Sentencing (Pre-consolidation Amendments) Bill [HL] (Law Commission Bill)

Lord Bassam of Brighton Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Tuesday 11th February 2020 Lords Chamber

[Lord Bassam of Brighton (Lab)]

My Lords, I take great pleasure in joining in the general congratulations to the noble and learned Baroness, Lady Hallett, on her excellent maiden speech. The words I jotted down immediately were “Brevity welcome”. It was a powerful speech, and made with great concision. I know that we shall benefit greatly from her wise words in future—especially, I hope, when we consider legislation such as this, which deals with sentencing issues.

Like others, I am delighted that the Bill is back before us; I am only saddened that it has taken three goes to get here. However, this Second Reading debate is somewhat better, perhaps, for having waited to come round this third time. We have certainly heard a wider range of speeches than we did the first time, some touching on the grisly impact of sentencing in courts martial, with a learned discourse from the noble Lord, Lord Bates, on the statistics—grisly statistics, one might say—of our judicial system and of law and order in this country.

We have also had the advantage of hearing the noble and learned Lord, Lord Mackay, make a powerful speech advocating better-paid judges. He should probably become the chief negotiator for the judiciary as it seeks to improve its pay and conditions. There was also a bid by my noble friend Lord Adonis for a sentencing Select Committee. He is lucky, because the usual channels are on our Front Bench tonight, and I am sure that my other noble friend will have taken careful note of that bid.

We very much welcome the Bill, as we did last time. We know that the justice system faces extreme challenges: the decimation of legal aid has reduced access to justice for those who need it most; the courts are facing budget cuts and are also, sadly, haemorrhaging experienced staff. The Government have been pushed by voluntary organisations, campaigners and MPs to review the workings of the family courts, as they are failing survivors of domestic violence. In the face of that, and more, we must get sentencing right. I welcome the Bill in that regard, as we did previously. We too want to put on record our thanks to the Law Commission for its work, and to all the other stakeholders who have contributed to the years of research and consultation that have brought the Bill before us, and which will inform the consolidation Bill that will follow it.

The profession has welcomed the Bill. In its briefing, the Bar Council referred to existing sentencing law as a patchwork quilt, and urged the introduction of the sentencing code without further delay—quite right. That patchwork is derived from three statutes, including the Powers of Criminal Courts (Sentencing) Act 2000 and the Criminal Justice Act 2003. I think I may have been responsible for one of those pieces of legislation, but I shall not apologise for that; it was my duty as a Home Office Minister.

The Law Commission estimated that there had been at least 14 major Acts covering sentencing in the past 40 years—and my noble and learned friend Lord Falconer read most of them out. At least one of them repealed legislation that had created sentences only six months before. The point about de-layering is well meant, and well met. The Law Commission wrote that the law on sentencing procedure was

“extremely difficult to locate, interpret and apply, even for an experienced lawyer or judge”.

The noble and learned Baroness, Lady Hallett, gave a good example of that, which illustrated the sheer mind-boggling complexities that confront judges when they have to unravel and locate the different sources for a sentence.

What hope, then, is there for a lay person? Apparently very little, we are told, as it can be “practically impossible” for someone to locate and understand parts of the law. To illustrate the complexity of the current system, the commission gives two very good examples. At one point, it points to a maximum fine that can be unlimited but you have to read about it somewhere else. The second example is about the effect of commencement dates recorded separately from the provisions that they apply to, concealed in secondary legislation.

It is well evidenced that the case for change is overwhelming because of the frankly alarming number of wrongful sentences that are passed—the estimate is in the region of 36%—and the cost of delays and appeals. The complexity of the current layers of law comes at a high price. Beyond lengthy procedure and the public purse, there is a human aspect. The impact on those sentenced, on witnesses and, particularly, on victims and their ability to trust in our justice system is immense.

This can be described as a Bill of two parts. The clean sweep, as it has been called, is the more novel part. We appreciate the detailed work done on the possible human rights implications of the sweep and its retroactive remit, particularly on our rights under Article 7 of the ECHR. I welcome the exemptions that have been identified and included in Schedule 1. Clause 1 includes a regulation-making power to allow the Secretary of State to specify other provisions that the clean sweep will not apply to. It would be helpful if the Minister could outline today in what circumstances that power might be used. Is the intention for it to be a back-up in case any exemptions have been missed out of Schedule 1?

The clean sweep that we are legislating for is a one-off so there are key questions about how we intend to retain the benefits of the exercise and prevent layers of new law developing once again. Is it the Government’s intention that where amendments are made to the code, they will also be commenced so that they apply to everyone convicted after that date regardless of when their offence was committed?

Previously the Law Commission said that the best estimate of the financial benefit that the sentencing code would offer was savings of some £250 million over the next 10 years. What plans do the Government have to put any savings back into the justice system to fund desperately needed legal aid and improve overall access to justice?

With those comments, we very much welcome the Bill. We welcome the additions to it, particularly those that we asked for regarding the Armed Forces. We wish the Bill well on its journey through Parliament.

Probate: Delays

Lord Bassam of Brighton Excerpts

Wednesday 12th June 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, the term “profit” is not really appropriate in this context. As the noble Lord is well aware, any fees over and above cost in the court system are attributed to its other features so that, for example, victims of domestic violence can have their fees waived with regard to court applications. As regards the present state of the legislation, an approval Motion has not yet been laid in the other place.

[Lord Bassam of Brighton (Lab)]

My Lords, is it not the case that when the probate fees were brought before your Lordships’ House, part of the argument for increasing them by as much as 200% was that this money would be set aside to fund part of the MoJ’s primary service? Does the noble and learned Lord think that this represents good value for money given the delays now occurring in probate?

[Lord Keen of Elie]

My Lords, I have already explained the reasons for the delays in March of this year with regard to the processing of probate applications, which were not related to the fees or the proposed new fees in respect of probate. In so far as there is any cost plus fee being charged for probate, that cost would be attributed to other court services provided by this department.

Sentencing (Pre-consolidation Amendments) Bill [HL]

Lord Bassam of Brighton Excerpts

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

[Lord Bassam of Brighton (Lab)]

My Lords, it has been a pleasure to listen to the debate. I think that I am probably the only lay person to take part in it so I feel privileged to be among such fine legal minds. I am grateful to the Minister for his cogent and coherent introduction. Following the strictures of the noble and learned Lord, Lord Brown, I intend not to be original in anything I say, but I will make some points for the Official Opposition.

It is good to see parliamentary time being used effectively; that has felt like something of a rarity in recent months. With the dearth of legislation being pursued by this Government, as observed by the noble and learned Lord, Lord Hope, we recommend to the Minister that we would be happy to see more Law Commission Bills come through our House. That may be seen as one bonus of Brexit that we can all share and enjoy.

Our justice system currently faces extreme challenges. The decimation of legal aid has reduced access to justice for those who need it most. Courts are facing budget cuts and are haemorrhaging experienced staff. The Government have recently been pushed by voluntary organisations, campaigners and MPs to review the workings of the family courts, as they are failing survivors of domestic violence. In the face of all that and more, we still have to get sentencing right. I absolutely welcome the Bill in that regard. We believe it to be a good place to start.

As noble Lords have said, the Bill is a “pre-Bill” before the main show arrives in the form of a modern, streamlined sentencing code. As has been explained, the aim of the Bill is to repeal bits of the past sensibly and pave the way for the future, allowing the law to be easily accessed and, we hope, amended in one place. I wish to put on record our thanks to the Law Commission and all the other stakeholders that have contributed to the years of work, research and consultation that have brought the Bill before us and the consolidation Bill that will follow it. The noble Baroness, Lady Deech, testified to the reduced number of pages there will be in the code. That is very welcome because it will make the code much easier to understand.

The legislation has been strongly welcomed by the profession. In its briefing, the Bar Council referred to existing sentencing law as a “patchwork quilt” and urged the introduction of the sentencing code without further delay. That patchwork is derived from three statutes, including the Powers of Criminal Courts (Sentencing) Act 2000 and the Criminal Justice Act 2003. I think that I might have been responsible for one of those pieces of legislation as a Home Office Minister.

The commission estimates that there have been at least 14 major Acts covering sentencing in the past 30 years. I know that I took 19 Home Office Bills through in the two years I was exclusively a Minister in that department. I know that at least one of them repealed legislation that had created sentences only six months before. The point about delayering is well meant and well met.

After all that parliamentary work, making changes across primary and secondary legislation, the commission writes that the law on sentencing procedure is,

“extremely difficult to locate, interpret and apply, even for an experienced lawyer or judge”.

