National Security Bill

Debate between Lord Faulks and Lord Hope of Craighead

Committee stage
Wednesday 18th January 2023 Lords Chamber

[Lord Faulks (Non-Afl)]

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

[Lord Hope of Craighead (CB)]

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

Economic Crime (Transparency and Enforcement) Bill

Debate between Lord Faulks and Lord Hope of Craighead

Committee stage
Monday 14th March 2022 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, as someone who takes a close interest in devolution matters, I am delighted with these amendments. I have quite often moved amendments in similar terms and not been successful. It is a pleasure to see the Minister produce amendments in the very terms that I would have liked to have seen in the Bill. I very much welcome them both.

[Lord Faulks (Non-Afl)]

As a fellow member of the Constitution Committee, I endorse what the noble and learned Lord said. This is one of the points that we as a committee regularly make: it is one thing to have the Sewel convention in primary legislation; it is another to have it in subordinate legislation. We very much welcome this as a matter of practice.

Judicial Review and Courts Bill

Debate between Lord Faulks and Lord Hope of Craighead

Committee stage
Monday 21st February 2022 Lords Chamber

[Lord Hope of Craighead (CB)]

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

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

[Lord Faulks (Non-Afl)]

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

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

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

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

Overseas Operations (Service Personnel and Veterans) Bill

Debate between Lord Faulks and Lord Hope of Craighead

Report stage
Tuesday 13th April 2021 Lords Chamber

[Lord Faulks (Non-Afl) [V]]

My Lords, Amendments 7 and 8 are, in effect, wrecking amendments, while Amendment 13 seeks to distinguish the position of service personnel and other potential claimants. I expressed the view in Committee that I was not convinced that the provisions in Part 2 would make all that much practical difference. The primary limitation period for personal injuries is three years, as the noble Lord, Lord Thomas, has just pointed out, except in so-called delayed date of knowledge cases, as provided by Sections 11 and 14 of the Limitation Act 1980. There is a discretion to disapply the limitation period under Section 33 of the 1980 Act. As he also pointed out, claims under the Human Rights Act have to be brought within one year, with a discretion to extend in rather limited circumstances.

My experience of personal injury claims as a barrister is that courts need considerable persuasion before they extend the three-year period and that the burden rests on a claimant to persuade a court that that primary limitation period should not apply. Limitation periods exist to reflect the difficult balance that has to be struck between allowing everyone to put a line under actual or potential claims and the fact that some claimants will have good reason for delay.

The provisions in Part 2 provide a long-stop, subject to a delayed date of knowledge provision. It seems that claims arising out of overseas operations present particular difficulties for all those involved, and I respectfully differ from the comment made by the noble Lord, Lord Thomas, about Salisbury Plain, particularly in overseas operations where the theatre of operations has moved on or changed its location and it may be extremely difficult to investigate, on either side, the basis of any such claim.

As I said, the provisions are not likely to have much practical effect, but they will nevertheless have some indirect effect in encouraging appropriate claims to be brought with as much speed as is practical. They will also provide a degree of reassurance to our service personnel that a time will come when they will be involved in one way or another in so-called late claims. The noble Lord, Lord Thomas, referred to some uncertainty over what the date of knowledge might be which would defer claims. Subject to what the Minister says, I understand it to be concerned with cases where, for example, there is latent disease that could not be reasonably known about by a claimant at the time; for example, somebody who sustains mesothelioma as a result of exposure to asbestos dust or who has some other illness or injury that becomes manifest only some years after the event in question.

I am not attracted to Amendment 13 either. In Committee, the noble Baroness, Lady Chakrabarti, suggested that I was concerned only with claims brought by the military and not with those brought by the non-military or civilians in, say, Iraq or Afghanistan. That was not in fact what I said or thought. It is therefore something of an irony that this amendment would make that very distinction. I am unaware of any such provision in any other area of the law of limitation of actions—that is, a provision that distinguishes between classes of claimant. There are of course provisions distinguishing the position of a claimant who has not attained his or her majority or who lacks mental capacity. However, it would set a most unfortunate precedent somehow to elevate a particular claimant to have a special status.

The provisions in Part 2 ought to apply in precisely the same way across the board to whomsoever is involved in claims arising out of overseas operations and provide equal protection for all of them. This amendment is discriminatory and should not be included in the Bill. Surely our service personnel want to be treated fairly, rather than to be given some special privileged litigation status. I will listen with great interest to what the noble and gallant Lords who are to follow in this debate have to say about the matter, but for the moment I am unconvinced that any of these amendments should be made to the Bill.

[Lord Hope of Craighead (CB) [V]]

My Lords, I will add just a few words to what the noble Lord, Lord Thomas of Gresford, said in support of Amendment 13. The provisions to which it is addressed which are of particular interest to me are in Schedule 3, which seeks to amend the legislation that applies in Scotland to the same extent to that in Schedules 2 and 4, which apply to the other jurisdictions. The crucial point is the imposition—for such it is—of an absolute prescription of six years.

As we know, the three-year limitation period that applies at present is accompanied by protections that enable the court to extend the limitation period if it is justified by the circumstances—the date of knowledge exception. It seems that the Bill applies a hard-edged cut-off that makes no allowance whatever for extenuating circumstances. I could understand it if this proposal had been accompanied by a carefully conducted research programme into how the three-year limitation has worked in practice over the years, identifying on how many occasions the period has been extended for more than three years, and why and at what point the extensions have been sought and justified. We are, of course, in this case, and indeed throughout the Bill, dealing with the consequences of operations that have been conducted overseas, maybe under very difficult circumstances. Gathering together enough information to determine whether a claim would be justified, let alone to bring together all the information needed to justify bringing the claim before the court out of time, may take much more time and effort than is needed in the more benign domestic cases. That is the reason for seeking the discrimination to which the noble Lord, Lord Faulks, referred.

