Special Immigration Appeals Commission (Procedure) (Amendment) Rules 2018

Debate between Lord Hodgson of Astley Abbotts and Lord Beecham

Wednesday 23rd May 2018 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

I have one brief question, about the role of the special advocates. When we discussed the Justice and Security Act, one of the drawbacks of the special advocate procedure, very good though it was, was the inability to re-interview the client after an initial briefing. Does that proviso still work in these cases? In the case of an immigration appeal, are special advocates still unable to re-interview their client to find out their views on the information that has been put before them?

[Lord Beecham (Lab)]

My Lords, I am grateful to the Minister for a very clear explanation of the provisions of this statutory instrument. I note that in the House of Commons Delegated Legislation Committee, all of 11 minutes were spent on this matter. The Minister has provided us with somewhat more information than was provided on that occasion. Is he in a position to indicate the number of cases expected? The noble Lord, Lord Marks, referred to a very limited number, but is it anticipated that it will remain at a low level, or is there likely to be any growth?

Can the Minister also make some reference to the condition of the asylum centres where, presumably, some of these applicants will be held pending the outcome of their cases? Of course, great concern has been voiced about the management of some of these establishments. I confess that this issue is not directly related to the statutory instrument, but it is a matter of concern and I would be pleased if the Minister could say that the Government are looking seriously at the management of these places, whatever the outcome of the applications by the individuals involved.

Civil Liability Bill [HL]

Debate between Lord Hodgson of Astley Abbotts and Lord Beecham

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

[Lord Hodgson of Astley Abbotts]

My Lords, at this stage in proceedings on the Bill most of the ground has been pretty extensively ploughed, and I shall endeavour not to till it longer than I have to. We had a long discussion about the setting of the rate on the group taken with Amendment 11, and the noble Lord, Lord Beecham, got even closer to the matters I have in mind with his Amendment 38. However, Amendment 35 is concerned with the provisions of Clause 3, which, as the title suggests, permits uplift in exceptional circumstances.

The question I wish to discuss is whether there should be any limit on the amount by which these exceptional awards can exceed the basic tariff, and if so, whether that limit should be in the Bill. I think there is a strong argument for limiting the exceptional awards, and for putting that into the Bill; the noble Lord, Lord Marks of Henley-on-Thames, was kind enough to take my intervention in an earlier debate. I wish to see judicial discretion limited because I think this is a political matter, not a matter for judicial discussion and discretion. Therefore the limit should appear in the Bill—as a percentage, not as an absolute amount, because if the tariff goes up, obviously the amount of an exceptional award should also eventually increase.

My noble and learned friend referred to this matter in the letter he sent to those of us who participated in the Second Reading debate about the need for a degree of judicial discretion. He suggested that the uplift should be capped at 20% and he has already referred to that this afternoon. I do not disagree with any aspect of his remarks, except that I think it is important that the percentage should appear in the Bill. This is in the interests of stability and clarity—stability because if the exceptional amount could be increased by the court without limit the temptation for claimants to game the system would be greatly increased, and clarity because such a limit would facilitate the setting of the rates of motor insurance and reduce the volatility in the amount of such rates year by year. That is an important distinction to remove absolute discretion from the courts, to bring it into the political arena and to set that percentage in the Bill so it is clearly a political, parliamentary decision. I beg to move.

[Lord Beecham]

My Lords, I am a little concerned at the degree to which political considerations are supposed override our system of justice. This is not the first time it has been mentioned. However, the latest case is perhaps the least acceptable of the recommendations of this kind. Why on earth should Parliament decide on the so-called exceptional circumstances—undefined, of course, for the purposes this debate—on what are already constrained sums to be awarded in damages? It is trespassing too much on the rights of the citizen and the role of the judiciary. I hope that the Minister will concur with that, given his enormous experience of these matters, and, I apprehend, a real interest in justice being effective and available. With all due respect, the amendment moved by the noble Lord undermines both.

[Lord Keen of Elie]

My Lords, I am obliged to my noble friend Lord Hodgson for his amendment. I understand the intent when we are seeking to address a very particular problem. However, I cannot concur with the proposal that we should set in the Bill some limit to the judicial discretion that will be exercised in exceptional circumstances. We have yet to see how exceptional circumstances will develop once the Bill comes into effect. We therefore consider it more appropriate that the percentage increase in tariff should be determined by regulation by the Lord Chancellor in order that he may, from time to time, have regard to developments once the Act is in force. We do not consider it appropriate to constrain that exercise by setting a ceiling in the Bill. For these reasons, I invite my noble friend to withdraw his amendment.

Damages (Personal Injury) Order 2017

Debate between Lord Hodgson of Astley Abbotts and Lord Beecham

Tuesday 18th July 2017 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, the regret Motion I have tabled may appear dry, complicated and technical. It is technical and complicated but it is not dry. It will have practical, everyday consequences for every taxpayer, for everybody who has an insurance policy, especially if they drive a motor car, and for every person who receives a long-term award of damages following an accident.

