Arbitration Bill [HL]

Lord Hacking Excerpts

Second reading committee
Tuesday 19th December 2023 Grand Committee

[Lord Hacking (Lab)]

My Lords, I have never spoken in the Moses Room in the two years since my return to the House of Lords and I am not familiar with the procedure, so if I go wrong, I hope that our Deputy Chairman or someone else will put me right.

I am in a rather poignant position, in that I am the sole surviving parliamentarian who took part in the 1979 Bill and the 1996 Bill. That is not to say that I am the only creature still alive who was involved in that Bill, because Robert Ayling was the assistant solicitor in the Department of Trade—the 1979 Bill was taken through partly by the Lord Chancellor’s Department and partly by the Department of Trade. As far as I know, he is alive and kicking; I have not seen him for a little time. Mark Saville, now the noble and learned Lord, Lord Saville of Newdigate, played a critical part in the 1996 Act, but he had not by then arrived in the House of Lords Judicial Committee, which he did a year later, and therefore he sat on the steps of the Throne. He was a very important person, but not a parliamentarian at the time.

Of the parliamentarians of the time—if we could remember them—there was Lord Maurice Peston, who spoke for my party throughout the Arbitration Bill. He mugged up on the subject very well and was a very good participant in our debates. Lord Peter Fraser of Carmyllie was the government spokesman to take through our debates. Alas, both have departed this world, as indeed have other prominent Members of the House who took a very active part, including Lord Mustill, Lord Donaldson and Lord Roskill. So here I am as the one surviving parliamentarian. There is another name I must mention at once—Mr Toby Landau. Not only is he alive and kicking but he is here in this Room to listen to our debate. At least somebody other than me is still alive and kicking.

As I said, I am not familiar with the proceedings in the Moses Room and I am ready to be corrected at any time. I have some memories of the 1979 and 1996 Acts which I think it would be valuable for the Committee to be reminded of. Therefore, I intend to take a little time in doing so. I am aware that this is very close to the Christmas Recess. If any noble Lord, particularly one who is listed to speak, thinks that I am going on too long, I would ask him not to suffer me but to stand up and, if needs be, cut back my words.

The foundation of this Bill, and indeed the foundation of all arbitration law, goes back to the Act of 1698. The Bill in its preamble was described as:

“An Act for determining Differences by Arbitration”.


Further on in the preamble, we have the words: now this Bill is

“for promoting Trade and rendring the Awards of Arbitrators the more effectual in all Cases for the final Determination of Controversies referred to them by Merchants and Traders or others”.

This important Act of so long ago established the support that was needed for the conduct and, indeed, the encouragement of the use of, arbitration as a means of settling disputes. Right up to the present time, our statutory law should create a balance between the courts and arbitrations. It should also be promotional for the conduct of arbitration in the United Kingdom. The importance of that comes out clearly in a briefing that we have just received from the Law Society, which calculates that currently there are no fewer than 5,000 arbitrations annually, bringing an income of £2.5 billion to the economy, so it is of importance. I would suggest that what we are doing today is of importance.

I actually doubt whether 5,000 arbitrations is the right calculation, when one takes into account the numerous LMAA and GAFTA arbitrations, and other arbitrations in the commodity field. Indeed, when I headed up an action group in 2000—I have its paper here—there were then more than 3,000 LMAA arbitrations. But whatever it is, the figure is very large and, I suggest, very important.

The 1979 Act was specifically directed to two matters. One was the setting aside and annulment of these two procedures: the “case stated” procedure and the procedure for setting aside awards for errors on its face, which was also being used. It was used by parties when they were not doing very well in an arbitration and who then sought to take their arbitration to the courts to cause delay, embarrassment and difficulty to the plaintiff or complainant.

Indeed, in the debate that I opened in May 1978 in the Chamber of this House, I read a letter from the general counsel of Raytheon, the massive defence producer of weapons and the like. In that letter, the general counsel said that, because of the way in which two of the major arbitrations were being sucked into the court by the case stated procedure, he had given directions that there should not be any arbitration agreement signed by Raytheon, carrying a London arbitration jurisdiction. That is how serious it was. Thanks to Lord John Donaldson, the 1979 Act effectively got rid of both the case stated procedure and the procedure of setting awards aside on their face. It also created what I believe to be the right balance between the law courts and arbitration, and that has been continued ever since.

When I was citing the 1698 Act, I should have mentioned that were other arbitration Acts in the 19th century, one based on the MacKinnon report. There was of course the consolidating Arbitration Act 1950, but none were developing arbitrations on the foundation Arbitration Act 1698.