Civil Liability Bill [HL]

Debate between Lord Faulks and Lord Hope of Craighead

Report stage (Hansard - continued): House of Lords
Tuesday 12th June 2018 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I added my name to Amendment 69 and I support everything that my noble and learned friend has said. There is just one point that I would like to add. I draw attention to subsection (4) of the new Section A1, which is printed at page 7, lines 37 to the foot of the page. It refers to the content of the original order that the Lord Chancellor will have made, which is the background to the review process. The order not only talks about the rate but has to contemplate the possibility of descriptions of pecuniary loss, the length of the period during which pecuniary loss is expected to occur and the time when the pecuniary loss is expected to occur.

So one is not simply talking about the calculation of a rate of return in the abstract. It would be open to the reviewer to examine whether there should be some fresh approach to the matters that are contemplated in that subsection. It underlines the important point that my noble and learned friend has been making about the need for judicial input against the background of experience which everybody in the courts has drawn out of cases involving these very serious injuries. I support the amendment for that reason.

[Lord Faulks (Con)]

With some hesitation, I offer some slight doubt about the two contributions from the noble and learned Lords relating to the role of the Lord Chief Justice. I entirely accept the significance and appropriateness of the role of the Lord Chief Justice in the first part of the Bill, as the Minister accepted. I am more troubled about the suggestion in relation to the role which the Lord Chief Justice might play in the rate of return on investment. In essence, this is a quasi-mathematical function. The noble and learned Lord, Lord Judge, is quite right that judges regularly see and approve complex cases, and will be aware of the adequacy or otherwise of damages. However, with great respect, that is not quite the issue that the panel will be deciding.

I see a further problem and would be grateful for the Minister’s comments on it. The Lord Chancellor makes the rate determination—it has been accepted that this is essentially a political determination—must,

“give reasons for the rate determination”,

and,

“publish such information about the response of the expert panel established for the review as the Lord Chancellor thinks appropriate”.

If he or she has to give reasons in response to a judicial review—the Minister has said that the decision must be amenable to such review—presumably those reasons might include the advice that he or she has been given by the Lord Chief Justice. I am a little concerned that this puts the judiciary in an unfortunately political position, when it has been agreed that the role of the Lord Chancellor is pre-eminently a political one, albeit advised by the panel. So although I entirely accept the experience and wisdom of the judiciary, I wonder whether this is entirely the right role in this context.

[Lord Hope of Craighead]

Does the noble Lord agree that subsection (4), towards the foot of page 7, is not dealing with matters of mathematics? The matter of description of categories and so on is involved. It goes a little further than the noble Lord was contemplating in his brief remarks.

[Lord Faulks]

I entirely accept that it does, but ultimately the question of what the rate is is determined by experts, taking into account the factors which are, I agree, set out in the Bill. I shall listen with interest to what the Minister says, but it still seems to me that that is perhaps dangerously close to the judges getting involved in an area which might render them subject to criticism.

European Union (Withdrawal) Bill

Debate between Lord Faulks and Lord Hope of Craighead

Committee: 5th sitting (Hansard): House of Lords
Wednesday 7th March 2018 Lords Chamber

[Lord Faulks (Con)]

My Lords, I rather agree that “appropriate” is not particularly desirable. I wonder whether putting “helpful” in Clause 6(2) would more accurately reflect the way that courts generally consider law from other jurisdictions in developing the law—one always invites courts if they find a particular decision to be helpful—whereas I understand that “appropriate” is considered perhaps to have too much of a political charge. However, I do not wholly understand why the noble Lord, Lord Pannick, finds the initial words of Clause 6(2) rather offensive, where it says:

“A court or tribunal need not have regard”.


All that is saying is that they are not obliged to have regard—I do not think it says any more. I personally read no particular charge in it, and I think that the noble and learned Lord, Lord Hope, would agree.

There is something of an irony about these amendments, in that the only way to have real certainty would be to tell the court either to disregard it or to follow it. In a sense, we are dealing with an imperfect situation. We are trying, as the noble and learned Lord, Lord Neuberger, said, to craft something which helps judges by reducing any political element in their decision-making but which—I am sorry to use a political expression—allows our courts to take back control. In order to take back control, I am happy that they should have a great deal of freedom to do so without in any sense involving them in a political decision.

Amendment 56 from the noble Lord, Lord Pannick, and others is of course much longer than the original wording, with three subsections as opposed to one. Respectfully, I say that using words such as “relevant” is only quite helpful, because in any event a court will ignore matters that are irrelevant. I feel similarly about the word “significance”: a court will itself have to decide significance. That of course may offend the political element but, if something is insignificant, the court will disregard it in any event. Although I understand what lies behind this amendment, I am not sure that it really does the trick.

It is not just out of nominative loyalty that I turn to the amendment of the noble Lord, Lord Foulkes, but because he may be on to something. I agree with the use of “may”, which was endorsed by the noble and learned Lord, Lord Hope. I am not quite so sure about “persuasive”, but I will listen to what the noble and learned Lord says. However, I like the succinct nature of the amendment and it seems to me to allow our courts the freedom that we have, as it were, granted them by the decision that the country has made in the referendum, but nevertheless not to compromise them.

[Lord Hope of Craighead]

Does the noble Lord have any reaction to the point made by the noble Lord, Lord Pannick, about the reference to,

“another EU entity or the EU”,

in Clause 6(2) as it stands? Section 3(1) of the European Communities Act 1972 does not mention these and refers only to the European Court of Justice, so it may be that there is no need to refer to these entities and we can confine it to the European Court of Justice.

Third Parties (Rights against Insurers) Regulations 2016

Debate between Lord Faulks and Lord Hope of Craighead

Tuesday 22nd March 2016 Grand Committee

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

My Lords, the draft regulations extend the range of people who are potentially within the scope of the Third Parties (Rights against Insurers) Act 2010. Subject to the prior approval of both Houses of Parliament, the draft regulations are to be made by the Secretary of State under the power in Section 19 of the 2010 Act. Section 19, in its present form, was inserted into the 2010 Act by Section 19 of the Insurance Act 2015. The purpose of the power is to make provision for adding or removing circumstances in which a person is potentially within the scope of the 2010 Act. The present circumstances within that scope are currently set out in Sections 4 to 7 of and paragraph 1A of Schedule 3 to the 2010 Act.