What hope, then, for a lay person like me? Apparently very little, we are told, as it can be “practically impossible” for someone to locate and understand parts of the law. That cannot be right.

To illustrate the complexity of the current system, the commission gives two very good examples. At one point, it points to a maximum fine that can be unlimited —you just have to read about it somewhere else. The second example is about the effect of commencement dates recorded separately from the provisions they apply to, concealed in secondary legislation. Noble Lords know only too well the joys of how opaque secondary legislation can be.

The case for change is overwhelming. Noble Lords have spoken about the frankly alarming number of wrongful sentences passed, and the cost of delays and appeals. The complexity of the current layers of law comes at a high price. Beyond lengthy procedure and the public purse, there is, as other noble Lords have said, a human aspect; I thought that the example from the noble and learned Lord, Lord Judge, was extremely good. The impact on those sentenced, on witnesses and, particularly, on victims and their ability to trust in our justice system is immense. I was drawn in particular to the example from the noble Lord, Lord Marks, of the, I think, 262 Court of Appeal cases sampled from 2012, 36% of which had had a wrongful penalty applied.

As has been said, this is a Bill of two parts. The clean sweep, as it has been called, is the more novel part. We appreciate the detailed work done on the possible human rights implications of the sweep and its retroactive remit, particularly on our rights under Article 7 of the ECHR. I welcome the exemptions that have been identified and included in Schedule 1. Clause 1 includes a regulation-making power to allow the Secretary of State to specify other provisions that the clean sweep will not apply to. It would be helpful if the Minister could outline in what circumstances that power might be used. Is the intention for it to be a back-up in case any exemptions have been missed out of Schedule 1?

The clean sweep we are legislating for is a one-off—a single spring clean as it were—so there are key questions about how we intend to retain the benefits of the exercise and prevent layers of new law once again building up to gather dust. Is it the Government’s intention that, where amendments are made to the code, they will also be commenced so that they apply to everyone convicted after that date, regardless of when their offence was committed, thus building in a kind of retroactivity as the norm in our sentencing?

The Bill’s second purpose concerns the more traditional pre-consolidation amendments. I express my thanks to the commission and the Ministry of Justice for the detailed examples they provided on the types of amendments included, and the reasoning and logic behind them. I noted that Clause 2 also includes a regulation-making power—this one limited to regulations that, in the Secretary of State’s opinion, “facilitate” or are,

“otherwise desirable in connection with”,

the consolidation of sentencing law. The Explanatory Notes say that once consolidation has happened, the power will no longer be able to be used. Can the Minister explain whether thought was given to sunsetting either of the regulation-making powers included in the Bill? The Explanatory Notes also say in paragraph 11 that once the sentencing code is commenced, the pre-consolidation Bill,

“will have served its purpose and will largely be repealed”.

Can the Minister outline which elements of the Bill they expect to repeal?

I will wind up with a handful more questions. I am sure the Minister will be delighted. In its background to the sentencing code, the Law Commission referred to the possibility of extending the code to the Armed Forces. Do the Government have any plans to make arrangements for the code to apply also to service jurisdiction? Crucially, when are we expecting the sentencing code Bill to be introduced? A number of your Lordships have said that it ought to be expedited, so can the Minister guarantee that there will be no delay between this Bill and its partner Bill. Finally, the Law Commission tells us that the best estimate of the financial benefit the sentencing code will offer is savings of some £250 million over the next 10 years, which other noble Lords have mentioned. I know that Ministers are always very reluctant to hypothecate where money ought to go, but we have talked about the shortages in funding to the justice system and we owe it to the justice system to ensure that it is well resourced. In addition, we should have some good practice in passing legislation, not least because of the impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and its adverse effect on justice in our country. Can the Minister tell noble Lords what plans the Government have to put any savings back into the system to fund desperately needed legal aid and improve overall access to justice? Having said that, we, too, very much support this Law Commission Bill.

Civil Liability Bill [HL]

Lord Bassam of Brighton Excerpts

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

It is right that people who are injured get compensation, but they need to be able to do that with proper advice. We do not accept that reducing access to our courts should be done in this underhand way by this change in limits. This amendment will bring the issue into primary legislation, where it belongs. I beg to move.

[Lord Bassam of Brighton (Lab)]

My Lords, I rise to support my noble friend Lady Hayter and specifically to speak to Amendments 47 and 48. It is worth saying that we are trying to bring forward and implement part of the Jackson recommendations.

My noble friend Lady Hayter has covered most of the ground better than I could ever dream of doing in making her powerful and persuasive case from the Front Bench. If we could, we would have brought forward a different amendment and found a simpler way of inserting into the Bill a restriction to the Government’s ability to raise the small claims limit for personal injury to £1,500. This amendment, imperfect though it is, goes some way towards tackling that problem. It is our contention that, by raising the limit in the way they have, the Government intend to seriously disadvantage those with an entirely legitimate personal injury small claim and prevent them gaining access to justice and legal advice.

I have no doubt that most of us privileged enough to sit in this House, or in the other place, have little fear of taking on those in authority and power—some of us rather enjoy it. That is not the case if you are a nurse or a teacher, a farm or shop worker, or you work in a factory and have limited spare time, financial resources and ability to tackle issues of personal injury. This amendment seeks to protect those people. As has been said on numerous occasions, the Government are proposing to make changes to the small claims limit, not on the face of the Bill but by other, back-door means. This will impact on hundreds of thousands of people injured through no fault of their own. It will pitch the nurse, the teacher, the shop worker, the factory worker and the land worker against the insurer, on their own and in their own time. The insurers will be able to afford lawyers and wily negotiators, but the injured will be expected to take on these forces with no help whatever.

The Minister, who I am sure is a fair man, may say that the system that deals with this is simple, but it is not designed by those who have to confront it. We all know that there are many who cannot use portals and online means of tackling these issues because they do not have the training or expertise and feel uncomfortable in the online world. The Minister may say that insurers will not fight a case which they know they are going to lose but that does not stop them playing hardball because they choose to. Why would they not, faced with a claimant on their own? Insurers also have a duty to their clients. I trust that the Minister will not say—as he did before the Justice Committee—that claimants can get help from the CAB, because anyone who knows anything about the diminished state of free legal advice services in this country would be only too happy to take him to see how they are struggling and the queues, delays and frustration that are routine.

From this perch, I could recite case after case where insurers have fought injury claims to the bitter end for reasons that frankly perplex lawyers for the claimants. However, we have limited time so I will briefly quote just two of many cases provided to me by Thompsons. One claim involved a care assistant in her early 40s who injured her right elbow and upper arm when lifting a patient. She was using the correct technique but did not have the equipment required to complete the task properly. The employer denied liability throughout and fought the case for more than a year before it was eventually settled for a sum that would have fallen within the new proposed small claims limits. The other case, which would also fall within the new limits, involved a senior staff nurse who tripped over wires that had not been properly protected and covered. Her employers fought the claim right up to the point when the trial was due to begin. Our amendments seek to ensure that those who do not have a corporate lawyer behind them do not fall prey to another racket—the routine denial of claims by insurers, just because they can.

The amendment seeks to ensure that claimants always have advice on the value of their claim so that they do not undersettle. It also provides that, where insurers deny liability, the claimant has someone by their side to advise them and, if necessary, represent them in relation to the issue of liability. It does not propose that the costs recoverable by the lawyer for the claimant are open ended; they will be the same fixed costs that would be recoverable if this case were in the fast track.

As my noble friend Lady Hayter has outlined, the second amendment in this group is specifically aimed at ensuring that those injured can have access to medical advice in their case and recover the cost of medical reports that might be necessary. That is essential and will be a contribution towards ensuring that there is no significant undersettling, which is a major issue in these cases. These amendments are about fairness and equity in the legal process. They may not seem to the Minister to be vast in their extent, but they are numerous. Although they do not always involve large sums of money—which noble Lords may feel uncomfortable talking about—this House has a duty to try to ensure fairness and balance in the legal system. Even at this late stage, the Minister could make a commitment to retaining the limit in accordance with Lord Jackson’s recommendation.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I will not begin with a bang but I will address the points that have been raised.

I begin by pointing out, with great respect, that the noble Baroness, Lady Hayter, may not be entirely correct in some of the propositions she advanced. She said that the £1,000 limit had been with us since 1999. It has been with us since 1991. The small claims limit in respect of claims other than personal injury and housing claims is now £10,000 and operates effectively and efficiently at that level. That has to be borne in mind as well.

