Safety of Rwanda (Asylum and Immigration) Bill

Debate between Lord Faulks and Baroness Butler-Sloss

Committee stage
Monday 19th February 2024 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I was in a queue waiting to pay my bill at dinner and therefore arrived a few minutes late. I am very grateful for the Committee allowing me to speak.

I listened with particular interest to two of the most distinguished lawyers in this House: the noble and learned Lord, Lord Hoffmann, with whom I sat on the Court of Appeal regularly, and the noble and learned Lord, Lord Etherton. There is undoubtedly a potential dispute. Without going into what it should be, Clause 5(2) and (3) exclude the English court. The noble Lord, Lord Jackson, complained about the international court; ought we not to be complaining that the English court is excluded?

If there is to be a dispute with the Court of Human Rights, we might bear in mind that we are a member of the Council of Europe. If we blatantly refuse to follow the ECHR at Strasbourg, we might be turfed out, like Russia. Would we want to be the second country after Russia to be excluded from the Council of Europe? Some might not care, but others might think it would not look very good.

What I am complaining about is that Clause 5(2) and (3) will stop our domestic court making a decision. That seems a very good reason to support some, if not all, of the amendments.

[Lord Faulks (Non-Afl)]

My Lords, these amendments all concern the response to interim orders of the European Court of Human Rights—not a foreign court, I entirely accept, but a court of which we are a member. At Second Reading, I absolutely accepted that courts, particularly domestic courts, will need to have powers to make interim orders—to stop a child being taken from the jurisdiction, or to stop someone disposing of assets, knocking down a building or any number of different matters that ought to be ruled on immediately, rather than waiting for the worst to happen.

However, the granting of such orders, particularly if they are obtained ex parte—that is, in the absence of the other side—is always subject to stringent safeguards, and none seemed to be honoured when the court in Strasbourg determined that the Government could not remove an asylum seeker to Rwanda. We still do not know who the judge was; there is no record of his or her reasons. That is why I asked the noble Baroness, Lady Chakrabarti, whether she could enlighten us as to the reasons why the order was made. She told us that they would be made only in extremis, when an individual was likely to suffer death or something similar, but there is no explanation of the reasons or any basis on which they came to that conclusion. We do not know what the reasons were.

European Union (Withdrawal) (No. 5) Bill

Debate between Lord Faulks and Baroness Butler-Sloss

Committee: 1st sitting (Hansard): House of Lords
Monday 8th April 2019 Lords Chamber

[Lord Faulks]

The amendment says, “nothing … prevents”, which I suppose could be said to be saying that the royal prerogative exists—so to that extent it is unnecessary—but it restricts what the Prime Minister can do in its final words. That is my answer to my noble and learned friend.

The wise words of the noble Lord, Lord Norton of Louth, at Second Reading about the constitution are particularly relevant in this context. One of the repeated observations from the EU is that it wants to know what the UK wants. In the context of this Bill, it will ask the reasons for the extension. What answer is the Prime Minister supposed to give, acting as an agent for this disunited Parliament?

This amendment is a worthwhile attempt to clarify the mandate, which apparently the Prime Minister has by virtue of this Bill, but I doubt it is necessary, for the reasons I have given, and I suggest that the House thinks long and hard before making such an important change.

[Baroness Butler-Sloss (CB)]

Will the noble Lord answer the points of concern of the noble Lord, Lord Pannick, as to why Amendment 7 is needed?

[Lord Faulks]

I do not want to misrepresent what the noble Lord said, but he suggested that there might be some legal uncertainty and that, theoretically at least, I or some other barrister might be instructed to argue something in court, and this is to avoid legal uncertainty. I am all for avoiding legal uncertainty, but the existence of the royal prerogative can surely not be in doubt, and this is, I suggest, an attempt to fetter that royal prerogative.

I finish with this observation. Lord Reed, Deputy President of the Supreme Court, said in the Gina Miller case of the royal prerogative that the,

“the value of unanimity, strength and dispatch in the conduct of foreign affairs are as evident in the 21st century as they were in the 18th”.

This Bill and this amendment substantially undermine that strength.