The big challenge for getting the 1979 Act through was to get Lord Diplock on side. A former commercial judge—I think he was the first judge of the Commercial Court—he was a man, a judge and a Lord of great influence, and if we did not get him on side, we had no hope of getting the 1979 Act through. The second great challenge in 1978-79 was to get the Government to give time and support for what became the 1979 Act. We achieved the first, getting Lord Diplock on side. We were greatly assisted by Bob Clare, who was then senior partner of the very big American law firm of Shearman & Sterling. He walked Lord Diplock round and round the lake at Selsdon Park until he managed to get his support.

The other way of getting Lord Diplock on side was achieved by Lord Donaldson in creating special categories of arbitrations—those relating to admiralty, commodity and insurance—and setting those aside, so that they were not entitled to opt out of the new arbitration process. Lord Diplock felt very deeply on the subject; he described the commodity and admiralty arbitrations as providing the water in the fountain of the development of English commercial law. That was quite an achievement on the part of Lord Donaldson. Incidentally, at that time Lord Donaldson was the senior judge in the Commercial Court, and, in the very active way that he approached matters, he set up a special committee which issued a report. That was then given accord by the Government of the day, being made into a Command Paper, which was of great influence in getting the 1979 Act.

As for getting the Government on side, we really had to thank Lord Cullen of Ashbourne, who was a retired stockbroker. I won the ballot and therefore succeeded in having the right to open a debate on the future of arbitration in London. There are a number of noble and learned Lords behind me now; at that debate, there were a number of Law Lords in front of me. Lord Diplock took part—I am just trying to remember all those who did—as did Lord Scarman and Lord Wilberforce. This somewhat surprised the Opposition Benches. They could well have replaced Lord Cullen of Ashbourne with Lord Hailsham, who, for example, was close to arbitration law and took an active part in the 1979 Act. However, they remained loyal to Lord Cullen, which meant that we received the evidence from him of the loss of £500 million in invisible earnings, which is what the loss of income to the Government was called then. That was an astounding figure—probably close to £5 billion in today’s currency. The Lord Chancellor spoke to me about it afterwards and said, “Is it really that much?” I was quite sure that it was not, but just said to him, “I think it is a very large sum of money”. He then seized upon the opportunity to push forward that Bill, because the Labour Government were not doing awfully well and he thought it would be awfully good for them to do something that was wholly friendly to the City of London.

It was given the Rolls-Royce treatment—that was the term Sir Thomas Legg gave it, from the Lord Chancellor’s Department—but it nearly got into a disaster. I am going on a little but am getting quite close to my end. We nearly got into a disaster at the end of that because the Labour Government collapsed in March 1979. We had just had the Bill go all the way through the House of Lords and it had not got near the House of Commons. As a result, there was a happy trade-off with the House of Commons through the official channels, which was how the Bill was saved.

Onward therefore to the 1996 Act: it was a rather slow process, which caused Arthur Marriott to take up an initiative. That then brought about the setting-up of what was called the departmental—

[Lord Roborough (Con)]

I give a gentle reminder to the noble Lord that there is an advisory speaking time of 15 minutes. We have time, but if there are points he wishes to make—

[Lord Hacking (Lab)]

I appreciate that, and I am not yet at 15 minutes, but there is nothing on the speakers’ list that stipulates a time of 15 minutes.

[The Deputy Chairman of Committees (Baroness Watkins of Tavistock) (CB)]

If I could clarify, it is normally expected in a Second Reading that 15 to 20 minutes is the maximum. Obviously, sometimes there are exceptions, but particularly as the noble Lord asked at the beginning for any clarification, I thought that would be helpful.

[Lord Hacking (Lab)]

Yes, I am very aware that behind me, and in other parts of this Committee Room, there may well be those who are anxious about getting away for their Christmas. I will therefore be responsive to this interjection and bring the Committee to another very important crisis—one which leads directly to what I have said about the importance of an arbitration Bill. It should not only set the right relationship between arbitration and the courts but be promotional in nature.

The departmental committee was headed up first by Lord Mustill and then by Lord Steyn. They gave up the fight with the parliamentary draftsman who was, dear lady, a very pedantic one. She produced a Bill which was enormously complicated and quite unreadable. It included, most surprisingly—Mr Toby Landau would remember this—the writ of habeas corpus. We had a meeting about it in Queen Mary College, down the Mile End Road, and there was an uproar against it. I remember Jan Paulsson, a leading international arbitrator, making scathing comments. There was a skeleton hang-up and what we should therefore be grateful for, and what I would like to record, is that the noble and learned Lord, Lord Saville, and Mr Toby Landau started all over again. That is the product we have now in the 1996 Act.