The draft regulations make a series of textual amendments to the 2010 Act, as amended by the Insurance Act 2015. The effect of the amendments in general terms will be to include corporate and other bodies that are subject to certain sectoral insolvency regimes or, within limited exceptions, have been dissolved within the scope of the 2010 Act. The purpose of making these amendments is to correct omissions from the 2010 Act so that it can be brought into force without adversely affecting people who are currently within the scope of the 1930s legislation that is to be replaced by the 2010 Act.

It may be helpful at this point if I explain the principles that underlie the third parties legislation in a little more detail. It has existed since the 1930s and is so called because the claimant is a third party in relation to the contract of insurance. The current legislation is the 1930 Act, which applies to England, Wales and Scotland, and the Third Parties (Rights against Insurers) Act (Northern Ireland) 1930. The purpose of the 1930 Acts, and indeed of the 2010 Act, is to protect the interests of claimants against insured persons who have a liability to the claimant but who no longer have effective control of their assets, typically because they are insolvent. The basic effect of the third parties legislation is to transfer to a third party to whom the insured has incurred a liability the contractual rights of the insured against the insurer as regards that liability. This means that the proceeds of the insurance policy are paid to the claimant, not to the creditors of the insolvent insured generally.

The 2010 Act is intended to extend and improve the protection conferred by the 1930 Acts. To trigger the application of the 2010 Act, an insured must both incur a liability to a third party against which it is insured and undergo an insolvency or analogous event specified in the 2010 Act. Unfortunately, following the enactment of the 2010 Act it was found, in some respects, to have a narrower scope than the 1930s Acts. This was partly as a result of the terms used in the drafting of the 2010 Act and partly because of developments in insolvency law following the financial crisis in 2008.

Had the 2010 Act been commenced immediately after its enactment, the effect would have been to deny insurance proceeds to claimants and to pass them to be shared out among the insured’s creditors. This would have frustrated the very purpose of the 2010 Act and had the effect of undermining the purpose of compulsory insurance, such as that which employers are required to maintain. The operative provisions of the 2010 Act have therefore not yet been brought into force and will not be so until these defects have been remedied. The remedial process is therefore essential to realising the benefits of the 2010 Act. Part of the remedial process was effected by the amendments to the 2010 Act made by the Insurance Act 2015. The draft regulations will complete the process.

I will now describe the working of the amendments to be effected by those draft regulations. First, they would extend the list of such insolvency or analogous events by adding the sectoral insolvency or administration procedures listed or referred to in the provisions to be inserted in the 2010 Act by Regulation 3 of the draft regulations. These additions cover the possibility of insolvency or administration under special legislative regimes that generally follow, but are distinct from, the Insolvency Act 1986 in a wide range of important business sectors where company failure has the potential to damage public interest or cause market contagion—for example, financial services and postal or energy companies.

Secondly, Regulation 4 of the draft regulations extends the scope of the 2010 Act to dissolved bodies, other than unincorporated partnerships and bodies that are no longer treated as dissolved by reason of subsequent events. The 2010 Act currently applies to dissolutions under Sections 1001, 1002 or 1003 of the Companies Act 2006 but not to other dissolutions, even though dissolution, after which a body will certainly not have effective control over its rights and assets, would appear to be the paradigm case in which a transfer of rights should occur. Regulation 4 therefore broadens the scope of the application of the 2010 Act to these other dissolutions.

The one exception to the proposed coverage of dissolutions generally is the dissolution of unincorporated partnerships. This exception is sensible, as technically a partnership dissolves each time a new partner leaves or is added. This would extend the scope of the legislation too widely, as many such partnerships would be going concerns. In the case of a partnership which is no longer trading, the insured would need to proceed against the individual partners.

The remainder of the draft regulations deal with ancillary matters. Regulations 5 and 6 amend Section 9 and paragraph 3 of Schedule 1 to the 2010 Act respectively. Section 9(3) and (7) of the 2010 Act provide that a third-party claimant does not have to satisfy a condition of the insurance policy regarding provision of information or assistance to the insurer by the insured if it cannot be fulfilled because the insured has died or is a body corporate which has been dissolved. Paragraph 3 of Schedule 1 to the 2010 Act gives a claimant the right to request information from officers, employees, insolvency practitioners or official receivers of a defunct body corporate, other than when the dissolved body has been restored or ordered to be restored to the register of companies. The draft regulations extend these two provisions to all dissolutions, other than those of unincorporated partnerships, irrespective of whether subsequent events result in the body in question being treated as if it is no longer dissolved or as if it had never been dissolved.

The reason for the wider application of these provisions as against the provisions relating to dissolved bodies inserted into the 2010 Act by Regulation 4 is that most such situations reversing a dissolution—for example, restoration to the register of companies—are temporary and unlikely to result in there being a person who is responsible and able, on behalf of the body in question, to assist the claimant by being able to fulfil the condition or to supply the information in relation to the liability.

Before I conclude, I should like to express my department’s thanks to all those who have contributed to the preparation of the draft regulations. It is not a simple matter, as I suspect noble Lords will concede. Insolvency law is fast moving and complicated. The Insolvency Service, the Accountant in Bankruptcy in Scotland and the Department of Enterprise, Trade and Investment in Northern Ireland have all made significant contributions to what has been a very difficult technical exercise. I am very grateful to them. I am also very grateful to the Commercial and Common Law Team at the Law Commission, which for most of the period in question was led by David Hertzell and Tammy Goriely, without whose expert knowledge and legal skills the draft regulations could not easily have been prepared. Finally, in a more general sense, I thank the Law Commission and the Scottish Law Commission for their continuing support for the reform of third parties legislation generally. I hope that in the not too distant future we shall be able to make that reform a reality.

In conclusion, the reforms to be introduced by the 2010 Act are supported by insurers and claimants alike. They apply to insurance of all kinds and will be particularly beneficial in cases of long-tail industrial diseases, such as mesothelioma. The approval of the draft regulations by your Lordships’ House will be widely welcomed and will be a key step on the way to the commencement of the 2010 Act.