Sanctions and Anti-Money Laundering Bill [HL]

Debate between Lord Faulks and Baroness Butler-Sloss

Ping Pong (Hansard): House of Lords
Monday 21st May 2018 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I am a vice-chairman of the All-Party Parliamentary Group for Gibraltar, which, apart from one brief mention by the Minister, has not been so far commented on. Listening to the noble Lord, Lord Anderson, I wondered, as between the United Kingdom and many of the overseas territories, where the mote and the beam lay. I will not pursue that any further, but I think that it may be where the noble Lord may not appreciate that it is.

Gibraltar is entirely compliant with all the current requirements. It is bringing a public register into its law early next year. It is unnecessary, unhelpful and inappropriate that Gibraltar should be held under the clause proposed in Amendment 22. It is not an appropriate way in which to deal, as the noble and learned Lord, Lord Neuberger, and the noble Lord, Lord Beith, have already said, with a country that has had its own constitution since 2006 and is entirely compliant. It is sad to find that countries such as Gibraltar should be under a proposed regime that would interfere with its constitution, as has already been set out.

It is obvious that what should have happened—it seems to me that the Minister was making it very clear—is that there should be encouragement to those countries that are not yet sufficiently compliant. However, that does not apply to any of the countries that have so far been referred to. It is very sad indeed that the way in which the other place has behaved on this matter brings us to this unhappy situation, pointed out so admirably by the noble Lord, Lord Beith.

[Lord Faulks]

My Lords, I think that the noble and learned Baroness is quite right with her mote and beam analogy. We must think about London, as my noble friend Lord Naseby, said. In 2016, David Cameron announced his intention in respect of anti-corruption and a register of beneficial interests. Since then we have had the Criminal Finances Act 2017 and this Bill. In both of those, my noble friend Lord Hodgson and I were keen to ensure that the Government did their best to stem the flood of dirty money, particularly into property money in London, by setting up a register of beneficial ownership which, when combined with unexplained wealth orders, might really do something to prevent what is a real obscenity about London property at the moment. So much money is flooding into the market yet so few people who start their work in London can afford to live. That is the mote that we have in London.

I wanted to press the matter to a vote, because our intention was to hurry this up, but I was met with formidable opposition from the Government, explaining how difficult the whole thing was. Finally, just before a vote might otherwise have taken place, I was reassured that there was much activity in this regard and there would be regular updates and a ministerial Statement. Sadly, the earliest the register would be legislation-ready was 2021—so five years after David Cameron’s summit. Here we have an amendment put down in the Commons after very little of the preliminaries, as has been quite rightly pointed out, with no consultation and nothing of the sort that one would expect with such a radical procedure. It states:

“The Secretary of State must, no later than 31 December 2020, prepare a draft Order in Council”.


It is a “must”, not a “may”. The only part of this amendment which is, perhaps, acceptable, is the very first part, describing the reasonable assistance to be given to the Governments of the British Overseas Territories. However, I apprehend that that is being—and has been—given for some considerable time. I disagree with my noble friend Lord Naseby on only one point: the Minister, not only today but in responding to the amendment so eloquently moved by the noble Baroness, Lady Stern, on Report, vigorously defended the position of the Government and of the British Overseas Territories in their attempt to comply with the natural desire that we all have to stamp out corruption.

This amendment goes on to require an Order in Council to be laid before Parliament, but then provides that it ceases to have effect,

“if not approved by a resolution of each House of Parliament before the end of 28 days”.

I wonder if a resolution of that sort would meet with the approval of both Houses of Parliament, having regard to the hasty way in which this amendment was introduced and to the real difficulties that it will cause to our friends in the British Overseas Territories.

This amendment is ill thought out, no doubt born out of an entirely proper desire to stem the flood of corruption. However, in so doing it damages our relationship with the British Overseas Territories at a time when we need all the friends we can get outside this country. The amendment asks them to do what is required in a timeframe which is much shorter than that for this country: the mote and beam analogy is entirely appropriate.

Civil Liability Bill [HL]

Debate between Lord Faulks and Baroness Butler-Sloss

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

[Baroness Butler-Sloss (CB)]

My Lords, this is a good Bill but it is incomplete. As the Minister will have noticed, every single speaker has said that, to be completed, it requires a legal definition. Individuals who say that they have a whiplash will have to have a medical diagnosis, but in a Bill of this sort, which is intended to deal with fraud, there absolutely has to be a legal definition, for the reasons given by my noble and learned friend Lord Judge, which I entirely support.

[Lord Faulks (Con)]

My Lords, I declare an interest as a racketeering lawyer, as my noble friend Lord Blencathra would have it, although it has been some time since I was involved in whiplash claims.