The setting of the discount rate to be applied to lump-sum damage awards is a critical decision. On the one hand, the situation cannot be allowed where, because the discount rate has been set too high, someone who suffers a catastrophic injury, maybe as the result of a road accident or an NHS operation going awry, finds that the lump sum runs out too soon. On the other hand, setting the rate too low means that the accident victim is overcompensated, which has a knock-on effect on motor and other insurance premiums, and on the overall operating costs of the NHS.

While the power for the Lord Chancellor to set the discount rate is to be found in the Damages Act 1996, the process by which the rate is set is based on case law, in particular on the 1998 House of Lords judgment in Wells v Wells, which reached two important conclusions. First, any lump sum awarded should neither overcompensate nor undercompensate the unfortunate victim. Who could possibly disagree with that conclusion? Secondly, the legal judgment was that the appropriate benchmark for setting the discount rate should be the yield on index-linked government stocks—that is, index-linked gilts or ILGs. I understand that the court concluded that the sums paid in compensation should be invested only in what the court saw as risk-free assets. The court appeared to anticipate that 100% of every amount paid in compensation would or should be invested in index-linked gilts. In such circumstances, it is not surprising that the conclusion was drawn that the benchmark for setting the discount rate should be that on index-linked gilts.

That second conclusion, 20 years on from the Wells v Wells judgment, is a good deal more controversial than the first, for the following reasons. First, the supply of index-linked gilts is limited. They offer particular attractions to those insurance companies and other financial institutions that seek perfect risk-matching. As a consequence, index-linked gilts tend to be fully priced—some may say overpriced—and arithmetically, as a result, the running yields are driven down. Many index-linked gilts are today traded above par so that a capital loss on redemption is inevitable. Further, if portfolio theory teaches us one thing, it is that diversification is the best way to offset risk. Any proposal that suggests investing in only one asset class needs to be approached with care. It is the all-your-eggs-in-one-basket belief. A more conventional approach might suggest, in addition to index-linked and other gilts, investing in some prime corporate bonds and some blue chip UK or overseas equities.

This rate setting is such a sensitive issue that successive Governments have shied away from changing the rate. Until earlier this year, the discount rate was set at 2.5% and had not been changed since 2001. That is patently unfair. The shape of the yield curve has altered dramatically as a result of the 2008 financial crisis and interest rates remain at historic lows. I am afraid that, as a result of the failure by successive Governments to address this issue, victims may prove to have been undercompensated in recent years.

Then suddenly, essentially out of nowhere, in February the then Lord Chancellor took action. And my goodness, it was draconian. At a stroke, she changed the discount rate from plus 2.5% to minus 0.75%. What is the effect of this rather arcane statement? A simple example may help clarity. Let us assume that you are a 25 year-old young man who has, sadly, been catastrophically injured in a motorcycle accident. The court must consider what sum is needed to look after you for the rest of your life—that is, probably more than 40 years. If the court concluded that on the old rate a sum of £2 million was sufficient, under the new rate that sum would arithmetically need to be £7.3 million. That is an increase of more than £5 million, or more than triple the original sum. Of course, the award assumes that interest rates will stay at the present low—historically, very low—level for the rest of your life. If they begin to rise, you will have been overcompensated at the expense of the taxpayer and other insured people.

Specifically, the Lord Chancellor’s decision had a direct and substantial effect on the public finances. Box 4.2 in the spring Budget policy costings paper indicates that as a result of this decision, the Chancellor of the Exchequer will have to find an additional £1.2 billion every year for the next five years as a guard against future claims. On page 35 of the same report, the suggestion is that the Lord Chancellor’s decision will result in an increase of 0.1% on CPI, or 0.2% on RPI.

The Times of 28 February this year, while pointing out the importance of not undercompensating victims, said:

“But basing the so-called Ogden formula on just three years’ history of index-linked gilts is crazy, as insurers point out. No accident victim in their right mind would invest their entire lump sum in inflation-protected gilts in this era of superlax monetary policy. One-third now opt for ‘periodic payment orders’, which guarantee a return of at least zero in real terms. Most others invest in a mix that includes higher yielding corporate bonds and equities”.


It went on to say:

“Either way, assuming that the best a prudent investor can achieve is a long-run real return of -0.75 per cent displays an Eeyorish level of pessimism. If this is really the government’s official thinking on likely future investment returns then its policies to encourage pension saving amount to mis-selling on a gigantic scale”.


More recently, on 24 June, the same paper highlighted that drivers now face a rate of increase in the cost of their motor insurance that is five times that of inflation. Not all of the increase can be attributed to the change in the discount rate but its impact will be felt particularly by younger drivers, those under 25, who have seen an increase of 13.1%, and—this may be of more interest to Members of your Lordships’ House—to older drivers, those over 50, who have seen an increase of 17.9%. Of course, this rate of increase will continue as reinsurance contracts run off—they last for only 12 months before they have to be renewed, and will have to be replaced at the higher rate.