I am afraid that I am not yet in a position to state when the Act will be brought fully into force, as the draft regulations remain subject to your Lordships’ approval and to approval in the other place. Nevertheless, I can say that, subject to allowing all parties affected no less than three months from the making of the regulations in which to prepare for commencement, the Government’s intention is to bring the 2010 Act, as amended by the 2015 Act and by what will then be the Third Parties (Rights against Insurers) Regulations 2016, into force as soon as reasonably practicable. I beg to move.

[Lord Hope of Craighead (CB)]

I am grateful to the Minister for his explanation and also for bringing this set of regulations forward for our consideration and for the House’s approval in due course. It is an extremely important area which I think anybody practising in the common-law field values very much. I have only one question and that is to ask for reassurance in relation to part of Regulation 3, which deals with the relevant bodies in insolvency or administration under sectoral legislation. This is an extremely sophisticated area of law and I join in the Minister’s congratulations to all those who have played a part in putting all this together.

A feature of the list of enactments set out in Schedule A1 is that all except the last deal with areas of regulation which are common to the United Kingdom, with the special provisions made in the case of Northern Ireland which are set out in the schedule. Aviation, energy, financial services, postal services and railways apply equally to Scotland as they do to England and Wales. But the question of water and sewerage has occurred to me, because Scotland, I believe, has its own legislation relating to sewers and water: there is the Water (Scotland) Act, the date of which escapes me, and I believe that there is a sewerage Act for Scotland as well.

I fear that without detailed research, which is beyond my resources at the moment, I am not sure whether the Scottish legislation provides for administration under a legislative scheme. I am fairly confident that the Water Industry Act 1991, referred to here, does not extend to Scotland. It may well be that those who have been looking at this in detail have reassured themselves that there is no need for a mention of the Scottish legislation, perhaps because it does not actually provide for this kind of administration. If that is right, of course I understand why there is no mention of those statutes, but it might be as well to be absolutely sure that there is not a gap here that ought to be plugged before the regulations are brought into force.

That aside, I regard this as a very fine piece of fine-tuning which I am sure will be greatly welcomed in order to avoid any further gaps in the valuable legislation.

Prison Service: Trans Prisoners

Debate between Lord Faulks and Lord Hope of Craighead

Tuesday 24th November 2015 Lords Chamber

[Lord Faulks]

The important thing is that there is no generalisation here. It is important to assess each individual prisoner according to the stage they are at and their particular case. It might be a diagnosis or they may have fully realised their gender transformation. That individual assessment is carried out by the Prison Service, involving the assistance of psychological services and healthcare experts. It is after that assessment that they should be assigned an appropriate part of a prison.

[Lord Hope of Craighead (CB)]

My Lords, can the Minister assure the House that the policies he just outlined apply in young offender institutions? I believe that Miss Thompson was 21 when she died and assume that she was in an adult prison, but I think it is common knowledge that people tend to become aware of their transgender nature when puberty emerges. Therefore, young offenders are particularly vulnerable and require particular care.

British Bill of Rights

Debate between Lord Faulks and Lord Hope of Craighead

Wednesday 28th October 2015 Lords Chamber

[Lord Faulks]

There are no plans to leave the European Convention on Human Rights. My noble friend is correct to say that Conservatives had a significant role in drafting the convention. There are considerably more difficulties with the Strasbourg jurisprudence, rather than the convention itself.

[Lord Hope of Craighead (CB)]

My Lords, can the Minister tell us whether it is proposed to consult the devolved institutions, and if so, when that consultation will take place?

[Lord Faulks]

We will consult the devolved assemblies, because we are conscious of the intricate treaty arrangements that exist. We will do so thoroughly, and keep them well aware of all our plans.

Social Action, Responsibility and Heroism Bill

Debate between Lord Faulks and Lord Hope of Craighead

Monday 15th December 2014 Lords Chamber

[Lord Hope of Craighead]

My Lords, another feature of this clause occurs to me: how one is supposed to apply it when the issue of contributory negligence comes up. This is one of the problems that the court must have regard to, but we are not told in this very brief provision to what purpose one is examining. I assume that it is whether the individual or body concerned is liable at all, but assuming it is liable, how does one apply it in the context of contributory negligence? I do not believe that that aspect has been thought through at all.

[Lord Faulks]

My Lords, we have had the pleasure of a short but informative debate this afternoon. The criticism of Clause 2 was that it did not change the law and therefore was not desirable, but the criticism of Clause 3 is that it does change the law—so I will approach the Bill in a rather different way.

The amendment in the name of the noble Lord, Lord Beecham, would remove Clause 3 from the Bill entirely. I would like to explain to the House why I believe that it is important for the clause to remain part of the Bill. It provides that a court, when considering a claim for negligence or breach of a relevant statutory duty, such as, for example, under the Occupiers’ Liability Act, must have regard to whether the defendant, in carrying out the activity in which the alleged negligence or breach occurred, demonstrated a “generally”—I put that word for the moment in inverted commas—responsible approach towards protecting the safety or other interests of others.

The core aim underlying this clause, and the Bill as a whole, is to provide reassurance to ordinary, hard-working people who have adopted such an approach towards the safety or other interests of others during the course of an activity, that the courts will always take this into account in the event that something goes wrong and they are sued. As well as providing that reassurance, we hope that this will also give them greater confidence in standing up to those who try to bring opportunistic and speculative claims by showing them that the law is on their side.

As I explained at Second Reading and in Committee, we believe that concerns that the clause might in some way undermine the rights of employees and others to bring a negligence claim are unfounded. There is nothing in Clause 3, or in the Bill more generally, which will prevent somebody who has been injured bringing a claim or which will prevent the court finding an employer or any other defendant negligent if the circumstances of the case warrant it.

In addition, the focus of the clause is on whether a generally responsible approach was adopted in the course of the activity—so that we are not looking, as the noble and learned Lord, Lord Woolf, suggested, at the whole of the behaviour in other circumstances or in relation to some other activity—in which it is alleged that the negligence occurred. It will not therefore enable a body with a slipshod approach to safety to escape liability by pointing to its health and safety record over a longer period of time. If its actions during the course of the activity in question were so risky or careless as to be negligent, it can still be found liable.

