Arbitration Bill [HL]

Lord Hacking Excerpts

Committee stage
Wednesday 11th September 2024 Lords Chamber

Moved by

[Lord Hacking]

1: After Clause 4, insert the following new Clause—
“Safeguarding against fraud and corruptionIn section 33 of the Arbitration Act 1996 (general duty of the tribunal), after subsection (1)(b) insert—“(c) safeguard the arbitration proceedings against fraud and corruption.””

[Lord Hacking (Lab)]

My Lords, before I address my amendment, I would like to express to your Lordships complete support for this Bill. I had the honour to be a member of the Special Public Bill Committee, so ably chaired by the noble and learned Lord, Lord Thomas. I sat through all the hearings and then sat with my co-members of the committee throughout our deliberations.

Perhaps I can do no better in expressing my support for the Bill than to quote from the Explanatory Notes. Paragraph 6 reads as follows:

“The intent of the Bill is to further the principle found in section 1 of the Arbitration Act 1996: to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense. Thereby, the aim is to fulfil the policy objective of ensuring that the Act is fit for purpose and that it continues to promote the UK as a leading destination for arbitrations”.


I now move to my amendment and, as I do so, I express thanks to my learned friend—or rather, my noble friend—the Minister. Unfortunately, he does not take the “learned” with his name, although he is very learned. I am very grateful to him for his letter to me of 15 August on the corruption issue. I have read the entire contents of that letter and express gratitude without reserve, but I am afraid to tell your Lordships—for reasons that I will now develop—that the reply in this letter is not complete.

First, we must look at the extent of corruption and I am afraid that it is bad news. There is the Nigeria case and the judgment of Mr Justice Robin Knowles on 23 October 2023; nobody in this Committee knows more about that case than the noble Lord, Lord Wolfson of Tredegar, KC, who took the role of a senior counsel throughout the long hearings before Mr Justice Knowles. The fact is, however, that in the arbitration proceedings resulting in that case, there were two very distinguished English arbitrators—former judges of the High Court—who made a very large award of $11 billion. Because of the corruption that was found by Mr Justice Robin Knowles, that very large award had to be set aside in its entirety.

Moreover, this is not the only case where corruption has evidenced itself. The charity under the title of Spotlight on Corruption has identified three recent cases in which serious corruption was found. There was the Mozambique case before the UK Supreme Court in September 2023; the Steinmetz case before the ICSID tribunal in Paris in May 2022; and the BSG case before the LCIA in April 2019. So this is a serious problem and I remind your Lordships of what I said at Second Reading: that I have had experience as an arbitrator in commodity arbitrations relating to Ukraine and Russia, where corruption was most evident, often with the bribing of officials to obtain export licences.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, I thank the noble Lord, Lord Wolfson, for welcoming me to my current position; I am very glad that he has 20/20 eyesight and is looking at these matters so closely. I am also thankful to my noble friend Lord Hacking for initiating this debate. He said very clearly when he introduced his amendment that he supports the Bill, and I am grateful for that. He is again raising the issue of protecting the arbitral process against corruption, and of course that is extremely important. Having considered this very carefully, the Government’s position is that our framework already provides a robust regime and that no law reform is necessary. A tribunal, like a court, must always guard against fraud and corruption, and I will explain what mitigations our existing regime already provides.

Under Section 33 of the Arbitration Act 1996, the tribunal is already under a duty to “act fairly and impartially”, and to

“adopt procedures suitable to the circumstances of the … case”.

An arbitrator who is corrupt would fail in their duties under Section 33. Furthermore, the arbitrator’s appointment can be revoked by the parties under Section 23, or an arbitrator can be removed by the court under Section 24. An arbitrator who acts in bad faith loses their immunity under Section 29 and can be sued.

When arbitral proceedings are tainted by fraud or corruption in the arbitral process, any arbitral award can be challenged in court under Section 68 for serious irregularity, as indeed was successfully done in the recent case of Nigeria v P&ID, which we heard about earlier. Indeed, the reason why arbitral corruption is currently a talking point is that the court identified corruption and prevented abuse in that case. Arbitral awards can also take account of corrupt conduct and deprive a corrupt party of any arbitral award which is sought to permit fraud or corruption. It would be unenforceable as contrary to public policy under Section 81. It is possible for an arbitrator to publish their award and denounce the fraud publicly. In ruling an award to be unenforceable, the court can also publish its judgment publicly. The scheme under the 1996 Act is sufficient and has not revealed any deficiency in practice.