The important thing about what we are doing now is that this is a wholly readable Bill. It does not have a whole lot of parliamentary junk in it. It takes you all the way through each stage of the arbitration. What we should be doing now is to make quite sure that we follow in that line. I do have comments about the Bill itself, but I will leave those to another time.

--- Later in debate ---

[Lord Bellamy (Con)]

However, this is an area where Governments, the profession and practitioners are constantly aware of the need for London to be competitive, fair, open and transparent and to prosper. As the years pass, this will be reviewed over time to ensure that London remains competitive by the natural play of market forces.

I think I have covered the main points raised. I thank all noble Lords for their contributions.

[Lord Hacking (Lab)]

Could I draw the Minister’s attention to Section 61 of the 1996 Act, which the Law Commission has not pronounced upon? This is the section on the power of the arbitrators to award costs, and how they should do so. Section 61(2) says that

“the tribunal shall award costs on the general principle that costs should follow the event”.

That is the regular jargon used in cases conducted before our law courts. At the very end of the case, the winning party gets up and asks the judge to award costs following the event—namely, that that party has won and therefore the other party should pay all the costs. That goes to the point that I was making that this should be a promotional Act, attractive to those from overseas—and how are those overseas persons meant to know or understand what

“costs should follow the event”

means?

It is more complicated than that. This came out in two cases, both under the jurisdiction of the wonderful Law Lord, Tom Bingham. When he was a mere Mr Justice, he did the case of “Catherine” in 1982—and then, when he was the Lord Justice of Appeal, he presided on the Norwegian Cruise case of April 1988. In both those cases, he did not follow the normal rule of costs following the event, because in both those cases the winning party had taken up excessive time on matters that it lost in the dispute. Therefore, it is not so simple as costs following the event and the loser paying.

What I suggest concerning this clause is that we take the opportunity during the passage of the Bill to remove that phrase and leave it as a simple judgment of the arbitrator or arbitrators—what is the fair order on costs that that they should make.

[Lord Bellamy (Con)]

My Lords, I thank the noble Lord, Lord Hacking, for that intervention. As far as I know, the Law Commission did not consider that specific question, so I am not entirely sure, as of now when I am on my feet, to what extent we should widen the debate in the context of this particular Bill. But I shall take his point back and further consider it, and see whether the Government have a position on the point that he very strongly makes.

Arbitration Bill [HL]

Lord Hacking Excerpts

Monday 4th December 2023 Lords Chamber

[Lord Bellamy]

That the Bill be referred to a Second Reading Committee.

[Lord Hacking (Lab)]

My Lords, long ago, I brought the Bill that became the Arbitration Act 1979 to the House and I then played a very active part in the 1996 Act. It is an area in which I have specialised. I would be very grateful if the Minister could give some guidance as to what exactly he means by his Motion to refer the Bill to a Second Reading Committee. I am mystified.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, as I understand it, this Bill will follow Law Commission Bill procedure, which is a special procedure whereby, in essence, we simply adopt a recommendation by the Law Commission. The next stage is to refer the Bill to a Second Reading Committee, which will take place in due course in the Moses Room; I think it is due on 19 December. Once there has been a Second Reading of the Bill, a specialist Committee will examine it. I am sure that the noble Lord’s membership of that Committee would be something we would all look forward to.

[Lord Hacking (Lab)]

I am very grateful to the Minister.

Motion agreed.

King’s Speech

Lord Hacking Excerpts

Wednesday 8th November 2023 Lords Chamber

[Lord Hacking (Lab)]

My Lords, I find the news of Lord Judge’s death most painful. I started my career as a barrister with Lord Judge—we were fellow pupil barristers in the same chambers—and I have known and admired him ever since.

On Thursday 14 October 1976, Lord Hailsham, the father of the current noble Viscount, Lord Hailsham, gave the Richard Dimbleby memorial lecture entitled “Elective Dictatorship”. I thought then that Lord Hailsham was right, and I think now, 50 years on, he was more than right. As Lord Hailsham argued, the Executive, when they wish, just control the legislature and not, as it should be, the other way round. Importantly, Lord Hailsham identified the cause as the

“continuous enlargement in the scale and range of government”,

with the result that more and more of the Government’s party, particularly in the House of Commons, is being taken into government, thereby strengthening the Government’s powers over the legislature.

I can give a personal example. My grandfather, in the House of Commons in the 1920s and 1930s, was a Parliamentary Under-Secretary of State in the Home Office. At that time, the only other political appointment in the Home Office was the Home Secretary. Take the position now: there is the Home Secretary, three Ministers of State, three Parliamentary Under-Secretaries of State and seven political appointments. The assumption is that this has happened in all the major departments of state, and the Government have continued, and are continuing, to extend their powers through the creation of one government agency after another.

