Sentencing (Pre-consolidation Amendments) Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

Second reading committee (Hansard): House of Lords
Wednesday 12th June 2019 Grand Committee

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

My Lords, it is a great pleasure to follow my noble friend Lady Deech, although even more than most, she makes one wonder why one is bothering.

Perhaps unusually for a Second Reading debate, the imperative, I suggest, for all speakers today has been to say nothing of any great interest, let alone originality—a precept that I am proposing to follow. I am sure that all of us have our own views on various aspects of sentencing policy, our own pet proposals about how it could be improved. I have canvassed some in the past about IPP prisoners still in custody. Today’s Bill, though, as has been explained fully already, has absolutely nothing to do with sentencing policy. As part of what is purely a consolidation process, it does nothing—indeed, must do nothing—whatever to change sentencing policy. The one critical change that the Bill brings about is the rationalisation, the better understanding, of existing sentencing law, which is currently found strewn all over our statute book. That is truly a worthy objective in its own right. I hope that this will put an end to the astonishing number of unlawful sentences that have been passed over recent years. More generally, it will streamline the sentencing process to the benefit of all.

As others have said, the Law Commissioner principally responsible for this project, Professor David Ormerod QC, who came to see me too—although rather more recently than he did the noble and learned Lord, Lord Garnier—is to be warmly congratulated upon what is, in truth, a remarkable achievement. He has worked upon it tirelessly for years and brings to the task huge expertise, ingenuity and analytical skills. Nothing whatever must be done during the Bill’s passage to delay or deflect it into other paths. Comparatively few Bills do indisputable good and cause no conceivable harm. This is one of them, and the case for its smooth and speedy passage into law is compelling. If one thing has emerged from the speeches today, it is surely this: the truly desperate and urgent need for this legislation.

I promised that I would say nothing original or of interest and I have kept my promise. I put myself down to speak in the debate with the sole object of adding my name, for the little it may be worth, to the other, more illustrious, names who are rightly giving their unqualified support to this admirable Bill.

Parliament: Freedom of Speech and the Rule of Law

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 23rd May 2019 Lords Chamber

Moved by

[Lord Brown of Eaton-under-Heywood]

That this House takes note of the potential conflict between the right of members to speak freely in Parliament and the obligation under the rule of law to obey court orders.

[Baroness Barran (Con)]

My Lords, I respectfully remind your Lordships that the advisory speaking time in this debate is six minutes. When the clock shows six that means the six minutes are up.

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

My Lords, it will be obvious to all that the impetus for this debate, its essential backdrop, was the statement made by the noble Lord, Lord Hain, in the Chamber on 25 October last year, naming Philip Green under parliamentary privilege as the subject of an anonymity order issued by the court two days earlier.

I should make plain at the outset that my central objective in this debate is not to criticise the noble Lord, Lord Hain—although inevitably I will need to persuade your Lordships that he acted wrongly before I can hope to ask the House to change its procedures. To that end, I will have to spell out why I regard his statement as a misuse—indeed, I would suggest, a clear abuse—of privilege.

Still less do I seek to have the noble Lord, Lord Hain, disciplined. Indeed, as to that, while several complaints were made against him by members of the public, as well as by Philip Green’s solicitors, the Commissioner for Standards rightly recognised that the only complaint within her jurisdiction was an alleged breach of the noble Lord’s obligation to declare his role as global and governmental adviser to the law firm Gordon Dadds, which was acting for the Daily Telegraph in the litigation. Against that complaint, the noble Lord had a complete defence: he had no idea that Gordon Dadds was involved in the litigation. He would have known had he looked at the court judgment, because the solicitors’ name was prominently shown there—but he did not. Whether, overall, that is to his credit I leave to others. To set oneself up as a one-person or one-Peer court of final appeal over a fully considered Court of Appeal judgment without even reading the judgment might be thought a touch presumptuous. Indeed, the noble Lord in his evidence to the commissioner went further and said that he did not think it would have made any difference even if he had read the judgment—a judgment that had granted a short interim injunction pending a speedy trial of the issue so as not to pre-empt the final decision on the merits of anonymity.

[Lord Foulkes of Cumnock (Lab Co-op)]

Would the noble and learned Lord give way?

[Lord Brown of Eaton-under-Heywood]

I am terribly sorry, I am not proposing to take interventions. This is a strictly time-limited debate and I need my 15 minutes.

The noble Lord, Lord Hain, does not suggest that the court’s judgment was in any way wrong, but rather that, whatever the legal position, he thought it his moral duty to name Green. He said that he believed he was acting honourably in naming him and:

“The sovereignty of judges is vital but should never override the sovereignty of parliament”.


Of course I accept that the noble Lord is an honourable man, but I reject utterly his suggestion that his own subjective view of what is right must always prevail over a court order.

My central concern is for the future. Indeed, the very fact that, as I understand it, the noble Lord, Lord Hain, does not accept that he was guilty even of a misjudgment in his use of the privilege increases that concern. Why would he and perhaps others of like mind, if there be such, not act similarly in the future unless the House now clarifies and, as I suggest, modifies the position? Doing what we now can to guard against any such egregious exercise of parliamentary privilege is essential to protect both the rule of law and the reputation of this House. Here I should declare an interest as a member of the House’s Privileges and Conduct Committee and as the chair of its Sub-Committee on Lords’ Conduct until these were recently restructured.

