Criminal Jurors

Lord Faulks Excerpts

Wednesday 6th March 2024 Lords Chamber

[Lord Bellamy (Con)]

My Lords, in financial crime, the ultimate question is, normally, whether the defendants have acted honestly or not. Experience suggests—and my own experience suggests—that jurors are perfectly capable of determining whether someone has acted honestly or not, despite the financial complexity of some of these trials.

[Lord Faulks (Non-Afl)]

My Lords, we are all extremely grateful for the task that jurors perform extremely conscientiously, but there is a very significant backlog in the Crown Courts at the moment of people awaiting trial by jury. Have the Government considered the possibility of allowing a defendant to elect to be tried either by a judge—or by a judge and two magistrates—if he or she wants to do so? Further to what the noble Lord, Lord Watts, asked, is it not the case that, as long ago as about 50 years ago, Lord Roskill recommended the possibility of trial by judge alone in difficult and complex financial cases? Is that a matter that the Government are thinking about further?

[Lord Bellamy (Con)]

To the last part of that question, as I have just said, the Government are extremely reluctant to qualify in any way the right of all citizens to be tried by a peer group of 12 good and true, whatever their background or walk of life, so the answer to the Roskill suggestion is no. As to the possibility of the option of being tried by a jury, a judge alone or a judge and two assessors, for example, that is not in contemplation by this Government for the same reason.

Arbitration Bill [HL]

Lord Faulks Excerpts

Second reading committee
Tuesday 19th December 2023 Grand Committee

[Lord Faulks (Non-Afl)]

My Lords, I too welcome the Bill and agree with what noble Lords have said about it. The Library Note on the Bill suggests that the arbitration industry centred on London could be worth at least £2.5 billion to the UK economy each year, although that is described as possibly an underestimate.

There have always been some areas of doubt about certain aspects of the law in relation to arbitration and the Bill is a welcome clarification of many of them. I did not wholly anticipate the problems that the noble and learned Lord, Lord Hope, identified in Clause 1 —it seemed on the face of it to be the answer to what was a somewhat uncertain position as to the law—and I am sure the Minister will consider carefully what he said.

That change and others have been generally welcomed, not least by the Chartered Institute of Arbitrators. I declare an interest as a fellow of the institute, although I have to say that my services have not been called upon very often. I should also declare that the Independent Press Standards Organisation, which I chair, provides for arbitration—extremely cheaply—for those who have complaints against regulated newspapers and their online manifestations. Unfortunately, lawyers for the parties seem to prefer litigation to arbitration.

There is one area that the Law Commission considered but decided not to include in the draft Bill. This was a matter raised not just by the one very assiduous consultee referred to by the noble and learned Lord, Lord Hope; it was in relation to the secrecy or confidentiality of arbitration. Confidentiality has long been a hallmark of the arbitration process and a significant attraction to users. The rule is not absolute. The contours of those circumstances where one party or another loses confidentiality or secrecy have been developed by the courts. I understand that the reason for omitting any provisions about this may have been that it is regarded as preferable to leave the law to the courts rather than try to capture in legislation in what circumstances there should be a departure from the general principle. It is, of course, always open to those entering into an arbitration agreement to be specific about these matters.

The case law acknowledges that the courts have an important role in ensuring standards of fairness in arbitrations. The 1996 Act, particularly Sections 67 to 69, provides the basis on which a party can challenge an arbitration award in the courts. However, there is an inherent tension between the principle that justice should be both done and seen to be done and the privacy and confidentiality that go with arbitration.

My attention has been drawn to a case reported a few months ago before Mr Justice Robin Knowles, the Federal Republic of Nigeria v P&ID. In a lengthy and comprehensive judgment, Mr Justice Knowles found that P&ID had practised

“the most severe abuses of the arbitral process”.

The judge said in his decision that it

“touches the reputation of arbitration as a dispute resolution process”.

He asked himself whether, on the facts, there was an irregularity within Section 68 of the 1996 Act and found that, notwithstanding the high bar that has to be surmounted to prove a serious irregularity, it had been proved. He found that documents had been obtained by fraud and in breach of professional obligations, that deliberate lies had been told to the panel and that there had been wholly inadequate disclosure. In his view, it was important that Section 68 was available to “maintain the rule of law”.

The case involved huge sums of money that the arbitration panel decided were owed by Nigeria to a shell company in relation to a gas pipeline. After carefully examining the facts and concluding as he did, the judge said:

“I hope the facts and circumstances of this case may provoke debate and reflection among the arbitration community, and also among state users of arbitration, and among other courts with responsibility to supervise or oversee arbitration. The facts and circumstances of this case, which are remarkable but very real, provide an opportunity to consider whether the arbitration process, which is of outstanding importance and value in the world, needs further attention where the value involved is so large and where a state is involved”.


In discussing the principle of confidentiality, the judge said:

“The privacy of arbitration meant that there was no public or press scrutiny of what was going on and what was not being done. When courts are concerned it is often said that the ‘open court principle’ helps keep judges up to the mark. But it also allows scrutiny of the process as a whole, and what the lawyers and other professionals are doing, and (where a state is involved) what the state is doing to address a dispute on behalf of its people. An open process allows the chance for the public and press to call out what is not right”.


The judgment was unusual and should cause the arbitration community to reflect on the risks inevitably involved in the confidentiality of arbitration proceedings. I do not have any amendments to suggest for the Bill, but I respectfully seek a response from the Minister on the serious questions this judgment raises about the appropriateness of arbitration, in particular its confidentiality, when the facts are similar to those of that case. Are the Government satisfied that there is no need for further provision and the matter can be left to individual judges, or has this case caused any change of heart such that they will legislate specifically to avoid a repetition? I do not necessarily expect a response now, except in general terms, but I ask for a more substantial response in writing.

I do not suggest that there is anything inherently unsuitable in encouraging arbitration, for the reasons we have heard, but I wonder whether there are sufficient safeguards to prevent the abuse of the process so starkly illustrated by this case. That said, I welcome the Bill.

European Court of Human Rights: Rule 39

Lord Faulks Excerpts

Tuesday 6th June 2023 Lords Chamber

[Lord Bellamy (Con)]

My Lords, on the first aspect, if I may speak on behalf of the United Kingdom and all Governments, the Government have a commendable record on interim measures. I fully agree that you cannot judge the underlying legal and practical questions by just one case. On the issue of the Bill of Rights Bill, I think the focus should now be on Clause 53 of the Illegal Migration Bill, which I am sure we will discuss in great detail in Committee.

[Lord Faulks (Non-Afl)]

My Lords, it is most important that we maintain a good relationship with the European Court of Human Rights. The context of this Question follows the decision of the judges in this jurisdiction about the flights to Rwanda. An anonymous judge then gave a ruling that, on the face of it, was not entirely compliant with natural justice. However, is it not right to say that the Home Secretary entirely accepted that ruling? There was no question of ignoring it. The Government have proceeded by trying to improve the process in a way that is more satisfactory and complies with most people’s notions of how interim relief ought to be obtained.

[Lord Bellamy (Con)]

My Lords, I respectfully agree with the comments of the noble Lord, Lord Faulks.

National Security Bill

Lord Faulks Excerpts

Committee stage
Wednesday 18th January 2023 Lords Chamber

[Lord Hacking (Lab)]

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

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

[Lord Faulks (Non-Afl)]

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

Clause 83(5) provides that:

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


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

[Lord Coaker (Lab)]

My Lords, I thank the noble Lords who have spoken. I very much appreciated the introduction by the noble Lord, Lord Marks. It was very carefully explained and helpful to the Committee. The only thing that I will disappoint him with is that, having heard his Latin pronunciation, I have decided that mine is not as good and so will leave it out.

Some of my remarks will be more general but none the less will ask the Government for justification—with respect to the clause stand-part debates rather than the individual amendments. The noble Lord, Lord Faulks, is absolutely right to ask what the court should take into consideration when determining what the level of damages should be, if it is to reduce them, even down to nil. The Minister in the other place talked about care costs. That is my point. It would be interesting to know what the Government’s thinking is. My remarks are mostly not as specific as those of the noble Lords, Lord Marks and Lord Pannick, but raise some of the more general points that the Government need to justify these clauses and to clarify why we must agree them in their current form. I am very grateful to my noble friend Lord Hacking, whose stake in the ground gives me hope for the future and makes me realise that I am not alone when I stand here. I appreciate his support.

Amendment 105A, moved very ably by the noble Lord, Lord Marks, raised a number of important concerns around the provision—or reduction in provision—of damages in national security cases, including, as the amendment probes, whether a public body could avoid accountability by categorising proceedings as national security. As I said, I want to address the clause stand parts but also Schedule 15, to get some clarity around the Government’s thinking.

Before anybody reading this in Hansard categorises it in a way that it should not be categorised, I make it clear that none of us in this Committee or indeed in this Parliament wishes to see damages used to finance terrorism or in any way to allow individuals or groups to benefit from them. That is the motivation behind Clause 83 and one that none of us could disagree with. However, it is important to consider how we do that. As the noble Lord, Lord Pannick, said, it is particularly important for us to do this because many people read our proceedings and so it is important that they understand the debate. The Explanatory Notes point out in stark terms, and more clearly than the Bill does, that:

“Clause 83(1) provides that the duty applies where the liability of the Crown has been established”.


The JCHR report uses even more strident language. It says this applies where the Crown, Government or state—whichever you want to call it—has been proven in court to have “acted unlawfully”. We are talking about a situation in which damages are reduced in cases where the guilt of the Crown has been proven. That is no doubt why many of us will tread carefully in this area: the state has been proven guilty and we are passing legislation that would enable the Government to further reduce damages. This is difficult territory but, with respect to terrorism and damages, it is none the less territory that we need to go to. It is true that certain human rights cases are excluded—those brought under Section 7(1)(a) of the Human Rights Act 1998—but other cases are not. As I have said, even where the court has established that the state is in the wrong and the state has been found guilty of wrongdoing with respect to an individual, and the clause applies, the state can seek to reduce those damages.

