Third Parties (Rights against Insurers) Regulations 2016

Lord Hope of Craighead Excerpts

Tuesday 22nd March 2016 Grand Committee

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, the draft regulations extend the range of people who are potentially within the scope of the Third Parties (Rights against Insurers) Act 2010. Subject to the prior approval of both Houses of Parliament, the draft regulations are to be made by the Secretary of State under the power in Section 19 of the 2010 Act. Section 19, in its present form, was inserted into the 2010 Act by Section 19 of the Insurance Act 2015. The purpose of the power is to make provision for adding or removing circumstances in which a person is potentially within the scope of the 2010 Act. The present circumstances within that scope are currently set out in Sections 4 to 7 of and paragraph 1A of Schedule 3 to the 2010 Act.

The draft regulations make a series of textual amendments to the 2010 Act, as amended by the Insurance Act 2015. The effect of the amendments in general terms will be to include corporate and other bodies that are subject to certain sectoral insolvency regimes or, within limited exceptions, have been dissolved within the scope of the 2010 Act. The purpose of making these amendments is to correct omissions from the 2010 Act so that it can be brought into force without adversely affecting people who are currently within the scope of the 1930s legislation that is to be replaced by the 2010 Act.

It may be helpful at this point if I explain the principles that underlie the third parties legislation in a little more detail. It has existed since the 1930s and is so called because the claimant is a third party in relation to the contract of insurance. The current legislation is the 1930 Act, which applies to England, Wales and Scotland, and the Third Parties (Rights against Insurers) Act (Northern Ireland) 1930. The purpose of the 1930 Acts, and indeed of the 2010 Act, is to protect the interests of claimants against insured persons who have a liability to the claimant but who no longer have effective control of their assets, typically because they are insolvent. The basic effect of the third parties legislation is to transfer to a third party to whom the insured has incurred a liability the contractual rights of the insured against the insurer as regards that liability. This means that the proceeds of the insurance policy are paid to the claimant, not to the creditors of the insolvent insured generally.

The 2010 Act is intended to extend and improve the protection conferred by the 1930 Acts. To trigger the application of the 2010 Act, an insured must both incur a liability to a third party against which it is insured and undergo an insolvency or analogous event specified in the 2010 Act. Unfortunately, following the enactment of the 2010 Act it was found, in some respects, to have a narrower scope than the 1930s Acts. This was partly as a result of the terms used in the drafting of the 2010 Act and partly because of developments in insolvency law following the financial crisis in 2008.

Had the 2010 Act been commenced immediately after its enactment, the effect would have been to deny insurance proceeds to claimants and to pass them to be shared out among the insured’s creditors. This would have frustrated the very purpose of the 2010 Act and had the effect of undermining the purpose of compulsory insurance, such as that which employers are required to maintain. The operative provisions of the 2010 Act have therefore not yet been brought into force and will not be so until these defects have been remedied. The remedial process is therefore essential to realising the benefits of the 2010 Act. Part of the remedial process was effected by the amendments to the 2010 Act made by the Insurance Act 2015. The draft regulations will complete the process.

I will now describe the working of the amendments to be effected by those draft regulations. First, they would extend the list of such insolvency or analogous events by adding the sectoral insolvency or administration procedures listed or referred to in the provisions to be inserted in the 2010 Act by Regulation 3 of the draft regulations. These additions cover the possibility of insolvency or administration under special legislative regimes that generally follow, but are distinct from, the Insolvency Act 1986 in a wide range of important business sectors where company failure has the potential to damage public interest or cause market contagion—for example, financial services and postal or energy companies.

Secondly, Regulation 4 of the draft regulations extends the scope of the 2010 Act to dissolved bodies, other than unincorporated partnerships and bodies that are no longer treated as dissolved by reason of subsequent events. The 2010 Act currently applies to dissolutions under Sections 1001, 1002 or 1003 of the Companies Act 2006 but not to other dissolutions, even though dissolution, after which a body will certainly not have effective control over its rights and assets, would appear to be the paradigm case in which a transfer of rights should occur. Regulation 4 therefore broadens the scope of the application of the 2010 Act to these other dissolutions.

The one exception to the proposed coverage of dissolutions generally is the dissolution of unincorporated partnerships. This exception is sensible, as technically a partnership dissolves each time a new partner leaves or is added. This would extend the scope of the legislation too widely, as many such partnerships would be going concerns. In the case of a partnership which is no longer trading, the insured would need to proceed against the individual partners.

The remainder of the draft regulations deal with ancillary matters. Regulations 5 and 6 amend Section 9 and paragraph 3 of Schedule 1 to the 2010 Act respectively. Section 9(3) and (7) of the 2010 Act provide that a third-party claimant does not have to satisfy a condition of the insurance policy regarding provision of information or assistance to the insurer by the insured if it cannot be fulfilled because the insured has died or is a body corporate which has been dissolved. Paragraph 3 of Schedule 1 to the 2010 Act gives a claimant the right to request information from officers, employees, insolvency practitioners or official receivers of a defunct body corporate, other than when the dissolved body has been restored or ordered to be restored to the register of companies. The draft regulations extend these two provisions to all dissolutions, other than those of unincorporated partnerships, irrespective of whether subsequent events result in the body in question being treated as if it is no longer dissolved or as if it had never been dissolved.

The reason for the wider application of these provisions as against the provisions relating to dissolved bodies inserted into the 2010 Act by Regulation 4 is that most such situations reversing a dissolution—for example, restoration to the register of companies—are temporary and unlikely to result in there being a person who is responsible and able, on behalf of the body in question, to assist the claimant by being able to fulfil the condition or to supply the information in relation to the liability.

Before I conclude, I should like to express my department’s thanks to all those who have contributed to the preparation of the draft regulations. It is not a simple matter, as I suspect noble Lords will concede. Insolvency law is fast moving and complicated. The Insolvency Service, the Accountant in Bankruptcy in Scotland and the Department of Enterprise, Trade and Investment in Northern Ireland have all made significant contributions to what has been a very difficult technical exercise. I am very grateful to them. I am also very grateful to the Commercial and Common Law Team at the Law Commission, which for most of the period in question was led by David Hertzell and Tammy Goriely, without whose expert knowledge and legal skills the draft regulations could not easily have been prepared. Finally, in a more general sense, I thank the Law Commission and the Scottish Law Commission for their continuing support for the reform of third parties legislation generally. I hope that in the not too distant future we shall be able to make that reform a reality.

In conclusion, the reforms to be introduced by the 2010 Act are supported by insurers and claimants alike. They apply to insurance of all kinds and will be particularly beneficial in cases of long-tail industrial diseases, such as mesothelioma. The approval of the draft regulations by your Lordships’ House will be widely welcomed and will be a key step on the way to the commencement of the 2010 Act.

I am afraid that I am not yet in a position to state when the Act will be brought fully into force, as the draft regulations remain subject to your Lordships’ approval and to approval in the other place. Nevertheless, I can say that, subject to allowing all parties affected no less than three months from the making of the regulations in which to prepare for commencement, the Government’s intention is to bring the 2010 Act, as amended by the 2015 Act and by what will then be the Third Parties (Rights against Insurers) Regulations 2016, into force as soon as reasonably practicable. I beg to move.

[Lord Hope of Craighead (CB)]

I am grateful to the Minister for his explanation and also for bringing this set of regulations forward for our consideration and for the House’s approval in due course. It is an extremely important area which I think anybody practising in the common-law field values very much. I have only one question and that is to ask for reassurance in relation to part of Regulation 3, which deals with the relevant bodies in insolvency or administration under sectoral legislation. This is an extremely sophisticated area of law and I join in the Minister’s congratulations to all those who have played a part in putting all this together.

A feature of the list of enactments set out in Schedule A1 is that all except the last deal with areas of regulation which are common to the United Kingdom, with the special provisions made in the case of Northern Ireland which are set out in the schedule. Aviation, energy, financial services, postal services and railways apply equally to Scotland as they do to England and Wales. But the question of water and sewerage has occurred to me, because Scotland, I believe, has its own legislation relating to sewers and water: there is the Water (Scotland) Act, the date of which escapes me, and I believe that there is a sewerage Act for Scotland as well.

