Civil Liability Bill [HL]

Debate between Lord Mackay of Clashfern and Lord Faulks

Committee: 2nd sitting (Hansard): House of Lords
Tuesday 15th May 2018 Lords Chamber

[Lord Faulks]

My Lords, the question of whether this should be a political decision or one taken by the panel is difficult. I thought carefully about this, as I am sure other noble Lords did. Ultimately, I respectfully submit that it should be a political decision taken by the Lord Chancellor. Of course, that decision will be critically informed by what the panel tells him or her. The provisions in the Bill provide that, when a Lord Chancellor makes a rate determination, he or she must,

“give reasons for the rate determination made, and … publish such information about the response of the expert panel established for the review as the Lord Chancellor thinks appropriate”.

My noble and learned friend will correct me if I am wrong, but, if the Lord Chancellor were to take a perverse view, ignoring all the advice or not giving sufficient reasons for it, he or she would potentially be liable for judicial review. Ultimately on the question of accountability, this is a political decision and a politician should be answerable for it.

Of course I yield to no one in my admiration for doctors—we have a number of distinguished doctors in your Lordships’ House, and they are the experts who can assist the House on questions of life expectation. However, with great respect, that is not quite the question that the panel is there to answer; it is there to answer the question of yield for investment having regard to an investor of reasonably cautious nature. While some doctors might have a view about this, I am not sure that questions of life expectation have anything to do with what is essentially an actuarial or financial calculation. Therefore, I am afraid that I am unable to support that suggestion.

[Lord Mackay of Clashfern]

My Lords, the Act which this Bill amends gave the Lord Chancellor this power. I suppose that, at that time, the Lord Chancellor had intimate relations with the judiciary—but he also had the responsibility of accounting to Parliament if there was a question about the matter. The connection between the Lord Chancellor and the judiciary has somewhat diminished since that time, but the Lord Chancellor still has a primary duty in relation to the judiciary that other members of the Government do not.

It is also important to have accountability in this matter. As my noble friend has just said, if the Lord Chancellor ignored the advice of the panel, he might have good reason for doing so, but it would be very difficult for him to explain it, because one would assume in this case that he or she would accept the judgment of the panel and he or she would be answerable to Parliament.

I share my noble friend Lord Faulks’s difficulty in relation to medical help. It is for the judge to decide on the length of time or the nature of the requirements for care, treatment and so on that a person may have. This particular exercise is primarily for those expert in the matter of investment.

I have perhaps interpreted the new schedule to which the amendment applies rather too generously. I assumed that there would be different rates of return fixed for different classes of case and that it might therefore be possible to change them on review—for example, to have no rate of return for a particular class or to enlarge the class that another rate of return applied to. It would be extraordinary if one could abolish this duty by the exercise of paragraph 8(2)(a). I do not think that that was intended—but my noble and learned friend may say that it was.

Right to Die

Debate between Lord Mackay of Clashfern and Lord Faulks

Thursday 14th July 2016 Lords Chamber

[Lord Faulks]

The terms of the European Union Referendum Act were much debated in this House and, no doubt, they will continue to be debated. As to polls, I am aware of the poll to which the noble Lord referred. There are other polls and views differ, as he is well aware.

[Lord Mackay of Clashfern (Con)]

My Lords, does the Minister remember that, in the evidence which was given to the Select Committee that looked into this for the House years ago, one of the witnesses said that the last thing he would like to be is in a place where public opinion determined the law?

[Lord Faulks]

It is a matter for Parliament. No doubt the expertise in this House and the House of Commons can be brought to bear on these issues.

Prison Safety

Debate between Lord Mackay of Clashfern and Lord Faulks

Tuesday 3rd May 2016 Lords Chamber

[Lord Faulks]

All prisons, whether remand prisons or others, should have in place appropriate procedures for supporting prisoners in that condition. There should be appropriate arrangements for palliative care. Prisoners should have contact with their families and they should be advised, where necessary, of the possibility of compassionate release—either permanent release or release for particular events. This is a matter of importance and I will be sure to convey the noble Baroness’s concern.

[Lord Mackay of Clashfern (Con)]

My Lords, would it not be a suitable idea to ensure that any young person coming into custody has a single officer in the Prison Service responsible for his or her welfare? This was a very important and useful proposal, and I gather the Government have not yet accepted it.

