Social Action, Responsibility and Heroism Bill

Lord Hodgson of Astley Abbotts Excerpts

Tuesday 18th November 2014 Lords Chamber

[Lord Beecham]

My Lords, it is interesting that the noble Lord seeks to give carte blanche to any organisation, whether it be a statutory organisation or a voluntary organisation, to preside over a situation in which injuries can be sustained but no compensation paid because the organisation would have difficulty in funding the claim. There are considerable difficulties with that approach. The first is that it entirely removes any incentive to prevent accidents occurring in the first place. This Bill is supposed to encourage people to volunteer. The effect of the noble Lord’s amendment would be to encourage statutory and other authorities to take no precautions whatever because they can always demonstrate that they need more money. It would be more relevant if the noble Lord addressed his colleagues on the government Benches to ensure, for example, that the health service and local authorities are adequately funded to carry out all their responsibilities, whether dealing with potholes or treating people properly in hospital and avoiding clinical negligence claims and the like.

It strikes me as extraordinary that the noble Lord should be making a proposition which would completely exclude compensation for an innocent injured party who proves injury, bearing in mind that all these cases depend on a claimant proving on the balance of probabilities that he or she has been the victim of negligence leading to the injuries for which he or she seeks compensation. Those are quite extraordinary propositions, and I hope the Committee—and in due course, if the noble Lord brings the matter back on Report, the House—will not countenance them. They would remove from compensation a large number of people who are entirely justified in making a claim.

Let us be quite clear: nobody has any sympathy with claims farmers or anybody attempting to make a fraudulent claim, whether or not they are represented by —shall we put it gently?—overambitious solicitors or others in promoting such matters. Many of us regularly report to this House being approached by such organisations on our telephones, computers and Blackberries, let alone through adverts in the press and other media. That is something that is entirely reprehensible. We are at one with the noble Lord in wanting to see those matters regulated. I congratulate the Government on the steps that they are taking in that respect. These proposals go much too far and would have an adverse effect on people with legitimate claims. I hope that, on reflection, the noble Lord will feel able to withdraw them.

[Lord Hodgson of Astley Abbotts (Con)]

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

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

[Lord Faulks]

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

[Lord Hodgson of Astley Abbotts]

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

[Lord Faulks]

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

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

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

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

--- Later in debate ---

[Lord Pannick]

My Lords, I have added my name to that of the noble and learned Lord, Lord Lloyd of Berwick, in opposing Clause 2 standing part of this Bill, and I agree with everything that he has said. At Second Reading the noble Lord, Lord Beecham, and the noble Baroness, Lady Browning, each quoted Shakespeare in their competing assessments of the value of Clause 2, and indeed of the whole of this Bill. At that stage I was unable to contribute at such a high literary level—I could offer only a quotation from Basil Fawlty.

Since then, I have received a valuable e-mail from Paul Mitchard QC of the Faculty of Law at the Chinese University of Hong Kong. He assures me, and I assure the Committee, that the Official Report on this Bill is being carefully studied in the special administrative region of the People’s Republic of China. Mr Mitchard has drawn my attention to a valuable quotation from the works of Shakespeare which is relevant to whether Clause 2 should stand part of this Bill. On being complimented on making a perceptive comment, Beatrice responds by emphasising the obvious nature of what she had said:

“I have a good eye, uncle; I can see a church by daylight”.

Most appropriately for our purposes, the quotation comes, of course, from “Much Ado About Nothing”. Given that a few moments ago the Minister praised the concise nature of this Bill, perhaps “little ado about nothing” is more appropriate.

Judges can already see a church by daylight. They already take account of beneficial action—responsibility, heroism—when they decide on potential liability for negligence or breach of statutory duty. Noble Lords discussed the case law relevant to this matter at Second Reading; I will not repeat it. The Lord Chancellor’s defence of Clause 2—as the noble and learned Lord, Lord Lloyd, has said—is not that Clause 2 will change the law. The Government have identified no cases which would have been decided differently had Clause 2 been in force. The point made by the Lord Chancellor—the point made by the Government—in support of Clause 2 is that people do not understand the existing law and therefore we, Parliament, should send a message to people who are worried that conduct beneficial to society may result in legal liability, even though those worries are entirely baseless. I do not know whether the Lord Chancellor is on Facebook or Twitter but they would be far more effective methods of communicating a message—if it is the intention of the Government to do so—than the legislative time being taken up by the Bill.

I hope that it is appropriate to say that I cannot put out of my mind—although I hope to do so by ventilating it in this Committee—an image of the Lord Chancellor and the noble Lord, Lord Faulks, as the parliamentary equivalent of the Bee Gees singing their hit, “I’ve Gotta Get a Message to You”. The problem is that there is really no point sending a message unless there is something of value to communicate and unless one has reason to think that it is going to be received. There is simply no evidence whatever to suggest that those thinking of performing beneficial acts or heroism are deterred by a misunderstanding of the protection that the law already offers them.

The Joint Committee on Human Rights, in its report published last week, helpfully summarised the position in relation to this crucial point. I draw the Committee’s attention to paragraph 2.23. It refers to the Explanatory Notes to the Bill, which,

“say that there is ‘some evidence’ that people are deterred from participating in socially useful activities due to worries about risk … or liability”.

The Explanatory Notes, as the Joint Committee points out, cite only an example of a survey conducted in 2006-07. The committee asked the Government if there were any other evidence upon which the Bill is based in relation to the suggested need for a message to be sent. This was the report’s conclusion at paragraph 2.26, which stated:

“We have considered carefully the strength of the evidence base showing that the specific risk of legal liability, as opposed to risk generally, is a reason why people do not volunteer, and we have found it weak. The evidence relied on by the Government as demonstrating a public perception that volunteering carried too great a risk of legal liability is almost entirely anecdotal, and we do not consider such evidence to be a sound basis for legislating”.

I respectfully agree. If the Government are bringing forward Clause 2 on the basis that there is a need to send a message, they need to present to this House some evidence to support that assertion. Anecdotal accounts are simply not good enough. I therefore share the view of the noble and learned Lord, Lord Lloyd of Berwick, that Clause 2 serves no useful purpose; it should not stand part of the Bill.

[Lord Hodgson of Astley Abbotts]

I have been listening carefully to the two speeches. The noble and learned Lord, Lord Lloyd of Berwick, referred to the interplay between this piece of legislation and the Compensation Act 2006. I had to note that after he said that he thought that the Compensation Act was sending a message, he added that the message may or may not have been received, which is part of the issue that we are tackling today—that the message has not been received. I listened carefully to the remarks of the noble Lord, Lord Pannick, and have read with equal care his article about this piece of legislation in last Thursday’s Times, which was headed “UK negligence law is already fit for heroes” and saying that we do not need this Bill. Its tone can only be described as uncompromising throughout.

Regrettably I was abroad on business during the week beginning 3 November and therefore was unable to participate in the Second Reading debate. The proposal of the noble and learned Lord, Lord Lloyd, and the noble Lord, Lord Pannick, that Clause 2, headed “Social action”, should not stand part of the Bill clearly rips the heart out of a large part of this measure and deserves a response. With respect to the noble Lord, Lord Pannick, I do not think that people’s fears are baseless.

Before I go any further, I need to declare an interest. First, I am not a lawyer. Hearing the interchanges I sometimes feel that I have joined a party to which I have not been properly invited. Secondly and more importantly, in late 2010 I was asked by the Government to chair a task force to look at those factors affecting the growth of the charitable and voluntary sector, especially among smaller charities and voluntary groups.

I was asked to look at three specific questions. What stopped people giving their time to volunteering, for example? What deterred them from giving their money? What stopped smaller charities and voluntary groups from growing in general terms? The task force’s report, entitled Unshackling Good Neighbours, was published in May 2011 and remains available for aficionados on the Cabinet Office website.

Only the first of those three tasks is relevant to our deliberations today. With the greatest respect to the noble Lord and noble and learned Lord, with the experience of that task force and the evidence that we received. I think that they have seen this issue too exclusively, through an over-narrow legal prism. I agree with their view that this problem of volunteer concern will not be solved by change to the law alone. There is no silver bullet and I would not claim that this Bill is one. The problem can be addressed by multiple bullets and this Bill provides one of them.