I fear that without detailed research, which is beyond my resources at the moment, I am not sure whether the Scottish legislation provides for administration under a legislative scheme. I am fairly confident that the Water Industry Act 1991, referred to here, does not extend to Scotland. It may well be that those who have been looking at this in detail have reassured themselves that there is no need for a mention of the Scottish legislation, perhaps because it does not actually provide for this kind of administration. If that is right, of course I understand why there is no mention of those statutes, but it might be as well to be absolutely sure that there is not a gap here that ought to be plugged before the regulations are brought into force.

That aside, I regard this as a very fine piece of fine-tuning which I am sure will be greatly welcomed in order to avoid any further gaps in the valuable legislation.

[Lord Bach (Lab)]

My Lords, I, too, thank the Minister for his explanation of this statutory instrument. I confirm that it is not controversial in the slightest. We are happy to support it, as we supported, of course, the 2010 Bill as it went through Parliament. Indeed, I hope I may be forgiven for reminding the Grand Committee—it was some time ago now—that I was the Minister who took that Law Commission Bill through this House, using the special procedure. I was assisted then by an excellent team from the Ministry of Justice and I suspect—indeed, I am sure—that the Minister has been so assisted today.

The Minister will know that we on this side have many criticisms of much that the Ministry of Justice does these days, but in this area of complex but important law-making and law revision, we have nothing but praise. I have a couple of questions and comments for the Minister’s consideration, but they are brief.

The first point is about paragraph 8 of the Explanatory Memorandum, which deals with the consultation outcome. It says that the APIL and the ABI—the Association of Personal Injury Lawyers and the Association of British Insurers—have been consulted and are broadly content. The memorandum states:

“Both organisations expressed general approval of the Regulations”.

Is there a particular meaning to the word “general” in that particular context? I am pretty reassured that there is not, because I have a letter here from APIL itself, which suggests that it is happy with the regulations, but I wonder what the expression means in that context—probably nothing.

Prison Service: Trans Prisoners

Lord Hope of Craighead Excerpts

Tuesday 24th November 2015 Lords Chamber

[Lord Faulks]

The important thing is that there is no generalisation here. It is important to assess each individual prisoner according to the stage they are at and their particular case. It might be a diagnosis or they may have fully realised their gender transformation. That individual assessment is carried out by the Prison Service, involving the assistance of psychological services and healthcare experts. It is after that assessment that they should be assigned an appropriate part of a prison.

[Lord Hope of Craighead (CB)]

My Lords, can the Minister assure the House that the policies he just outlined apply in young offender institutions? I believe that Miss Thompson was 21 when she died and assume that she was in an adult prison, but I think it is common knowledge that people tend to become aware of their transgender nature when puberty emerges. Therefore, young offenders are particularly vulnerable and require particular care.

British Bill of Rights

Lord Hope of Craighead Excerpts

Wednesday 28th October 2015 Lords Chamber

[Lord Faulks]

There are no plans to leave the European Convention on Human Rights. My noble friend is correct to say that Conservatives had a significant role in drafting the convention. There are considerably more difficulties with the Strasbourg jurisprudence, rather than the convention itself.

[Lord Hope of Craighead (CB)]

My Lords, can the Minister tell us whether it is proposed to consult the devolved institutions, and if so, when that consultation will take place?

[Lord Faulks]

We will consult the devolved assemblies, because we are conscious of the intricate treaty arrangements that exist. We will do so thoroughly, and keep them well aware of all our plans.

Queen’s Speech

Lord Hope of Craighead Excerpts

Monday 1st June 2015 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I congratulate the noble Lord, Lord Dunlop, on his appointment to the House and on his speech, which I welcome. Perhaps I may say before he departs for a moment that I look forward very much to his contribution to our debates on the devolution issues that will be coming before the House in the next few months, especially those affecting Scotland. The reason for that is quite simple. The noble Lord’s expertise in this field will be greatly valued. The task of securing,

“a strong and lasting constitutional settlement”,

in the interests of the whole of the United Kingdom, to which the gracious Speech refers, will be a formidable one. It will not be easy to reconcile it with the restless demands for more powers to be devolved to Scotland which have been voiced by the third largest party in the other place. Only someone whose roots are as deep-seated in Scotland as his so obviously are can really appreciate the difficulties that a Government in Westminster will face in getting their message across to a suspicious public in Scotland. One cannot ignore the fact that so many voted in favour of a party whose ultimate aim is diametrically opposed to the lasting settlement that the Government seek to achieve.

There are of course many people in Scotland—the majority, indeed, as the result of the referendum showed—who support the one-nation approach. They very much wish to see the bringing together of the different parts of our country in the way the gracious Speech refers to, not just by promoting economic stability in the interests of all sections of society but by achieving a constitutional settlement which will be as strong and lasting as such a thing can ever be in a modern, socially aware democracy. But a very large question mark hangs over this declaration of the Government’s policy. How is this to be done? How are the people of Scotland, on whose views the holding together of the union will ultimately depend, to be persuaded that the Government’s policy is the right one? How are they to be persuaded that the recommendations of the Smith commission are being honoured in full when the Scottish National Party continues to assert that they are not? For my part, I do not think that legislation alone is the answer. Something more needs to be done, and I look forward very much to the efforts that the noble Lord will undoubtedly make in getting the message across.

Of course, this is not the time to look in detail at the Scotland Bill which has just been introduced in the House of Commons. At first glance, it is an impressive piece of work, extending to 64 clauses and two schedules. It will require a great deal of detailed scrutiny if everyone is to be satisfied that it gives full effect to the agreement set out in the Smith commission’s report. Of course, much of that scrutiny will take place in this House, as that is the way this Parliament works. I cannot help thinking therefore—the noble Lord touched on this point in his speech—that it is a pity that the SNP has set its face against nominating members of the party to sit here in this House. As the noble Lord knows only too well in view of the criticisms that were made of his appointment—I am not referring to the matter than the noble and learned Lord, Lord Falconer of Thoroton, referred to, but to a quite different point—opposition to the House of Lords is one of the SNP’s great remaining totems, as one commentator put it in a Sunday newspaper a few days ago. Reports by the House’s Constitution Committee, so ably chaired by the noble Lord, Lord Lang of Monkton, are routinely rubbished by the party’s propaganda machine, simply on the ground that this House is made up of Peers who are not elected. The simple fact is that they see this House as an affront to democracy. However, the fact is that this House exists and it does much valuable work. If the SNP wishes to make a serious contribution to what is being done in this Parliament as a whole, and to the scrutiny of this Bill in particular, has the time not come for it to think again—to follow the words of the famous song which is sung at rugby matches? Has the time not come for it to study what the House really does and to appreciate that the party needs to contribute to what goes on here if the arguments that it wishes to put forward are to be considered in detail, as they no doubt deserve to be?

That brings me to the other point, the proposal for a British Bill of Rights. There are many reasons for expressing concern about this idea, as well as grounds for relief that the Government have decided to refrain from legislating until further work has been done. I would simply make two points. The first is how one is to address the question of whether the enactment of a British Bill of Rights would be compatible with the devolution settlements with Scotland, Wales and Northern Ireland. I took part in a debate on the devolution statutes, a couple of decades ago I think. When legislative and executive power was being devolved, I recall that great care was taken to prohibit the devolved institutions from legislating or exercising functions in a way that was incompatible with the convention rights or with Community law. As I understood it, the reason was that it was thought necessary that this country should adhere to the treaty obligations in these two respects. Those obligations include, as the noble and learned Lord, Lord Mackay of Clashfern mentioned, the obligation under Article 46 of the European convention to abide by the final judgment of the European Court in any case to which this country is a party. It was thought, quite simply, that it was the responsibility of this Parliament to ensure that these obligations were respected in full when devolving legislative and executive power to others. One cannot be surprised about the opposition that is being voiced by the party in Scotland to the idea that the Human Rights Act should be departed from.

There is a real question here which I would like to draw attention to. It is being suggested in some quarters that the Scottish Parliament will have a veto on any alteration of the Human Rights Act as it affects Scotland under the Sewel convention, which is to be made formally part of legislation by the Scotland Bill. For my part, I rather doubt whether that argument is sound because the two crucial sections—Sections 29 and 57—which contain the prohibitions are not devolved. There is nothing, I think, in the Scotland Bill that is to come before us which will devolve those crucial sections either. As I understand the structure of the Act, those sections are deliberately reserved matters that are in the hands of this Parliament. I think that the argument that there is a veto in the hands of the Scottish Parliament is misconceived but that is merely my opinion and I ask the Minister to pay careful attention to this because there will certainly be a challenge when the point comes, if it is to come.