I accept that there are genuine whiplash claims and that some whiplash problems last for a considerable time and can cause difficulties that continue well beyond six months, 12 months or even two years. The majority do not. However, the legislation we are concerned with here ought to be clear—I agree with all noble Lords who have said this—which would mean a definition in the Bill. This has been a problem for this Government and previous Governments and we have to accept that we are dealing with a slippery and powerful opposition in trying to pin down this racket.

Whiplash injuries have an attraction for fraudsters because, as no doubt my noble friend Lord Ribeiro will confirm, they are difficult to prove or disprove on medical analysis—they do not show up on scans of any sort—and doctors have to rely on the veracity of the patient to satisfy themselves that they may or may not have whiplash symptoms.

We do not want to pin down a definition of whiplash injuries and the nation’s necks appear to improve, only for its lower backs to deteriorate, and suddenly we are invited to consider claims in which, as a result of some movement of the thorax, lumbar or cervical regions in an accident, all the symptoms are referable to the lower back, which is outside the definition and would be equally difficult to prove or disprove. I therefore counsel the House to use caution in saying that we must pin down the definition. As legislators that is of course desirable but we want to help the Government to deal with this problem.

A similar issue arose during consideration of the Psychoactive Substances Bill, when everyone in the House said that we must be clear as to what the substances are and put them in the Bill. However, the conclusion was that we should not do this because of the infinite adaptability of those who produce such substances. While I sympathise as a matter of principle with those who have spoken—I will listen with interest to what my noble and learned friend says—we should be careful not to do anything which may assist those who have perpetuated this racket.

Criminal Finances Bill

Debate between Lord Faulks and Baroness Butler-Sloss

3rd reading (Hansard): House of Lords & Report stage (Hansard): House of Lords
Tuesday 25th April 2017 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I support very much what the noble Lord, Lord Luce, has just said and respectfully associate myself with it. I strongly support Amendment 8. If I may put it this way, I think the Government, and particularly the Minister, have been extremely shrewd in taking the sting out of the points made by the noble Baroness, Lady Stern, who has very wisely brought these issues to this House. The Government have picked them up and produced what seems to me to be the right approach to dealing with the overseas territories. The amendment provides a useful nudge to the overseas territories that the Government are looking at what they are doing, without imposing what is unacceptable upon these independent countries with their own constitutions and parliaments.

I do not agree with Amendment 14. I was at the meeting this morning where representatives from a number of overseas territories explained to us what they were doing. We have already heard about Bermuda and the Cayman Islands, the British Virgin Islands, which are doing very good work, and from Anguilla and Montserrat about the efforts they are making. We have heard from the Minister about the Turks and Caicos Islands, which with their new Government are now working to get this through. So the areas contained within Amendment 14 are already on the way, if not ahead of us in some cases, and it is not necessary that they should be referred to specifically in it. I do not want to hold everyone up. I support Amendment 8 and I do not think Amendment 14 is really necessary now.

[Lord Faulks]

My Lords, I shall speak to Amendment 24 in my name and that of my noble friend Lord Hodgson of Astley Abbotts in this group. It concerns the setting up of a public register of beneficial ownership of UK property by companies and other legal entities registered outside the UK. Those are more or less the words that are the subject of a call for evidence issued by the Department for Business, Energy and Industrial Strategy in April this year. I do not know but I assume that the Home Office did a great deal to bring forward the publication of that report in the light of the debates which took place in Committee about the concern that was generally expressed about corruption and the acquisition of property in central London by overseas companies hiding behind anonymity.

The establishment of a public register was indeed a commitment made by the Government. Why do we need a register of this sort? I can do no better than quote briefly from the call for evidence, which says,

“the government is concerned about the potential for illegal activity to take place through overseas companies investing in the property sector. Some properties are owned through off-shore companies in order to obscure their true owners. This can make it difficult for regulators, legitimate businesses and the general public to know who the true owners are and can make it very difficult for law enforcement agencies to carry out effective investigations … Greater transparency of property ownership will make the job … easier and will discourage criminals and the corrupt from choosing the UK to hide or launder their money”.

It is made quite clear that the Government intend to introduce a register of beneficial owners of overseas companies but, as it is a call for evidence, it does not seek to prescribe the nature of that register but calls for advice and information to assist it in formulating the register. It may well be influenced by what the noble Lord, Lord Eatwell, said about verification to make any such register particularly useful.

