Damages-Based Agreements Regulations 2010

My Lords, I know that the Minister was hoping for a relatively brief debate. We originally scheduled this business for the Moses Room but, because of various concerns, it was, quite rightly, shifted to the Chamber. He will probably understand that the debate is not going to be as brief as he originally hoped, but I shall try to keep my own remarks short and try to be helpful by saying that we have no intention of opposing the regulations and order. However, we want to ask a number of questions, the first and principal one being: why now and why the rush? In an earlier debate, my noble friend Lord Freud commented to the Minister that we seem to have seen a great rush of regulations coming before this House in these weeks running up to a general election. One has to be somewhat suspicious about the Government’s motives when we see that and particularly when we see these two statutory instruments. The Minister, like all Members of the House, will know of the vast number of concerns that have been expressed about these instruments. We have all been lobbied by the Bar Council and the Law Society. I imagine that many noble Lords have received briefing from individual members of the Bar, from other individuals and from individual law firms, and late on a Thursday afternoon we are seeing a slightly more crowded Chamber than we are used to. I am sure that the Minister has not faced quite so many noble and learned Lords at this time on a Thursday afternoon in recent years. We have also had the comments of the Merits Committee. The real question that we want to put to the noble Lord is: in the light of the Jackson report, which has been referred to, why do the Government want to deal with these particular items? It is not even as though they are picking one bit out of Jackson, because this was not recommended in that report. Why do they want to deal with them at this stage and so quickly? The noble Lord himself referred to the Merits of Statutory Instruments Committee. He said that he and his right honourable friend the Secretary of State and Lord Chancellor had had a meeting with the chairman of that committee, the noble Lord, Lord Rosser, and the noble and learned Lord, Lord Scott of Foscote. He said that they had discussed these matters with them. He was then rather coy about the result of those discussions, but perhaps he will let us know what it was when he comes to reply. We are told in the 14th report of that committee that the regulations and the order are both drawn to the special attention of the House on the grounds that they may imperfectly achieve their policy objectives. I do not think that I need to quote the further conclusions, but in paragraphs 8 and 10 in relation to the regulations and paragraph 17 in relation to the order further comments were made by the committee about these instruments. Although the noble Lord will have to wait some time before he does this, because I think that there will be many other comments, I should be very grateful for a response on that. I turn, almost at random, to one of the groups that lobbied us. The Bar Council sent me quite a detailed letter about what was going on. It stresses that the Jackson report was part of the consultation and that the Government rather ignored its recommendations in the case of the order, in that they reduced the amount of consultation to a matter of just a few weeks, again in complete contradiction of the code of practice on consultation, which recommends something somewhat longer. Again, I quote from one of the Secretary of State’s comments in response to the consultation. He said that, ""it is vital to the maintenance of press standards that access to justice for those who have been defamed is preserved"." As the Bar Council makes clear, that is a quotation from the Commons Select Committee on Culture, Media and Sport, published on 24 February this year, which the noble Lord referred to. The committee disagreed with the ministry’s proposal that the maximum level of success be capped at 10 per cent regardless of whether it is recovered from the losing party or from the client. It saw no reason why any balance should not be agreed between solicitor and client. That is not an option that the ministry appears to have considered. I put to the Minister a point made by the noble Lord, Lord Martin of Springburn: where does this figure of 10 per cent come from? It might be, and I do not know, that 10 per cent is the right figure. It might be that 100 per cent was the wrong figure. As the noble Lord, Lord Martin, put it: is there another figure that we should consider? Is the haste with which we are dealing with these matters somewhat unnecessary? Would it not have been better to have had a longer period of consultation and to have dealt with these matters in the proper manner? I do not want to take up too much time of the House, because the Minister—