Prosecution of Offences Act 1985 (Criminal Courts Charge) Regulations 2015

Lord Pannick Excerpts

Wednesday 14th October 2015 Lords Chamber

[Lord Rooker (Lab)]

My Lords, I had not intended to speak in this debate, but I have just received an email from a friend who is a magistrate. I shall not say where because these days one cannot do that. It is worth putting on the record. He writes:

“Courts are closing in great numbers with another 90 about to be closed and there will be more after this. Defendants and witnesses now have to travel great distances. Some cannot afford it so plead guilty when they may not be. Also, it has removed the fundamental right of citizens to be tried by their peers as the cost of the criminal court charge is so high and beyond most defendants’ means, so they are pleading guilty. It has removed the need of the CPS to prove a case beyond reasonable doubt. Not many well-off people appear in court so it is the poorest who are being hit with a double whammy”.

That is the view of a serving magistrate sitting on the Bench today.

[Lord Pannick (CB)]

My Lords, on this subject, I am on the side of the two Jeremys: the noble Lord, Lord Beecham, and Jeremy Bentham. In 1795, Jeremy Bentham wrote:

“The statesman who contributes to put justice out of reach … is an accessary after the fact to every crime”.

For Bentham, such a law tax was a denial of justice. These regulations are a denial of justice, and they are a denial of justice for the two reasons given by the noble Lords, Lord Beecham and Lord Marks. First, because the sums involved—£150 up to £1,200—may well encourage innocent people to plead guilty, and, secondly, because the magistrate or judge has no discretion to vary the charge by reference to the circumstances of the offence or the offender—in particular, the offender’s means.

I will add a further point. There is a much fairer and more lucrative way forward for a Lord Chancellor who wants to help balance the books by imposing a court charge. Let the Lord Chancellor give the judges and magistrates a discretion to charge much higher court fees to defendants who are convicted of serious crimes and who can afford to pay. The drug dealers, the bank robbers and the fraudsters can be charged the true cost of their occupying the courts for weeks in trials that end in convictions if the judge or magistrate in their discretion thinks that it is appropriate to do so. The regulations could then give the courts a proper discretion not to impose on the small fry charges that may well induce guilty pleas from innocent people and may well result in the imposition of orders for payment from people who cannot afford them. If the noble Lord, Lord Beecham, wishes to test the opinion of the House on these regulations, he will certainly have my support in the Division Lobby.

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

My Lords, the points to be made against these regulations are so obvious and so strong that really they do not need to be made yet again in tonight’s debate. The problems—the total lack of judicial discretion, the obvious impossibility of recovery in so many cases and the risk of excessive pressure on defendants to plead guilty to avoid the charge escalating from £150 to £520, or, in an each-way case, from £180 to £1,000—were all foreseen by the noble Lords, Lord Beecham and Lord Marks, in Committee in July of last year. They have all since been the subject of widespread criticism by a series of distinguished legal commentators in a succession of legal periodicals such as the Criminal Law Review, Criminal Law and Justice Weekly and so forth. Professor Nicola Padfield, a most distinguished legal academic and criminologist and now master of Fitzwilliam College, Cambridge, described them as “astonishing” and quoted another commentator as saying that they were the most unworthy provisions on the statute book. The president of the Law Society called them “outrageous”.

Inquiries Act 2005 (Select Committee Report)

Lord Pannick Excerpts

Thursday 19th March 2015 Lords Chamber

[Lord Pannick (CB)]

My Lords, on behalf of all noble Lords I thank the noble Viscount, Lord Tenby, for his distinguished service to this House since 1983. We wish him a very happy retirement. Noble Lords will know that his grandfather, David Lloyd George, famously described this House as,

“a body of 500 men chosen at random from amongst the unemployed”.

I cannot believe that the noble Viscount has ever not been employed on some worthwhile task. It is especially appropriate that he has played so valuable a role in the discussions on the role of this House and how to move this House—now composed of rather more than 500 men and women—to the next stage of reform.

Unlike the noble and learned Lord, Lord Morris of Aberavon, I have never had the pleasure of sharing a tent with the noble Viscount, but I am one of many noble Lords who have benefited enormously from his advice about matters relating to this House. That advice has been valued by all of us because it has been based on knowledge, wisdom, kindness—a much underrated quality—and humility, as your Lordships have again heard today. The noble Viscount, Lord Tenby, will be much missed on these Benches and around the House.

I join other noble Lords in welcoming this impressive and stimulating report. I want to focus, as other noble Lords have done, on paragraphs 243 to 251 of the report, which address warning letters. As the noble and learned Lords, Lord Cullen, Lord Woolf and Lord Morris of Aberavon, have mentioned, those paragraphs address the need under the current rules to send letters to those who are the subject of criticism in a draft report, giving them an opportunity to comment before the final report is drawn up and published—an obligation that adds a very substantial amount of work for an inquiry, and a very substantial delay before publication. The committee is correct at paragraph 251 to recommend that these rules need to be replaced by a discretion for the chairman as to whether to give a person who is to be criticised in a report an opportunity to respond. Given that the Inquiry Rules do not apply, as we have heard, to many inquiries, including Chilcot, the practice needs to change as well.

This issue requires consideration of a little history and a little law. The noble Lord, Lord Trimble, mentioned the Profumo inquiry. When Lord Denning inquired into the Profumo case in 1963, he acted, as he said in his report, as,

“detective, inquisitor, advocate and judge”,

hearing all the evidence in secret. This led to the 1966 Royal Commission on Tribunals of Inquiry, chaired by Lord Justice Salmon, as he then was. He understandably concluded that future inquiries should do more to ensure justice for those involved. That led to the practice of witnesses being given a “Salmon letter”, setting out before they give evidence matters of interest and concern. The process has become increasingly legalistic in the worst sense of that word. Some advocates even argued on behalf of their clients that one party to the inquiry should be able to issue a Salmon letter to another party, seeking to transfer culpability—a practice that became known as a “smoked Salmon letter”.

The practice also developed whereby if an inquiry intends to criticise an individual in the final report, that individual has to be given the relevant sections of the draft report in order that he or she can comment before publication. This process is known as Maxwellisation, and is now enshrined in Rules 13 to 15 of the Inquiry Rules. It is ironic indeed that the law and practice so commemorates Robert Maxwell because he brought a case against Department of Trade inspectors in 1974, complaining about a report critical of his business practices. The complaint was that he had not been shown the draft report before publication. The Court of Appeal rejected that complaint: Lord Denning, sitting with others, said that Maxwell was not entitled to see the draft report. Why not? It was because he had been fairly treated during the inquiry. He had had a proper opportunity to comment during the inquiry on the allegations in the case, so fairness did not require yet another opportunity at the end of the process.

This general legal principle was also stated by Lord Diplock in the Appellate Committee of this House, also in 1974, in the case of Hoffmann-La Roche. Lord Diplock pointed out—this point was made today by the noble and learned Lord, Lord Woolf—that even in a court of law, once a fair hearing has been given to the witnesses, the rules of natural justice do not require the judge to present a draft judgment on which the parties are then entitled to comment before the judge hands down the final decision. If that is right in a court of law, it is all the more so when we are talking about the report of an inquiry—which, however important, imposes no criminal or civil liability on anyone. So it must be right, as the noble and learned Lords, Lord Woolf, Lord Cullen and Lord Morris, have all suggested, that Rules 13 to 15 must go. They are far too absolute, and there should be a discretion for the inquiry chairman because exceptionally there may be cases where fairness indeed demands that at the end of the process the chairman goes back to a specific witness on a specific point—because, for example, a significant new piece of evidence has emerged or the witness had not previously had an opportunity to comment. However, subject to that, fairness during the hearing suffices.

There is one other matter. The noble Lord, Lord Trefgarne, complained in his speech that at the Scott inquiry, counsel to the inquiry, Presiley Baxendale QC “permanently scarred”—the noble Lord’s words—witnesses by the ferocity of her cross-examination. I know Miss Baxendale well. She was, before her retirement, a member of my chambers, Blackstone Chambers. A more polite and more reasonable person it would be difficult to find. I have to say to the noble Lord, Lord Trefgarne, that an inquiry is there to find the facts. To do so depends on counsel to the inquiry fearlessly and without favour asking difficult questions of witnesses who may be reluctant, for a variety of reasons, to tell the full story. It is undoubtedly not a pleasant experience to be cross-examined, but Miss Baxendale was not there to make friends. She did her job. So did this Select Committee. The House is very grateful to the noble Lord, Lord Shutt, and the other members of the committee.

Civil Proceedings and Family Proceedings Fees (Amendment) Order 2015

Lord Pannick Excerpts

Wednesday 4th March 2015 Lords Chamber

Moved by

[Lord Pannick]

At end to insert “but that this House regrets that the draft order unfairly and inappropriately increases fees for civil proceedings above costs and so damages access to justice”.

[Lord Pannick (CB)]

My Lords, last week, the Lord Chancellor and Secretary of State for Justice, Mr Grayling, told the Global Law Summit that he is,

“incredibly proud of our legal heritage”.

Today, we are debating an order that he has brought forward which will do incredible damage to the legal heritage because it will impede access to justice. As the Minister mentioned, this order will substantially increase the fees that claimants must pay when they start legal proceedings. If you want to sue for between £10,000 and £200,000, you will need to pay an upfront fee of 5% of your claim. To claim £200,000, you will need to find £10,000. That is a 576% increase on the current fee of £1,515.

The Minister is of course correct to say that Parliament approved Section 180 of the Anti-social Behaviour, Crime and Policing Act 2014, which authorises the Lord Chancellor to prescribe fees above the cost of providing the court service to litigants. That is the power that Mr Grayling is now exercising. But is it a fair, reasonable or proportionate exercise of that power? Plainly not. For litigants to have to pay such substantial sums in advance of bringing a legal claim will inevitably, in practice, deny access to the court for many traders, small businesses and people suing for personal injuries.

The Government have suggested that court fees will be a small fraction of the legal expenses which a claimant will incur, but many claimants will not have to pay their legal expenses at the outset of proceedings. They will not have such a substantial sum of money available at the outset of the case, or they may be able to pay these court fees only by doing without competent legal representation. The deterrent effect on litigation will, I think, make it most unlikely that the increased charges will produce the anticipated £120 million which the Government hope to produce by this order.

The order will have further damaging consequences. Unscrupulous debtors will be far less likely to pay up if they suspect that their creditor cannot afford the court fees.

--- Later in debate ---

[Lord Faulks]

I am grateful to the noble and learned Lord. He is quite right: the recital refers to the fact that there is an exercise of the power conferred by Section 92(1) and (2) of the Courts Act and the consultation in accordance with Section 92(5) and (6). There is no explicit reference to Section 92(3). However, in purporting to exercise those powers, it would be said, although not specifically recited, that he was exercising them in accordance with the remainder of that section.

[Lord Pannick]

I am very grateful to all noble Lords who have spoken—and spoken passionately—in this debate. The Minister said that the order contains sensible and proportionate provisions. As your Lordships have heard tonight, these proposals are going to do inevitable and substantial damage to access to justice. It is simply perverse for the Government to dispute that many small businesses and many personal injury claimants are going to be unable to pay an up-front £10,000 fee as the price of access to the courts.

The noble Lord’s and the Government’s argument comes to this. Funds are needed to pay for the court system, but there is no point in having a civil court system if ordinary people are to be charged an entry fee which they cannot afford to bring basic claims for breach of contract and personal injuries. The Minister described litigation—I wrote this down, because it was a very striking phrase—as an “optional activity”, like a skiing holiday or a visit to a three-starred Michelin restaurant. As the Minister well knows from his experience as a very successful barrister, for many people—those suing for debts or to recover compensation for personal injury—litigation is often a necessity to keep your business alive or to maintain any quality of life. The Minister is absolutely right that there are already many impediments to access to justice. That is surely no justification—no excuse—for the state to erect further high barriers.