My essential concern is for the House’s loss of reputation if its Members breach the rule of law. Of course I recognise the fundamental importance of a Member’s right to speak freely in Parliament. Parliamentary privilege is enshrined in Article 9 of the Bill of Rights. It is of foundational significance in our constitution and I am certainly not proposing any legislative change to its scope. But I cannot accept that parliamentary privilege must always prevail over all competing interests. Are Members invariably to be free to breach court orders protecting, say, the identity of children, sometimes even the safety of children? Take the notorious Thompson and Venables case: could a Member have decided off his own bat to reveal their whereabouts and thus imperil their lives—or, say, trade secrets or intelligence material?

Essentially, the privilege is to prevent Members being vulnerable to claims of defamation, breach of privacy and so forth—indeed, to any other risks inhibiting the discharge of their duty to speak fearlessly on an issue in the House. But surely it is one thing to say that the privilege should not be whittled down, and quite another to claim for it so exorbitant a reach as is asserted here—namely the right, with total impunity, to breach any court order that the Member dislikes.

I advocate two distinct steps. First, the Companion, our guide to proceedings in the House, should be tightened up on this point. It is 250 pages long but there is not a word about disobeying court orders. All there is is our resolution some years back on the sub judice rule, which I can summarise simply: the privilege of freedom of speech in Parliament should be used responsibly. It requires both Houses to,

“abstain from discussing the merits of disputes about to be tried and decided in the courts of law”.

Essentially the rule requires Members in most proceedings before the House not to refer to active court proceedings, except where the Lord Speaker, in his discretion, allows it, and the Lord Speaker must be given at least 24 hours’ notice of any proposal to refer to a matter which is sub judice. Civil proceedings cease to be “active” on judgment.

I have three comments. First, the rule contemplates the issue arising in the context of,

“any motion, debate or question”.

I suggest that it does not envisage doing what the noble Lord, Lord Hain, did here—rising unannounced before the House after the conclusion of one unrelated, busy debate, and before the start of the next, to make a “personal statement”.

Secondly, in his evidence to the commissioner, the noble Lord asserted not only that he did not consult the Lord Speaker before making his statement but that he consulted no one. He merely notified the Deputy Speaker on the Woolsack at the time that he would say something once the ongoing debate had ended.

Thirdly, the noble Lord’s statement was contrary to the sub judice rule, but only because the court’s order was for an interim injunction. Had it been a final court order at the conclusion of proceedings, it would not have been covered by the rule. I suggest that the very least the House should do now is revise the Companion to make plain that in addition to the sub judice rule—indeed, more important than the sub judice rule—there is an obligation on Members to respect the independence of the courts and the rule of law, as the Lord Speaker said in his brief, well-judged Statement four days after the noble Lord’s statement, so that,

“we do not set ourselves in conflict with the courts or seek to supplant them”.

The sub judice rule is, after all, intended merely to discourage Members without good reason from discussing the merits of a case, so that their views will not risk prejudicing the court in deciding it. Intentionally flouting an actual court order after it has decided the case is surely altogether more extreme, and clashes directly with the rule of law.

I might add that the action of the noble Lord, Lord Hain, in the Green case had the effect of preventing the court ever deciding the important final question that the interim injunction was intended to leave for decision—namely, the correct approach to non-disclosure agreements in this context. The court’s open judgment, a full and measured judgment, expressly recognised the conflicting interests and arguments in play. The Court of Appeal took account of a recent House of Commons report by its Women and Equalities Committee on sexual harassment in the workplace, which recognised a legitimate role for NDAs, not least—as in the Green case—in settling employment tribunal claims. Two of the five employees supported Green’s application for an injunction. All five had been separately and independently legally advised, and each agreement expressly allowed disclosure to people such as the police and any regulatory and statutory bodies.

Unsurprisingly, Green discontinued his action after the statement of the noble Lord, Lord Hain, had pre-empted the result. Anonymity, of course, was lost for ever—but surely even unpopular people such as Philip Green are entitled to the protection of the courts. Shortly after the statement the noble Lord, Lord Pannick, described it in his Times column as,

“a clear abuse of parliamentary privilege”,

and suggested that the House should,

“amend its procedures to deter such conduct in future cases”.

He advocated Standing Orders in both Houses forbidding disclosure of information,

“without first seeking and then complying with a ruling by the Speaker”—

a failure to comply with that being a breach of the Code of Conduct. Whether that approach would put too heavy a responsibility on the Speaker is for consideration, but it is difficult to think of many cases where the Speaker would support the proposed breach of a considered court order.

Moreover, there is another important factor to have in mind here, which is the European Convention on Human Rights. In 2002 Strasbourg, in A v UK, accepted by a majority that the rule of absolute parliamentary immunity was justified even when it operates to defeat convention rights. The court’s reasoning, however, included that:

“General control is exercised over debates by the Speaker of each House of Parliament”,


and that,

“the immunity attaches only to statements made in the course of parliamentary debates on the floor of the House”.

The privilege there had been used to prevent a defamation claim—not, as in the case of the noble Lord, Lord Hain, a statement wholly outwith the control of the Speaker and unrelated to any debate on the Floor of the House, simply oversetting a court order. As Erskine May tells us on pages 222 and 301, even in A’s case,

“the judges were not uncritical of the exercise of privilege without recognition of … human rights”.

They expressed the view that a national Parliament should incorporate into its procedures,

“some system of redress for citizens”.

For my part, I seriously doubt whether the case of the noble Lord, Lord Hain, would survive a Strasbourg challenge today.

