connection with the Moors murder case in 1966 where two witnesses were offered sums of money by a newspaper for their stories (for publication after the Trial); but the amount to be paid was expressly made dependent upon whether or not a conviction was secured. A similar question arises with rewards (perhaps less common than they used to be) which are publicly offered for information leading to a conviction. If the information comes, as in many cases it will, from a potential witness in the case, he may be regarded as having an interest in the outcome and therefore might be under some pressure or temptation to shape his evidence in order to achieve the desired result".
At paragraph 79, the report returns to this issue:
"Widespread and, in our view, justifiable concern was expressed at what happened in the Moors Murder case in 1966".
Further down the report states:
"We have no evidence as to the extent to which this practice has continued since 1966".
We now know that the practice certainly continues and has occurred in regard to other notorious cases too. The report continues:
"However, we regard the potential dangers as sufficiently grave to warrant further inquiry as to its prevalence and if found necessary legislation to restrain or wholly prohibit this practice. We recommend that such an inquiry be carried out".
That was the view expressed in 1974. I do not apologise for quoting the report extensively. As your Lordships would expect of a report to this House, it makes the point with greater elegance and precision of language than I might have been able to achieve.
Time passes, and the activities of the press have from time to time given rise to further concern. Today we have the Press Complaints Commission to monitor a code of practice that seeks to restrain unacceptable press behaviour. The code of practice was framed by the newspaper and periodical industry and subsequently ratified by the commission in 1993. The preamble states:
"Editors are responsible for the actions of journalists employed by their publications. They should satisfy themselves as far as possible that material accepted from non-staff members was obtained in accordance with this code. While recognising that this involves a substantial element of self-restraint by editors and journalists, it is designed to be acceptable in the context of a system of self-regulation. The code applies in the spirit as well as the letter".
Paragraph 9 of the code states:
"Payments or offers of payment for stories, pictures or information should not be made directly or through agents to witnesses in current or criminal proceedings or to people engaged in crime or to their associates—which includes family, friends, neighbours and colleagues, except where the material concerned ought to be published in the public interest and the payment is necessary for that to be done".
Paragraph 18 of the code gives three definitions of public interest, of which I mention only one:
"Detecting or exposing a crime or serious misdemeanour".
I may be misinformed, but I am not aware that the original revelations that led to the exposure of the Wests' crimes was the result of press investigation; rather, it came as a result of a chance conversation by a local policeman and his persistence in following the matter up. As subsequent investigation revealed the enormity of what had been done behind the innocent façade of an ordinary house and in other places, it was both proper and necessary for the press to report the progress of the investigation as it was brought towards a successful conclusion.
I fully understand the necessity for detailed and complete reporting of the trial of Mrs. West, distasteful though that was. All of this is clearly in the public interest. But I am a relatively simple man and I do not understand how this proper function necessitated what I can only describe as an auction to purchase the stories of witnesses. I would prefer to see this practice banned, although I see all too well the problems of drafting such a regulation. At the very least, such arrangements with witnesses should be required to be declared to the courts before any proceedings commence.
That thought provokes a parallel point. Following the death of Mr. West and the conviction of Mrs. West, the Official Solicitor became burdened with administering
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the affairs of the family in the interests of all the family. Indeed, it is his duty to maximise any value obtainable. It transpires that the greatest asset left by the West parents turns out to be their life story, and there are reports of great sums being offered for the copyright. I have the greatest sympathy with the predicament of the Wests' children, but I must confess that it leaves a very bad taste in my mouth that the Official Solicitor should have to bear such a burden—and that such a story could apparently have a value which matches a divided main lottery prize. What has our sense of values come to?
To return to the main point, I do not see this as an issue that affects in any way the freedom of the press to report events properly. Nor do I wish to place any restraint on investigative journalism, which from time to time serves society as a whole very well. But there is a case to answer. Society has found it necessary to initiate statutory regulation in so many fields in recent time where it was thought impossible in earlier days. Is regulation of one of the commercial practices of the press so impossible to consider? When actions taken to further the commercial interest of a specific sector of society can put at risk an already hazardous judicial process it is time to call a halt. I beg to move for Papers.
5.47 p.m.
Lord Dubs: My Lords, I congratulate the noble Lord on giving us the opportunity to debate a subject of significant public concern. I welcome the opportunity to contribute to that debate. I regret that the noble Lord, Lord Wakeham, will speak after me. I should have found it easier and preferable to have heard his comments first; but, alas, that is the order in which I have been asked to make a contribution.
Cheque-book journalism has been a long-standing cause of concern. Although it has had a new focus of attention through the West trial, it has been under scrutiny and criticism for many years. I could add many examples to those referred to by the noble Lord, going back to the Christine Keeler case. There are many others, all of which have given rise to anxiety lest the practice of cheque-book journalism should undermine the cause of justice in a series of cases.
Eleven years ago I had the opportunity in the other place to introduce a Private Member's Bill dealing with the subject. It was quite embarrassing to read what I said. I shall certainly not quote myself here. It was a matter of concern then. I believe that it was the Sutcliffe case which gave rise to widespread feelings on the issue.
Perhaps I may say this at the outset. I believe that a free press is absolutely vital in our society. We all have to accept many practices on the part of the press which individually we deplore because dealing with such instances might undermine a free press, and that would be the worst outcome of all. So we have to live with the press; and I am as unhappy as any other Member of this House at what the press sometimes gets up to. However, a free press is an important fundamental principle. The problem with cheque-book journalism is that it puts the press in a dilemma between commercial and journalistic interests.

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Newspapers quite often bid for stories from individuals in the interests of their circulation. They believe that those stories will add to their circulation rather than that they will necessarily add a great deal to their journalistic coverage. Therefore, when we look at the freedom of the press we must also consider the circulation wars going on intensely at the present time and understand—and regret—the reasons why cheque-book journalism plays such a part in the commercial motives of keeping a newspaper's circulation up.
The noble Lord referred to the problem of payments to witnesses in court actions. I wish to give a few examples of other instances where cheque-book journalism occurs, although the most serious are those to do with payments to witnesses. It has been indicated that sometimes individual witnesses are given a bonus or offered money only if the outcome of a court hearing is that a defendant is found guilty. That is highly undesirable and it seems to me to breach the principle of a fair trial. It has been suggested that one way round the problem would be to have witnesses declare in court that they have been offered sums of money for their stories after the case has been concluded. But I must say that I am not happy about that. It might have some benefits, but I am not happy that that is the way to deal with the difficulty.
Then there is the situation where payments are offered to criminals or people closely associated with criminal activity for their stories. The difficulty there is that it would seem to me to be almost a life-long imposition. It is highly undesirable that anyone should benefit in that way from the results of criminal activity. On the other hand, are we able to say, when someone has spent 10 or 15 years in gaol, that they should still be barred from giving their story to the papers? I find that difficult. I should be unhappy if at any point a criminal were to benefit, and yet I find it equally difficult to suggest that criminals should never be allowed the freedom to sell their story when they have served their sentence, however long it may be.
There are also instances where individuals are paid money because a newspaper wishes to have a monopoly in publishing a story. That seems understandable as a commercial motive but clearly against the interests of a free press, where all papers can publish stories. However, I can see why it may happen and it may be difficult to do much about it.
Sometimes individuals who are the victims of disasters or are closely associated with disasters may be offered money to tell their stories. There I believe that the agony is for the individual to balance the offer of what may be a large sum of money against the wish to retain his privacy and not reveal the agonies he has gone through. I believe that relatives of victims of the Hillsborough tragedy, for example, were offered Inducements to tell their stories after the event. That must be for the individual to decide, but it is not always a desirable activity to wave large sums of money in front of poor people to make them reveal things about their past which probably they would not wish to reveal.
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Then there are instances where newspapers pay individuals to reveal sexual scandals in which they themselves may have been implicated in order that a person in public life is exposed in the headlines for whatever that person has been getting up to. There have been so many instances of that recently that I shall not bore the House by giving examples.
There is one further aspect of cheque-book journalism which bothers me as regards the individuals who are offered money. It is close to the example that I gave earlier of individuals who have been the victims of a disaster but it is not identical. People may be offered money at a time when they are under emotional stress and when they have to make a quick decision, often without legal or other advice as to how they should conduct themselves. The result may be that they sell their story far too cheaply, simply because they do not realise its value and the benefit to them of retaining the copyright rather than letting the newspaper have it.
Those are all examples, some of which I fear we can do little about. However, they all affect the practice of journalism and offering money to individuals. I welcome the fact that the Government are considering taking action following the West trial. I have read articles suggesting that the noble and learned Lord the Lord Chancellor, the Attorney-General and the Home Secretary are all involved in discussions on how to proceed. I notice that the Association of Chief Police Officers also issued a statement last month. Mr. Sharpies, the Chief Constable of Merseyside and president of the association said:
"This type of activity has the potential at best to cast doubt on the credibility of witnesses and at worst to pervert the course of justice".
That is a fairly clear statement from the police.
I have looked with interest at the various codes that exist. The National Union of Journalists has a code of conduct which covers cheque-book journalism and so has the Press Complaints Commission. One has already been read out, but both codes refer to consideration of the public interest. I very much support a public interest defence in many instances. On the other hand, it seems to me to have become a bit of an excuse for some newspapers, when there could not be a public interest in some of the witnesses' stories; for example, in the West case, where much of it came out in open court anyway. So I am not totally clear how public interest comes into it in instances where we are dealing with witnesses in current or criminal proceedings or dealing with people who have been engaged in crime or their associates. It is difficult to see a public interest defence. There may be one on occasions, but not often.
I welcome the fact that the Daily Mail came out clearly at the end of November on the subject. I quote from a leading article of 24th November 1995:
"But as the West trial shows, the rules can be bent. What is needed is firm, clear guidance from the Press Complaints Commission and, if all else fails, our legislators too".
I have to confess that we are in difficulty. When I spoke about this in the other place 11 years ago I was fairly clear about the way ahead, but the passage of years has made me less certain that there are clear ways