The fee remission provisions to which the Minister, perhaps somewhat desperately, referred are not going to assist other than in exceptional cases. Nor is it any answer that court fees can be recovered from the other side if the claim succeeds. Claimants need to find the fee up front.

The Minister referred to my earlier Motions of Regret with a reference to Frank Sinatra. To change the music somewhat, “Je ne regrette rien”. Happily, the courts have done more than regret. In a series of cases they have quashed Mr Grayling’s regulations which we have regretted in this House. My regret—my astonishment—that the Government should bring forward an order of this nature is mitigated only by my optimism that the courts will inevitably add this order to the long list of Mr Grayling’s regulations which have been declared unlawful in the past three years. With thanks to all noble Lords, I beg leave to withdraw the amendment.

Amendment to the Motion withdrawn.

Court Fees

Lord Pannick Excerpts

Thursday 26th February 2015 Lords Chamber

[Lord Faulks]

No, I do not accept that characterisation of the Government’s policies in general or the enhanced court fees. The Government are committed to providing effective access to justice and a good and satisfactory court system which is paid for by litigants. The qualification to our enhanced court fees is that the 90% who are below £10,000 will not pay increased court fees, and we believe that the cost of the court system should be borne by those bringing larger claims.

[Lord Pannick (CB)]

My Lords, does the Minister recognise that the Lord Chancellor told the Global Law Summit that he is incredibly proud of our legal heritage? The next time the Minister sits down with the Lord Chancellor to discuss our legal heritage, will he point out that the best way to manifest that incredible pride would be to abandon regulations that will do incredible damage to access to justice because they will require traders and businesses who want to sue for £200,000 to pay an upfront fee of £10,000, which many of them will simply be unable to afford?

[Lord Faulks]

On the general point, there was reference in both questions to the Global Law Summit. Many pooh-poohed this enterprise, which noble Lords may now realise attracted more than 2,000 delegates, more than 100 Ministers of Justice and Attorneys-General and representatives of more than 100 countries, all of whom came to celebrate our heritage of the rule of law. I remain an adherent to that, as I am sure other noble Lords are. Nothing about the contents of that conference in any way derogated from that principle.

As to the more specific point, there are different provisions depending on the size of the claim. As the noble Lord will know, court fees usually form a small part of the overall bill compared with lawyers’ fees, which tend to be much higher. We do not believe that the increased court fees will act as a significant inhibition on claims.

Criminal Justice and Courts Bill

Lord Pannick Excerpts

Wednesday 21st January 2015 Lords Chamber

I hope that I have dispelled many of the concerns regarding these reforms, and reassured your Lordships that these provisions are a sensible and proportionate means of dealing with a mischief that we intend to tackle, without undermining the discretion that should properly rest with judges. I therefore ask the House to support the government amendments.

[Lord Pannick (CB)]

My Lords, I am very pleased that the Government have given way on the issue of principle in Motion B and have indicated that the identity of those contributing up to £1,500 funding for a judicial review will not need to be disclosed. The Minister said that our earlier debates on these issues had been highly intelligent. Without, I hope, debasing the currency, I want to make some observations.

The issue of principle is that the courts will now retain a power to hear a judicial review even if it is said that the alleged defect would not have made a difference in the individual’s case. I would have preferred the concession to be drafted in more generous language than an exceptional public interest, but concession it is. As the Lord Chancellor said in the House of Commons on 13 January at col. 811, and as the Minister confirmed this afternoon, it will be for the judges to decide how and when that test should apply. Indeed it will.

In applying the criterion, I am sure that the courts will have very much in mind Mr Grayling’s explanation of the purpose of the clause. He said that it is designed to prevent judicial reviews being heard when they are,

“based on relatively minor procedural defects in a process of consultation … That is what these proposals are all about”.—[Official Report, Commons, 13/1/15; col. 812.]

I am confident that the courts will have careful regard to those explanations by the Lord Chancellor and that if the judicial review is not concerned with minor procedural defects but with allegations of systematic or deliberate wrongdoing, or errors of law in the interpretation of statutes which have a general effect, the discretion will be exercised so that the case is heard in the traditional way, as it should be.

In applying the clause, I would also expect the courts to pay close regard to what the noble and learned Lord, Lord Woolf, then Lord Chief Justice, who I am delighted to see in his place today, said in R v Offen, 2001, 1 Weekly Law Reports 253. In the Court of Appeal, the noble and learned Lord was considering Section 2 of the Crime (Sentences) Act 1997, which requires courts to impose an automatic life sentence on a person convicted of a second serious crime,

“unless the court is of the opinion that there are exceptional circumstances”.

At paragraph 79 of his judgment, Lord Woolf said that the meaning of “exceptional” depended on the statutory purpose, and where the statutory mischief did not exist, the case was indeed exceptional.

Applying that approach, as I am sure that the courts will do in the present context, the judges will be able to say—and I hope that they will—that the statutory purpose here is the very limited one identified by Mr Grayling of striking out judicial reviews which raised what he describes as “relatively minor procedural defects”.

Other cases, particularly those raising allegations of substantial errors of law or of systematic wrongdoing are outside the legislative aim and are therefore, on the approach of the noble and learned Lord, Lord Woolf, exceptional. They can be heard in the normal way. For those reasons, I am confident that we have arrived at a tolerable result at the end of this saga.

We have arrived at a sensible solution because, and only because, this House was prepared twice to disagree with the House of Commons. It should be noted that the concern about Mr Grayling’s proposals was expressed across this House. My amendments were supported by a very large majority of Cross Benchers who voted; they were signed by the noble and learned Lord, Lord Woolf. The amendments were supported by the Labour Benches, led on this occasion by the noble Lord, Lord Beecham, with his customary wit and fire; he signed the original amendments. There was a very substantial rebellion in support of retaining judicial discretion from the Liberal Democrat Benches; the noble Lord, Lord Carlile of Berriew, also signed the original amendments. Also of importance on the Floor of the House and behind the scenes, there was substantial support from noble Lords on the Conservative Benches who are wise and experienced, and respectful of the value of the rule of law, with some forceful speeches in support of retaining judicial discretion, in particular from the noble Lord, Lord Deben. I am very grateful for all that support.

I express particular thanks to the Minister, the noble Lord, Lord Faulks, who has assisted the House by the force and clarity—indeed, the good humour—of his advocacy as the acceptable face of the Lord Chancellor’s department at all stages of the Bill. I know that he has worked tirelessly and successfully behind the scenes to arrive at a compromise which can be agreed by the Lord Chancellor and by noble Lords concerned about this clause. That is a remarkable achievement.

I should add one further observation and I do so with regret, but it needs to be said. I regret that on 13 January, when the House of Commons considered this matter for the final time, a Lord Chancellor again expressed comments that display an astonishing lack of understanding about the role of judicial review—one of the cornerstones of the rule of law. Judicial review does not, as Mr Grayling complained at col. 819, involve public bodies being “blackmailed”. He also suggested,

“severe doubts about whether secondary legislation should be subject to judicial review”.

These doubts appear to have no basis whatever other than the fact that the courts have, on a number of occasions in the last year, held that regulations made by the Lord Chancellor were outside the scope of his statutory powers.

Furthermore, judicial review is not, as the Lord Chancellor again suggested,

“now overtly used by campaign groups and third parties to seek to disrupt the process of government”.—[Official Report, Commons, 13/1/15; cols. 819-20.]

Such comments make no sensible contribution to the debate. They demean the office of Lord Chancellor because they disrespect and undermine the vital role of judicial review in ensuring that the business of government is conducted lawfully.

However inconvenient and embarrassing it is to Mr Grayling to have his decisions repeatedly ruled to be unlawful by our courts, however much he may resent the delays and costs of government illegality being exposed in court and however much he may prefer to focus on the identity of the claimant rather than the substance of their legal complaint, it remains the vital role of judicial review in this country to hold Ministers and civil servants to account in public, not for the merits of their decisions but for their compliance with the law of the land as stated by Parliament. The discipline of the law plays a vital role in promoting the high standards of administration in this country that we are in danger of taking for granted. It helps to concentrate—and rightly so—the mind of a Minister or civil servant taking a decision whose legality he or she will be answerable for in public before an independent judge.

Assisted Dying Bill [HL]

Lord Pannick Excerpts

Friday 16th January 2015 Lords Chamber

[Lord Pannick (CB)]

My Lords, that was a very powerful speech. The Bill as it stands seems to me to involve no lack of clarity whatever. Clause 1(1) is perfectly clear:

“A person who is terminally ill may request and lawfully be provided with assistance to end his or her own life”.

What does assistance mean? Clause 4(1) is perfectly clear:

“The attending doctor of a person who has made a valid declaration may prescribe medicines for that person to enable that person to end their own life”.

There is no lack of clarity there. We may disagree over whether this is a desirable or an undesirable Bill, but the idea that people in the country do not understand the issues because of the wording of the Bill is simply fanciful.

[Lord Winston (Lab)]

My Lords, with great respect to my noble friend Lord Pannick, I disagree, and totally agree with the noble Baroness, Lady O’Neill. There is another issue beyond clarity here. One of the issues that was raised at Second Reading and, I think, on the first day in Committee was the concept that fragile and possibly deranged, angry and distressed elderly people coming into hospital have of the nature of their status as patients. The use of the word “suicide” brings clarity for them, because it makes a very big difference to medical and nursing practitioners, who can quite clearly see that they will not be involved in a process of assisted dying. It is, effectively, suicide, and that limits any notion of how they might feel when they feel that somebody is not really worth supporting in hospital. This is a major problem and will become an increasing one. We see the increasing difficulties in the health service when dealing with cancer care at the moment and the provision of drugs. There will be pressures on budgets and increasing pressures on patients who will feel under pressure to take a decision that is not entirely theirs. I therefore support this amendment.

--- Later in debate ---

[Lord Carlile of Berriew]

I am grateful to the noble Lord, Lord Alton. I see that I have spoken for 12 minutes and want to bring my remarks to a close.

[Lord Pannick]

My Lords—

[Lord Carlile of Berriew]

Well, I would bring my remarks to a close, but my admiration for the noble Lord who has just stood up is almost unallayed, and I shall therefore give way.

[Lord Pannick]

I am grateful. I just want to ask for clarification. The noble Lord’s Amendment 13, as I understand it, would specify the identity of the doctors who may make the relevant declaration for Clause 2 purposes. However, what if those doctors, for whatever reason, are opposed to the Bill, or Act of Parliament, and do not wish to participate? Should the patient then be prevented from taking advantage of this legislation?

[Lord Carlile of Berriew]

Uncharacteristically, the noble Lord makes an entirely false point. The first response is that my amendment does not specify any doctor. The second response is that for those who are registered with general practitioners—I guess, the vast majority of the population—there are almost no single-handed practitioners left in this country. Therefore, within the group of general practitioners with whom the patient is registered—the right word is “registered”—for this purpose, there will be a choice of doctors. In any event, the noble Lord knows well that it is intended that there should be a conscience clause placed in this legislation, and there will be doctors who will simply, out of conscience, not certify that patients have the diagnosis required for the gateway.

Social Action, Responsibility and Heroism Bill

Lord Pannick Excerpts

Tuesday 6th January 2015 Lords Chamber

Moved by

[Lord Pannick]

1: Clause 3, page 1, line 10, leave out “activity” and insert “act or omission”

[Lord Pannick (CB)]

My Lords, Amendment 1 is in my name and that of the noble and learned Lord, Lord Brown of Eaton-under-Heywood. It raises a drafting point, which will encourage even more noble Lords to leave, but it is a drafting point of some significance on this curious Bill.

