Arbitration Bill [HL]

Lord Hope of Craighead Excerpts

Committee stage
Wednesday 11th September 2024 Lords Chamber

[Lord Hoffmann (CB)]

My Lords, I declare an interest in that, since retiring from the Appellate Committee of your Lordships’ House, I have practised as an arbitrator. More to the point, I was the presiding arbitrator in the Nigerian case to which the noble Lord referred. Of course, no one could object to the sentiment behind the noble Lord’s amendment—we all disapprove of bribery and corruption—but the question your Lordships have to think about is: what does that mean we arbitrators are supposed to do in practice?

Take, for example, the Nigerian case to which the noble Lord referred. It was a claim for breach of contract against the Government of Nigeria: they were supposed to supply the claimants with quantities of gas over a very long period, but they did not do so. The question was: was that a breach of contract? If it was, what were the damages to be? No objection was made on the validity of the contract. We heard the arguments about whether there had been a breach, and we decided there had. Eventually, at another hearing, we went into the question of what damages had to be paid. Arguments were again brought, with expert witnesses on both sides, and we came to the conclusion that it was a large figure, because the gas was due to have been supplied over a period of 25 years and it all added up. That was the rub.

As the noble Lord said, at the hearing before Mr Justice Knowles it turned out that there had been some bribery and corruption in obtaining the contract and in the conduct of the litigation. None of this was known to us. So the question is: what ought we to have done? Should we have said to the parties at the beginning, “By the way, can you please assure us that there has been no bribery and corruption?” It seems an extraordinary ritual that we would have had to go through, and it would have to be the case in every arbitration.

Arbitration is a consensual arrangement. The parties have agreed that each of them will come before a tribunal, that each will present his case and that the tribunal will decide on the basis of the arguments the parties present. Is it consistent with that form of decision-making that the tribunal should attempt to dig away at a point on which the parties have not relied? Of course, if one of the parties suspects that there has been bribery and corruption on the other side, so to speak, that would enable it to resist the application, it would no doubt do so. But, in a case in which neither party raises this point, it is difficult to see what the arbitrators can do.

It is also difficult to see why that should not also be the case in ordinary litigation in the Commercial Court. Is the judge in the Commercial Court to say to the parties, “Has there been any corruption? Nobody’s mentioned it yet, but can you please tell us and inquire as to whether there’s been corruption?” It is quite inconsistent with the way in which litigation and arbitration are conducted that the tribunal should have to take that sort of active investigatory role.

As far as I can see, all that introducing this amendment would do is add a formalised ritual to the conduct of arbitrations, and it may even provide a technical ground on which a party who has lost an arbitration can say, “Well, it’s true that I can’t say there was any corruption, but the tribunal didn’t do enough to investigate whether there was, and that was a breach of its duty under this new provision in the Arbitration Act”. It would therefore create uncertainty and unnecessary difficulties in the way in which arbitrations are conducted. For that reason, I invite your Lordships to reject the proposed amendment.

[Lord Hope of Craighead (CB)]

My Lords, I entirely endorse what my noble and learned friend Lord Hoffmann has said, but I would like to say a word about the procedure that the noble Lord, Lord Hacking, has invited the Minister to adopt. Surely the stage of conferring with people as to what they think about this amendment has passed. This matter could have been raised in the Committee of the noble and learned Lord, Lord Thomas —it was not, of course—but now it is a matter for this Committee to decide whether or not to accept the amendment. It is as simple as that. With great respect, I think it is a matter for the Committee and not for anybody else now. I agree with my noble and learned friend Lord Hoffmann that this amendment should not be accepted.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I agree with both the noble and learned Lords, Lord Hope and Lord Hoffmann, that this amendment ought not to be accepted. However, it seems to me, as the noble and learned Lord, Lord Hoffmann, said, that everyone agrees with the sentiment behind what the noble Lord, Lord Hacking, has proposed.

I had thought that we had agreed how to deal with this matter when the then Minister dealt with it at a hearing of the Special Public Bill Committee. I raised this point by way of an amendment to the old Arbitration Act. The Minister agreed, in response to that, that he would write to the arbitral institutions and we would see what the best practice was. I had assumed that all that would be made public, and I am entirely at a loss to understand why the letters that were written and the responses have not been made public. It would be extremely helpful to have all this information put into the public domain to show, for the benefit of London, what was being done to address this point. As I understand it, these were documents written by the Minister in his capacity of trying to deal with a problem that had arisen and was discussed in this House. It would be very helpful to have a discussion and look into the matter in detail. If something needs to be done—more than is being done—we can return to it. Certainly, we ought not to delay the Bill by this amendment.

Criminal Justice Act 2003 (Requisite and Minimum Custodial Periods) Order 2024

Lord Hope of Craighead Excerpts

Monday 29th July 2024 Lords Chamber

[Lord Beith (LD)]

We have all welcomed the Minister in three debates on three successive sitting days, so he has been thrown in at the deep end of parliamentary accountability. However, he has received some pretty sound advice from all the preceding speeches, including in the well-directed questions from the noble Lord, Lord Moylan.

Today what we are faced with from a parliamentary accountability point of view is not satisfactory. We know that the Government are caught in a difficulty whereby they have had to deploy a statutory instrument without it having gone to the Joint Committee on Statutory Instruments, on which I have served. That is a shame, because that committee and its excellent team of advisers go through statutory instruments in great detail and sometimes find mistakes. They occasionally find mistakes that throw into question the validity of the instrument and the ability to enforce it, so I hope that extreme and extra care has gone into the drafting of this instrument, which is quite complicated. For example, there are 54 excluded offences, and many other complications affecting various categories of prisoner. So we hope that it is looked at very carefully—and, in a defect is found, we hope that the Government will come back at a later stage with a revised instrument.