The Government oppose legislative reform here precisely because it is unclear what additional benefit it would provide over the current regime, which provides both parties and arbitrators with routes to challenge and address corrupt conduct, as well as duties on the arbitrator to ensure fair and proper proceedings. A new, untested measure may simply introduce uncertainty for both parties and arbitrators.

The 1996 Act and the modernising impact of this Bill are designed to ensure robust and efficient arbitral proceedings. Our framework provides this balance and well equips the tribunal and courts to deal with corruption. The Government will continue to support the sector’s efforts on arbitral corruption. We will keep track of initiatives that are under way, such as that of the ICC anti-corruption task force, to which a number of noble Lords referred, and engage with the sector to push for the swift adoption of best practices as they are developed. I hope that this explanation reassures my noble friend and that he will withdraw his amendment.

To go a little further, as noble Lords are aware the previous Government wrote to leading arbitral institutions seeking views on the mitigations that are currently in place and whether more are needed. I understand that responses were received from the Chartered Institute of Arbitrators, the International Chamber of Commerce, the London Court of International Arbitration, the London Maritime Arbitrators Association and the Grain and Feed Trade Association, in addition to the Law Society and the Bar Council.

All those institutions mentioned mitigations they had in place against corrupt conduct. None expressed support for amending the Arbitration Bill to strengthen anti-corruption. In addition, concerns were raised that a one-size-fits-all approach would be ineffective and risk unintended consequences. Nigeria v P&ID was raised as a highly unusual case where the court effectively performed its proper role in setting aside the award. Where a role was suggested for the Government, it was in ensuring that the courts continue to be equipped to provide checks in cases put before them, as they did in the Nigeria case, and to engage in discussions with the sector and promote its work combating corruption.

The noble and learned Lords, Lord Bellamy and Lord Thomas, and the noble Lord, Lord Beith, raised the issue of the letters and whether they could be published. I am unable to share those letters. The noble and learned Lord, Lord Bellamy, can see the letters that were responded to when he was a Minister, but they were written specifically to him in that role. I would not necessarily be able to see those letters, which would create a difficult situation. I understand that a couple of letters came in when the new Government were formed. But I can say with complete confidence that the substance of those letters was explained and explored within the letter that I wrote to the noble and learned Lord, Lord Bellamy, which is in the public domain. I am confident that if I was wrong somehow in asserting that the substance was inaccurate, those various bodies would be able to draw that to my attention. I am confident that the substance of the letter I wrote on 15 August is completely accurate. I hope that noble Lords will accept that.

A number of noble Lords spoke of their reasons for opposing my noble friend’s amendment. They said that it might well be duplicative, unnecessary and problematic in various ways, which they explored. I have to say that I agree with the noble Lords who made those points.

In closing on one point, the noble Lord, Lord Wolfson, asked about relevant arbitral bodies being given a nudge regarding corruption. They are of course perfectly able to do that. It would be beneficial, and maybe they should remind themselves that they have that responsibility to give a nudge if they suspect corruption in particular cases. So, having said all that, I ask my noble friend to withdraw his amendment.

[Lord Hacking (Lab)]

My Lords, it is my intention to withdraw my amendment, but perhaps I could say just a few words after a fairly long debate on it. First, I thank those noble Lords—there were several—who accepted the principle that I sought to express. It was nice to have that support but, as was very clear, not one noble Lord accepted my amendment. Therefore, I am not exactly in a strong position to press it now, or indeed on Report.

I did not realise when I cited three cases put before us by Spotlight on Corruption that the noble Lord, Lord Wolfson, was counsel on every one. So he has extensive knowledge—greater than that I gave him credit for in my opening words.

One thing that has been missed in this debate—it was the first point I made—is that I wanted us, by legislation, to set out our standard. I described the first importance of my amendment as putting a flag in the ground so that the world may know that, in arbitration proceedings where England is the seat of the arbitration, we will not countenance corruption and fraud. I still think that is an important point.