How can the Government reassure the Committee that this clause cannot be used to allow the state to avoid accountability? As I have said, of course public money should not be used to fund terrorism via the damages awarded but, as the noble Lord, Lord Marks, pointed out, the clauses seem to be drawn so broadly that potentially deserving victims may be excluded. How will the Government avoid that and ensure that the limitation of damages applies only to those who have committed wrongdoing involving terrorism, which I understand to be the point and purpose of the amendment of the noble Lord, Lord Marks, and the amendments of others?

We do not wish to see innocent bystanders caught up in a terrible situation to be excluded, but the current drafting of these clauses at the very least implies that, if there is any evidence related to any unspecified national security or intelligence services issue, the damages could be reduced or taken away completely. The Law Commission points out that this could lead to the state introducing national security evidence to avoid paying damages under the provisions of the Bill laid out in Clause 82(2)(a). Can the Minister detail for the Committee why these provisions are necessary? What additional powers do they make available to a court? Can a court not already take into account whether a claimant is deserving or not and whether there are concerns about the potential misuse of any such moneys or damages awarded to them? A point raised in the other place is that this must not be a slippery slope. Could the requirement to reduce damages from terrorism, because of our obvious horror, ever be extended to other areas where we are also horrified—for example, paedophile cases?

I have other points and questions for the Minister on Schedule 15 and other clauses in this group. Are these provisions based on experience from some existing cases, where the Government think this has happened and needs to be stopped, or are they being introduced in anticipation of it happening in the future? If they are not based on existing cases, what are the limitations of the existing legislation, on which the Government have evidence that they can present to the Committee to show why we need this new legislation?

In the other place, for example, the Government were asked what the problem is with existing legislation related to the financing of terrorism. We already have legislation that deals with reducing or removing damages that are used to finance terrorism. I think the noble Lord, Lord Pannick, also made that point, unless I misunderstood.

The freezing orders under Schedule 15 are possible for two years and can be renewed for a further period, before leading to potential forfeiture. Can the Minister explain what the term “real risk” means, for example in paragraph 1(4) of Schedule 15? If it is a standard of proof, as real risk is in the future, how will the court determine it? Will the court require actual proof to allow freezing orders to be made, or will it make a subjective judgment about something that may happen, the real risk that may occur, in the future?

--- Later in debate ---

[Lord Faulks (Non-Afl)]

Before the Minister answers, and so that he does not have to go over old ground, I will intervene. In the Government’s case, the judges will have a new power that is needed because the existing defences of ex turpi and volenti are not adequate. I think that is the case the Government are making, but I respectfully submit that a judge needs a bit of help as to how he or she is to approach this case. When judges are given discretionary powers—for example, under the Limitation Act—they are given a long list of things to take into account or something that makes their job easier. I am putting myself in the position of a hypothetical judge looking at this clause, knowing that it apparently adds something to the existing common law and asking myself how I would approach this. I wonder whether there might be reflection and a judge will be given more guidance as to how he or she should approach this very difficult and delicate task.

[Lord Bellamy (Con)]

My Lords, perhaps I can take this point under advisement, because it is not yet spelled out in the statute and I am reluctant—on the hoof, as it were—to put words into the mouths of judges who would go about it in due course. One can imagine that one would draw inspiration from certain aspects of the existing law, but that is to go further than the statute already provides, so perhaps the Government can consider this point further.

I return to the broad thrust of the Bill and come to the stand part notices. I have tried to explain the importance of the message. Western Union is perhaps a slightly outdated way of conveying a message these days, but there are times when primary legislation is important to clarify the legal position, and this is one of those cases.

Before I pick up the specific points that have been made, in relation to the freezing and the forfeiture, the essential point is that these provisions bite at the moment the freezing order was made. You do not have to go to Horseferry Road Magistrates’ Court or Highbury Corner to get an order. It bites straightaway and is done by the same court that was dealing with the damages in the first place. It is more efficient to deal with the same court. Although there are other powers, as noble Lords rightly point out, in the Government’s view this is the right mechanism.

To come to the point made by the noble Lord, Lord Coaker, about why we do not just take the whole lot straight off, these exceptions for care costs and so forth, this is intended to be a measured structure. You start by simply freezing for the first two years, then you have another go at it after a second two years, then, finally, if after four years there is still “a real risk”—I will come to real risk in a moment—that is the moment when the forfeiture power kicks in. It is to give people time to persuade the court that there is no risk, as it were. That is thought to be a measured and proportionate approach to this problem.

The Bill provides that the freezing and forfeiture apply only in part to the damages if the court so orders, so that if, for example, medical expenses or care costs have to be met out of the damages, the court can provide for that. It does not have to take away the whole lot all at once. It can have regard to the needs of the claimant in that context.

That is the essential structure. It is to remove the risk of the money simply being spirited away at the press of a button, down a hole to an offshore haven before the courts can move to make sure that the money remains safe. Again, that is a power of the court, not of the Government or the security services. Therefore, in our view it does not lead to an undermining of the principle of access to justice or any other relevant right. To take another important point raised by your Lordships, it certainly does not take away the human rights damages. There are no circumstances in which it affects human rights damages in any event; that is a sort of entrenched position under the Human Rights Act. But that does not prevent a court taking into account circumstances in relation to other claims where the court considers that a reduction would be justified. Even in relation to human rights cases—I am sure plenty of people here will immediately put me right if I am wrong—the European Court of Human Rights reduces damages in certain circumstances when it does not think that the claimant is fully deserving of a particularly large award because of the conduct of the claimant in question.

That is the general outline and why we say that the whole structure is balanced but proportionate. It extends to involvement in terrorist-related offences. It is not limited to terrorist convictions because of the quite obvious difficulty, particularly in terms of parties that are abroad, in managing to apprehend them, bring them to this country, prosecute them and secure a conviction. Cases have been brought by persons abroad known by the security services to have been involved in terrorist activities but not subject to a conviction in this country. That is why we have to make this a little wider than people who have been convicted of terrorist offences.

For the reasons I gave in relation to the message, the provisions are not limited to circumstances in which one should confiscate the damages because of the risk of them being used in terrorist activities. One should reduce the damages because of the conduct of the claimant, which is a normal, civil law situation. I do not mean civil law in the sense of continental civil law, but it is the normal situation in the common law.

[Lord Bellamy (Con)]

My Lords, I feel that this is the first time that I have ever convinced the noble Lord, Lord Carlile, that he is wrong. The answer to the question is yes, the Government are entirely comfortable with the need to make explicit what to a large extent is implicit but rather undefined and diffuse in our legal system. This measure gives us a clear code in terrorism cases to provide a framework for the judge to consider what he should do about damages. I accept that the question of guidance for the judges is an open point, but let us reflect on that. The purpose is to provide a clear framework in terrorism cases.

[Lord Faulks (Non-Afl)]

With respect to him, the Minister is quite right: the application of ex turpi is very uncertain. There is a great deal of authority, and it is difficult to predict in particular cases whether they are going to rely on it. However, if there is going to be a statutory scheme then I return to my point: it needs to be a lot clearer so judges know how they are supposed to apply it.

[Lord Hope of Craighead (CB)]

I wonder if I may add a thought. One of the words that strike me in Clause 83(5) is “must”. If I were a judge at first instance, I would have to explain my decision, so I would have to say that I had applied my mind to the various factors. Having looked at the factors, I am still left in the dark as to what principle I should apply. I can look at them and understand them, but why should they affect the award? I do not think a list of factors is needed if the Government can explain the principle that should be applied. Is it that a kind of quasi-immunity should be given because of these various factors—some sort of overriding principle in favour of the Government’s security measures and so on that should be applied? I cannot devise that myself, but a list of A, B, C and D is not going to be helpful. We already have the factors there; it is the trigger, what the principle is that leads to the decision that the damages must be reduced, that is important. Otherwise, a first-instance court might say, “I’ve considered the factors and I can’t see any reason why the damages should be reduced”, and an appeals court will say, “Well, that’s perfectly right”, and we are left without any significant advance in this legislation. I hope I have made my position clear. I do not like lists of factors very much, but I like to have guidance as to principle.

Judicial Review and Courts Bill

Lord Faulks Excerpts

Report stage
Thursday 31st March 2022 Lords Chamber

[Lord Faulks (Non-Afl)]

My Lords, Clause 1 gives judges a new power. I suggest that this is a power which enables them to do justice better between the parties, and to avoid some of the hard edges which currently obtain. Remedies in judicial review have always been discretionary. Nothing about this clause changes that; it simply gives judges an extra club in their bag. It is notable that the clause is shot through with the word “may”.

The clause—the presumption apart—has survived scrutiny by the Bingham Centre for the Rule of Law on rule of law grounds. It has been welcomed by many judges. Despite what the noble Lord, Lord Marks, said, it is not obvious to me what the problem is with it. On re-reading some of the speeches at Committee, a lot of the opposition to the clause was on the basis that it gave the judges too much power. It is something of an irony that the rhetoric against the Government’s plans in respect to judicial review was that they were intending to clip judges’ wings in an executive power grab. Now the objection is that judges will have too much power and will make inroads into what has sometimes been described as the “metaphysics of nullity”.

I assure your Lordships that the Independent Review of Administrative Law was genuinely independent. I suppose that I might be regarded as having a political bias, but no such allegation could be made against my fellow panellists. It is unfortunate that the Labour Party oppose this clause in its entirety—this looks a little bit like political posturing. I very much hope that the House will not be divided on this.