The purpose of Clause 3, as the Minister explained on Report, is to make clear that the court, in considering a claim of negligence, must take account of the context in which the alleged negligence occurred. Of course, that is already what courts do—but we have had that debate. On Report, concern was expressed that the word “activity” in Clause 3 is too broad. The reason for the concern is very simple. We all agree, including the Minister, that it is not the intention of this clause that, when a doctor is sued for negligence for cutting off my right leg because I had a pain in my left leg, it should then be open to the doctor to plead in his or her defence, “I have been treating legs for 40 years and have never before made such a mistake”. We all agree that the doctor should not be able to rely on such a matter in the defence. What the claimant is concerned about, and what the court must address, is what happened on the specific occasion when that claimant was treated.

The Minister confirmed that that is indeed the Government’s intention. He said on Report on 15 December, in answering questions about a hypo-thetically negligent accountant, that,

“it would be the particular tax return or the particular piece of advice”,

which mattered. He added:

“It would be no good for them to say, ‘In the 99 other years in which I did this particular act”—

accountants have a very long professional career—

“I did a good job’”.—[Official Report, 15/12/14; col. 37-38.]

So we all agree that that should remain the law. The problem is that the word “activity” in the first line of Clause 3 suggests the contrary. It requires the court to have regard to “carrying out the activity” in the course of which the alleged negligence occurred. However, the word “activity” might suggest the general practice of medicine, accountancy or whatever function is performed by the defendant. Since we all wish that the court should continue to focus on the treatment of this claimant on the occasion when the alleged negligence occurred, I suggest that the words “act or omission” are much more appropriate than the broader term “activity”.

Amendment 2, in the name of the Minister, would replace “generally” with “predominantly”. That is an improvement to Clause 3 that I support, but it does not address the problem that I am concerned about, caused by the inappropriate use of the word “activity”. I beg to move.

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

My Lords, I have added my name to this amendment because, speaking as a judge of 28 years’ experience, it concerns me that judges in future are going to have to deal with the Bill in its present form. It would be so much easier and less muddling for them if we managed to make the amendment for which we are contending today. Everyone agrees that Clause 3 is the only part of the Bill that is intended to effect any change whatever to the law. Its essential purpose was set out by the Minister at some length on Report, but really one can simply cite this passage:

“If a defendant was really predominantly doing all that he or she could reasonably be expected to do to look after the safety of an individual, why should there not be some reflection of that fact in the determination of liability?”.—[Official Report, 15/12/14; col. 36.]

So far, so good—in all events, it is too late now, at Third Reading, to question the desirability of making this sort of change without taking any soundings from, for example, the Law Commission, a point that was stressed strongly on Report by my noble and learned friend Lord Walker of Gestingthorpe—but the real difficulty with the present wording was crystallised on Report in the exchange between the Minister and the noble and learned Lord, Lord Goldsmith. The noble Lord, Lord Pannick, has already made some reference to that exchange, but perhaps it is worth setting it out at a little greater length. The noble and learned Lord, Lord Goldsmith, raised the question of what would arise if, say, someone sued their accountant for negligence with regard to the completion of their tax return, and he suggested that under Clause 3 in its present form the accountant could say:

“‘The activity that I carry out is doing people’s tax returns and advising them on that; I have done it for the last 10 years and I am now going to tell the court about my record’. How do the words in the clause prevent that from being done?”.

The Minister responded by saying that,

“the Bill is concerned with the activity in question, so it would be the particular tax return or the particular piece of advice, because that is what the Bill says”.

The noble and learned Lord, Lord Goldsmith, in turn said:

“It would not be this tax return, surely, but the activity of advising on tax returns generally”.

The Minister’s response—this is the final quotation from that exchange—was:

“I respectfully disagree with that interpretation because it is concerned with the activity in question, ‘in the course of which the alleged negligence or breach of statutory duty occurred’. It would not therefore, deal”—

the noble Lord, Lord Pannick, has cited this—

“with the 99 years of accurate tax returns but would focus on the particular tax return that is the subject of the claim in negligence. That is the correct interpretation of the particular clause”.—[Official Report, 15/12/14; col. 37.]

--- Later in debate ---

[Lord Pannick]

My Lords, I am very grateful to noble Lords who have contributed to this entertaining debate. I remain concerned about the width of Clause 3 but I am not going to divide the House. To use the Minister’s analogy, there is no point in crying over spilt yoghurt.

Mr Grayling, the Lord Chancellor, has told us—and the noble Lord, Lord Hunt of Wirral, has confirmed from his Antarctic experience traversing crevasses—that men and women up and down the land are standing ready to volunteer for social action. They are preparing themselves for acts of heroism, waiting only to receive the message that Parliament has approved this Bill to remove the concerns that they otherwise have about litigation. Then off to the youth clubs and old-age homes they will go to volunteer and into the lakes they will dive to rescue those in danger, and in those circumstances it would be irresponsible of me to delay the Bill any longer.

The noble Lord, Lord Beecham, was less than complimentary about the Bill, but surely, so long as negligence cases are brought in this land, it will stand as a monument to the jurisprudential and policy achievements of Lord Chancellor Grayling. It is a fitting testament to the Lord Chancellor:

“Look on my works, ye Mighty, and despair!”.

This always was and it remains the most ridiculous piece of legislation approved by Parliament in a very long time. However, I pay genuine tribute—I emphasise “genuine tribute”—to the Minister, who has applied his formidable skills of reason and eloquence, and has done so with consummate courtesy, to a text that would barely muster a pass mark in GCSE legal studies, if there is such a thing.

When the noble Lord was appointed to his position on the Front Bench, he would no doubt have looked forward to debating important issues of law and justice, and I doubt that he expected that he would be the straight man in Mr Grayling’s comedy routine, requiring courts to consider whether a defendant has acted heroically. Well, the Minister has heroically dived into the lake created by Mr Grayling’s conference speech. He has rescued this pitiful creature of a Bill—and it is a pitiful creature—and has emerged from the lake with his hair still dry and his suit entirely uncrumpled, he is not even out of breath and he has done it all with a straight face. If I may say so, that is deeply impressive, which is more than can be said for this Bill. I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Social Action, Responsibility and Heroism Bill

Lord Pannick Excerpts

Monday 15th December 2014 Lords Chamber

[Lord Pannick (CB)]

My Lords, we have had our fun on this Bill at Second Reading and in Committee. I, for my part, cannot remember a legislative proposal that has been the subject of more sustained ridicule and derision. We now come to the serious business. I have been studying and practising law for 40 years—not as long as many noble Lords, but a long time—and I cannot remember a more pointless, indeed fatuous, piece of legislation than Clause 2 of this Bill, with the possible exception of Clauses 3 and 4 of this Bill. As the noble and learned Lord, Lord Lloyd of Berwick, has explained and as we have previously discussed—and as is not in dispute—Clause 2 will not change the law. Courts already have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting for the benefit of society or any of its members. I referred to the leading cases at Second Reading. The Minister has at no stage suggested that there are any cases in which courts have ignored such obviously relevant factors.

What then is the point of Clause 2? As the noble and learned Lord, Lord Lloyd, has already explained, the Lord Chancellor, Mr Grayling, has been very clear. He wants Parliament to send a message. But if the object of the legislation is to encourage people to volunteer and to encourage heroism without people being concerned about possible litigation—the objective referred to a few moments ago by the noble Lord, Lord Hodgson of Astley Abbotts—Mr Grayling should buy a half-page advertisement in the Sun or the Daily Mail or, if he wants to reach younger citizens, open a Facebook page or set up a Twitter account, and simply tell people the obvious truth, that the law is already on their side. That would be a much cheaper and more effective way in which to communicate a message than to take this sad Bill through all its stages in Parliament.

It is simply ridiculous for the Government to suggest that people who are currently inhibited from volunteering by a fear of litigation are somehow going to step forward when they hear—if they do—that we have approved Clause 2 of the Bill. Mr Grayling cannot seriously think that around the dinner table tonight, or in the Dog and Duck public house, or anywhere, people will say to themselves, “I see that Clause 2 has passed its latest stages in the House of Lords. I look forward to its speedy enactment next year because then I will be much more willing to volunteer and act like a hero, my concerns about litigation having been removed”.

[Lord Hodgson of Astley Abbotts]

I am very grateful to the noble Lord for giving way. It is not just people in the saloon bar of the Dog and Duck who are influenced by this; it is also the professional advisers. In the example that we discussed in Committee, the problem was that many solicitors offering advice to people actually provide advice that might be changed by this legislation.

[Lord Pannick]

With great respect, there is even less justification if we are going to ask the question about professional advice from solicitors, because we are surely entitled to assume that solicitors are capable of understanding basic law. This is not complicated law: it is trite, obvious law that already protects those who volunteer and act as heroes.

It has been said at previous stages of the Bill that we often legislate in the hope of changing people’s behaviour. Reference has been made, for example, to the Race Relations Act. But what is different and what is exceptional about Clause 2 is that it does not purport to change the law one jot or iota. All that it will do is enable Mr Grayling to say that he is in favour of social action; and when we come to Clause 4, he will be able to say that he is in favour of heroism, as if the rest of us were not. I object to legislation being used by the Government to send what is no more than a political message.

In paragraph 125 of its excellent report, published last week, on the office of Lord Chancellor, your Lordships’ Constitution Committee stated that the Lord Chancellor should have,

“a clear understanding of his or her duties in relation to the rule of law and a willingness to speak up for that principle in dealings with ministerial colleagues, including the Prime Minister”.

The Lord Chancellor ought to understand that it is part—an important part—of the rule of law that the statute book has a role and a purpose: it is a purpose distinct from a party conference speech or a party election broadcast. Clause 2 simply debases the parliamentary currency and it therefore undermines the rule of law. If the noble and learned Lord, Lord Lloyd of Berwick, decides to test the opinion of the House on Clause 2, he will certainly have my support.

[Lord Blair of Boughton (CB)]

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

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

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

Later, the Bill was described as,

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

I do not think we should proceed with this matter.

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[Lord Beecham (Lab)]

My Lords, less than a week ago we debated the Government’s amendments to the Criminal Justice and Courts Bill, and inflicted defeats in relation to proposals affecting young offenders and, even more significantly in terms of their constitutional importance, two changes to the procedures for judicial review.

Today we return to this Bill, a piece of vanity legislation if ever there was one, which, except for Clause 3—as we have heard—adds nothing to the provisions of the Compensation Act 2006, which, by implication, it purports to amend. I concur entirely with the critique of the noble and learned Lord, Lord Lloyd, the noble Lord, Lord Pannick, and others of this muddled attempt to deal with a problem for whose very existence there is a complete lack of evidence—a Bill that is very badly drafted, in any case.

At Second Reading, I acknowledged that the House is properly cautious about declining to give a Second Reading to Bills emanating from the Commons, and there is a similar reluctance totally to destroy Bills in the way in which the amendments of the noble and learned Lord, Lord Lloyd, would achieve if passed, which would leave the Bill consisting of only its title. However, if we were to go so far on a Bill as feeble as this, it would actually strengthen the hand of the Lord Chancellor in relation to the vastly more important and damaging provisions of the Criminal Justice and Courts Bill, which we have sent back to the Commons with our amendments. I fear that he would not hesitate to cast this House as a recalcitrant and obstructive group, placing us alongside the left-wing pressure groups and campaigners which he conjured up as the phantom proponents of judicial review and opponents of his attempts to undermine it. It would, I suggest, make it more unlikely for the Lord Chancellor to exercise political responsibility in relation to the amendments on secure colleges and JR by accepting them, or, should he fail to do so, for MPs on the Government Benches to demonstrate political heroism in a just cause by voting for them.

For those reasons, I regret that I cannot advise opposition Members to support the noble and learned Lord’s amendment to Clause 2, nor his amendment to Clause 4—in any case, the Government have tabled an amendment to it that reflects one moved by the noble Lord, Lord Pannick, in Committee, to which I added my name. I do that with regret because I share entirely the noble and learned Lord’s criticisms of the vacuous nature of the Bill; but it seems to me, for the reasons that I have given, unwise for the House to join him in the Lobbies. I say that with the more trepidation as I understand that he is the chairman of the East Sussex Rifle Association; I fear that I may end up as a target—if not for the noble and learned Lord, then for some of the members of that association.