I suspect—perhaps I should say I hope—that the Lord Chancellor did not understand or was not properly briefed or advised on the likely full impact of her decision. Certainly, having made this dramatic decision on Monday 27 February, which led to a storm of controversy, she then announced that there would be a further consultation. As my regret Motion makes clear, this appears to be putting the cart before the horse. I understand that the consultation is now closed and the MoJ has to report back by 3 August.

A regret Motion is probably not the place to discuss a remedy in detail but perhaps three brief conclusions can be drawn. First, it is critical that accident victims are properly compensated but in future the discount rate needs to be renewed more frequently to minimise the risk of overcompensation or undercompensation. This will also avoid the massive jerks on the tiller which have so disconcerted the insurance industry this year. Secondly, any new system should recognise that an assumption that all the compensation sums will be invested in the same asset class fails to account for the different circumstances of the various injured parties, so that the Wells v Wells conclusion that investments should be ILGs only is no longer appropriate. Thirdly and finally, those parties that are very risk-averse should place increased reliance on periodic payment orders as a better means of offering security to the injured party while avoiding overcompensation or undercompensation.

While tonight the House cannot discuss any remedies in detail, there is a need for action quickly to right the costly inequities of the present system. Following the recent consultation, the Government now have a wealth of information at their disposal. They also have a legislative vehicle on the stocks in the shape of the civil liability Bill announced in the Queen’s Speech. When the Lord Chancellor herself said, as she did on 7 March, that,

“the system needs to be reformed, because I do not think it is right that a discount rate is set on an ad hoc basis by the Lord Chancellor”—[Official Report, Commons, 7/3/17; col. 657]—

we can surely all agree that action is needed, and quickly. When he comes to reply, I hope that my noble and learned friend will be able to reassure me and the House that the Government recognise the significance of this issue and intend to take remedial action shortly. I beg to move.

[Lord Beecham (Lab)]

My Lords, the noble Lord has done the House a service in raising this issue. I should refer to my interests as an unpaid consultant in my old firm of solicitors, which specialises in personal injury claims.

The changes effected by the order we are debating have been a long time in the making. As the Explanatory Memorandum to the order makes clear, the procedure was prescribed in the Damages Act 1996, which vested in the Lord Chancellor the power to prescribe a discount rate which the courts must consider—though not necessarily apply—when determining compensation in personal injury cases in the form of a lump sum. Until that time, the rate had been determined by the courts.

This is only the second occasion since 1996 when a change has been made. As we have heard, the rate has been reduced from 2.5% to minus 0.75%. The purpose of the order is to reflect in relation to awards of lump-sum damages in cases of significant monetary loss—for example, long-term loss of earnings or the cost of round-the-clock care—the average yield of index-linked gilts, as the noble Lord, Lord Hodgson, explained. Thus the damages awarded will reflect a rate of return which is designed to ensure that the claimant does not make a profit from the compensation but is adequately provided for.

In 2010 the then Lord Chancellor, Kenneth Clarke, initiated the process of a review and a consultation was launched in 2012 that was inconclusive. It was followed in 2015 by the report of an expert panel commissioned by Chris Grayling. A further 16 months elapsed before Mr Grayling’s successor but one consulted the Treasury and the Government Actuary, and the relevant order was finally made. Over time it became apparent that the 2.5% discount did not reflect the realities of a changing investment market, such that the compensation could run out or the injured party have to invest in higher-risk products.

Needless to say, the insurance industry has opposed the changes and claims that they will lead to higher premiums. This is par for the course for an industry that in recent years has done so much to increase its profits, not least by persuading the Government to effect changes in the realm of personal injury claims while making little, if any, reduction in premiums. APIL, the Association of Personal Injury Lawyers, reports that Admiral Insurance stated that motor insurance profits after the change would still be of the order of £336 million. APIL commended the statement in the Government’s consultation that they could be influenced by the effect of the change in the rate on defendants.

Another organisation, Hastings, said that the reduction,

“is not expected to have a material impact on the Group’s financial outlook for 2017”—

so that is one insurer not apparently overconcerned at the change. Even more illuminating is the figure which Thompsons Solicitors calculated as the saving to motor insurers during the last 10 years of the 2.5% rate—a staggering £30 billion. There is little or no evidence that this has been reflected in reduced insurance premiums.

Given the nature of the claims in question, where long-term losses of income can occur alongside a need for special care, home or vehicle adaptations and the like, periodical payment orders—rather than one-off lump-sum payments—may well feature increasingly in the award of damages or the terms of settlement of claims. The noble Lord alluded to that desirable move.

Welfare Reform and Work Bill

Debate between Lord Hodgson of Astley Abbotts and Lord Beecham

Monday 14th December 2015 Lords Chamber

[Lord Hodgson of Astley Abbotts]

In these circumstances, a word such as “provisions” would be a better and more even-handed way of looking at the measure.

From my point of view, the timing proposed in the amendment is too soon, the remit is too narrow and the terms of reference are designed to achieve only one result. Therefore, I hope that my noble friend will reject it.