The amendment in my name and that of my noble friend Lord Hodgson simply asks the Government to do that and make it a part of the Bill. If we do not, there is real feeling that there will not be legislative time even in the Parliament that may start in June. I ask the Minister to reassure us that the register will be set up in short order.

Prisons: Staff Safety

Debate between Lord Faulks and Baroness Butler-Sloss

Monday 11th July 2016 Lords Chamber

[Lord Faulks]

With great respect to the noble Lord, that is a little unfair. The judges will of course determine the length of the sentence by reference to a whole host of factors: the seriousness of the offence, the history of the offender, and the best way both to protect society but also to rehabilitate. I know that judges always consider alternatives and that sentencing prisoners to prison will only be the last resort; very often judges will say, “I will sentence you to the least possible sentence that I am permitted”. Therefore the judges do not, as it were, oversentence.

[Baroness Butler-Sloss (CB)]

My Lords, I happen to know someone who is in prison at the moment, so I will pick up on, as the Minister put it, the frustration of being locked in a cell for 23 hours a day. What will be done about that?

[Lord Faulks]

Clearly, the prison governor at each prison will have to focus his or her attention on that. As the noble and learned Baroness will know, more autonomy will be given to prison governors, and one of the main objectives of that is to ensure that, so far as possible, prisoners have a greater time out of their cell engaged in purposeful activity or on courses or otherwise, not simply locked up in their cell.

Marriage: Humanist Ceremonies

Debate between Lord Faulks and Baroness Butler-Sloss

Thursday 21st January 2016 Lords Chamber

[Baroness Butler-Sloss]

I find this very difficult to understand. Why, if it was right to have a review of marriage generally, did we have the same-sex marriage Act but not allow the same for humanists? There is an unacceptable discrepancy there, and I speak as someone who is not a humanist.

[Lord Faulks]

It is not of course, as the noble Baroness would confirm, that we do not allow humanist marriage—a civil marriage can take place followed by a humanist ceremony. The gravamen of the complaint is that they cannot take place simultaneously.

Legal Aid, Sentencing and Punishment of Offenders Act 2012

Debate between Lord Faulks and Baroness Butler-Sloss

Wednesday 10th June 2015 Lords Chamber

[Lord Faulks]

I am grateful to the noble Baroness. I know that this was part of the Liberal Democrat manifesto. It is a matter on which, at the moment, we have no plans to legislate. The Liberal Democrat manifesto contains a number of wise things, including the suggestion that we should,

“develop a strategy that will deliver advice and legal support to help people with everyday problems like personal debt and social welfare issues”.

I entirely agree with that.

[Baroness Butler-Sloss (CB)]

My Lords—

--- Later in debate ---

[Baroness Butler-Sloss]

My Lords, are the Government looking at the way in which exceptional circumstances are being dealt with? There is a lot of criticism that they are not being properly dealt with. Will they look at that, if they are not already doing so?

[Lord Faulks]

I think that the noble and learned Baroness is referring to exceptional funding provisions. There has been less take-up than was originally anticipated, but I am glad to say that the percentage of applications that are granted has greatly increased since April 2013 and is now 25%. That probably reflects the fact that there is a better understanding in the legal profession about exactly what the exceptional funding is supposed to cover, which is a potential breach of convention obligations or EU law. I do not think that I can comment further because the matter is the subject of a judicial review which we are resisting strongly.

Access to Justice

Debate between Lord Faulks and Baroness Butler-Sloss

Wednesday 18th March 2015 Lords Chamber

[Lord Faulks]

My Lords, the exceptional funding provisions in the LASPO Act were very specifically drawn to deal with potential violations of EU law or of the European Convention on Human Rights. We are satisfied that the Act is performing as Parliament passed it, although it is true that there have been fewer applications than we expected. We have done our best to make it easy for those people who think they come within the terms to make an application and have afforded the possibility of a preliminary view being offered by the Legal Aid Agency. The answer to the noble Lord’s other point is that some people are not getting legal aid who were previously. We have tried to concentrate on those at the bottom of society who need it most.

[Baroness Butler-Sloss (CB)]

Can the Minister say whether the Government, or the future Government if he can say, will look at the impact on private law cases in the family courts of the absence of any legal aid except in very unusual circumstances?

