Northern Ireland: Defamation Act 2013

Lord Fowler Excerpts

Monday 11th January 2021 Lords Chamber

[Lord Stewart of Dirleton (Con)]

My Lords, freedom of expression and the ability to hold Ministers to account on matters of public interest are of course of the greatest importance, and I am sure that the Northern Ireland Assembly will wish to consider the position carefully in considering that Private Member’s Bill and any measures that the Northern Ireland Executive may themselves bring forward.

[The Lord Speaker (Lord Fowler)]

My Lords, the time allowed for this Question has elapsed, and that brings Question Time to an end.

Divorce

Lord Fowler Excerpts

Wednesday 6th January 2021 Lords Chamber

[Lord Stewart of Dirleton (Con) [V]]

I am obliged to my noble friend Lord Courtown.

[The Lord Speaker (Lord Fowler)]

Moving on to the next supplementary, I call the noble Lord, Lord Faulkner.

[Lord Faulkner of Worcester (Lab)]

My Lords, I think we are all aware that this post-Christmas period is a particularly difficult time for relationships, and the feelings of depression and anxiety among divorcees, which the noble Baroness, Lady Deech, referred to, are made worse when they are worried about whether they can afford professional or legal advice. So many decide to represent themselves in the divorce court rather than to have professional advice, sometimes with disastrous results. How do the Government intend to ensure that poorer people have access to justice, and what are they doing to relieve the huge burden of overwork for court staff which leads to phones not being answered and cases postponed?

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[Lord Stewart of Dirleton (Con) [V]]

The question covers some of the ground posed by an earlier question but I am happy to answer it. Approximately £3.5 million of additional funding has assisted Cafcass in increasing staffing levels. Her Majesty’s Courts & Tribunals Service has recruited approximately 900 additional support staff across jurisdictions and around 700 further appointments are currently sought. Your Lordships will be aware that Her Majesty’s Courts & Tribunals Service has established 17 Nightingale courts across England and Wales. These give 32 additional courtrooms to alleviate the pressure on courts and tribunals. These courts are hearing, as well as family cases, civil, tribunal and non-custodial criminal work. I can advise that judicial sitting days in the family court have been increased. Current projections are that a level of nearly 96,000 sitting days for 2020-21 may be accomplished—5,000 more than allocation—and the courts sat for record numbers of days in June and July 2020.

[The Lord Speaker (Lord Fowler)]

The time for this Question has elapsed. We now come to the second Oral Question.

Rule of Law: Law Officers

Lord Fowler Excerpts

Tuesday 15th September 2020 Lords Chamber

[Lord Thomas of Gresford (LD) [V]]

My Lords, the noble and learned Lord told the Scottish Public Law Group in Edinburgh in June 2018:

“If the rule of law is disrespected, and falls into disrepute, elected governments will not be able to govern effectively—any government is simply shooting itself in the foot if it undermines the rule of law.”


The contingent powers in this Bill to change the Northern Ireland protocol unilaterally trash the dispute resolution provisions in the treaty that Boris Johnson signed, and on any sensible reading undermine the rule of law, as Brandon Lewis candidly acknowledged. Will the Minister acknowledge that for him to promote their use by introducing a statutory instrument under these provisions in this House would violate his overarching duty under the Ministerial Code to comply with the law, including international law and treaty obligations, as the Court of Appeal found and as the noble and learned Lord is reported by the Guardian correctly to have advised the Prime Minister? Does he acknowledge that it would also violate the law officer’s oath that he took as Advocate-General of Scotland, and would be a gross dereliction of his duty?

[The Lord Speaker (Lord Fowler)]

It would be helpful if questions could be kept brief, in which case we might be able to get through the list. We are not doing too well so far.

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[Lord Keen of Elie (Con)]

My Lords, the extent to which these provisions might be used in the context of negotiation is for others to determine. What I will say is that I have to accept the factual matrix as set out by those who represent the Government in these negotiations. Where it is suggested that, for example, the United Kingdom would not be listed as a third party country for the purposes of animal and food products, with the result that it would be unlawful to move such food products from the mainland to Northern Ireland, and that is justified on the grounds that they do not know what our standards are when they are their standards, we then have to contemplate that the outcome of these negotiations may not only be adverse to everyone’s interests but, ultimately, amount a breach of obligations that we have to maintain under the terms of the Northern Ireland protocol.

[The Lord Speaker (Lord Fowler)]

My Lords, the time allowed for this Private Notice Question has elapsed, and I apologise to those Members who were not reached. That brings the Question to an end.

Rule of Law

Lord Fowler Excerpts

Thursday 10th September 2020 Lords Chamber

[Lord Keen of Elie (Con) [V]]

I thank the noble and learned Lord.

