Social Action, Responsibility and Heroism Bill

Debate between Lord Faulks and Lord Hodgson of Astley Abbotts

Monday 15th December 2014 Lords Chamber

[Lord Faulks]

I do not have the full context of what my ministerial colleague said in the House of Commons, but I do not believe that I am in error when I give the reasons for my answers to the various questions that have been posed. As I say, these words are not mere surplusage; they are put in to clarify and limit the extent to which “generally responsible” has an application.

I suggest that this provision is an important but modest reflection of what many people would say was a sensible encouragement of employers to adopt a predominantly or generally responsible attitude to the safety or other interests of others—but which, in appropriate circumstances and subject to the court’s overall discretion, allows these matters to be taken into consideration. That is as far as it goes. It is a modest but, I suggest, sensible addition to the law—and it is an addition to the law, as I think is accepted. Given the clarification I have attempted to give the noble Lord on the limit of the measure’s scope, I invite him to withdraw his amendment.

[Lord Hodgson of Astley Abbotts]

My Lords, I am grateful to my noble friend for returning to Amendment 1A. I thought for a moment that it had been forgotten in the heavy-duty exchange of legal artillery that was flying across the Chamber. I am also grateful for his reassuring remarks about the possibility of something further being introduced along the lines of “predominantly” if the Bill survives the challenge from the noble Lord, Lord Beecham. In those circumstances, I am happy to withdraw the amendment.

Social Action, Responsibility and Heroism Bill

Debate between Lord Faulks and Lord Hodgson of Astley Abbotts

Tuesday 18th November 2014 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I rise briefly to support the amendment of my noble friend Lord Hunt of Wirral, which seems a potentially sensible and proportionate addition to the Bill.

In this group, we have a clause stand part debate in the names of the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Pannick. I was wondering if they were going to speak to this because I have an interest in it.

[Lord Faulks]

I understand that the noble and learned Lord has decoupled that from the amendment.

[Lord Hodgson of Astley Abbotts]

In that case, I shall wait until the clause stand part debate and speak on that occasion.

[Lord Faulks]

I understand my noble friend Lord Hodgson’s slight surprise. It was a late, though perfectly legitimate, move. Until recently, a number of us thought that whether the clause should stand part was to be debated with the amendment. As it is, we are debating one amendment, Amendment 4 in the name of my noble friend Lord Hunt of Wirral, which would build on Clause 2 by requiring courts to consider certain factors about the nature of an organisation’s activities when determining whether it had been negligent or in breach of a relevant statutory duty. Where the organisation concerned was a voluntary organisation, the courts would have to consider what resources were available to it; whether there were competing demands on those resources; the level of training that volunteers could be expected to undertake; and how similar organisations would have provided those resources. Where the organisation was state-funded, the court would again have to consider what resources were available to it and whether there were any competing demands on funding. It would also have to consider whether there were specific reasons why funding had been allocated in a certain way and how similar state-funded organisations manage similar activities.

My noble friend was instrumental in tabling amendments to the Compensation Act 2006 during its passage through Parliament and those very much helped to improve the legislation. I am grateful for his constructive suggestions during today’s debate. In this difficult area, it is useful sometimes to think differently from the traditional way in which we have approached claims of this sort. Normally, a judge simply ignores the resources of the defendant as not being relevant. The question is whether there has been a breach of whatever duty of care is impugned by the claim. Many people believe it is relevant, as a matter of justice, to think beyond that. However, the Government do not believe that this amendment is appropriate. As I have explained, the Bill will require the court to consider certain factors to do with the context of a person’s actions before reaching a decision on liability. The Bill does not change the general way in which the courts consider claims of negligence or for breach of statutory duty. They will continue to judge a person’s conduct against that of the ordinary and reasonable man. There are a range of factors that the court already considers in determining whether reasonable care has been taken in a particular case. For example, it looks at the nature of the activity in question and the degree of care required; the gravity of the harm which might be suffered if insufficient care were taken; and the cost of mitigating any risk.

