Crime and Policing Bill

Lord Faulks Excerpts

Committee stage
Tuesday 9th December 2025 Lords Chamber

[Lord Davies of Gower (Con)]

My Lords, Amendment 289 is a probing amendment through which I am seeking the Government’s justification for the substantial prejudice provision in Clause 82. By way of background, Clause 82 removes the three-year limitation period for personal injury claims in cases relating to child sexual abuse. As such, it implements recommendation 15 of the independent inquiry into child sexual abuse chaired by Professor Jay. The inquiry found that most personal inquiry claims relating to child sexual abuse are not only modest in value, but in many cases do not result in compensation being paid. The reason for the high rate of failure is that a significant number of those claims are prevented from proceeding as a result of the limitation period on bringing forward a claim under the Limitation Act 1980. That Act permits the three-year period for claims resulting from sexual abuse as a child to begin from age 18, therefore expiring at 21, but many survivors do not feel comfortable with coming forward and telling people what happened until much later, never mind gathering the courage to bring a lawsuit against their abuser. The result is a lack of justice for those who have been abused as a child, and it is welcome, therefore, that the Government have decided to bring this forward.

However, there is possibly an issue with the drafting of Section 11ZB, which is inserted by this clause. It establishes the situations in which the court must dismiss an action for injury arising from child sexual abuse. It states that for all cases brought after the commencement of this clause, the court must dismiss the action if the defendant can prove that a fair hearing cannot take place. However, for any case that started before this new clause comes into force, the test for dismissal is set considerably lower because in this instance, the court must dismiss the claim if the defendant can prove that they would suffer substantial prejudice, and thus the proceedings are inequitable.

This goes further than was recommended by the Jay inquiry. Its report referred to

“the express protection of the right to a fair trial, with the burden falling on defendants to show that a fair trial is not possible”.

The only test the independent inquiry wanted was that the test of whether a fair trial can take place applied to all past and future cases. I know there is concern that the ability of the court to dismiss actions due to substantial prejudice placed on the defendant will create uncertainty for survivors of child sexual abuse and delay access to justice. This has the potential to undermine the purpose of the recommendation of the Independent Inquiry into Child Sexual Abuse and might not provide the certainty and support survivors deserve.

I reiterate that this is simply a probing amendment, and I would be grateful if the Minister could elaborate on why the Government have gone further than recommended by the Independent Inquiry into Child Sexual Abuse. I beg to move.

[Lord Faulks (Non-Afl)]

My Lords, I have an amendment in this group. I repeat a declaration of interest I made at Second Reading: that I have appeared as a barrister in a number of the leading cases about limitation of the law of tort. The purpose of limitation periods is to give a claimant a fair chance to decide whether to bring a claim, but also to place some sort of time limit on claims. Limitation periods vary according to the cause of action—for example, defamation claims have to be brought within one year. Personal injury claims have always been in a special category. The normal limit is three years or, in the case of a young person, three years after attaining the age of majority. But because some personal injuries manifest themselves only some time after they have been caused, particularly those relating to disease claims, the law has responded by postponing the starting date to reflect something called the “date of knowledge”.

What constituted knowledge was difficult to encapsulate in statute and gave rise to a lot of litigation, particularly in the context of what are generally known as historic claims for child sexual abuse. But these difficulties were largely overcome by Section 33 of the Limitation Act 1980, which gave the court a complete discretion to disapply the limitation period. Although the section gave various sensible guidelines as to matters to be taken into consideration, the discretion was expressed to be entirely unfettered.

One difficulty of the law remained. In claims for deliberate acts of assault, there was a finite six-year limitation period, rather than a three-year extendable limit for claims in negligence, so some claimants did not have the advantage of Section 33. This problem was overcome by the decision of A v Hoare in 2008— I was one of the unsuccessful defendants in that case—when the House of Lords decided that, whether the claim was in negligence or in assault, there was still a discretion to disapply the limitation period.

The only question that remained was whether it would ever be too late to bring a claim in the light of Section 33. Lord Brown of Eaton-under-Heywood, a much-missed Member of your Lordships’ House, made this observation:

“If a complaint has been made and recorded, and more obviously still if the accused has been convicted of the abuse complained of, that will be one thing; if, however, a complaint comes out of the blue with no apparent support for it (other perhaps than that the alleged abuser has been accused or even convicted of similar abuse in the past), that would be quite another thing. By no means everyone who brings a late claim for damages for sexual abuse, however genuine his complaint may in fact be, can reasonably expect the court to exercise the section 33 discretion in his favour. On the contrary, a fair trial (which must surely include a fair opportunity for the defendant to investigate the allegations …) is in many cases likely to be found quite simply impossible”.