[Lord Faulks]

I think my noble and learned friend refers to one of the recommendations from the Harris review, which concerned suicide and self-harm by those aged between 18 and 24. The Government have not rejected this as a proposal. They understand the necessity of continuity of accountability, but are not yet convinced that that can be best represented by a single person. However, what lies behind the recommendation is of course important and should be reflected in the Government’s policy.

Legal Aid, Sentencing and Punishment of Offenders Act 2012

Debate between Lord Mackay of Clashfern and Lord Faulks

Wednesday 10th June 2015 Lords Chamber

[Lord Faulks]

No. Of course litigants in person provide challenges. There are a number of strategies, which I have told the House about before, to enable them better to access justice. We remain alert to try to improve those as far as possible.

[Lord Mackay of Clashfern (Con)]

Is the Minister able to say whether the advice centres that are available to people of all means are sufficiently active to deal with the problems that may or may not arise out of the LASPO Act but, in any case, may require a degree of knowledge of social security legislation which not all lawyers possess but which are very much concentrated in advice centres? Is that not a better way of dealing with this problem than the old system of individual legal advice from individual lawyers?

[Lord Faulks]

My noble and learned friend makes a good friend—I mean, a good point: he is a good friend. We have given significant sums to various bodies: £16.8 million to the advice services fund, £107 million to the transitional fund launched in 2010 and £68 million to the advice service transitional fund. It is important that advice is accessed via these means, and I entirely agree that much assistance can be derived thereby.

Court Fees

Debate between Lord Mackay of Clashfern and Lord Faulks

Thursday 26th February 2015 Lords Chamber

[Lord Faulks]

On the general point, there was reference in both questions to the Global Law Summit. Many pooh-poohed this enterprise, which noble Lords may now realise attracted more than 2,000 delegates, more than 100 Ministers of Justice and Attorneys-General and representatives of more than 100 countries, all of whom came to celebrate our heritage of the rule of law. I remain an adherent to that, as I am sure other noble Lords are. Nothing about the contents of that conference in any way derogated from that principle.

As to the more specific point, there are different provisions depending on the size of the claim. As the noble Lord will know, court fees usually form a small part of the overall bill compared with lawyers’ fees, which tend to be much higher. We do not believe that the increased court fees will act as a significant inhibition on claims.

[Lord Mackay of Clashfern (Con)]

My Lords, in my time, the consent of the heads of division was required to achieve an order for court fees. That requirement has since been removed, with the result that the heads of division are now no longer in complete control, as they were then. Notwithstanding that, I was successfully judicially reviewed in a court fees order that had the consent of all the heads of division. That could also happen. What is the purpose of dealing with this matter in a way that does not require the consent of the heads of division? I assume that the Government have answered the consultation. Does the Minister have the answer ready to hand?

[Lord Faulks]

My noble and learned friend will know that there were two consultations regarding these proposed enhanced fees, in which the judiciary’s comments were fully taken on board by the Government and certain modifications were made to the original proposals. However, ultimately, the question of fees and the cost of the courts is a matter for the Government to decide.

Divorce: Effect on Children

Debate between Lord Mackay of Clashfern and Lord Faulks

Wednesday 26th November 2014 Lords Chamber

[Lord Faulks]

I am afraid that I am not briefed on the precise matters that the noble Lord has referred me to. Of course, the Resolution report referred to by the noble Baroness emphasises the various problems that are occasioned to children on divorce; they are well known, but they are helpfully emphasised in that report, and the Government are considering its consequences very carefully.

[Lord Mackay of Clashfern (Con)]

Would it not be helpful to divorcing couples to have a framework of the resources that should be allocated, with power in the court—if it went to court—to depart from that at the judge’s discretion? We could have a framework from which the parties would start as a way of settling their dispute, rather than coming into a situation where there were no rules at all and the question was completely open. Surely, it would help to restrict the question a bit if a framework existed.

[Lord Faulks]

The noble and learned Lord is quite right. That is a matter that is being considered, with the idea that there should be non-binding guidelines that would enable parties to have at least an idea of what the likely outcome would be on divorce. In fact, mediation is often successful. Experienced practitioners are able to predict—not with certainty but with some confidence—the outcome of cases and then advise their clients accordingly.