There is nevertheless a serious issue as to the role of the House in these strange circumstances. However, in relation to Clause 3, I will be asking the House to agree that it should not stand part of the Bill, essentially because that clause seeks to effect a change in the law that is unacceptable for reasons which I will adduce when we come to debate that amendment. However, I fear that I shall not be joining the noble and learned Lord in the Lobby—

[Lord Pannick]

Is the noble Lord saying that the Opposition are not going to support the noble and learned Lord, Lord Berwick, because, although they think that Clause 2 is absolutely terrible, it is not the worst legislative proposal that Mr Grayling has brought forward in this Session?

[Lord Beecham]

There is a lot of competition in that respect. I merely say that on this Bill it is not worth the House taking a position that is a departure from its normal practice. I genuinely fear that the Lord Chancellor will use such a vote to muster support against the much more serious amendments that we have sent back for the Commons to consider. That will not help us in sticking to those amendments, should they come back to us. That is why I will not be in either Lobby this evening if the noble and learned Lord decides to test the opinion of the House.

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[Lord Faulks]

I think I know what the most reverend Primate means. With respect, as I said on a previous occasion, describing a statute as sending a message is too simplistic a way of explaining what we do in Parliament. We do not legislate in a vacuum. For example, we identify particular issues, whether they are modern slavery or revenge porn, which became part of an amendment to the Criminal Justice and Courts Bill. We pass laws which serve the purpose of clarifying the law but they also reflect what people in society think we ought to be doing in Parliament. I rely on what my noble friend Lord Hodgson said about the desire for neighbours to be unshackled. We need more volunteers; we need people to be unshackled. This law may make a modest contribution and I ask the noble and learned Lord to withdraw his amendment.

[Lord Pannick]

Before the noble Lord sits down, perhaps I may ask him whether there is any precedent that he can cite for our legislating not to change the law but to provide reassurance.

[Lord Faulks]

I am not sure that off the top of my head I can think of a particular legislative provision that provides reassurance, but part of the function of much legislation is to provide reassurance and protection to the vulnerable. There is nothing novel about producing a piece of legislation which, in a difficult area, provides some clarity and a modest degree of reassurance in an area of considerable uncertainty.

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[Lord Beecham]

My Lords, Clause 3 is the one clause in the Bill which the Government acknowledge embodies a substantive change in the law. In Committee, I moved an amendment to remove “generally” from the requirement on the court to consider whether,

“the alleged negligence or breach of statutory duty … demonstrated a generally responsible approach towards protecting the safety or other interests of others”.

Neither at Second Reading nor in Committee did the Minister define the meaning of “a generally responsible approach”, and in replying to the debate in Committee he acknowledged that the term was “unusual” in statutory terms. Indeed, he indicated that he would,

“consider carefully whether and to what extent it adds anything to what is in the clause at the moment and whether, on balance, it takes the matter any further”.—[Official Report, 18/11/14; col. 414.]

We await with bated breath the outcome of the Minister’s deliberations along with his response to the amendment tabled by his noble friend, who is seeking to ratchet up “generally” to “predominantly” in the proposed clause.

I have to say that neither term is satisfactory in terms of either definition, which is entirely lacking, or effect. Why should someone suffering damage through an act of negligence or breach of statutory duty be denied compensation on the grounds that the act or omission was in effect a first offence, or at any rate a rare offence? What, for that matter, constitutes a “responsible” approach? How does the Minister define those terms? Moreover, and crucially, the clause is not limited to social action, responsibility or heroism, terms which are in themselves undefined and undefinable, or to personal injury cases. We are dealing not just with safety but, in terms of the clause, with other interests. As I reported in Committee, the Minister in the House of Commons, Mr Vara, affirmed that the clause,

“could in principle be applicable in relation to other instances of negligence such as damage to property or economic loss where issues of safety may not necessarily be relevant”.—[Official Report, Commons, 20/10/14; col. 693.]

Why should a negligent builder, medical practitioner, accountant, surveyor or even solicitor—I declare my interest—escape liability for what might even be catastrophic damage because he has been hitherto “predominantly” responsible? Negligence can lead to large losses outside the realm of personal injury. Is not the reality that this badly drafted clause is yet another concession to the insurance lobby, which ordinarily would of course stand behind the defendant in such claims?

Many Members of your Lordships’ House will have received an e-mail today from one of those pressure groups which so exercise the Lord Chancellor in relation to judicial review. In this case, the pressure group is one which we can be confident he entirely approves of: it is the CBI. Its curiously worded communication supports Clause 3 on the grounds that it,

“provides better protection against accidents for those firms—particularly the small and medium sized companies that already have good health and safety processes in place”.

Of course, it does nothing of the sort. It provides “better protection” against claims for negligence arising from accidents and it extends, of course, to large employers as well as medium-sized and small employers.

The e-mail goes on to suggest that,

“this clause will encourage the courts to recognise that safety is a shared responsibility”,

as if the courts do not already do so, and do not make findings of contributory negligence when a claimant fails to take proper precautions, or dismiss a claim when he is wholly responsible. Of course, again, the CBI ignores the fact that the clause extends to all types of negligence, including by small and medium-sized businesses which might well find themselves a victim of negligence other than of the kind leading to personal injury.

As the CBI’s response eloquently exemplifies, this whole Bill has all the hallmarks of being drafted by the Lord Chancellor on the back of a small envelope. This clause, in particular, is deeply objectionable. Unless the Minister is prepared to abandon the clause, I shall invite the House to divide and consign the envelope to the parliamentary waste bin.

[Lord Pannick]

My Lords, I add my support to what has been said by the noble Lord, Lord Beecham. Clause 3 is very troubling for two reasons. First, the defendant may have shown a partially irresponsible approach towards protecting the safety or other interests of others, that partially irresponsible approach may be the cause of the accident and it may be entirely inexcusable. Why, then, is the generally responsible approach of the defendant in other respects of any relevance whatever? The amendment in the name of the noble Lord, Lord Hodgson of Astley Abbotts, would not cure this defect.

The second troubling aspect of Clause 3 is that it does not appear to be confined to the subject matter of the Bill, social action and heroism. I would be very grateful if the Minister would explain whether Clause 3 was intended to be confined to the subject matter of the Bill, or whether, as its wording suggests, it is to have a broader aspect. For these reasons, if the noble Lord, Lord Beecham, divides the House, he will have my support.

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[Lord Faulks]

The answer is yes. There are lots of different circumstances in which two defendants may find themselves sued. They may be sued on the basis that one is much more likely to be liable than the other. The other defendant may be sued because his insurance arrangements may be considered more satisfactory. There will be circumstances in which one defendant is much more likely to be culpable than the other—in which case very often there will be, pursuant to the 1970 civil liability Act, a division of responsibility between those two defendants. A judge will have to perform that process.

By the same token, a particular defendant in a factual scenario, where an accident is caused, might have, on a particular day, been wholly reckless about the cause of the accident insofar as that particular defendant is concerned. Another defendant might have been predominantly or generally extremely careful for the welfare of that individual. I am not saying that that is necessarily a likely scenario, but it is certainly one within the realms of the many possibilities of claims that the noble and learned Lord and I have been involved in, where a judge has to pick his way through a number of different defendants and try to find a fair answer on the facts. My answer to him is that that particular process, difficult though it is, performed by skilful judges, will not be made significantly more difficult by these provisions.

As I explained earlier, the approach that we have taken does not rewrite the law in detail, but it represents a change to the law in that it does not currently oblige a court to consider whether a person took a generally responsible approach to safety during the activity in question. We wish to ensure that the courts take a slightly broader view of the defendants’ conduct in these circumstances, by looking at whether his approach to safety, taking into account all that he did or did not do, was generally a responsible one. I suggest that that would very much tally with what a number of members of the public might think was fair. If a defendant was really predominantly doing all that he or she could reasonably be expected to do to look after the safety of an individual, why should there not be some reflection of that fact in the determination of liability? Why should it be ignored altogether? The court would be obliged to weigh it in the balance—that is all—when considering the ultimate question of whether the defendant met the required standard of care.

[Lord Pannick]

Is there some time period over which the court is expected to assess the generally responsible approach of the defendant? How far does this go back? Has the department made any assessment of how much longer court cases are going to take and how much more expensive they will be if the judge has to assess all those matters?

[Lord Faulks]

With great respect to the noble Lord, considering the activity in question focuses the judge on the activity that is said to have caused the particular injury, or tort, which has eventuated.

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[Lord Lloyd of Berwick]

My Lords, I also have an amendment in this group. It may be convenient if I say what I have to say now. In many ways, Clause 4, which we are now dealing with, is the oddest of these three clauses. As drafted, it was strongly criticised by the Fire Brigades Union, St John Ambulance and the Red Cross, among others. To take the instance of the Fire Brigades Union, the clause goes directly contrary to advice that it has given for many years to people involved in a fire: to get out of the way of the fire as quickly as they can and to stay out. If they intervene to try to rescue somebody, then they are only likely to put in greater danger the firemen, who will have to come to their rescue as well.

This was pointed out as a difficulty—indeed, as a serious objection—in the other place, but no notice was taken of that criticism until at a very late stage in this House, when the noble Lord, Lord Faulks, gave notice of his amendment to leave out the last 11 words of the clause. Leaving out the last 11 words of this clause is undoubtedly a great improvement, but leaving out half a clause to save the rest of a clause is an unusual thing to do. It only demonstrates that the clause, like the rest of the Bill, was never properly thought out in the first place. In Committee I suggested that it looked like a clause drafted on the back of an envelope. I now think that that may be going too far in its favour. It must surely have occurred to someone at some stage that a clause that protects someone who takes no thought for his own safety, but does not protect someone who takes some thought for his own safety—that, as it was put elegantly, as always, by the noble Lord, Lord Pannick,

“protects the instinctive hero but not the thoughtful hero”—[Official Report, 18/11/14; col. 416.]

—is surely inherently ridiculous. Be that as it may, the objection to Clause 4 is essentially the same as that to Clause 2. The substance of Clause 4, as it will stand if the noble Lord’s amendment is accepted, is already covered by Section 1 of the Compensation Act 2006.

It is difficult to imagine a,

“person … acting heroically … to assist an individual in danger”,

who is not by that very act engaged in a “desirable activity” as envisaged by Section 1 of the Compensation Act. If so, this clause adds literally nothing to the existing law. If the noble Lord in his reply can think of a single example where the point I have made is not valid because something would be covered by this clause and not by Section 1 of the Compensation Act, I hope he will tell us. In the mean time, I submit that it adds nothing and should be rejected on that ground. In due course I will move my amendment too.

[Lord Pannick]

My Lords, there is a further reason why Clause 4 is pointless and that is, of course, because it adds nothing to Clause 2. It is very difficult to understand in what circumstances a person is acting heroically in an emergency when they are not also,

“acting for the benefit of society or any of its members”.

Perhaps the Minister can tell the House of a theoretical case that would not fall within Clause 2 that falls within Clause 4. There is no doubt that the removal of the final words of Clause 4 is a distinct improvement. We must be grateful for small mercies.

I have a further concern that when courts have to apply Clause 4 there is ample room for no doubt lengthy debate as to what is meant by “heroically” and “emergency”, neither of which is defined in the Bill.

[Lord Brown of Eaton-under-Heywood]

My Lords, I, too, support the amendment tabled by the noble and learned Lord, Lord Lloyd, for the same reasons as I indicated in respect of Clause 2. It adds nothing. If you ask a simple question whether there is a court in the land which would not, under the common law,

“have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting heroically by intervening in an emergency to assist an individual in danger”,

the question answers itself—of course there is not. I ask the Minister to say what is added by the words “acting heroically by”. Why could it not just be, “when the person was intervening in an emergency to assist an individual in danger”?

