Queen’s Speech
Lord Hope of Craighead Excerpts(3 years, 8 months ago)
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Lord Hope of Craighead (CB) [V]
My Lords, there are two sentences in the gracious Speech on which I should like to comment. The first is:
“Legislation will be introduced to … restore the balance of power between the executive, legislature and the courts.”
The second is:
“Measures will be brought forward to establish a fairer immigration system.”
The first I understand to be a reference to proposals in the Government’s response to the Independent Review of Administrative Law under the chairmanship of the noble Lord, Lord Faulks. The second is a reference to the proposals in the Government’s New Plan for Immigration.
Both of these documents were issued by the Government in March. They were both put out for consultation, but the consultation period in each case was only six weeks. Given that this period included the Easter bank holiday weekend, this surely was far too short to allow sufficient time for all those affected or interested to comment in detail on these far-reaching proposals—and, of course, the time allowed today is far too short, too. I do hope that time will be found for this House to debate them fully before the legislation is introduced. In the meantime, I will make the following points.
First, with regard to any reform of judicial review, it is important to note that most of these proposals can apply to England and Wales only. I leave it to others more familiar with that system than I am to comment, but Scotland has its own system of judicial review, which is devolved. On the whole, Scotland has been able to align itself fairly closely with the system in England, but it may not be willing to do that if the reforms are pressed too far. That could lead to forum shopping, as I was able to do under the then current rules when I was still in practice to successfully challenge the Government’s policy on aviation in Scotland. It should also be noted that the justification for the abolition of the so-called Cart reviews, which is questionable in England and Wales, is even more so on the figures that relate to Scotland.
Secondly, on the New Plan for Immigration, there is much to be concerned about. The new two-tier system that is proposed appears to be based on discriminating against asylum seekers depending on how they arrived in the UK. Those who use irregular routes of entry, involving passage through a third country, will be considered to be inadmissible. This seems to run counter to the overriding objective of the reforms, which we are told is fairness and access to asylum based on need. For most asylum seekers, unauthorised entry is the only means they have of entering the UK, as the noble Lord, Lord Pannick, pointed out. Further, the fact that no successor agreement to the Dublin III regulation has been developed means that there are currently no safe and legal routes for unaccompanied asylum-seeking children to enter the UK from the EU—so they too will be discriminated against under the proposed two-tier system. I find myself in full agreement with the noble Lord, Lord Blunkett, that a more sophisticated approach is needed to deal with these problems.
There is also an absence of detail in the plan about how the Government would secure a returns agreement with the safe country through which those who have used an irregular route will have passed, or how they will be protected when they get there. The proposal to remove support from those who arrived by an irregular route but cannot be returned is also very worrying. For them, that would mean destitution. Are we turning our back on our treaty obligations once again?
Whiplash Injury Regulations 2021
Lord Hope of Craighead Excerpts(3 years, 9 months ago)
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Lord Hope of Craighead (CB) [V]
My Lords, I spoke in favour of what is now Section 3 of the Civil Liability Act 2018 when it was before the House three years ago—and I have not changed my mind. It seemed to me that the case for the whiplash injury regulations that we now have was compelling. It was far too easy for claims to be made that would not survive scrutiny if they were to be adjudicated on by a court. They would be accepted by insurers because it was so much cheaper for them simply to pay up. Human nature being what it is, not everyone abides by the rules. There was an abuse here that needed to be dealt with. A decision to proceed in this way was taken then, and what we are concerned with now is the content of these regulations.
There is no getting away from the fact that the figures listed in each of the columns in Regulation 2 are quite modest. Indeed, some people have described them as “derisory”. We have them, however, in the columns before us, and I welcome very much the Minister’s assurance that he accepts the Lord Chief Justice’s recommendation that a review in the light of experience be undertaken in relatively early course, after one year’s experience.
We note, of course, the opportunity for the court to increase the amounts payable by up to 20% in exceptional cases, and we should also note that Section 3(8) of the Act rightly provides that nothing in that section prevents a court awarding an appropriate amount for any other injuries the person may have sustained, which may well be the case in the ordinary road accident section. There is a risk, of course, that other kinds of minor injury will now take the place of whiplash claims. That will need to be carefully watched. For now, however, modest though the figures are, these regulations have my support.
Independent Review of Administrative Law Update
Lord Hope of Craighead Excerpts(3 years, 10 months ago)
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Lord Hope of Craighead (CB) [V]
My Lords, of course Parliament has the power to legislate to limit or exclude judicial review. The question is how far it should go. I was a member of the panel of the Supreme Court in the Cart case. We set the bar as high as we could when we were defining the test that should be applied, but experience has shown that our decision has not worked so I agree that it is time to end that type of review.
As for suspending quashing orders, in HM Treasury v Ahmed in 2010 I found myself, to my dismay, in a minority of one against six in holding that our order setting aside an Order in Council freezing a terrorist’s assets before they were dissipated should be suspended to give it time for it to be corrected. I agree too with the proposal to consult on prospective-only remedies as I gave a judgment some years ago in favour of those.
So far, so good, but I hope that the indication that the Government are proposing to go further is not meant to be a suggestion that a more wholesale reform is proposed. That would be a cause for concern. Can the Minister reassure me on that point?
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful for the noble and learned Lord’s comments. On prospective remedies, I mentioned the decision in Ahmed in my opening remarks. I hope I am not rubbing salt into the noble and learned Lord’s wounds when I mention that decision, and I am grateful for his comments on it.
On his last point, I shall put it this way: this Government are committed to the rule of law. Judicial review is an essential part of the rule of law—see paragraph 18 of the Government’s response. I hope that gives the noble and learned Lord the reassurance that he was looking for.
Third Parties (Rights against Insurers) Regulations 2016
Lord Hope of Craighead Excerpts(8 years, 10 months ago)
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The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, the draft regulations extend the range of people who are potentially within the scope of the Third Parties (Rights against Insurers) Act 2010. Subject to the prior approval of both Houses of Parliament, the draft regulations are to be made by the Secretary of State under the power in Section 19 of the 2010 Act. Section 19, in its present form, was inserted into the 2010 Act by Section 19 of the Insurance Act 2015. The purpose of the power is to make provision for adding or removing circumstances in which a person is potentially within the scope of the 2010 Act. The present circumstances within that scope are currently set out in Sections 4 to 7 of and paragraph 1A of Schedule 3 to the 2010 Act.