In the current Parliament, there have been Bills, though not many, in which the Back-Benchers in both Houses of Parliament have been able to participate, to the benefit of the Bill, which is welcome—but not so with other Bills. Take, for example, the Illegal Migration Bill. This House worked very hard throughout the passage of the Bill, and when, on 12 July at well past midnight, this House was considering Commons amendments to it, we voted by significant majorities—by 60 votes or more in nine Divisions—for critical and important changes. What happened when the Bill got back to the House of Commons? My colleague in the Commons, Jess Phillips, wrote about it in the New Statesman on 21 July:

“Round and round and round we walked, voting on the House of Lords’ amendments to the Illegal Migration Bill. The first session took three and a half hours, the second two hours. It really is something to spend so much time losing votes … during these past few weeks of parliament, the farce has been real”.


I think all of us should find this very disturbing. It was further disturbing when we were compelled to pass this Bill, which most bizarrely contained provisions the Court of Appeal had declared to be unlawful. If the Supreme Court agrees with the Court of Appeal, there will remain among our statutes an unlawful statute. Perhaps its true name is the “illegal Migration Bill”.

This was not the only Bill which, in the last Parliament, fell in the House of Commons to the dictate of the Government—I refer to the retained EU law Bill. It is true that we are not an elected Chamber, but we are the only Chamber in Parliament that can place some restraint on the Government. In neither of the two Bills I cited did the Government have any electoral or other mandate. In the King’s Speech, the Government state that they intend to

“deliver on the Illegal Migration Act”.

What does this mean? I can only urge the Government heretofore not to use dictatorial powers and urge this House to look after democracy when any Government, of any day and of whatever persuasion, is patently not doing so.

I end my words by addressing the two Ministers, the noble and learned Lord, Lord Bellamy, and the noble Lord, Lord Sharpe of Epsom. The Lord Privy Seal, in his excellent speech yesterday, spoke about the friendliness of this House. I have now been rather unfriendly towards the Government of which the two Ministers are members. I hope that they will accept that I was not seeking to be unfriendly to them—they are good and respected Ministers. Their problem is that they are having to answer for the extremists in their party in the other place. We should give our commiserations to both of them.

Illegal Migration Bill

Lord Hacking Excerpts

Report stage
Monday 3rd July 2023 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, my noble friend Lady Ludford has put her name to the amendment in the name of the noble Lord, Lord Bach, which he explained very fully, and these Benches support. One often hears that immigration law is too complex for non-lawyers to understand—I have long held the view that it should not be—but, frankly, it is too complex for many lawyers as well. You need to be a specialist, and that is recognised by the system, but one still hears some horror stories.

The realities of legal advice for anyone in detention in the immigration system have long been bleak. There may be advice sessions but they are 30 minutes long, and it takes a long time for the client to be brought to meet the solicitor, which eats into the 30 minutes. Even with the most articulate client, it can take quite a long time to take instructions. I was a practising solicitor for many years and this cohort, as the noble Lord, Lord Carlile, said, consists of individuals whose English may be inadequate. Interpretation is therefore required, which is cumbersome and difficult for everyone. In any event, they have a story that takes support to tell, and that requires a lot in the telling.

Given the relentless speed of the processes under the Bill, this amendment is very necessary. The Government have recognised that legal aid has a place here, given what they have done so far in the Bill and the consultation on the rates. Raising concerns about legal aid became even more relevant with last week’s impact assessment, which drew attention to the problems of accessing legal aid and legal aid services, especially outside London and the south-east. We are very happy to support this amendment.

[Lord Hacking (Lab)]

My Lords, I am a Member of this House whose memory of legal aid probably goes back to before others were here. I was called to the Bar in 1963 and took an active part in legal aid, being not only a recipient of legal aid cases but sitting on legal aid committees. I view it as one of the great social achievements of the Labour Government ending in 1951, and it has been a matter of great sadness that its extent and benefit has been so diminished over the years.

We have here a very important need for legal aid. Most if not all of those needing legal aid will not be able to speak English, will have no knowledge of English law and will be left isolated without that assistance. For that reason, I strongly support the amendment of my noble friend Lord Bach—although, most regrettably, he is not putting it to a Division.

[Baroness Lawlor (Con)]

My Lords, I am glad to follow the noble Lord, Lord Hacking. I think the 1949 measure was a good measure following the Rushcliffe report. It had cross-party support then, and legal aid continues to have cross-party support.

I agree in principle with the noble Lord, Lord Bach, that it would be a very good thing for us to be able to revisit the legal aid budget and ensure that many of the cuts, both to scope and to litigants, could be reviewed with a view to being more generous and trying to revisit the consequences of both the 1999 and the 2012 Acts. I am with the noble Lord there.