The need for this measure is amply illustrated by the evidence that was provided in support of the Bill during its passage through the House of Commons. I have referred to evidence from voluntary organisations that concerns over liability continue to represent a real disincentive, preventing many people getting involved in socially worthwhile activities. Evidence provided by the emergency services also illustrated the propensity of some people involved in accidents to bring opportunistic and, frankly, spurious claims, such as the example we have previously discussed provided by the Cheshire Fire & Rescue Service.

--- Later in debate ---

[Lord Faulks]

I respectfully disagree with that interpretation because it is concerned with the activity in question,

“in the course of which the alleged negligence or breach of statutory duty occurred”.

It would not, therefore, deal with the 99 years of accurate tax returns but would focus on the particular tax return that is the subject of the claim in negligence. That is the correct interpretation of the particular clause.

I will answer the question that I hear from a sedentary position: how do we deal with the question of “generally”? My answer to that is that the “generally responsible” approach is directed at the activity in question. It is difficult to see, frankly, that it would have much of an application on the hypothetically negligent accountant—

[Lord Hope of Craighead]

My Lords—

[Lord Faulks]

Perhaps I may finish answering this question before I answer the next one. The hypothetically negligent accountant—if he or she has made a negligent error—is going to be liable. This is not going to add anything to that position. It would be no good for them to say, “In the 99 other years in which I did this particular act, I did a good job”, because that just would not bite on this. It does not seem to me that it is very likely that, on the particular hypothesis that the noble and learned Lord put forward, it would have any application.

[Lord Hope of Craighead]

I am grateful to the Minister for giving way. I wonder whether the Minister could be more precise. He talked about the activity in question, but surely Clause 3 has to be read in the light of Clause 1. The whole of this brief Bill is introduced by Clause 1, which tells us:

“This Act applies when a court … is determining the steps that the person was required to take to meet a standard of care”.

Surely one needs to be very precise if one is to understand Clause 3; it is talking about the steps that the person was required to take. It may be that the court is saying, “Well, I am not going to find that the defendant was bound to take that step because I am applying Clause 3”. It is either yes or no, I would have thought. Using the phrase, “activity in question” is far too general. If it is to mean anything, it has to be precisely focused on what Clause 1 is talking about, and the rest will then follow—rightly or wrongly.

[Lord Faulks]

Clause 1, in answer to the noble and learned Lord, is describing the scope of the Act, saying that it applies when a court,

“in considering a claim that a person was negligent or in breach of a statutory duty, is determining the steps that the person was required to take to meet a standard of care”.

It then gives, in the three clauses that we are considering this afternoon, three different factors that should be taken into account—or rather, it says that the court must “have regard” to them. Clause 1 is very much scene setting. However, to turn the argument on its head: if, for example, Clause 3 did not have the expression,

“in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred”,

the argument might be stronger, because it could be said that the court must have regard to a generally responsible approach towards protecting the safety of others. Then it could be argued that this is invoking somebody saying “I am normally a conscientious surgeon”, or “I normally look after people in the factory”. However, the very fact that those words are inserted is focusing the court’s attention on the particular activity in question. With respect, therefore, that is my answer to that question.

I submit, of course, that this makes a modest and sensible change, but it is important to bear in mind that the court is only invited to “have regard” to it. If the court thinks that, frankly, notwithstanding a generally or predominantly responsible approach, this particular failure—if such there be—is not acceptable, it will decide on normal principles that there has been a breach.

Criminal Justice and Courts Bill

Debate between Lord Faulks and Lord Hope of Craighead

Wednesday 22nd October 2014 Lords Chamber

[Lord Hope of Craighead]

My Lords, I take this opportunity to say a few words about Amendments 142 and 143, which have been spoken to by the Minister. First, I thank him for his kind words. Secondly, I thank the Government for bringing these amendments forward. As the Minister has explained, I brought forward amendments in almost exactly the same terms in Committee. At that point it was necessary for the Government to provide support because I did not imagine that if this went to a vote, it would carry much weight because of the technical nature of the two points that are dealt with. I am therefore extremely grateful to the Minister and his team for picking up these points, and I know that the President of the Supreme Court is, too.

I will mention two particular points about Amendment 142. The first is that it was necessary to obtain the agreement of the Lord Chief Justices of England and Wales and Northern Ireland and their equivalent in Scotland, the Lord President. That agreement has been confirmed and the proposed amendment has the support of all the senior judges involved. Secondly, the wording that I proposed in Committee was the agreed wording, and I made the point that it was very necessary to try to stick as closely as possible to those words if the Government were to bring forward an amendment on Report. I am grateful to the Government for doing exactly that, and therefore we can be certain that what is being proposed now has the support of all the judges concerned.

[Lord Faulks]

I am very grateful, first, to the noble and learned Lord, Lord Hardie, who was himself an extremely distinguished chairman of the post-legislative scrutiny committee on the Mental Capacity Act 2005. I thank him for his valuable remarks about the appeal process, based on his experience and his recognition of the particular difficulties to which these cases can give rise. I certainly undertake to ensure that his remarks will be passed on to the rule committee through the channels that are available to me, and I thank him for that.

Similarly, I thank the noble and learned Lord, Lord Hope, for his acknowledgement of the Government’s co-operation and entire acceptance of his suggested drafting, and I thank him as well for securing the support of all the senior judges for what is now a satisfactory state of affairs.

Criminal Justice and Courts Bill

Debate between Lord Faulks and Lord Hope of Craighead

Wednesday 23rd July 2014 Lords Chamber

[Lord Faulks]

My Lords, Amendment 68 would have the effect of allowing the President of the United Kingdom Supreme Court to make written representations to Parliament about the Supreme Court and its jurisdiction in the same way as the Lord Chief Justice of any part of the United Kingdom is able to do under Section 5 of the Constitutional Reform Act 2005. The Lord Chief Justice of England and Wales has used the provision under Section 5 of the 2005 Act to lay before Parliament his annual report, which highlights his accountability for oversight of the judiciary in England and Wales.

Amendment 69 would have the effect of allowing the United Kingdom Supreme Court the flexibility to appoint judges to the supplementary panel within two years of their retirement, providing they are under the age of 75.