[Lord Beecham (Lab)]

My Lords, I also have a slight reservation about my noble friend’s amendment, but it is not the kind of semantic quibble which the noble Lord has just advanced, if I might term it that way. I would like to see the review of the out-of-work benefits regime and sanctions, which she rightly calls for, extended to certain other aspects of the welfare system as it is now operating.

In debates in your Lordships’ House, I have referred before to the area in Newcastle I represent as a councillor. It is a ward in the west end of the city with high levels of deprivation and a life expectancy 12 years lower than that of the area where I live, some 12 minutes’ drive away. The ward has six primary schools, two of which are Roman Catholic schools. All the schools, together with the Excelsior Academy, founded by a Conservative philanthropist, provide breakfast clubs for their pupils. The ward is served by the largest food bank in the country and poverty is a very real local issue.

On 26 November, I was contacted by a constituent, a single parent with two very young children, whose child tax credit payments had been stopped for eight weeks. The family was left with £33 a week child benefit and £117 a fortnight income support. The children’s milk tokens had also been stopped, and formula milk needed by one child who suffers from asthma could no longer be afforded. The parent of these children could not top up the gas meter, when required, to the usual extent.

Concentrix, the firm dealing with my constituent under contract to HMRC, had initially stated that it would take six weeks to check the eligibility for child tax credits. I forwarded the details and my reply to the constituent to the local Member of Parliament, and advised my constituent that I had done so and would also endeavour to take up the matter with the Minister. However, three days later, on 1 December, I was again contacted by my constituent, who told me that a further telephone conversation had taken place with Concentrix. The initial response—now nine weeks after payments ceased—was that inquiries were ongoing. A request was then made to speak to a supervisor. Initially, that led only to an assertion by the supervisor that the mandatory reconsideration was being carried out by another department which did not accept calls from claimants. However, after it was said in the course of this telephone conversation that the local Member of Parliament had been informed about the case, the problem was miraculously resolved and payments immediately resumed, even though for weeks Concentrix had claimed that this could not be done by the department to which the calls had been made.

This sorry saga raises serious questions about the administration of the child tax credit system in general, and by Concentrix in particular. Of course, it is right that claims should be validated, but your Lordships might think that even six weeks seems like a long time for payments to be suspended, let alone the nine weeks which had elapsed in this case and the even longer period which, but for the mention of the Member of Parliament, would otherwise have ensued.

There are also issues about the approach taken by Concentrix in dealing with the matter, not just the length of time taken. This US-owned company, another beneficiary of the passion for outsourcing these services, was featured in an article in the Independent in February. Staff claimed they were under pressure to start 40 or 50 inquiries a day into possibly fraudulent claims without any initial cause. In effect, they were asked to fish for fraud. As of August, the Mumsnet website carried 91 cases of applicants complaining about how they felt intimidated by the company’s approach and its demands, for example, for original documentation such as bank statements, rent payments or catalogue, fuel and other bills, which were often prefaced by unsubstantiated and false assertions that claimants were not lone parents but were living with someone.

All of this is symptomatic of a deeply troubling approach to an important component of our welfare system, or, as I prefer to characterise it, our system of social security, which in so many ways the provisions of this Bill threaten to undermine.

A week last Friday, I watched a recording of JB Priestley’s powerful and moving play “An Inspector Calls”, set more than a century ago, which deals with the tragic history of a young woman driven to suicide by poverty and the withholding of what was then known as poor relief. I am not, of course, suggesting that we are in a similar position today or that this Bill, however imperfect, will take us back there. But I believe it is time for an inspector to call not only on Concentrix but on HMRC, the department and the Government as a whole to review not just how the system is administered, but the implications for those in need of the policies embodied in this Bill.

Charities (Protection and Social Investment) Bill [HL]

Debate between Lord Hodgson of Astley Abbotts and Lord Beecham

Monday 20th July 2015 Lords Chamber

[Lord Beecham (Lab)]

My Lords, I declare my local authority interests, one of which is to represent the ward in which the mother of the noble Lord, Lord Graham, used to live, in a rather—at that point—grim housing association block. It was part of the Sutton’s estate, which has been transformed over recent years. It now provides extremely good and very popular housing, and there are other housing associations in the same small ward in my local authority, Newcastle. Anchor in particular has two or three developments. It is worrying that the Government’s arrant intention to nationalise with a view to privatising, which is effectively what their policies on social housing amount to, will impact on that provision.

The amendment does not address the issue of housing only. Other charities might well be caught by other developments of the kind the Government propose to bring forward in relation to housing. For example, one could envisage charities running medical services—hospitals, perhaps—being required to put those on the market and dispose of them to other organisations. There will be other examples. The National Trust is one; it is an interesting thought that your Lordships’ House and others might be saved by acting towards them as is apparently intended towards housing associations—I suspect that that is unlikely to happen. But there is a principle here which is wider than the important and topical principle of social housing, and could apply across a range of functions carried out by charities. For that reason, it is important for this House to consider the amendment seriously.