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ahead. We could make it an offence possibly under contempt of court legislation or other legislation so that no one, no witness should be offered any payment connected with any court proceedings. That could be clear and absolute and I do not see why we should not move that way. Although it is highly desirable that criminals should not benefit from their crimes through being given money by newspapers for telling their stories, I find it difficult to see how we could give force to that, except through codes enforced by the Press Complaints Commission.
There is one other suggestion which I wish to make. To my mind it would be desirable and helpful if newspapers had to indicate that a particular story had been the subject of cheque-book journalism. They need not necessarily give the amount, although that would be interesting and illuminating. Perhaps newspapers should be compelled, through codes or through the Press Complaints Commission code, to indicate that a particular story had been the subject of cheque-book journalism—it could be described more elegantly—rather than that it was by a journalist or by a regular contributor. That would enable us to judge the strength and force of any story or contribution.
I believe that there is a way ahead, but it is limited. I am bound to say that there are many examples of cheque-book journalism where I fear we shall do very little except rely on the self-restraint of the press.
5.59 p.m.
Lord Wakeham: My Lords, first, I wish to congratulate my noble friend Lord Dixon-Smith on bringing forward this most important Motion for us to discuss this evening. The whole House will share with the noble Viscount, Lord Exmouth, the experience of making a maiden speech. I wish him well and would like to hear him many more times in the future.
I feel slightly strange. It is the first time that I have spoken in either House, other than from the Government Front Bench, since the day when my noble friend Lady Thatcher formed her first Administration. It seems an absolute lifetime ago.
This debate raises many important and serious issues with which I, as the chairman of the Press Complaints Commission, have a significant concern. The issues are complicated, in which many bodies and institutions as well as the press, and those who seek to regulate it, have a legitimate interest.
My task is to seek to make press self-regulation more effective. However, it may not be right to expect a self-regulatory body to seek to enforce procedures designed to protect the legal system. Some may well conclude that these are matters for the courts, the Attorney-General or ultimately, if the law is failing, for Parliament.
I shall not—and I hope the House will understand—refer to any particular recent case, both because the legal process may not yet be complete and also because the Press Complaints Commission may yet receive a complaint. It would be quite wrong of me to discuss a case upon which I may be called to adjudicate.
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The code of practice which the PCC seeks to administer is a code that has been fully and freely endorsed by members of the press. They drew up the code, and it is in a very real sense their code, not mine. The PCC deals with some 3,000 complaints a year, overwhelmingly from ordinary members of the public. The vast majority of complaints are resolved to the satisfaction of the complainant. But in the five years of its existence, the Press Complaints Commission has not received one single complaint on the subject of payments to witnesses.
My noble friend referred to paragraph 9 of the code which states (I paraphrase) that payments should not be made to witnesses or potential witnesses except where the material ought to be published in the public interest. He quoted one of the three cases of public interest; namely, "detecting or exposing of crime or a serious misdemeanour". The second is: "protecting public health and safety"; and the third: "preventing the public from being misled by some statements or actions of an individual or organisation".
I have to say to my noble friend that I am pretty certain that a great many newspapers would seek to defend their actions, were they to be challenged, on a wider basis than just the first case, as mentioned by my noble friend.
The code itself seems on the face of it clear. But I am aware that it is considered ambiguous, because of the uncertainty of knowing what a "potential" witness is in the initial period after arrests are made. It is often inevitably impossible at that stage of judicial proceeding to foretell how the prosecution and defence cases are likely to develop. I do not think there is an easy way round that difficulty.
There is also the problem of knowing how the public interest—which certainly does not mean whatever interests the public—is applied. There have been instances where people who ultimately became witnesses have spoken to a reporter without a full appreciation of the importance of their evidence. As a result, reporters informed the prosecuting authorities, who may otherwise not have known about a witness's existence. We have examples of that.
There is also a clear flaw in the argument that we can solve the problem by having rules that forbid payments or offers of payments to witnesses or potential witnesses prior to the conclusion of the proceedings so as to ensure that their evidence is not tainted.
It is not, I think, suggested that the making of all payments after proceedings have been concluded should be outlawed, whether in respect of books, the serialisation of books in newspapers, newspaper reports or television documentaries. It must follow that if there is a risk that a witness may slant his evidence in the light of payment or offers of payment made prior to the conclusion of proceedings, that risk would still exist if the witness knew that offers of payment might be forthcoming once the proceedings had been concluded. As my noble friend reminded us, this is not a new matter. The cases of the Moors murderers, Jeremy Thorpe and Peter Sutcliffe come to mind.

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Other media may have to consider this issue as well as the press. But one way in which I believe it might be possible for press self-regulation to move forward is for there to be a new protocol to the code of practice for the press to ensure that where newspapers or magazines, having given proper consideration to the public interest, have financial dealings with potential witnesses, they must take every possible step, first, to demonstrate that there is a legitimate public interest at stake involving matters that the public have a right to know; secondly, to ensure that no dealings have influence on the evidence that those witnesses may give; and, thirdly, that the payment or offer of payment to any witness who is actually called in proceedings should be disclosable to the prosecution and the defence.
It is clear to me that some witnesses in criminal cases do have a story to tell, and demand money for telling it. The public may have a right to hear stories about, for example, failings in the conduct of a police force in helping bring particular criminals to account, or the failings of a social services department. Because of the legitimate commercial pressures within and between different parts of the media and the desire to ensure exclusivity, there is inevitably competition between newspapers, between newspapers and book publishers and with broadcasters. However, if there are to be payments, there must be a clear public interest in that transaction which must be transparent and open to scrutiny. The protocol that I propose will have to set out those principles.
My job is to encourage newspapers and magazines to develop their own effective rules, which must be clear, consistent and based on the increasing success of the PCC's own code of practice in other areas, and be supported by the entire press. I have therefore begun discussions with editors and proprietors of newspapers and magazines to help facilitate a solution to this serious issue based on the protocol that I have outlined today. Proprietors have an especially important role to play, as it is their money that is being spent; and it is to them that editors must account, given their contractual duty to observe the code. The intention of the new protocol must not contain any doubt. And the industry's commitment to voluntary control in this area, as in all others, must be fulfilled in deed as well as in word.
I do not guarantee that I will be able to negotiate a satisfactory protocol, but I will have a determined attempt. A free press is an integral part of a free and democratic society. I for one will do all I can to avoid any form of statutory controls. But a free press also needs to be a responsible press—and its response in this area may prove to be another touchstone of that responsibility.
Noble Lords: Hear, hear.
6.9 p.m.
Viscount Exmouth: My Lords, although my interests are associated principally with the tourist industry, I felt it appropriate to make my first contribution during a debate that is of considerable public concern. I am in agreement with many of the points raised by noble Lords.
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What has become known as cheque-book journalism, or the obtaining of information through payment, sometimes known as blood money, is largely a moral issue. There are of course legal and political questions which also arise on close examination of this practice.
The practice is an old one, and dates back to the 19th century, if not before. Examples are found wherever mass market media exist. It is generally accepted that all types of information have a monetary value, and that every man has his price. A photographer, journalist or contributor expects to be paid for material submitted for publication. Without such reward the quality and content of our leading national newspapers would seriously decline.
We must, accept the fact that leading British newspapers are arguably the best in Europe. Are we therefore to suppose that payments made to people not connected with journalism in order to guarantee exclusive rights to a particular story, should be considered improper or immoral? The moral question is quite clear: should the perpetrator of some horrendous crime benefit from the misfortunes of others?
If restrictions on cheque-book journalism are not imposed, a crime could be designed in such a way as expressly to enable individuals to benefit from the proceeds to be realised from the sale of a story. That is something akin to the physical mutilation of a child by its family in order purposely to generate sympathy for purposes of begging, a practice not uncommon in certain countries of the Indian subcontinent.
Noble Lords might wish to consider the legal implications of continuing to allow unrestricted use of the cheque book when reporting on cases already before the courts. However, questions that need to be asked in criminal cases are: is there any evidence of a wrong verdict being reached or has the course of justice been perverted as a result of payments to witnesses? Unregulated use of the cheque book could result in the danger of undermining the criminal justice system and could possibly cause the collapse of a major trial.
The political issues which arise from any restrictive practices imposed on the press and media revolve around the subject of freedom of the press. Any restriction represents lack of freedom. A democratic society such as ours expects a free press, just as freedom of speech and freedom of movement are taken for granted. I believe that the imposition of controls on editorial would amount to censorship and a negation of our basic freedom.
However, there is no doubt that lack of any effective editorial control leaves the way open for the publication of sordid material which might have a lasting and damaging effect on the mind of some readers; and in some instances it might result in mirror image crimes being carried out. It must surely be the duty of a parliamentary democracy to protect its citizens from unacceptable practices of that nature.
Although the Press Complaints Commission offers some public redress, it is only effective once the horse has bolted and the damage has already been done. More importantly, the commission does not represent an independent body, since it is entirely funded by and acts