As the admirable Library note makes plain, there have been a number of relevant committee reports down the years. In the context of super-injunctions, a 2012 Joint Committee on Privacy and Injunctions concluded that the use of privilege to defeat them, as in the Ryan Giggs and Fred Goodwin cases, had not yet reached the point where Parliament needed to act; a high threshold for taking action had not yet been crossed. I suggest that it now has been and that we should not kick this can further down the road.

We all of course enjoy our privileges and it is understandable that we should cherish them and wish to guard them jealously. But it is my contention that the time has come when we should recognise an abuse for what it is and try to limit its recurrence in future. I greatly look forward to hearing what the noble Lord, Lord Hain, and all others have to say in this debate—the non-lawyers at least as much as the lawyers. I beg to move.

--- Later in debate ---

[Lord Brown of Eaton-under-Heywood]

My Lords, I have three very brief comments; I am conscious of the fact that there are aeroplanes and trains to be caught. First, I give huge thanks to all noble Lords who have spoken in this high-quality debate. Not least, I am grateful to the non-lawyers who have spoken. This is partly because their view on the conflicting interests in play is particularly valuable and partly because I suspect that they have had to do even more homework to prepare their contributions than the lawyers who have spoken.

Secondly, the noble Lord, Lord Hain, and one or two other noble Lords suggested that what he did here was justifiable. This heightens my concern that there is a real risk of this being repeated unless we now do something worthwhile to discourage such statements in future.

Thirdly, I respectfully suggest that there is more than sufficient support from the speeches today for taking some real action to deter future misuses or abuses, whatever you call them, of this privilege. So I respectfully urge the House authorities—no doubt predominantly the Procedure Committee—to give full consideration to this matter.

The Senior Deputy Speaker has just said, rightly, that the matter was looked at, comparatively briefly, by the Procedure Committee recently, and he undertook to look at it afresh. I urge him and the members of any committee that now looks into this to do so fully informed by this debate, in all its aspects. I hope that giving full consideration to the speeches today might very well temper what is otherwise a very limited proposed response to the problem, simply by way of adapting the Companion. I repeat that I am very grateful to all noble Lords who made such valuable contributions today and I beg to move.

Motion agreed.

Further Developments in Discussions with the European Union under Article 50 of the Treaty on European Union

Lord Brown of Eaton-under-Heywood Excerpts

Monday 11th March 2019 Lords Chamber

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

My Lords, it is always a great pleasure to follow the noble Lord, Lord Cormack, although this tends to throw into sharp relief the inability of many of us to match his enviable skills of extemporary exposition.

Over recent months, I have found much of the Brexit process deeply depressing and disheartening, not least the apparent total disregard paid by the other place to the debates held in your Lordships’ House. It is true of course that under Section 13(1)(b) of the 2018 withdrawal Act only the House of Commons has to approve any deal, although under Section 13(1)(d), an Act of Parliament, and therefore your Lordships’ agreement, is required to implement the withdrawal agreement element of any overall deal. Why, however, does Section 13(1)(c) of that Act require a debate on any deal in your Lordships’ House unless it is thought likely to assist the House of Commons in its consideration of these questions? Does it? Do they read our debates in Hansard? Frankly, and sadly, I question that.

In these debates, time and again, I am struck by the quality of your Lordships’ contributions and the depth of expertise and experience that informs so many of them. I say this in relation to the views expressed on all sides of the debate, not merely those that happen to coincide with my own. When I speak of all sides of the debate, there are basically three approaches urged here: one is to buy into the deal; another is to remain in the EU; and the third is to leave with no “overarching deal”, as the noble Lord, Lord Howard, puts it. That final view—the outcome which he and a number of others who have spoken in this debate plainly prefer—is surely there and we need to have regard to it, frightening though I find it, and strongly opposed to it though I am. Therefore, I question whether the binary question of the further referendum proposed by the noble Lord, Lord Newby, which totally ignores and overlooks it, would be the proper one to put before the country.

I am opposed to any future referendum. I am now converted to the view that we should leave the Union on the terms offered, with no further referendum, on 29 March, or as soon as possible thereafter—an extension of a few weeks may be required to enact the necessary implementing legislation. I have no doubt that a short extension would be granted, for the explicit purpose of implementing a deal. As to the sort of long delay proposed by some—Sir John Major, for example, sought 12 months in his letter in Friday’s Times, and the noble Lord, Lord Adonis, suggested a 21-month extension in his “Thunderer” article in today’s Times, in neither case indicating with any clarity what precise purpose such an extension would be intended and expected to achieve—I am profoundly doubtful about whether the other 27 member states would unanimously agree to that. In any event, for my part, I strongly share the view of the noble and learned Lord, Lord Hope, the noble Lord, Lord Bridges, and several other participants in this debate that we should not request this in the first place.

I said earlier how impressed I had been by the contributions of your Lordships on all sides of the debate, but I should perhaps make one exception to that encomium. There appear to be one or two among your Lordships—it would be invidious to name them—who, to my mind, are labouring under a profound misapprehension on our entitlement to extend the Brexit process to negotiate a fresh and better deal. In our latest Brexit debate on 27 February, one of your Lordships said that we should seek a very long extension, if necessary, for a further referendum. So far so good, though as indicated I personally strongly disagree. The speech then went on in a way that seemed clearly to indicate a total misunderstanding of the legal position. It suggested:

“The deadline must be extended well beyond 29 March. Article 50 must be revoked—we are still in time to do that. Then, as full and remaining members of the European Union, we should embark on orderly negotiations to leave the European Union. Once those have crystallised into a concluded agreement, regulating the ultimate arrangements between ourselves and the European Union, that agreement”—[Official Report, 27/2/19; col. 267.]


here I paraphrase—could then be the subject of a further referendum, or, if the electorate were to agree, it would be left to Parliament.