The draft regulations make a series of textual amendments to the 2010 Act, as amended by the Insurance Act 2015. The effect of the amendments in general terms will be to include corporate and other bodies that are subject to certain sectoral insolvency regimes or, within limited exceptions, have been dissolved within the scope of the 2010 Act. The purpose of making these amendments is to correct omissions from the 2010 Act so that it can be brought into force without adversely affecting people who are currently within the scope of the 1930s legislation that is to be replaced by the 2010 Act.
It may be helpful at this point if I explain the principles that underlie the third parties legislation in a little more detail. It has existed since the 1930s and is so called because the claimant is a third party in relation to the contract of insurance. The current legislation is the 1930 Act, which applies to England, Wales and Scotland, and the Third Parties (Rights against Insurers) Act (Northern Ireland) 1930. The purpose of the 1930 Acts, and indeed of the 2010 Act, is to protect the interests of claimants against insured persons who have a liability to the claimant but who no longer have effective control of their assets, typically because they are insolvent. The basic effect of the third parties legislation is to transfer to a third party to whom the insured has incurred a liability the contractual rights of the insured against the insurer as regards that liability. This means that the proceeds of the insurance policy are paid to the claimant, not to the creditors of the insolvent insured generally.
The 2010 Act is intended to extend and improve the protection conferred by the 1930 Acts. To trigger the application of the 2010 Act, an insured must both incur a liability to a third party against which it is insured and undergo an insolvency or analogous event specified in the 2010 Act. Unfortunately, following the enactment of the 2010 Act it was found, in some respects, to have a narrower scope than the 1930s Acts. This was partly as a result of the terms used in the drafting of the 2010 Act and partly because of developments in insolvency law following the financial crisis in 2008.
Had the 2010 Act been commenced immediately after its enactment, the effect would have been to deny insurance proceeds to claimants and to pass them to be shared out among the insured’s creditors. This would have frustrated the very purpose of the 2010 Act and had the effect of undermining the purpose of compulsory insurance, such as that which employers are required to maintain. The operative provisions of the 2010 Act have therefore not yet been brought into force and will not be so until these defects have been remedied. The remedial process is therefore essential to realising the benefits of the 2010 Act. Part of the remedial process was effected by the amendments to the 2010 Act made by the Insurance Act 2015. The draft regulations will complete the process.
I will now describe the working of the amendments to be effected by those draft regulations. First, they would extend the list of such insolvency or analogous events by adding the sectoral insolvency or administration procedures listed or referred to in the provisions to be inserted in the 2010 Act by Regulation 3 of the draft regulations. These additions cover the possibility of insolvency or administration under special legislative regimes that generally follow, but are distinct from, the Insolvency Act 1986 in a wide range of important business sectors where company failure has the potential to damage public interest or cause market contagion—for example, financial services and postal or energy companies.
Secondly, Regulation 4 of the draft regulations extends the scope of the 2010 Act to dissolved bodies, other than unincorporated partnerships and bodies that are no longer treated as dissolved by reason of subsequent events. The 2010 Act currently applies to dissolutions under Sections 1001, 1002 or 1003 of the Companies Act 2006 but not to other dissolutions, even though dissolution, after which a body will certainly not have effective control over its rights and assets, would appear to be the paradigm case in which a transfer of rights should occur. Regulation 4 therefore broadens the scope of the application of the 2010 Act to these other dissolutions.
The one exception to the proposed coverage of dissolutions generally is the dissolution of unincorporated partnerships. This exception is sensible, as technically a partnership dissolves each time a new partner leaves or is added. This would extend the scope of the legislation too widely, as many such partnerships would be going concerns. In the case of a partnership which is no longer trading, the insured would need to proceed against the individual partners.
The remainder of the draft regulations deal with ancillary matters. Regulations 5 and 6 amend Section 9 and paragraph 3 of Schedule 1 to the 2010 Act respectively. Section 9(3) and (7) of the 2010 Act provide that a third-party claimant does not have to satisfy a condition of the insurance policy regarding provision of information or assistance to the insurer by the insured if it cannot be fulfilled because the insured has died or is a body corporate which has been dissolved. Paragraph 3 of Schedule 1 to the 2010 Act gives a claimant the right to request information from officers, employees, insolvency practitioners or official receivers of a defunct body corporate, other than when the dissolved body has been restored or ordered to be restored to the register of companies. The draft regulations extend these two provisions to all dissolutions, other than those of unincorporated partnerships, irrespective of whether subsequent events result in the body in question being treated as if it is no longer dissolved or as if it had never been dissolved.
The reason for the wider application of these provisions as against the provisions relating to dissolved bodies inserted into the 2010 Act by Regulation 4 is that most such situations reversing a dissolution—for example, restoration to the register of companies—are temporary and unlikely to result in there being a person who is responsible and able, on behalf of the body in question, to assist the claimant by being able to fulfil the condition or to supply the information in relation to the liability.
Before I conclude, I should like to express my department’s thanks to all those who have contributed to the preparation of the draft regulations. It is not a simple matter, as I suspect noble Lords will concede. Insolvency law is fast moving and complicated. The Insolvency Service, the Accountant in Bankruptcy in Scotland and the Department of Enterprise, Trade and Investment in Northern Ireland have all made significant contributions to what has been a very difficult technical exercise. I am very grateful to them. I am also very grateful to the Commercial and Common Law Team at the Law Commission, which for most of the period in question was led by David Hertzell and Tammy Goriely, without whose expert knowledge and legal skills the draft regulations could not easily have been prepared. Finally, in a more general sense, I thank the Law Commission and the Scottish Law Commission for their continuing support for the reform of third parties legislation generally. I hope that in the not too distant future we shall be able to make that reform a reality.