What we have today is not a policy but a response. The Minister gave some indications of how policy might be developed, but we are not there—we are not at that point. We are simply observing a government response to a desperate crisis, which any incoming Government would dread—well, it is happening. It is the result of underinvestment and delayed investment in prison building over a long period and the constant rise in the number and length of custodial sentences, as well as the large rise, to which the Minister referred, in the number of remand prisoners, which itself is largely the result of the huge backlog in serious cases coming to court, as part of the wider chaos that we find in our criminal justice system. I ask the Minister: is it in fact the case, as alleged in the press, that sentencing hearings for prisoners on bail have been deliberately delayed to avoid further sentences sending people into our already overcrowded jails?

We have a prison population that is three times the level it was when I became a Member of Parliament. The noble Lord, Lord Deben, has referred to how that contrasts with other European countries, and I share his concern about the fact that it has happened and that it is so out of line with how most countries view the same problems of crime that we face. The announced prison building programme cannot solve the problem, although it is needed. We have to remember that, when the prison building programme that we have now was announced, much of it was intended to replace unsuitable and inadequate prison accommodation—not to add to the total stock but to replace accommodation that should not continue to be used.

We have a prison system that cannot house its prisoners and cannot rehabilitate them, and we have as a result a completely unacceptable level of violence against prison staff as well as prisoner-on-prisoner violence.

Nothing we are doing today will change this. We have to review the trend of the ever-increasing use of custody. For that to happen—here I repeat what I said last week—we need to strengthen community sentencing and the services necessary to make it effective. We also need to establish a measure of crime and its seriousness which does not make custody the only means by which society can assert its abhorrence of serious and persistent crime. That is fundamental to the problem we have at the moment: the only way society knows how to recognise and deal with crime, as is reflected in the media and in ordinary conversation, is to say that we are not going to put up with these dreadful crimes and so we should put people in jail for longer, even if it is not relevant to the rehabilitation of the offender when they are eventually released. We have to face up to that problem, and that is going to require real leadership, rather than party-political leadership. The Minister has a background that makes him well suited for this; I hope he is given the scope to carry out that kind of leadership.

[Lord Hope of Craighead (CB)]

My Lords, I am intervening just to ask a question. The Minister used the word “stabilised” twice, I think, during his presentation of this instrument—he is looking forward to a stage when the Government can feel that the prison crisis has stabilised. Can the Minister explain a little more of what he means by the word “stabilised”? The point is this, as the noble Baroness, Lady Jones of Moulsecoomb, made clear: we are sending too many people to prison, and therefore one of the ways of stabilising the problem is by addressing rigorously the overuse of prison as a means of punishing crime. I am sure the Minister is well-equipped to carry out that campaign.

The other feature of our present treatment of offenders, particularly serious offenders, is the length of the prison term. I was Lord Justice General in Scotland some years ago, when I had the task of reviewing the tariffs to be imposed on discretionary life prisoners. These are people who, unlike murderers, were sentenced to life imprisonment because of the gravity of the crime they had committed. The average tariff I was imposing in line with what was the current practice then—this was about 20 or 30 years ago—was something like 11 years; now, it is way above that, at 17 or 18 years, or more, and lengths of sentences are going up into the 30s. In my time as Lord Justice General, such lengths of sentences were quite unimaginable, and I am not sure it is doing any good except to keep people in prison longer than ever before. That is why the crisis has grown. There is a fundamental problem that has to be addressed, and I urge the Minister to explain what he means by “stabilise”. Perhaps the Minister could also address more closely—not today, and not even in writing to me, but later, in discussion with officials—how the problem can be corrected, so that we do not find ourselves in two years’ time facing the same crisis we are facing today.

Beyond that, I commend the drafting of the regulation. I think a great deal of thought has gone into the measure. It has been carefully thought through and, as a means of dealing with the crisis, it is exemplary. However, it is the underlying problem that must be addressed, not the particular crisis itself.

[Lord Brooke of Alverthorpe (Lab)]

My Lords, I welcome the Minister to his appointment and wish him well. I assure him that many people in the House will be anxious to assist him, so that we can move away from the inevitable decade-on-decade increase in the number of people in prison. When the last Government went out, we had 87,000 people in jail, and we now have 97,000 people in jail. I do not think there is any point in pointing to any party-political basis; we should be seeking to come together to take a longer view. I share precisely the views expressed by the noble Lord, Lord Deben: when we look at what is happening in Europe, why are we so different?

If the Netherlands has got empty spaces in its jails, why are we not sending some prisoners there? If Denmark has got empty spaces in its jails, why are we not sending some prisoners there? That is not to say that I think we should be about sending prisoners elsewhere; we should be about trying to get to the fundamentals behind what happens with criminal acts, and looking then at how we deal with people. We need to try to find a more civilised way of handling many of the cases in which people need not go to jail.

In particular, I get increasingly concerned about the problems we encounter with mental health within jails. I know a number of people working in jails from different angles, and the constant complaint is that there are so many people there who should not be in jail but who should in fact be cared for on a mental health basis rather than being incarcerated.

I have a couple of questions there, including on whether we can export people temporarily. I support the statutory instrument, but I hope that the Minister might be able to say that it is high time that we did not just have a review of the reasons why we have our current problems but that we in fact have an all-party approach to try to get a longer-term analysis of our fundamental difficulties, and of what new and more civilised steps can be taken. Then at least, stability could come from not increasing from the present numbers when we review this in 10 years’ time, and within the Government’s five-year period we might have a proper analysis of the underlying causes and a real strategy devised where we could all come together to work for a better life in the future.