The short point is that if Article 50 is revoked, that precludes any possible right to embark on orderly negotiations. We can revoke Article 50, to quote the language of the CJEU, the Luxembourg court, only if that revocation is,

“unequivocal and unconditional, that is to say that the purpose of that revocation is to confirm the EU membership of the Member State”.

Such a revocation would necessarily imply that the United Kingdom is now, after all, intent on remaining a fully committed member of the EU and that we do not simply intend to give a further notification. Abuse of right is an established principle of EU law and it is really difficult to give any more obvious illustration of such an abuse than revoking the Article 50 notice essentially as a device to circumvent the requirement for unanimity of the other 27 for any extension of the two years allowed. There can be no question of the other 27 renewing or continuing negotiations on such a revocation.

I have no wish and indeed no time to weary your Lordships by repeating arguments that I advanced in early debates—although I spared your Lordships in the last one—in favour of accepting this deal but, in common I believe with the great majority of the population of this country and most of those with business interests, I urge the other House to buy into this deal on offer.

[Lord Pearson of Rannoch (UKIP)]

My Lords, would the noble and learned Lord care to comment on a Written Answer I recently received from the Government to the effect that—

Prisoners: Imprisonment for Public Protection Sentences

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 20th December 2018 Lords Chamber

Asked by

[Lord Brown of Eaton-under-Heywood]

To ask Her Majesty’s Government whether in the case of imprisonment for public protection prisoners they will encourage the Parole Board to apply the legal principle that the longer the prisoner serves beyond the tariff period, the clearer should be the Parole Board’s perception of public risk to justify the continued deprivation of liberty involved.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the Parole Board may direct release only if satisfied that detention is no longer necessary for the protection of the public. The board will base its decision on a comprehensive assessment of the risk posed by the individual prisoner. This will be determined by reference to all the offender’s circumstances.

--- Later in debate ---

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

My Lords, call it what one will, the plain fact is that the longer a prisoner serves beyond his tariff, the more he is detained beyond due punishment. Worboys had a tariff term of eight years and within two years of that was recommended for release—a case that has done terrible damage to the IPP cause. However, I am concerned with those at the other end of the IPP spectrum. Six years after the regime was abolished, of the 2,500 remaining IPP prisoners, 261 with a tariff of less than two years have served more than eight years beyond their tariff. Indeed, 129 have served over 10 years beyond their less than two-year tariff for punishment. Does the Minister not agree that that is gross injustice, and that the burden of proving a prisoner to be unsafe for release should in future lie with the detaining authority?

[Lord Keen of Elie]

My Lords, it is important to remember that the original sentence was imposed on individuals who had committed serious violent or sexual offences so that, at the end of the day, not only should they be punished for those serious offences, but the public and future potential victims should be protected. The Parole Board must, as I said, have in mind all material considerations when it scrutinises the level of risk that is or is not acceptable when one of these prisoners applies for parole. Of course, the time spent in prison post-tariff will be a relevant consideration; albeit that that is not a principle of law, it clearly is one of the considerations the Parole Board will have in mind.

Non-Contentious Probate (Fees) Order 2018

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 18th December 2018 Lords Chamber

[Lord Hunt of Wirral]

I can think of many other court situations; I anticipate that the Minister will have a great list for my noble friend Lord Deben. There are many occasions on which you pay a fee; at the end of the day, it is intended to cover the costs of the system. This goes slightly further, I agree, but within a ring-fenced system—if I could have my noble friend’s attention—the money cannot go just anywhere. It has to go toward enhancing the Courts & Tribunals Service. I think this is the right way forward to ensure we have the access that I described earlier. I warmly commend my noble friend the Minister and I support his order.

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

My Lords, this order relies above all on Section 180 of the Anti-social Behaviour, Crime and Policing Act 2014. As that name perhaps suggests, it was a great Christmas tree of an Act. One recalls its passage all too well; it occupies no fewer than 231 pages of the Queen’s Printers’ copy, with 186 sections and 11 schedules.

This House discharges its scrutiny function very carefully, with great conscientiousness, but perhaps, just occasionally, Homer nods; did we perhaps nod here as we reached towards the end of this mammoth Bill? Of course, we must now construe and apply Section 180 as enacted. That said, while Section 180 contains apparently no limits whatever to the extent of its permissible use, provided always that the excess funds raised are devoted to the efficacy of the Courts & Tribunals Service, ought we not to construe it somewhat fastidiously so as to guard against its use for what is essentially a tax-raising exercise?

Of course, cross-subsidisation is permissible, but is it no less obviously the case that a point will come at which what is purportedly an enhanced fee with a view to cross-subsidisation becomes truly a tax, improperly raised without primary legislation? Suppose that the proposed maximum here of £6,000 were, not the £20,000 suggested last year but, say, £60,000 for estates over £20 million. What would we say? We know that £145 million is to be raised by this order for cross-subsidisation, but why only £145 million? The deficit in the service is something like £1 billion, so why should £500 million not be raised for cross-subsidisation?

Is the proposed schedule truly a schedule of fees or does it at some point, disguised as such, descend in reality into a schedule of taxes? That, I would suggest, is the question for your Lordships. I shall listen carefully to the Government’s arguments—indeed, to all the arguments. Only at the end of the debate shall I decide how to vote. I recognise that that may be regarded as a somewhat unusual approach in this House, but I have a certain nostalgia for my earlier occupation.