Apart from ramping up the rhetoric—that is essentially what this whole business is—what actually is added by “acting heroically by”, except for another hour of the court’s time if eventually it has to apply this clause?

Criminal Justice and Courts Bill

Lord Pannick Excerpts

Tuesday 9th December 2014 Lords Chamber

Moved by

[Lord Pannick]

As an amendment to Motion B, at end insert “, but do propose the following amendment in lieu of those Amendments—”

Amendment in lieu

102B: Clause 64, page 65, line 46, at end insert—
“( ) The duties of the court or tribunal under section 31(2A), (3B) and (3C) of the Senior Courts Act 1981, or section 16(3B), (3C) and (3D) of the Tribunals, Courts and Enforcement Act 2007, are subject to the discretion of the court or tribunal to act otherwise where it considers it in the public interest to do so in all the circumstances of the case.”

[Lord Pannick (CB)]

My Lords, I am very grateful to the Minister. His door has been open in recent weeks to discuss matters of concern and interest with noble Lords who are concerned about this clause.

On Report, your Lordships voted by a majority of 66 to amend this clause to maintain a degree of judicial discretion. The Government lost that vote because they lost the argument. Judicial review is of central importance to the rule of law. It is the means by which citizens seek to establish before an independent judge that public authorities, including Ministers, have acted unlawfully.

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[Lord Faulks]

It is a matter entirely for the House. The whole of the speech was before the House of Commons. It was clearly regrettable. The Lord Chancellor has written a letter which is deposited in both Houses. This House will take the view that it thinks appropriate.

[Lord Pannick]

My Lords, I am very grateful to the Minister. He has been put in a quite impossible position, not, I think, for the first time, and I sympathise with him.

There are two central points here. The Minister very fairly accepted that the Lord Chancellor inadvertently misled the House of Commons when it considered the amendment that was approved by your Lordships. The Lord Chancellor misled the other place on the very issue that is at the heart of this amendment. He wrongly suggested that there is an exceptional circumstances provision in this clause which confers discretion on the judge. That alone is reason enough for this House to invite the other place to think again, and to do so on the basis of an accurate statement by the responsible government Minister as to the terms and effect of the clause that he was putting before the House of Commons.

However, that is not all. The public interest amendment is essential to the rule of law. That a Lord Chancellor should regard the need for a fair procedure and legality as unimportant technicalities which should be excluded from judicial control is, to my mind, profoundly depressing and alarming. I say to the Minister that that is not a matter of rhetoric but of substance.

The noble and learned Lord, Lord Mackay of Clashfern, suggested that this clause is a development of the current law. However, the change is not merely to alter the test of inevitability to a test of highly likely; the vice of the clause that we are debating is that it imposes a duty on the court in all circumstances to throw out judicial reviews without retaining any discretion in the public interest. The Lord Chancellor and the other place should be invited to think again about the need to retain judicial discretion in the public interest, as Motion B1 states. I wish to test the opinion of the House.

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Moved by

[Lord Pannick]

As an amendment to Motion C, leave out from “House” to end and insert “do insist on its Amendments 103, 104, 105 and 106”.

[Lord Pannick]

My Lords, the amendments that were approved on Report by your Lordships’ House by a majority of 33 arose out of two concerns about these clauses on financial information.

The first concern is that the judges would be prevented in all circumstances from granting permission to bring an application for judicial review unless the relevant financial information has been provided. As with Motion B1, on which your Lordships have just voted, so with this Motion C1 a degree of discretion is appropriate to permit the judge to decide that a case should be allowed to proceed in the public interest, even if some financial information has not been provided. An absolute bar is inappropriate in this context and the removal of all judicial discretion is inappropriate.

The second concern is about the effect of the provisions on people who contribute to the funding of a judicial review. The Minister’s helpful letter of 4 December to noble Lords explained that the Government wish to ensure that there is no “chilling effect” on contributions because of a fear by potential contributors that they will be ordered to pay the defendant’s costs. Therefore, as I understand him, the Minister has said that it is not the Government’s intention that those who provide small amounts of funds should be subject to costs rules, and that that will be ensured through rules of court.

As I understand it, the rules will state a threshold so that people contributing less than the specified amount would not need to be identified by the claimant and so would not be liable to be ordered to contribute to the defendant’s costs. That is all very laudable. The problem, however, is that the Minister has not told the House what the threshold level will be. If the level is too low, it will inevitably deter people from contributing to judicial reviews brought in the public interest because of the risk that the contributor will have to pay the defendant’s costs.

Funding judicial review has become much harder in recent years with the decline in legal aid. It is very regrettable that the Government should now wish also to impede the ability of claimants to fund judicial review applications by private contributions. I am not satisfied by what the Minister says unless he can assure the House that the threshold level will be sufficiently high that it will not deter modest or reasonable contributions to the funding of judicial reviews.

[Lord Faulks]

I am very grateful to the noble Lord for giving way. Perhaps he could assist the House by saying what he would consider a modest contribution.

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[Lord Pannick]

I would suggest that one should look up the average cost of a judicial review application and say that if the individual concerned is contributing less than, say, 10%, 15% or 20% of the costs, then that figure would not lead to any cost implications for that individual. However, I am not the one who is putting forward this proposal; it is surely for the Minister to come forward to the House and tell us what his proposal is. This House voted on Report that it was not satisfied with the Government’s approach. The Government now come forward and invite the House to agree with the other place by reference to this new proposal, and I simply suggest to the House that the Government’s proposal cannot be adequate unless your Lordships are told what the relevant figure is. I beg to move.

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[Lord Faulks]

In answer to my noble friend’s first question, I did use the word “straightforward” and that is entirely correct; I adhere to that. On the second question, I am reluctant to give figures because, for the reasons I have given and in terms of what we are talking about, it relates to a small contribution to a fighting fund. That would not be £10,000 to £15,000. I do not think it is appropriate to go beyond that. That is a matter that I will leave to the rule committee: it will arrive at an appropriate figure in the light of its experience.

[Lord Pannick]

My Lords, this is a really puzzling matter. The Minister accepts that a threshold figure should be included in the rules below which a contributor to the funding of a judicial review should not be liable to be identified or pay costs. That is a vital concession, because without it, private funding of judicial reviews in the public interest would not be able to continue. However, the Minister is unable to say what the threshold figure will be; he is not able to state any criteria by reference to which that figure should be determined, and he is reluctant, in answer to the noble Lord, Lord Marks, to say more than that it will be a figure less —significantly less, as I understand him—than £10,000 to £15,000. That, I suggest to noble Lords, is quite unsatisfactory in relation to the Government’s attempt to persuade this House not to insist on its previous amendment.

The noble and learned Lord, Lord Mackay of Clashfern, said that the rule committee will deal with this in an independent manner. However, the rule committee will no doubt be heavily influenced by what the Government say is the purpose of this. I am not suggesting that the rule committee is bound by what the Government say, but the Government will have a very considerable influence, particularly when there are no criteria set out in the amendment. In any event, there is also—as emphasised by the noble and learned Lord, Lord Brown of Eaton-under-Heywood—a vital need in these clauses to retain a degree of judicial discretion in this sensitive context. The Government wish to impose absolute duties again and I, in this context, as in the previous context of Clause 64, suggest that judicial discretion should be retained. I wish to test the opinion of the House.

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Moved by

[Lord Pannick]

As an amendment to Motion D, leave out from “House” to end and insert “do insist on its Amendment 107 to which the Commons have disagreed and do disagree with the Commons in their Amendments 107A, 107B, 107C, 107D and 107E in lieu thereof”.

[Lord Pannick]

My Lords, I shall be brief, given the time, given that your Lordships’ House has debated this issue on two substantive occasions already, and because I apprehend that your Lordships’ House will be anxious to move speedily to a vote on this matter.

Judges have repeatedly emphasised how helpful they find the contributions of interveners to be. Courts already have ample powers, which they exercise to control who can intervene on what subjects and with what costs consequences. The Government have at no stage in the debates on this Bill in either House identified any cases whatsoever in which the courts currently lack adequate power to deal with abuse or misuse of interventions. This clause, even with the amendments approved in the other place, will inevitably deter interventions which the courts will regard, and do regard, as valuable in determining the results of judicial review. I simply cannot understand what the Lord Chancellor hopes to achieve by this clause. I suggest that this House should ask the other place to think again. I beg to move.

[Lord Faulks]

My Lords, it has been a short debate. The issues have been fully covered at previous debates and at previous stages. I am not going to prolong this debate, but the noble Lord, Lord Pannick, says that the Government have not identified any issue. I made a rather more lengthy speech at an earlier stage in which I did identify—or at least attempt to identify—what the Government were driving at by this amendment. It was indeed based—I have to declare an interest—on personal experience of lengthy interventions, which no doubt a judge with all good intentions envisaged being very minor, which turned out to be extremely major in terms of their volume. These involve lengthy skeleton arguments, volumes of authorities and lawyers no doubt seeking to justify their existence. This is not helpful.

Of course, judges are capable—it is perfectly true—of expressing their disapproval, of limiting those interventions by appropriate methods. None the less, those who are involved will have inevitably had to spend time in preparing the case, in the eventuality that all of these interventions will in fact be treated with considerable scrutiny. Perhaps the case may be lengthened.

We consider this is an appropriate compromise. It does no more than identify the sort of cases that judges should be looking at, and probably are looking at, to make an order against interveners in appropriate circumstances. There are exceptional circumstances and judges will know when they are helped and when they are not helped, but to suggest that all is perfect in the world of interventions is simply to ignore the reality.

[Lord Pannick]

My Lords, it is not an acceptable compromise for the Government to bring forward a clause, with amendments, which will undoubtedly deter the interventions which the courts currently find helpful. There are interventions from all numbers of persons and bodies, many of which have made representations to your Lordships that this clause will deter them from coming forward and assisting the court. I have seen representations from bodies ranging from Liberty to Buglife. They are concerned that they cannot, for financial reasons, seek to assist the court if they fear that, other than in exceptional circumstances, they are going to be liable to pay the costs under this provision. For that reason I respectfully suggest to noble Lords that we should ask the other place to think again about this vital matter. I wish to test the opinion of the House.

Social Action, Responsibility and Heroism Bill

Lord Pannick Excerpts

Tuesday 18th November 2014 Lords Chamber

[Lord Hunt of Wirral]

I should stop now. However, I want to stress here that we are not talking about Fagin-type organised crime or Bill Sikes’s opportunist crime, but about the inflation of otherwise genuine claims. It has become a huge industry and insurers are now being forced to spend millions of pounds to tackle it. Organised gangs are at the heart of the increase in the number of these induced accidents. “Crash for cash” not only threatens motorists’ safety but also their pockets. It is estimated that it adds about £400 million to the annual cost of car insurance.

It has become an unfortunate fact that as a society we are faced with so many whiplash claims. It would be easy just to blame the claims farmers, and the House has heard my views on them before. However, despite a series of measures, often encouraged in this House, they continue to proliferate. They plague us with nuisance calls and texts about injury claims from accidents in which we have never been involved and that we have never heard of.

On the subject of nuisance calls, although I welcome the recent consultation by the Department for Culture, Media and Sport, I believe that the current threshold of substantial damage or distress is just too high and that the Information Commissioner’s Office needs to lower the test to ensure that it can tackle more effectively those who are abusing the system and bombarding the British public. I beg to move.

[Lord Pannick (CB)]

My Lords, this Bill has a purpose—a futile and anodyne purpose in the view of many of us who spoke at Second Reading, but a purpose none the less. Its purpose is to encourage heroism, volunteering and action taken for the benefit of the community. I respectfully suggest to the noble Lord, Lord Hunt, that his amendments are a long, long way away from the purpose of this Bill.