The noble Lord, Lord Pannick, is aware of the importance that I attach to the rule of law. I have had the pleasure of participating with him in debates on the Motion of the noble and learned Lord, Lord Woolf, about the importance of the rule of law abroad and Britain’s reputation. I have also had the pleasure of speaking with the noble Lord on the Justice and Security Bill. To maintain the rule of law, the law must command general respect. It must not become disconnected from the regulars of the saloon bar in the Dog and Duck. I fear that in this area it is becoming so disconnected. Some of the disconnection is direct and some is indirect, in that the law is being considered to support approaches that our fellow citizens think are at best foolish and at worst downright unhelpful.

Let me give an example of what is happening, which was provided to the task force. A young woman, an undergraduate at Oxford University, saw an advertisement in the paper asking for individuals to act as room curators at one of the city’s museums. Like many or perhaps most undergraduates she was short of money and anxious to earn some additional sums. The job required her to sit in the corner of a gallery, watching that visitors going by did not interfere or tamper with the exhibits, or steal them. When she applied for the job she was immediately told that it required her to have a Criminal Records Bureau check. She was not keen on what she found a disproportionately untrusting attitude.

At this point she was put in touch with the task force. I knew that CRB regulations check that a job applicant is suitable for “frequent and intensive” contact with children or vulnerable adults and could not see how this undergraduate sitting in the corner of a room in a museum would call that principle into question. So I asked her to write to the university authorities and ask them for the basis of their CRB requirement. The answer was that the museum authorities had consulted their solicitors and had been told that to cover all the bases, including generally, a failure to have CRB checks would increase the likelihood of the trustees being found liable if there were problems in any of the operations of the museum. In the event, the young woman did not take the job because she refused to have the CRB check and the museum would not amend its policy.

That example could be replicated thousands of times up and down the country. I could—but will not —bore the House with examples: the Punch and Judy show on Hastings pier; the Women’s Institute putting flowers on a Welsh railway station; or a retired doctor seeking to read a few hours a month to Alzheimer’s patients in Northumberland. Each case results in people being reluctant to get involved.

[Lord Beecham]

Can the noble Lord explain the relevance of the cases he has just cited to the Bill—or, to put it the other way round, the relevance of the Bill to the cases he has just cited? The Bill is speaking about claims for negligence.

[Lord Hodgson of Astley Abbotts]

What I am talking about here is the provision that the court,

“must have regard to … the alleged negligence or breach”.

In the case of the Oxford museum, the solicitors were indicating that failure to have CRB checks could render the museum liable for a negligence claim in the event of there being a problem.

[Lord Pannick]

Perhaps I might point out to the noble Lord that the Minister assured the Committee in relation to the first group of amendments that the Bill would have no effect whatever on vicarious liability. Therefore, the museum’s approach—which does not sound very sensible—would not be affected in any way by the Bill.

[Lord Hodgson of Astley Abbotts]

I am not going to try to argue a fine legal point with the noble Lord but the fact of the matter is that the museum was advised that unless there were full and clear CRB checks for all individuals, it would be liable. This piece of legislation gives us an opportunity because in a case such as this, the museum,

“was acting for the benefit of society or any of its members”.

I have to say to the noble Lord, Lord Beecham, that I was disappointed with his remarks at Second Reading when he said:

“The irony is, of course, that banging on about a compensation culture is itself likely to create the very apprehension that the Bill purports to allay”.—[Official Report, 4/11/14; col. 1552.]

Regrettably, the apprehension is already very widespread. If he wishes to find out what is causing that apprehension, I invite him and other noble Lords to read the briefing sent by the Association of Personal Injury Lawyers, which describes the impact of the Bill as follows. It says that,

“those who ‘employ’ volunteers may be less rigorous in their risk assessments, thereby leaving those in their care more vulnerable to harm. An example is the chairman of a local football club where volunteers coach children. As a result of this Bill, the chairman may be tempted to cut corners in vetting the suitability of his volunteers”.

To suggest that those of us who support the Bill are somehow careless about our children’s future is unfair, unworthy and, indeed, outrageous.

I referred earlier to my support for the rule of law but I have an equally deep affection for the right of free association. It is on this right that our civil society is built. Many argue that in this screen-based age, our society is becoming more atomised and more self-centred. Whether or not this is true, I believe strongly that a vibrant civil society improves social well-being and social cohesion. All possible steps should be taken to avoid people being discouraged from getting involved.

I expect that the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Lloyd of Berwick, will argue that if a case with the characteristics I have described were to come to court, it would be thrown out. That is as may be. I am certainly not going to try to swap legal precedents with them as that would be a battle I would surely lose. But I ask the Committee to consider that for the noble Lord and the noble and learned Lord, a day in court is another day at the office, but for the defendant it is an entirely strange world —working to unfamiliar and not always understandable procedures, often taking quite a long time to come to court and incurring considerable cost and expense. It is a highly stressful experience for the layman or laywoman as well as for their families and work colleagues. Of course, if the defendant is a trustee of a charity which is not a CIO, he or she has unlimited liability.

In the background is the advice we were given at the time of the task force by an experienced litigation solicitor who explained that he would do everything he could to prevent his clerk going to court in what he called “volunteer liability” type cases because, as he put it, they are always complex and judgmental. Once you appear before a judge, and even more so before a judge and jury, the potential for unpleasant surprises increases significantly.

Earlier in the Bill, I said this was one of a series of bullets that needed to be fired to tackle this problem. So that the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Lloyd of Berwick, do not think that I am trying to attack the lawyers, I will give two brief examples of other bullets that need to be fired. One is the availability of insurance. The task force found that improving the clarity and comparability of insurance cover would have a major impact on encouraging volunteers. As the task force recommended, the Government have established a working party that includes representatives of the insurance industry and the voluntary sector to tackle this and other insurance problems. For the second bullet, I follow what the noble Lord, Lord Pannick, said earlier, when he wrote in his Times article, “Why not just issue a press release or pay for a newspaper advertisement?”. This raises the issue of myths. My task force was appalled at what we found, and we listed the 20 most extraordinary in our report. They include people worried that they could not put a plaster on a child’s cut; that goggles could not be worn in a swimming lesson; that they could not take photographs of their children at a school play, and that they could not offer meeting space in an office to a local community group. I hope that in parallel with implementing this Bill the Government will take active steps to ensure that where myths occur, they are duly busted.

To conclude, valuable steps have already been taken as regards the law in this respect. The Compensation Act was the subject of our debate this afternoon. The restrictions on contingent-fee legal work and after-the-event insurance are most welcome. We need, however, to continue to explore ways to encourage, or at least not discourage, our fellow citizens to get involved in civil society, and this Bill is important in that regard. I hope that the noble Lord will not divide the House tonight on the proposal that Clause 2 should stand part of the Bill and that my noble friend on the Front Bench will be robust in rejecting the Motion.

[Lord Blair of Boughton (CB)]

My Lords, I find myself very surprised to be supporting the Motion, if that is the right term, of the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Pannick, but I do. I am surprised because, although I am broadly in sympathy with what the noble Lord, Lord Hodgson, has been saying, I think this piece of legislation is, frankly, a lousy way to do it.

Most years I would take part in a little-known ceremony called the Provincial Police Award, which is for the greatest act of heroism by a member of the public. This is what happens when a member of the public sees a red mist and goes for the armed robbers. It is fantastic. The award could actually be called the Unluckiest Robber of the Year Award, which would be a more accurate term. Having said that, we know how difficult it is to legislate in this field. I was involved in a number of the cases concerned with health and safety legislation and the police and the fire service. Those cases were extraordinarily difficult. After a number of pretty climactic events, we ended up in long, detailed and creative discussions with the Health and Safety Executive about the right way to deal with issues which affect not only members of the public, but also the individuals who work for these services. Can they climb ladders? Can a sergeant order somebody to climb a ladder? Can they dive into rivers? It needs really detailed work. What this clause does is smooth over all that with a series of words that have very little meaning in relation to the detail.

The noble Lord, Lord Pannick, talked about the Bee Gees. In my view, what the Government are attempting here is more like Don Quixote and Sancho Panza: they are riding along and tilting at windmills.