[Baroness Hamwee (LD)]

My Lords, I too declare an interest, as a solicitor. I have not practised for some time, so I will not hand out cards suggesting that colleagues consult my old firm. It was the suggestion about advances made by solicitors from their office accounts that consolidated my interest in this topic. However, I want to make a wider point and to ask one very specific question.

I believe that tax is a good thing. It is the price of a civilised society and so on but it must be transparent. It is a question of trust and honesty on the part of government. It is all part of the very topical but for ever issue of citizens’ trust in the Government and how that Government raise money. It is also part of joining up across departments and subject areas, and asking departments to look for their own income generation in the way that this proposal does. Income generation is important but it is not helpful if it is completely siloed.

The Minister refers to Section 180 of the Christmas tree Act, but I rather think that the public—I do not include the subset who understand the origin of the probate service and the family courts—would find it not immediately obvious that fees for the grant of probate should finance the court service generally. They might not say that they are doubtful about whether it is intra vires, but questions will be raised in their minds.

As I understand it, currently there is full recovery of the costs of the probate service. The Minister has referred to improvements to the service, and those must be welcome, but I believe that I have read somewhere that they will lead to savings, not costs, although I dare say that an initial investment is involved. As has been said, there is no option but to use the probate service, which adds to the question of whether one is paying for a service or paying a levy, and that perception is compounded by the administration being the same, regardless of the value of the estate.

My specific question is about Section 180. Subsection (3)(a) requires the Lord Chancellor to have regard to,

“the financial position of the courts and tribunals for which the Lord Chancellor is responsible, including … costs incurred by those courts and tribunals that are not being met by current fee income”.

The subsection goes on, joined by the word “and”, to paragraph (b), which states that the Lord Chancellor must also have regard to,

“the competitiveness of the legal services market”.

I do not believe that there is a market in grants of probate administration. I will be grateful if the Minister can explain to the House how that provision has been considered, what regard the Lord Chancellor has had to the competitiveness of the legal services market and what conclusion the Lord Chancellor has reached.

Civil Liability Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

Report stage (Hansard): House of Lords
Tuesday 12th June 2018 Lords Chamber

[Lord Pannick (CB)]

My noble friend Lord Kinnoull referred to “jurisprudential purity”. I would prefer to describe it as the essential role of the judiciary in deciding what compensation is appropriate. I would be very grateful if the Minister would tell the House whether there is any precedent for a Minister, rather than judges, deciding on the appropriate level of compensation for a civil claimant when that compensation is being paid not by the state—I recognise that that may be a different matter—but by a private wrongdoer or, more accurately, their insurance company. I suggest that either there is no precedent or this is rare, for a very good reason: put simply, judges, not Ministers—or their civil servants, more accurately—have expertise and independence in this area. For those reasons, I strongly support the speech made by my noble and learned friend Lord Woolf.

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

My Lords, I confess to having found this group of amendments rather difficult. As I observed in Committee, the real question as I see it in Part 1 is whether it is right to fix especially low awards for whiplash injuries suffered in road accidents, to deter the disproportionate number of false claims which undoubtedly are made following such accidents. That is what Clause 2 does: it seems to me impossible to escape that conclusion. Obviously and inevitably its effect, therefore, would be to penalise those who genuinely claim for such injuries sustained in that way. They are to pay the price of the policy underlying Clause 2, the policy of deterring the dishonest. Obviously, one regrets that.

Whether to pursue that policy and, if so, to what extent and how vigorously—in other words, how far to reduce the awards so as to make the making of a false claim less attractive—is, it seems to me, par excellence a political question. It is purely a political question and therefore I, for my part, see no particular point in involving the judiciary as Amendment 12 would do. We know what the judiciary regards as the appropriate level of damages for honest claims of this sort: the Judicial College guidelines clearly tell us that. Therefore I do not support Amendment 12.

To my mind, the real question is the altogether more fundamental question raised by my noble and learned friend Lord Woolf’s Amendment 18 and that is the one I confess that I find the more difficult. I flagged up my concerns about this and about the whole of the Part 1 policy in Committee. My noble and learned friend suggests that the proposal will create an undesirable precedent and introduce injustice into the system. Of course, I recognise the force of these criticisms and to a degree I share his doubts as to whether the incidence of false claims remains grave enough to justify this wholly exceptional measure. However, at the end of the day I am reluctantly persuaded that this provision is justified: it is surely intolerable that we are known as the whiplash capital of the world, so I have concluded that it is open to government, as a matter of policy, to seek to deter dishonest claims in this way.

I do not suggest that there are any exact analogies between the law of compensating injuries negligently caused and what is here proposed. I accept that the criminal injuries compensation scheme, to which in effect my noble friend Lord Pannick and the Minister referred—statutory awards for injuries criminally caused—is a very different creature, but it should be recognised that broad questions of policy can and on occasion do have a part to play in this area of our law. For example, the courts have held, under what lawyers here will recognise as the Caparo principle, that in certain circumstances claims are barred altogether, not just restricted. In short, there is no duty of care held to arise, even when injury follows on from what otherwise would be plain negligence, where it is held, for whatever reason, that it would not be fair, just and reasonable to compensate in those circumstances. For example, years ago in the case of the Yorkshire Ripper, the police were held exempt from claims despite their failure to apprehend the killer, which manifestly they should have done, and, as we all recall, a series of subsequent women died.

On balance, my conclusion is that there is a sufficient policy reason here for restricting damages in this case. With some hesitation, I shall not feel able to support the amendment tabled by the noble and learned Lord, Lord Woolf.