That passage was in fact referred to in the conclusions of IICSA, which decided that the three-year period should be removed, but that there should be

“express protection of the right to a fair trial, with the burden falling on defendants to show a fair trial is not possible”.

The Government responded to IICSA’s report and did not support getting rid of limitations. The Government acknowledged the importance of Section 33 and made this point:

“A limitation period also encourages disputes to be resolved timeously thus promoting finality and certainty. Both are key cornerstones of the legal system. As such, the Government’s opening position, ahead of consultation, is that it does not support this option”.


Nor did they support a special limit for claims arising from sexual abuse. I remind the Committee that, in 2017, in the case of Carroll v Chief Constable of Greater Manchester Police, the Court of Appeal emphasised the unfettered nature of the Section 33 discretion.

My question to the Government at Second Reading was essentially this: what cases do they envisage would now be allowed to proceed which would not have done under the current law? I do not expect an immediate answer, but the Government have now had plenty of time to consider their response. There was a consultation following the Government’s response that I referred to, but it was not particularly large and did not contain consistent answers.

Changing the law of limitation is best an exercise following the careful balancing of respective interests, perhaps by the Law Commission. What appears to have happened here is that the Government, notwithstanding the initial view that I referred to, have decided to come up with some sort of compromise. In doing so, I fear they have produced in Clause 82 a real dog’s dinner of a provision.

Clause 82 is headed:

“Removal of limitation period in child sexual abuse cases”,


but it does not do that. It specifically provides that sexual abuse is in a separate category from, for example, physical abuse, although this was precisely what the Government did not want when they responded to the original recommendations. It contains a rather unclear provision that, when a dispute has been settled, it will no longer be subject to these new provisions. It probably does not include discontinued claims or claims settled otherwise than by way of a formal agreement.

New Section 11ZB contains some very unclear provisions as to the circumstances in which the court can dismiss an action, while at the same time containing in new subsection (2) the provision:

“The court must dismiss the action if the defendant satisfies the court that it is not possible for a fair hearing to take place”.


The interrelationship of new subsections (2) and (3) is incoherent and will inevitably result in litigation. The lack of clarity on what is and is not sexual abuse, and what is and is not settlement, will, I fear, also give rise to litigation.

I agree with the Opposition Front Bench’s probing amendment that we should get rid of new Section 11ZB(3), but that would leave a repetition of what the law is anyway and would not deal with the points about what constitutes sexual abuse or settlement via agreement. My conclusion is that there is absolutely nothing wrong with the law as it is. This rather messy compromise will give rise to unnecessary litigation and I am unsure it will provide remedies where remedies are not already available.

Sexual abuse, particularly of children, is abhorrent, and we now know there has been far more of it than was originally perceived. It is, however, important to point out that claims are not usually made against individual perpetrators; one can understand why there would not be much sympathy for a claim being brought, however late, against such a perpetrator. The usual defendant is, for example, a school, religious organisation, local authority or even central government. They may or may not have any knowledge of what happened but, because of the expanded doctrine of vicarious liability, will be deemed in law to be responsible for what occurred. They may or may not be covered by insurance.

As Lord Brown pointed out, there will come a time when it is quite simply inappropriate, many years later, for claims to be brought before the court. However sympathetic one is to the victims of sexual abuse, the law currently caters adequately for the balance between the interests of claimants and defendants. If we include Clause 82 in the Bill, I fear we will make bad law. The clause should not stand part.

[Baroness Brinton (LD)]

My Lords, I have signed Amendment 289. This is the first opportunity I have had to speak in Committee because of family illness, and it is good to be back.

In a previous group of amendments last week, the Committee heard the concerns of a number of Peers worried that the Government’s proposals might not ensure a fair route to reporting child sexual abuse. This amendment is just as important, and I thank the noble Lord, Lord Davies of Gower, for tabling it. I also thank the noble Lord, Lord Faulks, for his helpful exposition of the legal details. I come to this as a champion for victims, rather than from the legal perspective.