In conclusion, the reforms to be introduced by the 2010 Act are supported by insurers and claimants alike. They apply to insurance of all kinds and will be particularly beneficial in cases of long-tail industrial diseases, such as mesothelioma. The approval of the draft regulations by your Lordships’ House will be widely welcomed and will be a key step on the way to the commencement of the 2010 Act.
I am afraid that I am not yet in a position to state when the Act will be brought fully into force, as the draft regulations remain subject to your Lordships’ approval and to approval in the other place. Nevertheless, I can say that, subject to allowing all parties affected no less than three months from the making of the regulations in which to prepare for commencement, the Government’s intention is to bring the 2010 Act, as amended by the 2015 Act and by what will then be the Third Parties (Rights against Insurers) Regulations 2016, into force as soon as reasonably practicable. I beg to move.
Lord Hope of Craighead (CB)
I am grateful to the Minister for his explanation and also for bringing this set of regulations forward for our consideration and for the House’s approval in due course. It is an extremely important area which I think anybody practising in the common-law field values very much. I have only one question and that is to ask for reassurance in relation to part of Regulation 3, which deals with the relevant bodies in insolvency or administration under sectoral legislation. This is an extremely sophisticated area of law and I join in the Minister’s congratulations to all those who have played a part in putting all this together.
A feature of the list of enactments set out in Schedule A1 is that all except the last deal with areas of regulation which are common to the United Kingdom, with the special provisions made in the case of Northern Ireland which are set out in the schedule. Aviation, energy, financial services, postal services and railways apply equally to Scotland as they do to England and Wales. But the question of water and sewerage has occurred to me, because Scotland, I believe, has its own legislation relating to sewers and water: there is the Water (Scotland) Act, the date of which escapes me, and I believe that there is a sewerage Act for Scotland as well.
I fear that without detailed research, which is beyond my resources at the moment, I am not sure whether the Scottish legislation provides for administration under a legislative scheme. I am fairly confident that the Water Industry Act 1991, referred to here, does not extend to Scotland. It may well be that those who have been looking at this in detail have reassured themselves that there is no need for a mention of the Scottish legislation, perhaps because it does not actually provide for this kind of administration. If that is right, of course I understand why there is no mention of those statutes, but it might be as well to be absolutely sure that there is not a gap here that ought to be plugged before the regulations are brought into force.
That aside, I regard this as a very fine piece of fine-tuning which I am sure will be greatly welcomed in order to avoid any further gaps in the valuable legislation.
Lord Bach (Lab)
My Lords, I, too, thank the Minister for his explanation of this statutory instrument. I confirm that it is not controversial in the slightest. We are happy to support it, as we supported, of course, the 2010 Bill as it went through Parliament. Indeed, I hope I may be forgiven for reminding the Grand Committee—it was some time ago now—that I was the Minister who took that Law Commission Bill through this House, using the special procedure. I was assisted then by an excellent team from the Ministry of Justice and I suspect—indeed, I am sure—that the Minister has been so assisted today.
The Minister will know that we on this side have many criticisms of much that the Ministry of Justice does these days, but in this area of complex but important law-making and law revision, we have nothing but praise. I have a couple of questions and comments for the Minister’s consideration, but they are brief.
The first point is about paragraph 8 of the Explanatory Memorandum, which deals with the consultation outcome. It says that the APIL and the ABI—the Association of Personal Injury Lawyers and the Association of British Insurers—have been consulted and are broadly content. The memorandum states:
“Both organisations expressed general approval of the Regulations”.
Is there a particular meaning to the word “general” in that particular context? I am pretty reassured that there is not, because I have a letter here from APIL itself, which suggests that it is happy with the regulations, but I wonder what the expression means in that context—probably nothing.
Prison Service: Trans Prisoners
Lord Hope of Craighead Excerpts(9 years, 2 months ago)
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Lord Faulks
The important thing is that there is no generalisation here. It is important to assess each individual prisoner according to the stage they are at and their particular case. It might be a diagnosis or they may have fully realised their gender transformation. That individual assessment is carried out by the Prison Service, involving the assistance of psychological services and healthcare experts. It is after that assessment that they should be assigned an appropriate part of a prison.
Lord Hope of Craighead (CB)
My Lords, can the Minister assure the House that the policies he just outlined apply in young offender institutions? I believe that Miss Thompson was 21 when she died and assume that she was in an adult prison, but I think it is common knowledge that people tend to become aware of their transgender nature when puberty emerges. Therefore, young offenders are particularly vulnerable and require particular care.
British Bill of Rights
Lord Hope of Craighead Excerpts(9 years, 3 months ago)
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Lord Faulks
There are no plans to leave the European Convention on Human Rights. My noble friend is correct to say that Conservatives had a significant role in drafting the convention. There are considerably more difficulties with the Strasbourg jurisprudence, rather than the convention itself.
Lord Hope of Craighead (CB)
My Lords, can the Minister tell us whether it is proposed to consult the devolved institutions, and if so, when that consultation will take place?
Lord Faulks
We will consult the devolved assemblies, because we are conscious of the intricate treaty arrangements that exist. We will do so thoroughly, and keep them well aware of all our plans.
Queen’s Speech
Lord Hope of Craighead Excerpts(9 years, 8 months ago)
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Lord Hope of Craighead (CB)
My Lords, I congratulate the noble Lord, Lord Dunlop, on his appointment to the House and on his speech, which I welcome. Perhaps I may say before he departs for a moment that I look forward very much to his contribution to our debates on the devolution issues that will be coming before the House in the next few months, especially those affecting Scotland. The reason for that is quite simple. The noble Lord’s expertise in this field will be greatly valued. The task of securing,
“a strong and lasting constitutional settlement”,
in the interests of the whole of the United Kingdom, to which the gracious Speech refers, will be a formidable one. It will not be easy to reconcile it with the restless demands for more powers to be devolved to Scotland which have been voiced by the third largest party in the other place. Only someone whose roots are as deep-seated in Scotland as his so obviously are can really appreciate the difficulties that a Government in Westminster will face in getting their message across to a suspicious public in Scotland. One cannot ignore the fact that so many voted in favour of a party whose ultimate aim is diametrically opposed to the lasting settlement that the Government seek to achieve.