The other point is that I suggest that the Government need to recognise the extent to which the convention rights are so deeply embedded in our law as a result of decisions taken both by this House in its judicial capacity and by the United Kingdom Supreme Court since those days. Respect for those rights is firmly established in our jurisprudence and all the comparative work that has gone into it. To get rid of all of that is rather like trying to get rid of Japanese knotweed, which we hear about at Question Time. It will be as difficult and therefore one does wonder whether all the effort that is going into this is really worth it. I rather support the point made by the noble Lord, Lord McNally, that once one recognises the reality and also respects the convention, which I understand the Prime Minister now to favour, the problems are more imaginary than real, and one should be real about it and address the issue in that way.

Property Boundaries

Lord Hope of Craighead Excerpts

Thursday 15th January 2015 Grand Committee

[Lord Hope of Craighead (CB)]

My Lords, I begin by congratulating the noble Earl on securing this debate. I put my name down to speak because the issue he has raised is quite an important one and deserves to be broadened out a bit from the original list of speakers, which until recently was only three. Having looked more closely at the subject over the past two or three days, I am not sure that I am all that well qualified to express an opinion on the point. My background is that of a lawyer rather than a surveyor, and in this debate we are talking about English law, while my training and experience is largely in Scots law. One thing I learnt when I came south was that Scots law and English law differ most fundamentally of all in the area of property law, and it is very difficult for a Scots lawyer to understand the details, let alone the structure, of the way in which English property law operates.

However, I encountered quite a number of boundary disputes when I was in practice at the Bar in Scotland, and even one or two when I was sitting as a Law Lord here in this House and was introduced to, among other things, the wonderful presumption known as the hedge and ditch presumption, which I very much enjoyed examining. I also encountered a number of surveyors during the course of my practice, as a result of which I should say that I have a great deal of respect for the noble Earl’s profession. There were many cases on which we worked together as a team, although it is fair to say that they were largely in the area of valuation for rating rather than surveying in the more strict sense.

We are not being asked to consider the law of Scotland today, and in any case I am quite sure that the Minister would not wish to comment on it since it is a devolved matter. However, it may be of interest if I sketch in a little the way that issues are apt to arise in that jurisdiction. It does tend to show that the problem here in England and Wales is much more acute than it is under the system I was used to in Scotland, and that underlines the importance of the issue raised by the noble Earl.

Scotland has had a system of recording land tenure in a public register called the Sasine Register since the early 17th century. There were attempts to create a register earlier than that, but the position today is that for well over 300 years, every single property in the country has been the subject of a recorded title, or more accurately, a registered title, which can be examined by every member of the public on payment of a suitable fee. It is in the course of being replaced by a modernised system of registration of title, but the Sasine Register still exists and it is the source from which the relevant information can be derived when moving to the new system. There is a complete account of all deeds, which enables anyone to identify the extent of ownership of any holder of land, and includes all deeds which affect the security of land—the title to the land—that is, deeds which are in the form of security for debt, deeds that record rights of way, and what in Scotland are called servitude and England easements. Everything that affects a title has to go on to the register to be effective at all. It is therefore a very complete record of the present situation of any landowner’s title.

Every title that is put on to the register has to have a description. For a long time the practice has been to describe the property that goes on to the register by reference to boundaries. The early deeds did that by reference to natural features such as walls and gables. Occasionally resort was made to plans, which were always described as taxative—in other words, they were made to be definitive as to the extent of the title. Once a title containing the information had been registered, the titles that derived from it simply tended to refer back to the original deed, so that in practice one has to search the register quite diligently to find out the limits of where the property lie. The result is that from time to time mistakes occur. Someone sets out to design a new definition, but has not correctly recorded what was in the earlier deeds from which the title is derived. It is in that kind of situation that a boundary dispute arises.

Where mistakes of that kind arise there are two kinds of problems. First, there is the problem of searching the register and understanding how the titles have been defined. To some extent that is a task for a lawyer, given that a lot of work is being done through titles, which only lawyers can really understand. It may be that measurements and things of that kind are needed, for which a surveyor might be used. However, there is another aspect of this: in Scotland it is called positive prescription. The noble Earl referred to adverse possession and it is the same concept. If somebody has occupied land without objection for 10 years—“nec vi, nec clam, nec precario” is the Latin phrase—he has an absolute right to remain in possession, even if the description in his title conflicts with his neighbour and the neighbour can show that actually he ought to have been able to occupy that land himself. If he does not take the initiative within the 10 years, he loses the right to do so. In that sort of situation very difficult issues of fact may arise. The question is whether the present possession has been adverse for the necessary period, and in that situation a surveyor, frankly, is not the person to whom one would turn. It would probably be a solicitor instructing a member of the Bar to prepare and argue the case all the way through. Therefore the situation is quite complex. In Scotland, these issues can arise in various forms, but the basic situation is one of a complete register of all the land and we therefore do not have the problem that arises in England—and, no doubt, in Wales—where a substantial amount of property is not on the register at all.

What about England and Wales? My noble and learned friend Lord Brown of Eaton-under-Heywood said to me this morning that the courts would be quite delighted were Mr Elphicke’s draft Bill to be enacted and the courts were relieved of the heavy responsibility, which he described, of having to deal with these cases. My own experience as an advocate was that these cases were really quite enjoyable and therefore I would be rather sad to see them go. There is a difference of view between counsel and the judge. However, I am not absolutely sure that the situation is quite as easy as the draft Bill is suggesting or that the public would be well served if the law were to be reformed in the way that it proposes.

I stress that I do not for a moment doubt that there is a problem. Indeed, since the pattern of land-holding in England and Wales is much less neat and accessible than it is in Scotland, the problem is indeed acute. But my impression is that the Land Registry does an excellent job. Having studied its website, it offers much helpful advice and guidance for people who find themselves in dispute, which they would be well advised to follow. There is the right that everyone has, under Section 73 of the 2003 Act, to object to an application for registration. If there is an objection, there is a tribunal to which the matter can go. No doubt, it will take many decades before the system can settle down to the extent that it has in Scotland; nevertheless, the Land Registry is there to improve the situation and assist the public, as I have attempted to describe.

My main point is that I am not entirely convinced that making it compulsory for every such dispute to be resolved by reference to a panel of surveyors and excluding the courts entirely—as I think the draft Bill seeks to do—is either necessary or desirable. There will be cases where the title deeds alone will provide the answer and it may be that agreements can be reached; but I am not entirely sure that understanding these deeds is within the exclusive competence of a surveyor. There is then the problem of how to deal with other evidence about the way the property has been used, which may be hotly disputed and requires analysis, presentation of evidence, cross-examination of witnesses and so on. There is also the matter of adverse possession, which could raise very difficult issues.

While I am absolutely sure that the noble Earl has raised some interesting and important issues, I am not sure that the suggested solution is the right one. I look forward very much to what the Minister has to say in his reply and, in due course, to reading the scoping study that has appeared on my BlackBerry, but which I have not yet had a chance to read.

Social Action, Responsibility and Heroism Bill

Lord Hope of Craighead Excerpts

Monday 15th December 2014 Lords Chamber

[Lord Blair of Boughton (CB)]

My Lords, I spoke in Committee in support of the noble and learned Lord, Lord Lloyd, and I am not going to repeat what I said then. I might take issue with the noble Lord, Lord Hodgson, about this matter being discussed in the silent halls of the Middle Temple. If you give ordinary police officers, firemen and ambulance crews two sets of words about the same thing, you are going to cause a lot of confusion a long way before it gets to the Middle Temple.

In the gap since we spoke about this in Committee, this law has achieved something that I have not seen in this House before. I know I have not been here that long, but I have never heard of a particular statute being used as an example in another discussion altogether when it has not even been passed. In the debate put forward on 4 December by the noble Lord, Lord Foulkes of Cumnock, about the procedures and practices of the House, this Bill got not just one but two mentions. It was mentioned by the noble Lord, Lord Butler, who is in his place next to me, and by the noble Lord, Lord Dykes. The noble Lord, Lord Butler, said that,

“we might be saved from legislation such as the absurd Social Action, Responsibility and Heroism Bill”.—[Official Report, 4/12/14; col. 1495.]