Despite the many concerns about those accused of child sexual abuse being able to escape from the accountability provided by the courts, the Bill, in Clause 82, lines 3 to 11, lays out a specific route for those accused who the courts “must”—a strong word; we note that it does not say “consider”—cease action against if the defendant in question claims

“there would be substantial prejudice to the defendant”

if the proceedings were to proceed. To put it bluntly, this is a gift to any defence lawyer. Much of the evidence heard by the Independent Inquiry into Child Sexual Abuse was scenario after scenario where senior people—clergy, politicians, police officers, magistrates and so on—were able to cover up what had happened because they were in a position of power over the victim, and, quite often, over potential witnesses too.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Ministry of Justice (Baroness Levitt) (Lab)]

My Lords, before I speak to Amendment 289, I thank my noble friend Lady Royall, who is not in her place today because she is ill, and Mr Stephen Bernard, both of whom met me recently. We discussed both the impact of the limitation period on victims and survivors of child sexual abuse and their concern over the test of substantial prejudice within this clause. I was moved by what Mr Bernard told me and I thank him for his courage in telling me about what happened to him.

I thank the noble Lord, Lord Davies of Gower, for moving Amendment 289. I hope both my noble friend Lady Royall and the noble Lord will be reassured that I fully understand the sentiment behind the amendment. I thank the noble Baronesses, Lady Brinton and Lady Doocey, and the noble Lords, Lord Pannick and Lord Blencathra, for welcoming the general spirit of the clause and for their constructive comments. I make it clear that we absolutely do not want to add additional or unnecessary barriers to stop victims of child sexual abuse from proceeding with their civil claims. So I have asked my officials to look closely at the issues this amendment raises for further consideration, and I aim to provide a further update to your Lordships on Report.

Turning to the opposition of the noble Lord, Lord Faulks, to Clause 82 standing part of the Bill, I think he is well known for being very expert in this area and I pay tribute to that. But Clause 82 implements important recommendations made by the Independent Inquiry into Child Sexual Abuse. The noble Lord raised concerns during Second Reading and again during this debate that the reform is unnecessary and would lead to greater uncertainty and litigation, but, with respect, I disagree. The inquiry looked at this in great detail. It found that the limitation period for civil claims itself acted as a deterrent to victims and survivors—just the very fact that it existed. The inquiry also found that it acted as a deterrent irrespective of the existence of the discretion in Section 33, and the inquiry therefore found that Section 33 did not provide sufficient protection for victims and survivors.

The inquiry found that the regime acted as a barrier to claimants at three stages: first, solicitors’ willingness to take on claims, because it can make it really hard for them to find a lawyer to represent them; secondly, the settlement and valuation of claims, because it can lead to victims accepting lower settlements because of uncertainty about the limitation issue; and, thirdly, the hearings themselves in relation to the limitation period, the effect of which on the claimants was described as “intrusive and traumatic”.

I think the noble Lord will find that it was not this Government who said they were not in favour of these recommendations; it was actually the previous Government. This Government accepted the recommendation in February of this year and are satisfied that Clause 82 is necessary and proportionate. The courts are perfectly capable, as the noble Lord, Lord Blencathra, said, of deciding when a claim is inappropriate or unfair and should not succeed. This Government and my department put victims at the heart of everything we do. This is why we believe that this reform is necessary and important for victims and survivors. On that basis, I invite the noble Lord, Lord Davies, to withdraw his amendment and I hope the Committee will join me in supporting Clause 82.

[Lord Faulks (Non-Afl)]

The noble Baroness is quite right that the response to IICSA came from the previous Government. It was written by the Ministry of Justice and signed by the noble and learned Lord, Lord Bellamy. While not in any way undermining his contribution to whatever was produced, I suspect that it was the work of government lawyers, approved by him. It was a careful study of the law by reference to, for example, the operation of Section 33 of the Limitation Act 1980. IICSA was not a Law Commission or law reform body, and it covered a huge area of inquisition. It had to cover so many areas that many people doubted whether it had any utility. I am not suggesting that, but it was not primarily concerned with civil claims as such. What I would like to ask the noble Baroness is this: Section 33 has been in operation since 1980. I can tell her, and I am sure she will accept from me, that it is used a great deal by many claimants represented by firms of solicitors. Very often, limitation is not even considered, because as she quite rightly says, very often somebody will delay a considerable time before bringing a claim, and quite rightly so. But why, I ask, is she satisfied, given the wideness of the discretion, that Section 33 does not work as it is?