We have not attempted to set out these matters in the Bill; nor do we intend to do so. Such an exercise would add unnecessary length and complexity to what is a clear and—even its critics would accept—concise Bill.

Some noble Lords have already expressed reservations that the current Bill fetters the discretion of the courts by requiring them to consider certain factors about the context of the defendant’s actions. As I have already explained, the Bill does not purport to tell courts how much weight to put on each factor, covered by Clauses 2 to 4, or to prevent them finding negligence where the circumstances of the case warrant it. However, the effect of being too prescriptive—for example, about the type of evidence the courts need to look at when determining whether an organisation was negligent—could introduce new burdens, which we think, on balance, would not be desirable. That being the case, while renewing my tribute to my noble friend’s attempt to add constructive suggestions to the Bill and his insight into this particular area, I respectfully ask him to withdraw his amendment.

Criminal Justice and Courts Bill

Debate between Lord Faulks and Lord Hodgson of Astley Abbotts

Wednesday 23rd July 2014 Lords Chamber

[Lord Hodgson of Astley Abbotts]

My noble friend talks about the importance of this information being inquired about before sentencing. But is it not better that it should be inquired about at some point rather than not at all?

[Lord Faulks]

I entirely agree with my noble friend. It is important that it should be acquired before sentence rather than after sentence.

The Children Act 2004 already requires inter-agency co-operation to safeguard and promote the well-being of the child. It is important that probation staff—albeit that in the view of the noble Lord, Lord Low, they have become more concerned with offender management —those working in court or those preparing pre-sentence reports have a responsibility to consider the impact of custody on an offender’s children. All those who have read such reports will realise that that is almost always a central feature of them. If there is a likelihood of custody then children’s services will be alerted by probation to ensure that arrangements are in place to safeguard the well-being of any children. We are working to ensure that this system of assessment and referral is as robust as possible for both pre-sentence report assessment and court practice. This is a very important role for the new National Probation Service.

Much reference was made to the existence of troubled families, and quite rightly so. The Government understand the challenges and poor outcomes faced by children dealing with parental imprisonment, including higher risk of mental illness, poor educational outcomes and offending in later life. I agree it is important that these families receive appropriate support, alongside support for offenders’ rehabilitation and for tackling inter- generational offending. We have already had conversations with organisations such as Barnardo’s to discuss the issues raised by its report On the Outside, published in May this year, and intend to expand our discussions wider to other government colleagues, criminal justice system agencies and practitioners such as legal representatives.

The scope of this approach is potentially very wide—childcare is obviously a pressing concern—but there are also other concerns for families of offenders: financial support, continuing accommodation and so on. This is another reason why it is simply not realistic for the criminal courts to step in and manage an offender’s life after they have been convicted. However, there is a role for government here. That is why we are working across government, and in partnership with local authorities under the troubled families programme, to turn around the lives of 120,000 families suffering from the most complex problems by May 2015. We have already announced an expansion of the programme to an additional 400,000 families from 2015-16. The next phase of the programme will focus on families with a broader range of problems.

I should also mention the important role of the charitable voluntary sector. My noble friend Lord McNally has in the past paid tribute to the work that organisations such as Pact have done and continue to do to support the families of those in custody. I add my own appreciation of that important work and my commitment that the Government will look at how we can both publicise and support the services those organisations provide. I am glad to hear that Lord Justice Gross is concerned that some further guidance should be given in relation to the problem identified by the amendment.

Anti-social Behaviour, Crime and Policing Bill

Debate between Lord Faulks and Lord Hodgson of Astley Abbotts

Wednesday 11th December 2013 Lords Chamber

[Lord Hodgson of Astley Abbotts]

My Lords, I will speak also to Amendment 78. These amendments expand the issues a judge can consider in testing the proportionality of a European arrest warrant. Amendment 76 deletes the words,

“but the judge must not take any other matters into account”.

Amendment 78 extends judicial discretion as regards proportionality by a list of factors, including the cost of extradition, the consequences of extradition for the suspect and the public interest aspect.