Criminal Justice and Courts Bill

Lord Hodgson of Astley Abbotts Excerpts

Wednesday 23rd July 2014 Lords Chamber

[Lord Blair of Boughton (CB)]

My Lords, I support the noble Lord, Lord Low, in this matter and I am grateful to the Minister for the co-operation that he and his office have shown in relation to the amendment.

I declare an interest as the chairman of the Thames Valley Partnership, a criminal justice organisation which, as it says on the tin, is in the Thames Valley. I came across this problem in relation to some of the partnership’s work, as there is at the moment absolutely no statutory requirement for anyone, for instance, to inform a school that a child attending the school has a parent who is now in prison. The failure to do this is also often compounded by the embarrassment of the other parent. She is not going to mention it but the other children in the playground will know who has just had their father sent to prison and the bullying and exclusion start. This relatively short amendment, which imposes the lightest of requirements on the sentencers, fills an obvious lacuna.

I apologise to the House that I was not in attendance for the first 30 seconds of the speech of the noble Lord, Lord Low, so I do not know whether he mentioned the fact that the numbers are vast—200,000 children, which is three times the number in care. Obviously, that is not every year in terms of sentences but there is a long-term impact. Some of the work done by the Thames Valley Partnership shows that children increasingly, as they grow older into their teenage years, lose contact with the parent in long-term custody.

I hope the Government will accept the amendment. I understand there are a number of routes we can take between now and Report. Whether this is done through statute or practice direction, I hope that we can close the gap which leaves children vulnerable when some parts of the agencies of the state know what has happened but are not talking to one another.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, my name is on the amendment. The noble Lord, Lord Low, has made a powerful speech. I do not intend to repeat his arguments and I shall not detain the Committee long.

In this case we must surely be seeking a balance. There is the need to ensure that the position of children or dependents of a person detained in custody is properly protected at a time of considerable trauma and family disturbance. The impact on the children of a parent, particularly a mother, going to jail has been well documented—it has been referred to by the noble Lord, Lord Low, and in briefings that your Lordships will have received from Barnardo’s and other NGOs—and that is one side of the balance. The other side of the balance is that we have to do this without tying up the courts in extensive bureaucratic form filling, much of which is time consuming and may prove ineffective. It is the balance between those two considerations that Amendment 55A seeks to achieve.

All that remains for me to do is to thank the Minister, his officials and, indeed, the Government for the courtesy they have shown in considering this difficult matter. I hope that this redrafted amendment will commend itself to him.

[Lord Touhig (Lab)]

My Lords, I support the noble Lord, Lord Low, and other noble Lords on Amendment 55A. I do so having supported a similar amendment to the Anti-social Behaviour, Crime and Policing Bill in November 2013, to which an amendment was tabled by the noble Lord, Lord Ramsbotham, with my support. This is a straightforward request. It simply requires the courts to inquire whether individuals who are refused bail or are sentenced to prison have caring responsibilities for any children or vulnerable adults; and, if they do, to allow them or another—probably social services—to take the appropriate action to provide care and support. With representatives of the Families Left Behind campaign, the noble Lord, Lord Ramsbotham, and I had a very good meeting with the then Minister, the noble Lord, Lord McNally, who was very helpful and encouraging to us at that time. I was even more encouraged later when I received a reply to a letter I had sent to Lord Justice Gross, the senior presiding judge in England and Wales, who agreed to reissue existing guidelines to the courts on this matter. Although that is certainly most welcome, we need to underpin the whole issue with this amendment.

--- Later in debate ---

I have stressed that we consider it is too late if we are identifying dependants after the sentencing decision, but this has to be an issue that we look at in the criminal justice system as a whole. I am sure that the noble Lord, Lord Blair, will agree that the police have an important role here. It is often the police who have the best information on the existence of children and are likely to be the first authority to detain a person, and therefore to have an impact on any dependants. We need to ensure that information on dependants that is gathered at all stages of the criminal process is recorded and shared where appropriate.

[Lord Hodgson of Astley Abbotts]

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

[Lord Faulks]

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

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

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

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

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

Criminal Justice and Courts Bill

Lord Hodgson of Astley Abbotts Excerpts

Monday 21st July 2014 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, my Amendment 42H is in this group, which I tabled in a rather more inquiring—and perhaps a rather less decided—frame of mind than the noble Lords, Lord Beecham and Lord Ramsbotham. I am not yet certain that there is not a role for new thinking on some commercial operations in these new institutions. I begin by apologising to the House for not having participated in proceedings on this Bill so far.

Amendment 42H is concerned with ensuring a high-quality educational experience for young people in these new institutions. As we have heard, this links into Amendments 44A, 44B and, to a lesser extent, Amendments 47 and 48. My interest in this topic comes from my involvement with the all-party parliamentary group on prisons, of which the noble Lord, Lord Ramsbotham, is the chairman. From time to time, the group hears presentations which are exceptionally powerful and persuasive. The presentation of relevance to my being here tonight was given by the Prisoners’ Education Trust, with whose help I have tabled this probing amendment.

It is, I think, generally accepted that having somewhere to live and a job to go to are the most significant factors in reducing reoffending. As a subset of this, research shows that the higher the level of educational achievement, the higher the likelihood of finding employment. Therefore, I entirely endorse, and very much welcome, the Government’s commitment to improve the educational journey for young offenders. This probing amendment is designed to discover how things will work at a practical level in the context of the secure colleges that are proposed to be established under Clause 29.

It seems to me the first set of challenges revolves around location. Noble Lords have pointed out that young offenders in larger secure colleges may well be at some distance from the homes to which they will return at the end of their sentence. How will the continued education of those young people be linked into their local authority and/or other community support programmes? In addition, given the recognition of the useful role that release on temporary licence plays in rehabilitation, which seems to me entirely sensible, how will that fit in with a continued and progressive educational experience?

Secondly, within the institutions themselves, there seems to be a number of challenges to providing this worthwhile educational experience. As the noble Lord, Lord Beecham, said, there is the shifting nature of the population, with young offenders arriving and departing in a way that may be educationally disruptive and not at all helpful to a scholastic timetable. As the number of young people in custody decreases, there is also the likelihood that the residual number may be particularly disturbed and troubled, and therefore the emergence of gang culture may well become prevalent. It would be helpful if the Minister could give us his thoughts on how that could be tackled, and whether there are sufficient resources so to do.

Of course, one way to address these various challenges would be to increase the use of IT-based distance learning. It is a field which continues to develop very quickly. New IT approaches can capture the imagination of young people in a way that the more conventional pedagogic approach does not, and can therefore play a valuable role in supplementing the latter, more formal approach. Further, an online tutor could also help overcome the problems of transitioning to the community from the secure college. However, I am given to understand—the Prisoners’ Education Trust is concerned about this—that the Government have reservations about increasing these young people’s exposure to distance learning. Will my noble friend tell the House whether this revolves around the cost of the system, the availability of suitably trained personnel or, perhaps more prosaically, issues of IT security?

As I said at the outset, I am convinced that improving educational performance provides a significant chance of reducing reoffending among young people. Therefore, I welcome the Government’s commitment to it. It will require some fresh organisational thinking, which is why I think commercial activities might be helpful—especially, as we have heard already, in the context of these larger secure colleges.

To address this, my amendment proposes a requirement to establish an individual learning plan. In turn, the construction of the ILP will have to involve all relevant bodies, statutory and non-statutory. It will require the assessing of the individual’s prior educational achievement and, finally, a path for that individual’s future demands. In the amendment I argue that this customised approach is likely to provide the most efficient and cost-effective way forward.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, in this group I speak principally to Amendment 43C in my name, and in the names of my noble friends Lady Linklater, Lord Carlile and Lord Dholakia.

In spite of the comment of the noble Lord, Lord Ramsbotham, to the effect that our amendment was unduly complex—

Legal Systems: Rule of Law

Lord Hodgson of Astley Abbotts Excerpts

Thursday 10th July 2014 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I thank the noble and learned Lord, Lord Woolf, for giving us the chance to debate this important topic. As he knows, and as my noble friend on the Front Bench knows, I am not a lawyer, so I would like to make three remarks from a lay man’s point of view. They are a great deal less technical than the speech of the noble and learned Lord, and I hope he will forgive me for that.