[Baroness Levitt (Lab)]

My Lords, it is no answer to say that another Government considered it carefully: different Governments have different priorities. I am not sure that that is going to come as a great surprise to the noble Lord. As for Section 33, this Government are satisfied that it does not provide sufficient protection.

--- Later in debate ---

[Baroness Chakrabarti (Lab)]

My Lords, I support the amendment from the noble Baroness, Lady Brinton. I need not take very long, because she has explained her very straightforward amendment impeccably. After the brilliant previous group led by the noble Baroness, Lady Bertin, and her team, perhaps there is no need to go into all the quite serious sexual contact included in Section 9 of the Sexual Offences Act that need not necessarily be tried in the Crown Court.

I support the amendment for two simple but important reasons. First, there is some very serious sexual activity with children that could be tried in the magistrates’ courts—there is not necessarily a problem with that. Secondly, there is the obvious reason of historic child abuse and victims coming forward sometimes only many years after the fact. Those are very good reasons to depart from the norm of the six-month time limit and, indeed, to have no time limits at all.

[Lord Faulks (Non-Afl)]

My Lords, I absolutely accept much of what the noble Baroness, Lady Brinton, has said about the awful nature of historic child abuse and the reasons why there is often a delay before bringing forward complaints, but it is important that we do not conflate civil proceedings and criminal proceedings. The earlier group was to do with people claiming damages, where the defendant is not usually the perpetrator. There may be reasons why we have reached a stage where there cannot be a fair trial. I will leave that aside for the moment.

This amendment is concerned with criminal offences. There is not a limitation period for criminal offences generally, subject to the prosecution deciding that so much time has elapsed that it is not appropriate to bring forward a claim. The noble Baroness has experience of occasionally making those decisions in very old cases. The Minister is pointing at me and is going to give a longer and more authoritative answer than I will attempt to do now. I make the point in general terms.

[Lord Garnier (Con)]

My Lords, I agree with the noble Lord, Lord Faulks. While I entirely understand the motivation behind the amendment from the noble Baroness, Lady Brinton, I am not entirely sure that it is necessary. As the noble Lord said, there is no limitation for the bringing of this particular Section 9 offence.

I do not wish to get into my anecdotage, but I remember that, as a law officer, one very often had to deal with historic offences whereby a mature person, in their 50s, 60s or 70s, was being indicted or prosecuted for an offence they committed many years ago against a minor. Had the problem existed that the noble Baroness, Lady Brinton, envisages through her amendment, that would have been a matter we would have had to consider. As the Minister will no doubt tell us from her experience as someone who worked at a senior level in the Crown Prosecution Service, you have to consider whether there is an adequacy of evidence and whether it is in the public interest to bring that person to trial. The age of the offence might be considered by the prosecutor, but there is no time bar, as I understand it. While I may well be corrected for being out of date and ignorant, I certainly do not think that there is a need for this amendment, although it is well motivated.

I have a suspicion that I have got this entirely wrong and that the Minister is going to tell me that it would have been better if I had kept to my place, but there we are. There are plenty of things that we could do with the Bill—make it shorter, for example—but I am not sure that this amendment is one that we need to add to it.

Criminal Court Reform

Lord Faulks Excerpts

Tuesday 2nd December 2025 Lords Chamber

[Baroness Levitt (Lab)]

I am very grateful to the noble Lord for the points that he made. It will not surprise him to hear that I will not respond to most of them other than by saying yes. But in relation to the defendants, it is a point very well made. I was a defender for much of my career, and I entirely agree with what the noble Lord said. There will be people within the system waiting for their trials who are unable to get on with their lives because they are on bail for an offence. We need to think about them as well.

[Lord Faulks (Non-Afl)]

My Lords, I too welcome the Statement. I congratulate the Government on having the courage to confront a really difficult issue. The status quo is quite unacceptable. I would rather hope that this House and Parliament in general could treat this on a non-party-political basis. There are a lot of reasons why there were delays; some of them were due to Covid, which is a non-party-political issue. But I have long thought that fraud trials, for example, are very often wholly unsuitable for juries. I am glad that the Government acknowledge that.