Some of the questions raised by the noble and learned Lords, Lord Hope and Lord Mackay, and the noble Lord, Lord Cormack, are valid: the wording of the amendment is perhaps not ideal. But it is not enough simply to say that Hansard will be read by Ministers at the other end and that is all there is to it. An amendment passed by this House would require fuller consideration than simply a reading of Hansard would be likely to engender. In any event, in the House of Commons it is possible to refine and improve the amendment to meet the points that the noble and learned Lords raised about the precise wording.

While we may well have an opportunity, unfortunately, of returning to this subject in the event of a specific measure coming from the Commons in relation to housing, it would be a sensible course to take to pass the amendment, particularly in view of the great concern expressed by the social housing movement. I bear in mind particularly the reference of the noble Lord, Lord Palmer, to the financing of future development, given that housing associations borrow against the value of their stock. If that is to be diminished, as it would be over time, it would obviously weaken them. But, as I have said, it is not the only case which gives rise to concern. On that basis, I hope that, if my noble friend decides to test the opinion of the House, your Lordships will support her, and encourage and facilitate a review of the position by the Government and the Commons.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, the House should not lose sight of the central purpose of this Bill, which is to make more effective—to improve—the regulatory powers of the Charity Commission and to enable the development of the social investment movement. This is the first in a series of amendments—including Amendment 17, on the right to make representations, and Amendment 19, on public benefit—that are outwith that purpose. I have heard all parts of the House rail and criticise Governments for bringing forth what they call Christmas tree Bills. If we are not careful, we are in danger of creating such a Bill here, because we are making amendments to the purposes of the Bill and the responsibilities of the Charities Commission that are quite outwith the original idea. Indeed, they are outside the remit that the Joint Committee, led by the noble and learned Lord, Lord Hope of Craighead, undertook.

We need to focus on the central issue: we need to give the Charity Commission the additional powers that the sector believes it should have and that the Charity Law Association and others generally believe are needed. If we go down the slippery slope of trying to add more bells and whistles to the Bill at this stage, we will be making a big mistake. I hope that the movers of the amendment will not wish to test the opinion of the House, because that could land us in position we do not want to be in.

Social Action, Responsibility and Heroism Bill

Debate between Lord Hodgson of Astley Abbotts and Lord Beecham

Monday 15th December 2014 Lords Chamber

[Lord Hodgson of Astley Abbotts]

My Lords, Amendment 1A may be less controversial than the matter that we have just finished discussing, although in matters of the law you never quite know. The amendment was originally tabled in the name of my noble friend Lord Hunt of Wirral, and I added my name to it. My noble friend has had to travel to northern England today on business, so is unable to be here in time to move this amendment. I am moving it on his behalf.

The amendment is very simple: a one-word change to Clause 3, the clause entitled “Responsibility”, to which the noble Lord, Lord Beecham, referred earlier. It replaces “generally” with “predominantly”, so that the clause will read:

“The court must have regard to whether the person”,

demonstrated a “predominantly”,

“responsible approach towards protecting the safety or other interests of others”.

The question was whether the use of “generally” was sufficiently focused to achieve the appropriate balance in individual cases. The adverb “generally” has three definitions in the Collins English Dictionary. The first is “usually; as a rule”. The second is “commonly or widely”. The final one is,

“without reference to specific details or facts; broadly”.

I suspect that what your Lordships’ House will wish the courts to consider, if this Bill passes into law, is whether the defendant will first claim that he was demonstrating an approach which on that occasion was in the main responsible in protecting the safety of others as opposed to the approach which usually, but not necessarily on that occasion, was responsible. Replacing “generally” with “predominantly”—we return to the Collins English Dictionary definition, which is,

“for the most part mostly and mainly”—

should provide the courts with the power to examine the approach of the defendant at the material time and avoid them having to consider the approach demonstrated at other times or taking the matter even wider, enabling them to take into account the approach followed other than that at the material time.

This Bill has an important role to play in reassuring potential volunteers, but equally it should not encourage behaviour which is thoughtless or irresponsible and thus puts others at risk. This change of word may better balance the two aspects, and I hope that the amendment will find favour with my noble friend. I beg to move.

[Lord Beecham]

My Lords, Clause 3 is the one clause in the Bill which the Government acknowledge embodies a substantive change in the law. In Committee, I moved an amendment to remove “generally” from the requirement on the court to consider whether,

“the alleged negligence or breach of statutory duty … demonstrated a generally responsible approach towards protecting the safety or other interests of others”.

Neither at Second Reading nor in Committee did the Minister define the meaning of “a generally responsible approach”, and in replying to the debate in Committee he acknowledged that the term was “unusual” in statutory terms. Indeed, he indicated that he would,

“consider carefully whether and to what extent it adds anything to what is in the clause at the moment and whether, on balance, it takes the matter any further”.—[Official Report, 18/11/14; col. 414.]

We await with bated breath the outcome of the Minister’s deliberations along with his response to the amendment tabled by his noble friend, who is seeking to ratchet up “generally” to “predominantly” in the proposed clause.