[Lord Hunt of Wirral]

It may assist the noble Lord if I explain that I was motivated by the speech of the noble and learned Lord, Lord Lloyd of Berwick, in particular, to think of amendments that would add substance to the Bill.

[Lord Pannick]

I am delighted to hear that because when the noble and learned Lord, Lord Lloyd, comes to move his proposal that Clause 2 should not stand part of the Bill, the noble Lord will no doubt express his wholehearted support for that proposition.

These amendments have no place in this Bill. They would fundamentally alter the scope and effect of the Bill, very much to its detriment. They would prohibit the courts from awarding damages in respect of personal injury in defined circumstances. The existing provisions of the Bill simply identify factors for the court to take into account in deciding whether there has been a breach of the duty of care.

I am also troubled by the detail of the amendments, and I am not reassured at all by what the noble Lord has just said. The amendments beg a large number of questions as to what it means for the defendant to “fund treatment”. At what level of care would that happen, and who is to assess the adequacy of such treatment? If the defendant’s insurer pays for my treatment as the victim of a car accident, would these amendments prevent me recovering compensation for pain and suffering as a result of the accident? That presumably amounts to damages,

“in respect of any personal injury”,

but the amendments seem to prohibit that.

I confess that I am puzzled by the amendments. If the defendant or their insurer has already funded adequate treatment, surely the claimant is going to have to give credit for that in seeking damages. I also do not understand why, if the noble Lord thinks that his amendments are such a good idea, they apply only in respect of,

“loss of function of 15% or less”.

For the Committee to give the amendments any encouragement would in my view, to quote Clause 3 of this curious Bill, not be,

“a generally responsible approach towards protecting the safety or other interests of others”.

--- Later in debate ---

[Lord Pannick]

My Lords, I hope that the Minister will be able to reassure the Committee that the amendment is unnecessary. Nothing in the Bill exempts an employer or other person from vicarious liability. I doubt that the Bill as drafted would have any effect on vicarious liability. That is because the scope of the Bill is confined by Clause 1 to claims that “a person” has been negligent or in breach of statutory duty. Clause 1 states that the Bill addresses the steps that the person was required to take to meet a standard of care.

Clauses 2 to 4 are concerned with that person acting for the benefit of society, acting responsibly or acting heroically. I understand that to be concerned with the alleged negligence of the primary defendant. I do not understand it to have any application to a person who has not themselves acted for the benefit of society, responsibly or heroically, but is said to be vicariously liable for someone who has so acted. I hope that the Minister can confirm that my understanding is correct.

[Lord Faulks]

My Lords, in short, I can confirm what the noble Lord, Lord Pannick, said. Amendment 1 would insert a new subsection at the end of Clause 1, stating that nothing in the Act provides an exemption from vicarious liability to an employer or other person. The Government do not believe that this is necessary. As I endeavoured to explain in my recent letter dealing with points raised by the noble Lord and other Members of the House at Second Reading, while the Bill requires the courts to consider certain factors before reaching a decision about liability, it does not tell the court what conclusion it should reach or prevent a person being found negligent if all the circumstances of the case warrant it. It will not therefore give anyone licence to take unnecessary risks with people’s safety or leave the injured party without a remedy when the defendant has failed to meet the applicable standard of care in all the circumstances of the case.

If the actions of an employer, for example, were risky or careless and they led to an injury, it would be open to the courts to conclude that the factors in the Bill did not outweigh other pertinent factors, such as the size and foreseeability of the risk, the adequacy of training and the extent of the injury, and, as a result, to reach a finding of negligence if appropriate. This will equally be the case where a claim is brought against the employer in respect of the allegedly negligent act or omissions of an employee under the law on vicarious liability. It is important to stress that the Bill is not intended to have any bearing on the rules governing the imposition of vicarious liability, which are well established in law. In the light of this, I can reassure the noble Lord that any suggestion that the Bill would leave injured Armed Forces personnel without a remedy in the civil courts, whether under the law on vicarious liability or otherwise, is misleading. There is nothing in the Bill to prevent a claim being brought against an employer by an injured employee, whether in the Armed Forces, the emergency services or more generally.

Of course, the liability of the Ministry of Defence has recently been the subject of a great deal of litigation, not least in the case of Smith v Ministry of Defence. The noble Lord and the Committee may be aware of the difficult arguments about the scope of so-called battlefield immunity and the relevance of the Human Rights Act. But all those issues, difficult though they are, are nothing to the point in relation to the conventional rules on vicarious liability. For the reasons that the noble Lord, Lord Pannick, gave in his analysis of the Bill, I can assure the noble Lord—I understand why there is anxiety and I wish to allay that anxiety—that there is no need for anxiety and vicarious liability is not intended to nor will be altered in any way by the provisions of the Bill.

In those circumstances, we respectfully suggest that the provision suggested by the noble Lord is unnecessary, and I hope that I have reassured him sufficiently to feel able to withdraw his amendment.

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Moved by

[Lord Pannick]

2: After Clause 1, insert the following new Clause—
“Deterrent effect of potential liability
In section 1 of the Compensation Act 2006 (deterrent effect of potential liability), for the word “may” substitute “must”.”

[Lord Pannick]

My Lords, Amendment 2 seeks to give the Bill some coherent purpose and effect—not an easy task, as we debated at Second Reading.

Amendment 2 draws attention to an important legislative fact, which, surprisingly, is entirely ignored by the content of the Bill; that is, we already have on the statute book a provision which expressly addresses the very issues with which the Bill is concerned. The legislative provision is Section 1 of the Compensation Act 2006. It is a far more tightly and appropriately worded provision than the Bill, which, as we discussed at Second Reading, reads like an edition of the Valiant comic that I used to buy as a schoolboy.

Section 1 of the 2006 Act does the job. It has the title, “Deterrent effect of potential liability”, and states:

“A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might … prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or … discourage persons from undertaking functions in connection with a desirable activity”.

Amendment 2 recognises that there is a distinction between Section 1 of the 2006 Act and this Bill. The 2006 Act sets out factors that the judge may take into account. This Bill sets out factors that the judge must consider. If the Government are determined to change the law, all that is needed, even on their arguments, is to amend Section 1 of the 2006 Act so that “may” is replaced by “must”. That is what Amendment 2 would secure.

If Amendment 2 were accepted, we could and should remove Clauses 2 to 4 from the Bill. One of the many puzzling features of the Bill is that it entirely ignores Section 1 of the 2006 Act. It does not repeal Section 1 of the 2006 Act. It does not amend Section 1 of that Act. If, therefore, the Bill were to be enacted in its current form, the law would then state that under Section 1 of the 2006 Act judges “may” take account of the social benefit of the activity, and that under this legislation judges “must” take account of the social benefit of the activity, defined in different language.

According to the Lord Chancellor in the other place, the Bill is designed to send a message to potential volunteers and heroes. If Parliament were, through this Bill, to enact the legislative equivalent of a text message, the only message likely to be received is one of pure confusion. The man or woman thinking of volunteering or thinking of jumping into the lake to save the drowning victim is not—as the Lord Chancellor apparently believes —going to be comforted by their recollection of the contents of Halsbury’s Statutes of England. Once the Bill is enacted, the potential hero will pause while he or she consults leading counsel for advice on the implications of the fact that the statute book now contains both Section 1 of the 2006 Act and this new legislation.

Amendment 2 provides a simple and obvious solution to this problem, which I commend to the Committee. I normally agree with the noble Lord, Lord Beecham, but I cannot share his concern about Parliament in this context telling judges that they must take something into account. I do not share his concern because it will remain a matter for the judges what weight, if any, to give to the social benefit context in the circumstances of the particular case. Amendment 2 provides that the social benefit must be taken into account. It would do so in the very sensible context of the 2006 Act, which has worked very well since it was brought into force. Clauses 2 to 4 can then be removed, as the noble and learned Lord, Lord Lloyd of Berwick, will be proposing.

I hope that the Minister will respond favourably to this amendment, which is designed to be constructive. That is very difficult in the context of the Bill. If he is not able to accept this amendment, will he explain to the Committee whether it is really the Government’s intention to have on the statute book two differently worded sets of provisions that will be addressing precisely the same issue? I beg to move.

[Lord Beecham]

My Lords, I shall speak to Amendment 2, moved by the noble Lord, Lord Pannick, and to my Amendments 3, 5 and 9, which deal with the issue of judicial discretion in applying to any claim within the province of the Bill the provisions that the Bill sets out.

At Second Reading, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, averred that the change the Bill seeks to make in the provision of the Compensation Act 2006 that the court “may” take into account the factors that the Act spells out, to one which declares it now “must” take such matters into account will, in his words,

“actually make no difference whatever”.—[Official Report, 4/11/14; col. 1559.]

Perhaps that is a suitable epitaph for the whole of the Bill, it might be thought.

The noble Lord, Lord Pannick, from whose company I must unusually and regretfully depart on this occasion, seeks to replace the Compensation Act’s provision of “may” with this Bill’s “must”, presumably therefore reflecting the view of the noble and learned Lord, Lord Brown. The view that the two are the same, however, is not the Government’s view, as the Minister made clear at Second Reading, when he reminded the House that,

“the difference between ‘may’ and ‘must’ … caused the House to be divided on more than one occasion”.—[Official Report, 4/11/14; col. 1576.]

He also reminded us that there is a difference between the provisions in this Bill and the provisions in the Compensation Act.

To the extent that the obliteration of that difference could represent yet another and in this case, given its source, inadvertent legislative attempt to fetter judicial discretion—one of many such attempts made by this Government, some, alas, successfully—the Committee should resist that proposition. The JCHR in one of its more damning and dismissive, albeit characteristically elegantly phrased, reports published in recent years echoed its concerns about similar provisions in relation to judicial review in the Criminal Justice and Courts Bill. We have seen a succession of measures designed to fetter judicial discretion. I fear that, for all the intentions to the contrary, the noble Lord’s amendment might encourage that process. I therefore hope that, on this occasion, he will not object to my taking a different path, but it will be interesting to hear whether the Minister has changed his view since that expressed at Second Reading.

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[Lord Faulks]

My Lords, I am grateful for the debate and the contributions from the noble Lords, Lord Beecham and Lord Pannick, and the noble and learned Lord, Lord Brown. They seem to agree about the Bill, but not about the amendments. The noble Lord, Lord Beecham, is not enthusiastic about the Compensation Act. I think it is fair to say that he said that in fact he thought the previous Labour Government had nodded, as did Homer, when they brought it in. Therefore the words of the noble Baroness, Lady Ashton, relied upon by the noble Lord, Lord Pannick, would have less to commend them in his view. The noble Lord, Lord Pannick, on the other hand, says that the Compensation Act has been working well.

The view of the Government is that the Labour Party was quite right to identify the issue and to endeavour to reflect the problems that were identified by the committee which eventually decided to report. There followed the Compensation Bill, but it failed to go far enough. A number of other steps have followed, the common law has of course developed as I entirely accept, and here we have a Bill that endeavours to deal with what I have frankly said is a very difficult target to hit. I know that noble Lords feel that it is a target that can be hit by the common law without any statutory intervention.

However, the amendments put forward here come into different categories. I accept that there are similarities between Section 1 of the Compensation Act and Clause 2 of this Bill. The 2006 Act provides that the court may, when determining whether a defendant has taken reasonable care, consider whether a finding of negligence could prevent a desirable activity from being undertaken or discourage others from undertaking functions in connection with such an activity. It does not require the court to enter into such consideration.