My Lords, from time to time, as I indicated, tensions occur between our domestic legal obligations and our position with regard to international law. Indeed, in 1998, the then Labour Government passed the Human Rights Act, including Section 19 that required statements of compatibility to be made when Ministers introduced legislation. Interestingly enough, Section 19(1)(b) had an alternative statement, which required the Minister to say that

“he is unable to make a statement of compatibility”

with our international obligation but that

“the government nevertheless wishes the House to proceed with the Bill.”

In 2002, the Labour Government introduced the Communications Bill with just such a certificate, because it was perceived that Clause 309 of that Bill could be considered to violate our international obligations under Article 10 of the convention. From time to time, we face these tensions.

Here, there is a very real tension between the direct effect of EU law pursuant to Article 4 and what would occur if we had no agreement at the end of the transition period and there was no determination by the Joint Committee as to the way forward under the Northern Ireland protocol. That is because there are other provisions apart from Article 4. There is Article 4 of the protocol itself, which determines that Northern Ireland is part of the UK’s customs area. There is Article 16 that deals with societal and economic pressures that could lead to us being in breach of the Belfast agreement. All these have to be considered.

Against that contingency, Ministers considered it appropriate to provide, or ask Parliament to provide, a means of addressing these issues. At the end of the day, it will be for the sovereign Parliament to determine whether Ministers should be able to deal with such a contingency. Indeed, it will be for this House to determine whether it considers it appropriate for Ministers to be able to deal with such a contingency.

In these circumstances, I continue in post and continue to advise, encourage and stipulate adherence to the rule of law—understanding that, from time to time, very real tensions can emerge between our position in domestic law and our position in international law. It is not unprecedented for legislation passed by this Parliament to cut across obligations taken at the level of international law. In those circumstances, domestic legislation prevails.

[The Lord Speaker (Lord Fowler)]

My Lords, I remind the House that this is not a debate; we are asking questions. If the next contributors could keep their questions short, and Ministers could keep their answers short as well, it would be to the benefit of everybody.

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[Lord Keen of Elie (Con) [V]]

My Lords, that is because we will require consideration of not only the absence of a post-transition agreement, but the absence of clear determinations by the Joint Committee, which would render the Northern Ireland protocol potentially unworkable.

[The Lord Speaker (Lord Fowler)]

The time allowed for this Private Notice Question has elapsed. I apologise to those noble Lords who have not been able to get in, but it brings the PNQ to an end.

Probate Service

Lord Fowler Excerpts

Monday 27th July 2020 Lords Chamber

[Lord Keen of Elie [V]]

I thank the noble Baroness for her question. We appreciate that the service will come under increased pressure in July and August, because of the increased death rate in the spring. Probate applications tend to come about three months after the relevant death. We are pleased with the rollout of the digital service and the response has been extremely good, with an increase in take-up by legal professionals. The system is being monitored and we will ensure that the improvements of the latter part of 2019 continue, while recognising the challenges of the Covid-19 crisis.

[The Lord Speaker (Lord Fowler)]

My Lords, the time allowed for this Question has elapsed.

Prisons: Overcrowding

Lord Fowler Excerpts

Thursday 14th May 2020 Lords Chamber

[Lord Keen of Elie]

As I indicated, in all our prisons we have introduced a cohorting strategy that ensures separation and isolation between prisoners displaying Covid-19 symptoms and other prisoners; a shielding unit for those who are vulnerable to contact with the virus; and a reverse cohorting unit to ensure that new prisoners are isolated for a suitable period until they are found not to be exhibiting symptoms. That continues. With regard to the number of cases within prisons, I think I indicated before that the present position as of 12 May is that we have 401 prisoners who have tested positive for Covid-19 across 74 prisons, and 501 prison staff who have tested positive across 70 prisons. The noble Lord will notice that there is a greater number of prison staff than prisoners who have tested positive. We continue to maintain a system of social separation and hand washing and, where necessary, PPE is available to staff.

[The Lord Speaker (Lord Fowler)]

I call the noble and learned Lord, Lord Mackay of Clashfern. No? I regret that we did not get through many supplementaries on that Question, but the time has now elapsed and we will move on to the fourth Oral Question.

Vagrancy Act 1824

Lord Fowler Excerpts

Thursday 23rd April 2020 Lords Chamber

[Lord Keen of Elie]

I mentioned earlier that there is a concern as to whether we should repeal this legislation, amend it or substitute it with something else. As regards the position which has arisen as a result of the Covid-19 situation, the Government have asked local authorities in England to support rough sleepers into appropriate accommodation. Indeed, I understand that more than 5,400 rough sleepers, which represents over 90% of those who were on the streets at the beginning of the crisis and were known to local authorities, have now been made offers of safe accommodation, and we are concerned that that should continue.