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in the interests of the media and newspaper industry. Never has the refrain "power corrupts" been more appropriately applied. Therefore, the time has come to introduce and enforce certain guidelines and principles within the media in order to protect the very fabric of our society. That will avoid the possibility of witnesses being prejudiced by the sum of money on offer.
Therefore, I propose that the making of payments to witnesses or potential witnesses in criminal trials should be made illegal in the future.
6.14 p.m.
Lord Marlesford: My Lords, it is as great a privilege for me to be able to congratulate the noble Viscount, Lord Exmouth, on his maiden speech as it has been for your Lordships to hear it. I am aware that the noble Viscount has been a Member of your Lordships' House for 25 years and it is only now that he has made his maiden speech. That makes some of us who are very recent arrivals and who leapt to our feet after a matter of only weeks appear most precipitate, almost impertinent, in doing so. But the noble Viscount comes from a most distinguished lineage. We all know that wine from distinguished vineyards keeps well in the bottle and is all the better after a time. I hope that the noble Viscount will allow us to enjoy other bottles in the future.
I should like to congratulate my noble friend and thank him for giving us the opportunity to debate this important subject. I start by declaring an interest as an independent national director of Times Newspapers Limited. I should also declare my experience of having been for 16 years until 1991 a working journalist with the Economist newspaper, working mainly in the Lobby of the other place.
Therefore, as your Lordships will not be surprised, I start from the proposition that the Fourth Estate has and has had for centuries a very crucial role in maintaining standards of behaviour in this country—standards of behaviour of the legislature, the executive, even the judiciary and indeed those who are able to influence the lives of others. Its activities have often been unwelcome, inconvenient, unattractive, intrusive and indeed on occasions unfair to those on whose activities it comments. But I believe that that is a price well worth paying for the safeguards against the abuse of power and responsibility, for which it is often the only guardian.
Therefore, I start from the position of opposition to any legislation which would affect the unfettered freedom of the press. Because I do not believe that self-regulation necessarily always works, I feel that I must go a little further. As a Tory, I strongly believe that a crucial role of the state is to regulate the behaviour of those who might otherwise exploit or ill treat people, whether they be consumers, employees, investors or just ordinary citizens.
I am afraid that I am not prepared to have quite the trust that my noble friend Lord Wakeham has in the self-regulatory route for the matter which we are discussing today. I pay enormous tribute to him as one of the greatest political persuaders that we have had in
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either House of Parliament, certainly in my lifetime. But I suspect that even he may find it hard to achieve in certain crucial respects the behaviour to which I believe we are entitled. It is simply against human nature. I believe that human nature will out.
There was a reference by my noble friend to proprietors spending their money. The simple fact is that it is usually money well spent. We all know that, however much we might pay obeisance to the moral imperatives, there are many forms of behaviour in which we would indulge if we were not constrained by something stronger than the moral imperative. Perhaps the most obvious that comes to mind at this time is drinking and driving. Frankly, there is a similarity. There will ,be the tendency to use cheque-book journalism if it is allowed and if it is profitable.
Having said that I am opposed in general to constraints on the press—I would strongly oppose any general legislation on it—I believe that, in the one single matter of payment to witnesses, something must be done fairly soon. Therefore, in my brief intervention in your Lordships' debate, I propose that we consider—I look forward to hearing my noble and learned friend's comments on this—an amendment to the Criminal Procedure and Investigations Bill which is at present before your Lordships' House. As an amateur, I had a shot at drafting the sort of thing which may cover the issue and may be sufficiently restrictive to be acceptable. The amendment would read,
"No person or organisation shall approach any person who is known to be or might reasonably be expected to be a witness in any trial which is proceeding or likely to be commenced, for the purpose of offering or making an arrangement to offer any financial or other material reward in consideration of the publication in any newspaper magazine journal book computer-network or broadcast of any matter relating to or connected with the said trial".
That is a modest proposal which is not directly aimed at the press as such. It is aimed at ensuring that the sanctity of the courts as givers of good justice can prevail.
6.21 p.m.
Lord Birdwood: My Lords, it gives me enormous pleasure to add my voice to what will be a general applauding of the maiden offering of the noble Viscount, Lord Exmouth. I am always happy and encouraged to hear somebody in this Chamber dive straight into an airing of moral values, because these are issues which are thin gruel elsewhere. I particularly enjoyed the lucidity and logic with which the noble Viscount framed his arguments, ending with his proposition.
It is not often that I have the opportunity to participate in a debate in which one can use part of one's preparatory material as a visual aid in support of a fellow speaker. I draw your Lordships' attention to the Media article:
"Wakeham: a watchdog ready to bite".
I have read virtually every word that has been written on this subject in recent months and I have found no enormous unanimity among press correspondents in their opinions on the subject, but I propose to quote briefly from one of them.

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While we still have a free press in this country, it is utterly fanciful to think that we can legislate against buying the stories of people involved in court cases. There is a willing seller and a willing buyer, and it makes no sense to pretend that a newspaper should be debarred from initiating the transaction when, as my noble friend Lord Wakeham pointed out, the same would not apply to books or films.
What is troubling seems to be the sliding tariff, whereby the rate for a story is weighted by the outcome of the trial and one's suspicions that there is a financial inducement to a witness to manipulate evidence in the cause of greater reward. Does the trade at all introduce doubt about witness veracity, or at least objectivity? Yes, it does. Money does feel like an intrusion in a process which, by instinct, should be literally magisterial, if sometimes less than majestic. The law may not have the granite impermeability which once it had, but it is not yet a bendy toy in the media's playground.
I want to refer to an article in the Evening Standard last month when Peter Cole wrote:
"Let us start with the basic proposition that payments to witnesses tarnish their testimony, and thus make it less likely that justice will he done. It is, I think, a patronising position to presume that ordinary, innocent members of the public will perjure themselves, exaggerate, distort, or decorate their evidence because they have been paid for an interview. The solemnity of the court, the pressures towards accuracy and truthfulness, the awesome experience of having to give evidence and handle cross-examination, all militate against the witness polluting his or her testimony".
I wish I could put it as well as that.
I wish to make only one observation and ask my noble and learned friend on the Woolsack two questions. The observation is that cross-examining counsel now has an early, almost automatic inquiry to make of any witness along the lines of whether any contract exists, or even has been described, with an outside party. One can picture the colouring which an affirmative answer will have on a jury; and if a false answer is given under oath, presumably there are other consequences which start to involve other parties to the agreement to an uncomfortable degree of intimacy.
My two questions, to which I have no idea of the answers, relate to the obligations of the paying party to inform either the recipient or appropriate government departments of the financial consequences of such payments. First, I should like to know whether the Inland Revenue is informed of the payment as a matter of course. Secondly, are the benefit agencies also automatically put in the picture? If the person taking the payment is not told of the potential consequences of being in receipt of the money, it seems to me that the duty of care element in the trade is a little fragile. But, equally, a wilful attempt to conceal such payments from those state bodies which have a direct interest in the material welfare of the individual also seems to be a point of some delicacy.
I am sure that the answers to those questions will clear up the matter entirely, and there may be embedded in such questions the pointers to new conventions which may calm some of the anxieties that prompted today's debate. I have felt that underlying much of the rhetoric
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of outrage in this matter is the immediacy of the revelations of payments, in some cases of auctions. Two or three months after a notorious trial, who would care that a participant was paid for his or her experiences? It is the impression of hectic trading before and during events which so disturbs us. But it will be a bad day for us all if any regime—I say "regime" and not "government"—is ever silly enough to try to frame laws about offences against good taste. Such sanctions always have lain and always will lie in the tolerance, good humour and ultimately the good sense of the citizen. So, please, no more law.
6.29 p.m.
Lord Burnham: My Lords, it is with regret that I cannot declare an interest in the subject of this debate. Having served my noble friends Lord Hartwell and Lord Camrose for 32 years on the Daily Telegraph, I am now in these black days merely a pensioner of the company. My noble friend Lord Marlesford commented to me earlier this afternoon outside the Chamber that his experience of the industry was d'en bas and mine was d'en haut. That is wrong in both cases.
I should like to congratulate my noble friend Lord Dixon-Smith on bringing this Motion before your Lordships' House, although I fear that, as with the Dangerous Dogs Act and pit bulls, it is to some extent a gut reaction to the West trial, in which context I was very glad to hear the noble Lord, Lord Dubs, commenting on so many other aspects of cheque-book journalism.
If it is the case that we are following up on the West trial, the cheque-book journalism to which the Motion refers concerns the payment of witnesses before, during and after a case in the courts. The most notorious case of this was the offer of the Sunday Telegraph to a witness in the Thorpe trial to double the money if Thorpe were convicted. With this exception, I have to say that the Telegraph has never offered witnesses money in a civil or criminal case.
There can be no justification for doing so and it has only a short-term benefit for circulation, if that is the object. I was trying to remember anything which had a long-term effect on circulation. The only case I can remember was the publication by the Sunday Times of Lord Montgomery's memoires. Otherwise, the circulation benefit merely lasts for the length of time that the subject is in the paper. Perhaps this lack of a long-term benefit is why the Telegraph has not done it.
In the West case the proposed payments were well publicised and, indeed, were matters of lengthy discussion in the court; in a sense they were critical to the case itself. But the effect of payments of this kind to witnesses must be to cast doubt upon the evidence, usually for the prosecution, since the witness will not be able to write anything which is contrary to the evidence which he or she has given in court. Newspapers—the Sun and the Mirror in the West case—buy exclusivity, but they must also buy the facts.
The evidence must also at least be marginally sensational to justify the proposed payment. If it is a prosecution witness, defence counsel is bound to bring