However, Clause 2 of SARAH takes a different and firmer approach than the Compensation Act by requiring the courts to consider in every case whether a person was acting for the benefit of society or any of its members. It focuses more firmly on the actions of the defendant in a particular case than on the effect that a finding of negligence might have on others participating in similar activities. For these reasons we consider that Clause 2 of our Bill will provide greater reassurance than the 2006 Act has done to those in the voluntary sector and elsewhere who are still deterred from getting involved in socially valuable activities by worries about liability. I do not suppose that they will have Halsbury’s Laws of England to hand when making these difficult decisions, but their general approach will be affected by the climate and the context in which we live and the way the law reflects that.

The noble Lord says that if we want to compel the courts to consider the type of factors set out in Clauses 2 to 4 of the current Bill, we could have achieved that simply by requiring the courts to consider the points in Section 1 of the Compensation Act. His Amendment 2 would therefore replace the word “may” in that Act with the word “must”. I am not convinced that changing one word in the Compensation Act would have the same impact as our standalone Bill, which has been deliberately designed to be comprehensible to non-lawyers. Indeed, the National Council for Voluntary Organisations mentioned in oral evidence that if the Bill is passed, it could help to publicise that via its volunteering network. As I have said, Clause 2 has a different and clearer focus than Section 1 of the 2006 Act, and I believe that it better addresses the genuine concerns of volunteers and others.

I turn now to Amendments 3, 5 and 9 tabled by the noble Lords, Lord Beecham and Lord Kennedy of Southwark. They would remove the requirement for the courts to consider the factors in the Bill in any case in which they were determined, whether someone was negligent or in breach of a relevant statutory duty. Instead, it would be purely a matter of discretion as to whether they took account of the factors in the Bill. This would revert to the terminology of the Compensation Act, which, as I have said, provides that the courts “may” consider whether a finding of negligence might prevent a desirable activity from being undertaken or discourage people from undertaking functions in connection with such an activity.

In our view, that could unacceptably weaken the Bill. The main point of the Bill is to provide people who are deterred from getting involved with greater reassurance that the courts will always look at the context of their actions before reaching a conclusion on liability. It is our view that the Compensation Act has not done enough to address people’s worries about liability, as recent polls carried out by the National Council for Voluntary Organisations, St John Ambulance and the British Heart Foundation have demonstrated. We are hopeful that the Bill will do more than the Compensation Act did to increase public confidence in the law and increase participation in socially valuable activities. We fear that reverting to the terminology used in the 2006 Act, which as I have indicated the noble Lord, Lord Beecham, has reservations about, would not be helpful in this regard. In many cases it may not make much difference whether the word is “must” or “may”, and all will depend on the particular facts of the case.

I accept the strictures about transposing arguments from one Bill to another made by the noble and learned Lord, Lord Brown. Enthusiasm probably overtook me in making that analogy, having recently suffered several defeats on the part of the Government in that context. My point, however, remains that there is a difference between the words “must” and “may”, but that difference will depend very much on the context. Judges are well used to having to fight their way through the undergrowth of statutory terminology; sometimes they must do something and sometimes they may do it. They will of course be approaching these cases very much on the facts. We think that in this difficult area the Bill does its best to fulfil the social objective that lies behind it and, with great respect, we do not think that it would be improved by any of these amendments. It is in those circumstances that I ask the noble Lord to withdraw the amendment.

[Lord Pannick]

I am very grateful to the Minister. He said that it is a difficult target to hit, but I suggest that the problem is that you are certainly going to find it difficult to hit a target that does not actually exist. You will find it particularly hard to hit a target if you are not armed with any weapon that is capable of hitting it, even if it did exist.

The Minister’s other point was that the aim here is to produce legislation which is comprehensible to non-lawyers, but it also has to be implemented by the courts. If it is not in a coherent form that sits easily with other legislation, all the Government are going to do is cause confusion which will promote litigation at great expense to non-lawyers. The Minister simply did not address the main concern behind Amendment 2, which is that if the Bill is enacted in its current form, there will be two statutes addressing the same general issue in different language. Before we come back, I ask the Minister and the Bill team to give some thought to whether it is sensible not to address Section 1 of the 2006 Act at all by amending or repealing it in this legislation. For the moment, I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

--- Later in debate ---

I hope I have said enough to persuade the Committee that Clause 2 should find no place on our statute book. First, it serves no useful purpose. Secondly, the drafting is so defective that it will be greeted with “derision” by the courts—that is the word of Sir Edward Garnier, former Solicitor-General, from the Government’s own Back Benches. Thirdly, it has been described—in evidence that was never challenged by the Government—as being likely to have “horrific” consequences. So the only remaining purpose for this Bill is to repeat a message sent out eight years ago by Section 1 of the Compensation Act which may or may not ever have been received. That, I submit, is a misuse of legislative process. If the Government wish to send out messages—as no doubt they do—they should use some other means.

[Lord Pannick]

My Lords, I have added my name to that of the noble and learned Lord, Lord Lloyd of Berwick, in opposing Clause 2 standing part of this Bill, and I agree with everything that he has said. At Second Reading the noble Lord, Lord Beecham, and the noble Baroness, Lady Browning, each quoted Shakespeare in their competing assessments of the value of Clause 2, and indeed of the whole of this Bill. At that stage I was unable to contribute at such a high literary level—I could offer only a quotation from Basil Fawlty.

Since then, I have received a valuable e-mail from Paul Mitchard QC of the Faculty of Law at the Chinese University of Hong Kong. He assures me, and I assure the Committee, that the Official Report on this Bill is being carefully studied in the special administrative region of the People’s Republic of China. Mr Mitchard has drawn my attention to a valuable quotation from the works of Shakespeare which is relevant to whether Clause 2 should stand part of this Bill. On being complimented on making a perceptive comment, Beatrice responds by emphasising the obvious nature of what she had said:

“I have a good eye, uncle; I can see a church by daylight”.

Most appropriately for our purposes, the quotation comes, of course, from “Much Ado About Nothing”. Given that a few moments ago the Minister praised the concise nature of this Bill, perhaps “little ado about nothing” is more appropriate.

Judges can already see a church by daylight. They already take account of beneficial action—responsibility, heroism—when they decide on potential liability for negligence or breach of statutory duty. Noble Lords discussed the case law relevant to this matter at Second Reading; I will not repeat it. The Lord Chancellor’s defence of Clause 2—as the noble and learned Lord, Lord Lloyd, has said—is not that Clause 2 will change the law. The Government have identified no cases which would have been decided differently had Clause 2 been in force. The point made by the Lord Chancellor—the point made by the Government—in support of Clause 2 is that people do not understand the existing law and therefore we, Parliament, should send a message to people who are worried that conduct beneficial to society may result in legal liability, even though those worries are entirely baseless. I do not know whether the Lord Chancellor is on Facebook or Twitter but they would be far more effective methods of communicating a message—if it is the intention of the Government to do so—than the legislative time being taken up by the Bill.

I hope that it is appropriate to say that I cannot put out of my mind—although I hope to do so by ventilating it in this Committee—an image of the Lord Chancellor and the noble Lord, Lord Faulks, as the parliamentary equivalent of the Bee Gees singing their hit, “I’ve Gotta Get a Message to You”. The problem is that there is really no point sending a message unless there is something of value to communicate and unless one has reason to think that it is going to be received. There is simply no evidence whatever to suggest that those thinking of performing beneficial acts or heroism are deterred by a misunderstanding of the protection that the law already offers them.

The Joint Committee on Human Rights, in its report published last week, helpfully summarised the position in relation to this crucial point. I draw the Committee’s attention to paragraph 2.23. It refers to the Explanatory Notes to the Bill, which,

“say that there is ‘some evidence’ that people are deterred from participating in socially useful activities due to worries about risk … or liability”.

The Explanatory Notes, as the Joint Committee points out, cite only an example of a survey conducted in 2006-07. The committee asked the Government if there were any other evidence upon which the Bill is based in relation to the suggested need for a message to be sent. This was the report’s conclusion at paragraph 2.26, which stated:

“We have considered carefully the strength of the evidence base showing that the specific risk of legal liability, as opposed to risk generally, is a reason why people do not volunteer, and we have found it weak. The evidence relied on by the Government as demonstrating a public perception that volunteering carried too great a risk of legal liability is almost entirely anecdotal, and we do not consider such evidence to be a sound basis for legislating”.

I respectfully agree. If the Government are bringing forward Clause 2 on the basis that there is a need to send a message, they need to present to this House some evidence to support that assertion. Anecdotal accounts are simply not good enough. I therefore share the view of the noble and learned Lord, Lord Lloyd of Berwick, that Clause 2 serves no useful purpose; it should not stand part of the Bill.

[Lord Hodgson of Astley Abbotts]

I have been listening carefully to the two speeches. The noble and learned Lord, Lord Lloyd of Berwick, referred to the interplay between this piece of legislation and the Compensation Act 2006. I had to note that after he said that he thought that the Compensation Act was sending a message, he added that the message may or may not have been received, which is part of the issue that we are tackling today—that the message has not been received. I listened carefully to the remarks of the noble Lord, Lord Pannick, and have read with equal care his article about this piece of legislation in last Thursday’s Times, which was headed “UK negligence law is already fit for heroes” and saying that we do not need this Bill. Its tone can only be described as uncompromising throughout.

Regrettably I was abroad on business during the week beginning 3 November and therefore was unable to participate in the Second Reading debate. The proposal of the noble and learned Lord, Lord Lloyd, and the noble Lord, Lord Pannick, that Clause 2, headed “Social action”, should not stand part of the Bill clearly rips the heart out of a large part of this measure and deserves a response. With respect to the noble Lord, Lord Pannick, I do not think that people’s fears are baseless.

Before I go any further, I need to declare an interest. First, I am not a lawyer. Hearing the interchanges I sometimes feel that I have joined a party to which I have not been properly invited. Secondly and more importantly, in late 2010 I was asked by the Government to chair a task force to look at those factors affecting the growth of the charitable and voluntary sector, especially among smaller charities and voluntary groups.

I was asked to look at three specific questions. What stopped people giving their time to volunteering, for example? What deterred them from giving their money? What stopped smaller charities and voluntary groups from growing in general terms? The task force’s report, entitled Unshackling Good Neighbours, was published in May 2011 and remains available for aficionados on the Cabinet Office website.

Only the first of those three tasks is relevant to our deliberations today. With the greatest respect to the noble Lord and noble and learned Lord, with the experience of that task force and the evidence that we received. I think that they have seen this issue too exclusively, through an over-narrow legal prism. I agree with their view that this problem of volunteer concern will not be solved by change to the law alone. There is no silver bullet and I would not claim that this Bill is one. The problem can be addressed by multiple bullets and this Bill provides one of them.

The noble Lord, Lord Pannick, is aware of the importance that I attach to the rule of law. I have had the pleasure of participating with him in debates on the Motion of the noble and learned Lord, Lord Woolf, about the importance of the rule of law abroad and Britain’s reputation. I have also had the pleasure of speaking with the noble Lord on the Justice and Security Bill. To maintain the rule of law, the law must command general respect. It must not become disconnected from the regulars of the saloon bar in the Dog and Duck. I fear that in this area it is becoming so disconnected. Some of the disconnection is direct and some is indirect, in that the law is being considered to support approaches that our fellow citizens think are at best foolish and at worst downright unhelpful.

Let me give an example of what is happening, which was provided to the task force. A young woman, an undergraduate at Oxford University, saw an advertisement in the paper asking for individuals to act as room curators at one of the city’s museums. Like many or perhaps most undergraduates she was short of money and anxious to earn some additional sums. The job required her to sit in the corner of a gallery, watching that visitors going by did not interfere or tamper with the exhibits, or steal them. When she applied for the job she was immediately told that it required her to have a Criminal Records Bureau check. She was not keen on what she found a disproportionately untrusting attitude.