[Lord Faulks]

Obviously, I cannot give any undertakings for any future Government. I think the noble and learned Baroness may be referring to the problems that quite often occur with litigants in person. She will know that even before the LASPO Act 66% of people on average were unrepresented in private law cases. We understand that this can cause difficulties, but we congratulate the court staff, the judges and the Government on their ingenuity in dealing with these difficulties.

Criminal Justice and Courts Bill

Debate between Lord Faulks and Baroness Butler-Sloss

Tuesday 9th December 2014 Lords Chamber

[Baroness Butler-Sloss]

Before the Minister sits down, I wish to ask one question: how does he answer the second part of the comments of the noble and learned Lord, Lord Mackay of Clashfern?

[Lord Faulks]

It is a matter entirely for the House. The whole of the speech was before the House of Commons. It was clearly regrettable. The Lord Chancellor has written a letter which is deposited in both Houses. This House will take the view that it thinks appropriate.

Criminal Justice and Courts Bill

Debate between Lord Faulks and Baroness Butler-Sloss

Wednesday 23rd July 2014 Lords Chamber

[Baroness Butler-Sloss]

My Lords, I have a question. I apologise if the Minister dealt with it on Monday, when I was unable to stay for that part of the discussions. I referred, in my brief speech, to the family provisions for putting children into secure accommodation under, I think, Section 25 of the Children Act. Will any of those children go into secure colleges? If they will not, there is a real danger that there will not be any places for them if small secure units do not have both the children who offend under the criminal law together with the children who are beyond control under the Children Act.

[Lord Faulks]

I dealt with these points on Monday. We are proposing to keep these secure children’s homes open for the appropriate offender. The involvement of the Youth Justice Board will, we suggest, ensure that the right offenders find their way into secure colleges.

Senior Judiciary: Women

Debate between Lord Faulks and Baroness Butler-Sloss

Tuesday 1st April 2014 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I wonder whether, as a former woman judge, I might add something. I agree with what the Minister said about the problem being further down, but I wonder whether the Government might look at women who leave the professions, both the Bar and solicitors, because of the stresses of family life, who ought to be encouraged back several years later but will require some training? Nowadays, it is of course possible to go up the ladder, as indeed I did—my husband called it a hawsepipe—to go from a fairly junior position through to the High Court and even higher. You need to get the women back who have left because they have skills that are underused.

[Lord Faulks]

The noble and learned Baroness is of course right. That is probably a significant reason why more are not applying for the higher judiciary. There is flexible part-time working as a result of the 2013 Act, and I think that more people should be encouraged to sit part-time earlier in their career in order to develop the career pattern that will then make them more inclined to apply, and of course it is important that women who otherwise might not apply do so. I entirely accept that. It is something that the sub-committee on diversity and the judicial diversity task force, which are both concerned with this, are looking at very carefully.

Children and Families Bill

Debate between Lord Faulks and Baroness Butler-Sloss

Wednesday 5th February 2014 Lords Chamber

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, I am delighted to be opening the Third Reading of the Children and Families Bill. As the House will appreciate, I have joined the Bill at a late stage but I recognise how much detailed debate and scrutiny there has been in this House over many months. I hope noble Lords will agree that, working together, we have been able to make improvements to a Bill that will have a positive impact for children and young people and their families. There are some further issues where we have been persuaded that legislative changes are appropriate, and others where consequential amendments are required, so the Government tabled amendments on these areas last week. I hope that all of the amendments will be welcome, and that we will make good progress today.

Returning to the amendment, I begin by thanking my noble friend, the noble and learned Baroness, Lady Butler-Sloss, for her contributions and for bringing her experience to the debate on the amendments to Clause 11 and the issue of parental involvement. The clause has been the subject of much debate throughout the passage of the Bill and I am pleased that there has been widespread approval of the intentions behind it. Noble Lords agree that, in most cases, it is best for children to have both parents involved in their lives, but I also understand the concerns of those who have highlighted the need for a clearer understanding of the policy.

We have listened to the concerns raised by noble Lords and I repeat my thanks to the noble and learned Baroness, Lady Butler-Sloss, for her important contributions throughout the consideration of Clause 11. Our aim in tabling this amendment is to retain the principle behind her amendment agreed on Report while ensuring that it will work in practice as noble Lords intend. We have removed the phrase,

“promotes the welfare of the child”,

as it is clear that any involvement that promotes a child’s welfare will serve to further the child’s welfare, which is already captured in the main body of the clause. Retention of this phrase in the amendment would result in repetition of the wording of new subsection (2A) and might, we feel, lead to confusion. The remaining changes to the wording seek to tidy up the drafting while retaining the principle of the original amendment.