The first point concerns the UK legal system and Britain’s world reputation. Like the noble Lord, Lord Ramsbotham, I was a member of the committee chaired by my noble friend Lord Howell, the Select Committee on Britain’s soft power. Our report was published in March and the Government, as the noble Baroness, Lady Warsi, reminded us a few minutes ago, have given their response. We have yet to debate the report and, in Shakespeare’s words, I do not want to run before my horse to market, but perhaps it is worth quoting two sentences from paragraph 175:

“The UK is also a world leader in the legal profession. According to the Humanitarian Intervention Centre, the UK’s ‘highly sophisticated and developed legal system’ is respected around the world ... In the Centre’s view, this legal prowess ‘affords the UK a high degree of legitimacy and credibility in the international arena which in turn gives its diplomacy great weight”,

and efficacy. That is my first point.

My second point is of a more personal nature. During their school or university career, many noble Lords may have had an occasion, be it a lecture, a class, a lesson or a tutorial, where something was said that transformed the way they thought. I share one such example with noble Lords today. After completing my undergraduate degree here in England, I went to live in America for a number of years. While I was there I took an MBA at the Wharton School of Finance and Commerce, as it was then known. The school used to arrange for eminent people from around the world outside of business to come and talk to the MBA students. One afternoon we had a talk from Peter Bauer. He was born in Budapest in 1915 and came to England in the 1930s where he lived for the rest of his life, later becoming a Member of your Lordships’ House as Baron Bauer, of Market Ward in the City of Cambridge. On that afternoon 45 years ago in Philadelphia, he explained his vision for helping the less fortunate of the world. At the time development was largely seen as a government-to-government matter, but Bauer argued that that was not effective. He saw effective development as being conducted at a much lower level, through trade rather than aid, and where aid takes place, at the people-to-people level. His legacy is the GATT rounds that we have seen and, indeed, the growth of the NGO movement.

Bauer went on to argue that afternoon that people-to-people relations are not conducted in a vacuum; they need a framework. Bauer’s framework, as he explained it to us, was respect for property rights and acceptance of the rule of law. He emphasised in particular the value of the English common-law system. Rather as the noble and learned Lord, Lord Woolf, did a moment ago, Bauer explained how flexible it was and how it could be adapted to changing circumstances. He saw it as the responsibility of the richer parts of the world to help establish a ladder up which the poorer parts of the world could slowly, and no doubt painfully, clamber. He saw the rule of law as being an essential rung of that ladder. I accepted that argument then, and today, faced as we are with continuing great impoverishment, I see it as an important reason for supporting the proposal of the noble and learned Lord.

My third and final point is perhaps rather more discordant. For my part, I do not see the actual law and the rule of law as being entirely separate. The rule of law is a vital principle, but if under its cloak laws are enforced which are ossified or outdated, then respect for the rule of law itself will be undermined. UK judges and judges around the world have great power to hold us all to account, and that is quite right, but with that great power, as the noble and learned Lord pointed out in his speech, comes great responsibility—the responsibility of ensuring that judgments and approaches reflect the changing world. That is not to say that judges should reflect transitory, ephemeral public opinion; that way lies rule by the mob. However, there is a need to be in touch and in tune with underlying social and economic changes and attitudes. As I say, that is perhaps a discordant point, so in conclusion I return to Peter Bauer. It has been written of him that:

“Bauer’s legacy is a better understanding of the forces that shape economic development, especially the institutions of private property, stable money, free trade, and limited government under a rule of law”.

I can think of no better reason for supporting the noble and learned Lord this afternoon.

Law Commission

Lord Hodgson of Astley Abbotts Excerpts

Monday 12th May 2014 Grand Committee

Asked by

[Lord Hodgson of Astley Abbotts]

To ask Her Majesty’s Government what plans they have to prioritise and clear the backlog of Law Commission bills awaiting parliamentary consideration.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, my noble friend on the Front Bench is well aware that I am no lawyer. He and indeed other Members of the Committee may therefore wonder why I have trespassed into this rather specialist area of the legal world—the role of the Law Commission. The answer is that a few years ago, when the new procedure devised to enable your Lordships’ House to consider Law Commission Bills not only faster but more effectively was introduced, I had the privilege of serving on the first Bill so dealt with, the Perpetuities and Accumulations Bill, which gave me first-hand knowledge of the valuable work done by the Law Commission.

When I talked to staff at the Law Commission, in a rather charmingly self-effacing, self-deprecating way they described their work as being “care and maintenance”. That gravely underestimates the value of what they do. For example, their work on the Consumer Insurance (Disclosure and Representations) Act—another Bill Committee on which I served—made significant improvements to the position of the man in the street seeking to obtain insurance. It restricted the ability of insurers to ask open-ended questions of the “Are there any other questions and facts that the insurer ought to be aware of” variety. The Bill Committee received evidence of cases where this had been much abused. An individual was refused treatment for his cancer on his private health insurance because he had failed to reveal to the insurer that he had visited his doctor—about flu, not cancer—a few weeks before his cancer was diagnosed.

I argue that the Law Commission does valuable work in improving equality of arms, in clarifying aspects of historical legislation that modern developments have made obscure, and generally—in that rather overused modern phrase—in helping to make the law fit for purpose. Of course, there are limitations to the work of the Law Commission. It must not and cannot trespass into party-political issues. Notwithstanding that, it provides a light-touch, swift way of keeping our law up to date. I was therefore distressed to learn that a number of Law Commission Bills that are, so to speak, on the runway do not appear to be being cleared for take-off. I want to focus on three of those now.

The first is a report on easements and covenants, published in June 2011—nearly three years ago. Inter alia, restrictions on landowners creating easements and covenants with variable impacts restrict their ability to obtain mortgage finance and so impact the development of large estates. The Bill would ease those challenges.

The second is an insurance contract law Bill, which is essentially a commercial follow-up to the consumer insurance Act that I referred to earlier. The Bill is particularly important for small businesses, such as a shop or a small family metal fabricating business, where the owners’ personal assets are co-mingled with those of the commercial operation. There is a practical reason for urgency on that Bill, in that Mr David Hertzell—the Law Commissioner responsible for all the work done on that Bill to date—retires in December this year. It would surely be an unnecessary own goal to lose his experience and expertise.

The third is a third parties (rights against insurers) Bill. A version of it received Royal Assent in 2010 but, for reasons that I have not been able to ascertain, it has never been implemented. It now needs to be updated by a short supplemental Bill. The Act’s purpose is to protect the insured where the insurer has gone out of business. It therefore has particular relevance for “long tail” claims, such as those relating to asbestosis.

The Government could, if they chose, quickly take forward that group of Bills. Are those Bills going to have the regulars of the saloon bar of the Dog and Duck dancing on the tables? No, they are not, but they are individually going to make a significant difference in their specialist areas. In particular, I venture the thought that your Lordships’ House is not going to be overburdened with legislation in the next Session. Therefore, what better way to use the House’s time and expertise than in considering these important but non-contentious pieces of legislation? I look forward to hearing, at least in outline, how my noble friend sees progress being made on these and indeed other Law Commission Bills.

A repetition of what happened to the Law Commission’s Bill on termination of tenancies for tenant default would surely be unacceptable. It was originally published by the Law Commission on 31 October 2006—seven and a half years ago. To date, no response to it has been forthcoming, from this or the previous Government. Governments are of course entitled to decline to take forward particular pieces of legislation but it is surely unacceptable not to respond to the Law Commission’s work. The Bill would do much to help businesses to stay in business by removing the perverse incentive that currently exists for landlords to change the locks on properties as early as possible. Sadly, the commission has concluded that since, as I explained, more than seven and a half years have now elapsed since the first consultation, the Bill is out of time. Consultation will have to begin again and all the public funds so far expended have been wasted.