However, because we have seen such cuts right across the board and a reduction in scope across the board, I have concerns about this particular amendment for these cases unless and until we can grant similar support to many of the cases in this country that are left without support as a result of what has happened over more than 20 years. I know that noble Lords would say that this is a different case, but many of these cases are claims of great merit, but Governments have to make decisions. For my money, I would prefer to have a fair redistribution of the legal aid budget between people who have been cut out of it—many of whom would have been eligible right throughout the 20th century—and other cases that noble Lords have mentioned.

Illegal Migration Bill

Lord Hacking Excerpts

Committee stage
Wednesday 7th June 2023 Lords Chamber

[Lord Paddick (LD)]

My Lords, as other noble Lords have said, there is an overlap between the last group of amendments and this one. I am grateful to the noble Lord, Lord Davies of Brixton, for setting out specifically what the issues are here, particularly the additional complications of the potential incompatibility of the Bill with the European Convention on Human Rights, and therefore workers being asked to act in contravention of people’s human rights. There have been instances where whole aeroplanes were chartered and immigration officers have accompanied people who were being removed, but here we are talking potentially about removals in numbers that we have never seen before—if the Government are to be believed.

The Government seem to be asking transport workers, who have not been trained in self-defence, to safely detain people or safely restrain them if they resist. They are not paid to do that sort of work or cope with those sorts of risks. What about employer liability insurance? What happens if a fight develops between a transport worker and one of the people being deported, and the person being deported ends up suing the transport worker? What about indemnity? What indemnity are the Government going to provide to these transport workers, who are effectively being used as agents of the state?

Again, what consultation has taken place with trade unions and transport operators around the feasibility of the proposals contained in the Bill? As the noble Lord, Lord Davies of Brixton, pointed out, and as my noble friend Lord German pointed out in the last group, there was the potential for seafarers to be prosecuted under the Nationality and Borders Bill if they attempted to rescue people from drowning in the English Channel, if they believed that they were illegal migrants. Now we are talking about potentially prosecuting transport workers who fail to act as agents of the state in detaining people for removal. How can that possibly be part of what a transport worker signs up for when they take on their role?

As my noble friend Lord German said in the last group, the UK Chamber of Shipping has written to noble Lords. The overall problem with this measure can be summed up when it says:

“We are greatly concerned about these clauses becoming law which could require the ship’s master and crew to detain passengers, something which they are not trained to do, at the direction of the Government”.


As I said on the last group, this whole clause seems to be an act of desperation and something that the Government really need to think about again.

[Lord Hacking (Lab)]

My Lords, with apologies to the noble Lord, Lord Paddick, I will intervene briefly. I very much want to hear what is said by my noble friend Lord Coaker, who will be speaking next. I have only one very simple observation to make. Although I have attended most of the debates on this Bill I have not been able to get into the detail of this, and I certainly did not get into the detail of this problem until my noble friends Lord Davies of Brixton and Lady Chakrabarti, and the noble Lord, Lord Balfe, spoke. It is a very simple proposition: these provisions are just unworkable.

[Lord Coaker (Lab)]

My Lords, I start by thanking my noble friend Lord Davies for Amendments 57B and 58A, which I think are very worthy and have signed. They encapsulate the points that I and many noble Lords have made throughout the passage of the Bill so far, and no doubt will in the future, that it is not only issues of principle that concern many of us with respect to this but that many of the provisions are simply unworkable and raise serious questions.

If noble Lords have not done so already, it is worth taking up the point of the noble Lord, Lord Balfe, and reading Clause 7(12)(a) and (b), which is at the heart of this group of amendments. As the noble Lord, Lord Balfe, pointed out, the captain of a ship or aircraft, the manager of a train or the driver of a vehicle must conform to the directions of an immigration officer to detain an individual and stop them escaping. That is not only if it is reasonable to do so or if it is something you could understand them doing; they must do it—they have no choice. I do not know about some of the lorry drivers the Minister knows, but good luck with that. The serious point was made that the language barrier will be enormous, or at least significant, in many of those instances.

I have some specific questions, and they repeat and reinforce some of the points that have been made. Can the Minister explain how the captain of a ship, a lorry driver or a train manager—that is who we are talking about here—will detain these people? If the immigration officer requires them to detain someone, how are they meant to do that? As my noble friend Lady Chakrabarti and the noble Lord, Lord Paddick, ably put it, given that they are not warranted officers and do not have the powers of police officers or other individuals, what force can they use? “Excuse me, please do not get out of my lorry. I have been required by the immigration officers to stop you”—I am not sure that that would work, but let us say it does. But if it does not, and the person tries to get out, what can they do to stop them? I hope the Minister can explain that. The problem is that if they do not stop them, they can be prosecuted. One of the noble Lords who contributed said that it is not that they might be prosecuted but that they will be prosecuted if they do not conform. What happens if they try but the person escapes? Who decides whether they have tried enough—that they have gone to a sufficient extent to prevent the person leaving? Knowing the practicalities of this would be useful.