Later, the Bill was described as,

“a badly drafted, silly Bill that is all to do with ‘manifesto-itis’ rather than any deep legislative urge on behalf of the Executive”.—[Official Report, 4/12/14; col. 1499.]

I do not think we should proceed with this matter.

[Lord Hope of Craighead (CB)]

My Lords, perhaps I may return briefly to the point that I made in Committee, which is directed to the point made by the noble Lord, Lord Hodgson, about the solicitor advising—no doubt—an employer. The problem to which I drew attention was where somebody such as a fireman, police officer or some other person in the emergency services wanted to take the kind of action for the benefit of society that is talked about in Clause 2, but his superior officers said, “No, you can’t, because if you do that, my organisation is liable to be sued”.

My point is that Section 1 of the previous statute deals with outcomes and separates the outcome from the person who is being sued. The problem with this Bill is that it links irrevocably and inextricably the person who is being sued with the person who is acting. With great respect to the noble and learned Lord, Lord Lloyd of Berwick, I do not think that this clause and the section deal with precisely the same thing. I think that this is a much narrower clause, dealing with a particular part of the subject. Therefore, it just adds to confusion when we have an existing piece of legislation which covers all the aspects and is perfectly serviceable to then come along with something which covers only part of it.

When the Minister replies, I hope that he will say why the Government have not taken the opportunity to broaden this clause so that it covers precisely the same ground as the existing legislation, because to have two pieces of legislation, one half-baked and one dealing with the whole thing, just adds to confusion. It is a great shame to be invited to pass a measure of that kind.

[Lord Elystan-Morgan (CB)]

My Lords, the noble Lord, Lord Hodgson, with great force and fervour, invites the House to consider that a silver bullet from this place and the other place is perhaps not a bad thing at all. That may well be so, and both Houses are entitled to fire silver bullets by way of resolutions, debates and in a number of other ways, but not in their legislative capacity. That is really all that this issue is about.

There are only three areas of law—or at least there used to be when I was a law student a very long time ago—statute, common law and custom. If a statute is to have any purpose or meaning at all, it has to change to some extent one at least of those three areas. Custom can be left out of it; it is agreed universally that it does not change the content of a statute by one hair’s breadth. There was, I think, some dubiety in Committee about common law, but I honestly think that that is answered by a long-standing principle in our law—namely, that a statute to change the common law has to say so expressly on the face of it and to make it clear beyond peradventure or doubt that that is happening: otherwise, there is a presumption that the common law is not changed. I should have brought Maxwell’s Interpretation of Statutes along with me but I am sure that the Minister will accept that that is still a fundamental principle of our law. The right to legislate is a sovereign right and privilege to be used sparingly. It is not to be used for propaganda purposes.

--- Later in debate ---

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I, too, support this amendment. The Bill as a whole is manifestly directed—all the earlier debates have indicated this—to encouraging people to volunteer and take part in generally beneficial activities. As the noble Lord, Lord Beecham, made plain, this clause would apply if you have a claim against your accountant. Perhaps he is a wonderful accountant and has looked after everybody else enormously skilfully over the years, but on this particular occasion when he is looking after your affairs, Homer nods, falls fast asleep and costs you an enormous amount of money, for whatever reason—perhaps he was going through a messy divorce at the time. He is insured. Is it really to be suggested that what he has done for everybody else is relevant and can deprive you of your claim? It is absurd.

[Lord Hope of Craighead]

My Lords, another feature of this clause occurs to me: how one is supposed to apply it when the issue of contributory negligence comes up. This is one of the problems that the court must have regard to, but we are not told in this very brief provision to what purpose one is examining. I assume that it is whether the individual or body concerned is liable at all, but assuming it is liable, how does one apply it in the context of contributory negligence? I do not believe that that aspect has been thought through at all.

[Lord Faulks]

My Lords, we have had the pleasure of a short but informative debate this afternoon. The criticism of Clause 2 was that it did not change the law and therefore was not desirable, but the criticism of Clause 3 is that it does change the law—so I will approach the Bill in a rather different way.

The amendment in the name of the noble Lord, Lord Beecham, would remove Clause 3 from the Bill entirely. I would like to explain to the House why I believe that it is important for the clause to remain part of the Bill. It provides that a court, when considering a claim for negligence or breach of a relevant statutory duty, such as, for example, under the Occupiers’ Liability Act, must have regard to whether the defendant, in carrying out the activity in which the alleged negligence or breach occurred, demonstrated a “generally”—I put that word for the moment in inverted commas—responsible approach towards protecting the safety or other interests of others.

The core aim underlying this clause, and the Bill as a whole, is to provide reassurance to ordinary, hard-working people who have adopted such an approach towards the safety or other interests of others during the course of an activity, that the courts will always take this into account in the event that something goes wrong and they are sued. As well as providing that reassurance, we hope that this will also give them greater confidence in standing up to those who try to bring opportunistic and speculative claims by showing them that the law is on their side.

As I explained at Second Reading and in Committee, we believe that concerns that the clause might in some way undermine the rights of employees and others to bring a negligence claim are unfounded. There is nothing in Clause 3, or in the Bill more generally, which will prevent somebody who has been injured bringing a claim or which will prevent the court finding an employer or any other defendant negligent if the circumstances of the case warrant it.

In addition, the focus of the clause is on whether a generally responsible approach was adopted in the course of the activity—so that we are not looking, as the noble and learned Lord, Lord Woolf, suggested, at the whole of the behaviour in other circumstances or in relation to some other activity—in which it is alleged that the negligence occurred. It will not therefore enable a body with a slipshod approach to safety to escape liability by pointing to its health and safety record over a longer period of time. If its actions during the course of the activity in question were so risky or careless as to be negligent, it can still be found liable.

The need for this measure is amply illustrated by the evidence that was provided in support of the Bill during its passage through the House of Commons. I have referred to evidence from voluntary organisations that concerns over liability continue to represent a real disincentive, preventing many people getting involved in socially worthwhile activities. Evidence provided by the emergency services also illustrated the propensity of some people involved in accidents to bring opportunistic and, frankly, spurious claims, such as the example we have previously discussed provided by the Cheshire Fire & Rescue Service.

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[Lord Faulks]

I respectfully disagree with that interpretation because it is concerned with the activity in question,

“in the course of which the alleged negligence or breach of statutory duty occurred”.

It would not, therefore, deal with the 99 years of accurate tax returns but would focus on the particular tax return that is the subject of the claim in negligence. That is the correct interpretation of the particular clause.

I will answer the question that I hear from a sedentary position: how do we deal with the question of “generally”? My answer to that is that the “generally responsible” approach is directed at the activity in question. It is difficult to see, frankly, that it would have much of an application on the hypothetically negligent accountant—

[Lord Hope of Craighead]

My Lords—

[Lord Faulks]

Perhaps I may finish answering this question before I answer the next one. The hypothetically negligent accountant—if he or she has made a negligent error—is going to be liable. This is not going to add anything to that position. It would be no good for them to say, “In the 99 other years in which I did this particular act, I did a good job”, because that just would not bite on this. It does not seem to me that it is very likely that, on the particular hypothesis that the noble and learned Lord put forward, it would have any application.

[Lord Hope of Craighead]

I am grateful to the Minister for giving way. I wonder whether the Minister could be more precise. He talked about the activity in question, but surely Clause 3 has to be read in the light of Clause 1. The whole of this brief Bill is introduced by Clause 1, which tells us:

“This Act applies when a court … is determining the steps that the person was required to take to meet a standard of care”.

Surely one needs to be very precise if one is to understand Clause 3; it is talking about the steps that the person was required to take. It may be that the court is saying, “Well, I am not going to find that the defendant was bound to take that step because I am applying Clause 3”. It is either yes or no, I would have thought. Using the phrase, “activity in question” is far too general. If it is to mean anything, it has to be precisely focused on what Clause 1 is talking about, and the rest will then follow—rightly or wrongly.

[Lord Faulks]

Clause 1, in answer to the noble and learned Lord, is describing the scope of the Act, saying that it applies when a court,

“in considering a claim that a person was negligent or in breach of a statutory duty, is determining the steps that the person was required to take to meet a standard of care”.