For the remainder of my remarks, I will look forward at two Law Commission Bills currently in consultation. The first is the regulation of health and social care Bill. I have a shrewd suspicion that my noble friend Lord Kirkwood and the noble Lord, Lord Patel, will wish to pursue this in more detail. Health and social care professional regulation is currently provided under the provisions of the Medical Act 1983 and a series of parallel Acts for other health professions. In the words of the General Medical Council, the Medical Act is,

“outdated, complex, highly prescriptive and difficult to change. This makes it difficult to innovate and respond quickly and efficiently to society’s expectations in a rapidly changing healthcare environment”.

This Law Commission Bill is different from most of those that have gone before in that it is long and complex. Most Law Commission Bills are quite slim but this Bill is telephone directory-thick, and of course it has the capacity to become party political. The Bill is in danger of falling between various stools. Nevertheless, for the reasons that I have already outlined, it is a badly needed Bill in order to keep our regulatory framework up to date and so improve the protection of patients. So where is this Bill now? Is it still a Law Commission Bill or will it become a Department of Health Bill? If so far it is neither, when will the decision be made as to which legislative process is to be adopted?

I now turn to an area in which I have long taken an interest—the world of charities. Charities and voluntary groups do wonderful work across our civil society—in particular, tackling those hard-to-reach groups that present particularly intractable and challenging social problems. To their great credit, the Government recognise the role of the sector, but the charity sector is much impeded by an outdated legal structure, notably the fact that the current law makes no distinction between the duties of a trustee of an ordinary trust as opposed to a charitable one. This, linked to the complications and complexities of what is known as permanent endowment, has significantly impeded the development of social investment and the consequent growth of charities that could benefit from the availability of finance so provided. A Law Commission consultation paper on these issues has recently been published and the consultation period closes on 18 June. I hope that my noble friend will be able to tell me that the Government propose to move forward swiftly to the implementation phase thereafter.

Before I conclude, I have one further point. The Lord Chancellor produces an annual report on the work of the Law Commission. A little bird told me that the report for last year was to be published last Thursday, 8 May. I have searched on the parliamentary website for it without success. Fearing that this only revealed my technological incompetence, I sought the help of the Printed Paper Office, also to no avail. I should be grateful if my noble friend could confirm its whereabouts.

[Lord Beecham (Lab)]

I have read it.

[Lord Hodgson of Astley Abbotts]

The noble Lord, Lord Beecham, is clearly more expert than I am at this. Half an hour ago, the Printed Paper Office told me that it did not have a copy. I now know its whereabouts. I thought that it might be published with a view to trying to spike my guns, but there we are. I look forward to the pleasure of reading it in due course.

I have argued that the Law Commission does valuable work that is far too valuable to be left to moulder on a Whitehall shelf. Proposals are awaiting implementation and the Government should use time in the next Session to bring these forward. I recognise that I have asked my noble friend a number of detailed questions, although I hope that I gave his office at least an outline of the lines that I proposed to follow. I would be perfectly happy if he were minded to write to me and Members of the Committee in reply.

What I am looking for is a general sense of urgency and commitment. Someone once described a Minister’s job as being a mixture of bomb disposal and Dyno-Rod. I want to be reassured this afternoon that my noble friend is the man from Dyno-Rod.

--- Later in debate ---

[Lord Beecham]

My Lords, I commend and support the noble Lords, Lord Kirkwood and Lord Patel, for their urging of the Government to proceed with the important legislation that they have described to the Committee in this debate. I will speak more generally about the work of the Law Commission. I plead guilty to technological ineptitude of a high order, but I was nevertheless able to download the report that was published, as the noble Lord, Lord Hodgson, said, last Thursday and able to obtain a hard copy this morning, so I have a slight advantage over the noble Lord in the ineptitude stakes when it comes to this debate.

It was interesting to read the Report on the Implementation of Law Commission Proposals. It is an annual report published by the Ministry of Justice, and it finds the Lord Chancellor in splendid Candide mode. He reports in his foreword that new procedures were introduced in 2009 and have,

“reduced the time and resources required for a non controversial Law Commission Bill to pass through Parliament”.

He refers to the Government’s “improved record on implementation” during the year and claims that there has been,

“significant progress on implementing the Commission’s proposals”.

He holds,

“the excellent work of the Law Commission in very high regard”,

and says that,

“the progress we have made during this past year demonstrates the continued relevance and resilience of the Commission’s work”.

Well, no doubt it does, but it would be more persuasive of the Secretary of State and the Lord Chancellor if in fact some of the long-outstanding proposals made by the commission had been activated during that time, or indeed an even longer period of time. After all, as we have heard, a number of proposed Bills have lain around for some considerable time. There has been the electronic communications code Bill, referred to in paragraph 45 of the report, which was published in February 2013 and to which apparently a response is indicated by the end of 2014. That means it will be nearly two years before someone in Government gets around to responding. Then there is the public services ombudsman Bill, referred to on page 49, which was published in 2011 and to which a response is apparently to be made available this summer. If a local authority took three years to respond to something, the Local Government Ombudsman would be rather critical of what little progress had been made.

The noble Lord, Lord Hodgson, referred to the Bill about easements. That is not a matter likely to inflame public opinion or, I suspect, cause a great deal of division among Members of either House. Yet, as he pointed out, it was published in 2011 and a response is apparently due—I do not know whether the Minister or his advisers can tell us exactly when, but it is some time this year. Certainly, that is another three-year period. It is even worse for the High Court criminal procedures Bill, which was put forward in 2010. At page 55 we learn that a response will be made in the summer of 2014. That is a four-year gap.

As the noble Lord, Lord Hodgson, rightly pointed out, there is the important termination of tenancies for tenant default Bill, which has been around for, as he said, seven and a half years. It is fair to say that the previous Government talked about doing something and did not get around to doing it, but it is four years on even since those days. It is interesting that in the 2013 implementation report, the Government stated that they had “discussed the proposals” and were,

“continuing discussions with the Commission”,

in relation to commercial tenancies. Those were referred to especially by the noble Lord, Lord Kirkwood. It will be interesting to learn if the Minister is able to update us today or subsequently on just how far those discussions have gone.

I have a closer interest in another aspect, which is private tenancies. A year ago, the Government were saying that they were also considering whether improvements could be made to the evictions procedure in the residential sector. Before Mr Grant Shapps—or Michael Green, as he is otherwise known—begins to accuse the Government of Venezuelan tendencies in respect of private rented property, perhaps the Minister will indicate whether the Government are seriously looking at this issue. They have been rather dismissive of proposals made by the Labour Party about elements of security of tenure, yet at least a year ago they were talking about looking seriously at precisely those issues.

In addition to those matters, there are still a number of outstanding matters in which the Government have apparently abandoned any prospect of taking Bills forward. With regard to the participating in crime Bill in May 2007, the cohabitation Bill in July 2007 and the conspiracy and attempts Bill in December 2009, the Government have indicated that they have no intention of taking up those recommendations for reform during the current Parliament. So that is one complete Parliament—one and a half, in two cases—gone without any action being taken, with no good explanation why the Government have come to that conclusion.

[Lord Hodgson of Astley Abbotts]

I had conversations with the Law Commission about where we were on these various issues. In two of the cases that the noble Lord has mentioned, the commission was concerned that they would get it into the arena of party-political warfare and concluded that it was not suitable to proceed further. That was the commission’s conclusion, not the Government’s. It is not a fair accusation that the Government have not acted; the Law Commission itself felt that these were not the right areas for it to be involved in.

[Lord Beecham]

The noble Lord may be right in respect of bringing stuff forward at the last minute in a five-year Parliament, but years have gone by. It cannot be said that political considerations would have been particularly relevant two or three years ago on matters that by that time had already been outstanding for four or five years. If these matters had been political, they would not have been included in the Law Commission’s programme in the first place or indeed agreed by the Government, because the Government agree these things. On the timing of an eventual Bill, I take the noble Lord’s point—it would perhaps be inappropriate to do that in the run-up to an election—but we have no indication at all of why the Government decided not to proceed with these Bills.