There are of course many people in Scotland—the majority, indeed, as the result of the referendum showed—who support the one-nation approach. They very much wish to see the bringing together of the different parts of our country in the way the gracious Speech refers to, not just by promoting economic stability in the interests of all sections of society but by achieving a constitutional settlement which will be as strong and lasting as such a thing can ever be in a modern, socially aware democracy. But a very large question mark hangs over this declaration of the Government’s policy. How is this to be done? How are the people of Scotland, on whose views the holding together of the union will ultimately depend, to be persuaded that the Government’s policy is the right one? How are they to be persuaded that the recommendations of the Smith commission are being honoured in full when the Scottish National Party continues to assert that they are not? For my part, I do not think that legislation alone is the answer. Something more needs to be done, and I look forward very much to the efforts that the noble Lord will undoubtedly make in getting the message across.
Of course, this is not the time to look in detail at the Scotland Bill which has just been introduced in the House of Commons. At first glance, it is an impressive piece of work, extending to 64 clauses and two schedules. It will require a great deal of detailed scrutiny if everyone is to be satisfied that it gives full effect to the agreement set out in the Smith commission’s report. Of course, much of that scrutiny will take place in this House, as that is the way this Parliament works. I cannot help thinking therefore—the noble Lord touched on this point in his speech—that it is a pity that the SNP has set its face against nominating members of the party to sit here in this House. As the noble Lord knows only too well in view of the criticisms that were made of his appointment—I am not referring to the matter than the noble and learned Lord, Lord Falconer of Thoroton, referred to, but to a quite different point—opposition to the House of Lords is one of the SNP’s great remaining totems, as one commentator put it in a Sunday newspaper a few days ago. Reports by the House’s Constitution Committee, so ably chaired by the noble Lord, Lord Lang of Monkton, are routinely rubbished by the party’s propaganda machine, simply on the ground that this House is made up of Peers who are not elected. The simple fact is that they see this House as an affront to democracy. However, the fact is that this House exists and it does much valuable work. If the SNP wishes to make a serious contribution to what is being done in this Parliament as a whole, and to the scrutiny of this Bill in particular, has the time not come for it to think again—to follow the words of the famous song which is sung at rugby matches? Has the time not come for it to study what the House really does and to appreciate that the party needs to contribute to what goes on here if the arguments that it wishes to put forward are to be considered in detail, as they no doubt deserve to be?
That brings me to the other point, the proposal for a British Bill of Rights. There are many reasons for expressing concern about this idea, as well as grounds for relief that the Government have decided to refrain from legislating until further work has been done. I would simply make two points. The first is how one is to address the question of whether the enactment of a British Bill of Rights would be compatible with the devolution settlements with Scotland, Wales and Northern Ireland. I took part in a debate on the devolution statutes, a couple of decades ago I think. When legislative and executive power was being devolved, I recall that great care was taken to prohibit the devolved institutions from legislating or exercising functions in a way that was incompatible with the convention rights or with Community law. As I understood it, the reason was that it was thought necessary that this country should adhere to the treaty obligations in these two respects. Those obligations include, as the noble and learned Lord, Lord Mackay of Clashfern mentioned, the obligation under Article 46 of the European convention to abide by the final judgment of the European Court in any case to which this country is a party. It was thought, quite simply, that it was the responsibility of this Parliament to ensure that these obligations were respected in full when devolving legislative and executive power to others. One cannot be surprised about the opposition that is being voiced by the party in Scotland to the idea that the Human Rights Act should be departed from.
There is a real question here which I would like to draw attention to. It is being suggested in some quarters that the Scottish Parliament will have a veto on any alteration of the Human Rights Act as it affects Scotland under the Sewel convention, which is to be made formally part of legislation by the Scotland Bill. For my part, I rather doubt whether that argument is sound because the two crucial sections—Sections 29 and 57—which contain the prohibitions are not devolved. There is nothing, I think, in the Scotland Bill that is to come before us which will devolve those crucial sections either. As I understand the structure of the Act, those sections are deliberately reserved matters that are in the hands of this Parliament. I think that the argument that there is a veto in the hands of the Scottish Parliament is misconceived but that is merely my opinion and I ask the Minister to pay careful attention to this because there will certainly be a challenge when the point comes, if it is to come.
The other point is that I suggest that the Government need to recognise the extent to which the convention rights are so deeply embedded in our law as a result of decisions taken both by this House in its judicial capacity and by the United Kingdom Supreme Court since those days. Respect for those rights is firmly established in our jurisprudence and all the comparative work that has gone into it. To get rid of all of that is rather like trying to get rid of Japanese knotweed, which we hear about at Question Time. It will be as difficult and therefore one does wonder whether all the effort that is going into this is really worth it. I rather support the point made by the noble Lord, Lord McNally, that once one recognises the reality and also respects the convention, which I understand the Prime Minister now to favour, the problems are more imaginary than real, and one should be real about it and address the issue in that way.
Property Boundaries
Lord Hope of Craighead Excerpts(10 years, 1 month ago)
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Lord Hope of Craighead (CB)
My Lords, I begin by congratulating the noble Earl on securing this debate. I put my name down to speak because the issue he has raised is quite an important one and deserves to be broadened out a bit from the original list of speakers, which until recently was only three. Having looked more closely at the subject over the past two or three days, I am not sure that I am all that well qualified to express an opinion on the point. My background is that of a lawyer rather than a surveyor, and in this debate we are talking about English law, while my training and experience is largely in Scots law. One thing I learnt when I came south was that Scots law and English law differ most fundamentally of all in the area of property law, and it is very difficult for a Scots lawyer to understand the details, let alone the structure, of the way in which English property law operates.
However, I encountered quite a number of boundary disputes when I was in practice at the Bar in Scotland, and even one or two when I was sitting as a Law Lord here in this House and was introduced to, among other things, the wonderful presumption known as the hedge and ditch presumption, which I very much enjoyed examining. I also encountered a number of surveyors during the course of my practice, as a result of which I should say that I have a great deal of respect for the noble Earl’s profession. There were many cases on which we worked together as a team, although it is fair to say that they were largely in the area of valuation for rating rather than surveying in the more strict sense.