At this point she was put in touch with the task force. I knew that CRB regulations check that a job applicant is suitable for “frequent and intensive” contact with children or vulnerable adults and could not see how this undergraduate sitting in the corner of a room in a museum would call that principle into question. So I asked her to write to the university authorities and ask them for the basis of their CRB requirement. The answer was that the museum authorities had consulted their solicitors and had been told that to cover all the bases, including generally, a failure to have CRB checks would increase the likelihood of the trustees being found liable if there were problems in any of the operations of the museum. In the event, the young woman did not take the job because she refused to have the CRB check and the museum would not amend its policy.

That example could be replicated thousands of times up and down the country. I could—but will not —bore the House with examples: the Punch and Judy show on Hastings pier; the Women’s Institute putting flowers on a Welsh railway station; or a retired doctor seeking to read a few hours a month to Alzheimer’s patients in Northumberland. Each case results in people being reluctant to get involved.

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[Lord Pannick]

Perhaps I might point out to the noble Lord that the Minister assured the Committee in relation to the first group of amendments that the Bill would have no effect whatever on vicarious liability. Therefore, the museum’s approach—which does not sound very sensible—would not be affected in any way by the Bill.

[Lord Hodgson of Astley Abbotts]

I am not going to try to argue a fine legal point with the noble Lord but the fact of the matter is that the museum was advised that unless there were full and clear CRB checks for all individuals, it would be liable. This piece of legislation gives us an opportunity because in a case such as this, the museum,

“was acting for the benefit of society or any of its members”.

I have to say to the noble Lord, Lord Beecham, that I was disappointed with his remarks at Second Reading when he said:

“The irony is, of course, that banging on about a compensation culture is itself likely to create the very apprehension that the Bill purports to allay”.—[Official Report, 4/11/14; col. 1552.]

Regrettably, the apprehension is already very widespread. If he wishes to find out what is causing that apprehension, I invite him and other noble Lords to read the briefing sent by the Association of Personal Injury Lawyers, which describes the impact of the Bill as follows. It says that,

“those who ‘employ’ volunteers may be less rigorous in their risk assessments, thereby leaving those in their care more vulnerable to harm. An example is the chairman of a local football club where volunteers coach children. As a result of this Bill, the chairman may be tempted to cut corners in vetting the suitability of his volunteers”.

To suggest that those of us who support the Bill are somehow careless about our children’s future is unfair, unworthy and, indeed, outrageous.

I referred earlier to my support for the rule of law but I have an equally deep affection for the right of free association. It is on this right that our civil society is built. Many argue that in this screen-based age, our society is becoming more atomised and more self-centred. Whether or not this is true, I believe strongly that a vibrant civil society improves social well-being and social cohesion. All possible steps should be taken to avoid people being discouraged from getting involved.

I expect that the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Lloyd of Berwick, will argue that if a case with the characteristics I have described were to come to court, it would be thrown out. That is as may be. I am certainly not going to try to swap legal precedents with them as that would be a battle I would surely lose. But I ask the Committee to consider that for the noble Lord and the noble and learned Lord, a day in court is another day at the office, but for the defendant it is an entirely strange world —working to unfamiliar and not always understandable procedures, often taking quite a long time to come to court and incurring considerable cost and expense. It is a highly stressful experience for the layman or laywoman as well as for their families and work colleagues. Of course, if the defendant is a trustee of a charity which is not a CIO, he or she has unlimited liability.

In the background is the advice we were given at the time of the task force by an experienced litigation solicitor who explained that he would do everything he could to prevent his clerk going to court in what he called “volunteer liability” type cases because, as he put it, they are always complex and judgmental. Once you appear before a judge, and even more so before a judge and jury, the potential for unpleasant surprises increases significantly.

Earlier in the Bill, I said this was one of a series of bullets that needed to be fired to tackle this problem. So that the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Lloyd of Berwick, do not think that I am trying to attack the lawyers, I will give two brief examples of other bullets that need to be fired. One is the availability of insurance. The task force found that improving the clarity and comparability of insurance cover would have a major impact on encouraging volunteers. As the task force recommended, the Government have established a working party that includes representatives of the insurance industry and the voluntary sector to tackle this and other insurance problems. For the second bullet, I follow what the noble Lord, Lord Pannick, said earlier, when he wrote in his Times article, “Why not just issue a press release or pay for a newspaper advertisement?”. This raises the issue of myths. My task force was appalled at what we found, and we listed the 20 most extraordinary in our report. They include people worried that they could not put a plaster on a child’s cut; that goggles could not be worn in a swimming lesson; that they could not take photographs of their children at a school play, and that they could not offer meeting space in an office to a local community group. I hope that in parallel with implementing this Bill the Government will take active steps to ensure that where myths occur, they are duly busted.

To conclude, valuable steps have already been taken as regards the law in this respect. The Compensation Act was the subject of our debate this afternoon. The restrictions on contingent-fee legal work and after-the-event insurance are most welcome. We need, however, to continue to explore ways to encourage, or at least not discourage, our fellow citizens to get involved in civil society, and this Bill is important in that regard. I hope that the noble Lord will not divide the House tonight on the proposal that Clause 2 should stand part of the Bill and that my noble friend on the Front Bench will be robust in rejecting the Motion.

--- Later in debate ---

[Lord Hunt of Wirral]

My Lords, in drawing attention to Amendment 7, I am returning to the points I referred to earlier. The first part of the amendment reminds the Committee how society as a whole has become a victim of insurance fraud where organised criminals are now manufacturing situations in which innocent motorists are caused to collide with their vehicles in a manner which indicates negligence on the part of the innocent motorist. That is why I wanted to bring this amendment again to the attention of the House.

The second part of the amendment intends once again to remind your Lordships of the importance of non-monetary offers and, where they have been made by defendants, how they should be considered when the courts come to decide whether to award damages and the extent of the damages payable. I know that rehabilitation treatment is often offered to those injured in accidents but in many cases, because of the action of an intermediary, that treatment is often refused by the injured party and the period of suffering prolonged in an attempt to increase the award of damages in which that intermediary may be interested. If the courts were to be permitted to order that the treatment provided by a defendant and his representatives is a fair reward in compensation for the injury suffered, then the motivation of fraudsters to pursue “crash for cash” accidents should be reduced.

[Lord Pannick]

Before the noble Lord sits down, could I ask him whether the first part of Amendment 7 would not be covered by the existing law of causation and, indeed, by the law on contributory negligence?

[Lord Hunt of Wirral]

It is partly covered, but I think this makes it much clearer.

--- Later in debate ---

[Earl Attlee]

My Lords, I shall also speak to my Amendments 12 and 14. I have tabled these amendments on the basis that we will have to send back to another place something that actually works.

At Second Reading many noble Lords observed that, for a person to benefit from the heroism provision in Clause 4, they must act without regard to the person’s own safety or other interests. That would mean that if I intervened in an emergency, and I undertook a proper dynamic risk assessment and eliminated all avoidable and non-necessary risk to myself—and in doing so probably to anyone else—I would get no protection from the Bill. On the other hand, an imprudent rescuer would benefit from Clause 4, assuming for the moment that as drafted it changes the law.

Amendment 12 is my substantive amendment, which removes the offending words and changes the drafting to read: “to assist an individual in danger and without acting perversely”. The Committee will be aware that the noble Lord, Lord Aberdare, has an amendment that has a similar effect to mine, and I anticipate that he will go into greater detail about the problems with the need for the rescuer to act without regard to his own safety.

Amendment 14 defines what is meant by “acting perversely”. I fully accept that the courts might not need the benefit of this amendment and, if it or something similar does not find favour with the Committee, that will not be a surprise to me. I understand that my words, in the circumstances, would mean that the level of skill, knowledge, experience and training enjoyed by the rescuer would be taken into consideration by the courts—and in any case it already is.

I hope that by this stage of the Committee we will understand whether the Bill changes the law, but I myself am still not clear. I am sure that the noble Lord, Lord Pannick, will tell the Committee that my amendment would change the law and the effect of the Bill. If it does, I am sure that it can do so only very slightly. As the Committee knows perfectly well, and as I have always understood, the courts have never made an unhelpful judgment in that area of law. However, as I indicated at Second Reading, the fear of legal action or, as the Minister put it, an imperfect understanding of the law causes the mischief.

It would be very helpful if some noble and learned Lord or the Minister could describe to the Committee a situation in which the effect of my amendment would be to deny someone compensation for negligence when they would otherwise have secured it. I suspect that the Minister himself is struggling to determine whether the Bill is supposed to change the law or not. By now the Committee seems to have the view that the Bill makes no significant difference to the law apart from, possibly, Clause 3. However, if a first aid instructor could have the future SARAH Act confined to one PowerPoint slide, that could make a practical and beneficial difference. That is because, as the Minister pointed out during our debate on Amendment 2, the Bill has deliberately been designed to be comprehensible.

I suggest that the Committee cannot tolerate a provision in the Bill where an imprudent person enjoys greater protection than a person who has taken steps to avoid unnecessary risks. I am relaxed if the amendment in the name of the noble Lord, Lord Aberdare, finds greater favour with the Committee than my amendment, although his amendment may have the difficulty that it does not change the law at all. I would love to know if we were supposed to be changing the law or not.

Clause 4 is the most useful clause. I certainly have no entrenched position, but by Report we will need to have worked out what we can do to make this clause and the Bill do what they say on the tin. I beg to move.

[Lord Pannick]

My Lords, Amendment 10 is in my name and in the name of the noble Lord, Lord Beecham. It would remove the final words of Clause 4:

“and without regard to the person’s own safety or other interests”.

The inclusion of those words frustrates the purpose of Clause 4 for the reasons already given by the noble Earl, Lord Attlee. Those final words suggest that if I am thinking of acting heroically by jumping in the lake to save the drowning victim, Clause 4 will not protect me if I have regard to my own safety or other interests, perhaps by taking off my valuable watch before I jump in or, if we are to follow the Government’s reasoning as regards Clause 4, by consulting my solicitor. Surely the hero deserves protection whether he or she jumps in “without regard to” their own safety or with regard to their own safety. What matters is that they jump in to save the victim. Clause 4, as drafted, protects the instinctive hero but not the thoughtful hero, and that distinction is entirely unjustified.

Amendment 10, which again is designed to be constructive, would remove that arbitrary distinction from Clause 4. However, I cannot agree with the noble Earl, Lord Attlee, that the law of negligence in this area should be replaced by a test of perversity, which is a test far more favourable to the defendant. He asked for views from Members of the Committee as to whether his amendment would change the law; it undoubtedly would. I anticipate that we will take different views on the merits of that change, but to introduce a test of perversity would be a substantial change.

[Earl Attlee]

My Lords, would the noble Lord be able to illustrate to the Committee how that difference would work—a case where someone would be protected, and someone else would not? That would be very helpful to the Committee.

[Lord Pannick]

At the moment the court assesses whether in all the circumstances the defendant has acted with reasonable care, and the court will take account, as it will under the Bill, of whether in all the circumstances, including that of heroism, the defendant has acted reasonably. However, that is a very different test from a test of perversity. It will not help the Committee to try to identify particular factual circumstances, but I can tell the noble Earl that there is a very real difference between a test of reasonable care and a test of whether the defendant has acted perversely—in other words, has taken leave of his or her senses.

I have also indicated my objection to Clause 4 standing part of the Bill; that is part of this group of amendments. The objections to Clause 2 standing part of the Bill, which we debated earlier this afternoon, are equally applicable to Clause 4, and I will certainly not repeat all those points. However, there is an additional, specific reason why Clause 4 should not stand part of the Bill. The simple reason is that it adds absolutely nothing to Clause 2. I cannot envisage any case in which a person is acting heroically for the purposes of Clause 4 which is not also a case where that person is protected by Clause 2 as currently drafted. If you act heroically for the purposes of Clause 4 you act,

“for the benefit of society or any of its members”,

for the purposes of Clause 2. Does the Minister agree with that analysis and, if not, can he please give the Committee some explanation of the sort of circumstances that potentially come within Clause 4 that would nevertheless be outside Clause 2?