As to the question of judges and reasons, I have just two questions I would like to ask the Minister. I would have thought that judges, when they do determine these things, might well give reasons. That would be consistent with Article 6 of the European Convention on Human Rights. There would be a considerable advantage to potential appellants, because they would know the reasons why they had been convicted; whereas at the moment, with jury verdicts, you have the board verdict of guilty or not guilty. You do not know whether they have taken into consideration relevant consideration or irrelevant considerations.

My other question is this. The Statement reads:

“Our world-leading judges should hear the most serious cases”.


Standing back, does it occur to the House and, indeed, to the Minister that it is slightly odd that the 90% or so of the trivial offences are tried by those with professional experience, and yet we give the most serious cases to 12 conscientious but random people taken off the street?

[Baroness Levitt (Lab)]

I thank the noble Lord for his observations. As far as reasons are concerned, yes, absolutely: judges sitting alone will give reasons. Not only is it useful for appellants to know why but it can be useful for witnesses as well.

One often hears victims who have been through the system say that if the case results in an acquittal, that is bad enough, but not knowing why the defendant was acquitted is really hard for them. Transparency is important in the criminal justice system, as it is in all systems. That is one of the reasons why we are now going to make the magistrates’ court a court of record. All proceedings in the magistrates’ court will be tape-recorded, and we are going to use artificial intelligence to provide transcripts so that people can get transcripts of what has happened much more often and can follow and read at their leisure.

As far as the point about serious cases is concerned, I have been very careful not to talk about seriousness but to talk about length of sentence. Every case is serious to those involved in it, particularly to the victims, and it would be wrong to downplay that. It is also important to note that the magistrates’ court consists of not just lay justices—justice by your peers—but professional magistrates, known as district judges these days. It is a combination who deal with these matters.

Child Grooming Victims: Compensation Awards

Lord Faulks Excerpts

Thursday 20th November 2025 Lords Chamber

[Baroness Levitt (Lab)]

The Government were extremely saddened by the resignation of those victims, and they are always welcome to rejoin and re-engage with the process—we very much hope that they will. The process of appointing the chair is well under way. As I have already said, the noble Baroness, Lady Casey, is assisting with this. It would not be helpful to give a running commentary on what is happening, but it is important to the Government to get on with this.

[Lord Faulks (Non-Afl)]

My Lords, the Minister mentioned three possible avenues for compensation. I think she would accept that the largest award is likely to be if there is a civil claim, rather than the other two avenues. Can she help the House with who the potential defendants in such a claim might be? I am not asking for her legal advice but for some general guidance if this is to be a realistic remedy.

[Baroness Levitt (Lab)]

Of course, we are speaking generically about victims of grooming, but they may fall into a number of different categories. There are the grooming gangs, about which a great deal has been heard, but there are also, for example, victims of online grooming. So I cannot really give an answer as to who the potential defendant is going to be that will actually deal with all the victims. That is a case-by-case decision to be made.

Financial Provision on Divorce

Lord Faulks Excerpts

Monday 10th November 2025 Lords Chamber

[Lord Faulks (Non-Afl)]

I, too, congratulate the noble Baroness, Lady Deech, on introducing this debate, and I congratulate her and the noble Baroness, Lady Shackleton, on their tenacity in bringing these issues before the House.

A lot has happened in society since the 1970s, when Parliament last intervened, and the heavy lifting in the development of the law has been done by the judges. They have introduced in various cases quite a lot of different expressions. I declare an interest as a barrister, and one who was recently instructed in the two cases mentioned by the noble Baroness, Lady Deech: Standish and Potanin. Some of the concepts that they have introduced, such as needs, as already mentioned, present a very different concept of what needs would normally be expected to mean, for example. Then there is the sharing principle, the yardstick of equality, matrimonialisation of property, mingling, compensation, stellar contribution —and then the very difficult thing that judges apparently have to assess sometimes, matrimonial endeavour. I am sure that all of us would ask ourselves from time to time whether we have been sufficiently endeavouring matrimonially.

The problem is that there is a very big discretion. The issue always, for a court, and indeed for so much of the legislature, is flexibility versus predictability. The difficulty is the 1970 Act; the 1973 re-enactment of the 1970 Act contained no statutory aim, just a big discretion. What is fair is rather subjective and can be different in the eyes of different judges. Sir Nicholas Mostyn, a retired High Court judge, never short of a forthright opinion in this area, is quoted in this very substantial document from the Law Commission. He described the approach of the judges as having a “woolly discretion”. His view was that the law,

“will never be predictable, transparent, economical or consistent”

as it is at the moment. Surely, we need to attempt some form of legislation, such as the Bill suggested by the noble Baroness, Lady Deech. I do not know, but I am sure that she would not be wedded to every single word of that Bill. It is at least a significant improvement on the current uncertainty that prevails.