The noble Baroness spoke with her consumer hat on and referred to the small guy. Reference was made to the worker with limited ability to deal with his claim. The noble Lord, Lord Bassam, referred to workers being pitched out on their own with no help and alluded to a number of examples given by Thompsons solicitors—I shall come back to that in a moment—of where they were perplexed by the way in which claims were dealt with by insurers. The noble Lord, Lord Monks, said rather modestly that Thompsons solicitors were one of the largest firms of trade union solicitors in the country. They must be the largest by quite a long way. They are well established and have been for many years. Why do we refer to them as trade union solicitors in this context? It is because one of the great benefits of union membership for workers is the availability to them of legal advice and assistance when they require it in respect of a claim, particularly one arising in the course of their employment—which is why legal aid is not available in those circumstances. So, far from the little guy, the worker, being pitched out on their own without any help, they almost invariably have the assistance of probably the largest and most established firm of trade union and personal injury solicitors in the country.

I do not decry that—it is an immediate and obvious benefit—but the disbenefit of increasing the small claims limit is that the extent to which the union will recover its legal costs will be more limited, and that will have an impact on trade unions. I understand that and one has to take it into account in the overall scheme of these provisions.

[Lord Bassam of Brighton]

The noble and learned Lord will probably accept that somewhere in the region of 6 million people are members of trade unions. That leaves a rather larger workforce who are not represented by trade unions. Those employees are in a more vulnerable position than that faced by those who are represented by a union. My guess is—perhaps the noble and learned Lord can help me here—that the majority of people will not be able to access the support they would get if they were a trade union member. So most people who come up against this limit will be affected by that.

[Lord Keen of Elie]

I note what the noble Lord says about national trade union membership, and no doubt the unions will try harder to recruit more widely. One of the obvious benefits they can hold out is the provision of legal advice and assistance for those who become members. I accept that there is a balance to be struck.

Amendments 47 and 48 seek to restrict the increase in the small claims track limit for whiplash injury claims to a maximum of £1,500, as opposed to the proposal that there should be an increase to £5,000. They also seek to restrict the ability of the Civil Procedure Rule Committee to make further amendments to the upper limit. As we have indicated before, motor insurance premium costs are increasing as insurers pass on the cost of dealing with the continuing high number and cost of whiplash claims. I referred earlier to the 2017 election manifesto provision that the Government were committed to cracking down on these claims and ensuring that the money saved was returned to consumers through lower premiums. These amendments would maintain the burden on ordinary motorists by restricting the flexibility of the Government to reduce the costs of civil litigation through changes to the Civil Procedure Rules.

Whiplash claims are generally straightforward and do not routinely require legal advice. The small claims track is suitable for such claims. It is designed to be accessible to litigants in person, and the Government are working closely with stakeholders to develop a comprehensive package of guidance and support for users.

The Government have chosen to increase the small claims limit for road traffic accident personal injury claims to £5,000 for good reason. This limit, as I said, has been set at £1,000 since 1991 and, as compensation levels have risen, the small claims track no longer covers the same breadth of claims as it once did. Following consultation, the Government believe that increasing the limit for RTA personal injury claims to £5,000 is a careful and proportionate increase, particularly having regard to the fact that the limit for other claims, with the exceptions I mentioned earlier, is now £10,000. A level of £5,000 will facilitate early and expedited settlement under the proposed tariff structure and will encourage insurers to challenge unmeritorious claims, many of which are not now challenged because of the potential legal costs.

A decision to tie such limits—currently, for good reasons, enshrined in secondary legislation—to a restrictive primary legislative process would be inflexible. The Civil Procedure Rule Committee, under the leadership of the Master of the Rolls, sets out the rules of procedure to ensure that the civil justice system is fair, open and effective. It is the body that sets the financial upper limits for the current three tracks of the civil justice system following consultation. That system has operated effectively for some time. It is flexible and it is appropriate that procedural changes should be made in this way to the civil justice system.

However, we listened to points made earlier about the position of those who are considered to be vulnerable road users. Noble Lords will be aware that they are already excluded from the provisions of Clause 1, and it is proposed that they may be exempted also from the £5,000 limit on the small claims track. We are giving further consideration to that at the present time.

Amendment 48 seeks assurances as to the recoverability of the cost of a medical report in respect of whiplash injury claims, notwithstanding the increase in the small claims track limit. That has been addressed already. The amendment also seeks to change the nature of the small claims track itself by permitting a claimant to recover their legal expenses. We consider that, given the nature of the small claims track for personal injury claims, it would be wholly inappropriate to introduce the recovery of legal expenses. The small claims track was designed to be a low-cost process accessible to litigants in person. The rules have been purposefully and carefully drafted to ensure that both parties share the financial burden of litigation and pay their own legal costs—or, in the case of a union member, have them met by the union. That is a key advantage of the process.

A number of noble Lords have questioned why insurers do not do more to challenge potentially inflated or fraudulent claims, particularly whiplash claims. Part of that answer lies in the cost of defending a claim in the fast track. Increasing the small claims limit so that more of these straightforward whiplash claims—where the insurance industry tells us that liability is admitted in around 90% of cases—are heard in a small claims court will encourage insurers to challenge unmeritorious claims. By contrast, challenging a claim in the fast track is an expensive process that insurers not unnaturally seek to avoid. So there are very clear cost advantages overall in increasing the limits for the small claims track. Where a case is considered to be of a degree of complexity such that it would not lend itself to the small claims track, clearly the court can direct that it should go on to the fast track.

Therefore, in respect of Amendment 48 in particular, the idea of having different cost rules in the small claims court based on the type of claim would create confusion, would undermine the whole purpose of the small claims track and would potentially be unfair to all users of the court system. In these circumstances I invite the noble Baroness, Lady Hayter, and the noble Lord, Lord Bassam, not to press their amendments.

Civil Liability Bill [HL]

Lord Bassam of Brighton Excerpts

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

Driving “within the course of employment” is a well-recognised legal term. It has been the subject of case law. For instance, if you have left home to go to work in your work car, are you driving in the course of employment? It is a well-defined, well-established category that could provide a limitation in the Bill and ensure that genuine claimants who are driving in the course of their employment would not be caught by the provisions. I hope that the Minister will provide evidence of fraud when people have claimed whiplash injuries while driving in the course of employment. Without that, the policy reason stated by the Government for introducing the Bill does not exist. We will have missed the target and hit a whole bunch of genuine claimants.

[Lord Bassam of Brighton (Lab)]

My Lords, I rise with some trepidation to enter into a debate that is so well populated by lawyers and people who know a lot better about these things than I. Perhaps I should declare a sort of interest or make an admission that while I am not a lawyer, I live with one—and her advice to me the other day was not to get into this debate. I have set that on one side for what I hope is a good reason.

I shall speak to Amendment 27A on the supplementary list. It pursues the same point that the noble Baroness, Lady Berridge, explored. I too am worried about what the Bill—a welcome, reforming Bill in many respects—will also capture and that it will put off, deny and deprive access to proper compensation to those who, in the course of their employment, drive for a living. I am thinking of public service workers, ambulance drivers, firefighters, police officers and those in the distribution sector. I am worried that the Government have it wrong and that the legislation will capture people they do not want to. I cannot see, and we have not yet seen, evidence that there is widespread fraud. I am also concerned that in cases involving people who drive as a product of seeking their living and who are injured in the course of their work, perhaps by someone else’s negligence or when they have been working for a supplier contractor, they end up being undercompensated.

Like the noble Baroness, Lady Berridge, I should like to probe the Minister’s intent. Can he assure us that such claims will not be affected in the way in which they potentially are? We are both seeking assurances, some evidence and a hope that damages suffered by those in the course of their work will continue to be assessed in the usual way. That is only fair, right and proper. I am sure that the Government would not want to unwittingly—perhaps inadvertently—damage such people’s interests. While a claim culture exists, stimulated by an industry that is very driven, we do not want to harm those who are rightly seeking compensation for an injury that they have suffered.

[Lord Monks (Lab)]

My Lords, I follow for a moment the line that previous speakers have addressed. I understand that the Scottish position is different from that proposed in the Bill and that people injured in the course of their employment are treated differently from others. It would be interesting if the Minister, with his extensive knowledge of the Scottish position, could outline what the different reasoning might be. I am not asking him to speak for the Scottish Government, but I am sure he understands how Scottish practice has developed in a different way.

A number of us are concerned that this is a Bill for the insurance industry, tackling problems that it should have addressed itself. If insurance companies were paying out claims without properly investigating, if they were making money available just because it was too much trouble for them to assess the honesty of those making the claim, they have spawned the industry that we are now grappling with and trying to make sense of. The insurance industry should put its own house in order, not come crying to the Government too often to say, “You should do this for us with legal changes”.