First, I should very much like to thank the noble and learned Lord, Lord Hope, for all his work on these issues and for being so patient in waiting for this amendment to be reached at such a late stage. Given his background, he is of course well placed to speak with authority on these matters. I know that he has been working closely with the judiciary on these amendments and he has also recently written to me regarding them.

The Government understand the rationale behind the amendments. However, before we can agree to make such changes, we will need to consider the matter and the impacts of the proposed changes further and discuss them in more detail with the President of the Supreme Court, the Lord Chief Justice, the Lord President of the Court of Session and the Lord Chief Justice for Northern Ireland. I will also be happy to have further discussions with the noble and learned Lord about the amendments and will respond fully to his letter shortly. On that basis, I hope that he will feel able to withdraw the amendment.

[Lord Hope of Craighead]

My Lords, I am grateful to the Minister for his very helpful reply. It is indeed the reply that I expected. It is sensible to take time to consider the matter a little more fully. In view of the undertakings that he has given, I am happy to beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Hope of Craighead]

My Lords, perhaps I may be quite clear about where the Minister stands on Amendment 69. I do not think that he indicated where he stood on it. It is a very simple matter. Perhaps he could come back to it on Report, but I should be grateful if he would say where he stands. I beg to move.

[Lord Faulks]

It is also a matter where we would like to consider the full implications of the changes. The reply that I gave was supposed to embrace both amendments.

[Lord Hope of Craighead]

I am most grateful. In view of that indication, I am happy to beg leave to withdraw the amendment.

Criminal Justice and Courts Bill

Debate between Lord Faulks and Lord Hope of Craighead

Monday 14th July 2014 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I shall add a word based on my own experience. It is quite difficults to visualise the work of the Parole Board members unless one has seen them at work. One thing that struck me some years ago when I attended Parole Board hearings from time to time was the huge volume of paperwork generated by individual cases. Of course, the longer a prisoner remains in custody, the bigger the volume becomes. The technique which the Parole Board member has to apply to each case is to work his or her way through the file, which takes a great deal of time, then explain whatever views he or she has reached, based on the information in the file. It is immensely time consuming. My experience was that Parole Board members were extremely conscientious; the people who know best what the effect was of the diminution of resources on their ability to do their job are the Parole Board members themselves, which is the strength of the point that the noble Lord, Lord Beecham, made. I suggest that his amendment deserves a great deal of consideration.

[Lord Faulks]

My Lords, the amendments relate to four clauses, which will have the effect of increasing the involvement of the Parole Board in certain areas. The clauses we are considering are: Clause 3, which adds a number of terrorism-related offences to the enhanced dangerous offenders sentencing regime; Clause 4, which will require all prisoners serving an extended determinate sentence to be referred to the Parole Board before early release can be authorised; Clause 5, which creates a new determinate sentence for serious child sex and terrorist offenders, under which prisoners will be referred to the Parole Board before early release can be authorised; and Clause 7, which introduces a new test for determining whether offenders receive fixed-term or standard recall, and to inform re-release decisions.

Our impact assessment acknowledges that Clauses 4 and 5 will add to the Parole Board’s workload. However, Clause 3 should not give rise to more than negligible impacts, since very few offenders are convicted of the offences in question. In any event, it should not impact on the Parole Board over and above the estimated impact of Clause 4 because, following the changes in Clause 4, all those serving extended determinate sentences will be referred to the Parole Board for early release in any event. We also think that Clause 7 will not have significant effects, because we estimate it will add a very small percentage to the total number of standard recalls that the board currently deals with.

We have looked at the likely impact of these provisions and the time over which the impacts will make themselves felt, and are confident that the additional work that will be created will be manageable. Most of the increase in Parole Board workload will arise from the new determinate sentence created by Clause 5 and Schedule 1, which will apply only to offenders who are sentenced after the new sentence is implemented. Those who commit these offences very often receive substantial prison sentences; under the new sentence, they will serve half their custodial term in prison before they are referred to the Parole Board for consideration for release. All this means that there will be a substantial time lag before these cases start to come through to the board. Our estimate is that the board will see the full impact of changes to early release between 2020 and 2030. We are also supporting the board in dealing with the consequences of the Osborn, Booth and Reilly judgment, referred to by the noble Lord, Lord Beecham, in his helpful remarks.

The Parole Board has established a programme of work to equip itself for dealing with the challenge of providing an increased number of oral hearings. The first phase of that work, which involved scoping the challenge and setting up immediate plans to deal with the increased demand, is now complete. The second phase, which involves developing a new case management model for the future, is under way.

Justice: Academic Research on Jury Decision-making

Debate between Lord Faulks and Lord Hope of Craighead

Wednesday 12th March 2014 Lords Chamber

[Lord Faulks]

Directions to the jury are a matter for the judge in the individual case. Judges are making ever more use of written directions, particularly in difficult cases. Very often, they will provide a direction having heard submissions from both prosecution and defence counsel so that they can arrive at an agreed direction. They will give the direction orally and then again in writing. In simple cases, that may not be necessary, but in other cases it is clearly desirable.

[Lord Hope of Craighead (CB)]

My Lords, is the Minister aware that academic research of this kind has been permitted in New Zealand for at least 20 years and the product of that research is in the public domain? Its system of justice is very similar to ours. Does the Minister think that we might have something to learn from its experience?

[Lord Faulks]

In answer to the first Question, I indicated that the Ministry of Justice is considering the Law Commission’s recommendation and will of course bear in mind what is said there. The safeguards identified in that report are the same safeguards as exist at the moment. We remain open to persuasion. A Bill will in due course be coming to your Lordships’ House containing various provisions about juries. It is possible that there may be some amendment to that effect.

Public Bodies (Merger of the Director of Public Prosecutions and the Director of Revenue and Customs Prosecutions) Order 2014

Debate between Lord Faulks and Lord Hope of Craighead

Monday 24th February 2014 Grand Committee

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

My Lords, the purpose of the draft order is to give legal effect to the administrative merger that took place just over four years ago, on 1 January 2010, between the Revenue and Customs Prosecutions Office, which was the prosecuting arm of HM Revenue and Customs, and the Crown Prosecution Service. The decision to merge the CPS and the RCPO was announced in April 2009 by the noble and learned Baroness, Lady Scotland, who was the Attorney-General at the relevant time. The purpose of the merger was to create a strengthened prosecution service, to safeguard and improve the high-quality work done by both organisations in serious and complex cases and to provide efficiency savings. Those objectives have to a large extent been achieved.