Finally, let me deal with the question of prenuptial agreements. The House of Lords was clear—or at least eight out of nine of them were clear—as to what the approach should be. One would have thought, reading that case, that judges would be all too keen to honour prenuptial agreements where they had been reached. In fact, quite a lot of judges seem to take the view that, if it turns out for one reason or another—and stuff happens in life—that the prenuptial agreement does not seem to them to be fair, as things now are, they find some reason to avoid the consequences of the prenuptial agreement, thereby completely undermining the public policy that was identified in that seminal case.

There is a public policy, I suggest, in favour of marriage, and if people, particularly people in their second marriages, are very hesitant to approach the question of marriage without a prenup—because who knows what might happen and what other people might have claims—it is simply contrary to public policy not to have a statute. I do not find the argument that we cannot do anything until we do everything, which was the answer we got last time from the noble Lord, Lord Timpson, the Minister’s colleague, very satisfactory. Let us do something; preferably let us do everything, but let us not sit back and say we can solve the problem only if we solve every single issue.

The scoping paper does not provide any answers, but it provides some options. I congratulate, rather late in time, the Minister on her appointment. I think she has policy responsibility. Please give an answer that previous Ministers, including me, were unable to give.

Trial by Jury: Proposed Restrictions

Lord Faulks Excerpts

Monday 14th July 2025 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

I agree with the noble Lord—of course I would agree because, as a magistrate, I was among those who hear 90% of all criminal cases. There is no right to a jury trial; however, there is a right to a fair trial. For a fair trial, it must be heard in a timely manner. That is where we are failing. We need these systemic changes to address that fundamental problem, so that people—both victims and defendants—can get a fair trial in a timely way.

[Lord Faulks (Non-Afl)]

My Lords, further to the question from the noble Lord, Lord Pannick, can I ask the Government to take particular note of the recommendation in relation to fraud trials? This is not a new suggestion; it goes back to Lord Roskill about 50 years ago. These are very lengthy, very expensive trials, which are often very difficult for juries to understand—that is not in any way to patronise the jury system. It would save a great deal of time and money, and would help with the backlog, if we moved to a system of trial that does not involve juries.

[Lord Ponsonby of Shulbrede (Lab)]

The noble Lord makes a very good point. It was a recommendation of Sir Brian’s, and I am sure it is one on which the Government will reflect very carefully.

Crown Court Criminal Case Backlog

Lord Faulks Excerpts

Thursday 20th March 2025 Lords Chamber

[Lord Faulks (Non-Afl)]

My Lords, I too congratulate the noble Baroness, Lady Longfield, on her excellent speech. I declare an interest as a practising barrister and a former recorder of the Crown Court. There is no doubt about the disastrous consequences of delays. They are unfair to defendants and to witnesses, particularly complainants, and they bring the whole justice system into disrepute.

The Constitution Committee considered the effect of Covid on court backlogs when I was a member of it. It was right to do so; it is a constitutional issue. I was anxious to explore the possibility of reducing jury trials and replacing them with a mode of trial by judge only, or by a judge and two magistrates. My colleagues were a little uneasy about this suggestion, although I spoke about it in your Lordships’ House. I even asked a question addressed to the noble and learned Lord, Lord Bellamy. I suggested that a defendant at least should have the right to choose to be tried by a judge rather than a jury—a pretty modest proposal, but I was met with a very firm response in the negative.

It is time to think quite seriously about jury trial. Of course we have a strong romantic attachment to it. We know very little about why juries come to their decisions. Anecdotes about the process are not always reassuring. We infantilise juries by only allowing the admission of evidence that we think they can handle, rather than allowing them to decide what is important. We do not require any reasons to be given for their decisions, which makes the appeal process difficult.

It is worth standing back and considering why it is desirable that more than 90% of all offences are tried by those with expertise—either district judges or magistrates who are trained and have a legal adviser—but, for the 5% or so of the most serious offences, we think it wise to allow them to be tried by a random selection of citizens who will, no doubt, do their best. It should, perhaps, be borne in mind that we used to have jury trials for personal injury and libel cases. Their absence is not missed. Nor are juries a universal feature of the criminal justice system. Of course, I pay regard to what the noble Lord, Lord Carlile, said about this. I congratulate him on bringing forward this debate.