Civil Liability Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

Committee: 1st sitting (Hansard): House of Lords
Thursday 10th May 2018 Lords Chamber

[Lord Keen of Elie]

With the greatest respect to my noble friend, there is no basis for distinguishing between the cohort which is driving in the course of employment and the cohort which is not driving in the course of employment when an injury is suffered due to the negligence of a third-party driver. I am not aware of any examination, study or evidence that would seek to distinguish, or of any conceivable basis for distinguishing, between those two cohorts. So, with the greatest respect, I would suggest that it is a distinction without a difference.

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

May I just try to assist—I hope—the noble and learned Lord? The fact that the employer can authenticate that the accident was caused while the driver, the claimant, was acting in the course of employment does not authenticate the fact that he suffered a whiplash injury, and that is the vice that this legislation is designed to attack. Why, in any event, exempt from these provisions that particular class of driver? Why not the man taking his wife to hospital to have a baby, or a whole host of perfectly legitimate drivers? I hope to have helped.

[Lord Keen of Elie]

I am grateful for the noble and learned Lord’s assistance. In the past his interventions have not always been of assistance, but they certainly are on this occasion. I would go further and suggest that it would make no more sense to exempt people who were driving red cars at the time of the accident. It is a distinction without a difference; it is as simple as that. That is why we do not consider this to be a helpful line of inquiry, and it is not one that we intend to pursue further.

With regard to the other amendments that were spoken to in this group, I have endeavoured to address the points made. I acknowledge the point made by the noble Earl, Lord Kinnoull, and indeed by the noble Lord, Lord Trevethin and Oaksey, about the potential for anomalies where someone suffers a whiplash injury and other forms of injury as a result of the same accident. That is there, and there is no obvious answer to that. Nevertheless, the Bill is structured with the intention of addressing the vice we are really concerned with here and which is generally acknowledged to exist. In these circumstances, I invite noble Lords not to press their amendments.

Civil Liability Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

Committee: 1st sitting (Hansard continued): House of Lords
Thursday 10th May 2018 Lords Chamber

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

My Lords, I understand that the clear purpose of Part 1 of the Bill is to discourage false claims for whiplash injuries in road traffic accidents. The proposed method, besides wisely insisting henceforth on medical reports, is essentially by substantially reducing the damages recoverable in such claims to, as the noble Lord, Lord Sharkey, has just explained in some detail, figures well below those that are suggested in the 14th edition of the Judicial College guidelines, based as they are on typical court awards for such injuries.

The real question raised here is whether it is right to create especially low awards and, if so, how much lower than the norm for this particular injury suffered in this particular way specifically because disproportionate numbers of this sort of claims are likely to be false, not least because it is highly subjective and very difficult to establish objectively the reliability of the complaints. These are essentially political questions. It may be addressing the next group of amendments to say that it would make no sense whatever to involve the judiciary in answering these political policy questions. We know what the courts regard as the appropriate levels; we have those from the Judicial College guidelines.

As to what the political answer is to the precise level of damages proposed and whether or not it should be on the face of the Bill, I am essentially agnostic—although if anything I would favour that it should be. What rather surprises me is that, as I understand it, none of the amendments to the Bill is designed to challenge the whole Part 1 approach, which inevitably involves discrimination against those genuinely claiming for whiplash injuries in this context. Is the problem, one may ask, despite a number of improvements in the overall legal landscape over recent years—and indeed, no doubt consequentially, some reduction in the level of these claims—really bad enough to justify that whole approach? That does not seem to be squarely addressed in any of the amendments.

That said, I would add that I am in broad agreement with the whole idea of tariffs for injuries, certainly for lesser injuries, and indeed even of reducing awards in respect of a number of these lesser injuries. When I used to practise in this area decades ago, I used to think even then that lesser injuries were altogether too generously compensated, certainly in comparison to the graver injuries, which were not. Tariffs promote certainty and predictability, although of course always at the cost of some flexibility. That very predictability and certainty cuts down the enormous expense, the worry, the concern, the delay and the hassle of litigating expensively—as it invariably is—in this field. Indeed, that is also the effect of raising the small claims tribunal limits. I therefore also tend to support that to some degree in respect of these lesser injuries.

Overall, one must recognise that this is par excellence a policy issue, and it is for the Crown to justify Part 1 in the way that I have indicated. Part 2 raises very different questions, and to that I give my total support.

[Lord Faulks (Con)]

The amendment tabled by the noble Lords, Lord Sharkey and Lord Marks, seems at least to question the underlying premise behind these reforms. I respectfully suggest that the Government have established the premise. The Minister set out the Government’s case, as it were, at Second Reading, and the statistics seem to lead ineluctably to the conclusion that there is widespread abuse of the whole whiplash claims system. The solution, though it is inevitably somewhat rough and ready, is that there should in effect be a reduction in what claimants might have been able to claim under the system that currently obtains, although that is in relation only to damages for pain, suffering and loss of amenity and excludes loss of earnings or any other consequential losses. It is a reduction but a fairly modest one and we are speaking of injuries at the lower end of the scale, although I do not downplay the discomfort that can follow from whiplash injuries. However, the purpose behind the reforms is surely, first, to provide certainty and, secondly, to make the awards reasonably modest so as to provide less of an incentive for those who would seek to make fraudulent claims. That, combined with the ban on medical officers, should fulfil what is, as the noble and learned Lord rightly says, essentially a policy decision.