I have to say that neither term is satisfactory in terms of either definition, which is entirely lacking, or effect. Why should someone suffering damage through an act of negligence or breach of statutory duty be denied compensation on the grounds that the act or omission was in effect a first offence, or at any rate a rare offence? What, for that matter, constitutes a “responsible” approach? How does the Minister define those terms? Moreover, and crucially, the clause is not limited to social action, responsibility or heroism, terms which are in themselves undefined and undefinable, or to personal injury cases. We are dealing not just with safety but, in terms of the clause, with other interests. As I reported in Committee, the Minister in the House of Commons, Mr Vara, affirmed that the clause,

“could in principle be applicable in relation to other instances of negligence such as damage to property or economic loss where issues of safety may not necessarily be relevant”.—[Official Report, Commons, 20/10/14; col. 693.]

Why should a negligent builder, medical practitioner, accountant, surveyor or even solicitor—I declare my interest—escape liability for what might even be catastrophic damage because he has been hitherto “predominantly” responsible? Negligence can lead to large losses outside the realm of personal injury. Is not the reality that this badly drafted clause is yet another concession to the insurance lobby, which ordinarily would of course stand behind the defendant in such claims?

Many Members of your Lordships’ House will have received an e-mail today from one of those pressure groups which so exercise the Lord Chancellor in relation to judicial review. In this case, the pressure group is one which we can be confident he entirely approves of: it is the CBI. Its curiously worded communication supports Clause 3 on the grounds that it,

“provides better protection against accidents for those firms—particularly the small and medium sized companies that already have good health and safety processes in place”.

Of course, it does nothing of the sort. It provides “better protection” against claims for negligence arising from accidents and it extends, of course, to large employers as well as medium-sized and small employers.

The e-mail goes on to suggest that,

“this clause will encourage the courts to recognise that safety is a shared responsibility”,

as if the courts do not already do so, and do not make findings of contributory negligence when a claimant fails to take proper precautions, or dismiss a claim when he is wholly responsible. Of course, again, the CBI ignores the fact that the clause extends to all types of negligence, including by small and medium-sized businesses which might well find themselves a victim of negligence other than of the kind leading to personal injury.

As the CBI’s response eloquently exemplifies, this whole Bill has all the hallmarks of being drafted by the Lord Chancellor on the back of a small envelope. This clause, in particular, is deeply objectionable. Unless the Minister is prepared to abandon the clause, I shall invite the House to divide and consign the envelope to the parliamentary waste bin.

--- Later in debate ---

[Lord Hodgson of Astley Abbotts]

My Lords, I, too, congratulate the Government on leaving out the 11 words at the end of this clause. Particularly following our debate in Committee, it appeared to me that a “person’s own safety” is not necessarily a part of heroism, so it is a useful removal.

The noble and learned Lord, Lord Lloyd, in speaking to his amendment to leave out the clause, said that his reasons for wishing to do that were broadly the same as his reasons for tabling Amendment 1, which concerned Clause 2. I understand that, and therefore draw the conclusion that I drew a couple of hours ago. I hope that my noble friend will resist that amendment.

[Lord Beecham]

My Lords, the noble and learned Lord, Lord Brown, asked what was added by the reference to heroism in the Bill. The answer is that it allows the Government to bestow an acronym on the Bill; otherwise, it would simply be the “Social Action Responsibility Bill”. Now, we have the words “and Heroism”, which make a convenient acronym. That is an interesting way of proceeding with the drafting of legislation and I concur with the noble and learned Lord’s criticisms of that process.

Having said that, the Minister has at least made a concession by, in effect, accepting the amendment moved by the noble Lord, Lord Pannick, to which I subscribed, as I said before. It was of some comfort that St John Ambulance, which was certainly in touch with me and, I suspect, other noble Lords, welcomed that change. The clause does not substantially affect anything, as we have already heard. However, in so far as this modest change makes it marginally more palatable, I welcome the Minister’s concession. He has not been able to offer too many concessions, but I am glad that he has prevailed on the Lord Chancellor on this occasion to make a gesture of an unfamiliarly generous kind to this House. I support the amendment.

Social Action, Responsibility and Heroism Bill

Debate between Lord Hodgson of Astley Abbotts and Lord Beecham

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.

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[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.

Law Commission

Debate between Lord Hodgson of Astley Abbotts and Lord Beecham

Monday 12th May 2014 Grand Committee

[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.

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[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.

Justice and Security Bill [HL]

Debate between Lord Hodgson of Astley Abbotts and Lord Beecham

Monday 23rd July 2012 Lords Chamber

[Lord Beecham]

My Lords, this amendment and the other amendments in the group relate to what are extraordinarily wide powers that Clause 11(2) and subsequent subsections would confer on the Secretary of State to amend, for the purposes of the legislation, the definition of “relevant civil proceedings”. The Delegated Powers Committee looked in some detail at these matters and I rely heavily on its observations. It raised significant concerns and made it clear that, while, of course, the procedures are confined to civil proceedings, the effect of the Bill is to permit any such civil proceedings to be ones in which the procedures can be invoked.