Three minutes is not long enough to develop this important topic, but I would commend a chapter by the late and much missed Lord Brown of Eaton-under-Heywood in his book, Second Helpings. It was more than 50 years ago that Lord Roskill suggested that fraud cases should not be tried by juries.

These backlogs allow us to think about the future of this mode of trial. I hope this Government are rather more amenable than their predecessor to the possibility of at least restricting trial by jury, perhaps through intermediate trials. It is not a good idea to abolish something because of the backlogs, but the backlogs allow us to think carefully about what we need to do by way of trials.

Prenuptial Agreements

Lord Faulks Excerpts

Thursday 27th February 2025 Lords Chamber

[Lord Faulks (Non-Afl)]

My Lords, I congratulate the noble Baroness, Lady Deech, on securing this debate and on her persistence on this issue in the face of government inactivity. It is also a great privilege to follow the noble and learned Baroness, Lady Butler-Sloss, with her immense experience of these cases. I declare an interest as a practising barrister, and, although not one primarily concerned with family law, one who has a forthcoming case which concerns a prenuptial agreement entered into by a husband and wife, the issue being whether or not the parties are to be bound by that agreement.

The burden of what I wish to say is that it is high time Parliament intervened. The result of intervention should be fewer cases such as the one I have just referred to. There is evidence, referred to by the noble Baroness, Lady Shackleton, that the courts are being increasingly troubled where one party or another to a marriage does not wish to be bound by a prenup, claiming that they did not enter into the agreement freely or that the circumstances have changed since the marriage, making it inequitable to rely on the agreement.

The law in relation to what used to be called “ancillary relief” on divorce gives the court a very wide discretion but gives it no clear guidelines as to how to apply that discretion. The Matrimonial Causes Act 1973 simply lists the vast number of factors that have to be taken into consideration. The result has been that the courts themselves have developed the law, which, although it has avoided some cases reaching court which might otherwise have done so, still leaves a considerable degree of uncertainty as to the outcome of proceedings that might be contested. I have here this very large volume from the Law Commission—the scoping paper referred to by a number of noble Lords. The Law Commission produced a clear and helpful summary of the issues, as one would expect, but did not come to any very firm conclusions as to what the appropriate legislative response to the uncertainty created by this wide discretion should be.

The Law Commission, however, has made some very clear suggestions for reform of prenuptial agreements. For a prenup to be “a qualifying nuptial agreement” it should be contractually valid on ordinary principles, it should be entered into by way of a deed, there should be disclosure of material financial information by both sides, and both sides should have independent legal advice. There is an additional proposal that such an agreement would not qualify if made less than 28 or 21 days before the marriage ceremony. I agree with all the other proposals, but I am slightly doubtful about the 28-day cooling off period. However, that is the sort of detail that could be ironed out during the passage of any Bill through Parliament.

Why has there been no response to what is now a series of quite old recommendations by the Law Commission? In 2014 the then relevant Minister, Simon Hughes, said there was insufficient time because there was to be a general election in 2015. I was a Minister in the MoJ at the time, although not one with responsibility for this particular area of the law, but I remember answering a question in your Lordships’ House and giving a similar answer to the one Simon Hughes had given. The answer given, on the other hand, by the noble and learned Lord, Lord Bellamy, to a similar query in 2022 was that the Government were considering the matter in the context of a wider review.

In the meantime, as we have heard, the courts took some significant steps to clarify the position in the case of Radmacher v Granatino. The Supreme Court had decided by a majority of eight to one, and I quote one particular passage which summarises their view:

“It would be natural to infer that parties who entered in enter into an antenuptial agreement to which English law is likely to be applied intend that effect should be given to it”.


The dissenting voice was the formidable one of the noble and learned Baroness, Lady Hale. On reading her judgment, she seems to have been concerned, understandably, that there was a possibility of a significant change in roles post marriage, which would mean that the agreement was unfair. I note the comments of the noble and learned Baroness, Lady Butler-Sloss, about what might be regarded as a very significant change in circumstances. As I apprehend what she was suggesting, it is not meant to be a general discretion but a discretion in very exceptional circumstances. The risk, of course, of having a discretion at all is that it can mean we are back to square one, as it were. If there is to be that discretion, I would respectfully suggest that it be severely circumscribed and limited.