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these facts out and the jury is equally likely to consider that, because the witness has an interest in the nature of his evidence, there is at least a chance that that evidence may be tainted. If the jury does so consider, it may discount it, and even if what was said was perfectly correct, justice may not be done, the fact of payment acting against the prosecution.
In the last century, to which the noble Viscount, Lord Exmouth, referred, the.Telegraph and other papers paid criminals for their stories before they were hanged. Therefore, the criminal himself had no real benefit. The practice of buying witnesses' stories as it now exists basically dates back to the Moors murders. This is frequently quite open, even if it only exists in cases of the most sensational type. In the Yorkshire Ripper case, newspapers which were paying witnesses were required to make submission to the court, including the contracts that they had made with witnesses. It is notable with regard to the ethical nature of what was going on that these contracts were considered to be ethical and no action was taken.
While such matters are extremely serious and may interfere with the administration of justice, I believe that it is true to say that little or no statutory legislation is needed to stop the practice, if that is what is desired. Noble and learned Lords will, I hope, confirm that the Contempt of Court Act 1988 does not need any major amendment, if any, to give judges the power to punish media owners for criminal and ethical breaches of legislation by payments to witnesses. Certainly the judges can drop from a great height on any attempt to interfere with or alter evidence given in court.
I have taken some legal advice on this point, but probably not enough. If I read my newspapers aright, my noble and learned friend the Lord Chancellor has discussed with the Attorney-General the possibility of creating a new offence under criminal law. When he replies later this evening I hope that he will be able to comment in some way on his discussions and say whether he considers there is any possibility of improvement or benefit from making a new and specific offence of making payments to witnesses in a trial rather than using the Contempt of Court Act.
The Motion of my noble friend Lord Dixon-Smith in fact refers to cheque-book journalism in general and not only to paying witnesses. It is therefore relevant to point out how newspapers operate. They should act in accordance with their code of practice and, if they do so, there is no cause for complaint. In this matter I must confirm what my noble friend Lord Wakeham said. It is an industry agreed code, put together by the industry, and is not the creature of the Press Complaints Commission, of which he is such a distinguished chairman. The code is well written, clear and unequivocal. I do not believe that it needs any amendment.
My noble friend Lord Dixon-Smith quoted the very relevant section 9 of the code and I am glad that my noble friend Lord Wakeham added sections 2 and 3 of clause 18. The Press Complaints Commission is very
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alert to possible breaches of the code. On 27th September this year it issued the following confidential note to editors regarding the West trial:
"The PCC has been approached on the above matter by PressWise, who have received a number of calls from relatives of victims involved in the Gloucester murder case which comes to Court on 3 October. Callers are apparently concerned about the behaviour and persistence of some journalists in seeking background information. PressWise have discussed the matter with Victim Support, the investigating police officers, representatives of both Gloucester County Council and Gloucester City Council and the Lord Chancellor's Department.
Other than the above, the PCC has received no information suggesting any breach of the Code of Practice. Nevertheless, in view of the concern that has been expressed the Commission reminds editors to be especially mindful of the Code of Practice in dealing with this entire matter. It is of course particularly important to ensure that relatives of the accused and witnesses are not harassed or caused unnecessary anxiety by otherwise legitimate news-gathering activities".
The code is there. The problem is to enforce it.
As one way of doing this, it has been suggested that all newspapers should pay into an industry fund from which any individual who suffers from a breach of the code can be compensated. That will not work. It was tried within the industry by the newspaper publishers' agreement in the 1970s and 1980s—a paper which was stopped by industrial action, usually initiated by the late Lord Briginshaw, should be compensated by the others. It did not work, and this one will not work, because the innocent, who are predictable, will not pay for the guilty, who are equally predictable.
A statutory requirement to obey the code is equally unenforceable. Apart from it being a lawyers' field day, one can envisage appeal after appeal, so that the origins of the complaint and the need for swift action which goes with it become totally lost. Hard-line supporters of statutory control—there are many in your Lordships' House—recommend the imprisonment of proprietors for breaches of the code. Even though the editor of the Mirror once went to prison, the appeals, if this were to be tried, would be particularly long-winded. Noble Lords may wish to inflict this punishment on certain proprietors, but that is merely wish-fulfilment.
In recent years there have been numerous campaigns to control the presentation of news by the newspaper industry in general or by individual newspapers in particular by enforcing the right of reply—giving it the same prominence as the original offence—or by stopping what are considered to be breaches of privacy. Both of those are already included in the code of practice but are not, I would consider, provable in court. Neither are they suitable vehicles for statutory legislation. It would be dangerous for this Government, or any government, to try to enforce statutory prevention of publication of news. Many of your Lordships will be aware of the sarky remark of the woman about her dressmaker—that when madam loses her temper you always find it again in the bill.
Response to what is an understandable gut reaction along the lines of, "This is wrong and something must be done", is itself wrong. A few years ago the press made an enormous fuss about the Official Secrets Act 1911 which it considered ridiculous and constricting.