The most compelling argument in favour of the clause can be found in the article published in the Times last week by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, which I hope that many of your Lordships have read. The noble and learned Lord is in his place today but, as I understand, he may not speak because he cannot be here throughout the entire debate and, with a great adherence to the customs and practices of your Lordships’ House, he will not necessarily intervene. His cri de cœur at the end of the article was to regret that the power which is given by this Bill in Clause 1 had not existed when he was sitting in the Supreme Court in HM Treasury v Ahmed. Indeed, it is unfortunate that it was not.

The objection to the presumption is, on the other hand, much more understandable. There seems to be two points: does it fetter the judge’s discretion and, if not, does the presumption add anything? I am not convinced that it will fetter the judge’s discretion. He or she will be able to grant the relevant remedy so as to do justice in the particular case. I do not expect a judge to come to a conclusion which he or she would not have reached because of the existence of this rather weak presumption. Putting myself in the position of the hypothetical judge, I would not be diverted. Our judges are made of much sterner stuff.

So why have the presumption in the clause at all? I have struggled a bit with this. The clause does give the judge more flexibility; perhaps the presumption is doing no more than reminding the judge of the new power. I was reminded slightly of the old television advertisements for washing powder. There is only so much you can say about the quality of washing powder once you have emphasised that it washes white, or whiter still, or whiter than other soap powders. Consequently, advertisers used to draw the viewers’ attention to “a new added ingredient”. That is perhaps what the presumption is there for. However, I think that Clause 1 will survive without it.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, as I have reminded your Lordships’ House before, I have no legal training and so I will use very simple language here.

I have a huge amount of respect for the noble Lord, Lord Wolfson, and I just cannot believe that he is going to convince the House that the Government are right on this because even from a simple point of view, which is what I am going to express, it seems an unjustified attack on the rule of law. Clause 1 is wrong in essence. The noble Lord, Lord Faulks, mentioned an extra club in the bag for judges. I immediately thought of one of the clubs that early humans would have carried around to kill wolves or whatever, but of course he meant a golf club. I can see that he might think an extra golf club is useful, but judges do not need it. Judicial reviews are already difficult, by design, to bring. There are very short timescales in which any claimant can initiate proceedings, and this will reduce the impact on certainty of decision-making. The Government want these hurdles to still be in place, making it hard to win a claim, but now even if you win there is almost no point in bothering.

Restricting judicial reviews in this way will undermine good government. It prevents justice for people who have been done wrong by public authorities, and it lets wrong decisions stand, even where those decisions were unlawful, irrational or procedurally unfair. Democracy goes only so far. Without being tied to the rule of law, we face the tyranny of the majority and an elected dictatorship, which, I argue, is what we have already. My noble friend and I will vote for all these amendments, as unlawful decisions must not be allowed to stand unchallenged.

--- Later in debate ---

Standing back from the detail and ignoring a substantial number of deputy High Court judges, the truth of the matter is that 140 to 150 days on Cart cases or, putting it a different way, 750 Cart cases, 99% of which are dealt with on the papers, represents a small proportion of judicial time on average per year for the full cohort of Queen’s Bench Division High Court judges. The middle course I propose is therefore just and proportionate. I beg to move.

[Lord Faulks (Non-Afl)]

My Lords, the IRAL came to the firm conclusion that Cart ought to go. It did so carefully considering the fact that Parliament should be slow before reversing decisions of the Supreme Court. It made the recommendation in relation to Cart and the case of Ahmed only, despite a number of other cases which were drawn to the panel’s attention as being possibly wrongly decided. As I pointed out in Committee, this was also the view of Lord Carnwath, who had specialist knowledge of the genesis of the Upper Tribunal. I believe it is the view of many, though of course not all, judges.

There are, as we have heard from the noble and learned Lord, a cohort of judges who have to consider what are almost always hopeless applications. They consider them very conscientiously. There may be an argument as to how much time precisely is spent and at what cost, but with very great respect, I am not sure that that is the point. The applicants have, in effect, already had three bites of the cherry. In the extremely unlikely event that a specialist tribunal has made an egregious error of law, I am sure the House will be aware of the fact that the qualified ouster clause contained in Clause 2 provides that, if there is a bad faith decision by the Upper Tribunal or one that is procedurally defective in a way as to amount to a fundamental breach of the principles of natural justice, there will still be an opportunity to challenge it. For the most part, there will not be.

Of course, I have enormous respect for the noble and learned Lord, Lord Etherton, and other noble Lords who support this amendment, but I respectfully submit that we need to grasp the nettle. The poor prospects of success have not deterred applicants from making Cart judicial review applications in the past. I accept that this amendment would further reduce the avenues of challenge, but it would not, I suspect, put anybody off. I am sorry to say that this amendment seems to be something of a fudge. It will frustrate the purpose of the Bill. I fear that, if passed, a Cart JR application will continue to be the most popular JR application. The IRAL found that, of all the possible avenues of judicial review, this is the most popular and that statistic has not been challenged. Perhaps that is not surprising. If you are seeking asylum, it is not surprising that you would seek out every avenue in the hope that you would somehow be successful the next time.

On Amendment 6 from the Labour Front Bench, the potential review which this amendment envisages seems almost impossible to provide—although, no doubt, hard-working civil servants diverted from many other tasks would do their best if this amendment were to become part of the Bill. An asylum application will of course usually involve arguments that include references to Articles 3 and 8 and possibly even the Equality Act. By definition, these arguments have been rejected at all stages of the process. What precisely is this report supposed to do? Is it supposed to conduct a quasi-appeal of all those decisions? How will the material be obtained to enable the report to be provided? With great respect, the House really needs to know how this work will help, before committing the Government to an expensive and possibly fruitless exercise.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I support the amendment in the name of the noble and learned Lord, Lord Etherton, to which the noble Lords, Lord Pannick and Lord Ponsonby of Shulbrede, and I have added our names. I suggest that the amendment is a sensible compromise between abolishing Cart JRs altogether and setting a defensible limit on the prospect of excessive satellite litigation by limiting appeals.

We see and acknowledge the risk posed by large numbers of unmeritorious challenges to decisions of the Upper Tribunal dismissing appeals from the First-tier Tribunal, but believe that risk has been exaggerated by the Government, in terms of both the time and judicial resources expended on Cart JRs, as the noble and learned Lord, Lord Etherton, has explained, and the low success rates, which are contended and relied upon by the Government. In particular, we doubt that the Government’s figures take into account the full overall impact of successful JRs on the judicial review climate as a whole, particularly in the area of immigration, to which Cart JRs generally apply.

The Minister is not alone in overestimating the time and judicial resource that would be saved by the abolition of Cart reviews. I say now what I should have said during the debate on the last group: I am very grateful to the Minister for the time he spent discussing with us the issues arising in this Bill, including on Cart reviews. However, in spite of those discussions, we agree with the noble and learned Lord, Lord Etherton, that any savings achieved by the abolition of Cart JRs are not worth tolerating the injustice that would be caused by their abolition. Every successful Cart application signals an injustice that would be done to a future applicant were this clause to be enacted.

As many of us said in Committee, this clause, unamended, would set an ugly precedent for ouster clauses in future legislation, building on the general purpose template in this clause, which is designed to insulate unlawful executive action from judicial review. I suggest that the amendment moved by the noble and learned Lord, Lord Etherton, elegantly avoids that pitfall and it is very important that we support it for that reason, as well as others.

The bar to launching a Cart review is and will remain high: the applicant for judicial review always has to surmount a difficult hurdle in securing permission to bring an application. That is as it should be, given the nature of the supervisory jurisdiction. Indeed, the conditions set out in the Cart case itself were restrictive and stringent, and they will not change. The provision outlined by the noble and learned Lord, whose amendment would allow for an appeal from a decision of the supervisory court directly to the Supreme Court only, in the most limited circumstances only and subject to very short time limits, is a sensible safeguard—and no more—to ensure that important points of law can be considered by the Supreme Court in appropriate cases. I suggest that the Government should not be concerned about that.

Amendment 6, to be spoken to by the noble Lord, Lord Ponsonby, seeks a review of the operation of the provisions in Clause 2, with particular reference to the consequences for persons with protected characteristics under the Equality Act 2010 and the enforcement of rights under the Human Rights Act 1998. We support it in principle, but of course we await hearing from both the noble Lord, Lord Ponsonby, and the Minister on this.

Covid-19 and the Courts (Constitution Committee Report)

Lord Faulks Excerpts

Wednesday 23rd March 2022 Grand Committee

[Lord Faulks (Non-Afl)]

My Lords, it is a privilege to follow the noble and learned Lord, Lord Hope, and our past, distinguished chair, the noble Baroness, Lady Taylor. I look forward to all contributions in this debate, including from our new chair, the noble Baroness, Lady Drake, who has followed so ably the noble Baroness, Lady Taylor, in her task.

I do not want to repeat what is in the report although, on re-reading it after a little time, I have to say that it seems to make some cogent points. It has been excellently summarised by the noble Baroness, Lady Taylor. The committee was absolutely right to consider that the effect of Covid on the courts was, and is, a constitutional issue. Why is this so? In civil cases, the ability to bring a case to court within a reasonable time is a critical part of a functioning legal system and thus of the rule of law. In jurisdictions where long delays are endemic, people avoid paying debts, often driving creditors into penury, and can by delays render justice an almost unattainable goal. In criminal law, delays are even more serious, if that is possible—for defendants, some of whom may be in custody, for witnesses and, generally, for the ability to have a fair trial.