My submission to the Government is that the time for action has come. We are still four and a half years away from a general election; there is thus plenty of time for this sort of legislation. I acknowledge that law reform is not always high on the list of priorities of a Government trying to make a significant change in this country, but surely the time has come to respond. The Minister may not be a particular expert in this field—although he has great expertise in other fields, of course—but I ask him to take back to the department the concern already expressed in this debate, and that I suspect will be expressed in speeches after mine, and ask his colleagues to prioritise reform in this area as soon as possible.

The response of the noble and learned Lord, Lord Bellamy, that reform should be part of a “wider picture”, is not one that I suggest the Government should make. It is very tempting to say, “Well, if you are going to address changes to financial provision on divorce, you want to tackle all the issues in one go”. But in the light of the ambivalence in the suggestions in the scoping report about more generally legislating, it would be most unwise simply to wait and produce legislation that covers all the uncertainty. It would be much more sensible, I suggest, to grapple with this relatively simple change to the law, which would be consistent with the law in continental Europe and probably in Scotland. It would also reflect, largely, the desires of those who consider entering into a prenup.

It is worth reminding noble Lords that it would not be compulsory to enter into a prenup, but where the parties have significant assets and are concerned about the future, particularly in the case of second marriages, as the noble Baroness, Lady Deech, said, the absence of legislation runs the risk of dissuading people from getting married at all—and not all of them, of course, are in your Lordships’ House. When I last looked, public policy remains in favour of marriage; it even finds reflection in the European Convention on Human Rights. I suggest to the Government that the time has come for action.

Criminal Justice System: Capacity

Lord Faulks Excerpts

Tuesday 22nd October 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Baroness for that question. In a sense, she exemplifies the difficulty of the various matters we are grappling with when trying to address the overall problem of having this large number of people in prison at the same time as the riots were happening over the summer period. I acknowledge that that is a difficult situation. Regarding the IPP sentences, the Government have set up an IPP action plan which they are working at full speed on, and proposals will be coming forward in due course.

[Lord Faulks (Non-Afl)]

My Lords, the Minister described very well the process which he undertook when sentencing somebody, giving them a sentence of imprisonment only when other avenues had been properly explored. I was a recorder for some considerable time and that very much echoes my approach and, I suspect, the approach of most judges: a real reluctance to send people to prison unless there is no other alternative. However, during the last Labour Government, there was an enormous amount of legislation changing the sentencing powers of judges and magistrates—particularly judges—and not trusting the judges to make their own assessment of what the appropriate sentence was. When there is this review of the appropriate response to the prison crisis, can the Minister convey to his colleagues that it is not a good idea to fetter the discretion of a judge and prevent them coming to the right conclusion in the right case?

[Lord Ponsonby of Shulbrede (Lab)]

I think I can reassure the noble Lord. It is intended that we will have very senior former judges on the sentencing review, who I am sure will take to heart the noble Lord’s point.

Strategic Lawsuits Against Public Participation

Lord Faulks Excerpts

Wednesday 24th July 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, there are various attempts at dealing with SLAPPs in different legislatures across the world. The Government are currently working with the Council of Europe, with its 46 member states, to try to get a more comprehensive approach. The noble Lord’s experience in Ontario, which he referred to, will be taken into account.

[Lord Faulks (Non-Afl)]

My Lords, I congratulate the noble Lord on his appointment. He is of course doubly there—he is not only elected but appointed, which gives him particular status on the Front Bench. I sympathise greatly with his position in the Ministry of Justice, which he will much enjoy. He will remember the terms of the amendment put down to the then Economic Crime and Corporate Transparency Bill; it was a start, but will he agree that it is important that we have really muscular legislation? Can he bear in mind that his own Foreign Secretary said that these SLAPPs have the effect of

“stifling effectively not just the rule of law and freedom of speech, but particularly going to journalists doing their job”?

[Lord Ponsonby of Shulbrede (Lab)]

Regarding the noble Lord’s opening comments, I am a hereditary Peer, though not an elected one, but I am a life Peer, which is the reason I am standing here at the moment. The noble Lord is absolutely right: my right honourable friend David Lammy has expressed very strong views on this matter, which is one that the Government are taking seriously. As I tried to reassure noble Lords in my earlier answers, we want to get this right and to be trenchant in the legislation that we bring forward.

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.