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The Act was revised, but nobody was any the better. The old Act was so vague and imprecise that it could not be enforced—surely a case of be sure to,
"keep a-hold on Nurse
For fear of finding something worse".
In any case, newspapers and the other media have a most important role to fulfil as the watchdogs of the nation. It may not be the intention of any legislation so to do, but anything that restricts the publication of that which ought to be exposed is to be avoided at all costs. Turning the argument around, it was the ability of Maxwell to prevent other newspapers from exposing his iniquities which led to such ill-doing and distress.
It is not a cliché to mention, as noble Lords have done, the freedom of the press. The press must be free even if we have to accept something which most of us believe to be unacceptable. Cheque-book journalism involving witnesses in criminal cases or leaks of government memoranda is of course undesirable, but the former can at least be dealt with by contempt of court legislation. Payment for information or for stories—say, the climbing of Everest—which is also cheque-book journalism, lies at the foundation of a newspaper's business. Where would one draw the dividing line? Legislation is not the answer.
6.41 p.m.
Lord Moyne: My Lords, we must all be very grateful to my noble friend Lord Dixon-Smith for introducing this debate. I believe that the importance of it is proved by the fact that my noble and learned friend the Lord Chancellor is replying. We shall all await with very great anticipation what he has to say.
As regards the noble Viscount, Lord Exmouth, and his maiden speech, that he should have been silent for 25 years proves that he must have been very much less silent elsewhere because he spoke in the most practised and competent manner. We were all fascinated by what he had to say.
Some noble Lords will remember a little poem,
"You cannot hope to bribe or twist,
Thank God, the British journalist.
But seeing what the man will do,
Unbribed there's no occasion to".
On this occasion we are thinking not of the journalist as a potential "bribee", but as giving money to people. It is easy to poke fun and criticise journalists, but they are no better than the public. They would not be able to print what has been described as "distasteful" without the demand for it. My noble friend Lord Dixon-Smith said—and how right he was! —that it is extremely unpleasant that the West family should actually benefit financially from their story. But why should they benefit financially except because people are going to buy the books and articles on which that story is based.
I heard a very interesting anecdote the other day about the ambivalence of public attitudes to this matter. The man I was talking to had been for a weekend in Scotland. Everybody was excoriating the Sunday Times for proposing to serialise the Andrew Morton book about the Princess of Wales. They all took a very high and mighty line. Then, apparently, they were all at
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Glasgow Airport where they made a beeline for the news stand to buy the Sunday Times only to find that it had sold out.
That seems to me to epitomise the ambivalence. It is a cliché to say that we are all guilty, but we are. We have this rather unpleasant curiosity and journalists have to satisfy it: that is what they are for. There is far more demand for entertainment than for information. I remember when I was very young the late Lord Boothby came to tea with my family. At the time he was political columnist for the News of the World In those days that paper was more wordy than at present, but it had rather similar content. He said, "It is wonderful to think that one is read every Sunday by 8 million people". One of us at the tea table said, "Are you sure that all of those people actually read your article?" He said, "Every reader of the News of the World reads every word". I do not believe that he was right, but that he was very likely to have been deluded. The primary desire of press readers at every level is far more for entertainment than for information.
However, entertainment and the desire for entertainment, must be controlled. Above all, it should not distort the process of law. People's lives and their fortunes are at stake in the courts. If it is to a witness's financial advantage to make his testimony more lurid—and that is what we are talking about—then that testimony is tainted. However true it may be, it might have been given in that form because of the hope of financial advantage.
It is perfectly clear that the laws of evidence should exclude such testimony. It is for wiser heads than mine to say whether that requires legislation or whether it should be rather an action for the courts and a change in their rules and practices. It could well be that legislation is too difficult to draft, but somehow such evidence ought to be excluded from cases.
6.47 p.m.
Lord Lester of Herne Hill: My Lords, perhaps I may join in the congratulations to the noble Viscount on his very thoughtful and perceptive maiden speech. This debate has been enriched by contributions based on experience; the experience of journalists, the Press Complaints Commission and the experience of newspaper readers.
The House will be indebted to the noble Lord, Lord Dixon-Smith for having initiated a very topical and complex debate and for the conspicuously moderate way in which he introduced the subject. I am sure that the noble Lord is right to have focused attention on the particular vice of cheque-book journalism in relation to witnesses in criminal trials.
All noble Lords who have spoken this afternoon agree—and I am sure the whole House agrees—that freedom of speech and freedom of the press are essential in a democratic society. Everyone agrees that those freedoms should be limited only to the extent really needed to protect the rights of others or to safeguard some clearly defined competing and compelling public interest, and in the present case, the extremely compelling public interest in ensuring a fair trial by jury.s

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It would be a wholly unacceptable interference with the right to free expression to seek to prevent or to penalise the press for cheque-book journalism in any generalised sense; that is, for paying informants and others for information and opinions. Such a restriction would greatly hamper investigative journalism and the task of the press in acting, in the words of the noble Lord, Lord Burnham, as public watchdog, and would be an unnecessary restriction on free speech. At its most extreme, such a ban would apply even to the memoirs of noble Lords! It would also be an unacceptable restriction to penalise cheque-book journalism because of strong popular aversion to the author's views or even his conduct.
As the noble Lord, Lord Birdwood, put it, we cannot legislate against bad taste. There was a dramatic example of that, which came to my mind when listening to the noble Lord, Lord Dubs, as regards the American "Son of Sam" case. In that case a psychopathic killer, who killed five people in New York, caused such public outrage that New York State hastily passed a well-intentioned law to cream off the profits of any criminal's books to the victims of his or her crime. The American Supreme Court had no difficulty in striking down that law as being content-based censorship that was discriminatory and over-broad, however well motivated the law might be. That shows that even in a hard case of that kind if a criminal, or former criminal, is seeking to profit from his memoirs, those who are concerned with protecting free speech must tread carefully lest they go too far.
But what the noble Lord, Lord Dixon-Smith, raises, in drawing attention to the case for statutory limitation of the use of cheque-book journalism in connection with criminal trials, is not the spectre of state censorship of the contents of newspapers or books, but the important and difficult question whether new measures are needed to combat the unethical practice of offering to pay witnesses or potential witnesses in criminal trials for their stories an amount of money which may or may not depend upon the jury's verdict. Is there a sufficient mischief to require legislation? Is the existing law, notably on contempt of court, sufficient to deal with the mischief? Would any new legislation be workable? Would it be sufficiently carefully tailored to the need to protect the course of justice without unduly hampering free speech? Would more vigorous use of contempt proceedings, coupled with voluntary regulation via the Press Complaints Commission, be sufficient?
The problem, as several noble Lords have said, is not new. It arose notoriously in connection with the Moors murder trial 30 years ago, to which the noble Lord, Lord Dixon-Smith, referred. Widespread and justifiable concern was expressed at what had happened in that case. The trial judge, Mr. Justice Fenton Atkinson, asked the Attorney-General of the day, Sir Elwyn Jones, to investigate what seemed to the judge to be:
"a gross interference with the course of justice";
in other words, a serious contempt of court.
The Attorney-General informed the other place in May 1966 that there was no evidence that the testimony of any witness had been affected by the payments in
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question. The Attorney-General therefore decided not to take contempt proceedings against the newspaper concerned because there was no sufficient evidence. But Sir Elwyn Jones made it clear that the practice of paying witnesses for information about the subject matter of a trial, and interviewing them about the information before they give evidence, could give rise to a criminal contempt of court. That is important, because it supports the view of the noble Lord, Lord Burnham, which I share, that existing criminal contempt sanctions are readily available to deal with the worst instances of that kind of cheque-book journalism, if only the Attorney-General will make use of them.
Lord Justice Phillimore's Royal Commission on contempt of. court next discussed the problem in its report in 1974. What has not been mentioned is that the Phillimore Report recognised that there would be difficulties in framing legislation to prohibit the practice. "Clearly", it wrote:
"it would be going too far to prohibit all offers to witnesses, especially those which were not contingent upon the outcome of the case. Much would depend on the size and circumstances of the offer, and there would be obvious difficulties of proof if prohibition were confined to contingency payments, since the contingency aspect could easily be concealed".
The Royal Commission on the Press, chaired by Professor MacGregor, as he then was (my noble friend), then undertook the inquiry into cheque-book journalism that had been recommended by Phillimore. In its report in 1977, the Royal Commission expressed its belief that:
"those who write, or lend their names to, these stories are under considerable pressure to exaggerate their most sensational features. This tendency is likely to be increased when different papers compete for the same story".
The Royal Commission did not recommend legislative measures to deal with cheque-book journalism, but it urged the Press Council to keep a special watch to ensure that its declaration on the subject was obeyed, and to give an opinion when breaches occurred.
The problem was considered yet again, and in enormous detail in a report as long as a novel by the Press Council in the early 1980s, as a result of the Sutcliffe case. It was a comprehensive, masterly, hard-hitting report, probably the best authority on the subject. The council made it crystal clear that contingency payments are unacceptable by the established standards of conduct in the British press, and are liable to censure. The Press Council went on to censure an offending newspaper in relation to the Sutcliffe trial.
The Home Secretary, Mr. Whitelaw as he then was, meanwhile made it clear to Members of the other place that legislation would create considerable difficulties of definition and enforcement. In this House, the noble Lord, Lord Belstead, then Under-Secretary of State for Home Affairs, said on 14th May 1981 that:
"cheque-book journalism takes many forms, some of which are inherently distasteful. The Government believe that it is preferable for the practice to be controlled by voluntary restriction in the case of the press, through the influence of the Press Council".
At that time, Parliament was in process of enacting the Contempt of Court Act 1981 to give effect to Phillimore. No doubt because of the formidable problems of definition and enforcement, no separate