The merger that took place in 2010 did not involve legislation. Sir Keir Starmer, who was then DPP, was appointed Director of Revenue and Customs Prosecutions as well. Since that date, the person holding the positions of both DPP and Director of Revenue and Customs Prosecutions—now Ms Alison Saunders—has been running the two offices under one umbrella. There is a single management structure and cases investigated by HMRC are now prosecuted by a specialist fraud division of the CPS.

Although the administrative merger has been a success, there are disadvantages in the two organisations still existing as legally distinct entities. First, it might give the appearance that the merger is incomplete and could readily be reversed. This might call into question whether the change is intended to be permanent. Secondly, it has practical implications for how the organisations work. The Government consider that a legal merger would bring about greater efficiency and effectiveness. That is why we are bringing forward the present draft order under the Public Bodies Act 2011. The Act provides for the functions of certain public bodies—listed in the schedules—to be abolished, merged or transferred. The effect of this draft order is to transfer the functions of the Director of Revenue and Customs Prosecutions to the DPP, thus putting the existing merger of the RCPO and CPS on a statutory basis.

As there is a requirement for Ministers to consult on proposals before laying a draft order under the Act, a consultation exercise took place in 2012. Views were sought on the proposal that legal effect should be given to the administrative merger and on whether the proposed approach would achieve the desired effect. Those organisations and individuals who commented—only eight did so—either supported the proposal or did not object to it. There was concern that the specialist expertise of the RCPO should not be lost; the Government agree that this is an important aim. As the consultation response explained, cases investigated by HM Revenue and Customs are handled within the CPS by the same specialist casework division that prosecutes the most complex and serious fraud and corruption cases investigated by the police.

An order made under the 2011 Act must serve,

“the purpose of improving the exercise of public functions, having regard to (a) efficiency, … (b) effectiveness, … (c) economy, and … (d) securing appropriate accountability to Ministers”.

I am grateful to the Secondary Legislation Scrutiny Committee for its careful consideration of the draft order, and I welcome its conclusion, which was expressed in these terms:

“the Government have demonstrated that the draft Order serves the purpose of improving the exercise of public functions and complies with the test set out in the 2011 Act”.

I do not think that your Lordships would welcome a detailed description of the draft order, which—as is so often the case—is by no means as brief as my summary of its effect might suggest. As for its effect, I cannot do better than quote these lines from the Scrutiny Committee’s report:

“The Government present a convincing argument that the overall effect of the transfer of the responsibilities of the RCPO to the CPS will result in streamlining the process by including it in a larger group where economies of scale can be identified from using prosecutors and administrators for a wider range of duties. Although the economies realised by this Order are comparatively small, the improvements to efficiency are more substantial, with the potential for the more flexible structure possible under the new arrangements”.

I commend the order to the Committee. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords—

Criminal Defence Service (Very High Cost Cases) (Funding) Order 2013

Debate between Lord Faulks and Lord Hope of Craighead

Wednesday 11th December 2013 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, along with others, I am extremely grateful to the noble Lord, Lord Carlile, for tabling these Motions so that we can debate these important measures. I should make it clear that I have never practised at the English Bar and never sat in an English court. My experience has been of practice, both civil and criminal, north of the border. However, although I have never sat in an English court, I have sat in a United Kingdom court, have had some experience of dealing with criminal cases and think that I can speak with some authority in support of the points which have been made so effectively by the noble and learned Lords, Lord Woolf and Lord Brown of Eaton-under-Heywood.

A cut of 30% on fees previously set by the Government surely must be regarded in the present financial climate as severe. I appreciate, of course, that the Minister and those for whom he speaks in this House have very little room for manoeuvre, given the cuts that already have to be made across the entire department. However, it would help if the Minister in his reply were able to put these two measures into their overall context. As I understand it, we are dealing here with cases that take a very long time and provide the advocate with the benefit of continuity of employment throughout a long period. As has been pointed out, these are complex cases which require unusual amounts of work outside the court room and are, in comparison with rates elsewhere in the system, better paid. I could therefore perhaps understand it if the strategy behind these measures was to reduce the cost of legal aid at this level, so as to keep any reduction at the lower levels, with which we are not concerned this evening, to an absolute minimum—or even to preserve the existing position at the lower levels. After all, it is at the bottom of the scale that there is real hardship. One hears not infrequently that the costs of travel and other overheads exceed the amounts payable as fees to the advocate. If there is any margin over that, it is often very small. I would be grateful if the Minister would say whether this is what the Government have in mind, and give us an assurance that there is no question of cuts of this dimension being made elsewhere across the system. That would be some reassurance to those who are deeply concerned about what the Government have in mind in the overall planning.

I will direct my remarks to the amendment set out in regulation 3(5) of the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2013, as the provision which it seeks to insert affects the advocate’s freedom of contract. The standard terms already provide for their amendment within the terms of the contract. There is a contractual power to do this, but it is not entirely unqualified; this is not the place to debate how extensive that power is. However, when it comes to altering the terms for payment, I suggest that it is a question of degree. The stage may be reached when the amendment proposed, purportedly within the contract, is so great that it cannot be altered without the advocate’s agreement. In that situation, if agreement is not reached, the advocate would have a right to terminate the contract.

That leads me to consider what the effect would be if the amendment goes through. As I understand it, it would tie the advocate who agrees to this form of contract to the rates set out in Schedule 6. That being so, those rates can then be amended by a further order without the need for the advocate’s agreement. There is no need to alter the contract: what one does is to look at the schedule and alter the schedule by a further order. Once the advocate is tied in to such a contract, he or she has no escape from it, however much the reduction in the rates may be. As there is every prospect, if one is realistic, that the cuts now proposed will not be the last, the stage could be reached when the rates will become wholly uneconomic—indeed, some may say that this stage has already been reached. That amendment is a profoundly unattractive change in the existing arrangement. I do not understand why it is there and I suggest that the Government are taking a great risk by proceeding along these lines.