I am conscious that we could have a problem with drivers who get injured and are covered by the road traffic laws being treated differently from a driver of a forklift truck, say, who has an accident in the factory or depot, and is not covered by road traffic law. There are inconsistencies here which, I understand, the Scots have addressed differently from the position under the Bill. The Minister shakes his head, and I stand to be corrected, but I should be interested in his observations on that point.

Civil Liability Bill [HL]

Lord Bassam of Brighton Excerpts

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

[Lord Beecham]

My Lords, this amendment and Amendment 29 set an alternative method for recommending a tariff, not via the Judicial College but via the Civil Justice Council, and it is suggested that this should be done on an annual basis. The Civil Justice Council is a body established by the Civil Procedure Act 1997, and it acts as an advisory body to the Lord Chancellor, who must then set out the recommended tariff under this amendment, in regulations. That is the substance of Amendment 12.

Amendment 29 makes the necessary changes to the Civil Procedure Act, which then empower the Civil Justice Council to include recommendations on the whiplash injuries damages tariff. In my submission, that is a better way of dealing with matters than either the Lord Chancellor doing it on a political basis or leaving it to the Judicial College. I understand the reservations about them. This is a better way of dealing with the situation, and I commend it to the House. I beg to move.

[Lord Bassam of Brighton (Lab)]

My Lords, I have Amendment 14 in this group. Much of this ground was covered in the earlier debate, and I anticipate the Minister’s response in that light. I take the point made by my noble friend Lord Beecham that we perhaps need to find another route on this issue, and in a sense that is what Amendment 14 does. It seeks to place a duty on the Lord Chancellor to consult the Lord Chief Justice and obtain the agreement of the Judicial College on the proposed amount for tariffs, before making regulations to set damages tariffs for whiplash.

The Delegated Powers and Regulatory Reform Committee of your Lordships’ House recommended that it is the judiciary, with its experience of personal injury claims, that should determine the provisions for damages or, failing that, the responsibility should be undertaken by independent medical experts. Noble Lords have referred to medical experts in earlier debates and recognise their value. I know that many would prefer the Government to abandon their plan to discard the use of the Judicial College guidelines for general damages claims, but there is value in the current guidance. This is a probing amendment, along with others, to find a way of enabling consultation and constraining the absolute power currently set out for the Lord Chancellor.

One of the worries that feeds this is that genuine cases may be dealt with in a way that leads to undercompensation. We do not know what the scale of the problem is, because the Government have not produced statistics on what they believe to be the level of genuine or, for that matter, fraudulent claiming. While that remains the case, we must surely protect those who have genuinely suffered and need to make a claim for good reasons.

It is worth reminding ourselves that the Bar Council recommended that the Lord Chancellor should be required to have regard to decided cases. That seems a reasonable approach. If the Lord Chancellor is required to consult the Lord Chief Justice before making regulations on the uplift in exceptional circumstances, what justification can there be for him not to consult the Lord Chief Justice on the tariff amounts generally? It may be that, with its experience, the Judicial College guidelines would be an appropriate starting point and basis for consultation.

We recognise the power of the Government’s argument generally to change and make reforms, but it is also important to recognise the value of the judiciary’s knowledge in this field and the importance of consulting it in setting tariffs. After all, it has the experience.

[Lord Faulks]

I just wanted to say one thing. First, I am not sure whether I have declared during Committee that I was a Minister in the Ministry of Justice when the subject of whiplash reform was frequently discussed, although the precise shape of that reform did not manifest in the same way that it does in this Bill. I made that clear at Second Reading, but would like to make it clear now.

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We need to know an awful lot more from the Minister about the progress in creating this portal before we can be satisfied that the tariff and the other sections of the Bill will achieve what the Bill wants. I am concerned about the prospect of unscrupulous insurance companies denying liability to get it out of the portal so that they are then dealing directly with claimants, as well as the issue raised in the amendments of suspending matters until we have seen what the small claims situation will be for personal injury claims.

[Lord Bassam of Brighton]

My Lords, I am much heartened by what the noble Baroness, Lady Berridge, said because my Amendment 30 tries to take us to the same range of issues. It states:

“When making regulations under section 2(2), the Lord Chancellor must take account of the PI small claims limit”.


The rest of the amendment addresses the whiplash issue.

Why is the amendment here? It is here because there is no other way in which we can address the personal injury limit. It seems to us to bring in an element of manifest unfairness. This piece of legislation will impact on small claims made by employees. By raising the threshold to £2,000 for those personal injury cases the Government are creating a particular difficulty. Claimants in the small claims court, because they cannot reclaim the cost of legal support, will have to represent themselves as litigants in person—and that brings a number of difficulties.

These cases can be very complicated, and they impact adversely on those who have suffered an accident at work, or the early onset of an industrial disease. USDAW has produced a very good briefing on this, citing a vast array of cases in which it represented members and which would be caught by this uplift. Vulnerable employees can be quite seriously injured. They are often unable to work for weeks or months and suffer considerable financial detriment and loss. With no legal assistance available to them, they will be opposing an employer—who will invariably be represented at court—without the expert advice that their injury and its implications merit.

I do not understand, therefore, why the Government are so keen on this £2,000 limit. It seems both unfair and lacking in rationale. The Government have not set out any reasons for including employee injuries in what was billed as a reform of whiplash claims—which, as we have said, we have no argument with. There is no suggestion anywhere that there have been fraudulent claims by injured employees. Claimants in this process will be vulnerable. There should be, as the noble Baroness, Lady Berridge, said, an equality of arms. That principle, which is fairly fundamental to the way our system of justice works, is undermined by this change, and the uplift to £2,000, when employers will be able to rely on full legal advice and support.

Cases are complex, injuries can be significant and victims can suffer considerable financial loss. Furthermore—an important point—the increase is far in excess of inflation. In 2009 Lord Justice Jackson suggested that there should be no increase to £1,500 until inflation justified it. Well, the figure of £2,000, to which the Government are wedded, cannot be justified on an inflationary basis: in terms of Lord Justice Jackson’s proposals, no increase is currently justified.

Small claims courts are not suitable for personal injury claims. We invite the Government to seriously reconsider the way they have set about this. We have already heard that cyclists will be swept up in the whiplash issue. Whether or not the Government seriously thought that they would be involving quite badly injured claimants by raising the limit to £2,000, that would be the effect of the proposed change. I have tried to find a way to bring an amendment to the Bill that would capture this issue, but have not so far succeeded. That worries me, because the Government seem to have found a way around a problem to the benefit of employers. I hope that that is not the case.

The Minister has a gap between Committee and Report, and I hope that he will meet me and others—particularly those who represent trade union members and are involved day in and day out with small claims personal injury issues—to benefit from our experience and knowledge of this field. I hope that he will then reconsider what is a very unfortunate policy, and one that will not be welcome in the workplace.

There are two other points here that are of value to consider. There will be an increase in the undersettlement of claims as a product of this; and I suspect that there will also be an increase in the number of claimants with highly unrealistic expectations of the value of their claim, thus removing the possibility of early settlement and placing increased pressure on the courts system. I hope that the Minister has some reassurance for us on this, because it is a very serious issue. It undermines some of the other, perhaps gentler, words that the Government have used in trying to understand the problems and complexities that people confront in the workplace, which was one of the Government’s earlier ambitions. That is the purpose behind our Amendment 30 and I hope that the Committee will see the strength of the case that has been put.

[Baroness Primarolo]

When the Minister considers in the round the comments made by other noble Lords, will he undertake to go away and look specifically at the way in which Scotland has approached this important question of asymmetry in the process? Will he look at whether there is a way of incorporating or dealing with claims in a similar way, without clearly undermining what he has identified as the Government’s policy principles in simply reducing tariffs?

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As for the reference to the pre-action protocol and the portal, we are developing a portal for the small claims limit, because the existing portal is designed for insurers and lawyers to access; we fully acknowledge that. Work is already under way on a portal accessible to litigants in person where the small claims limit applies. If there is such a portal, it will be appropriate to look at the development of a pre-action protocol for personal injury claims as well. Again, that will be covered as we go forward. We are looking into it, and consulting with various interested parties and groups so as to develop fully both the pre-action protocol and the portal.

[Lord Bassam of Brighton]

Can the Minister assure me that there will be consultation with the trades unions? Given the case he is making, it is important that that should take place. Their experience here is highly relevant.

[Lord Keen of Elie]

Trades unions’ experience is, essentially, filtered through claimant solicitors such as Thompsons, and those being consulted include representatives of both claimant and defendant groups—so that is being done. However, I would be perfectly happy to meet the noble Lord, and such representative groups as he may wish to bring to a meeting, to discuss the proposed increase in the limits on small claims. If he wishes to do that, I shall be perfectly content for him to contact my private office, and we can make suitable arrangements. At this time, however, I invite noble Lords not to press their amendments.