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offence was created to deal with that mischief. The Contempt of Court Act 1981 specifically preserved criminal liability for common law contempt; that is, conduct intended to impede or prejudice the administration of justice. The limits of common law contempt are set by the courts, flexibly and firmly, on a case-by-case basis, in deciding where the public interest lies. In the "Spycatcher" contempt proceedings, in which I should declare an interest, as unsuccessful counsel for The Sunday Times, the Court of Appeal made it clear that the necessary criminal intent would be inferred by the courts where interference with the administration of justice, as a result of the defendant's conduct, is a virtual certainty. As the "Spycatcher" case shows, it is therefore readily easy for the courts to infer that the editor or publisher of a newspaper has the necessary specific intent in such circumstances, because he will be taken to intend to bring about the virtually certain consequences of his actions.
It seems to me that there are powerful arguments for concluding that newspaper editors and publishers will be guilty of contempt of court where they indulge in the unethical practice of offering to pay witnesses or potential witnesses in criminal trials for their stories an amount of money which depends upon the jury's verdict. Conduct of this kind would seem to be virtually certain (as the Royal Commission found) to influence witnesses in some way in the kind of evidence they are likely to give. Where it is a virtual certainty that such conduct is likely to colour the witness's evidence in court, or that the jury's knowledge of the existence of such an arrangement is likely to affect its evaluation of the witness's evidence, the courts will surely infer the necessary specific intent to impede or prejudice the administration of justice.
We all await with great interest the opinion of the noble and learned Lord the Lord Chancellor on this matter, as the Minister responsible for the law of contempt. If he will permit me to say so, the noble and learned Lord, the Lord Chancellor, has demonstrated, again and again, his deep respect for free speech and a free press: in abolishing the restraints on the judges' freedom to write and to speak out of court; in refusing to allow draconian foreign libel laws to be invoked in our courts; in seeking to ease the unacceptable burdens and to reform the antique procedures of English libel law; and in refraining from introducing a new-fangled statutory privacy tort, leaving it instead to the courts to develop the common law, and the Press Complaints Commission to deal with complaints. The Lord Chancellor is also of course concerned to maintain the independence and the authority of the courts in administering justice in this matter and elsewhere.
In considering whether further legislation is needed, it is also important to have full regard to the very valuable work being undertaken in this field by the greatly strengthened Press Complaints Commission, about whose role its distinguished independent chairman, the noble Lord, Lord Wakeham, has spoken with such clarity and candour and whose other members include three distinguished, and equally independent, Members of this House—the noble Lord, Lord Tordoff and the noble Baronesses, Lady Dean of
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Thornton-le-Fylde, and Lady Smith of Gilmorehill—together with another strongly independent and legally qualified member, Lady Browne-Wilkinson.
The noble Lord, Lord Wakeham, informed us of the tough stance taken by the current code of practice and the difficult problems which arise in framing clearly prescribed workable standards. He made an important suggestion for a new protocol to ensure that the commitment to voluntary control in this area is fulfilled in deed as well as word. Speaking for myself—and this is not a party-political matter—I strongly agree with the approach indicated by the noble Lord, Lord Wakeham. I would add the pressing need for recourse to contempt proceedings by the Attorney-General it appropriate cases. The noble Lord, Lord Marlesford, said that something should be done. I agree with him. What should be done is the bringing about of the new protocol, and the law of contempt of court should be invoked where cheque-book journalism is virtually certain to impede or prejudice the administration of justice. However, like the noble Lord, Lord Wakeham, I doubt whether a blanket prohibition would be practicable. It would in any event have to be accompanied by a broad public interest offence which would create much uncertainty.
7 p.m.
Lord Donoughue: My Lords, I should declare a historic interest as a former journalist on four newspapers. I wish to thank the noble Lord, Lord Dixon-Smith, for giving us this opportunity to debate the matter. I wish also to congratulate the noble Viscount, Lord Exmouth, on his excellent if belated entry into the proceedings of our Chamber. I hope that on hearing that other hereditary noble Lords who have delayed for the odd decade, or quarter or half century, before visiting us with their wisdom will come before us perhaps before the door is finally closed.
The subject before us tonight is not a new issue. Since the 1920s our newspapers have paid defendants, even providing fashionable QCs to defend them, and have paid witnesses, boyfriends, girlfriends and families. I noted that recently even the BBC paid a witness. Perhaps we should think of that matter when debating the BBC Charter after the Christmas Recess.
Recently there have been many cases in which newspapers have appeared to be in contempt of court—I am not a legal expert—but nothing has been done. The Law Officers have appeared to many observers to be "not over-active". I did not know which word to use in the presence of the noble and learned Lord the Lord Chancellor so I used that expression. Governments have ignored Royal Commission reports for the past 20 years. As was pointed out by the noble Lord, Lord Lester, that commission did not recommend action in this respect.
I am concerned tonight about the payment of witnesses, although the cheque-book journalism issue goes much wider. I agree with the Chief Constable involved in the Rosemary West trial who afterwards said that the basic question was:
"Are we running criminal justice as an entertainment business, or as something that the public has confidence in and that will deliver justice?".

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That is the heart of the constitutional problem before us.
In that context, we must recognise that we should not express indignant surprise that cheque-book journalism is so virulent. Our newspapers are not particularly concerned with principles of the law and its fair conduct or the principles of a good society. Proprietors, at least those whom I have met—I must declare that two of them terminated my contract—are concerned with money and political influence; editors with circulation and opinions and journalists with stories, whether fact or fantasy. After all, cheque-books buy journalists and it is not surprising if they assume that others, including witnesses, should in turn be bought by cheque-books. It is too much to expect natural good behaviour in journalism. It is not a profession, although that word is often used. The noble Lord, Lord Deedes, who is not in his place, in his brilliant column often refers to journalism as a profession. I am always tempted to write to him. I admit that it has behavioural aspects in common with the oldest street profession and in my view shares with lawyers a major concern with money. However, it has no proper professional qualifications, standards or discipline and certainly little regard for what one ancient proprietor called the two F's of fairness and factuality, although it is of course concerned, almost obsessed, with the third F.
I make those observations after a 36-year on and off connection with journalism. It is important that noble Lords, and in particular noble and learned Lords, realise that if they require much better behaviour from journalism in this area for the better conduct of the law they will have to seek judicial means of imposing it. I believe that the noble Lord, Lord Wakeham, in his excellent and interesting speech, actually said that. It will not come naturally from journalism as a contribution to a better society, which is not one of its objectives. If a tabloid newspaper believes that paying a witness even to bend evidence, provided that that does not appear, will produce a sensational story and a higher circulation, that will often happen.
That is the reality of what we are dealing with. When talking of free speech, it is no good having a great Jeffersonian fantasy. That is the reality of a modern commercial business. In that context, I wish to consider the role of the Press Complaints Commission, the industry's self-regulator. The noble Lord, Lord Wakeham, is working very hard for better self-regulation, and I wish to congratulate him on and encourage him in doing that. The noble Lord is doing a splendid job and he made a very good speech tonight. I look forward on another occasion to hear him announce further tougher rules on, for instance, rights of reply, privacy, doorstepping and various other aspects of what has been called media hooliganism.
However, I believe that as regards the paying of witnesses, one is being unfair and is expecting too much in expecting him to deliver voluntarily everything which the judiciary may require. We have yet to hear what it requires. The noble Lord has already achieved miracles, but that is beyond him. He can only secure voluntarily what the newspapers volunteer. Today's question is
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whether they will volunteer to stop writing cheques to gain circulation. I personally doubt that unless the law intervenes.
The Press Complaints Commission has its Clause 9 on the voluntary code which, on first reading, appears to ban such outrageous activity. It must in fact be ambiguous because it is so often breached. It was widely reported that the noble Lord's predecessor at the PCC allegedly—I do not know whether it is true—gave the green light to the Star to pay Rosemary West's stepdaughter, actually stating that the code was ambiguous. If it is ambiguous it must be made watertight.
Tonight the noble Lord, Lord Wakeham, proposed a new protocol and I should like to welcome that—
Lord Lester of Herne Hill: My Lords, I am sorry to interrupt the noble Lord and wonder whether he will give way. Has he given notice of what he has just said to my noble friend Lord McGregor of Durris? It seems to me a rather surprising statement to make.
Lord Donoughue: My Lords, no, I have not. I did see him here earlier. If he reads my words, he will know that I said that it has been reported. I shall happily give him the newspaper extracts that say that. I did say that I did not know whether that was true.
Lord Lester of Herne Hill: My Lords, the noble Lord has been critical of the press and I am sure that he will agree that one should make such a statement only after one has checked that it was said rather than merely reported that it has been reported.
Lord Birdwood: My Lords, perhaps I may clarify that. The very words which the noble Lord has just used were quoted specifically in the Economist on 25th November.
Lord Donoughue: My Lords, I thank the noble Lord for that helpful intervention. I saw it there and elsewhere. I insist that I bear no towards the noble Lord, Lord McGregor, who is an old friend and an old colleague. I merely quoted what appeared in a very reputable journal. I see that the noble Lord, Lord Marlesford, nods his head because he worked for it for many years. I merely said that those words had been quoted and I did not know whether they were true. I would welcome clarification on that. The importance is that, if it is true that it is ambiguous—and I suspect from what was said earlier that it is true—it is quite right that it needs clarification.
Perhaps I may return to what I was saying about the new protocol. It states that it will be necessary to prove legitimate public interest. That does not mean just that it would interest the public. That is very helpful. I believe that the noble Lord said also that the amount of the payments should be published.
Lord Wakeham: My Lords, I said that the information about the cheque-book journalism should be made available to both the prosecution and the defence.
Lord Donoughue: My Lords, I would go beyond that. Any article published by means of cheque-book journalism—whether the old lag has published his recollections or the young bimbo has published her