We are not being asked to consider the law of Scotland today, and in any case I am quite sure that the Minister would not wish to comment on it since it is a devolved matter. However, it may be of interest if I sketch in a little the way that issues are apt to arise in that jurisdiction. It does tend to show that the problem here in England and Wales is much more acute than it is under the system I was used to in Scotland, and that underlines the importance of the issue raised by the noble Earl.
Scotland has had a system of recording land tenure in a public register called the Sasine Register since the early 17th century. There were attempts to create a register earlier than that, but the position today is that for well over 300 years, every single property in the country has been the subject of a recorded title, or more accurately, a registered title, which can be examined by every member of the public on payment of a suitable fee. It is in the course of being replaced by a modernised system of registration of title, but the Sasine Register still exists and it is the source from which the relevant information can be derived when moving to the new system. There is a complete account of all deeds, which enables anyone to identify the extent of ownership of any holder of land, and includes all deeds which affect the security of land—the title to the land—that is, deeds which are in the form of security for debt, deeds that record rights of way, and what in Scotland are called servitude and England easements. Everything that affects a title has to go on to the register to be effective at all. It is therefore a very complete record of the present situation of any landowner’s title.
Every title that is put on to the register has to have a description. For a long time the practice has been to describe the property that goes on to the register by reference to boundaries. The early deeds did that by reference to natural features such as walls and gables. Occasionally resort was made to plans, which were always described as taxative—in other words, they were made to be definitive as to the extent of the title. Once a title containing the information had been registered, the titles that derived from it simply tended to refer back to the original deed, so that in practice one has to search the register quite diligently to find out the limits of where the property lie. The result is that from time to time mistakes occur. Someone sets out to design a new definition, but has not correctly recorded what was in the earlier deeds from which the title is derived. It is in that kind of situation that a boundary dispute arises.
Where mistakes of that kind arise there are two kinds of problems. First, there is the problem of searching the register and understanding how the titles have been defined. To some extent that is a task for a lawyer, given that a lot of work is being done through titles, which only lawyers can really understand. It may be that measurements and things of that kind are needed, for which a surveyor might be used. However, there is another aspect of this: in Scotland it is called positive prescription. The noble Earl referred to adverse possession and it is the same concept. If somebody has occupied land without objection for 10 years—“nec vi, nec clam, nec precario” is the Latin phrase—he has an absolute right to remain in possession, even if the description in his title conflicts with his neighbour and the neighbour can show that actually he ought to have been able to occupy that land himself. If he does not take the initiative within the 10 years, he loses the right to do so. In that sort of situation very difficult issues of fact may arise. The question is whether the present possession has been adverse for the necessary period, and in that situation a surveyor, frankly, is not the person to whom one would turn. It would probably be a solicitor instructing a member of the Bar to prepare and argue the case all the way through. Therefore the situation is quite complex. In Scotland, these issues can arise in various forms, but the basic situation is one of a complete register of all the land and we therefore do not have the problem that arises in England—and, no doubt, in Wales—where a substantial amount of property is not on the register at all.
What about England and Wales? My noble and learned friend Lord Brown of Eaton-under-Heywood said to me this morning that the courts would be quite delighted were Mr Elphicke’s draft Bill to be enacted and the courts were relieved of the heavy responsibility, which he described, of having to deal with these cases. My own experience as an advocate was that these cases were really quite enjoyable and therefore I would be rather sad to see them go. There is a difference of view between counsel and the judge. However, I am not absolutely sure that the situation is quite as easy as the draft Bill is suggesting or that the public would be well served if the law were to be reformed in the way that it proposes.
I stress that I do not for a moment doubt that there is a problem. Indeed, since the pattern of land-holding in England and Wales is much less neat and accessible than it is in Scotland, the problem is indeed acute. But my impression is that the Land Registry does an excellent job. Having studied its website, it offers much helpful advice and guidance for people who find themselves in dispute, which they would be well advised to follow. There is the right that everyone has, under Section 73 of the 2003 Act, to object to an application for registration. If there is an objection, there is a tribunal to which the matter can go. No doubt, it will take many decades before the system can settle down to the extent that it has in Scotland; nevertheless, the Land Registry is there to improve the situation and assist the public, as I have attempted to describe.
My main point is that I am not entirely convinced that making it compulsory for every such dispute to be resolved by reference to a panel of surveyors and excluding the courts entirely—as I think the draft Bill seeks to do—is either necessary or desirable. There will be cases where the title deeds alone will provide the answer and it may be that agreements can be reached; but I am not entirely sure that understanding these deeds is within the exclusive competence of a surveyor. There is then the problem of how to deal with other evidence about the way the property has been used, which may be hotly disputed and requires analysis, presentation of evidence, cross-examination of witnesses and so on. There is also the matter of adverse possession, which could raise very difficult issues.
While I am absolutely sure that the noble Earl has raised some interesting and important issues, I am not sure that the suggested solution is the right one. I look forward very much to what the Minister has to say in his reply and, in due course, to reading the scoping study that has appeared on my BlackBerry, but which I have not yet had a chance to read.
Social Action, Responsibility and Heroism Bill
Lord Hope of Craighead Excerpts(10 years, 2 months ago)
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Lord Blair of Boughton (CB)
My Lords, I spoke in Committee in support of the noble and learned Lord, Lord Lloyd, and I am not going to repeat what I said then. I might take issue with the noble Lord, Lord Hodgson, about this matter being discussed in the silent halls of the Middle Temple. If you give ordinary police officers, firemen and ambulance crews two sets of words about the same thing, you are going to cause a lot of confusion a long way before it gets to the Middle Temple.
In the gap since we spoke about this in Committee, this law has achieved something that I have not seen in this House before. I know I have not been here that long, but I have never heard of a particular statute being used as an example in another discussion altogether when it has not even been passed. In the debate put forward on 4 December by the noble Lord, Lord Foulkes of Cumnock, about the procedures and practices of the House, this Bill got not just one but two mentions. It was mentioned by the noble Lord, Lord Butler, who is in his place next to me, and by the noble Lord, Lord Dykes. The noble Lord, Lord Butler, said that,
“we might be saved from legislation such as the absurd Social Action, Responsibility and Heroism Bill”.—[Official Report, 4/12/14; col. 1495.]