I did not know when I got up to speak that there would be such a formidable line of noble and learned Lords alongside me, including the former Lord Chief Justice, who has not actually spoken but who has a devastating commitment to good argument, so I am not inviting him now to make any interventions because he will make some argument that will totally defeat what I am trying to say.

The noble and learned Lord, Lord Hoffmann, said that he thought my amendment was impractical, and of course arbitral tribunals do not have the power of investigation. The point I was making was that, at the commencement of the arbitration, the arbitral tribunal could speak to both counsel and the parties who should be present at the inaugural meeting and remind them of the seriousness of rooting out any corruption or fraud. I also point out, as a former counsel and solicitor, that when you take instruction from a client, and statements from clients’ witnesses, you have a lot of opportunity to know what is going on. So there is a role for counsel and the parties in rooting out corruption, and that is why I thought it useful to have this revision.

The noble and learned Lord, Lord Hope, said that the committee—which was so well chaired by the noble and learned Lord, Lord Thomas—had not reached any view about corruption. There was in fact a reason for that. I do not know whether the noble and learned Lord, Lord Thomas, is listening, but we received these two reports from Spotlight on Corruption at his instigation, and his view, and that of the committee, was that under the timetable we were working to, this was too big an issue for us to take on. That is why we made no pronouncement on that subject.

My Front Bench is getting a bit restless, but I am sure that there will be plenty of time to consider the next amendment. I rather get the feeling that there will be an intervention now in Committee on the Arbitration Bill and we will debate another excitement. I am withdrawing this amendment, but I hope that noble Lords have heard and agree that this is a continuing matter. I am particularly grateful to my noble friend for his promise to keep this under review—and may it continually be kept under review.

Amendment 1 withdrawn.

Arbitration Bill [HL]

Lord Hacking Excerpts

2nd reading
Tuesday 30th July 2024 Lords Chamber

[Lord Hacking (Lab)]

My Lords, I hope that I am standing up at the right moment. I have been advised by the Table, as the only Back-Bencher available to speak in this debate, that this is the moment that I am allowed to intervene as a gap speaker. Unfortunately, I am also advised that I have to keep to the strict rules of the gap and a Whip is already showing four fingers to me, which I think indicates four minutes. All I can do is to hope that the Whips will be kind, because I was a full participant in the Special Public Bill Committee on this Bill and took part in the many thorough and detailed sessions that we had within that committee.

I am going to break away for a moment to give tribute to the noble and learned Lord, Lord Thomas, who was our excellent chairman, and also to tell your Lordships that the noble and learned Lord is sad not to be here today and has asked me to express his regret for his absence.

I will therefore concentrate on the corruption issue. This has become important since the judgment of Mr Justice Robin Knowles in the Nigeria case. He gave his judgment on 23 October 2023. Suffice it to say that in that case, two very distinguished English arbitrators came to the conclusion that there should be an award of no less than $11 billion US against the Federal Republic of Nigeria. When this came before Mr Justice Robin Knowles, in a judgment lasting 140 pages, he set the whole of this large award aside on the grounds of corruption.

In the committee, we received submissions from Spotlight on Corruption but had no time to examine this important issue further. I am therefore asking the Minister to convene, before Committee, a special meeting to be attended by the Law Commission, by noble Lords who take part in the Special Public Bill Committee, and other noble Lords, to consider the issue of corruption and whether we should address that in Committee. This is a very important issue, and I cite from a distinguished international arbitrator who says:

“Corruption is today one of the greatest challenges facing international commerce and has serious detrimental effects on markets, efficiency, and public welfare”.


I know that from my own days as an international arbitrator, when I arbitrated a number of commodity cases relating to Ukraine and Russia. Corruption was evident all the time, and we had to be very careful in reaching our decision.

Of course, this can be pushed over to another day for another arbitration law reform, but they come very few and far between. There were 17 years between the 1979 and 1996 Acts, and it has now been more than 20 years since the 1996 Act, so I suggest that this should not be pushed over to another arbitration reform Bill; it should be addressed now and in committee.

--- Later in debate ---

[Lord Hacking (Lab)]

My noble friend would have heard my worry that the opportunity for arbitration reform is an opportunity that does not arise until a number of years have passed. Can he give any assurance that, as corruption is a serious issue—I think he recognises that—this Government will support this further investigation into corruption and whether any legislation relating to arbitration law should be brought in, and fairly swiftly?