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recollections—should at the end state that, "£50,000 was paid by the News of the World for this article". That would be extremely helpful in assessing the value of such articles.
But, on the whole, that protocol seems to me to demonstrate great and helpful progress. The noble Lord, Lord Wakeham, has used this occasion very valuably. He has made significant progress in this difficult area. I wish him well in persuading the media industry to accept it, as I hope and as I am sure it will.
But I do not believe that that is enough. The noble Lord talked about not having received complaints on the issue. Many people are concerned that perhaps the Press Complaints Commission does not initiate investigations but awaits complaints. It would be a welcome move were it more often to initiate investigations, whether or not there are complaints from outside.
In that context I ask: who will complain? The newspaper will not complain; the recipient of the money will not complain; and nobody will know until it is too late. Therefore, I believe that that is an area where further progress can be made.
Some arguments are made in defence of newspaper freedom. I saw in The Times on 29th November an article by a journalist which said that any restrictions in this area would infringe free speech. It admitted that witnesses in court cases might lie "to make the story more saleable". But the article went on to say that infringing free speech is worse than that. I was quite shocked by that. The journalist was saying that infringing free speech is worse than perverting the course of justice. What nonsense that is. I felt that in that there was an arrogance of modern journalism—saying that its licence and unaccountability are more important than the process of justice.
It has been said also that such cheque-book journalism is defensible because it sometimes exposes crime. I do not accept that as a defence—that because it helps to expose people to the system of justice, it is excusable then to distort that system of justice. That is not acceptable. In any event, we pay the police to catch criminals. Down that slippery slope somewhere lies paying jurors. I wonder whether freedom of speech comes before that.
Another argument put in defence of cheque-book journalism was quoted by the noble Lord, Lord Birdwood, and the noble Lord, Lord Moyne, mentioned it; namely, that there is a willing seller and a willing buyer and the public buys what the press produces. In my experience, I did not feel that the newspapers were necessarily producing what the public wanted. On the whole, they were printing what the journalists wished to write.
I do not accept that a willing buyer and a willing seller is sufficient to justify it. I am not impressed by that—it is also true of the trade in hard drugs or in hard pornography. There are many willing sellers and willing buyers. Society can decide that some kinds of anti-social behaviour are unacceptable. Parliament and the public believe that that kind of cheque-book journalism is unacceptable. As I said, ultimately the only sure remedy is through the law. I was extremely interested in and
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sympathetic to the proposed amendment of the noble Lord, Lord Marlesford, and I hope that it is examined seriously.
I was also very impressed by the excellent speech of the noble Lord, Lord Lester. He pointed to the direction of legal action under current law. I join him in asking why those questions are not covered satisfactorily by the contempt of court legislation. I have read that the Scots regulate those matters, as many others, better, and I look forward to the comments of the noble and learned Lord the Lord Chancellor.
But if the present law is inadequate—and recent experience suggests that it is—or is being applied inadequately, we must proceed to new law. I accept that it is not easy to draft new legislation. Several noble Lords have indicated the problems involved. It rarely is easy to legislate perfectly, but we should try. The present situation is intolerable in, a society based on the rule of law. I would support any reasonable amendments to prevent this misbehaviour.
We need stricter new laws or more strictly enforced existing laws. They must be enforced by diligent law officers to ensure fairness in the justice system. We also need more clarity and certainty as regards the rules of the PCC, and we must ensure that that aspect of press regulation is less ambiguous. But we have been greatly reassured about that this evening. Above all, the media needs that so that those who behave well—and there are newspapers that behave well—will not lose out because of competition from miscreants. Therefore, it is extremely important to support what is best in journalism. We have an opportunity to do that. I look forward with great interest to what the noble and learned Lord has to say this evening.
7.18 p.m.
The Lord Chancellor: My Lords, I begin by thanking my noble friend Lord Dixon-Smith for introducing this extremely important and difficult subject to your Lordships for debate. I thank also all your Lordships who have taken part. In particular, I thank the noble Viscount, Lord Exmouth, for an extremely thoughtful and instructive maiden speech. I join with the noble Lord, Lord Donoughue, who indicated that he would not wish—perhaps he did not go quite that far—to close the door to future opportunities and that it would be a pity to deprive our successors of opportunities to hear the speeches of such distinguished Members of this House on the basis of the title from which they speak.
These issues are extremely difficult and they have been brought to public attention in connection with the West trial. An appeal has been lodged in that case and your Lordships will therefore expect me to be extremely circumspect in what I say about it.
A great deal has been said about the background behind this sort of matter and the moral values which are at stake. We all appreciate those. The reason that particular things have value, or are judged to have value, is usually because people are willing to read them or at least to buy them. No doubt they read some of what they pay to buy although, possibly, not all of it.

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That brings me to the comment on Scotland made by noble friend Lord Moyne regarding the people who were interested in the serialisation of a certain book in a particular newspaper. I was glad to think that there are other than Scotsmen in Scotland and that, therefore, it was not necessarily an attack on the high standards of my countrymen.
I should like, first, to say a few words about the existing law. So far as concerns contempt of court, the existing law has been expressed. But it is only right that I should mention it again. The Contempt of Court Act 1981 provides that conduct tending.to interfere with the course of justice in a particular case amounts to contempt—that is to say, one has to show that the conduct tended to interfere with the course of justice. It applies to publications which are issued while proceedings are active.
The noble Lord, Lord Lester of Herne Hill, also mentioned the common law under which an act which is calculated to interfere with the administration of justice or prejudice the course of justice is a contempt of court. The application of that principle to payments to witnesses by the media has not been tested by the courts, but it appears reasonably clear that, in order to base proceedings under that head, it would be necessary to show an intention to prejudice the proceedings.
The enforcement of contempt of court has also been mentioned. I strongly believe that the present law officers do take action when it is justified under those headings. The only case that I know of in which their decision was challenged resulted in their being vindicated on a judicial review of not taking action in a particular case. Therefore, I do not accept for a minute any suggestion that they are inactive or neglecting their responsibilities in the matter. Indeed, I believe that they carry them out. Of course, one needs to know a great deal about the facts of a particular instance before one can reach a judgment about whether any of those provisions to which I referred apply.
The other aspect of legislation that I ought to mention is that which concerns payment to criminals to which reference has been made. So far as concerns payments to criminals, the courts have already held in the case of Randle and Pottle that payments for writing a book can be regarded as property obtained in connection with crime and so are liable to be confiscated on conviction. The Proceeds of Crime Act 1995 which came into effect on 1st November 1995 also provides power to seek confiscation of such payments received up to six years after conviction. Those provisions could not, of course, be used in the West case for obvious reasons. Therefore, there is a degree of statutory effect in that area, although it is not directly related in this particular connection to the publication; it is directed to the proceeds received by the criminal regarding the selling of the story or the writing of a book.
I certainly strongly support, as indeed do most speakers in tonight's debate, the desirability of a free press. But that freedom requires proper exercise of responsibility. That is particularly so when it comes into a relationship with the administration of justice and the
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holding of a fair trial of accused persons. The Contempt of Court Act to which I referred recognises that balance and has it strongly in favour of the administration of justice. Therefore, the freedom of the press is not allowed under the contempt of court rubric to prejudice the administration of justice in the way that I described.
The next question is: what should be done? I refer now to payments to witnesses. The generality that has been mentioned is, to some extent, dealt with in the provisions to which I just referred for confiscation. It is a matter which the Home Secretary, the Attorney-General and myself are considering in the light of recent experiences. I believe that I can say that generally; but, of course, that is not confined to a particular case. We are examining the case for further legislation.
I am grateful for the suggestions about what form further legislation should take which were made during the course of the debate. Your Lordships may be assured that we shall pay close attention to them. One of the difficulties is highlighted by the amendment proposed by my noble friend Lord Marlesford in the sense that, by the time a person has actually become a witness, it is probably too late to apply the prohibition. Therefore, one has to look at a starting point. One needs, at least in some cases, to be something of a prophet to know whether or not a person will be required as a witness in a particular case. Therefore, there is a question about precisely what one can do, or lay down, as a starting point for that offence.
Further, one needs to be quite clear about the nature of the mischief. If, as a result of a payment, a witness says something prejudicial either to the prosecution or to the defence which is not true, it is perfectly plain that that is something extremely serious which one would wish to stop. However, the difficulty arises in the intermediate type of case. For example, what is the newspaper or the other payer paying for? What exactly is it that they are obtaining?
The suggestion often made is that the witness exaggerates or colours the evidence to make it somewhat more expensive than it would be if it was given in the ordinary way. That kind of situation is difficult to establish. Indeed, to prove that that has happened would be quite difficult. Therefore, one has to think quite carefully about precisely what would be the conditions of the offence. In his proposal, my noble friend is really outlawing all payments up to a certain point. But the question is whether witnesses who might receive money should be deprived of it if no harm is done by their receiving such money. Therefore, one has to be reasonably clear about precisely what it is that one wishes to legislate against.
I have already mentioned the timing so far as concerns the start of the period covered by the offence. There is also the question of when it should stop. For example, some people believe that it should be outlawed to make any agreement until the trial has concluded. But then there is always the question of an appeal, and when does one stop? Of course, in a way, there could be greater danger in having the prospect of an agreement arising later. If one is looking at the evidence that the