Under the Bill, the judge must have regard to the specified matters relating to proportionality so far as he or she thinks it appropriate to do so, but must not take other matters into account. Thus, the judge is limited to the three specified matters but has discretion to ignore them. As a starting point, I would like the Government to justify why a judge should be able to ignore factors that will always be germane to the issue of proportionality. If an offence is serious, extradition is more likely to be proportionate but that does not mean that the proportionality test has no place in serious crimes. Amendment 76 therefore removes the discretion to ignore relevant factors.

Under the proposed test, the judge can take into account just three factors but it is unclear how they are supposed to relate to each other. In any case, the current list of specified matters does not allow a useful proportionality analysis. As drafted, the judge would be able to take into account the seriousness of the offence and the anticipated sentence, but since regard cannot be had to any other matter, the judge cannot balance these against the relevant considerations. For example, it is difficult to see how the judge can decide whether a less serious offence would make extradition disproportionate if the judge cannot also take into account the implication of extradition in terms of the human impact or, indeed, the costs for the UK taxpayer. The financial costs of extradition are high. The Government estimate that the execution of each EAW costs on average £20,000. In addition, the human impact of extradition can extremely severe. Recent cases under Article 8 of the ECHR have shown that the extradition of single parents can drastically disrupt the development of their children. There was the judgment of Lady Hale in HH v Deputy Prosecutor of the Italian Republic in 2012.

Recognising the need for proportionality checks on the operation of the EAW, the European Commission recognised that the issue was with,

“very minor offences which do not justify the measures and cooperation which execution of an EAW involves”,

and that there is a,

“disproportionate effect on the liberty and freedom of requested persons”,

when the EAW is used in such cases.

The point of a proportionality test should be to determine whether, on a case-by-case basis, the human and material costs are justified. Indeed, the Council of the European Union’s handbook on how to issue an EAW is 125 pages long and explains that,

“considering the severe consequences of the execution of an EAW with regard to restrictions on physical freedom and the free movement of the requested person, the competent authorities should, before deciding to issue a warrant consider proportionality by assessing a number of important factors. In particular these will include an assessment of the seriousness of the offence, the possibility of the suspect being detained, and the likely penalty imposed if the person sought is found guilty of the alleged offence”.

The Bill excludes a balancing exercise that takes into account all these relevant factors.

These amendments therefore provide the judge with sufficient discretion to consider these key factors and others, including the passage of time, since prolonged delays in prosecuting an offence and issuing an EAW may provide evidence of its very low level of seriousness, and the public interest in extradition, since this will vary in line with the seriousness of the offence. Other factors might include, for instance, the person’s conduct, in particular, whether they absconded in order to evade prosecution or left the issuing state unaware that they were being pursued.

I recognise that this will call for a case-by-case test and a fact-sensitive assessment. However, this need not affect the length or complexity of EAW proceedings. An issue raised in relation to human impact would in any event have to be considered under Article 8 of the ECHR. Under the operation envisaged by these amendments, the factors considered under Article 8 of the ECHR will be considered as part of the statutory proportionality test but alongside the cost of extradition to the United Kingdom and having greater regard to the seriousness of the extradition offence. Indeed, under the Government’s proposal, it can be argued that there will often have to be two separate proportionality analyses—one under the statutory test, excluding anything to do with family life, and another under Article 8 of the ECHR, potentially resulting in confusion and complication. Unifying the two tests, as would be achieved by these amendments, would, if anything, simplifying proceedings. I beg to move.

[Lord Faulks]

My Lords, Clause 138, “Proportionality”, will not be an easy one for a judge to interpret, as my noble friend has outlined. The question of proportionality under the Human Rights Act 1998 is one matter and then there is the statutory proportionality, which apparently is to be restricted to certain specific matters mentioned in subsections (2) and (3) of the new Section 21A that Clause 138 inserts into the Extradition Act 2003. I respectfully ask the Minister to explain why it is so necessary to distinguish between the two types of proportionality. Proportionality is a fundamental principle in EU law and, in particular, under the Human Rights Act. I suggest there is scope for confusion and therefore possible litigation if a judge misdirects himself or herself in applying proportionality in one sense and not in another.