Criminal Justice and Courts Bill

Debate between Lord Mackay of Clashfern and Lord Faulks

Wednesday 30th July 2014 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I am delighted to hear from the noble and learned Lord, Lord Woolf, with all his experience, that the system of financing litigation by the no-win no-fee system, as it has been called, is working reasonably well. Many noble Lords will remember that the introduction of that system was not without a certain amount of difficulty for those who were promoting it.

I think that it is not correct to say that legal aid has been removed from judicial review. My understanding is that legal aid is available up to the point at which the judicial review is permitted to go ahead or not. Subject to this, the payments to the lawyer in question will depend on whether or not the judicial review is allowed to go ahead from the point at which the respondent to the judicial review has replied to the description of the review that is put forward under the protocol. Nothing else, as far as I understand, is affecting legal aid. That seems to me completely reasonable in the circumstances of judicial review.

The last time I spoke on this part of the Bill, I hope that I made it clear that I cherish judicial review as a very important aspect of our judicial process. However, I have pointed out, and I believe that it is beyond doubt, that the scope for judicial review is a deal greater than it was many years ago when the finality clauses were in force in many provisions of statute. One has to be careful in approaching any restrictions on judicial review, though, as the noble and learned Lord who is the President of the Supreme Court has said. I am certain that the clauses that we are dealing with today, particularly the first of them, are very much in that category, and that considerable care is required.

One of the difficulties about judicial review that has been brought to my attention quite frequently over the past years is the sort of circumstance that the noble Lord, Lord Marks, referred to. I will not preface it in the way that was done earlier—I am sure that he will understand why not. In a village, nearly all the villagers are interested in having a certain decision of the local authority overturned. The villagers go to their lawyer, who says, “Well now, let’s see. Is there anybody in the village who is rather poorly off?”. Perhaps, fortunately for the system, there is no such person, in which case they have to continue on the ordinary basis, without legal aid. However, if somebody in the village qualifies for legal aid, under the scheme that can operate we will find that the whole village is able to go ahead on the basis of legal aid in such a way that if the application is unsuccessful, the litigant who is legally aided is of course protected against a court order.

The last time I spoke I illustrated how that had happened in quite a considerable campaign against the previous Government’s educational policy on academies. In the literature that was produced at the time, one thing that was said was, “So far, all the people who are applicants are entitled to legal aid, so the whole litigation will be at the expense of the taxpayer”. That is a difficult situation. The point is not that the person of little means is being in any way impeded, but that they have become an instrument for attacking the taxpayer generally. I am not sure as yet what the right way to deal with that problem is, but it certainly needs to be dealt with. I suppose that the courts could deal with it, but the difficulty is that there are a lot of individual applications, each of which is usually dealt with separately. In the case of the Government’s policy on academies, most of the attacks were based on local considerations—although, as was said, the whole scheme was being attacked.

I certainly regard it as of the utmost importance that any rules of this kind that are put forward are very carefully scrutinised. It may well be that as phrased in this clause they are somewhat on the wide side. However, it does seem that there is a problem that your Lordships will need to address in some way to preserve justice for the taxpayer, as well as for the litigant. I am not at all in favour of putting any more difficulties in the way of a proper litigant applying for judicial review than exist at the present time. I am concerned at the development of matters around judicial review over the years—and over recent years in particular. To have a shell company that is set up particularly for the purpose of promoting a judicial review strikes me as somewhat strange, and whether the rules are sufficient to cope with that is a matter that I would like to hear about.

The other aspect, referred to by the noble and learned Lord, Lord Woolf, is standing. I mentioned the other day that I was nominated as senior counsel for the Crown in the original decision on standing in this House, but the courts have expanded the concept of standing quite fully since then. I am not certain whether it embraces the standing of a shell company set up by people to protect themselves against the possibility of court costs. No doubt those who are more familiar with recent practice will be able to help me on that point. For the time being, it seems to me that there is a problem to be dealt with, and I am anxious to learn whether the proposals in the Bill or the amendments are a better way of dealing with it.

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

My Lords, this has been a very helpful and well informed debate on the clauses dealing with the provision of information about financial resources and—it is important to distinguish between the two—the use of information about those financial resources.