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witness will give and there is the prospect of some money in the future (if the story is good enough), that will, perhaps, also tend to have the effect of damaging the witness's evidence.
Those issues are quite difficult in relation to the formation of a particular offence. However, I am comforted in that thought by the fact that the Phillimore Report made it clear that that matter was looked at quite closely and that difficulties in the framing of an offence were envisaged. It is also a comfort for me, in relation to what I said earlier about the Law Officers, that it is plain that Phillimore thought that if this matter were to be dealt with it would have to be dealt with as something rather distinct from die ordinary law of contempt of court.
This brings me to say how much I welcome what my noble friend Lord Wakeham had to say. If I may presume to do so, I welcome him back. We have missed him for a time and it is good that he is back, particularly when he has such an important message to bring to us. I personally warmly support his efforts in relation to a protocol. The noble Lord, Lord Donoughue, has rather suggested that it might not be quite as successful as the noble Lord, Lord Wakeham, would like, but it appears to me to be a considerable effort in the right direction. It is extremely important that, where a payment has been made, the court should know about it. One of the dangers is that someone is involved in contact of this kind but it does not emerge in court. The cross-examination may bring that out but not all answers to cross-examination are truthful. This fact may not emerge until after the trial. One can imagine what effect that would have on a concluded jury trial if the matter had not been investigated. Therefore the requirement that it should be intimated to the parties to the trial is an important matter. Whatever may be the rights or wrongs of going further, that seems to me to be an important step in the right direction.
My noble friend Lord Birdwood asked about the intimation of these matters to other authorities. It may be that in some circumstances if someone was in receipt of benefit, the Benefits Agency would be entitled to be told about it at some stage if it was relevant to the benefit. I doubt whether the payer would have any such obligation. As regards the Inland Revenue, I suspect—I may be wrong about this—that these matters would form part of the expenditure accounts of the newspaper in question but they would be unlikely to be broken down in sufficient detail to make a real intimation to anyone of a particular payment.
I conclude by saying that we are examining carefully what should be done in this area. We are extremely grateful for what the noble Lord, Lord Wakeham, had to say. If this matter can be solved by going down the route he suggests, that would be extremely desirable because the legislation would be difficult. It is not wise to rush into legislation in a difficult area like this but the suggestions which your Lordships have made as regards the terms in which that legislation might be couched are extremely valuable and a great help to us in our further consideration of these matters.
Lord Lester of Herne Hill: My Lords, before the noble and learned Lord the Lord Chancellor sits down, I
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hope I may ask a question about the state of the law as it now is. I suggested in my speech that, although a specific intent is needed for the common law of contempt, that intent would be inferred by the courts where there was a virtual certainty that as a result of, for example, a large payment being made to a witness, an interference with the course of justice was inevitable. If I am right about that—I would be grateful to know whether that is also the view of the noble and learned Lord the Lord Chancellor—that certainly would be a severe warning to the press that common law contempt is a real weapon. If on the other hand I am wrong about that, it seems to me it is important that the House knows that because it would be a situation that perhaps cried out for legislation.
The Lord Chancellor: My Lords, the press should certainly have in mind that the criminal law of contempt is alive and is capable of dealing with cases in this area. However, there is a difficulty as regards proving intent. The noble Lord cites an example of what he calls a large payment. The very fact that he puts it that way suggests that he does not have a precise test because it is a matter of how large the payment has to be. Different people have different views on that matter. What is large to me might not be large to the noble Lord as I stopped practising a long time ago.
These are relative matters. When it comes to the question of intent in this matter, what one is having to show is that the intention of making the payment was to interfere with the course of justice. I cannot imagine that most people who make these payments—however, I cannot generalise and I have no personal experience of making any such payment, as your Lordships will understand—would be willing to accept that that was the reason they made the payment. They would make the payment in order to inform the wider public of the interesting material that the witness had disclosed to them. I believe that the dangers in this area are perhaps more subtle than describing an intent of that kind. When a witness has gone over a statement with someone in detail and has perhaps repeated that, it has an effect on the witness's memory and on what the witness recollects. One has certainly seen this in particular cases. I wish to make it clear that I believe that the law of criminal contempt is a lively law not to be left aside. However, I do not believe that it will necessarily provide an answer to all the situations which are the subject of concern in the debate this evening in respect of payment to witnesses.
7.35 p.m.
Lord Dixon-Smith: My Lords, I am glad that I overcame my reluctance and put this Motion down on the Order Paper. I am most grateful to all noble and learned Lords and to noble Lords who have taken part in the debate. I beg leave to withdraw the Motion.
Motion for Papers, by leave, withdrawn.

Western European Time Bill [H.L.]
7.36 p.m.
Read a third time, and passed, and sent to the Commons.

Motion for the Adjournment
Lord Strathclyde: My Lords, the lot of the Chief Whip is not always a happy one but one of the most pleasant duties at this time of year is to move the adjournment of the House. In doing so I should like to take the traditional opportunity to thank all the staff of the House for their efforts on our behalf. I hope that the House agrees it would be invidious to single out any particular groups of staff and therefore I shall confine myself to thanking most warmly all those who work both behind the scenes and in front of them to make our proceedings possible. To them, and indeed to all noble Lords wherever they may be during this festive season, I wish a happy Christmas and a peaceful and prosperous new year. I beg to move that the House do now adjourn.
Moved, That the House do now adjourn.—(Lord Strathclyde.)
Lord Graham of Edmonton: My Lords, twice a year the Government Chief Whip and I have the delightful duty publicly to thank those who serve us. However, I know that he and I every day take many opportunities to thank those individuals who give us service. The year 1995, in my recollection, has been no less onerous than other years and therefore the thanks and gratitude of the House are certainly due. Whatever divides us, there are certainly more things that unite us, and one of those things is the gratitude that we wish to extend to those who have given us service. The very least we can do is to acknowledge that; and I do so from these Benches with a full heart and in the same Christmas spirit evoked by the Government Chief Whip.
The Viscount of Falkland: My Lords, yet again this year the happy duty falls to me to echo the words of the noble Lord the Government Chief Whip and the noble Lord the Opposition Chief Whip.
Normally, I try to mention a group of people who I think have not had the recognition that they deserve. Because I bring a number of guests to the House each year and show them round, I should like to thank all members of the staff of your Lordships' House who make that such a pleasant duty to perform and such an enjoyable and profitable experience for the guests. That applies to the restaurant staff and the Doorkeepers who go to such lengths to smoothly find them places in the House so that they may listen to a small part of the debate. That shows off the House extremely well and is much appreciated, not only by the hosts but by the guests as well.
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On behalf of these Benches, I should like to wish everybody a very happy Christmas and a prosperous New Year.
Lord Chalfont: My Lords, it is a great privilege to be allowed to associate the Cross-Benches with the sentiments that have just been expressed.
In doing so, perhaps I may mention that in the 30 or more years that I have been a Member of your Lordships' House I have found that one of its abiding virtues is its sense of tradition, history and permanence. That was most vividly shown this year when the noble Viscount the Leader of the House organised with such skill and imagination the events that celebrated the end of the Second World War. I could not help reflecting that three-quarters of a century ago—a little before I came to the House—one of the noble Viscount's predecessors as Leader of the House, Lord Curzon, organised with equal skill ,and imagination the celebrations which marked the end of the First World War. That link illustrates the timeless and permanent nature of this House.
There is another link, to which other noble Lords have referred; namely, the style and efficiency with which our staff look after us.
I understand that among the Doorkeepers, who have already been wished a happy Christmas, one—Mr. Thompson—has been transferred to the other place. Therefore, it would be appropriate to offer him our condolences as well as our good wishes.
I hope that it will not be thought a sign of Celtic hedonism if I reserve a special word for the staff of the Refreshment Department. It is a cliché much loved by gossip columnists that this House is the best club in London. If it is, that is largely due to those who look after us in the Guest Room, the Bishops Bar, the Cholmondeley Room and the Barry Room. In that context, I should like to express the hope—which I trust the Government Front Bench will note—that we can be assured that there will be no problems in all the new arrangements that are made for the administration and accommodation of the catering staff. They have a most responsible task. They will have an even more responsible task when the new facilities come into use in the new year, and they deserve generous office and administrative space. I make that point simply in passing.
I conclude by wishing all noble Lords and the staff of the House a very happy Christmas. In doing so, I express the hope that for all of us 1996 may be, at last, a peaceful year.
On Question, Motion agreed to.
House adjourned for the Christmas Recess at seventeen minutes before eight o'clock until Tuesday, 9th January next.