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[Lord Keen of Elie]

My Lords—

[Lord Bassam of Brighton]

There are other amendments in this group, are there not?

[Lord Keen of Elie]

There are indeed, and that was why I wondered at the noble Lord’s reticence. If the noble Lord wishes to speak to them, I am not the person to stand between him and the remainder of the Committee.

[Lord Bassam of Brighton]

I am extraordinarily grateful to the noble and learned Lord for his prompt rising, as it were, from a sedentary position. My Amendment 42A is in this group. On the Bill as a whole, in Clause 4 the Government seem to recognise the problem of what are called “pre-med offers”, yet fail to ensure that they are sufficiently discouraged. We are in the same territory here but perhaps not seeking to approach it in the same way. My understanding is that such offers are made to people sometimes at a point of vulnerability following injury and sometimes, it has to be said, in the most cynical of circumstances—when sick pay runs out and after putting in a denial, which, although clearly weak, sometimes worries people.

Lawyers for claimants have a professional duty to put an offer to their client. There are many circumstances in which desperate people ignore the advice to reject that comes with that offer and accept what is offered, however inappropriate the sum is to the injuries that they have suffered. Pre-med offers are not made to be fair or reasonable. The offers are often made by defending insurers to get rid of a case cheaply, and I quite accept that the Government are right to seek to prohibit them. The consequence of acceptance in the absence of a medical report is that if the injured person later develops conditions arising from the accident, they will of course fall back on the NHS to support them. They will have no compensation to get treatment and the cost will fall more widely on society and the taxpayer. Meanwhile, the insurer for the guilty party who caused the injury will have walked away having saved money.

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[Lord Keen of Elie]

I am obliged to noble Lords. The amendments from the noble Lord, Lord Beecham, would place the requirements for medical reports to be provided by an accredited medical expert selected via the MedCo portal or other experts specified by the Lord Chancellor in regulations. Currently, the Civil Procedure Rules require any initial medical report in support of a whiplash claim to be sought through the MedCo IT portal, which is established and proves, as the noble Lord indicated, the independence and quality of these medical reports. The Civil Procedure Rules also require that all MedCo medical reports must be provided by an accredited medical expert. I am therefore uncertain what additional benefit the amendments would add to that process, because we already have in place the requirement that it should be a MedCo report that is obtained.

Indeed, the amendments could have a negative impact on the success of MedCo as, on one view, it would widen the pool of medical experts to any person with medical qualifications rather than someone who has been accredited specifically for these types of report by MedCo. I may have misunderstood Amendment 41, but that appears to be what its result would be, although that may be unintended. I emphasise that we consider that the creation of MedCo, as adjusted recently, has been a success and will continue to be so. We require that parties should have to go through the MedCo portal for an appropriate independent expert report before these claims are settled.

So I ask the noble Lord to reconsider the terms of the amendment because we do not feel that it adds anything to the Bill. I believe we have a common intention here and it may be that I have misunderstood what lies behind Amendment 41, but at present we believe the present structure of MedCo reports and the portal is appropriate as it stands, and at this stage we would not be prepared to contemplate the amendments that have been moved. If the noble Lord wishes to discuss this matter further with me, I will be content to do so because it may be that I have somehow misunderstood the intent of Amendment 41 in that regard.

I turn to the point raised by the noble Lord, Lord Bassam. We looked at the whole question of how it would be most appropriate to deal with claims that were settled without a MedCo report. That would place the insurer or relevant party settling the claim in breach of their own regulatory requirements, and appropriate steps would be taken. In due course, as we know under the financial regulation Bill that is currently going through, that would be the FCA in respect of claims management companies.

I draw attention to Clause 5(6), which states:

“A breach of section 4 does not make an agreement to settle the whiplash claim in question void or unenforceable”.


We adopted that approach to ensure that the claimant should not suffer at all in circumstances where the person making the settlement did so without the report. In other words, the claimant would be entitled to retain all sums paid in those circumstances. If we make the agreement void, the sector would potentially seek recovery of the sums passed in respect of a void transaction. I appreciate that the noble Lord seeks to qualify that, but it raises complex issues over contract liability. We believe that we have taken the correct approach by ensuring that the person making the settlement, who is a regulated party, will be in breach of their regulatory regime if they do so without a MedCo report, while equally ensuring that the claimant should not suffer because of that misfeasance, and should be able to retain the settlement sum.

We do not believe that there is a major issue in this context with regard to those who are persuaded to settle early but, if that is an issue, it is more widely encountered across personal injury claims as a whole, and we do not see any basis for taking an exceptional route in regard to whiplash injury claims. I hope that that reassures the noble Lord that there is a mechanism to protect the claimant and enforce the requirements of Clause 4 against those who are settling claims.

[Lord Bassam of Brighton]

I am grateful to the noble and learned Lord for his attempt at reassurance. I will reflect on his words, but I may come back with something on Report because I want to ensure that we have that protection there.

[Lord Keen of Elie]

I quite understand the noble Lord’s concern, and I would be willing to consider any further amendment that he puts forward on this in due course. At this stage, I invite the noble Lord to withdraw the amendment.

Probation: Voluntary Sector

Lord Bassam of Brighton Excerpts

Tuesday 24th April 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, with respect to this reference to crisis, I remind the noble Lord of what the chief inspector said in her report:

“We found that the quality of services was variable, but reasonable overall”.


We aim to improve that. We do not intend to sit down at present with particular parties, but we are addressing the recommendations in the chief inspector’s report, which is the proper way forward.

[Lord Bassam of Brighton (Lab)]

My Lords, perhaps the Minister can tell us what the current recidivism rate is.

[Lord Keen of Elie]

I am not in a position to answer such a general proposition but I will undertake to check the relevant statistics in that area and to write to the noble Lord in due course. I will of course place a copy of the letter in the Library.

European Union (Withdrawal) Bill

Lord Bassam of Brighton Excerpts

Wednesday 21st March 2018 Lords Chamber

[Lord Cashman (Lab)]

My Lords, I shall speak to Amendments 245A and 242A, and I assure your Lordships that you will get no Latin from me—maybe some Cockney rhyming slang, but certainly no Latin. I have added my name to these two amendments, which were so eloquently and powerfully moved and spoken to by the noble Lord, Lord Low of Dalston, and powerfully supported by the noble and learned Lord, Lord Wallace of Tankerness.

Noble Lords will be aware that I spoke at Second Reading on the issue of rights and protections, and have returned to the same during Committee in your Lordships’ House. I make no excuse or apology for repeating what are grave concerns about the continuation of rights and equalities that we currently enjoy in the United Kingdom. As I have said before—it bears repetition—these rights have been hard fought for and, often, hard fought against. That they exist now is due to the hard work, persistence and sacrifices of generations.

These rights have been achieved through either recourse to law, proceeding through the courts to the European Court of Human Rights in Strasbourg or through the Court of Justice of the European Union, or by legislative changes primarily introduced since the election of the Labour Government in 1997. As I have said, there is deep concern that this Bill, and particularly delegated powers contained within it, will ultimately be used to reduce rights and equalities in the United Kingdom—including in Northern Ireland, where consequent problems for the Good Friday agreement will arise. I will not return to the issue of the charter of fundamental rights today but I will on other occasions.

Amendments 242A and 245A seek to bring security of protection and non-regression by ensuring that delegated powers are not used to diminish protections in the Equality Acts of 2006 and 2010. But I and other noble Lords, and people and organisations outside Parliament, also have concerns about other equality and human rights laws. The certification approach adopted in Amendment 245A could be extended to cover such rights, by requiring a Minister to certify that secondary legislation under the Bill does not diminish protection in equality and human rights law generally.

On Wednesday 7 March, we again discussed amendments that would restrict the use of delegated powers from making any changes to equalities and human rights legislation. The Minister, the noble Lord, Lord Callanan, raised an objection to the amendments that we were discussing on the basis that delegated powers would be needed to make technical changes to our laws to reflect exit from the European Union. He went on to state that the Government could not accept the amendments,

“as the legislation that underpins these rights and protections will contain many provisions that will become deficient after our exit”.—[Official Report, 7/3/18; col. 1168.]

In his reply, the Minister offered examples where the Equality Act refers in several places to EU or community law, as the noble and learned Lord, Lord Wallace of Tankerness, said, and that such references needed to be replaced with the term “retained EU law”. I will not detain the House further by extending the quotation, but I point out that Amendment 245A addresses this concern because it does not prevent a Minister making necessary technical changes to reflect our exit from the European Union, as these technical changes would not diminish existing protections.