Clause 7 says “vehicle”, which means a lorry, but does it also mean a car or a campervan? If you are a driver of a car and somebody is in the back, do you have to stop them getting out on the direction of an immigration officer? Is it the same rules for children as for adults? The Minister will say I am nitpicking, but we are in Committee and that is the whole point of Committee. Whether for a lorry driver, train manager or car driver, we need to know whether the Government assume that you can do the same with children and what force is applicable with respect to children vis-à-vis an adult. There are, as I say, a significant number of questions.

The last point I want to make, which was raised by my noble friend Lord Davies, is about the detention period for which someone can force a person to stay in their train, on their aircraft or in their car. What is the reasonable length of time? How does it work? I think the Bill may say a few hours but what happens when that expires? The Secretary of State is then required to say that it can be extended. How does that work? How is the driver informed about that? On the practicalities, the noble Lord, Lord Balfe, made a really interesting point, which again sounds like nitpicking. If you are a train driver or a lorry driver, and you arrive somewhere and are required to stay there for 12 hours or 24 hours, what rights do you have? Are you required to stay there, or can you pass it on to somebody else to take over from you and carry on with that period of detention?

My noble friend Lord Davies and the unions, and others who have supported them, have raised a series of important questions about why the detail is so important and why many of us have questions about not only the principles of the Bill but some of the proposals in it and the workability of them.

Sentencing Act 2020 (Magistrates’ Court Sentencing Powers) (Amendment) Regulations 2023

Lord Hacking Excerpts

Tuesday 16th May 2023 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, considering that we deal with a lot of very big Bills here in your Lordships’ House, this is quite a small issue, but for me, it encapsulates the panicky and misguided way in which the Government constantly tackle big problems such as our prison population and the justice system. It is an example of their wanting a quick fix for something that they have damaged over the last 13 years of austerity and incompetence.

I cannot comment on whether six months or 12 months is right—I do not have a magistrate’s training—but I can say that we have too many people in prison and we have to stop sending so many people to prison, particularly women. We also have to be clear, of course, that people coming out of prison need help if they are not going to reoffend. You cannot fix these big problems with tiny little tweaks such as this.

I do not understand why such knee-jerk reactions happen all the time with this Government. Where is the overview or the long-term planning? Where is the coherence for dealing with these big problems? This Government have tried to fix the whole justice system on the cheap. It has not in fact been cheap, of course, because it is very expensive to keep people in prison and train magistrates, while not giving people the support they need when they come out of prison, so they go on to offend again. Why not have a longer-term plan?

This Government have got, one supposes, another year. Please could they get some expert advice on this sort of thing and not keep flailing around? One minute it is six months, the next it is 12 months and then it is back to six months again. This is not good government; it just does not make any sense to do things like this. The court system is at breaking point and the prisons are way over full, so the Government should really now be thinking about how to solve these two problems. This, I would argue, is not the way to do it. The Government have broken our justice system and are now doing tiny little tweaks to try to fix it, which simply will not work.

[Lord Hacking (Lab)]

My Lords, the House is fortunate in having my colleague and noble friend Lord Ponsonby, and with some reason because he has sat for many years on the magistrates’ courts and has enormous experience of their functioning. We are also lucky to have the noble Lord, Lord Thomas, whose memory stretches back—I dare not ask him how many years—to his early days when embarking upon a career at the Bar, and to a certain magistrate whom he much respected in Wales. We are fortunate, too, to have the noble Baroness, Lady Sater, who is behind the Minister, and who also clearly has much experience as a magistrate, although I think she has ceased to be one.

In my experience, and this goes a long way back, magistrates are on the whole sensible people—after all, having been magistrates for 10, 15 or 20 years, they have become very experienced—and are not great senders to prison. Magistrates are actually reluctant to send people to prison, particularly for the reason that the noble Lord, Lord Thomas, presented. It does not do much good to have somebody in prison for three or six months to set a kind of an example. It does not work, or did not in my experience, for the normal kind of criminal offences involving theft and violence. But it was quite good for motoring offences, because it set a rather good example to all motorists. If the driver of a motor car who is otherwise without conviction misbehaves really badly in driving their car—these are normally citizens who have not had previous convictions —and they are sentenced to prison for a short time, that is a very big shock.