It then gives, in the three clauses that we are considering this afternoon, three different factors that should be taken into account—or rather, it says that the court must “have regard” to them. Clause 1 is very much scene setting. However, to turn the argument on its head: if, for example, Clause 3 did not have the expression,

“in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred”,

the argument might be stronger, because it could be said that the court must have regard to a generally responsible approach towards protecting the safety of others. Then it could be argued that this is invoking somebody saying “I am normally a conscientious surgeon”, or “I normally look after people in the factory”. However, the very fact that those words are inserted is focusing the court’s attention on the particular activity in question. With respect, therefore, that is my answer to that question.

I submit, of course, that this makes a modest and sensible change, but it is important to bear in mind that the court is only invited to “have regard” to it. If the court thinks that, frankly, notwithstanding a generally or predominantly responsible approach, this particular failure—if such there be—is not acceptable, it will decide on normal principles that there has been a breach.

Social Action, Responsibility and Heroism Bill

Lord Hope of Craighead Excerpts

Tuesday 18th November 2014 Lords Chamber

[Lord Blair of Boughton (CB)]

My Lords, I find myself very surprised to be supporting the Motion, if that is the right term, of the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Pannick, but I do. I am surprised because, although I am broadly in sympathy with what the noble Lord, Lord Hodgson, has been saying, I think this piece of legislation is, frankly, a lousy way to do it.

Most years I would take part in a little-known ceremony called the Provincial Police Award, which is for the greatest act of heroism by a member of the public. This is what happens when a member of the public sees a red mist and goes for the armed robbers. It is fantastic. The award could actually be called the Unluckiest Robber of the Year Award, which would be a more accurate term. Having said that, we know how difficult it is to legislate in this field. I was involved in a number of the cases concerned with health and safety legislation and the police and the fire service. Those cases were extraordinarily difficult. After a number of pretty climactic events, we ended up in long, detailed and creative discussions with the Health and Safety Executive about the right way to deal with issues which affect not only members of the public, but also the individuals who work for these services. Can they climb ladders? Can a sergeant order somebody to climb a ladder? Can they dive into rivers? It needs really detailed work. What this clause does is smooth over all that with a series of words that have very little meaning in relation to the detail.

The noble Lord, Lord Pannick, talked about the Bee Gees. In my view, what the Government are attempting here is more like Don Quixote and Sancho Panza: they are riding along and tilting at windmills.

[Lord Hope of Craighead (CB)]

My Lords, I am troubled by this clause for a reason related to the two speeches that have been just been made. I can express it in a slightly different way.

There was a tragic incident in Scotland a few years ago where a young woman had been walking in the country and fell down a hole, which I think had been created by old mine workings, and she could not get out. The fire brigade was summoned and its officers were prepared to go down the hole and rescue her, which they had to do because I think she was injured and could not use a rope or a ladder. They were perfectly willing to help her, and you might say that that was an act of heroism of the kind that Clause 4 is asking us to think about. But the fireman who really wanted to go was ordered not to do so by his superior officer, no doubt for reasons of health and safety. Unfortunately, the woman died of hypothermia because by the time the appropriate equipment, which the person who was prepared to go down was happy to dispense with, reached the site, it was too late.

The case caused great concern in Scotland. I know that it is a Scottish case which did not occur in this jurisdiction, but it is an example of something that I do not believe this Bill deals with. It is an example of the way in which the Bill has not been properly thought through. I think that there is a real problem for employers who are contemplating health and safety legislation and thinking not so much about themselves as their liability. It may be vicarious liability, which I understand the Minister is not interested in, or it may be a direct liability for something they failed to do to protect an officer who is himself injured or killed. It is a great shame that all these clauses have not faced up to that.

That is due partly to the wording of Clauses 1, 2 and 4, which concentrate on an individual who is described as “a person” and “the person”. It is feature of this Bill that one is asked to think of the same person all the way through; in other words, the person who is said to be negligent or in breach of statutory duty is the same person that you are supposed to be thinking of when you contemplate whether they were acting heroically. In the example I am talking about, the person who was at risk of being sued, or thought that his organisation was at risk of being sued, was not the person who was acting heroically. Therefore, Clause 4 in particular—and, I suspect, Clause 2 as well—misses the real target where the most difficult problem in dealing with these situations arises.

Funnily enough, if you look carefully at Section 1 of the Compensation Act 2006, you see that it does not create that problem because it does not use such precise language; rather, it is framed in a general way that covers the kind of situation I am talking about. One is not asked to be so precise in looking at the person who is undertaking particular acts or is prepared to do so.

For those reasons, I am deeply troubled by Clauses 2 and 4. I really do not think that they have been framed in a way that meets the full range of cases, in particular cases where employers instruct those who are prepared to do these things not to do them. It is not quite the same as the example in Oxford, but I suspect that it is not far removed. Perhaps the noble Lord, Lord Blair, can think of examples where police forces have suffered exactly the same problems. It is a great shame that the Government have not thought this through, faced up to the real problem, and addressed it in a proper way.

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[Lord Aberdare (CB)]

My Lords, I will speak to my Amendment 11 as well as to Amendments 8, 10, 12 and 14 in this group. I remind your Lordships of my interests as a trustee of St John Cymru Wales and as a vice-president of the First Aid All-Party Parliamentary Group.

As I indicated at Second Reading, the leading first aid organisations including St John Ambulance and the British Red Cross welcome the Bill in principle. Anything that serves to reduce or overcome people’s reluctance to step forward to provide assistance in emergency situations has to be good news. It can, as we have heard, be argued what actual difference the Bill makes to the law as it stands. However, if there is a perception that it removes the likelihood of people being sued after trying to give life-saving assistance in an emergency, and if people believe that the Bill gives them some extra protection, that in itself is worth having.

My concern is that Clause 4 as it stands is not seen by the leading first aid organisations as giving that reassurance. We know from the research I quoted at Second Reading that the people most likely to help in an emergency are those who have actually received first aid training. So these potential life-savers go along to their first aid courses, where they are taught to:

“Protect yourself and any casualties from danger—never put yourself at risk”.

I quote from the standard First Aid Manual. During their training, they may well ask, “If I take action to provide first-aid assistance in an emergency, can I be confident that I will not subsequently be sued if something goes wrong?”. To which the answer from the first aid training body would have to be, “As long as you act without regard to your own safety or other interests, you should have protection under this law; but we recommend that you should consider your own safety before acting, in which case this law would not seem to help you”. I suggest this would be more than a little confusing and unlikely to provide the reassurance which the Minister has emphasised several times is the object of this Bill.

I thank the Minister for copying me on his letter to the noble Lord, Lord Beecham, and I welcome his confirmation in that letter of the Government’s desire to encourage first aid and his recognition of the concerns of St John Ambulance and others. He also states that the Government will, quite rightly, work with voluntary organisations and other bodies during implementation phases to ensure that the Bill’s contents are brought to the attention of all those with whom they engage. In that case it would seem rather important that those bodies should themselves see the wording of the Bill as helpful to their own concerns.

Let me briefly cite some examples, provided by the British Red Cross and St John Ambulance, of how Clause 4 might affect the actions of a potential life-saver. First, I shall give two examples of heroic actions for which Clause 4 as it stands would seem to offer no reassurance at all. If a person has fallen off a ladder and is lying unconscious on their back, a responder might be afraid of moving them because of the risk of causing damage to their back or neck. Leaving them on their back could cause them to die from a blocked airway, often described as swallowing one’s tongue, so the heroic act would be to move them on to their side in the recovery position, with an open airway, even if this might cause other injury. Similarly, a responder may be concerned about causing injury through giving CPR—particularly if it might subsequently turn out to have been unnecessary because the person’s heart had not actually stopped. CPR requires quite forceful pressure on a casualty’s chest, which may result in injury such as broken ribs. Again, inaction could have much more severe, possibly fatal, consequences than unnecessary action. I cannot see that the wording of Clause 4 offers any reassurance at all in these instances.