As noble Lords will be aware, anyone wishing to bring a judicial review must first obtain the permission of the court to proceed. This is set out in Section 31 of the Senior Courts Act 1981 and mirrored in Section 16 of the Tribunals, Courts and Enforcement Act 2007. Clauses 65 and 66 relate to the information that an applicant must provide as part of that application and direct the court to consider that information when making costs orders. In order to ensure that the court is properly informed under Clause 65, the court or Upper Tribunal cannot grant permission to proceed with judicial review unless information on funding is provided. Clause 66 requires that the courts have regard to this information when exercising their existing powers and discretion to award costs.

Amendments 73G, 73H and 73M, taken together, seek to weaken the requirement that an applicant applying to the court or tribunal for permission to bring a judicial review provides information on financial resources. The effect of Amendment 73G would be to enable the courts to disapply that requirement in whole or in part. Nothing is provided about the circumstances under which the court may disapply the requirement. Amendments 73H and 73M seek to remove the requirement for an applicant to supply information about financial resources that are “likely to be available” to fund the claim. There is presently no general requirement for applicants to reveal the source of funding they are receiving for a claim. This may hinder the courts in assessing fairly the available financial resources when making costs orders. Requiring the applicant to provide this information, regardless of whether the funding is provided by a formal party to the claim, will assist the courts in better exercising their existing powers and discretion to apportion costs fairly. Also—and this is worth stressing—in responding to our recent consultation on judicial review, the senior judiciary welcomed the greater transparency that this would involve, although not the former judges who have participated in this debate.

We are concerned that potential applicants are able to set up shell companies, with the sole purpose of fronting a judicial review, enabling the individuals or bodies driving the claim to avoid full costs implications, ultimately at taxpayers’ expense. Take the challenge to my right honourable friend the Secretary of State for Justice’s decision to grant a licence to exhume human remains which turned out to be those of Richard III; a case referred to in Monday’s debate by the noble Lord, Lord Beecham. A company was formed to bring that judicial review, protecting the sole director from costs liability and an absolute protective costs order was granted, in part on the basis that the company itself did not have any assets. Noble Lords may be aware that the court in this case recently found that the decision of the Secretary of State for Justice was entirely lawful. However, the taxpayer has been left to foot the Secretary of State’s costs, of £82,000 up to March this year, in properly defending his lawful actions. The wider cost to the public purse has been put at £175,000 and may be higher.

Criminal Justice and Courts Bill

Debate between Lord Mackay of Clashfern and Lord Faulks

Monday 28th July 2014 Lords Chamber

[Lord Faulks]

I am grateful for that intervention. The noble Lord, Lord Ponsonby, makes a good point in the sense that a defendant might feel more confident if there was not such a wide age disparity between him and someone aged, say, over 75. The noble Lord reminds me that the upper age for judges is 70, so it is not unreasonable to restrict jurors to the age of 75.

[Lord Mackay of Clashfern (Con)]

I think that it is fair to say that the ultimate upper limit for judges is 75; that of course accounts for a good number of our noble and learned friends who are here today. The difficulty of fixing that limit was just the same as for jurors. The general view among the judiciary at the time, and I hope that it remains its view, was that 75 was a reasonable compromise because people—not everybody—over 75 become increasingly less able to perform the judicial function, which the jury function is, as the years progress. Therefore, you have to get some sort of balance, and 75 seems as good as any.

[Lord Faulks]

I am grateful for that contribution. My noble and learned friend states the difficult issue very well.

Senior Judiciary: Women

Debate between Lord Mackay of Clashfern and Lord Faulks

Tuesday 1st April 2014 Lords Chamber

[Lord Faulks]

I agree with the noble Lord that the primary responsibility is for the professions: the Bar Standards Board and the Solicitors Regulation Authority. The question of legal aid, we submit, is not the right instrument in order to encourage diversity. The provision of legal aid depends upon trying to target those most in need of legal aid in accordance with the available budget.

[Lord Mackay of Clashfern (Con)]

My Lords, how many women have applied over the past 10 years for senior judicial appointments—that is to say, the Appellate Committee of the House of Lords, the Supreme Court and the heads of division—and how many were appointed?

[Lord Faulks]

My Lords, currently we do not disclose details of the number of applicants for the Supreme Court or the heads of division. There is a very limited pool from which applications can be made, and therefore it is thought that the publication of this information could lead to speculation about the identity of candidates and possibly discourage applicants. I can say, however, that in the High Court 81 applications were received in 2013 of which 17% were appointed.