The central issue has been rightly raised by my noble friend Lord Ponsonby and by the noble Lord, Lord Thomas. There should be proper research on the figures to see whether the basis of this is right, because magistrates across the board do not have a record of imprisoning the people who appear in front of them. It seems to me that to change the sentencing policy down from 12 months, which is only a moderate period, to six months is complete nonsense. Magistrates should have that freedom. All that happens is that the appeals go up—in my day—from the magistrates’ sessions to quarter sessions, and, for many years now, to the Crown Court. One of the things that magistrates were able to do—I am sure this remains the position—was that, if they considered that they did not have sufficient powers to sentence the offender for a period of more than 12 months, they could send the case to the higher court and it could be dealt with there.

In summary, we are very spoilt by the presence of those who have experience in magistrates’ courts in this House. There should be proper research and I welcome all of those suggestions.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, I am very grateful to all noble Lords who have contributed to this debate, in particular the noble Lord, Lord Ponsonby, whose Motion this is. I also thank the noble Lord, Lord Hunt of Wirral, and his colleagues in the Secondary Legislation Scrutiny Committee for their report. Their comments are understandable; I will say more about the background to this in a moment.

I would first like to make one overarching point. I would like to reassure the House, and through the House the magistracy in general and the Magistrates’ Association, that this change is no reflection whatever on the magistracy or its use of the extended powers. The Government place immense value on the continuing and outstanding contribution of magistrates in the justice system. I believe everyone in this House is very aware of the exceptional work that magistrates do. This has already been mentioned by the noble Lords, Lord Thomas and Lord Hacking, and by other noble Lords.

--- Later in debate ---

I hope I have dealt with the various questions, and, in the circumstances, I invite the noble Lord, Lord Ponsonby, not to proceed with the Motion.

[Lord Hacking (Lab)]

Before the Minister sits down, has he any figures for the occasions when the magistrates do not consider that they have sufficient powers under the current regime and therefore send the accused to the Crown Court for sentencing?

[Lord Bellamy (Con)]

I do not have that figure with me, but I will write to the noble Lord, Lord Hacking, with it.

Offenders (Day of Release from Detention) Bill

Lord Hacking Excerpts

2nd reading
Friday 21st April 2023 Lords Chamber

[Lord Hacking (Lab)]

My Lords, if I may, I shall also speak in the gap. In doing so, I ask the Minister to recall his young days at the Bar—and I shall do the same. One of the depressing features of my young days at the Bar—and I am sure that it was the same for the Minister—was the repeated offender. Time and again, you had convicted for further crimes those who had already been convicted and had spent time in prison. I do not know how far this measure will help, but it is one well worth taking, and I give full support to the Bill.

Probation Service: Chief Inspector’s Reviews into Serious Further Offences

Lord Hacking Excerpts

Tuesday 31st January 2023 Lords Chamber

[Lord Hacking (Lab)]

My Lords, I hesitate to stand up, although things are getting better now, as the formidable yellow flashing time constraint of 20 minutes was before us, but it seems that it has been recognised that the time allocated to this business is 40 minutes. Before I ask the Minister a question, I associate myself with the words of my noble friend Lord Ponsonby and those of the noble Lord, Lord Marks, and the questions that they put. I would also like to recall what it was like working with the probation service long ago, when I was a young barrister. In those days, it was in the Quarter Sessions and the Assize Court, not in the Crown Court. We all had a great respect for the probation service then. It was under fewer constraints than it has recently been, and it was then part of the government service. When I was practising at the Bar those years ago, the responsibility of the probation service did not extend to the post-prison time. It is quite clear that responsibility has now been placed—and I notice the Minister nodding—on the probation service. That, of course, requires that information be passed from the prison service to the probation officers so they can take on that new responsibility. Does the Minister think that this a good system?

[Lord Bellamy (Con)]

I too have a fond memory of that probation service, as it was then. As I appeared only once at the Quarter Sessions before they were replaced by the Crown Court, I bow respectfully to the seniority of the noble Lord, who has clear recollection of both Quarter Sessions and, of course, the magistrates’ courts. It is completely right that, in those days, the probation service dealt very largely with people who were put on probation. Those were, generally speaking, the lower-level offences, where you still had some chance of not imposing a custodial sentence and some hope of avoiding it. At a point—I would be hard pressed on the hoof to say exactly when, but it is quite a long time ago—the probation service was given the further duty of managing prisoners who had been released in the community. Systems have been developed —in some cases, very sophisticated systems—for managing that risk. The view of both Governments has been that we now have to manage the progressively more dangerous, difficult and chaotic released prisoners, who are very often drug users or have alcohol problems—they need support and that is provided through the probation service. In specific answer to the noble Lord’s question—is this a good idea?—the Government’s view is that, yes, it is a good idea. We cannot do without it, in effect, but it does need particular skills and training, especially with the higher-risk offenders, for whom there is a special system called MAPPA. Matters have moved on since our joint recollection of the past, and, in today’s conditions, there is no alternative.