There are a couple of other Bills where apparently some sort of conclusion may be expected. There is a remedies against public authorities Bill, which celebrates its fourth birthday in 10 or 12 days’ time, on which the ministry committed to providing by Easter 2014 a complete analysis of the results of a pilot scheme. Are the Government ready to pronounce upon those results and, therefore, their intentions regarding that Bill? The other Bill to which there was a commitment to provide a response during the summer is a High Court jurisdiction in criminal cases Bill, which is now nearly three years old. Will we in fact get a response this summer, and is it possible for what I suspect will be such highly technical matters to be brought forward during the dog days of this Parliament—although, frankly, it does not look as though there will be much else to do? Then, as I said, there is the public services ombudsman Bill, to which a response was expected from the Cabinet Office, not the Ministry of Justice, by Easter. I am not aware that any such response has been in the public domain; again, perhaps, if not today then subsequently, we might find out.

All this raises questions not about how the commission works—it is doing its work—but about how that work is received and dealt with at the government end. It was interesting to read the triennial review of the Law Commission on this subject. Paragraph 43 asserts:

“The Law Commission faces many difficult challenges at the moment. It is currently developing its 12th Programme of Law Reform in an uncertain climate. The Protocol governing the Commission’s work provides that before approving the inclusion of a project in the overall programme the Lord Chancellor will expect the relevant Minister to give an undertaking that there is a serious intention to take forward law reform in this area”.

Touching on the point made by the noble Lord, Lord Hodgson, it then asserts:

“With the timescale for the 12th Programme spanning the next General Election, the Commission and Ministers will be making decisions in a context where there is a great deal of uncertainty about whether the incoming Government will support any project”.

That raises two points. First, in respect of matters that cannot be concluded in this Parliament, will the Government facilitate discussions between the Opposition and the commission about what a future Government might do? I ask that particularly in the light of recent decisions by the Prime Minister not to facilitate discussions between the Civil Service and the Opposition until much later this year—much closer to a general election than has been indicated in the past. As noble Lords will understand, I have very strong objections to that of a political kind. However, with Law Commission Bills we are not talking about highly controversial political matters anyway. I cannot see that discussions would be at all embarrassing to the Government; these are not government policies that will be under review. I cannot see any difficulty in facilitating a discussion between the Opposition and the commission about the commission’s own agenda. It would be helpful to an incoming Government, which I hope to see—and which noble Lords opposite hope not to see—or for any future Opposition to have that kind of relationship with the commission, so that the whole process can be accelerated and the Law Commission does not have to start from scratch.

Alternative Business Structures

Lord Hodgson of Astley Abbotts Excerpts

Wednesday 19th June 2013 Lords Chamber

Asked by

[Lord Hodgson of Astley Abbotts]

To ask Her Majesty’s Government whether they propose to take action to prevent the re-emergence of the payment of referral fees through the use of alternative business structures.

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

My Lords, alternative business structures allow for increased competition and the provision of more cutting-edge services, helping to lower costs while maintaining high standards. However, they are required to comply with the rules of their licensing authority and the law in respect of the ban on referral fees.

[Lord Hodgson of Astley Abbotts]

My Lords, I am grateful to my noble friend for that Answer. In doing so, I congratulate the Government on the progress made in banning referral fees, which has led to a 5% reduction in motor insurance costs with a planned reduction of as much as 15%—an achievement in no way to be sniffed at. Is the Minister aware of the extent of the current challenge to this new plan of the Government, which may undermine all the good work so far? For example, is he aware that Tesco, through its insurance company Fortis, has set up a new joint venture with a company called New Law, a personal injury claims specialist based in Cardiff? Will my noble friend accept that it is not doing this for its health? Will he have a word with the Legal Services Board and the Solicitors Regulation Authority, the body that authorises new firms, to see what their view is of new firms being established, apparently with the sole purpose of frustrating the will of Parliament?

[Lord McNally]

My Lords, if they are established with the sole purpose of frustrating the will of Parliament, they will break the law. I will certainly take up my noble friend’s suggestion and talk to the Legal Services Board and the Solicitors Regulation Authority. We have had experience before of putting a law in place and some clever person trying to get around it, but we will take a close look and if they are trying to get around it, we will stop it.

Defamation Bill

Lord Hodgson of Astley Abbotts Excerpts

Tuesday 5th February 2013 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, I have the misfortune to be opposed to the amendment, and I shall try very briefly to explain why this is so. As I said in Grand Committee, there is across the world a fundamental difference between on the one hand the Chinese and, on the other, the United States. The Chinese position on the world wide web is to create the great firewall of China and the Chinese intranet and to do whatever it can to be able to censor the use of the web by dissidents of one kind or another. The position of the United States, ever since Bill Clinton’s statute, gives an absolute immunity to United States internet service providers. The European compromise is contained in the e-commerce directive, as the noble Lord, Lord Faulks, indicated, and seeks to strike a fair balance between freedom of speech and personal privacy and reputation in the structure of the regulations. Although it is vague, it is fairly balanced.

The world wide web is, on the one hand, of vast benefit not only to website operators but to the public and the citizens of the world in terms of free expression, which it enhances. On the other hand, the web creates much more capacity to damage reputation and personal privacy. That is the other side of the story. The puzzle is, given that this is a transnational, worldwide problem, what can any one country do to try to strike a fair balance? How can we devise a system that will encourage operators such as Google and Yahoo in this respect, given that they have no particular commercial interest in keeping up anything they post which is controversial? For example, if they post criticisms of Ruritania as a corrupt, disgraceful and oppressive Government, and then a threat is made to them to take it down, they have no commercial interest in keeping it up, even though we as citizens have every interest in their doing so. That is the free speech side of the argument.

I perfectly agree that one must do what one can to provide effective remedies in privacy and defamation claims. I admire the boldness of this amendment, which seeks to take out of the Bill altogether subsections (1) to (5) of Clause 5—that is, the entire carefully formulated procedure, including, in subsection (5), the regulations and what they may provide—and to put in place instead a structure which it is suggested will tip the balance better in favour of the claimant. I will not take the time of the House in going through that except to say that the more I read the burdens that the amendment would place on the operator, the more unbalanced I think they are in what they seek to do.

Furthermore, words such as “reasonable care”, with the burden being on the operator, or,

“did not know and had no reason to believe”,

comprise burdensome tests. I fully realise why my noble friends think that that wording is better than what is in the Bill. However, I do not think that it is. I think that it would give rise to litigation and would unduly fetter freedom of expression not for the website operators—I do not mind about them—but for us, the people who receive information and ideas on the web.

I like what the Government have done which I think strikes a perfectly fair balance. It is a good scheme. I am glad that they will introduce regulations. I very much hope that they will not accept this amendment.

[Lord Hodgson of Astley Abbotts]

My Lords, I have not taken part in debates on the Bill so far, so I shall be brief. However, I want to say a word or two in support of Amendment 10 in the names of my noble friends Lord Phillips and Lord Faulks. I do so on the non-legalistic issue of equality of arms, which I do not believe currently exists on my reading of the Bill and the comments that my noble friends have made. There is an important issue to be addressed here. Rather to my shame, I had not until recently realised that the Bill provided an opportunity to address this growing challenge.

I have raised this issue before at Second Reading of the Protection of Freedoms Bill on 8 November 2011. I said then:

“It is a small issue, but one that is growing in importance. In future, how are we going to ensure the accuracy of information placed on social networking websites and who will be responsible for this? This is a freedom which is increasingly going to need protecting. … A situation can now arise where people and their businesses can be irredeemably damaged by completely inaccurate statements that are put up on these websites and for which they can obtain no redress. … People are entitled to some clear way of challenging these statements and, where appropriate, of obtaining redress. I would be interested to hear whether my noble friend”—

that was the noble Lord, Lord Henley—

“has any policy developments under consideration to deal with this issue, one that is surely going to increase in importance in the future”.—[Official Report, 8/11/11; cols. 187-88.]

I am afraid that answer came there none. Therefore, I am glad that my noble friends have taken up the cudgels to try to achieve a better equality of arms, as I said.

My noble friend Lord Faulks referred to the power of website operators. I have seen the power of website operators in interviewing talented young people; I can think of one or two who had disobliging statements posted about them which have had a very deleterious effect on their career. The website operators—this is perhaps more the case now than it used to be—have not been too quick to try to remove this information and cleanse the websites.