Noble Lords have highlighted a need for the clause to be clearly communicated to separating parents. We agree. I want to reassure noble Lords that we are taking steps to address any potential misunderstanding of the clause by parents, in particular through content that is being developed for the Sorting out Separation web app. When Clause 11 becomes law, we will make clear in the information on this web app—and in information about the changes that we disseminate to partner organisations—that the clause does not give parents a right to a particular amount of the child’s time. We will also ensure that the organisations with the HSSF—the Help and Support for Separated Families—kitemark have clear and accurate information about the changes. We recognise the huge expertise and experience of organisations whose work is focused on supporting vulnerable parents. Their input will help to ensure that the messaging and tone of the information that we develop is right, and that the information is properly targeted.

I hope that noble Lords will agree that this amendment meets the concerns that have been raised previously by the House. I again thank the noble and learned Baroness for bringing this important matter to the House’s attention. I beg to move.

[Baroness Butler-Sloss (CB)]

My Lords, I am delighted to put my name to this amendment and I thank the Minister for what he has said, particularly his extremely helpful explanation. I should like, through him, to thank those behind him from the Bill team and the civil servants who were extremely helpful in our discussions. They were very helpful to me and, through me, to this amendment.

I was concerned to have an amendment in these words and I am happy to accept the revision that the Government have made. I am well aware that any amendment that is not a government amendment has to be rewritten; that seems to be a given part of parliamentary life. I am totally happy with that. One of my reasons was that in the absence of legal aid in private family cases, there was a very real danger that the dominant parent would overpersuade the less dominant parent that there was a right to equal sharing of the child’s time after separation. Unfortunately, the Government began by calling this particular clause “Shared parenting”. I am grateful to them for having realised their mistake so quickly and taking it away, but the press picked it up. Consequently, people out there believe that this clause means shared parenting.

I had very useful discussions with an organisation, Families Need Fathers, and I ask the Minister to see that any information that is sent out to various organisations also goes to that one because it has an utterly sensible approach. It is very keen that the non-resident parent should have a proper connection with the child to further the child’s welfare, but recognises that it is not shared parenting. It is an extremely useful organisation and I commend it.

I want to be sure that when the information, assessment and mediation meetings take place, that is also when an explanation of what is meant by the relationship between the child and the non-resident parent is made extremely clear. Having said that, I am happy to support this amendment.

Defamation Bill

Debate between Lord Faulks and Baroness Butler-Sloss

Tuesday 5th February 2013 Lords Chamber

[Lord Faulks]

My Lords, I agree with my noble friend Lord Lester. It is possible that the House may remember the contribution that I made to the first debate when I drew the House’s attention to the protocol, which does very much what the amendment seeks to do. Under the current law it is perfectly possible, and indeed it happens on a regular basis, that a court will rule on a preliminary basis and will strike out claims, either pursuant to the CPR or under the inherent jurisdiction. They will manage the case so that preliminary matters are heard—for example, an issue as to meaning—without a full-scale trial. Judges and masters are experienced in dealing with this, and that is a matter that should be left to the protocol and to the masters to develop as a matter of practice. With respect, it is not a matter that should be put in the Bill.

[Baroness Butler-Sloss]

My Lords, I support what the noble Lords, Lord Lester and Lord Faulks, have said. I have to admit to having been a judge, but not a judge who tried this sort of case. I believe that this is a matter that should be left to the judiciary, and the amendment is overemphasising something that really does not need to be done.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Faulks and Baroness Butler-Sloss

Monday 5th March 2012 Lords Chamber

[Baroness Butler-Sloss]

My Lords, this amendment is a timely reminder of a potential major problem which already exists but which will be much exacerbated in future. I have considerable, sometimes very uncomfortable, personal experience of large numbers of experts in the courts before me, so I should like to make three specific points. The first is on quality.

Quality, as the Norgrove report said, is variable, and I can tell you that it is variable. There are experts who are over-enthusiasts. There were two extreme examples, of brittle bones and salt, which reverberated about the medical consultant profession. The trouble is that they were not the only two. Other experts are giving evidence because they happen to have a line.