In the same debate, the Minister referred to the government amendment tabled in the other place, now paragraph 22 of Schedule 7, saying that it will,

“secure transparency in this area by requiring ministerial statements to be made about amendments made to the Equality Acts under each piece of secondary legislation under key powers in the Bill. These statements will … flag up any amendment to the Equality Acts and secondary legislation made under those Acts, while also ensuring that Ministers confirm that, in developing their draft legislation, they have had due regard to the need to eliminate discrimination and other conduct prohibited under the 2010 Act”.—[Official Report, 7/3/18; cols. 1167.]

This statement does not answer the concern addressed by Amendment 245A: that the Government’s approach in the Bill does not fulfil their commitment to maintaining our current protections. It merely restates the existing statutory duty to have “due regard”.

In debate, the Minister has reiterated clear commitments that there will be no roll back of rights. Therefore, I say to the Government and to the noble and learned Lord the Minister: put the commitments, and the assurances given in this House and in the other place, in the Bill and end the uncertainty that is so widely shared. I ask your Lordships that, when we return again on Report to the issue of the protection of equality and human rights, as we will, we work together to ensure that the departure from the European Union does not signal the beginning of a departure from the rights and protections that we currently enjoy and which are continuously under threat.

[Lord Bassam of Brighton (Lab)]

My Lords, I will speak to Amendment 246 in this group—entre nous, I support the amendments from the noble Lord, Lord Low; they are rather good, and I can well understand why colleagues have added their voices in support. My amendment picks up a slightly different point. It emanates from the excellent report from the Constitution Committee, which in its summary, at paragraph 33, recommended that the Government bring forward statements accompanying regulations which modify retained EU law so that they provide an explanation of the intention of the modification to guide the courts.

One of the endearing frustrations of this House, and no doubt the other place, is that we can have very little purchase on statutory instruments. Rightly, I think, they are unamendable, but clearly there has to be a way of improving the understanding of what a statutory instrument does. This legislation is riddled with Henry VIII powers and powers that I think go well beyond what a Minister should properly have access to in making, effectively, law by decree. That is the central concern of a lot of the recommendations in the Constitution Committee’s report. We are asking here for the Minister to ensure that, when a statutory instrument is brought forward, it has to satisfy a test of appropriateness under the relevant sections, state an intention of any proposed modification from the retained EU law that is carried over and provide guidance to courts to assist with interpretation.

Reflecting on some of the more recent debates on statutory instruments in your Lordships’ House—for instance, last night’s debate on free school meals—I wonder whether it would be helpful to your Lordships if we had a better understanding and explanation of those statutory instruments. The thing that always comes across to me when I listen to debates on SIs is this: there is very poor background information. The statistical data that is supposedly there to underpin the argument is often missing, the impact assessments have not been done, and we do not really understand the real effect of what is before us. In my book, that means that there is a lot of scope for the Government to get away with things. I do not think that is right or a product of good lawmaking.

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[Lord Newby (LD)]

It is a pleasure to follow the noble Lord, Lord Liddle, and others who have spoken. Normally, when something is about consequential and transitional provisions, your eyes glaze over, because what you are talking about is the sort of sweepings from the floor, in the legislative sense. But this is the most extraordinarily broad provision. It basically says that a Minister of the Crown can, by regulations, change virtually any provision in any Act.

As the noble Lord, Lord Liddle, pointed out, and as we have discussed, the effect of our membership of the EU has been like the tide rising across the legislative framework. It has gone into virtually every part of our legislative life. This provision, untrammelled as it is with any qualification at all, enables Ministers to amend by secondary legislation a whole swathe of legislation that is not directly covered by the earlier clauses of the Bill. No doubt the drafters of the Bill thought that this was a sort of belt and braces provision, because it covers everything else that might not have been covered by earlier clauses. However, as other noble Lords have said, it is surely far too broad.

The key definitional question is what the word “consequential” means. On a broad interpretation of it, any legislation that is consequential on our membership of the EU is covered by this provision, which is surely far wider than anybody in your Lordships’ House would wish to see. I hope that the noble Lord will be able to reassure us that, first, that was not the Government’s intention and, secondly, that they are willing to accept the recommendations of the two committees of your Lordships’ House. As this stands, of virtually all the provisions in the Bill, this is the one that gives Ministers the broadest unfettered powers to change primary legislation by secondary legislation and it clearly is not the will of the House that that should be allowable.

[Lord Bassam of Brighton]

I was sort of reassured by some of the Minister’s words when we were dealing with the last group. I had the feeling that at last we have found a Minister on the Front Bench who is actually listening to what noble Lords are saying about some of the delegated powers provisions in the legislation. I hope that he can offer us some reassurance, but I share the concerns of the noble Lords, Lord Newby, Lord Pannick and Lord Lisvane, and my noble friend Lord Liddle.

Ministers are seeking to take an astonishingly wide power. If we start to apply it practically to some of the legislation being carried over from EU to UK law and think of some of the fundamental rights that that involves, and if Ministers then have the sweeping ability to bring forward anything that they think is relevant to change one of those provisions, we are getting into the territory of a statutory instrument that goes far beyond its original intention. The Constitution Committee was absolutely right to raise concerns about this and we need rather more than reassurance this morning on it. I rather share the view of the noble Lord, Lord Cormack: this is one clause that is probably fit to be withdrawn. I think that that would satisfy your Lordships’ House. We obviously have to listen to what the Minister has to say, but this is pretty profound, as I think he and the Government know. I hope that this is a try-on that we have seen off.

[Lord Wigley (PC)]

My Lords, I had not intended to intervene in this debate—the devolution aspects will come later today—but if one looks at paragraph 17 of Schedule 7, on page 51, and the interplay that it has with Clause 17, on page 14, I read it that the powers exercisable by the Welsh or Scottish Ministers under Schedule 7 are subject to the orders that they can make but that, if they do not make them, they can be over- ruled by the provisions of Clause 17—paragraph 17 on page 51 gives a Minister the right to do that. Am I interpreting this rightly?

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[Lord Bassam of Brighton]

May I ask the Minister a further point? I am trying to help him. He seems to be suggesting that this provision is a mere tidying up facility that is available to a Minister as a consequence of this Bill. I understand that point, but will he describe the sort of tidying up that he envisages this power being used for? I think that is what acts as a driver of our concerns. I can understand if it is a practical measure to do with something that is clearly a defect, but I want some reassurance, which perhaps should be placed in the legislation. I want to understand what the provision will be used for and its consequences.

[Lord Keen of Elie]

I am obliged to the noble Lord for his assistance, which is always welcome. I do not agree with the point made by the noble and learned Lord, Lord Goldsmith, regarding the breadth of the provision. This is a standard type of power contained in many Acts of Parliament to deal with consequential issues, such as those alluded to by the noble Lord, Lord Bassam. A very similar power can be found in the Scotland Act 1998, in the Northern Ireland Act 1998, in the Government of Wales Act 1998, and in the Legal Aid, Sentencing and Punishment of Offenders Act 2012—LASPO. All these statutory provisions have a similar consequential power for the same purpose, so this is not unique, exceptional or unusual.

However, I understand concerns being expressed about the scope of the power and the way it will be used. I notice the reference by the noble Lord, Lord Lisvane, to the use of the term “appropriate”, which some, of course, often consider to be inappropriate in a statutory context. I hear what is said about making clear that this is a consequential power that will be needed to repeal provisions.

The noble Lord, Lord Bassam, asked for examples. If we look at the various statutory provisions for accession of other countries to the EU—the Croatian accession is the most recent—which amend the ECA, it is necessary to address that sort of primary legislation. If we look at the provisions of the European Union (Approvals) Act 2017—

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Moved by

[Lord Bassam of Brighton]

255: Clause 17, page 14, line 15, at end insert—
“( ) But the power in subsection (1) does not allow a Minister of the Crown to determine whether particular pieces of EU retained law should be designated as primary or secondary legislation.”

[Lord Bassam of Brighton]

My Lords, this amendment and Amendment 364 follow the previous debate in the sense that they question powers that Ministers seek to take in the Bill which we in the Committee want to quiz and question and understand better. My concern is a simple one. Why do Ministers feel that they should have the right, and seek to have the right, to determine whether a piece of retained EU law should be designated as either, on the one hand, primary legislation or, on the other, secondary legislation?