[The Lord Speaker (Lord Fowler)]

Lord Bird has a supplementary question. Lord Bird? Okay, we will move on to Lord Foulkes of Cumnock.

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[Lord Keen of Elie]

My Lords, we consider that there has been a truly remarkable achievement since the Covid-19 epidemic emerged with regard to achieving suitable accommodation for rough sleepers. A great deal of that work has been done by local government and other agencies and charities across the country. Of course, we would like to see these vulnerable people protected going forward. We have provided additional funding to local authorities in excess of £1.5 billion so that they can be more able to respond to the pressures brought to bear by Covid-19. That includes taking suitable social welfare steps in respect of those who do not have appropriate housing. I would be more than willing to meet with relevant Members, although I should add that the lead on this matter is taken by the Ministry of Housing, Communities and Local Government.

[The Lord Speaker]

Lord Falconer of Thoroton. No? Lord Harries of Pentregarth.

[Lord Harries of Pentregarth (CB)]

Following on from the question from the noble Lord, Lord Foulkes, if Scotland can abolish this without any harmful effects, surely we can do the same in this country. Bearing in mind what the Minister said about using the law to encourage rough sleepers to find help, there are plenty of other laws on the statute book about disorderly behaviour and being a public nuisance that could be used in exactly the same way. Given the Government’s wonderful promises about housing rough sleepers in hotels, how many rough sleepers does the Minister think have not yet been housed?

[Lord Keen of Elie]

There are other statutory provisions in place addressing public order offences; the Public Order Act 1986 is an example and I also mentioned the Anti-Social Behaviour, Crime and Policing Act 2014. However, the evidential requirements of these other statutory provisions can be quite challenging when dealing with those who are sleeping rough. For example, it is not possible to serve a community protection notice under the 2014 Act without a prior written warning. Noble Lords will appreciate that it may be difficult to issue a prior warning to someone with no fixed abode in the first instance and then to follow that up with further steps. There is a place for the provisions of the 1824 Act, but of course we will look very carefully at all sources of opinion in respect of this matter. I reiterate that Section 3 of the 1824 Act has never extended to Scotland—only Section 4.

[The Lord Speaker]

My Lords, the time allowed for this Question has now elapsed. We move on to the fourth and last Oral Question. Baroness McIntosh of Pickering.

Terrorist Offenders (Restriction of Early Release) Bill

Lord Fowler Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 24th February 2020 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, I am familiar with the case of Abedin. I do not accept, however, that that involves or considers the position here, where the length of time spent in custody is changed by statute from the automatic release that prevailed under the 2003 Act to the prohibition on release before the two-thirds point that would prevail once this Act was passed. Abedin did not answer that point. It concerned the mechanism for release; it did not concern the overall time that was necessary by statute to be spent in custody. That is the answer to the direct point of the noble Lord, Lord Pannick, on the ECHR jurisprudence.

I was saying that I prefer to rest this regret Motion on the traditional common-law principle against retrospectivity. When we debated before the recess the Sentencing (Pre-consolidation Amendments) Bill, the noble and learned Lord rightly described the Bill as ensuring that it did not,

“contravene the general common law presumption against retroactivity.”—[Official Report, 11/2/20; col. 2253.]

The noble and learned Lord, Lord Hope of Craighead, described the principle as being,

“that the convicted person is not dealt with by the imposition of a penalty of any kind that is more onerous than that which applied when the offence was committed.”—[Official Report, 11/2/20; col. 2249.]

The penalty that applied when the 2003 Act was being applied meant automatic release at the one-half point. This Bill requires consideration of—not automatic —release only at the two-thirds point. That is one-third longer, and that is the point that I make. The noble and learned Lord, Lord Falconer of Thoroton, expressed anxieties on this point during the course of that debate, and I share them.

My concern, therefore, is simply that an offender convicted before this Bill is statutorily entitled to release at one half, under an automatic response. If this Bill is passed unamended, his release will be deferred until after the two-thirds point, and then only on a Parole Board assessment.

At Second Reading in the House of Commons, the Lord Chancellor tried to argue that this does not mean that the Bill will change retrospectively the sentence imposed by the court:

“Release arrangements are part of the administration of a sentence, and the overall penalty remains unchanged.”


That is the point made on Abedin by the noble Lord, Lord Pannick. A little later, however, the Lord Chancellor rather gave the game away in abandoning this position when he said:

“The justification for this emergency, retrospective legislation—out of the ordinary though I accept it is—is to prevent the automatic release of terrorist defenders in the coming weeks and months.”—[Official Report, Commons, 12/2/20; col. 872.]


Indeed, the noble and learned Lord today, in opening this debate, accepted that the Bill had retrospective effect but argued that it did not offend against Article 7.1. The Bill is retrospective, whatever the position under Article 7.1, and I do not believe that the Government have made a strong, evidence-based case for retrospection.