I will look at situations more specifically covered by the wording of Clause 4. If someone has been electrocuted and a first aider rushes into action without considering whether the power source is still live and the casualty still in contact with it, he or she might well be acting heroically, but is likely to make the situation worse, with two casualties instead of one. We often hear of people plunging into cold or fast-flowing water to try to rescue someone in difficulties, only to end up drowning themselves, or suffering a cardiac arrest from the shock of sudden immersion in cold water, when they may have been able to help more effectively from the shore. Yet this is the sort of rash and unreasonable action that the wording of Clause 4 might seem to envisage, if not encourage.

There are a number of options before noble Lords to improve this part of the Bill and ensure it sends a clear, positive and unambiguous message to potential life-savers and, of course, to those who train them. Amendment 10 from the noble Lord, Lord Pannick, simply removes the unsatisfactory wording from the end of Clause 4. Amendments 8, 12 and 14 from the noble Earl, Lord Attlee, improve on this by replacing these words with the phrase “and without acting perversely”, which is defined in terms of how a reasonable person would act in the circumstances. My own Amendment 11—which needless to say is the one I recommend to your Lordships—replaces the same words with the phrase,

“and was acting reasonably and with a public-spirited intention”.

Any of these three options would improve the Bill; better still, of course, would be for the Government themselves to come up at a later stage with a form of words to define the sort of behaviour that is both heroic and consistent with good first aid practice, in order to give real reassurance to potential life-savers that they are unlikely to be successfully prosecuted if they act in a way that is reasonable and public-spirited, as well as heroic.

[Lord Hope of Craighead]

My Lords, I am in the happy position of not having my name to any of the amendments and therefore can offer such thoughts as might be useful as to which of them is to be preferred. I support a lot of what the noble Lord, Lord Aberdare, has said about the wording as it stands at the end of Clause 4 but I prefer the simplicity of the amendment from the noble Lord, Lord Pannick. The more you qualify the proposition that ends with,

“to assist an individual in danger”,

the more you open up the possibility of argument. The simpler the message, the better. The message is well conveyed by stopping at “danger” without introducing these complications and therefore I support the amendment from the noble Lord, Lord Pannick.

Criminal Justice and Courts Bill

Lord Hope of Craighead Excerpts

Monday 27th October 2014 Lords Chamber

[Lord Pannick]

My Lords, I shall speak also to Amendment 165. Your Lordships now turn to Clause 73, which concerns the costs of interveners in judicial review proceedings. Your Lordships will know that often in judicial review cases the court allows a person or body to intervene because they have knowledge or experience which may assist it in resolving the legal issues. Clause 73 states that interveners may not receive their costs other than in “exceptional circumstances”, and it adds—this is my concern—that, unless there are exceptional circumstances, an intervener must pay any costs that have been incurred by a party as a result of that intervention.

I cannot understand why such a provision is necessary or appropriate. The current legal position is clear and fair: the court has discretion over whether to order a party to the judicial review to pay the intervener’s costs or whether to order the intervener to pay costs to a party. Clause 73 is manifestly unfair. It will create a strong presumption that the intervener must pay costs, even if the intervention is helpful to the court in raising points that assist it in arriving at its substantive judgment. The Minister may say that the intervener can resist paying costs on the basis that there are “exceptional circumstances”, but there is nothing exceptional about the intervener assisting the court: it happens every week in judicial review cases. In any event, if there is a statutory presumption, rebuttable only by showing exceptional circumstances, that the intervener must pay the costs, public interest bodies will be far less likely to intervene. The courts will be denied assistance from those public interest bodies, which will be greatly to the public detriment and greatly to the detriment of the legal system, whether the intervention is from Liberty, the GMC, the UN High Commissioner for Refugees or, indeed, the Home Secretary—because a number of interventions in judicial review cases are made by government departments. None of this makes any sense whatever.

Amendment 164 would provide that it is a matter for the discretion of the court whether to order costs to be paid by or to an intervener. I commend that amendment to the House. I beg to move.

[Lord Hope of Craighead (CB)]

I support the amendment. It is a feature of Clause 73, as I am sure the Minister will have noticed, that it does not mention the Supreme Court—one should be thankful for small mercies—but it creates a very unbalanced situation. As the noble Lord, Lord Pannick, has explained, interventions are extremely helpful. Nobody has a right to intervene—courts at every level give permission if they are persuaded that the intervention would be of use to them—so that I cannot see that there is any compelling reason for turning interveners away. The court values them, and certainly, from the point of view of the Supreme Court, in my experience where we allow an intervention we derive benefit from it.

The regime that the clause seeks to create seems rather unbalanced. From the Supreme Court’s point of view, as we are a court of appeal, it would much rather, I am sure, that those who had a point to make were able to make it at the Court of Appeal level if not at the level of the High Court. While I welcome the absence of the Supreme Court from this clause, it adds to my feeling that there is something wrong about it. Given that the intervener has no right to intervene and that the courts are perfectly capable of controlling the volume of intervention and the time taken by interveners, which the Supreme Court does regularly, I cannot see any value in the reform, if one can call it that, that the clause seeks to bring about.

Criminal Justice and Courts Bill

Lord Hope of Craighead Excerpts

Wednesday 22nd October 2014 Lords Chamber

I hope that my noble friend the Minister will regard this amendment as necessary to ensure that what he intends to do is properly reflected in the statute. So far as Amendment 128 is concerned, I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, I am very much in sympathy with the points made by the noble Lord, Lord Hunt of Wirral. He was inviting the Minister, I think, to examine the entire clause to see whether what he is proposing fits in with all of it. I draw the Minister’s attention to just one point. Clause 49(3) states:

“The duty under subsection (2)”—

which is one to dismiss a primary claim—

“includes the dismissal of any element of the primary claim in respect of which the claimant has not been dishonest”.

It is conceivable that there could be elements in the broad formula which the noble Lord has proposed in Amendment 128 which would not be tainted by the dishonesty. I do not believe that it is his intention that that should actually be struck out. If the Minister and his advisers are considering the wording, one point to look at with care, I suggest, is whether some allowance should be made for the possibility that there are claims within claims which are not tainted by the dishonesty—which of course everybody would like to see visited with the sanction that Clause 49 is designed to impose.

[Lord Marks of Henley-on-Thames]

My Lords, in Committee I moved an amendment suggesting that the duty to dismiss personal injury claims tainted by fundamental dishonesty should be a discretionary power rather than a duty. In other words, courts should be entitled to dismiss such claims, but not bound to do so. I also suggested that there should be a power to reduce such claims in appropriate cases rather than to dismiss them altogether, which is a view that I have long held.

I recognise now, as I recognised then, that the Government are concerned to tackle the challenge posed by the proliferation of thoroughly dishonest, largely small, personal injury claims following accidents, particularly motor accidents. I agree that this is a serious problem that needs to be met head on. I was particularly impressed in Committee by the speech of my noble friend Lord Hunt of Wirral on the issue. He speaks of course with a wealth of experience of cases in this area and of the challenges faced by the insurance industry in dealing with them. He spoke then of the evil of the proliferation of whiplash claims. I agree with his Amendment 128 today that any claim included in a personal injury claim should be caught by the section. In answer to the point made by the noble and learned Lord, Lord Hope, I say the section as amended by my amendments—because the problem at the moment is that the whole claim has to be dismissed. That is one of the problems that is addressed by my amendments.

I have in this case modified my amendment substantially for Report in the light of the debate in Committee. My Amendment 128B draws a sharp distinction between smaller claims and more substantial ones. I recognise that the problem that the Government seek to address—the multiplication of fundamentally dishonest claims—arises mostly in the case of smaller claims. My new amendment today would effectively maintain the Government’s position in respect of any claim worth less than £25,000 overall.

However, I maintain my concerns in respect of more substantial personal injury claims. I have conducted over the years a great many claims in this category and I refer to my interest in the register as a practising barrister in this regard. Unfortunately, many of these substantial claims are also tainted by fundamental dishonesty. In Committee I gave the example, hypothetical but not untypical, of a very substantial claim for damages for personal injuries following a serious accident. Out of a total claim value of about £6 million, one element—or head of claim—was a claim for loss of earnings of about £500,000. That head of claim was fundamentally dishonest, because the claimant had suppressed a notice of redundancy given to him before the accident so that the substantial loss of earnings claimed would in fact have been sustained had the accident not occurred. It was therefore, of course, irrecoverable from the defendant.