Members of the Bar, after all, are not civil servants. One of the strengths of the Bar, vital in our modern democratic society, is the independence of each one of its members from each other and from anyone else. That is an essential part of the system, which lies at the centre of maintaining the rule of law, which we all believe in. One of the characteristics of their independence is that advocates cannot be forced to accept terms to which they have not agreed or which they find unattractive. That leads directly to the consequences—to which the noble and learned Lord, Lord Woolf, drew our attention —which could be very far reaching and very damaging. Those already engaged in work of this kind might be well advised to withdraw from their contracts, lest they be sucked into an ever increasing pattern of cuts. There are many who might be attracted to this kind of work in other circumstances who would not wish to subject themselves to the reformed contract where they are subject to change without any further amendment of the contract itself.

I therefore have this further question for the Minister: what assurance can he give to those who may be willing to accept employment on these amended terms as to what the future holds for them? This is very relevant to the issue of recruitment. Schedule 6, as I have suggested, is open to further amendment. Are we to expect further cuts in these rates next year or is it proposed to do so within the life of this Parliament? If so, what further opportunity will there be—indeed what opportunity will there be at all—for consultation before any further amendments are proposed? What opportunity will there be for an advocate to withdraw if he decides that the rates that are then proposed are so completely unattractive that he is not prepared to carry on with that work? These are questions that all those engaged in this kind of work would wish to be answered and I hope very much that the Minister will be able to do so.

Lastly, on the point raised by the noble and learned Lord, Lord Brown, about jury trials, I come from Scotland where, as it happens, there is no right to a jury trial. It is up to the prosecutor to decide whether the offence should be tried by a judge alone in the sheriff court, with a sheriff and a jury, or in the High Court with a jury. The length of sentence is affected by that decision, but there is no reason why a case of very considerable complexity should not be tried before a single sheriff. The accused has no right to object to that. It raises the issue as to whether there is not considerable force in the point of the noble and learned Lord, Lord Brown, that we are reaching the stage where a jury trial in some of these cases may need to be reconsidered.

[Lord Faulks (Con)]

My Lords, my noble friend Lord Carlile has summarised the arguments against the statutory instruments with his usual clarity and vigour, and I do not wish to weary the House with repetition. I would, however, like to add a few words and in doing so should declare an interest as a practising barrister. I am not a barrister who does criminal cases and I very rarely do cases where legal aid is involved. However, I have sat until recently as a recorder in the Crown Court and am thus familiar with our criminal justice system.

I entirely understand the desire on the part of the Government to reduce spending on legal aid. The LASPO Act was the Government’s first move in reducing costs. There is no reason why lawyers should be in any way immune from austerity, nor should justice be recognised as some sort of special case, up to a point. Nevertheless, what troubled many noble Lords in scrutinising that Bill as it went through the House was the risk of real injustice not to lawyers but to those who encountered the system and would be at risk of being denied access to justice. The Minister reassured those of us who were anxious, particularly in relation to Part 1 of the LASPO Bill, as it then was, and made some important concessions. However, the impact of the Act is going to need careful watching to ensure that real injustices do not result.

Anti-social Behaviour, Crime and Policing Bill

Debate between Lord Faulks and Lord Hope of Craighead

Monday 25th November 2013 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I share the puzzlement of the noble Lord, Lord Harris, about the provision in Clause 56, particularly as all the flexibility needed is covered in Clause 57. There is a power to discharge, which would no doubt be exercised when the local community is satisfied that the order is no longer needed, and there is a valuable power to vary the order so that it could be extended to more people or its scope reduced if that is shown to be necessary. Flexibility is key and I would have thought that one could get by perfectly well with Clause 57 without having Clause 56 there at all.

[Lord Faulks (Con)]

My Lords, I respectfully agree with what the noble and learned Lord has just said. The only way in which Clause 56 might be amended to satisfy the anxiety is to make it a relatively simple procedure. At the moment, subsection (5) requires that the local authority must consult various people. If the local authority was given an opportunity so that it “may” consult rather than “must” consult, it would make the extension a relatively informal procedure. Otherwise, I entirely accept what the noble and learned Lord says: Clause 56 is over elaborate in view of the existence of Clause 57.

Care Bill [HL]

Debate between Lord Faulks and Lord Hope of Craighead

Wednesday 16th October 2013 Lords Chamber

[Lord Warner]

My Lords, just to clarify matters, if this lady had been covered by the Human Rights Act, the son would have been able to take legal action to try to prevent the home removing her. The mischief that was being committed was the forcible removal of a woman in her 90s from the place that she had lived in for a very long time. What the Human Rights Act—as I understand it; I am not a lawyer—would have provided protection for was the ability of a relative to seek protection from the courts that this home, in taking that action, was actually in breach of the Human Rights Act. I do not think that the noble Lord’s suggested remedies would have helped in this case or any other like it.

While I am on my feet, I say to the noble Lord that this Act changes the position anyway, because that lady, or a similar person in the future, might well have come up against the cap on her privately funded care and her care would then be paid for by the state, which would be performing a public function—or a function of a public nature—in paying for her care in that private provision. This Act changes the dimension from the past as well.

[Lord Hope of Craighead]

My Lords, I do not know whether I am permitted to speak again since we are on Report but perhaps I might just say for clarification that in my opinion the analysis by the noble Lord, Lord Warner, of the reach of the Human Rights Act is entirely accurate. We have had a number of cases, in both the House of Lords Appellate Committee and the Supreme Court, dealing with the kind of problem where people say that they are losing their home because of steps being taken to remove them from premises that they occupy. It is that reach and the uncertainty that has been drawn attention to, where some people have the protection and some do not, that causes real problems.

[Lord Faulks]

In response to that, of course the Act provides that a court can give just satisfaction, and the remedy may include something of the sort to which the noble and learned Lord refers. However, if there is, as I think I understand the facts of the case, a violation of ordinary private law principles, the remedy should in those circumstances be available. But I think I have trespassed on the House’s patience for long enough.