Subsections (2) to (4) of Clause 11 confer a very wide power on the Secretary of State to amend the definition and to amend the definition by affirmative order. In so doing, courts or tribunals can be added or removed and rules can be prescribed. The committee stated that:

“The powers are undoubtedly wide”.

They might, indeed, in the view of the committee, be exercised so as to specify a coroner’s court. Of course your Lordships will recall that the question of inquests has been mentioned more than once. The Lord Chancellor has indicated that procedures would not apply to inquests but, on the face of it, that decision could be changed under the provisions of Clause 11(2), by order, to be approved, as I have indicated, by affirmative resolution. In addition to that, there is the possibility of some urgency being required in the mind of the Government and that is also a question which the committee addressed. There is the possibility of a made affirmative procedure being invoked under which a change could be instituted by, effectively, tabling an amendment. Although, ultimately, that would have to be approved, it would take effect immediately.

The committee, while acknowledging the Government’s concerns about urgency, pointed out that if a situation arose in which it was felt that an application needed to be made in proceedings before a court or tribunal which was not initially specified and for which, therefore, an order would have to be brought forward, the Government,

“does not explain why it is thought that an order which attracts the draft affirmative procedure should offer any speedier means of meeting that perceived need for amending legislation than, for instance, a short Bill fast-tracked through both Houses”.

It said, and I think that there is considerable force in the argument, that that approach,

“would at least ensure that control over further extensions of the ‘closed material procedure’ would remain with Parliament, rather than with the Government”.

Nevertheless, it took the view that the House should consider,

“the scope of the powers conferred so that it may appreciate the unconstrained nature and extent of the provision that might be made under them by this or any future government. The House may wish to consider whether the Bill should be amended to restrict that scope or to include any such safeguards as the House might regard as necessary for ensuring Convention rights are observed and for protecting the interests of open justice”.

The Constitution Committee thought that the made affirmative procedure might be more appropriate, but the Delegated Powers Committee felt that that would perhaps be the least likely way to meet the need for urgency.

The provisions here are extensive. The procedure that the Government propose to adopt does not really allow sufficient parliamentary scrutiny and leaves the decision, as the Delegated Powers Committee made clear, in the hands of the Government when there is an alternative if a situation of urgency arises. Your Lordships might think that this is much too broad a power to be left in the way that this clause and its subsections provide and I sense that the other amendments in this group reflect that view. I hope that the Government will reconsider and go back, before Report, to the recommendations of the Delegated Powers Committee and seek to amend this provision as it currently stands to one that is more acceptable and more consonant with the procedures of parliamentary scrutiny of what might be significant changes to the scope of the Bill. I beg to move.

[Lord Hodgson of Astley Abbotts]

My Lords, I have tabled Amendment 70 in this group. The noble Lord, Lord Beecham, has covered the points and I do not wish to weary the Committee with repetition. Amendment 70 would remove subsections (3) and (4), as well as subsection (2), and is therefore more brutal in its application. One of the briefings I received on this part of the Bill said that this was a potentially,

“unwarranted extension of an unsatisfactory procedure”.

I therefore support what the noble Lord was saying about the dangers of mission creep, which we have discussed before. As we keep hearing it stressed that this is going to be a very rare procedure, it seems strange that we should allow courts to be added in what is essentially a pretty cavalier manner. I am all for statutory instruments and their positive nature, but they are unamendable and inherently too weak to tackle something that is as dangerous and difficult as this area that we have been discussing these past few days.

Subsection (4)(a) refers to “explaining the meaning” of “rules of court”. Do they really need to be explained? Are we not, as the noble and learned Lord, Lord Woolf, has explained to us, able to rely on judicial discretion and ability to interpret? I am concerned that explaining the meaning of the rules of court carries with it, in some more sinister way, an instruction as to what they mean and what judges should do. Similar wording in subsection (4)(b),

“enabling provision of a particular description to be made by such rules of court”,

seems to me, as a non-lawyer, to carry with it a degree of direction and fixed purpose that does not fit well with the sensitivity of the nexus that we have been discussing between civil liberties and the need to protect national security.

Justice and Security Bill [HL]

Debate between Lord Hodgson of Astley Abbotts and Lord Beecham

Tuesday 17th July 2012 Lords Chamber

[Lord Beecham]

As does the noble Lord, Lord Marks. I had the misfortune to sit beneath the portraits of both those distinguished judges at my school and my college. I could not escape them but I would not wish to escape the noble Baroness.

Despite these warm words, I am somewhat disappointed by the noble Baroness’s reply on the amendments. Amendment 67A seeks, in effect, to replicate the independent review process of the independent reviewer of terrorism legislation without adopting that individual, as the noble Baroness, Lady Berridge, suggested. Having said that, it would not be beyond the wit of government to appoint a second independent reviewer of terrorism legislation and allied matters if that were thought to be required. It is the independence of the review that is essential. Furthermore, the post-legislative review process is normally designed to take place after three to five years. Five years is too long. This is a rather different piece of legislation from most of that which would be reviewed. We are dealing with some fundamental rights and a fundamental change in the justice system. It deserves special consideration. I hope the Government will think again about that. The same really applies to Amendment 67B. It is important that there should be in the public domain regular checks on precisely what use is being made of these procedures. Concerns have been expressed in Committee today that, like Topsy, the use of these things may simply grow. The legislature needs to keep an eye on developments here. The assumption is that there will not be many. That is an assumption which needs to be tested regularly. A compilation of statistics on an annual basis should help that.