Nevertheless, the claimant had a valid care claim—a different head of claim, untainted by dishonesty, to take the point of the noble and learned Lord, Lord Hope—worth about £4 million. That claim would have covered the cost of his full-time residential care, with carers, for the rest of his life. The nub of this point is that he himself would not suffer injustice if his whole care claim was dismissed because his care would be paid for by the state in any event. The exception in the clause covering the case—that the claimant would suffer substantial injustice—would therefore not bite.

However, it would certainly be wrong for his entire claim to be dismissed. The right course would be to reduce his claim. Obviously, his loss of earnings claim would be dismissed because that would fail in any event, but the court might also decide to reduce other elements of his damages as well—notably his personal award, which is not tied to specific loss, for general damages, pain, suffering and loss of amenity—to mark the dishonesty. However, without the discretion to reduce the claim instead of dismissing it altogether, the outcome would be that the entire claim would be dismissed—all its heads—and in this example that would cost the state a great deal of money that the negligent defender’s insurers ought to be paying.

I suggest that the clear way to resolve this difficulty is for there to be a power in larger cases either to dismiss a claim tainted by fundamental dishonesty or to reduce the award of damages in such a way as the court deems just. Judges have plenty of experience in dealing with dishonest claims. They can tell what is fundamental dishonesty and what is not, and they can tell what is just and what is not. As one might expect, judges generally dislike dishonest claims intensely and can be trusted to deal with them with appropriate toughness. I invite the Government to agree that mandating courts to dismiss small claims, unless to do so would cause the claimant substantial injustice, but leaving judges free to deal appropriately with larger cases, would be a sensible and proportionate way to approach this issue.

I hope that my noble friend might return at Third Reading, after considering this issue along the lines that I have mentioned, with a solution. I should say that I will not press Amendment 128F in respect of subsection (5), because a combination of the amendment in the name of the noble Lord, Lord Faulks, and the amendment moved by my noble friend Lord Hunt would meet the requirements of orders to cost. That said, I invite my noble friend and the Government to consider this further.

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[Lord Hope of Craighead]

My Lords, I take this opportunity to say a few words about Amendments 142 and 143, which have been spoken to by the Minister. First, I thank him for his kind words. Secondly, I thank the Government for bringing these amendments forward. As the Minister has explained, I brought forward amendments in almost exactly the same terms in Committee. At that point it was necessary for the Government to provide support because I did not imagine that if this went to a vote, it would carry much weight because of the technical nature of the two points that are dealt with. I am therefore extremely grateful to the Minister and his team for picking up these points, and I know that the President of the Supreme Court is, too.

I will mention two particular points about Amendment 142. The first is that it was necessary to obtain the agreement of the Lord Chief Justices of England and Wales and Northern Ireland and their equivalent in Scotland, the Lord President. That agreement has been confirmed and the proposed amendment has the support of all the senior judges involved. Secondly, the wording that I proposed in Committee was the agreed wording, and I made the point that it was very necessary to try to stick as closely as possible to those words if the Government were to bring forward an amendment on Report. I am grateful to the Government for doing exactly that, and therefore we can be certain that what is being proposed now has the support of all the judges concerned.

[Lord Faulks]

I am very grateful, first, to the noble and learned Lord, Lord Hardie, who was himself an extremely distinguished chairman of the post-legislative scrutiny committee on the Mental Capacity Act 2005. I thank him for his valuable remarks about the appeal process, based on his experience and his recognition of the particular difficulties to which these cases can give rise. I certainly undertake to ensure that his remarks will be passed on to the rule committee through the channels that are available to me, and I thank him for that.

Similarly, I thank the noble and learned Lord, Lord Hope, for his acknowledgement of the Government’s co-operation and entire acceptance of his suggested drafting, and I thank him as well for securing the support of all the senior judges for what is now a satisfactory state of affairs.

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I hope the Minister will commit to further recruitment of registered intermediaries and will clarify what steps the Government are taking to address the long-term challenges facing the service and ensure that every child victim has access to it. I hope that in his reply the Minister will clarify the government vision for expanding the availability of both these special measures for children. Surely this is the moment for the Government to take a leading role in improving the treatment of young victims and witnesses. We cannot afford to wait another 25 years to ensure that the right support is in place for our most vulnerable children. I beg to move.

[Lord Hope of Craighead]

My Lords, I want to make one or two points about Amendment 145, based upon my experience as a prosecutor taking evidence from very young children. One has to bear in mind that not every case in which a child is giving evidence is a case of child abuse. Some of them may be cases such as theft or something of that kind where the child is an essential witness but in no sense has been traumatised by the event about which they are speaking. One has to be a little careful about spreading the protection wider than is necessary.

The other point is that, speaking from my experience of prosecuting before juries, it is extremely important that juries should have an opportunity to assess the credibility of the child witness. I recall a particular case where I led evidence from a child aged six who was completely convincing and apparently unconcerned about the surroundings in which she was giving her evidence. The fact that she was so obviously credible made all the difference in securing a conviction against somebody who had in that case abducted her. I am a little nervous about intermediaries because that reduces the impact of the utter frankness which this little girl displayed when she was describing what happened to her. She could not, for obvious reasons, give a full account of all that was done to her because she did not have the language, but her account was absolutely gripping, and the jury, I could feel, sensed immediately that she was undoubtedly speaking the truth. It would not have been nearly so obvious if there had been some kind of protection around her.

There may be cases where the protection is essential; there may be others where it would be unwise if convictions are to be obtained. I am sure the Government will wish to think very carefully about the extremely important points that have been raised. It does require quite careful scrutiny.

[Lord Ashton of Hyde]

My Lords, I thank the noble Baroness, Lady Howe, for waiting so long to express her views on this issue to the House and her commitment to these issues. If I understand her intention correctly, she is seeking to introduce, through Amendment 144, a new clause which would provide for the use of remote sites for certain young witnesses and, through Amendment 145, to mandate the use of intermediaries for witnesses under the age of 11.

I first reassure the noble Baroness and this House that the Government take seriously the support of victims and witnesses across the criminal justice system. Indeed, special measures are already available to assist vulnerable and intimidated witnesses in court, including all witnesses under 18 years old. These measures can include screens round the witness box to shield the witness from the defendant, evidence by live link and the use of a registered intermediary or communications specialist to ensure that the witness understands the questions being asked.

Children are automatically eligible for special measures to ensure that they are able to give their best evidence. The presumption is that in most cases children should give their evidence by video-recorded statement, which would be played during the trial as their evidence in chief. In addition, any further evidence or cross-examination will ordinarily be conducted via live link and the court may permit a supporter to be present. The aim is to minimise the number of times a child is questioned and to enable them to give evidence from outside the courtroom.

We fully support looking at other ways to help vulnerable and intimidated witnesses give their best evidence. We know that the court environment can be challenging for some witnesses and are exploring ways in which we can use remote links and developments in technology to help such witnesses give evidence from outside the court building.

On Amendment 144, I advise the House that a majority of Crown and magistrates’ courts already have the facilities that allow witnesses to appear by secure videolink from a different location to the trial court. The use of remote videolinks, and extending this to other non-court sites, will not require any new legislation. We have recently committed to establishing at least one non-court location in each court area for vulnerable witnesses to give their evidence, as the noble Baroness mentioned.

The noble Baroness asked what else we were doing in this regard. We are using live-link technology in piloting pre-trial cross-examination in Kingston, Leeds and Liverpool Crown Courts to help vulnerable witnesses give their best evidence. This has the advantage of sparing witnesses from the full courtroom atmosphere by allowing the cross-examination to take place before the trial, as well as allowing evidence to be given closer to the time of the event. The pilot will end this month, followed by an evaluation and decision early next year on any further rollout if the measure is successful.

On Amendment 145, I am afraid that the Government are not convinced that the mandatory provision of a registered intermediary is necessary or always helpful—this pertains to the point made by the noble and learned Lord, Lord Hope. Intermediaries and other special measures should be used based on a witness’s assessed needs rather than offering blanket provision to any group. Witnesses retain the right to decline the offer of assistance from an intermediary if they do not want this assistance. We must instead ensure that witnesses receive the right type of special measure and that they are fully informed and supported, especially young children.