Covid took, or seemed to take, the world very much by surprise. It is not, of course, over. Another variant—or even another virus altogether—should, I hope, find our courts system much better prepared. The Minister has already been asked a number of questions and, no doubt, in the rest of the debate will be asked many more. Of course, some are posed by the report itself. Although the problems with the criminal justice system long predate his appointment as a Minister, I know that he will answer questions in his usual careful and informative manner. Can he tell the Grand Committee what preparations have been made in the event of a further outbreak of some sort?

As the committee has pointed out and has been drawn to the attention of the Grand Committee, there was already a substantial backlog. I am sure that the Minister will tell us how the courts system is now coping. We were very critical of the backlog and the response to the pandemic, but I acknowledge, as have previous speakers, the considerable efforts that were made by HMCTS to adapt. What, though, is now the position? What is the average wait in a rape case between charge and trial, or in a fraud case?

The use, albeit limited, of Nightingale courts and remote jurors—even in cinemas, as we heard from the noble and learned Lord, Lord Hope—were all attempts to mitigate the backlog but there was no alteration to the fundamental right to trial by jury, a jury of 12 members. The infrastructure and cost of jury trials is considerable. The complications involved in having them in a pandemic cannot be overestimated. We welcomed the greater use of hearings online, which was happening pre the pandemic anyway. We also recommended piloting remote jury trials as having the potential to reduce the backlog.

We considered the question of altering the norm of having juries of 12. There was the possibility that they might be reduced to six or seven, or that defendants with legal representation should be allowed to choose a trial by judge or a panel of judges without a jury. A suggestion was made by the noble and learned Baroness, Lady Hale, of two lay people and a judge instead of a jury, while the noble and learned Lord, Lord Phillips, advocated judge-only trials in response to the pandemic, but only when chosen by the defendant in question. There was also the possibility, ventilated by the Lord Chief Justice, of a judge and two magistrates, which would be much easier to manage than any jury. Labour’s shadow Lord Chancellor suggested having perhaps juries of seven.

There has been precedent for using other than traditional jury trials: in the famous Diplock courts, of course, and during the Second World War. We cover all this at paragraphs 221 to 225 of our report. However, I must point out that, notwithstanding canvassing these options, the committee came to the conclusion that any change to the jury system should take place only after careful consideration by Parliament, with full parliamentary debate preceded by evidence.

Personally—I do not speak for the committee—I think the time has come to think carefully about the future of jury trials. Other countries with mature legal systems do not find them necessary. More than 90% of our criminal cases are, in fact, heard by district judges or trained magistrates assisted by a legally qualified clerk, but for the most serious offences we leave the matter to 12 randomly selected members of the public.

There has inevitably been very little research on what juries think about in how they approach cases, the exception being that of Professor Cheryl Thomas QC. I am happy to assume that the vast majority of jurors approach their task conscientiously and will often come to the right result, or at least a fair result, but we do not know why they convict or acquit. If a judge were to decide the matter, perhaps assisted by magistrates, lay persons or assessors, they would have to give reasons for their decision, which would be capable of analysis on appeal. Appeals in jury cases have to rely on a misdirection by the judge, the admission of some new evidence not available at the trial or a perverse verdict. Incidentally, reasons for a decision are much more compatible with the European Court of Human Rights’ approach, in particular to Article 6.

Let us not forget that all personal injury cases were heard by jurors until relatively recently. That is the biggest volume of civil cases. Until 2013, defamation cases were all tried by juries too. I have not heard it much suggested that justice in these cases has been compromised by the fact that they are decided by judges alone.

Abolishing or reducing the right to trial by jury should certainly not be done without careful consideration by Parliament. Perhaps it could be done incrementally. I suggest that fraud cases would be a good place to start. In 1986, Lord Roskill, a former Lord of Appeal in Ordinary, and his committee made a recommendation along these lines following a number of failed prosecutions in fraud cases. His suggestions were not adopted by the Government, although various other recommendations he made for improvements in criminal procedure were.

We are unfortunately living in a very fraudulent age. The estimated scale of fraud relating to the various financial consequences of Covid grants is quite extraordinary. In the last two weeks the Government introduced the long-awaited economic crime Bill, which recently went through your Lordships’ House. Apparently, economic crime Bill 2 is shortly to be brought to Parliament, with a number of other provisions contained in it. Unfortunately, there is fraud in almost every aspect of society. The Government have set up a kleptocracy unit, while the fallout from sanctions is likely to give rise to a great deal of fraud prosecutions.

It is a feature of fraud cases that the prosecution has to simplify a case to make it digestible for a jury, but it is in the defence’s interest to obfuscate. The question then comes for a jury at the conclusion of a case: “Can you really be sure, in view of this immense complication, of the guilt of the defendant, having regard to all this uncertainty and this huge accumulation of documents?”

Juries, however conscientious they are, are often simply not well equipped to decide these cases. Nor is it—I emphasise this—consistent with the rule of law to wait five or 10 years for a case to come to trial.

I hope that Covid will have the effect of encouraging better investment in our courts system, in the future of the legal profession in the criminal sphere and in the imaginative and creative use of courts, but can it also be a catalyst for thinking seriously about the future of jury trial? The National Crime Agency, the Serious Fraud Office and other agencies are very short of funds and resources, hampering their ability to prosecute cases effectively. The need for a timely and fair prosecution in many of these cases is clear. Covid has exposed the general vulnerability of the criminal justice system. I can only hope that, following the experience of Covid, there will be a general reassessment of what is in the interests of justice and of a better-functioning criminal justice system.

Judicial Review and Courts Bill

Lord Faulks Excerpts

Committee stage
Monday 21st February 2022 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I love these debates with our legal eagles, especially when they disagree. My only reminiscence of a court was when I was in the dock for not paying my poll tax. Being a very respectable housewife, having made a statement, obviously I paid.

I am feeling a little generous toward the Government —perhaps that is just the effect of recess—so I will accept that there could be situations where a court might usefully add constraints to a quashing order that either delay its effect or limit its retrospective effect. However, the way in which the Government have done this in the drafting of Clause 1 is far too prescriptive. Rather than giving courts these options as tools to deploy in the interests of justice and good government, the Government are trying to force them into being the default position.

Obviously, my legal knowledge is zero, but I will try to inject a little politics into all this, because the reason that the Government are bringing this is, as the noble Lord, Lord Paddick, said earlier, that they are trying to stop their own mistakes. It is already difficult for people to bring judicial reviews. They must be brought as soon as possible and within three months of the decision being complained of. This new scheme in Clause 1 would mean that for many judicial review cases, even if a claimant wins, they lose. That does not make any sense.

The Government have approached the whole issue by seeing judicial review as an enemy to good governance rather than as a fundamental part of enforcing good government. Judicial review is a fundamental part of the checks and balances of the UK’s messy constitution, and the idea that public decisions which are either unlawful, irrational, or procedurally unfair should be left to stand is anathema to good governance. If the Government want to lose fewer judicial reviews, they should simply make better decisions. I know that is not easy for them. I have a lot of sympathy, but they are making a mess. If their decisions are lawful, rational, and procedurally fair, then the Government will not lose. That seems obvious to me. They should not be asking Parliament and the courts to validate their unlawful decisions. To do so is to unpick the rule of law and the delicate system of checks and balances, and now the Government seem absolutely determined to push the UK constitution to breaking point.

Of course, the Green Party’s view is that we should have a constitutional convention and produce a clear written constitution which can be understood by everyone. However, until then, we will oppose the Government’s attempt to stop exposure of their bad decisions. I do not understand why this has been put in when it is so clearly an effort by an elected dictatorship to shut people up.

[Lord Faulks (Non-Afl)]

My Lords, I have the disadvantage of being a lawyer, an interest which I declare, and I was the chairman of the Independent Review of Administrative Law. Our task, as we saw it, was to review whether the balance of our constitution was fairly reflected in particular by the scope of judicial review. We did not make radical suggestions, but one suggestion that we did make—and it was simply a suggestion—was that legislation on what remedies would be available in response to a successful application for judicial review would be required if the courts are to have the option of awarding a suspended quashing order, as the possibility of issuing a suspended quashing order in a judicial review case was ruled out by the UK Supreme Court in Ahmed—and of course, there was one noted dissension, from whom we have heard this afternoon, the noble and learned Lord, Lord Hope.

That was our suggestion. We were not prescriptive as to how best that power should be given to the courts, but what seemed important to us was that there should be some flexibility to stop some of the hard edges which can arise with a quashing order. What seems fundamental to the way the Government have framed this clause is the use of “may” on more than one occasion. The judge, when he or she looks at the act which is being impugned, has the power to do various things and to take into account the sort of things that a judge would probably take into account anyway. We suggested that that flexibility would help do justice to claimants and to defendants, and one should not lose sight of either party in these claims. We have heard the relevant quotation from the judgment of Lord Justice Schiemann on how third parties can be affected by these orders—people order their affairs—but, equally, I accept that it is very important that claimants should not have their remedies in any way frustrated by judges taking an overprescriptive view.

In one of the amendments put forward by the noble Lord, Lord Ponsonby, on behalf on the Labour Party, he is concerned, I think, about potential convictions based on something that might be regarded—retrospectively, at least—as invalid. We considered this in the report, and said the following on page 75:

“in the case where a claimant who brings a civil case against a public defendant, and the public defendant seeks to justify its conduct by reference to some rule or decision under which it operated, the ‘metaphysic of nullity’,

referred to by the noble and learned Lord, Lord Brown, at Second Reading,

“allows the claimant to argue that that rule or decision was null and void and cannot provide a defence to his or her claim.”