[Lord Hodgson of Astley Abbotts]

Does the noble Lord agree that the phrase “mission creep” could be made for this sort of thing? We just find it spreading out. Mission creep would be a most dangerous aspect of this legislation.

[Lord Beecham]

I concur with that view, hence the need for regular reporting, not just of the statistics. The next amendment I will move will deal with other aspects. There does not appear to be available in general an indication of how much use is being made of the process under the present regime. It will be even more important when we are looking at the new developments that the Bill proposes. I am somewhat disappointed with the reply. It may well be that we will have to return to these issues on Report. In the circumstances, I beg leave to withdraw the amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Hodgson of Astley Abbotts and Lord Beecham

Tuesday 27th March 2012 Lords Chamber

[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.

Parliamentary Voting System and Constituencies Bill

Debate between Lord Hodgson of Astley Abbotts and Lord Beecham

Wednesday 16th February 2011 Lords Chamber

[Lord Beecham]

Not only that, my Lords, but he was a teller. The noble and learned Lord this morning quoted my noble and learned friend Lord Falconer and I should like to repay the compliment by quoting what the noble and learned Lord, Lord Lloyd, said on that occasion. He said:

“I hope we will vote once more against the Commons amendments. I hope more fervently that we may not have to do so again”.—[Official Report, 21/3/05; col. 23.]

Clearly, he would have been quite willing to do so again, had your Lordships’ House on that occasion not ultimately acceded to the views of the other place. The Leader of the House perhaps ought to rely on rather stronger support than that inadvertently offered by the noble and learned Lord.

I am utterly persuaded by the views of my noble friend Lord Rooker. There are many in this House on all sides who have been persuaded by the force of his logic. I certainly hope that your Lordships will, if necessary—and it seems to be necessary—again approve my noble friend’s amendment and again invite the other place to think seriously about the direction in which it is taking this country and its constitution.

[Lord Hodgson of Astley Abbotts]

My Lords, I shall make a brief intervention. I did not participate in the debate this morning, although I did so at Report, 10 days ago, in a way that I am afraid my noble friend found slightly disobliging. I also voted in a disobliging way then and again earlier today.

I found the amendment of the noble Lord, Lord Rooker, persuasive on four grounds. First, as he has said when he moved it, we should avoid setting or reinforcing the precedent that referenda should not have thresholds. I do not like referenda. We elect Members to go to the other place to take difficult decisions and I think that referenda that decide important issues of public policy with small turnouts are doubly undesirable. The second reason for supporting the noble Lord’s amendment is that it sets the binding, mandatory threshold at a level that would command public confidence. It is the stickability and credibility argument. A 40 per cent turnout, at which 21 per cent, or one in five, will have had to vote in favour, seems to strike the right balance. Thirdly, the amendment means that if there were to be, as I fear there will be, substantially differential turnouts in different parts of the country because of the different types of elections taking place—parliamentary elections, Assembly elections and, in London, no elections at all—those for whom the referendum goes in the wrong direction need to be assured that there has been a reasonable overall turnout. I think that 40 per cent is that right level. Finally, the amendment is not a fatal amendment because the referendum would become advisory if the turnout was below 40 per cent. Indeed, the amendment in the name of the noble Lord, Lord Elystan-Morgan, would not have had my support because it sought to tie the hands of the Government, as opposed to enabling them to have the opportunity to consider the advisability of proceeding, when we knew what the final turnout was.

The amendment is being put forward once again by the noble Lord, Lord Rooker, in his normal robust and combative way—and it is none the worse for that. The noble and learned Lord, Lord Falconer of Thoroton, in his more silky and persuasive form, sought to raise the debate to a higher level and has made remarks such as that the amendment is in line with our parliamentary democracy and high principles. I hope that he will forgive me if I say that, when I see how his party has changed its voting position in the other place, there may be high principle, but there must be at least a whiff of political opportunism around the other Chamber.

We have now asked the other place to think about this issue twice and we have had a clear answer twice—by 70 votes last night and by 79 this evening, if my mathematics are right. We have heard a powerful speech from the noble and learned Lord, Lord Lloyd of Berwick. Whatever the rights and wrongs of the amendment, he was right to tell us that we are discussing an issue that focuses narrowly on a matter that affects the other place alone. Therefore, while I continue to have considerable and very grave doubts about the course on which my Government are embarking, I am afraid that I have now concluded, after two disobliging votes, that the time has come for the Members of the elected Chamber to make a final decision, because they alone will have to live with the consequences of their deliberations.