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[Lord Keen of Elie]

My Lords, as has been noted, this is in a sense a continuation of a lengthy debate we had in Committee in response to, I think, Amendment 33, tabled by the noble Lord, Lord Pannick. I will not repeat all that was said from the Dispatch Box in the context of that debate but I hope the noble Lord, Lord Bassam, will not think that, because I am taking this amendment relatively briefly, I am taking it relatively lightly. Indications were given at the time of that earlier debate as to our consideration of this matter.

EU law is of course comprised of many things, including domestic primary and secondary legislation, converted EU regulations, decisions and EU legislative and non-legislative provisions. Due to the breadth of retained EU law, it is therefore unique in its nature. That is why the Government deliberately chose to tread carefully and not simply to assign this new category of law, retained EU law, to a single category of domestic legislation. Treating all retained EU law as primary legislation may be possible but such a broad approach will inevitably raise unforeseen and uncertain consequences—the very thing we want to avoid. If one looks at an EU provision that deals with the content of a particular chemical and those contents are to change, are we to address that only by way of primary legislation? I suspect that if that were the case, we would be sitting much later than we have in the last few days of this Committee.

Again, treating it all as secondary legislation may also pose considerable difficulties because of the interaction between retained EU law and other domestic legislation which is in the form of primary legislation. This is not a straightforward exercise, which is why it was thought fit to identify certain areas where it should be treated as primary—for example, in the context of human rights—and other areas where Ministers would be allowed the opportunity to consider how best to deal with the issue, albeit as cases arise.

I notice that there is a concern about how the matter is to be approached but it is not one that identifies a universally approved approach. I noted what my noble and learned friend Lord Mackay said about the treatment of retained EU law in the context of a qualification with regard to what is brought into domestic law by way of Clause 2, for example, and what the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said about Professor Paul Craig’s solution, which we discussed previously in Committee in reference to Amendment 33.

We have taken that on board and we believe that at present, the position we have adopted is the correct one for achieving maximum legal certainty after exit day and for ensuring the most appropriate outcome across the domestic statute book. Equally, we recognise the need to look at alternatives in the context of, for example, Professor Paul Craig’s proposals, and perhaps to look at it in a different context altogether: that of outcomes rather than, in the first instance, identification of whether it is primary or secondary. That is what we indicated we would do when this matter came up for debate before in Committee, and what we are doing. In that context, I hope the noble Lord will see fit to withdraw his amendment at this time.

[Lord Bassam of Brighton]

My Lords, I am intrigued by the Minister’s reply. I guess I shall have to look back at the debate on Amendment 33, which he referenced earlier, but I am far from satisfied on this point. While I have been sitting here, I have been thinking of an example of what Ministers can actually do with pieces of primary and secondary legislation, and one comes to mind.

Towards the end of our time in government, an amendment was passed in this House very much against my better judgment; I was rather horrified by it. It basically had the effect of enabling the Secretary of State to bring forward an order to give effect to the particular amendment. I went back to the department and said, “Look, this is terrible. We lost this vote in the House yesterday and it means that you will have to do something that we really do not want to do and that would be quite wrong”. The Secretary of State very simply said to me, “Don’t worry about it: I simply won’t bring forward the order”. That is a powerful position to be in if you are Secretary of State. The order was never forthcoming. I am sure there are many examples of a similar nature that will be adopted by Secretaries of State, not just now but in the future.

That makes me think that we may be giving a Secretary of State—a Minister—far too much by enabling them to decide what is and is not secondary and primary legislation. I do not know whether that was in the mind of the Constitution Committee when it particularly picked this out, but it was right to be alive to that concern. I was grateful for the support for the amendment from the noble and learned Lord, Lord Mackay of Clashfern, because he is long experienced in these matters. He has a very wary and thoughtful eye on legislation and what it is.

I accept that we are in somewhat exceptional circumstances in that we are dealing with EU retained law, but the Minister will have got the message that we are very concerned and the concern is rather broad. In the end, what we put in primary legislation makes a difference and has the effect of changing people’s lives. Giving too much power to Ministers to determine what they can sneak in through secondary legislation, where we can do far less about it and do far less to improve its quality, is a proper constitutional concern that this House might express. For the moment, I beg leave to withdraw my amendment.

Amendment 255 withdrawn.

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[Lord Mackay of Clashfern]

My Lords, I have not spoken on this subject but today I am moved to do so: first, because I had the honour of serving in government with my noble friend Lord Patten of Barnes before he was a Member of this House; and, secondly, because I held the responsibility for most of the justice arrangements in Northern Ireland for about 10 years in the middle of the Troubles. Therefore, I am extremely conscious of the difficulties of Northern Ireland and of the immense privilege of it having had a great degree of peace since the Belfast agreement and since John Major initiated the first talks, which was quite difficult to do, during my term of office.

I am convinced that the only real solution for the Northern Irish and Irish border is in some form of treaty to deal with customs matters and with trade. At the moment, we have a law under the jurisdiction of the European Union for these two matters. The Government have said, and I understand this, that we are leaving both arrangements. But it is possible to make similar arrangements under a treaty: we would not be part of the EU but part of a treaty arrangement with the EU, which would reflect that. I believe something of that kind is absolutely essential. The Belfast agreement did a terrific amount for the peace of Northern Ireland and long may it continue.

[Lord Bassam of Brighton]

My Lords, I have a few words to add to what has been a hugely interesting and entertaining debate, led off by the eloquent and entertaining noble Lord, Lord Patten of Barnes, who speaks with great knowledge and experience on this, as do many others. My amendment was stimulated by anger at those former Ministers who decided that it was worth the price of Brexit to suggest that we should rethink the Belfast agreement, which has brought so much peace, tranquillity and good order to governance in Ireland, and the north of Ireland in particular.

Amendment 316 seeks simply to ensure that, when this Bill passes, there should be some further thought because I do not think that much thought has yet been given. This is one of those debates that happen simply because of the unintended consequences of Brexit, and not enough was thought of by the Brexiteers in the run-up to the leave vote on 23 June 2016. That is why that amendment is there, although the one proposed by the noble Lord, Lord Patten, is far superior, because it takes us to the principles that are fundamental and lie behind it.

I can see that both Front Benches want to get on, so I shall speak only briefly to my amendment, but it is right that we have these things at the forefront of our minds. Perhaps when we come back at Report, we will have something there enabling us to focus on this and give it further thought, as well as enabling the Minister to say something better than what has been said before—that instead of the Bill being merely about transposing one set of legislative rules into a new set, we recognise what has happened before and the impact of the Belfast agreement on the future governance of our country post-Brexit.

[Baroness Smith of Basildon (Lab)]

My Lords, as my noble friend Lord Bassam said, this has been an immensely interesting debate. I know that other noble Lords have referred to this as the second debate that we have had on Northern Ireland, but all the amendments in this group reflect the concerns that we have had, the degree of concern around the issue and the fact that we have not really had the answers to satisfy those concerns yet. The impact of Brexit on the Good Friday or Belfast agreement is profound. I understand that the Minister has a weariness about saying the same things as last time, but I hope that he will understand, from comments that I shall make now and that other noble Lords have made, why there is a need to return to these issues.

My noble friend Lord Bassam sums up in his amendment—which is entirely reasonable, and I hope that the Minister can accept it—that this is about the Government assessing the impact and publishing that. I go back to the speech made by the noble Lord, Lord Patten of Barnes, and his amendment, to which I have added my name. He referred to the radio programme “Just a Minute”, and I think that that is quite apt: this issue deserves “repetition”, and the Government should show “hesitation” and reflect, and perhaps come back with some “deviation”, moving from their current position and giving us some answers as to how the issue can be addressed.

There has been some journey from the Government to clarify the status of the December joint report on the progress of phase 1. Where the Government stand on regulatory alignment has been almost like a political hokey-cokey, and the current position, which is a backstop for what could happen, is probably fair. But the impact of a hard border in Northern Ireland would be profound and deep and have implications for the peace process. It is not just about the physical border—it is also about the psychological impact that it would have, and I think all noble Lords who have spoken today have understood that. The noble Lord, Lord Patten, referred to the security implications, as I did last week, of what would physically happen if there were a hard border and how those border points would be guarded.

Look at the logic of the issue of trade and the hard border. The Government accept that there should be regulatory alignment between the Republic of Ireland and Northern Ireland. However, if you move on from that, the Republic of Ireland obviously has regulatory alignment with the EU, and Northern Ireland has regulatory alignment with the rest of Great Britain, so, surely, that means that there has to be regulatory alignment throughout the whole of that area, which to my mind sounds something like a customs union. I really do not understand why the Government have set their face against this and made it one of their red lines.