In effect, the losers about whom we should be concerned are those genuine claimants, as opposed to the many who are not genuine, who I accept will get a lesser sum than they would otherwise have obtained. In the round, though, I suggest that this is a sensible policy decision. The House may have in mind that when these reforms were initially trailed by the then Chancellor of the Exchequer George Osborne—and it came from the Treasury rather than the Ministry of Justice—the suggestion was that there would be no damages at all for whiplash injuries. This is a modification of that change, and of course there is the right of the judges to have an uplift in circumstances that we may be exploring later. Still, I suggest that it would be a mistake to pass these matters back to the judges. The Judicial College guidelines are in fact an extrapolation from individual cases decided by judges. They then, as it were, create a form of certainty, although they are variable according to individual cases.

I think the Government have made a case. They have to grasp the nettle, and they have done so in this case.

European Union (Withdrawal) Bill

Lord Brown of Eaton-under-Heywood Excerpts

Wednesday 21st March 2018 Lords Chamber

[Lord Cormack]

My Lords, I will briefly add my support. I point out to my noble and learned friend, who gave a very sensitive reply to the previous debate, that a culture has grown up in Parliament in recent years: the proliferation of so-called “Christmas tree Bills”, which include very few specific proposals, allowing Ministers to hang whatever baubles they like on them. Together with the deep suspicion, that we all have, of Henry VIII provisions, I hope that that explains to my noble and learned friend why, with all the far-reaching consequences of this Bill, we are most anxious that the prerogative should remain with Parliament and that it should not be for Ministers to determine what is primary and what is secondary. I hope that building on his sensitive and—I do not want to sound patronising—sensible remarks at the end of the last debate, he will take on board what has been, and is being, said on this point.

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

My Lords, I entirely agree with the noble and learned Lord, Lord Mackay of Clashfern, that one way or another it must be for Parliament to decide the essential ground rules that should apply in the future categorisation of retained EU law, certainly under Clauses 3 and 4, although perhaps not under Clause 2 as it is already domestic law. As I made plain some weeks ago—it seems like months—in an earlier debate, I do not, however, subscribe to the view of the Constitution Committee that all retained EU law should be designated as primary legislation. We discussed all this at the time. If what I may call in shorthand Professor Paul Craig’s suggested solution to this problem is adopted by following the EU’s own categorisation, under both the pre-Lisbon and post-Lisbon arrangements, somebody will have to apply that ground rule to this mass of 10,000, 20,000 or 30,000 instruments—however many they may be.

I suggested in an earlier debate, because this is what Paul Craig had said, that in fact four competent EU lawyers could carry out that whole process in a matter of three days. I may have those figures slightly wrong, but that is about it. But if that is left to be done after the passage of this legislation, some regulating power will have to be available to government to give effect to that process. The ground rules settled its application for regulation. I hold no particular brief for this being done under Clause 17(1); it may be that the better course would be to introduce the ground rules—as I say, Parliament’s specification of how basically the process is to be completed—within the legislation, and have a regulation-making power attached to that for the sole purpose of applying the ground rules. But I would not wish to leave unchallenged the Constitution Committee’s suggestion that the whole shooting match should be primary legislation.

[Lord Goldsmith]

My Lords, to some extent this is a continuation not just of the previous debate today but of previous debates that we have had on earlier days in Committee. That leads me to two observations, before I come to specifics on the amendment. One is on the very pertinent observation of the noble Lord, Lord Wallace of Saltaire, that if we do not advance at all before we get to Report we will have just as much time spent on Report as in Committee. Therefore, we very much hope that the Government respond to his suggestion or injunction to the Minister that we have some greater clarity on what the Government are going to do as a result of the consideration that they have been having for the last few days, when they have had time to consider some of these points. Indeed, I hope that it is not only the noble and learned Lord who is working on this—there are a lot more people in government who should and could be working on it. That is just one observation that demonstrates how much work there is to do, and how we need to move forward, hoping of course to do that in co-operation with the Government.

Secondly, I suppose people outside listening to this debate will wonder what on earth we are talking about. They expect that this Bill is about in or out and when and what the terms are, and the customs union. Those are important issues, too, but this debate illustrates how important some of the provisions in this Bill are. The question of whether something is to be regarded as a piece of primary legislation is fundamentally important; it has consequences for who legislates and how easy it is to amend that legislation, as well as for its effect in relation to other statutes. I draw this as a general view that has been expressed around the House, that it cannot be left simply for a Minister to decide. In previous debates, we have heard how many Ministers that could be. I made the observation—no one has yet contradicted it, although maybe it should be contradicted—that when you say that a Minister does something, under the Karl Turner principle that means that a civil servant can do it. I have the greatest of admiration for civil servants, but that would multiply the number very considerably. If we are talking about important constitutional provisions, about protection of rights and all the other things that the Bill is concerned with, it is not appropriate that decisions on who makes that decision should be left in this way.

I thank the noble Lord, Lord Pannick, for drawing attention to the fact, as others have too, that one consequence of this particular provision that my noble friend Lord Bassam of Brighton has dealt with touches on the question of who decides whether something is primary or secondary. The noble and learned Lord, Lord Mackay of Clashfern, made a very important observation, and so did the noble and learned Lord, Lord Brown of Eaton-under-Heywood. Today is not the day to decide which should be primary; what we are talking about is whether it should be simply for a Minister or for his officials to determine whether a particular piece of law should be treated as primary or secondary legislation. That is what the amendment raises, and it is important that we should have clarity on it, I hope before we get to Report.

The summary that is given in paragraph 69 of the Constitution Committee’s report, already referred to by the noble Lord, Lord Pannick, puts it in clear terms, including the last sentence that, as it stands:

“This is a recipe for confusion and legal uncertainty”.