When I was president of the Family Division, I had very useful discussions with the Chief Medical Officer about how we could identify appropriate people who one might call middle of the road. They were not at one or the other end of the continuum; they were not people who said, “Nobody ever injures a baby”. I once had 13 doctors giving evidence in a shaken baby case, of which there probably needed to be about five. This was absolutely unnecessary. Half of those experts were giving evidence from a preconceived notion rather than from the evidence that they actually had, and it was extremely difficult to get them to do something sensible. It was an appalling case. It was not the only one—it was just the worst that I remember.

Quality is a real point. It is not the numbers but the people who can do it that matter. The Chief Medical Officer, Sir Liam Donaldson, and I really struggled to see how we could identify for the benefit of the judiciary and the lawyers the doctors who would be middle of the road. It is unfinished business and, particularly in a time of financial stringency, it becomes all the more important. So quality is really very important.

Secondly, it is a problem of numbers—there are far too many. That ought to be dealt with in directions hearings, but they quite often get appointed before the case ever gets to the judge or the justices. Something must be done about numbers.

The third point is fees. There is no shortage of very distinguished doctors, particularly in the London area but right round the country, who will not put their heads above the parapet because they do not want to expend the time and trouble on going to court. On the fees that are now suggested—and I heard the noble Lord, Lord Beecham, talking about £90—I have heard the figure of £63 mentioned in the endless e-mails that I have had, as the noble Baroness, Lady Howarth, was saying. Quite simply, if you cannot get the best experts now, what on earth is going to happen to the welfare of these very high-risk children if they do not have the doctors to help the judge or magistrates to decide whether they can safely go home or will for the rest of their lives be denied the real natural family? It is the most appalling decision. Shaken babies are an example. There is still no agreement on whether having hematomas on the outskirts of the brain within the skull or problems behind the retina is or is not an indication of a child having been shaken rather than suffering a natural trauma. How on earth does a judge try that—and these are High Court judges—if they do not have some help? What they need is good help; they need other people who will turn up and give sensible advice to the courts.

Social workers need more support. They are not having their evidence taken sufficiently seriously, and there is no shortage of cases where it would not be necessary to have several doctors if the sensible social workers’ advice was taken by the courts. Too many local authorities are pulling their social workers out of a case after six months. In a case that takes two years, there may be four social workers in charge, and the result is that no social worker is really on top of a case. If something could be done about that, you would need fewer doctors.

The amendment deals with the review and is a timely reminder of the real need to have a look at this and involve the Chief Medical Officer—if I may respectfully suggest it—to see what could be done to get the right doctors in the right place, and not too many of them.

[Lord Faulks]

We have heard a great deal, and very helpfully, about the role of experts in family proceedings. I defer to those with much greater knowledge than I have about the various inadequacies in the arrangements that exist there. But this amendment is not, in fact, peculiar to family experts but covers the whole range of experts that assist the court.

Although all is not perfect in the litigation system, it is worth recording that considerable steps have been taken by the courts in the approach to expert evidence, particularly the various changes brought about by the noble and learned Lord, Lord Woolf, that have resulted in the timely exchange of reports, experts’ meetings and even the exciting developments known as “hot-tubbing”, which your Lordships may not be familiar with, involving experts in court at the same time and exchanging views in order to provide a synthesis for the judge in an effective way.

So, the courts themselves are providing a great deal of control over the way that expert evidence is given. The judges and the consumers of experts are in a position to judge the quality of the product, which itself provides a certain discipline that is relevant in deciding which experts are retained and how much use they are. Those of us who practise in the courts are familiar with judges expressing the view that there is no need for expert evidence on this or that case, which helps considerably.

Early directions, timely interventions by judges and the proper application of expertise by the lawyers can result in the provision of expert evidence being satisfactory. The only caveat that I would give from my experience with experts’ evidence, which relates essentially to professional negligence, is that in legal aid cases there is a continuing concern, just as there is in the context of family proceedings, that the rates for expert witnesses is so low that the best experts may not be available.

Subject to that, I am slightly concerned that this is rather outside the province of the Lord Chancellor in terms of accessibility and the quality of expert advice. The courts are making progress and will continue to do so. Nevertheless, I defer to what has been said about the family courts by the noble and learned Baroness, Lady Butler-Sloss.