European Union (Withdrawal) Bill

Lord Bassam of Brighton Excerpts

Committee: 8th sitting (Hansard - continued): House of Lords
Monday 19th March 2018 Lords Chamber

[Lord Duncan of Springbank]

I thank the noble Lord for his question. I am again reminded of the importance of the United Kingdom’s academic sector and the academic excellence which it creates, not just in the wider area of science but specifically in medical science. I am aware of how important that innovation is and believe that, right now, it should be able to speak for itself in the negotiations and discussions in terms of the wider recognition and import of what they represent.

I am conscious that, as we embrace the challenges which lie ahead—

[Lord Bassam of Brighton (Lab)]

Will the Minister answer the point made by my noble friend Lord Hunt? It sounds to me that he is unable to do so. If that is the case, he should tell the House so. It is clear to me that he has not answered the question, which is highly pertinent and relevant to the direction of the debate.

[Lord Duncan of Springbank]

I am sorry if I have misled noble Lords. I am unable to answer the question. That will be a matter for the negotiations and I cannot comment upon them. This is the point made earlier by the noble Lord, Lord Deben. I wish I could, but I cannot. I am sorry if my response misled the noble Lord as well. Determining exactly how that mutual recognition will work in practice will be a matter for the ongoing negotiations. I hope that it will work on both sides in a common-sense way which recognises that, at the heart, we are talking about the health and well-being of individuals. We are not talking about constitutional matters or anything other than ensuring the best health for the people of the continent of Europe that we can achieve.

European Union (Withdrawal) Bill

Lord Bassam of Brighton Excerpts

Committee: 5th sitting (Hansard): House of Lords
Wednesday 7th March 2018 Lords Chamber

Moved by

[Lord Bassam of Brighton]

51: Clause 6, page 3, line 33, at end insert “subject to any agreement under subsection (6C)”

[Lord Bassam of Brighton (Lab)]

My Lords, I rather hope that the modest amendments in my name do not take the House two hours to deliberate over. They focus on a narrow set of issues relating to pending cases.

Amendment 62 would allow our domestic courts, subject to the terms of the withdrawal or transitional agreement, to refer cases to the CJEU after exit day if the course of action arose before exit day. Amendment 61 would require the Government to obtain from the CJEU and then publish a list of pending cases referred to domestic courts before exit day. Amendment 64 changes the definition of retained EU case law to include case law relating to pending cases referred to the CJEU before exit day.

These amendments were drawn from the Constitution Committee’s excellent report on the Bill and essentially aim to deal with two issues: first, pending cases in domestic courts that might have been referred to the CJEU and, secondly, pending cases already lodged with the CJEU before exit day. In the first instance I am really asking for the Government’s assurance that, in any withdrawal or transition agreement, they will seek to clarify whether domestic courts can continue to make reference to the CJEU in relation to cases that began before exit day. I can see that there has to be a cut-off point for references but it is the timing of that point which concerns me. What criteria will Ministers apply and how will these be written into the agreement in such a way as to guarantee, and not undermine, procedural fairness and access to justice?

It may seem that this is a small or insignificant matter but, given the wide range of issues that the court considers, I think not. After all, it looks at everything from trademarks to intellectual property rights, workplace rights and even the distribution of EU funds. Given that cases started before the Prime Minister triggered Article 50 are likely to be treated differently from those which followed it, it is surely important that principles of fairness and consistency enter into any agreement which the Government can sign.

The second type of pending cases, dealt with in Amendment 64, will be those that are already with the CJEU. In another place, the Solicitor-General argued that these cases would simply continue. That is fine as far as it goes but, as the Constitution Committee pointed out, the Government intend to provide for these pending cases to be covered in the withdrawal agreement and implementation Bill. But what happens to those cases if there is no deal? Would it not make sense to have a saving provision in the Bill saying simply that any case that is with the CJEU is determined to be treated as contributing to pre-exit case law, and in turn forms part of retained EU case law?

The Constitution Committee’s proposal that the Government should produce a list of cases on exit day that would be treated in this way made very good sense. To my way of thinking, that is a logical way of handling quite a complex set of legal issues, which are obviously well beyond my sort of competence as a non-lawyer. However, I hope that the Minister can satisfy my curiosity and set out how the Government intend to proceed. I also hope that he can satisfy the Constitution Committee, which I thought had a rather neat solution to the problem. Pending cases are of great value and will be of great interest to colleagues. I am hopeful that the Government can satisfy my simple concerns and provide us with an explanation that works. I fear that we will otherwise end up with something of a case law muddle. I beg to move.

[Lord Goldsmith (Lab)]

My noble friend is absolutely right that this is not a small or insignificant matter. It is an important one with rule-of-law implications. The starting point, as he explained, is his proposed Amendment 62 which, if agreed, would add a new paragraph (6C), the purpose of which would be to encourage the negotiation of an agreement that cases can continue to be referred to the CJEU by our own courts after exit day. That would relate to new cases where the cause of action arose prior to exit day. This is logical because the important point is about whether the full remedies currently available to litigants, potential litigants and, importantly, our courts remain until we leave, while the law of the EU remains in place.

Of course, being able to refer such cases depends on an agreement, the very agreement that my noble friend’s amendment would make it an objective to negotiate. We will not be able to refer cases to the court in Luxembourg after exit day, except by agreement with the EU in such an agreement. But he is also right that there is a risk—although we hope very much that it will not happen—that if we end up without a withdrawal agreement, there would need to be legislation enabling this to continue to take place. So the principle of the amendments seems entirely right, and he is right to say that this was dealt with by the Constitution Committee at paragraphs 150 and 153 of its excellent report.

Perhaps I may refer to what the committee said in paragraph 153, having made the point that my noble friend has identified:

“We recommend that, irrespective of any implementation bill, pending cases are dealt with in the European Union (Withdrawal) Bill. We further recommend that rulings on cases that have been referred to the CJEU before exit day are treated as pre-exit case law—such that they form part of ‘retained EU case law’—and that the Government publishes, on exit day, a list of all such cases”.


The middle part of that, on what the significance is of,

“rulings on cases that have been referred … before exit day”,

is dealt with in a later amendment. But, as he has said, the requirement that the Government should publish a list of all such cases is dealt with in these amendments. He is right to say that the Solicitor-General in another place referred to the importance of knowing, at least as I read his remarks, what those cases are.

It seems that there has to be a justification, although I can see none, for depriving litigants and our courts of the ability to refer cases to the CJEU. It is important that noble Lords are clear on the fact that that does not mean sending cases to the CJEU for it to decide; it is for that court to determine questions of interpretation, as the treaty currently provides, although the interpretation given may in fact then decide the case. Our own courts would then take the interpretation provided by the European court and apply it to the case before them.

I look forward to hearing what the noble Baroness or the noble and learned Lord, depending on who will respond to the debate—forgive me, of course it is the noble Baroness the Minister—will say to my noble friend.

--- Later in debate ---

[Baroness Goldie]

I thank the noble and learned Lord for his point, but I am afraid my response is going to be slightly less encouraging for him. The position of the Government is that we do not agree that new cases should be initiated post exit, even when these refer to pre-exit causes of action, because it would lead to an uncertain environment. It would be impossible to predict for how long the European Court of Justice would continue to issue judgments in respect of the UK. That, in the opinion of the Government, would strike at the underlying purpose of this Bill, which is to try to achieve a snapshot—to use that phrase again—as at the date of exit.

[Lord Bassam of Brighton]

I am grateful to the Minister for her response. She partly satisfied my concern, but not wholly. I do not really think it is satisfactory that the cases that will be floating around in the ether will be left with the degree of uncertainty that she has suggested may be the case. The fact that the legislation that is going to cover this point will be left until the final Bill—the transition and withdrawal Bill or whatever it is finally called—does not satisfy me greatly. I think that will leave uncertainty for litigants in cases that could be incredibly complicated. I am rather worried that this issue is going to get caught up in the Government’s general dislike for the CJEU. My recollection is that this is one of Theresa May’s red lines: she does not like the CJEU and therefore part of taking back control is getting rid of it. We have got news for the Minister dealing with this: it is going to take the UK some time to extract itself from CJEU processes. The quicker the Government wake up to that fact, the easier it will be for us all to deal with it. In becoming more realistic in their approach to the court, the Government will give some greater certainty as to how we intend to proceed in future.

While I am happy to withdraw my amendment for the moment, I may come back to this at a later stage, because our legal system and litigants require greater certainty. This is not necessarily the small issue I dreamed it might be when I came across it in the Constitution Committee’s excellent report. I am grateful for the debate we have had, but I am not so grateful for the answer. We will probably require a bit more from the Minister at a later stage. I beg leave to withdraw my amendment.

Amendment 51 withdrawn.