We were not concerned about this because, as stated in paragraph 3.67, the

“possibility of such collateral challenges could easily be retained under the more flexible approach to the consequences of unlawful administrative action that we favour. The courts could simply take the position that an administrative rule or decision cannot be relied on as a basis for criminal proceedings, or as a defence in civil proceedings, if it would have been the subject of a quashing order or a declaration of nullity had that rule or decision been the subject of a timely application for judicial review.”

So, I understand the concern; I simply do not think it exists in the way the clause is framed.

I am afraid I simply fail to follow why the noble Baroness says this clause is creating an elected dictatorship. It is giving judges a power to do what is appropriate in the particular case. In some ways, it may allow judges to make quashing orders they might have been reluctant to make before, because of the hard edges of a quashing order. As it is, they have sufficient flexibility to tailor the remedy to what is appropriate in the case in order to reflect the balance between the claimant and the defendant. I am disappointed too that the noble Lord on the Labour Front Bench opposes this clause entirely. Some of the rhetoric about the ability or desire to constrain judicial review did not seem to be reflected at all in the way this Bill is framed.

Governments of all colours, from time to time, to some extent resent judicial review. For example, we looked at a great many comments by the Labour Government—even that of the noble Lord, Lord Blunkett, who is no longer in his place—about the inappropriate comments by judges and restrictions on the ability of the Government to govern. There is the example of the Human Rights Act preventing the Government—so they said—from doing what they needed to do to deal with the threat of terrorism. All Governments from time to time find this irksome. Simply to oppose a provision in a Bill because it has the subject of judicial review does not seem to me to be a very scrupulous and sensible way to approach legislation.

[Baroness Jones of Moulsecoomb (GP)]

Before the noble Lord sits down, may I correct him? I did not say that this clause suggested an elected dictatorship. I am saying that an elected dictatorship is running the country at the moment, and we see that in every single Bill that comes to this House.

[Lord Faulks (Non-Afl)]

I am grateful for that clarification, but I am afraid to say that I still fail to follow how bringing forward a fairly balanced Bill is somehow the Government reflecting an elected dictatorship. But I hear what the noble Baroness says.

[Lord Falconer of Thoroton (Lab)]

My Lords, this is a very important debate and in this part of it, I will focus only on whether it is appropriate to empower a delayed quashing order—as proposed in new subsection 1(a)—and whether it is appropriate to give a power to say it shall be prospective only. My overall position is that if the courts want these powers, let the courts develop them. Do not do it by legislation.

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[Lord Faulks (Non-Afl)]

I am most interested in the way in which the noble Lord analyses this. Is he essentially saying that this Bill is giving too much power to judges—power that ought to be vested in Parliament—and that a judicial review reform of this nature goes far too far and that judges should not be allowed to have these powers in case they exercise them inappropriately?

[Lord Marks of Henley-on-Thames (LD)]

It is a two-pronged attack. I do not believe that the judges should have the power to make lawful what they have already found is unlawful with retrospective effect. That means that prospective-only orders are, in principle, wrong. However, if there were a case for changing regulations or for altering government action so as to bring it within the limits that Parliament wanted, that is for Parliament; that is for legislation, as the noble and learned Lord, Lord Falconer, argued. It is not for the courts to say, “We find the act unlawful, but it is only going to take effect as unlawful for the future.” It is, in the example of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, an ex tunc approach; but an ex tunc approach, frankly, is right, whereas the removal of flexibility by ruling out the Part A power—the power to delay—would be a removal of flexibility, which would be unnecessary, and we support that. We do not support the presumption, but that is a different point.

The real important point, about retrospective charges and the points in Amendment 6, in the name of the noble Lord, Lord Ponsonby, is that they accept the unlawfulness—if that was the only amendment that was passed—but would go on to say, “You can rely on the unlawfulness as a defence in criminal proceedings and you can still apply for other financial remedies for judicial review, but the quashing order will only take effect prospectively.” That, in my respectful view, is to fudge the whole point of unlawfulness, and the universality and the universal application of judicial review, which lies at its heart.

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[Lord Faulks (Non-Afl)]

I thank the noble Lord for giving way. Of course, new subsection (8)(f) refers to

“any other matter that appears to the court to be relevant.”

So a court can decide that there are other matters that it thinks are important. This is not restricting or fettering the discretion of the court. Why is it so offensive?

[Lord Marks of Henley-on-Thames (LD)]

It is absolutely right that the court can consider any other matter, but it must consider all the factors in new subsection (8)(a) to (8)(e). That is mandating the court where some of those factors may not be of any interest to the court at all. The noble and learned Lord, Lord Falconer, was right to point out that there is a potential conflict between the factors in subsection (8)(c) and (8)(d). For Parliament to be telling judges how they should exercise their discretion and what factors they should have regard to without giving them the option of disregarding some factors is wrong.

The court is exercising, as we all know, a supervisory jurisdiction over executive action or the claimed abuse, or excess, of delegated powers. The noble Baroness, Lady Chakrabarti, was right to argue that the way in which judicial review has worked in practice—and I suggest that it is the most important development in civil or administrative law over the past 50 years, above any other development that we have had—is that the judiciary, the Executive and Parliament work not exactly together but in balance, so that the powers are exercised in accordance with the law. With respect to what the noble Lord, Lord Faulks, says, it is inappropriate and regressive for the Executive to tell Parliament what factors they should consider when performing that supervisory role. The courts should be left to consider executive action in accordance with the law passed by Parliament and to grant remedies accordingly. They do not need, and should not be tied down by, restrictive provisions that prevent them doing justice taking into account factors that they think are important.

Amendment 2, moved by the noble Lord, Lord Ponsonby, would at least limit the exercise of the provisions in Clause 1 to powers where the court was satisfied that it would be in the interests of justice to do so. I suspect that that amendment will be opposed on the basis that it would introduce an unnecessary fetter on judicial discretion—and I suggest that that is entirely ironic, because the whole of new subsections (8), (9) and (10) are precisely targeted at fettering the courts’ discretion, and it is to that that we object. It is also ironic that, if passed, this would be the only mention of the interests of justice in the clause.

Amendment 7 would make the new subsection (8) factors permissive, rather than mandatory. Therefore, it removes the point that I made in answer to the intervention of the noble Lord, Lord Faulks, that the court must consider factors which have an inherent conflict.

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[Lord Hope of Craighead (CB)]

I shall say just a few words. It is very strange that there is nothing in the Explanatory Notes to explain why this presumption is in the Bill at all. I have searched the notes for guidance and can find nothing. That point aside, I stress the point made by my noble and learned friend Lord Etherton about the danger that lurks in proposed new subsections (9) and (10). If one is sitting in a court trying to work one’s way through the various phrases set out there, they create a number of traps—and certainly opportunities for the disaffected litigant to challenge the decision. There are value judgments to make about what is “a matter of substance”; you must address your mind to what is meant by the phrase “adequate redress”; and you must find whether there is a “good reason” for doing or not doing something. These are all things you must face up to, and you must explain yourself, because it is all qualified by the words “is to do” or “must do”. A judgment that is going to stand up to scrutiny in the Court of Appeal will have to work through all those phrases and explain what decision the judge has taken in order to support the decision that is ultimately made.

This remedial tool is being encrusted with so much stuff that it is almost unusable. It really is ridiculous to overwork to this extent the amount of directions being given to the judge. It is not necessary, it is bad legislation and it is extremely dangerous. It is not a remedial tool at all; the Government are trying to create something in their own interest, as has been pointed out already, and make it as difficult and dangerous as possible for judges to use this tool. It should certainly not be legislated for in this form. Therefore, I strongly support the removal of these two subsections.

[Lord Faulks (Non-Afl)]

My Lords, I feel tempted to respond to the contribution of the noble Lord, Lord Beith. It is absolutely true that this particular form of words does not find its way into our report in any way. That, of course, does not necessarily mean that it is a mistake to include it in the Bill.

The noble Lord, Lord Anderson, gives a choice that is not very inviting: either this is a mere surplusage, in which case it should go, or it is potentially something that an inexperienced judge might get wrong or feel compelled by to make an order that he or she would not otherwise want to make. I wonder if that does not slightly overstate the case. I should say that I am not wholly convinced of its necessity, but I do not think it anything like as damaging as has been described.

After all, before you even get to the question of whether the court is to make a quashing order, a considerable number of hurdles have to be surmounted, as do a number of considerations which we have canvassed during the course of the debate. So, if the “interests of justice”, or whatever term that the judge directs himself or herself to, have allowed them to reach the conclusion that it is not appropriate to make a quashing order, this question of a presumption, whether it is a weak or a strong one, simply does not arise. Of course, the judge can also simply say, “Well, I take into account subsection (9), but I don’t see a good reason for making the order”, having regard to whatever it might be. I do not see it as quite the same hurdle race that the noble and learned Lord, Lord Hope, described it as.

I will listen carefully to the Minister on why it is in there. I do not think it particularly harmful, but there is, as it were, enough here to allow the judges to do what is fair without necessarily including this particular presumption.

[Baroness Chakrabarti (Lab)]

My Lords, I congratulate the noble Lord, Lord Anderson of Ipswich, on his Amendment 13. He rightly suspected that my Amendment 14 is a little more in the way of a probing amendment. I tabled it because of the concern I expressed earlier about the people not in the room when, by definition, a judicial review is brought by one party against a government department.

My Amendment 14 would be far less preferable to his Amendment 13 if we could clear up the problem with proposed subsection 29A(1)(b). As I said earlier, there is the question of whether that starts engaging the court with a more legislative function in deciding exactly who is and is not to benefit from the wider class of citizens not in the room.

So, we are back to the Minister’s saying that this is just about putting some extra discretionary tools in the judicial toolbox, to be used where appropriate. If that is the case and we could clear up the issue with paragraph (b), I would have no problem with allowing this extra tool, so that, in some cases, the quashing could not take effect until a future date, and the department could sort itself out and effect new regulations or, if necessary, even come to Parliament with emergency legislation. As a former government lawyer, I would have no problem with that possibility—but why all the rest of it?

