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.

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.