We are working closely with our partners in the criminal justice system to ensure that a witness’s need for a registered intermediary is identified. We continue to assess regularly the capacity of the intermediary workforce to ensure that we can plan for and meet demand. This includes considering future plans to increase the number of intermediaries available. We know that the demand for registered intermediaries is steadily increasing and is at its highest level since the start of the scheme 10 years ago, which is very encouraging. We are working with the police and the CPS to improve identification of the need for registered intermediaries for vulnerable witnesses in addition to assessing workforce capacity given the current demands for the scheme. This would include planning for future recruitment campaigns. On the details of Amendment 145, I can assure the noble Baroness that intermediaries must be screened by the Disclosure and Barring Service and meet a number of other criteria before joining the witness intermediary scheme.

I recognise and support the sentiments behind the amendments. However, in the light of our work in this area, the Government do not feel that either is necessary. In the light of my explanation, I hope that the noble Baroness will reconsider her position and not press her amendments.

Criminal Justice and Courts Bill

Lord Hope of Craighead Excerpts

Wednesday 23rd July 2014 Lords Chamber

Moved by

[Lord Hope of Craighead]

68: After Clause 49, insert the following new Clause—
“President of the Supreme Court
(1) Section 5 of the Constitutional Reform Act 2005 (representations by senior judges) is amended as follows.
(2) After subsection (5) insert—
“(6) The President of the Supreme Court may lay before Parliament written representations on matters that appear to him to be matters of importance relating to the Supreme Court or the jurisdiction it exercises.””

[Lord Hope of Craighead (CB)]

My Lords, I am very conscious of the lateness of the hour and I shall be as brief as I possibly can.

This amendment, together with Amendment 69 which follows it, seeks to deal with matters which may have been overlooked when the Constitutional Reform Act 2005 was passing through Parliament. They both relate to the Supreme Court, provision for which was made in Part 3 of the Act. I tabled both amendments at the request of the President of the Supreme Court, the noble and learned Lord, Lord Neuberger.

Amendment 68 would extend to the President of the Supreme Court the same opportunity to lay representations to Parliament on matters that appear to him to be of importance that Section 5 gives to the heads of the judiciary in each of the three separate jurisdictions within the UK: England and Wales, Scotland and Northern Ireland.

So far as I can recall, no thought was given to the position of the President of the Supreme Court when the Bill that became the 2005 Act was passing through Parliament. There may be various reasons for that. I do not recall the matter being discussed at all. I do not think that there was any policy decision on the matter either one way or the other. There may have been a drafting explanation, because Part 2, which contains Section 5, appears in the Act before Part 3, which created the Supreme Court. The separation of those two parts may have led to the matter being overlooked. Whatever the matter, the fact was that the point was concealed from us by the events that were going on at the time. If we had been thinking of the matter now, we would certainly have asked for the president to be included.

I should say that there are no issues of current concern to the president. However, unless the statute is amended, he would be unable to make representations should something of concern arise. He has been looking for quite some time for a suitable vehicle to introduce an amendment to that effect and it seemed to him that this Bill contains that kind of vehicle, which is why this has been brought forward now.

I will say just a brief word about the wording of the provision that is being proposed. The heads of the judiciary in each of the three jurisdictions have no objection in principle to what is being proposed. However, some thought has been given—especially by the noble and learned Lord, Lord Neuberger, and myself—to the precise wording. The words,

“that appear to him to be matters of importance relating to the Supreme Court”,

which is the first part of the formula, are simply a translation of the first part of the formula in Section 5(1) to accommodate the new court. It has been a little more difficult to find a formula that is appropriate to the situation of the new court in place of the words,

“or otherwise to the administration of justice”,

in Section 5(1). The wording in my amendment uses the phrase “or the jurisdiction it exercises”—that is, the jurisdiction of the Supreme Court. The intention of that formula is quite simple: to ensure that the responsibilities of the heads of the judiciary in their respective jurisdictions are respected by the president, which of course he would seek to do.

Finally, I will address two very short points on this amendment. The first is that it would be highly desirable for this formula—or at least one that the Minister can be assured has the agreement of all concerned—to be adhered to in any revised version of this amendment. The second is that between now and when we come back on Report the president and the heads of the three jurisdictions will be seeking to agree a mutually acceptable form of words that will ensure that their respective areas of jurisdiction are respected. They may come up with the same form but, if there is any difference, we will of course let the Minister know.

The second amendment is quite short. It relates to the composition of the supplementary panel, provided for in Section 39 of the Constitutional Reform Act, from which the president may invite someone to sit as an acting judge of the court under Section 38, as is necessary from time to time when places need to be filled. The section contains a number of different sources from which that supplementary panel may be drawn, but time has marched on and subsections (2) and (3), which extended membership of the panel to Members of the House of Lords under conditions which are set out, are no longer relevant as there is now no one who can possibly satisfy those conditions. That is a feature of time marching on. Subsection (6) is of no help for the present either, for the same reason.

Therefore, the only subsection that can now be relied on is subsection (4), which is very tightly drawn, but it requires a decision to be made as to membership of the panel before the individual retires. The president, the noble and learned Lord, Lord Neuberger, has found that embarrassing in at least one case. He wanted to appoint somebody who was eminently suitable and who had retired very recently, but it was too late to catch him to put him on to the panel. The amendment seeks to retain the principle of tightness to avoid individuals becoming too, perhaps, stale after retirement but nevertheless to make it a little easier to draw in people who are suitable for appointment to the panel. That is the purpose behind the amendment. I do not think there is any dispute between any of the heads of jurisdictions about this amendment; it is just a simple matter of facilitating the sensible provision in the Act. I beg to move.

[Lord Beecham]

My Lords, I am very happy to support the noble and learned Lord’s amendment and I take it that the Government will accede to it. It is a very sensible change.

[Lord Faulks]

My Lords, Amendment 68 would have the effect of allowing the President of the United Kingdom Supreme Court to make written representations to Parliament about the Supreme Court and its jurisdiction in the same way as the Lord Chief Justice of any part of the United Kingdom is able to do under Section 5 of the Constitutional Reform Act 2005. The Lord Chief Justice of England and Wales has used the provision under Section 5 of the 2005 Act to lay before Parliament his annual report, which highlights his accountability for oversight of the judiciary in England and Wales.

Amendment 69 would have the effect of allowing the United Kingdom Supreme Court the flexibility to appoint judges to the supplementary panel within two years of their retirement, providing they are under the age of 75.

First, I should very much like to thank the noble and learned Lord, Lord Hope, for all his work on these issues and for being so patient in waiting for this amendment to be reached at such a late stage. Given his background, he is of course well placed to speak with authority on these matters. I know that he has been working closely with the judiciary on these amendments and he has also recently written to me regarding them.

The Government understand the rationale behind the amendments. However, before we can agree to make such changes, we will need to consider the matter and the impacts of the proposed changes further and discuss them in more detail with the President of the Supreme Court, the Lord Chief Justice, the Lord President of the Court of Session and the Lord Chief Justice for Northern Ireland. I will also be happy to have further discussions with the noble and learned Lord about the amendments and will respond fully to his letter shortly. On that basis, I hope that he will feel able to withdraw the amendment.

[Lord Hope of Craighead]

My Lords, I am grateful to the Minister for his very helpful reply. It is indeed the reply that I expected. It is sensible to take time to consider the matter a little more fully. In view of the undertakings that he has given, I am happy to beg leave to withdraw the amendment.

Amendment 68 withdrawn.

Moved by

[Lord Hope of Craighead]

69: After Clause 49, insert the following new Clause—
“Supplementary panel
(1) The Constitutional Reform Act 2005 is amended as follows.
(2) In section 39(4) (supplementary panel)—
(a) after “but only if,” insert “either”,(b) after “while he holds such office” insert “or within two years of ceasing to hold such office”.”

[Lord Hope of Craighead]

My Lords, perhaps I may be quite clear about where the Minister stands on Amendment 69. I do not think that he indicated where he stood on it. It is a very simple matter. Perhaps he could come back to it on Report, but I should be grateful if he would say where he stands. I beg to move.

[Lord Faulks]

It is also a matter where we would like to consider the full implications of the changes. The reply that I gave was supposed to embrace both amendments.

[Lord Hope of Craighead]

I am most grateful. In view of that indication, I am happy to beg leave to withdraw the amendment.

Amendment 69 withdrawn.