On the one hand, the Minister talks about trusting the courts; on the other hand, we are all to be tied in knots with our various interpretations of all the various differently tilted tests that follow. That is probably the difference between me and the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I say that because I have genuinely changed my mind about various aspects of this during Committee. If it is just a tool in the toolbox, make it an open-textured discretion that allows the suspended quashing order, and leave the rest to the court.

I shall make two further points. The noble Lord, Lord Anderson, made an essential point that is worth repeating: central government is a party to most judicial reviews and certainly the ones that are going to cause concern to the Government. So the Government can relax a little at this stage, knowing that any crucial arguments about the effect of particular discretionary remedies on wider public administration will be put by government lawyers to the court. Finally, the noble Lord, Lord Pannick, talked about the risk of litigation with an overly complex provision. That has to be taken seriously. I hope it will not be said in response that that amounts to a threat. That has been said to me in the past when I have suggested that a convoluted provision will lead to litigation. It is not a threat; it is based on experience of what happens when discretion is tied in knots in that way. Inevitably, that leads to more litigation, not less.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I entirely support the amendments put forward, for the reasons that have been given. I do not want to add to them. It seems odd to give judges discretion and say that we trust them, then immediately circumscribe what they can do.

That leads to my concern about new Section 29A(10). When listening to the Minister earlier, I asked myself why new Section 29A(8) was there because all the points are perfectly obvious. I wonder whether we are looking at a new technique here being laid down for future use. Do you list perfectly obvious things in new subsection (8) to bring in the killer in new subsection (10)? I hope the Minister can assure us that we are not going to see in any future legislation dealing with judicial review—who knows whether there will be any—the codification of perfectly obvious principles as a means of bringing in by the back door what one sees here in new subsection (10).

[Lord Faulks (Non-Afl)]

Perhaps I might briefly add to that point before the noble and learned Lord, Lord Falconer, speaks. An absolutely classic example of legislating for discretion would be Section 33 of the Limitation Act, which courts are applying every single day of the week, which lists a large number of factors which the court may take into account and concludes by saying that it may take any other thing into account. Although I absolutely take the point made by the noble and learned Lord, Lord Thomas, there is nothing particularly unusual about setting out in detail the discretion and then, nevertheless, allowing the court to take into account other matters.

[Lord Falconer of Thoroton (Lab)]

I have just two points. First, I agree with the noble and learned Lord, Lord Hope, that no reason is given as to why there is the presumption, but it is worth emphasising that the Explanatory Notes accept that there is a presumption. What is being said is, and it is the intention of the Government, that, if a quashing order is to be made—certain sorts of judicial review will always lead to a quashing order; for example, if a power to prosecute people has been given without justification from primary legislation—there is to be a presumption that the quashing will be delayed and that, subject to the condition in new Section 29A(9), you will use either the delay or prospective-only power.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, a Cart judicial review is where the High Court can, in exceptional circumstances, review a decision of the Upper Tribunal to refuse permission to appeal a decision by the First-tier Tribunal. The purpose of Clause 2 is to oust, or abolish, this type of judicial review. Cart judicial reviews are mostly used in immigration and social security cases to identify serious errors in law; they have prevented the removal of people to hostile regimes, where they risk torture and murder, and have brought justice to benefits claimants who have been treated unlawfully. Cases where Cart judicial reviews have been used concern matters of life and death and are a safeguard, costing a relatively modest amount of money.

On Report in the House of Commons, the Lord Chancellor moved a new amendment to Clause 2 which would narrow the small number of exceptions to the abolition of Cart judicial reviews even further. In particular, the consequences of the amendment are that a legal error made by a tribunal would be regarded as a fundamental breach of natural justice only if that breach related to a procedural defect. The amendment is problematic, because it would exclude courts from considering issues such as actual or perceived bias in a tribunal, or a tribunal’s failure to assess obviously relevant considerations in its decision-making.

There are a range of arguments why Cart judicial reviews should remain, including arguments about the volume and cost of cases and whether it is a proportionate use of judicial resource. Indeed, there are arguments about the criminal courts’ backlog, and how it would be affected—I think the Government make this argument—if judicial resource was used in this way.

Another argument, which I am calling the “bites of the cherry” argument, and which was referred to by the noble Lord, Lord Faulks, at Second Reading, is where a claimant has already had two separate hearings but wishes—the argument says illegitimately—to have a third hearing. This is not an accurate or fair representation of how the process works. A claimant can only pursue such a judicial review when the First-tier Tribunal has made a serious error of law and when the Upper Tribunal has wrongly refused permission to appeal against that error of law; in other words, the Upper Tribunal has taken no steps to correct a serious error in law by the First-tier Tribunal. This is exactly why the Administrative Court must step in. A Cart judicial review represents a situation where a claimant has not had a proper first bite of the cherry—one might say that the first bite was sour—rather than that they are seeking a third bite. Therefore, the reasons given for abolishing Cart cases proceed on a false characterisation and should be reconsidered. It is for this reason that we are against Clause 2 and believe that it should be removed from the Bill.

Returning to my amendments, Amendments 16 and 21 seek to provide a further list of exceptions to the ousting of the High Court’s jurisdiction under Clause 2. These are examples of circumstances in which there must be particular concern about the capacity of the First-tier Tribunal to deliver an effective appeal for the appellant for reasons beyond the control of the tribunal. Amendment 17 seeks to clarify that to find a breach of the principles of natural justice, the High Court need not focus only on procedural defects. Amendment 18 would change the test to judicially review a decision of the Upper Tribunal to refuse permission to appeal from a “fundamental” breach of the principles of natural justice to a “material” breach of those principles. Amendment 22 in my name would require the Lord Chancellor to carry out and publish a review of the operation and the consequences of the ouster of Cart judicial reviews.

There are a number of other amendments in this group which I support, but the process of this group is to look at the overall intensions of the Government and then to further look at the individual ameliorating effects, if I can put it like that, within the amendments which I have tabled in this debate. I beg to move Amendment 16.

[Lord Faulks (Non-Afl)]

My Lords, I do not want to repeat what I said at Second Reading. Suffice it to say that I referred to what Lord Carnwath said in a lecture, essentially that the decision in Cart was incorrect and needed to be reversed. That line of argument was supported by the recently departed—in the physical sense, I hasten to add—noble and learned Lord, Lord Brown of Eaton-under-Heywood, and by the noble and learned Lord, Lord Hope of Craighead.

The question is whether the decision was correctly reached. If one follows the story of Cart, which we did with some care, looking at the decision of the Court of Appeal, Lord Justice Laws was the first judge to break what had been a consensus that the decisions of the Upper Tribunal should not in any way be subject to challenges by way of judicial review.

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[Lord Ponsonby of Shulbrede (Lab)]

Before the noble Lord sits down, just to put the record straight, it is right that David Lammy said that when he was in a previous position. However, what he says now is that he has changed his mind and that he thinks that the whole of Clause 2 should go.

[Lord Faulks (Non-Afl)]

He is in opposition.

[Lord Falconer of Thoroton (Lab)]

I disagree quite strongly with what the noble Lord, Lord Faulks, said about how suggesting that this part of the Bill be removed is irresponsible. As the impact assessment put forward by the Government indicates, if this part of the Bill goes forward, between 173 and 180 Upper Tribunal and High Court days would be saved, which they calculate at £400,000. We are talking about a saving of £400,000 if this goes through, according to figures advanced by the Government.

As the briefings we have received from a number of organisations indicate, the effect of Cart judicial reviews has been quite significant. Points of law have been established as being wrongly decided by the First-tier Tribunal and the Upper Tribunal. No criticism of those two tribunals is intended, but that is what happened. They have been of some considerable importance, particularly in relation to human trafficking, duress and asylum status.

In relation to the point about Lord Justice Laws, his judgment in Cart in the Court of Appeal utterly exploded the theory that, simply because it was a superior court of record, there could not be judicial review. It exploded that proposition—which had been the basis of saying that Cart was not the subject of judicial review—so totally that in the Supreme Court, the judges who gave reasoned judgments indicated that he had done such a great job in relation to that that nobody now sought to restore that argument.

I am against this provision in relation to Cart because it does two things which are bad. First, it removes the High Court from considering whether or not the Upper Tribunal has got it wrong. In England—I say nothing about Scotland—it is the High Court that is the absolute cadre that determines the development of the law and the quality of the law, and I am not in favour of it being removed from this for £400,000.

Secondly and separately, as Cart in the Supreme Court said, there are a range of options open to the Supreme Court as to what the test should be for allowing judicial reviews from the Upper Tribunal’s refusal of permission to appeal from the First-tier Tribunal. It considers the ranges, such as exceptional circumstances, or asks whether it should be on the basis of, “We will give judicial review when the Upper Tribunal should have given leave to review it”, or some combination of the two, or a breach of natural justice—something like that. It said that the Supreme Court had a quite broad discretion to determine what the filter should be.

In the report of the group that he chaired, the noble Lord, Lord Faulks, said that the way that judicial review should develop should be on the part of appropriate deference by Parliament to the courts, and by the courts to Parliament. What I took that to mean is that the courts should be very careful to make sure that, in every case they can, they give effect to what Parliament wants. I took the noble Lord’s reference to deference by Parliament to the courts to mean: let the courts develop the precise ambit of the process by which they will judge illegality or not.

I object to Clause 2, because what is happening here is that inappropriate deference is being shown to the courts. The courts have the power to decide what the filter should be. They made that clear in Cart. The Supreme Court can revisit Cart; it is seven years old and, anyway, it can revisit it if it is 10 minutes old. It, not the legislature, should decide what the filter is in relation to this.