I will add only this. To impose apparent injustice on serving prisoners risks their being less amenable to rehabilitation, more resentful of their having their time in custody increased, and so more dangerous on release then they might otherwise have been. Significantly, the impact assessment at page 2 recognises both this risk and the risk to rehabilitation in the Bill, saying:

“A later release date and reduced (or no) licence period could disrupt offenders’ and family relationships and reduce opportunities for rehabilitation in the community, this would be more severe for young offenders and children convicted of terrorist offences. Additionally, there is a risk of prisoner frustration, disengagement or unrest at changing release arrangements, though there is little evidence to support how prisoners will actually react, and reaction is likely to vary from prisoner to prisoner.”


I fear that we abandon long-established principles at our peril. The peril is worse still when we legislate in a rush. We have amendments down in Committee seeking a review after a year of the operation of this legislation. We regard such a review as extremely important to consider its functioning when we have been denied, as we have, proper scrutiny at this stage. It is our intention to press those amendments in Committee. I beg to move.

[The Lord Speaker (Lord Fowler)]

The original question was that this Bill be now read a second time, since when an amendment has been moved, at the end to insert the words as set out on the Order Paper. The question I now therefore have to put is that this amendment be agreed to.

Northern Ireland (Executive Formation) Bill

Lord Fowler Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 15th July 2019 Lords Chamber

[The Lord Speaker (Lord Fowler)]

Amendment 7A falls as it is an amendment to Amendment 7.

Amendment 7A not moved.

Civil Liability Bill [HL]

Lord Fowler Excerpts

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

[The Earl of Kinnoull (CB)]

My Lords, in moving Amendment 1, I declare my interests as set out in the register of the House, in particular those in the insurance industry. I am going to speak briefly to three propositions. First, a definition of “whiplash” should appear on the face of the Bill. Secondly, that definition should be wide. Thirdly, it should be amendable without having to resort to primary legislation, but with parliamentary oversight.

I turn to the first of those propositions. My work has been made much easier by the 22nd report of the excellent Delegated Powers and Regulatory Reform Committee. The committee is excellent as well as the report. It says at paragraph 9:

“We take the view that it would be an inappropriate delegation of power for ‘whiplash injury’, a concept central to a full understanding of the Bill, to be defined in regulations made by Ministers rather than being defined on the face of the Bill”.


I very much agree. It is particularly curious to me that there is no definition, because there are so many definitions of whiplash floating around, not least in the pre-action protocol for low-value personal injury claims for motor accidents and indeed in the draft regulations that appeared within the last 48 hours for this Bill. I therefore can see no reason why there should not be a definition on the face of the Bill. I am looking forward to hearing from the Minister whether he might see that one was, in fact, appropriate.

There are two problems with the width issue. The first is that, if the width is narrow—and a whiplash motor accident normally involves several minor injuries to the person involved—we are in the position where a tariff applies to a selection of injuries but maybe not all of them. That would be to the advantage of what I call the claims industry. Aviva, in its briefing to all Peers before the Second Reading, estimates out of whiplash alone to make £500 million a year. It is unbelievably inventive and supple. This morning, I was looking at one of the principal websites, and I will read a bit from it out as it will show just how much the meaning of the word “whiplash” has been stretched:

“Symptoms can include dizziness, blurred vision, disorientation, tiredness, poor concentration, memory loss, nausea, pins and needles in the arms and hands, muscle spasms and pain in the lower back”.


Later on, there is a rather curious sentence:

“Even if you don’t experience any symptoms straightaway, don’t rule out the possibility that you’ve suffered this type of injury”.


That is the sort of entity that, in fact, is doing great damage to the general population. It has increased motor insurance premiums. They are highly intelligent and well funded. I really feel width is important.

There is a second point on width. For the honest claimant, having clarity—so there is one tariff for one sum of money, and so they can fill in the online portals for a claim—is greatly to their advantage. If they have to fill in one online portal to sort out part of their heads of claims, and then no doubt head off to the one of the companies I was referring to, there would be greater chaos and we will not have tried, through legislation, to improve society.

I turn quickly to the point about the importance of it all being amendable. I regret that we will always be playing catch-up with the claims industry. This is not the first attempt to cope with the burgeoning whiplash problem. I remind the House that, even today, 1% of the population every year has a successful whiplash claim, on average—that is 30 times what happens in France. It is a problem that is out of control; we heard many examples of that at Second Reading. There is an enormous prize in having flexibility and, accordingly, I beg to move.

[The Lord Speaker (Lord Fowler)]

My Lords, I should inform the Committee that if Amendment 1 is agreed to, I will be unable to call Amendments 3 to 5 by reason of pre-emption.