[Lord Ponsonby of Shulbrede (Lab)]

We are always open-minded about addressing problems. We need to scope out the true extent of the problem, which is why I have offered to write to noble Lords about the responses that we may have received—I do not know the answer to that—to the letter written by the noble and learned Lord, Lord Bellamy, when he was the Minister concerned.

I turn to other points. The noble and learned Lord, Lord Bellamy, was very gracious to me in his opening, and I thank him for that. I certainly intend to behave as a Minister as he behaved when he was a Minister, and to consult with colleagues across the House to try to make sure that we focus on the real issues of difference between us, rather than any other matters that may distract us. I will take a leaf out of his book about how I conduct myself in trying to achieve that.

The noble and learned Lord asked about the possibility of carryover for uncontentious Bills between Parliaments. I will bring that comment to my noble friend’s attention. I do not know what the reaction will be, but it seems a sensible idea to me.

The second point the noble and learned Lord made concerned the choice of seat. I had a discussion with the noble Lord, Lord Wolfson, about this very issue, and my opening speech referred to it. I agree that we should have confidence in our judges, and perhaps some extra words can be added to the explanatory notes to reflect the position. We have undertaken to look at that.

The noble and learned Lord also raised an issue concerning Clause 13. I will have to write to him about that as well, as I am not sighted of that issue.

In conclusion, this Bill achieves a balance. It neither seeks to fix what is not broken, nor does it sell short the potential of our jurisdiction. Growth is a fundamental mission of this Government, and this Bill plays its part. I thank all noble Lords who have taken part in this short debate, and I look forward to interacting with them as the Bill progresses.

Recognition and Enforcement of Judgments (2019 Hague Convention etc.) Regulations 2024

Lord Hacking Excerpts

Friday 24th May 2024 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I too very much welcome this measure for various reasons, which are set out very well in the Explanatory Memorandum. Some of the features which are set out in it are the care that has been taken to consult at various stages, the response to the consultation, and working together across the various jurisdictions within the United Kingdom to achieve harmony in the way we respond to the challenge that this convention has presented us with. The result is a happy one, and I am very happy to offer my support for this measure.

I join with the noble and learned Lord, Lord Thomas of Cwmgiedd, in his remarks about the Arbitration Bill. For the reasons he has given, it is extremely important that this Bill be brought back at the earliest possible opportunity and with the least possible complication. I know that there are procedures that always have to be gone through for Law Commission Bills, but it was very thoroughly debated at all its stages. It was really ready to go and it is a great disappointment that it has been lost because of the calling of the election. I hope that all those involved can move quickly to bring the Bill back, so that we can get the benefits the noble and learned Lord has identified.

Lastly, I join with him in expressing great appreciation for all that the noble and learned Lord the Minister has done in his position on behalf of the Ministry of Justice. It has been a pleasure to work with him and we wish him well for the future.

[Lord Hacking (Lab)]

My Lords, I do not know whether my noble friend Lord Ponsonby is going to intervene, but I would just like to endorse entirely what the noble and learned Lords, Lord Thomas and Lord Hope, have just said. I speak as a member of the Public Bills Committee, which was so well chaired by the noble and learned Lord, Lord Thomas, and I hope my side of the House or the Minister’s side of the House will quickly bring back the Arbitration Bill, for all the reasons given by the two noble and learned Lords.

[Lord Sandhurst (Con)]

My Lords, I too welcome this measure, but I want to take this opportunity to echo the very generous words of praise from my noble and learned friend Lord Thomas of Cwmgiedd. My noble and learned friend Lord Bellamy has been a tremendous Minister. He has worked absolutely tirelessly under great pressure and it is no fault of his that we are losing the Arbitration Bill, which really is important. I think it is important that this point is made and it is very important that whoever wins the election understands that this Bill is important for the City of London which, whatever one’s political views, brings enormous sums of money into this county and generates a lot of tax.

In the same breath, I am also very sorry that the litigation funders Bill, which I think was effectively uncontested—although it could probably do with a minor tweak—has also been lost. I very much hope that that is brought back and sent through quickly in the autumn. That Bill is also very important for the London legal market. I am not talking about small sums here and cases in the Competition Tribunal and so on could be taken elsewhere. It is really important that they stay in the United Kingdom and that we keep our top legal services.

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.