Later, the Bill was described as,
“a badly drafted, silly Bill that is all to do with ‘manifesto-itis’ rather than any deep legislative urge on behalf of the Executive”.—[Official Report, 4/12/14; col. 1499.]
I do not think we should proceed with this matter.
Lord Hope of Craighead (CB)
My Lords, perhaps I may return briefly to the point that I made in Committee, which is directed to the point made by the noble Lord, Lord Hodgson, about the solicitor advising—no doubt—an employer. The problem to which I drew attention was where somebody such as a fireman, police officer or some other person in the emergency services wanted to take the kind of action for the benefit of society that is talked about in Clause 2, but his superior officers said, “No, you can’t, because if you do that, my organisation is liable to be sued”.
My point is that Section 1 of the previous statute deals with outcomes and separates the outcome from the person who is being sued. The problem with this Bill is that it links irrevocably and inextricably the person who is being sued with the person who is acting. With great respect to the noble and learned Lord, Lord Lloyd of Berwick, I do not think that this clause and the section deal with precisely the same thing. I think that this is a much narrower clause, dealing with a particular part of the subject. Therefore, it just adds to confusion when we have an existing piece of legislation which covers all the aspects and is perfectly serviceable to then come along with something which covers only part of it.
When the Minister replies, I hope that he will say why the Government have not taken the opportunity to broaden this clause so that it covers precisely the same ground as the existing legislation, because to have two pieces of legislation, one half-baked and one dealing with the whole thing, just adds to confusion. It is a great shame to be invited to pass a measure of that kind.
Lord Elystan-Morgan (CB)
My Lords, the noble Lord, Lord Hodgson, with great force and fervour, invites the House to consider that a silver bullet from this place and the other place is perhaps not a bad thing at all. That may well be so, and both Houses are entitled to fire silver bullets by way of resolutions, debates and in a number of other ways, but not in their legislative capacity. That is really all that this issue is about.
There are only three areas of law—or at least there used to be when I was a law student a very long time ago—statute, common law and custom. If a statute is to have any purpose or meaning at all, it has to change to some extent one at least of those three areas. Custom can be left out of it; it is agreed universally that it does not change the content of a statute by one hair’s breadth. There was, I think, some dubiety in Committee about common law, but I honestly think that that is answered by a long-standing principle in our law—namely, that a statute to change the common law has to say so expressly on the face of it and to make it clear beyond peradventure or doubt that that is happening: otherwise, there is a presumption that the common law is not changed. I should have brought Maxwell’s Interpretation of Statutes along with me but I am sure that the Minister will accept that that is still a fundamental principle of our law. The right to legislate is a sovereign right and privilege to be used sparingly. It is not to be used for propaganda purposes.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I, too, support this amendment. The Bill as a whole is manifestly directed—all the earlier debates have indicated this—to encouraging people to volunteer and take part in generally beneficial activities. As the noble Lord, Lord Beecham, made plain, this clause would apply if you have a claim against your accountant. Perhaps he is a wonderful accountant and has looked after everybody else enormously skilfully over the years, but on this particular occasion when he is looking after your affairs, Homer nods, falls fast asleep and costs you an enormous amount of money, for whatever reason—perhaps he was going through a messy divorce at the time. He is insured. Is it really to be suggested that what he has done for everybody else is relevant and can deprive you of your claim? It is absurd.
Lord Hope of Craighead
My Lords, another feature of this clause occurs to me: how one is supposed to apply it when the issue of contributory negligence comes up. This is one of the problems that the court must have regard to, but we are not told in this very brief provision to what purpose one is examining. I assume that it is whether the individual or body concerned is liable at all, but assuming it is liable, how does one apply it in the context of contributory negligence? I do not believe that that aspect has been thought through at all.
Lord Faulks
My Lords, we have had the pleasure of a short but informative debate this afternoon. The criticism of Clause 2 was that it did not change the law and therefore was not desirable, but the criticism of Clause 3 is that it does change the law—so I will approach the Bill in a rather different way.
The amendment in the name of the noble Lord, Lord Beecham, would remove Clause 3 from the Bill entirely. I would like to explain to the House why I believe that it is important for the clause to remain part of the Bill. It provides that a court, when considering a claim for negligence or breach of a relevant statutory duty, such as, for example, under the Occupiers’ Liability Act, must have regard to whether the defendant, in carrying out the activity in which the alleged negligence or breach occurred, demonstrated a “generally”—I put that word for the moment in inverted commas—responsible approach towards protecting the safety or other interests of others.
The core aim underlying this clause, and the Bill as a whole, is to provide reassurance to ordinary, hard-working people who have adopted such an approach towards the safety or other interests of others during the course of an activity, that the courts will always take this into account in the event that something goes wrong and they are sued. As well as providing that reassurance, we hope that this will also give them greater confidence in standing up to those who try to bring opportunistic and speculative claims by showing them that the law is on their side.
As I explained at Second Reading and in Committee, we believe that concerns that the clause might in some way undermine the rights of employees and others to bring a negligence claim are unfounded. There is nothing in Clause 3, or in the Bill more generally, which will prevent somebody who has been injured bringing a claim or which will prevent the court finding an employer or any other defendant negligent if the circumstances of the case warrant it.
In addition, the focus of the clause is on whether a generally responsible approach was adopted in the course of the activity—so that we are not looking, as the noble and learned Lord, Lord Woolf, suggested, at the whole of the behaviour in other circumstances or in relation to some other activity—in which it is alleged that the negligence occurred. It will not therefore enable a body with a slipshod approach to safety to escape liability by pointing to its health and safety record over a longer period of time. If its actions during the course of the activity in question were so risky or careless as to be negligent, it can still be found liable.
The need for this measure is amply illustrated by the evidence that was provided in support of the Bill during its passage through the House of Commons. I have referred to evidence from voluntary organisations that concerns over liability continue to represent a real disincentive, preventing many people getting involved in socially worthwhile activities. Evidence provided by the emergency services also illustrated the propensity of some people involved in accidents to bring opportunistic and, frankly, spurious claims, such as the example we have previously discussed provided by the Cheshire Fire & Rescue Service.