The key thing about judicial review is that it is the main means—not the only means, but the main means—by which the courts uphold the rule of law. Our constitution is based on democracy and the rule of law. Although there are functions within government that determine, or try to protect the state from, breaches in the rule of law, the key vindicator of the rule of law is the courts. Why on earth, for £400,000, is the legislature galumphing in to this area when the courts themselves can give the precise limits of this? It is—perhaps the noble Lord will let me finish.

It is such a mistake to do this. It sets out an ouster clause; that may be used in future, but I am pretty confident that the courts will construe ouster clauses against the background, so the wording in one case may well not work in another case. What is wrong here is that the Executive should not be doing this, because the courts have the power to sort it out themselves, and they should. I apologise for not taking the intervention from the noble Lord straightaway.

[Lord Faulks (Non-Afl)]

The noble and learned Lord does not mischaracterise the conclusions we reached at all. Quite rightly, we emphasised the respect of the various parts of the constitution to each other and the importance of that. However, he omits to mention a fact we stressed: none of the judges who made a submission to us ever suggested that, when Parliament thought a decision was wrong, it was not appropriate to legislate to reverse the effect of that decision. To suggest that does not do violence to any of the principles that we identified—I think the noble and learned Lord and I would agree about those principles. As for the hourly rate of judges, with great respect, whether they are remarkably good value for what they do does not alter the fact that, if something is bad law, it needs reversing.

[Lord Falconer of Thoroton (Lab)]

There is a fundamental misunderstanding there. Of course, Parliament can reverse a judicial review on its substance. If the courts conclude that some social security regulations do not meet a particular provision, they can change those regulations and come to the same result they wanted to all along, which is fine. I am talking about the fundamental role of the court in relation to determining whether the Government are acting lawfully. In relation to that, namely the ambit in which the court will operate Anisminic onwards, as it were, do not interfere with it. Let the courts determine that. Ultimately, the limits of that have to be set by the courts and not Parliament.

Judicial Review and Courts Bill

Lord Faulks Excerpts

2nd reading
Monday 7th February 2022 Lords Chamber

[Lord Faulks (Non-Afl)]

My Lords, as the House has heard, I was chair of the Independent Review of Administrative Law, a panel made up of a number of academics and practitioners. We spent six months quite closely studying the law and endeavouring to assist the Government with some recommendations. It is difficult to encapsulate that in the five minutes that I have been permitted. Perhaps I can simply say that Clause 1 and Clause 2 broadly reflect what we recommend, and so I support the Bill. Clause 1 is intended to give greater flexibility to the courts and to smooth over the rough edges that quashing orders can cause. However, I look forward to the debates as to whether any improvements can be made in the drafting.

Clause 2 is in effect a reversal of Cart, as the House has heard. For some time, the wisdom of that decision has been questioned by the authors of the Policy Exchange Judicial Power Project, Professor Ekins and Sir Stephen Laws, in their submissions to our panel. However, the panel also considered a lecture given by Lord Carnwath, a former Supreme Court judge, in December 2020. He quoted an experienced administrative court judge who said:

“I would say that for every 10 days that I sit in the Administrative Court one day is occupied with dealing with spurious Cart applications. The rate of grant of permission … is minuscule”.


Lord Carnwath pointed out that a Cart JR

“represents a third bite of the cherry … the litigant”

previously would have been

“refused permission to appeal by the First-tier and the Upper Tribunal.”

He said:

“Having been closely involved in the preparation of the relevant legislation, I can confirm that our intention was that the Upper Tribunal should, within in its specialist sphere … be immune from review by the High Court.”


The statistics came second when it came to our recommendation. There was some difficulty in establishing precisely what the success rate was; we endeavoured to get all the statistics we could from all sources that were available. However, less controversial—see page 67 of our report—is the number of applications for a Cart JR. At a five-year average of 779 per annum, it was the most popular judicial review in all areas of the law. If you read the Supreme Court judgment in Cart, it is clear that any application was expected to be most unusual. Some 779 per annum jurisdictional errors by a specialist court—I respectfully submit that that the matter speaks for itself.

I will say something briefly about JR in general. The IRAL was a fulfilment of a manifesto commitment. I was a bit surprised to be accused by a distinguished Peer from the Labour Party, not currently involved in this debate, of being a party to constitutional vandalism by agreeing to be part of this panel—and that was before our first meeting. We were genuinely independent, with not obviously similar initial views on the issues. However, we reached the conclusion that JR was a fundamental part of the rule of law, and we had no desire to recommend radical reform. It is of course a vital part of the checks and balances that exist in our constitution. However, that does not mean that Parliament, after careful consideration, cannot reverse a court’s decision. Judges get things wrong; our appeal system is based on that principle. Our judges deserve considerable respect but, as with Parliament, from time to time, experience indicates that a different course is appropriate. No senior judge who made submissions to us took any issue with this. There was certainly no suggestion of constitutional vandalism.

Possible amendments to the Bill have been advanced by Professor Ekins in a remarkable paper in which he identifies a number of cases which arguably were decided wrongly. Others may want to develop these amendments—I do not know. I simply identify the case of Adams as being very questionable. It was a decision of the Supreme Court which rode roughshod over the Carltona principle, which of itself will cause considerable practical problems for government. That may be well worth further consideration, as would others.

I conclude with one observation on a different part of the Bill: the online courts Bill. I welcome the development, which has been quite some time in coming. The benefits of online proceedings were particularly apparent during Covid. I am somewhat concerned about access to online procedure for the media—here I wear my hat as the chair of the Independent Press Standards Organisation. It is most important, the axiom being “Justice should be seen to be done”, that nothing done online is not capable of being seen and observed and commented on by the media, of course, and indeed by anybody else. Therefore, in our desire to make rules, I hope that the Government can reassure me and the House that there will be a proper provision for access to the media so this online justice will not in any way be secret justice.

Police, Crime, Sentencing and Courts Bill

Lord Faulks Excerpts

Report stage
Wednesday 12th January 2022 Lords Chamber

[Lord Cormack (Con)]

Well, my Lords, I had never really thought of the noble Baroness as a bleeding-heart liberal, but we all come in different guises, depending upon the subject. I find myself very taken by many of the points made by the noble Lord, Lord Marks of Henley-on-Thames, and by many others who have long been learned in the law.

I spoke to my noble friend the Minister after what the noble Baroness referred to as the slightly fractious debate on Monday. Funnily enough, I said to him that I thought that a royal commission would be a good way—better than an amendment to a Bill—to look at the issue that we were discussing: women in prison. Of course, this provision in the amendment moved by the noble Lord, Lord Marks of Henley-on-Thames, could be incorporated.

On balance, I would favour a royal commission on the criminal justice system. I do not suppose that the noble Lord would be particularly opposed to that, rather than the specific amendment that he is moving today. But we need to look at these things because—coming back to a point made on Monday and today—we are failing in our criminal justice system because there is far too much recidivism and far too many lives are not amended and rehabilitated but further broken and eroded by spending time in prison. We have not got the balance right.

I have always been opposed to the simplistic view sometimes expressed, not by bleeding-heart liberals like the noble Baroness but by some on my own side: “Lock them up and keep them in.” That is no way to tackle things. So, although I would understand if, in responding to this debate, my noble friend the Minister said that he could not accept this amendment, I nevertheless strongly appeal to him on the Floor of the House, as I have privately, to consider very carefully the merits of a royal commission on the criminal justice system.

It can do no harm. We all remember Harold Wilson on royal commissions—they sit for years and take minutes—but that is not necessarily what royal commissions do. They can be given a timeframe or asked to report back within a certain period. If, by chance, my noble friend is not able to give the positive response I hope he might, we have many in your Lordships’ House who are indeed learned in the law, and this might be an ideal subject for one of the special committees that we set up each year in your Lordships’ House. It would have perhaps the most distinguished membership of any such committee ever established and I am sure it could make a powerful report, but I would still favour the royal commission approach. I hope that when my noble friend comes to respond, he will be able to give us some encouragement.

[Lord Faulks (Non-Afl)]

Before we hear from the Minister and the noble Lord for the Opposition, I shall simply add that of course the aims identified in this amendment are probably shared by everybody in your Lordships’ House but, ultimately, is it not for the Government of the day to decide on these things? I think we can probably predict what most royal commissions would recommend following the terms of reference reflecting this amendment. Ultimately, a Government have to decide whether in certain circumstances, as was the case in the Bill, there need to be mandatory sentences or the prison estate needs more money spent on it. These are matters for government. I will be interested to hear what the noble Lord for the Opposition says about this; during the course of the Bill, I do not think the Labour Party has opposed the increased mandatory sentences in various areas. That is a position it is entitled to take. A royal commission can recommend; a Government have to decide.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we support this amendment and every element of what the noble Lord, Lord Marks, said when he was introducing it. It is about criminal sentencing. My noble friend Lord Bach raised the question of a royal commission on the criminal justice system as a whole, and I will be interested to hear the Minister’s response on that.

The noble Lord, Lord Faulks, correctly identified that in this Bill the Opposition have supported some measures that have led to increased sentences. In a sense, the heart of the problem is that the constant inflation of sentences is leading to the overarching problem we have now with overcrowding and squalor in our prisons and a lack of effectiveness in our out-of-court sentences. I understood that to be the main purpose of the royal commission.