National Security Bill

Lord Hacking Excerpts

Committee stage
Wednesday 18th January 2023 Lords Chamber

We have heard about the Independent Reviewer of Terrorism Legislation’s concerns regarding the restriction of victims’ right to redress. These clauses provide significant concern, not only standing alone with regards to civil law; together with Clause 28, they would be a retrograde step and should not be part of the Bill.

[Lord Hacking (Lab)]

My Lords, I am also in receipt of an excellent briefing from Reprieve, which was covered excellently by the noble Lord, Lord Marks—so much so that I am left with nothing further to say on that issue.

However, as I am currently the only Member on the Labour Back Benches, I want to put on the record that I wholly oppose the concepts contained in Clauses 82 to 86. They would allow Ministers and officials to avoid paying damages to survivors of torture and other abuses overseas; they would also give Ministers certain rights to reduce those damages under Clause 83. I just want to put a stake in the ground, as it were, behind the noble Lord, Lord Coaker. I hope that I speak for my colleagues on these Back Benches in saying that I wholly support what the noble Lord, Lord Marks, described to your Lordships so excellently. That is my stake in the ground.

[Lord Faulks (Non-Afl)]

My Lords, I add a couple of queries which I hope that the Minister can help with.

Clause 83(5) provides that:

“Where the court would award damages … of a particular amount, the court must decide whether, in light of its consideration of the national security factors, it is appropriate for it to reduce the amount of damages (including to nil).”


How is a judge supposed to decide whether it is appropriate? The national security factors are listed but perhaps, by way of an example, some illustration can be given to the Committee to help us understand what this legislation has in mind. Incidentally, I note at Clause 83(7)(b) the various other defences in common law to which the noble Lord, Lord Marks, referred—that is, ex turpi, volenti and contributory negligence—are reserved anyway. The question is whether anything further is needed. An explanation of why these provisions are needed would certainly help the Committee.

--- Later in debate ---

[Lord Bellamy (Con)]

As far as I know, it is not the intention to apply this measure to Northern Ireland, but I shall write to the noble Lord to confirm the Government’s position.

[Lord Hacking (Lab)]

Many years ago, I used to sit on a legal aid committee. What worries me is the responsibilities that will be placed on all legal aid committees that will have this provision in front of them. One wonders, therefore, whether there should be special representation for the person applying for legal aid, and how that is going to be run. But this is a practical problem, and I ask the Minister to reflect on the practical side of the issue.

[Lord Bellamy (Con)]

My Lords, I shall certainly reflect on the practical side. This would be a decision for the director of casework at the Legal Aid Agency. The noble Baroness, Lady Ludford, rightly raised the question of the practical “bureaucracy” associated with the proposal, and we are working with the Legal Aid Agency to see how it can be most conveniently implemented, with minimum disruption.

Judicial Review and Courts Bill

Lord Hacking Excerpts

Report stage
Thursday 31st March 2022 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I, too, thank the Minister for these amendments and the noble and learned Lord, Lord Etherton, who has had a number of discussions with the Minister on this point. He very generously thought that the Government’s amendment was a more suitable wording, if I can put it like that. I do not know whether that is right, but that is the sense I got. It is good to finish Report on a note of agreement, which it does through these government amendments.

[Lord Hacking (Lab)]

My Lords, I also endorse what was said and support the Bill, particularly because I struggled back from Portsmouth, not for the beginning of Report, alas, but in time to vote. The Minister did say to me—I hope that I am not breaking any confidences—“You’ve just come back to vote against me”, but may I record that I am voting with him on this issue?

[Lord Wolfson of Tredegar]

My Lords, I am grateful to everyone and look forward to the noble Lord’s support on issues where it might matter more that he is on my side, but I am always grateful for any support that I get from any quarter.

More seriously, I am grateful to the House for what seems to be unanimous support for this amendment. We have made good progress timewise this afternoon and I will not detain the House for very long, but I would like again to place on the record my personal thanks and the thanks of my department to the noble and learned Lord, Lord Etherton, for his engagement on the issue and for proposing it in the first place. He had a number of meetings both with me and officials, and I am really pleased that we have got to a good result here. I also thank the Access to Justice Foundation, which has worked with the noble and learned Lord and with my team to make sure that the amendment works in practice as effectively as possible. For those reasons, I invite the House to support the amendment.

Amendment 29 agreed.

Clause 49: Extent

Amendments 30 and 31