Care Bill [HL]

Debate between Lord Mackay of Clashfern and Lord Faulks

Wednesday 16th October 2013 Lords Chamber

[Lord Faulks (Con)]

My Lords, I share, of course, the concern of all noble Lords that we should take all reasonable steps to protect vulnerable people who receive social care in whatever circumstances. I enter this debate for the first time with considerable trepidation, having regard to the great distinction of those, both present and absent, who support this amendment. I have to express some real doubts about it.

As far as I am aware this is the first time an attempt has been made to include, within the scope of the Human Rights Act, what may be a purely private function. Those who receive care may not be overly concerned with whether it is being provided by a public authority, a private provider, or in some hybrid arrangement. Nevertheless, this amendment is in effect extending the scope of the convention beyond the terms of the Human Rights Act.

It is important to consider what protection would be available anyway, in the absence of this amendment. If a poor standard of care is provided to an individual, it is likely that the provider will be in breach of an express term of any contract or in breach of a term implied by the Supply of Goods and Services Act 1982. There will almost certainly be a claim in tort, probably relying on the tort of negligence. There is, of course, a further safeguard in relation to all providers of publicly arranged care, in that all such providers have a duty imposed by Section 6 of the Human Rights Act, at least following what I would submit was the closing of the YL loophole by Section 145 of the Health and Social Care Act. The CQC, as a regulator and a public authority, is subject to the convention.

However, the amendment would, as I understand it, purport to provide some additional remedy; presumably some award of damages. The noble Lord should be aware of the relatively limited scope of damages awards under the Human Rights Act. As Lord Bingham said in the Greenfield case in 2005,

“the 1998 Act is not a tort statute. Its objects are different and broader. Even in a case where a finding of violation is not judged to afford the applicant just satisfaction, such a finding will be an important part of his remedy and an important vindication of the right he has asserted. Damages need not ordinarily be awarded to encourage high standards of compliance by member states, since they are already bound in international law to perform their duties under the Convention in good faith, although it may be different if there is felt to be a need to encourage compliance by individual officials or classes of official”.

The House of Lords also emphasised that the Human Rights Act was not to be regarded as a panacea. Indeed, Lord Bingham went on in Greenfield to say that the purpose of the Act,

“was not to give victims better remedies at home than they could recover in Strasbourg”.

However, that would be the position here if this amendment was passed. My conclusion is that the amendment amounts to an illegitimate extension of the Human Rights Act and would not, in reality, provide any significant extra protection for those who, quite understandably, we wish to protect.

The future of the Human Rights Act will have to await the outcome of the next election. However, amending the Act, which is what in effect this will do, would be inappropriate and, I have to say, unnecessary.

[Lord Mackay of Clashfern]

Before the noble Lord sits down, can he explain what, in his view, the remedy is for the case to which the noble Lord, Lord Warner, referred?

[Lord Faulks]

I understand that in the case to which the noble Lord referred, there was a private provider. There would therefore be the remedies I referred to earlier in my remarks—the normal remedies that those who receive services through a private arrangement would have. The Human Rights Act of course is concerned entirely with remedies against public authorities. I respectfully suggest that one must not lose sight of the remedies that exist, and have always existed, in relation to breaches or violations of anybody’s rights in the circumstances described.

--- Later in debate ---

[Lord Mackay of Clashfern]

The noble Lord sat down without answering the question that I asked him, which I am very keen for him to answer. My understanding is that this elderly lady was in a home and she was given full notice to leave; there was no question of any breach of contract or anything of that kind. Therefore, the sorts of remedies to which the noble Lord has referred would not be available, whereas under the Human Rights Act there is at least a very considerable probability that she would have some protection.

[Lord Faulks]

I am sorry that I did not answer the question adequately for the noble and learned Lord. My response is that actually the Human Rights Act remedies, which I endeavoured to deal with in my remarks, would not of themselves provide the sort of remedy that the noble Lord, Lord Warner, had in mind. As was outlined by Lord Bingham in the Greenfield case, the remedies are in fact very limited, very often amounting to a decision that there has been a violation, rather than the sort of practical remedy that I understand the noble Lord to have in mind. That is my response.