I want to give a very simple example of my role as a magistrate sentencing, as I was yesterday, in a magistrates’ court in London. As a magistrate, I have powers to sentence up to six months’ custody for a single offence. When, on occasion, I do that, I simply do not know how long that person will spend in custody. When I first became a magistrate about 14 years ago, I used to say to the offender, “You will spend half your time in custody and then, at the discretion of the prison governor, you will get out”. I do not say that any more because I do not know whether it is true. Sometimes the offender will get out after one-quarter of their sentence, if there are particular reasons and it is a non-violent offence, and sometimes, if they commit relatively less serious offences while they are in prison, they may serve their whole term, so I simply do not say that any more when I am sentencing.

That is a very particular example; there are many examples within sentencing as a whole where any sentencer, including a magistrate, is asked to use fairly obscure phrases which are not simple to understand for the person being sentenced. There is a role for an overall look at this to try to have consistency in sentencing and the words used while sentencing. The noble Lord’s amendment goes further than that as it is looking at community sentences as well. There really is a strong need for an overarching view of criminal sentencing.

--- Later in debate ---

[Lord Marks of Henley-on-Thames (LD)]

My Lords, in those circumstances I think that it is for me to respond. I do not know whether the Minister wishes to respond to any question—although there has not really been a question.

[Lord Faulks (Non-Afl)]

My Lords, I believe this is in order, because I did not suggest for a moment that it was for the Government to send people to prison or to make up their mind. Ultimately, the policy that is reflected in this amendment is something that a Government would have to decide upon.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, at the end of this interesting debate, I say first that I am very grateful to all who have spoken and to the noble Lord the Minister for his careful response. Two things strike me: first, this amendment enjoys overwhelming support and, secondly, there has been a distinct theme to the contributions to the debate from noble Lords from all around the House, expressed perhaps by the noble and learned Lord, Lord Thomas of Cwmgiedd, when he talked about a comprehensive and strategic approach. Others have talked about a holistic approach.

The aim has been to address the failures of the criminal sentencing system, as part of the criminal justice system, identified by, among others, the noble Lords, Lord Cormack and Lord Ponsonby. It is a rethink that is required—to use the expression of the noble Baroness, Lady Jones. Another important matter was identified by two dissimilar figures in general approach. The noble Lord, Lord Macdonald of River Glaven, talked about taking the political sting out of issues arising on sentencing. This was put in a similar way by the noble Baroness, Lady Fox of Buckley. I share the slight surprise of the noble Lord, Lord Cormack, at being told that she was a bleeding-heart liberal, but I take the point.

I do not intend the royal commission that we have described in this amendment to prejudge the issues. What we are calling for overwhelmingly is an evidence-based approach to sentencing, rather than a politically based approach or one that simply responds to public opinion or the perception of public opinion. I completely agree with the noble Lord, Lord Faulks, that the question is not one where the Government are excluded from making decisions. The point about the royal commission is, as he put it, that the royal commission recommends and the Government then act on those recommendations. What distinguishes a royal commission, I suggest, is that its recommendations are widely seen by the public, the Government and the Opposition as authoritative. It is that quality of being authoritative that I believe gives the royal commission its weight.

It is a question not of outsourcing the decision-making process but of setting up a process to advise and direct the future. This Bill does none of that. It contains sentencing in its Short Title, yet it is piecemeal and bitty and lacks a philosophy. The Minister set out a philosophy that is two-sided, but only one of those sides is reflected in the Bill. We believe that a royal commission would address that, which is why I would like to see this amendment agreed. That said, however, what the noble Lord has said about the Royal Commission on Criminal Justice as a whole is of some encouragement, because I take criminal justice to include criminal sentencing. I hope I see him nod in agreement with that. I am waiting—he is not going to commit to the terms of reference, but it seems to me that that offers some hope for the future.

I am concerned about the use of the word “paused”. It should not be paused; it is urgent. If the Government take anything from this debate, I hope they will take the feeling around the House that this is an urgent matter requiring urgent attention and will revisit it. That said, and in the confidence that they will approach it in that way and that the royal commission will proceed, I beg leave to withdraw the amendment.

Police, Crime, Sentencing and Courts Bill

Lord Faulks Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Wednesday 15th December 2021 Lords Chamber

[Lord Garnier (Con)]

My Lords, I entirely agree with the noble Lords, Lord Marks and Lord Pannick, and my noble friend Lord Hailsham.

[Lord Faulks (Non-Afl)]

I have had the opportunity on a number of occasions, sitting as a recorder, to pass sentence in cases where, in one case after another, advocates have suggested that I take an exceptional course—and sometimes I have been persuaded to take an exceptional course. It seems to me that the word “exceptional” provides an opportunity for a judge in the interests of justice to depart from the minimum sentence. But this is a decision taken by the Government in response to a particular set of offences, and the general public would perhaps agree with that policy; it requires judges to think long and hard before deciding that there are exceptional circumstances. I note that the noble Lord, Lord Marks, suggested that there may be many cases where they consider it in the interests of justice not to pass a minimum sentence. It seems to me that that is a question of policy that the Government have identified and, although naturally I favour as much judicial discretion as possible, it seems to me a policy decision that they are entitled to take.

[Baroness Jones of Moulsecoomb (GP)]

I do not want to re-enter an old argument but, in Committee, I was almost embarrassed when the Minister pointed out that I was completely wrong about mandatory minimum sentences. Not being a lawyer, I thought that I had made some sort of legal error, but apparently not. Clause 102 will lead to gross injustice for anyone who is convicted of these offences, except in exceptional circumstances. That is revealed by the very clever wording of the amendments tabled by the noble Lord, Lord Marks of Henley-on-Thames, which contrasts those exceptional circumstances with a much preferable

“contrary to the interests of justice”.

These amendments bring justice into play rather than pure, unmetered punishment. I and my noble friend will be supporting the amendments.

The deterrent effect of these minimum sentences would still be in play, but there would also be the freedom that, when justice requires, a person is not given one of these mandatory sentences—so the Government can still hold their “tough on crime” stance and even call this “crime fortnight” while justice is still served—although it would be good if they could admit their own crimes sometimes.

--- Later in debate ---

[Lord Faulks (Non-Afl)]

The noble Lord, Lord Sandhurst, identifies the need for consistency, and he is right. I wonder whether this amendment was not provoked by the appalling case of Phillip Leece, who not only committed rape but named the victim and posted grossly insulting material on the internet. That is something that was probably outside the scope of those who drafted this legislation. Newspapers are regulated—as I know, as the regulator of newspapers—but social media remains wholly unregulated. There is significant work to be done in this regard, which Parliament will grapple with when looking at the online safety Bill. This is just the sort of matter that a duty of care should deal with, in a proper system to prevent this sort of posting taking place.

I am sure that the Attorney-General is thinking carefully about contempt of court aspects. Of course, there is a power on the part of the judge to deal with the matter much more seriously than with the derisory fines that are currently imposed, but it is something that has to go to the administration of justice, and it is not always predictable or easy to identify what cases will or will not constitute contempt of court—so I welcome that.

Although I wholly understand why this amendment has been proposed, it seems that it would be stark and inconsistent with other provisions—but it addresses a mischief that very much needs to be addressed.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I shall speak briefly to this group of amendments. First, I turn to the minimum sentence for rape of seven years, subject to an exceptional circumstances disregard or permitted departure. We acknowledge and endorse everything that has been said to the effect that rape is the most appalling crime. The terribly low success rate of prosecutions of which the noble Baroness, Lady Chapman of Darlington, spoke is acknowledged by everyone and has been the subject of a great deal of research by parliamentarians, policymakers and the Government. It needs addressing. The problems that she talked of, of low reporting rates and very high withdrawal of support, along with very low conviction rates, all need addressing. However, I am not convinced that a minimum sentence would address any of those things. Furthermore, for all the reasons, which I shall not repeat, I believe that the use of an exceptional circumstances test for the ability of judges to depart from a minimum sentence is simply wrong.

I also agree with the noble Viscount, Lord Hailsham, when he pointed out that, as anybody who has dealt with rape cases in criminal courts knows, rapes are so very different, the one from another. He was right to point to the very wide range of sentences endorsed in the sentencing guidelines, which mean that courts treat rape very differently, from the milder cases to the very serious cases that merit life imprisonment. I also have some concern that, in some cases, it would make juries even less likely to convict if they knew that there was a minimum sentence of seven years. I cannot support, and I do not think that we cannot support generally, the proposition that this seven-year minimum sentence should be legislated for.

By contrast, Amendment 78B, which would increase the sentence for publishing the identity of sexual offences complainants, is one that we do support. I suspect that it is not often realised quite how serious an offence this is. Sometimes there is a substantial risk of further harm when the identity of a complainant is published. There is very often significant fear on the part of the complainant if her name—as it is usually, although it may be his name—is published. There is almost always really significant distress caused by an unlawful publication. It is of course open to complainants to waive anonymity if they wish. But if they do not wish their identity to be published, to have the law flouted in the way the offence requires seems to me to justify a sentence of imprisonment in some cases. It is important to hear that these are only maximum sentences that we are dealing with.

I agree with the noble Lord, Lord Sandhurst, that there are other cases of unlawful disclosure that should be considered and reviewed but, that being the case in an ideal world—and we all know that these things do not happen as fast as they should—that is no reason for not doing anything at all. So we support Amendment 78B.

For all the reasons given by my noble friend Lady Brinton and, no doubt, to be given by the noble Lord, Lord Ponsonby—the noble Baroness, Lady Chapman, has already spoken to it—we support Amendment 78D on the duty to inform under the unduly lenient sentencing scheme, as well as the extension of the time limit for complaint in respect of unduly lenient sentences. In Committee we went through the reasons for the whole-life order to be taken as a starting point in cases of abduction, sexual assault and murder, and we do support that—again, because it is only a starting point—and this ranks right up there with the other serious offences for which a whole-life order is appropriate.

We support for the reasons given by my noble friend Lady Brinton her amendment on home detention curfews as well.