Lord Faulks
I respectfully disagree with that interpretation because it is concerned with the activity in question,
“in the course of which the alleged negligence or breach of statutory duty occurred”.
It would not, therefore, deal with the 99 years of accurate tax returns but would focus on the particular tax return that is the subject of the claim in negligence. That is the correct interpretation of the particular clause.
I will answer the question that I hear from a sedentary position: how do we deal with the question of “generally”? My answer to that is that the “generally responsible” approach is directed at the activity in question. It is difficult to see, frankly, that it would have much of an application on the hypothetically negligent accountant—
Lord Faulks
Perhaps I may finish answering this question before I answer the next one. The hypothetically negligent accountant—if he or she has made a negligent error—is going to be liable. This is not going to add anything to that position. It would be no good for them to say, “In the 99 other years in which I did this particular act, I did a good job”, because that just would not bite on this. It does not seem to me that it is very likely that, on the particular hypothesis that the noble and learned Lord put forward, it would have any application.
Lord Hope of Craighead
I am grateful to the Minister for giving way. I wonder whether the Minister could be more precise. He talked about the activity in question, but surely Clause 3 has to be read in the light of Clause 1. The whole of this brief Bill is introduced by Clause 1, which tells us:
“This Act applies when a court … is determining the steps that the person was required to take to meet a standard of care”.
Surely one needs to be very precise if one is to understand Clause 3; it is talking about the steps that the person was required to take. It may be that the court is saying, “Well, I am not going to find that the defendant was bound to take that step because I am applying Clause 3”. It is either yes or no, I would have thought. Using the phrase, “activity in question” is far too general. If it is to mean anything, it has to be precisely focused on what Clause 1 is talking about, and the rest will then follow—rightly or wrongly.
Lord Faulks
Clause 1, in answer to the noble and learned Lord, is describing the scope of the Act, saying that it applies when a court,
“in considering a claim that a person was negligent or in breach of a statutory duty, is determining the steps that the person was required to take to meet a standard of care”.
It then gives, in the three clauses that we are considering this afternoon, three different factors that should be taken into account—or rather, it says that the court must “have regard” to them. Clause 1 is very much scene setting. However, to turn the argument on its head: if, for example, Clause 3 did not have the expression,
“in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred”,
the argument might be stronger, because it could be said that the court must have regard to a generally responsible approach towards protecting the safety of others. Then it could be argued that this is invoking somebody saying “I am normally a conscientious surgeon”, or “I normally look after people in the factory”. However, the very fact that those words are inserted is focusing the court’s attention on the particular activity in question. With respect, therefore, that is my answer to that question.
I submit, of course, that this makes a modest and sensible change, but it is important to bear in mind that the court is only invited to “have regard” to it. If the court thinks that, frankly, notwithstanding a generally or predominantly responsible approach, this particular failure—if such there be—is not acceptable, it will decide on normal principles that there has been a breach.
Social Action, Responsibility and Heroism Bill
Lord Hope of Craighead Excerpts(10 years, 2 months ago)
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Lord Blair of Boughton (CB)
My Lords, I find myself very surprised to be supporting the Motion, if that is the right term, of the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Pannick, but I do. I am surprised because, although I am broadly in sympathy with what the noble Lord, Lord Hodgson, has been saying, I think this piece of legislation is, frankly, a lousy way to do it.
Most years I would take part in a little-known ceremony called the Provincial Police Award, which is for the greatest act of heroism by a member of the public. This is what happens when a member of the public sees a red mist and goes for the armed robbers. It is fantastic. The award could actually be called the Unluckiest Robber of the Year Award, which would be a more accurate term. Having said that, we know how difficult it is to legislate in this field. I was involved in a number of the cases concerned with health and safety legislation and the police and the fire service. Those cases were extraordinarily difficult. After a number of pretty climactic events, we ended up in long, detailed and creative discussions with the Health and Safety Executive about the right way to deal with issues which affect not only members of the public, but also the individuals who work for these services. Can they climb ladders? Can a sergeant order somebody to climb a ladder? Can they dive into rivers? It needs really detailed work. What this clause does is smooth over all that with a series of words that have very little meaning in relation to the detail.
The noble Lord, Lord Pannick, talked about the Bee Gees. In my view, what the Government are attempting here is more like Don Quixote and Sancho Panza: they are riding along and tilting at windmills.
Lord Hope of Craighead (CB)
My Lords, I am troubled by this clause for a reason related to the two speeches that have been just been made. I can express it in a slightly different way.
There was a tragic incident in Scotland a few years ago where a young woman had been walking in the country and fell down a hole, which I think had been created by old mine workings, and she could not get out. The fire brigade was summoned and its officers were prepared to go down the hole and rescue her, which they had to do because I think she was injured and could not use a rope or a ladder. They were perfectly willing to help her, and you might say that that was an act of heroism of the kind that Clause 4 is asking us to think about. But the fireman who really wanted to go was ordered not to do so by his superior officer, no doubt for reasons of health and safety. Unfortunately, the woman died of hypothermia because by the time the appropriate equipment, which the person who was prepared to go down was happy to dispense with, reached the site, it was too late.
The case caused great concern in Scotland. I know that it is a Scottish case which did not occur in this jurisdiction, but it is an example of something that I do not believe this Bill deals with. It is an example of the way in which the Bill has not been properly thought through. I think that there is a real problem for employers who are contemplating health and safety legislation and thinking not so much about themselves as their liability. It may be vicarious liability, which I understand the Minister is not interested in, or it may be a direct liability for something they failed to do to protect an officer who is himself injured or killed. It is a great shame that all these clauses have not faced up to that.
That is due partly to the wording of Clauses 1, 2 and 4, which concentrate on an individual who is described as “a person” and “the person”. It is feature of this Bill that one is asked to think of the same person all the way through; in other words, the person who is said to be negligent or in breach of statutory duty is the same person that you are supposed to be thinking of when you contemplate whether they were acting heroically. In the example I am talking about, the person who was at risk of being sued, or thought that his organisation was at risk of being sued, was not the person who was acting heroically. Therefore, Clause 4 in particular—and, I suspect, Clause 2 as well—misses the real target where the most difficult problem in dealing with these situations arises.