We cannot afford this Bill, when it has completed its passage through this House and the other place, to leave the country in a state of confusion and legal uncertainty.

European Union (Withdrawal) Bill

Lord Brown of Eaton-under-Heywood Excerpts

Committee: 4th sitting (Hansard): House of Lords
Monday 5th March 2018 Lords Chamber

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

My Lords, I agree very substantially with my noble friend Lord Pannick’s general approach. Any attempt to repeat or paraphrase what he said would merely weaken it. I shall not do so, but I will make two comments.

First, on the supremacy question, my noble friend is clearly right that this is a wholly alien notion and we do not want it incorporated in the Bill. I confess I could not find what he calls Amendment 31A in my Marshalled List—this must be my fault. Is it the same as what I have as Amendment 32B? I suspect it may be. I certainly read that amendment as modelled on Professor Paul Craig’s proposal for how to deal with this. If that is the position—my noble friend nods helpfully to indicate that it is—I entirely support that approach. The language is substantially Professor Craig’s and it is altogether satisfactory.

Secondly, my noble friend canvassed an outline of the alternative ways to deal with giving legal status to, and the categorisation of, retained EU law. On the one hand, the Constitution Committee suggested that we turn it all into UK primary legislation. Then there is Professor Paul Craig’s competing approach, which is also endorsed by the Bingham Centre. I have a huge preference for the latter, not the former. As Paul Craig points out, we pass, in round figures, about 40 statutes a year. If we suddenly turn 10,000 or so instruments—the figure I think he suggests—which obviously in the ordinary categorisation would fall into the category of secondary legislation, into primary legislation, with all the consequences of that, we would simply overwhelm the statute book. We would make it impossible to deal with them properly as statutes. We would then inevitably start needing Henry VIII clauses in full measure. We would devalue primary legislation and give credibility and justification to use of Henry VIII powers, which is the last thing we want to do. Go down the Craig-Bingham line, not the Constitution Committee’s recommended route. I say that with all respect and deference to the committee, whose report is overall an enormously helpful document.

[Lord Campbell of Pittenweem (LD)]

My Lords, I can be brief. I wish to support the various submissions made by the noble Lord, Lord Pannick, but also to draw your Lordships’ attention to some revealing contents of the Constitution Committee’s report, in particular the words of the Solicitor-General, which seem to indicate very clearly the weakness of the Government’s position.

As I recall, the noble Lord, Lord Pannick, confined himself to the first sentence of paragraph 69 of the report:

“It is constitutionally unacceptable for ministers to have the power to determine something as fundamental as whether a part of our law should be treated as primary or secondary legislation”.


He went on to say that this is a recipe for confusion and legal uncertainty. I invite your Lordships to look to paragraph 67 on page 23 of the report, particularly the direct quote from the evidence given by the Solicitor-General. He says of the powers under discussion that,

“there is nothing unusual about these powers. However, I accept that the way and the context in which they are used is somewhat unusual … I accept that we are in new territory here. Having said that … when embarking on new territory, all Ministers tread extremely carefully”.

If this is genuinely new territory, it is inevitable from the Solicitor-General’s expression that there is no precedent. If there is no precedent for exercise of powers in the way the Government seek, that is not just something where we should tread extremely carefully; it is something which should be rejected outright.

--- Later in debate ---

[Lord Pannick]

Of course, “case-by-case basis” suggests lots of work for lawyers and a lot of legal uncertainty. I am grateful to the Minister and all those who spoke in the debate. There was, I think, widespread agreement in the debate—apart from the Minister—and from expert commentators that a legal status does need to be conferred in the Bill on retained EU law. How one confers the legal status is much more difficult than what legal status one confers. I would say that there is more than one way to skin a cat—but that may upset those who spoke in the previous debate.

I am grateful to the noble and learned Lords, Lord Mackay of Clashfern and Lord Goldsmith, for supporting the approach recommended by your Lordships’ Constitution Committee. But I agree with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that there is also great force in the suggestion made by Professor Paul Craig that the Bill should confer a status of either primary or secondary legislation, dependent on the category of EU law from which the retained EU law derives. I say to the noble Lord, Lord Adonis, who asked about this, that Professor Craig is not advocating a process of allocation on a case-by-case basis; he is advocating that legal status should depend on the article of the EU treaty from which the retained EU law derives—a much more objective approach.

[Lord Brown of Eaton-under-Heywood]

Did my noble friend hear Paul Craig say at a seminar, as I did, that it would take four competent EU lawyers four days in Brussels to classify, consistently with the classification both pre and post Lisbon, all this legislation? Four lawyers, four days—that is perhaps the answer to the question of the noble Lord, Lord Adonis.

[Lord Pannick]

Well, it depends. How long is a piece of string—how long does it take EU lawyers to allocate? But it is an objective approach. There may be difficulties, but they would be far fewer than the problems that would be posed by not addressing this problem at all in the Bill or by leaving it to Ministers to determine the matter. The other suggestion was that made by the noble Baroness, Lady Bowles. She may have the right answer. She spoke of various baskets—I think it was “baskets” rather than the word used by Sir John Major as Prime Minister in relation to opponents of the Maastricht treaty.

The core point is that it is unacceptable for the Bill to ignore the question of legal status. It is a problem that needs to be addressed if the Bill is to achieve its objective of securing legal certainty. Therefore, I hope that the Government will, as the Minister indicated, reflect on these issues before Report. I beg leave to withdraw the amendment.