As I was preparing my speech on the aforementioned Second Reading debate, a case arose of a Portsmouth plumber whose business had been completely wrecked because he was accused of being a paedophile. It turned out that the statement had been posted by a competitor firm. Holiday companies and hotels have been damaged in the same way. However, I have to admit that on certain occasions people have written bullish accounts of their own hotel in an attempt to increase trade.

It was in connection with this last category that I mentioned in my Second Reading speech the role of the website TripAdvisor. A short 24 hours passed before it asked for a meeting. Its approach in discussions with me showed the challenges the Government face—challenges which I think they have not so far tackled but which my noble friends’ amendment does.

First, the TripAdvisor representatives argued that there was no problem and that their customer surveys showed a high level of customer satisfaction. Secondly, when pressed about the response to those who were unhappy, even if they were a small minority, it seemed that for every solution there was a problem: a problem of jurisdiction, given the international nature of website operators, as my noble friend Lord Lester said; a problem of identification—who posts what about whom; a problem of competitive disadvantage as a result of a checking system which could be portrayed as intrusive; and, finally, when all else failed, a problem of data protection, the reasons for this being slightly less clear to me. I said to the representatives that in my view there was an issue of increasing public concern and that the industry—if that is the right collective noun for website operators—needed to agree to establish, publicise and enforce a code of practice which had a suitable element of representation of the public interest in any disciplinary procedures.

So, in enthusiastically supporting this entire amendment, I particularly support its provision in subsection (2) regarding the value to be placed on the defence of having an anti-defamation code of practice.

Criminal Procedure Policy: EUC Report

Lord Hodgson of Astley Abbotts Excerpts

Monday 4th February 2013 Grand Committee

[Lord Hodgson of Astley Abbotts]

My Lords, I was not a member of the sub-committee when this inquiry took place, so I am slightly surprised to find myself at the top of the speakers list. I was expecting to skulk along as tail-end Charlie. I have since joined the committee and, notwithstanding my non-presence during these proceedings, I very much welcome this report with its focus on victims’ and defendants’ rights. I congratulate my noble friend Lord Bowness and the other members of the committee on the report. I also congratulate the staff of the sub-committee whose judgment, acumen and skill I have come to recognise since I joined their number.

My noble friend referred to both sections of the road-map proposals. The report endorses the proposals, which seem to me to pose three sets of challenges. The first is what I call the challenge of national amour proper—members states asking, “Who are you to tell us how to organise our internal criminal justice systems?”. I would like to turn to that in a minute. Secondly, there is a series of practical, technical challenges—again, I would like to come back to that. Thirdly, and for me the greatest challenge, is how to move further along this road map, building on the achievements of mutual recognition to date while continuing to encompass the two entirely different legal traditions, to which my noble friend also referred. The UK, Ireland, Malta and Cyprus have adopted an adversarial, common-law, precedent-driven system while the other EU states have adopted—to a greater or lesser degree—an inquisitorial, judge-led approach.

It is not just the inevitable practical difficulties, such as the lengthy pre-trial detention, although these can be considerable. I declare here an interest as a trustee of Fair Trials International. I do not speak for that organisation this afternoon but it has given me some background information on some of the practical issues here. One of the cases currently causing Fair Trials concern is that of Corinna Reid. She was extradited to Tenerife, which is Spanish territory, in 2009; her daughter was six months old then and being breastfed. Corinna’s trial is not expected to start until April 2013. After her extradition Corinna was kept in jail for about a year and then given bail on the basis that there was hardly sufficient evidence against her. However, she has not been allowed to leave Tenerife, has struggled to support herself and has now been separated from her daughter for more than three years. While adoption of the European supervision order may have helped in this case, this and other cases show how the different approaches lead to very different outcomes and illustrate the way trials are conducted.

As I said, however, it is not just the practical issues—it is also the impression left with the general public. Moving away from the familiar UK-EU issue and tensions, I want to remind the committee of the case of Amanda Knox, a US citizen, and Meredith Kercher, a UK citizen, in Perugia, Italy. It was a messy murder involving two students and perhaps drugs as well. The US follows the adversarial system that we have here. If you had looked at the US newspapers you would have been astonished to see the scale of incomprehension regarding the role and effectiveness of the Italian judicial system. In my view the vast majority of the UK population would suffer from the same incomprehension; and no doubt the reverse is true with the general public on the continent being unfamiliar with our legal proceedings.

There is therefore much to be done in terms of public impression. I particularly support the comments of Professor Spencer in paragraph 19. The report states that he,

“regarded the issue of mutual trust as being wider: ‘What is done in trans-border cases has to be acceptable to public opinion, not just prosecutors and people who work the system’”.

I turn now to the issue of national amour propre. The report contains several flattering references to the United Kingdom’s approach to justice and civil liberties and to the role that this country can play in raising standards across the EU. We need to be careful about what we can achieve in this regard. Our lawyers and judges are of course pleased to be regarded as representing the shining city upon the hill—flattery is always attractive. However, perhaps I might give an extreme example to illustrate the dangers of trying to be too accepting of this.

I happened to be in Rio the day that the unlucky Mr de Menezes was shot dead in the Tube by armed British policemen. The Rio newspapers were outraged; there were acres of newsprint on the scandal and an inquiry was requested. Yet my host, a senior and experienced Brazilian businessman, said to me, “This is because we expect those standards of the UK, but I estimate that the Rio police probably shoot about 1,000 people a year—and there is no fuss or commotion whatever”. He went on to say that they would go on shooting them and, despite what had been written about the incident in London, there would still be no fuss or commotion. My point is that we should not overestimate what can be achieved by example, especially in an area as sensitive as a country’s internal judicial system.

Finally, I want to underline some of the practical and technical challenges to the road-map proposals, in particular those concerned with the European arrest warrant. There can be no doubt that the European arrest warrant has played an important role in tackling cross-border crime over the past eight years. However, it is also widely recognised, including by the Joint Committee on Human Rights, that there have been problems with the operation of the warrant and that some concrete reforms are needed to protect against overuse and abuse of the system. The problem most commonly highlighted is the use of the arrest warrant for minor crimes—that is, the issue of proportionality. The warrant was meant to be used to tackle serious crime and terrorism but thousands are being issued every year now and often for the most minor crimes; there are about 1,000 a year from the UK alone. This has a disproportionate effect on the people concerned and wastes vast amounts of time for the already overstretched police and courts.

Perhaps I may cite a recent FTI case. Last year Poland requested the extradition of 23 year-old Natalia Gorczowska to serve a nine-month sentence for possession of a small quantity of drugs for personal use. The sentence was received when she was only 17. It was only a suspended sentence, but the sentence was reactivated because Natalia came to the UK and forgot to tell her probation officer. The sentence therefore became one of imprisonment. Since the incident six years ago, Natalia has ceased to use drugs and has found a job. She now has a home and a baby. Her extradition has been ordered, which has resulted in her losing all this and in her son now being taken into care by the UK authorities.

There are other problems with the arrest warrant that need to be addressed. They include: first, the power for the courts to refuse extradition or seek further information where they have sound reason to think that the person will be subject to mistreatment, arbitrary detention or an unfair trial in the country that they are sent to; secondly, a power to delay extradition where the case is not trial-ready to stop people being extradited long before any decision has been made even to prosecute, as where such decisions are made people are then held in prison for months under extremely difficult conditions awaiting trial; and, thirdly, a power to refuse extradition where the court believes that it would be more appropriate for the case to be heard in the UK—the so-called forum bar. Those kinds of changes could prevent the misuse of what is otherwise a valuable crime-fighting tool, and I hope that the Government are successful in their current efforts to persuade other member states to agree to these sensible reforms.

I end as I began by saying that this is a valuable report. As my noble friend said, this is, in a sense, an hors d’oeuvre for the bigger debate about opting in or out. However, the debate is none the less useful because it points the way ahead and underlines how much still needs to be done to give full effect to agreements already reached. The Euroagnostic among us, of whom I am one, have a concern that the EU’s legislative and theoretical bandwagon will roll on irrespective of what is happening practically on the ground. As such a disconnect can undermine the credibility of the institutions involved, I would conclude by endorsing strongly the recommendation in paragraph 107 of the report:

“We agree that no new proposal for mutual recognition should be brought forward until the current proposals for legislation under the two Roadmaps have been put in place and have had time to make an impact”.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Hodgson of Astley Abbotts Excerpts

Tuesday 27th March 2012 Lords Chamber

[Baroness Butler-Sloss]

My Lords, I can be brief, having heard what the noble Lord, Lord Cameron, has said, setting out the facts about what works well in the county next to the one where I live. It is very impressive.