Funnily enough, if you look carefully at Section 1 of the Compensation Act 2006, you see that it does not create that problem because it does not use such precise language; rather, it is framed in a general way that covers the kind of situation I am talking about. One is not asked to be so precise in looking at the person who is undertaking particular acts or is prepared to do so.
For those reasons, I am deeply troubled by Clauses 2 and 4. I really do not think that they have been framed in a way that meets the full range of cases, in particular cases where employers instruct those who are prepared to do these things not to do them. It is not quite the same as the example in Oxford, but I suspect that it is not far removed. Perhaps the noble Lord, Lord Blair, can think of examples where police forces have suffered exactly the same problems. It is a great shame that the Government have not thought this through, faced up to the real problem, and addressed it in a proper way.
Lord Aberdare (CB)
My Lords, I will speak to my Amendment 11 as well as to Amendments 8, 10, 12 and 14 in this group. I remind your Lordships of my interests as a trustee of St John Cymru Wales and as a vice-president of the First Aid All-Party Parliamentary Group.
As I indicated at Second Reading, the leading first aid organisations including St John Ambulance and the British Red Cross welcome the Bill in principle. Anything that serves to reduce or overcome people’s reluctance to step forward to provide assistance in emergency situations has to be good news. It can, as we have heard, be argued what actual difference the Bill makes to the law as it stands. However, if there is a perception that it removes the likelihood of people being sued after trying to give life-saving assistance in an emergency, and if people believe that the Bill gives them some extra protection, that in itself is worth having.
My concern is that Clause 4 as it stands is not seen by the leading first aid organisations as giving that reassurance. We know from the research I quoted at Second Reading that the people most likely to help in an emergency are those who have actually received first aid training. So these potential life-savers go along to their first aid courses, where they are taught to:
“Protect yourself and any casualties from danger—never put yourself at risk”.
I quote from the standard First Aid Manual. During their training, they may well ask, “If I take action to provide first-aid assistance in an emergency, can I be confident that I will not subsequently be sued if something goes wrong?”. To which the answer from the first aid training body would have to be, “As long as you act without regard to your own safety or other interests, you should have protection under this law; but we recommend that you should consider your own safety before acting, in which case this law would not seem to help you”. I suggest this would be more than a little confusing and unlikely to provide the reassurance which the Minister has emphasised several times is the object of this Bill.
I thank the Minister for copying me on his letter to the noble Lord, Lord Beecham, and I welcome his confirmation in that letter of the Government’s desire to encourage first aid and his recognition of the concerns of St John Ambulance and others. He also states that the Government will, quite rightly, work with voluntary organisations and other bodies during implementation phases to ensure that the Bill’s contents are brought to the attention of all those with whom they engage. In that case it would seem rather important that those bodies should themselves see the wording of the Bill as helpful to their own concerns.
Let me briefly cite some examples, provided by the British Red Cross and St John Ambulance, of how Clause 4 might affect the actions of a potential life-saver. First, I shall give two examples of heroic actions for which Clause 4 as it stands would seem to offer no reassurance at all. If a person has fallen off a ladder and is lying unconscious on their back, a responder might be afraid of moving them because of the risk of causing damage to their back or neck. Leaving them on their back could cause them to die from a blocked airway, often described as swallowing one’s tongue, so the heroic act would be to move them on to their side in the recovery position, with an open airway, even if this might cause other injury. Similarly, a responder may be concerned about causing injury through giving CPR—particularly if it might subsequently turn out to have been unnecessary because the person’s heart had not actually stopped. CPR requires quite forceful pressure on a casualty’s chest, which may result in injury such as broken ribs. Again, inaction could have much more severe, possibly fatal, consequences than unnecessary action. I cannot see that the wording of Clause 4 offers any reassurance at all in these instances.
I will look at situations more specifically covered by the wording of Clause 4. If someone has been electrocuted and a first aider rushes into action without considering whether the power source is still live and the casualty still in contact with it, he or she might well be acting heroically, but is likely to make the situation worse, with two casualties instead of one. We often hear of people plunging into cold or fast-flowing water to try to rescue someone in difficulties, only to end up drowning themselves, or suffering a cardiac arrest from the shock of sudden immersion in cold water, when they may have been able to help more effectively from the shore. Yet this is the sort of rash and unreasonable action that the wording of Clause 4 might seem to envisage, if not encourage.
There are a number of options before noble Lords to improve this part of the Bill and ensure it sends a clear, positive and unambiguous message to potential life-savers and, of course, to those who train them. Amendment 10 from the noble Lord, Lord Pannick, simply removes the unsatisfactory wording from the end of Clause 4. Amendments 8, 12 and 14 from the noble Earl, Lord Attlee, improve on this by replacing these words with the phrase “and without acting perversely”, which is defined in terms of how a reasonable person would act in the circumstances. My own Amendment 11—which needless to say is the one I recommend to your Lordships—replaces the same words with the phrase,
“and was acting reasonably and with a public-spirited intention”.
Any of these three options would improve the Bill; better still, of course, would be for the Government themselves to come up at a later stage with a form of words to define the sort of behaviour that is both heroic and consistent with good first aid practice, in order to give real reassurance to potential life-savers that they are unlikely to be successfully prosecuted if they act in a way that is reasonable and public-spirited, as well as heroic.
Lord Hope of Craighead
My Lords, I am in the happy position of not having my name to any of the amendments and therefore can offer such thoughts as might be useful as to which of them is to be preferred. I support a lot of what the noble Lord, Lord Aberdare, has said about the wording as it stands at the end of Clause 4 but I prefer the simplicity of the amendment from the noble Lord, Lord Pannick. The more you qualify the proposition that ends with,
“to assist an individual in danger”,
the more you open up the possibility of argument. The simpler the message, the better. The message is well conveyed by stopping at “danger” without introducing these complications and therefore I support the amendment from the noble Lord, Lord Pannick.