It is right to say that restorative justice is not for everyone. There is a sort of case where it would be quite wrong: someone who has been a victim of serious domestic violence, for instance, would seldom find it possible to meet the offender, who is often another member of the family. In suitable cases, though, and there is no shortage of suitable cases, it is good for the victim—as the noble and learned Lord, Lord Woolf, has said, it gives them a voice—but it is extremely salutary for the offender, as the noble Lord, Lord Cameron, has said.

I have had instances where offenders—young offenders in particular; those just grown up—have ended up in floods of tears because they had not appreciated the impact of the way in which they had behaved, particularly in something like burglary or theft when they took from someone elderly some not very valuable things that had enormous personal value for that victim. Being told, with the victim in tears, that a great-aunt’s cup that had been preserved through the family had been stolen and thrown on the ground can lead to the offender being in tears too, and this shows that there is a real value.

The figures from Somerset showing the high degree of non-reoffending, which is a great deal more than the noble and learned Lord said was the average of 27 per cent or 28 per cent, shows that restorative justice is a real tool. I find it utterly astonishing that this Government, who have been listening throughout so much of the Bill, have failed to listen on this issue.

[Lord Hodgson of Astley Abbotts]

My Lords, briefly, I support the amendment of the noble and learned Lord, Lord Woolf. I have been involved in restorative justice through a charity called Why Me? for some years. I became involved because it offered a victim-oriented strategy, as mentioned by the noble Lord, Lord Ramsbotham. Restorative justice offers an opportunity for the person who has been offended against to address the trauma that they have suffered, to see how and why it came about and, in that way, to achieve some sort of closure. On the other side, it has had significant effects on reoffending. As the noble and learned Baroness has pointed out, offenders will say, “There was just a name on a charge sheet but when I see that it belongs to a person with a home and a family, which I have broken into or broken up, I begin to see some of the dreadful things that my actions have done”. Therefore, I am anxious that the Government should accept this amendment.

There are only two reasons why they might not accept it that I can see. First, there might be a need to restrain public spending. I accept that there is a need for this sort of activity to be carried out by well trained people to be effective. However, there will be a net benefit. If we can continue to achieve the reduction in reoffending rates that has been achieved in the past, there will be a reduction in costs as we avoid some of the costs of reoffending. Secondly, the Government have said that this amendment is overly prescriptive but I have some difficulty in understanding why. As the noble and learned Lord pointed out in his opening remarks, this just adds to the menu of options available. Therefore, it is not prescriptive in my reading of how the amendment has been drafted.

In conclusion, my concern is that if we are not careful, the idea of RJ will fall victim to what I call the Daily Mail effect. Restorative justice is not an easy thing to defend. It can appear a bit touchy-feely. One or two cases that led to difficult headlines in the newspapers could lead to the Ministry of Justice saying, “This is a bit difficult. We had better back off from this one”. Therefore, my reason for strongly supporting the noble and learned Lord’s amendment is that if we get it into the Bill, we will then have something that can be used in the future and cannot be brushed away by some unfortunate event that might lead to public opinion turning against it and putting temporary political pressure on the Government of the day.

[Lord Beecham]

My Lords, from the opposition Front Bench I strongly support the amendment moved by the noble and learned Lord. I do so not just because he was a distinguished judge and a most eminent Lord Chief Justice, whose words should be weighed very carefully by all sides of this House; not even because he is a fellow Novocastrian and a fellow honorary freeman of Newcastle-upon-Tyne; but because what he proposes makes such eminent sense, as several of your Lordships have pointed out. The record of restorative justice is one of success. It is not universally successful but, as we have heard, it has made a significant impact on reoffending rates, is cost-effective and, as the noble Lord, Lord Ramsbotham, pointed out, is an alternative to other forms of punishment that are generally more expensive and often less efficacious.

I cannot think of any reason why the Government should resist an amendment phrased in the way that this is. There is an analogous process called “justice reinvestment”, which is a rather more collective way of making reparation, whereby offenders put something back into the community through a community payback scheme or something of that kind. Justice reinvestment is not part of this amendment, although it is a valuable process. If the Government reject the amendment, we will not see justice reinvestment but, in effect, justice disinvestment. That would be a mistake, from which only the victims of crime—and the taxpayer, for that matter—would suffer.

I hope that the Minister, when she replies, will see the enormous persuasive logic of the case made by the noble and learned Lord, supported as it has been on all sides of the House. I hope that the Government will recognise that to incorporate an amendment of the kind that the noble and learned Lord has moved will strengthen, not weaken, the Bill. I hope that they are prepared on this occasion, as they have been on other occasions, to listen to the sense of the House and accept the amendment.

Land Registration (Network Access) (Amendment) Rules 2011

Lord Hodgson of Astley Abbotts Excerpts

Tuesday 5th July 2011 Grand Committee

[Lord Thomas of Gresford]

My Lords, the important point that should be appreciated—I am sure that it is—is that when a title is registered, it is an absolute title. It can be obtained by fraud or by any other means, but it is an absolute title, once registration has been granted. That means that the person who owns that title can sell it on and deal with it as if it were his own. Any issue as to how that registration has been obtained is left for litigation. Therefore, it is crucial that the integrity of the register is maintained. So much depends on trust. We trust that the people who make these applications will do so honestly, with proper consideration of all the issues and in the interests of their clients. That is why we have all these rules, which endeavour to ensure that the very competent staff of the Land Registry are not deceived by applications from outside.

What is this all about? It brings the alternative business structures system into the position of being an authorised applicant to deal with the Land Registry. I have expressed my views on these alternative business structures so often that I sound a little like Cassandra. However, I foresee trouble. If there is trouble in the future, it is not the lawyers who will suffer; they will do very well. It is the consumer and the customer who will suffer.

There is a lack of confidence in the way that this has been put forward. The summary of the impact assessment says on page 3, under the heading “Other key non-monetised benefits by ‘main affected groups’”:

“The proposals will avoid the potential costs to Land Registry customers outlined in the base case by ensuring only persons authorised to prepare and make applications relating to land registration are able to do so”.

That states the obvious; it is the position at the moment. The summary goes on:

“Land Registry customers may further benefit if the new definition of ‘conveyancer’”—

that is, these rules—

“leads to better quality conveyancing practices compared to current levels”.

Why it should lead to better conveyancing practices than the current system, under which conveyancing is carried out by qualified lawyers or managing executives, I do not know. The summary continues:

“Ensuring ABS firms fall within the definition should also lead to increased competition in the conveyancing market, which may provide efficiency benefits for society, and direct benefits for Land Registry customers in the form of lower prices and/or increased choice”.

The sort of situation that I envisage, particularly in a tight housing market, is that developers will offer a conveyancing service, or an ABS. They will have an interest in the outcome of the conveyance of their own homes and access to the registry. They may act for both parties. All the checks and balances that have developed over the years to protect the consumer and householder will be weakened.

I have had my usual rant on this subject, so I shall leave it at that. I cannot say that I welcome this measure.

[Lord Hodgson of Astley Abbotts]

My Lords, I had not intended to intervene on this matter but since “network access” appears in the title of the rules that we are discussing, I seek reassurance from my noble friend about the checks that are being made to ensure that those who are not authorised do not obtain access. Something that has recently come to public notice is the ELMER database, which is operated by the Serious and Organised Crime Agency. This is where reports of suspicious activity are collected for purposes of investigating money laundering. It appeared that the rules were perfectly tightly drawn, and that only SOCA and police forces throughout the country could obtain access to the information that is contained there. There are now 1.2 million records on the suspicious activity report database. Subsequently, now it transpires that actually all sorts of social security departments and other operations are able to get into the database. Given the importance of this, and the critical nature of the functions being carried out, it would be good to know that careful checks are being made to ensure that people who are not entitled to access do not get it.