Courts and Tribunals (Judiciary and Functions of Staff) Bill [HL]

Lord Marks of Henley-on-Thames Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 10th July 2018 Lords Chamber

Moved by

[Lord Marks of Henley-on-Thames]

2: After Clause 1, insert the following new Clause—
“Report on the impact of the provisions under section 1 on the diversity of the judiciary
(1) The Secretary of State must carry out an assessment of the impact of the provisions under section 1 of this Act on the diversity of the judiciary.(2) This assessment must make reference to whether increasing flexibility in the deployment of judges has had an impact on the diversity of the judiciary.(3) The Secretary of State must lay a report of the assessment before both Houses of Parliament within one year of this Act passing.”

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

My Lords, I said at Second Reading that I regarded the area of judicial diversity as a significant one for the improvement of the Bill. Amendment 2 is an attempt—drawn as widely as possible while keeping it within scope—to retain the Government’s focus on the need to have judicial diversity at the centre of their programme for the modernisation of the courts.

I am not one who believes that the Government do not understand the need for the judiciary to look, feel, seem and actually be more similar to and representative of the public at large, whose cases and disputes it is their job to determine and resolve. Often, such disputes involve very human problems. Only as recently as 24 April, the Lord Chancellor wrote jointly with the Lord Chief Justice and the noble Lord, Lord Kakkar, the chairman of the Judicial Appointments Commission, to your Lordships’ Constitution Committee to announce a funded programme to encourage applicants for judicial office, aimed partly at increasing the diversity of successful applicants by providing targeted support to underrepresented groups.

However, I emphasise that the importance of this issue has become all the greater as the number of unrepresented litigants in civil and criminal courts has increased. It was bad, but not so bad perhaps, when advocates looked and sounded like me and perhaps the noble Lord, Lord Pannick, and we addressed judges in court who looked and sounded like the former judges in this House, for whom we all have the greatest of respect and affection. But a great deal of modern litigation in courts and a great many cases in tribunals are not like that at all. Litigants are often representing themselves or are represented by informal McKenzie friends. It makes it no better that they are often opposed by more powerful parties represented by qualified lawyers whom they perceive, probably rightly, in part at least, as having an understanding with the judge or tribunal that leaves them at a serious disadvantage. I fear that, for too many unrepresented litigants, we lawyers, judges and tribunal members often sound as if we come from another planet.

Judicial diversity will not solve all these problems but it can do a lot to help. We have come a long way in securing better representation of women on the Bench. It is now somewhere between 20% and 25%, but that is nowhere near enough. The recent and frankly long-overdue appointment to the Supreme Court of Lady Arden has of course helped, but we need the appointment of more women at all levels of the judiciary. In 2010, the report of the advisory panel chaired by the noble Baroness, Lady Neuberger, on improving judicial diversity pointed out that there was no easy route to achieving a representative judiciary. It made a large number of important recommendations which were widely welcomed by the professions and the Bench but which, frankly, have not been addressed with the full-hearted commitment that they demanded.

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[Baroness Vere of Norbiton]

I think that the noble Baroness is perhaps not entirely understanding my comments. It is absolutely key that we get the best candidates into the job. The point of this is to make sure that the pool of possible candidates is as broad as possible. No candidate, whether they be from a BAME community, female or disabled, should be left out of the pool—and from that pool it is important that we select those candidates who are the best for that particular job.

I hope that, in the light of my comments, the noble Lord will be content to withdraw his amendment.

[Lord Marks of Henley-on-Thames]

My Lords, when the Minister started her response, I was tempted to accuse her of complacency. However, I now accept, after the length of her speech and what she said subsequently, that that was directed only to the limited ambit of the Bill.

On the subject of men’s caring responsibilities, I think she will find that Hansard will show that I specifically mentioned them—although I may have emphasised women’s. But as a father of seven, it would be wrong for me to omit mention of caring responsibilities myself. I should also perhaps have echoed the parental declaration of interest of the noble Lord, Lord Beecham, because one of my children is a solicitor.

I respond to the point that the Minister made about merit regardless of all. The whole point of the tipping amendment that we tabled to the courts Bill was to ensure that, where there were candidates of equal merit, it was permissible to choose a candidate who had a protected characteristic over an equally qualified candidate, in much the same way as happens in organisations across the land. That ought to be important.

Finally, I do not accuse the Minister of complacency. What she said plainly showed that the Government do care. However, I echo the words of the noble Lord, Lord Pannick, in attacking this Bill for its failure to address the very real problems and make good the promise of modernisation of the courts in a comprehensive fashion. I know that the noble and learned Lord has told us that other legislation will follow on the modernisation of the courts, but there are real issues to address, and judicial diversity is one of them. Saying that, I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

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[Baroness Chakrabarti]

My Lords, in moving Amendment 8, I will speak to Amendment 10. Once more, these amendments would place restrictions in the Bill as to what type of function will be permitted to be delegated to authorised persons. The previous amendments were about who might be an authorised person. The restrictions this time include that no authorisation,

“shall include the power to … make an order of the court which is opposed by one or more party … make any order of the court in a civil claim with a value of more than £25,000 … make any order of the court with a penal notice or power of arrest”.

The stated intent of the policy of delegating judicial powers is to improve the efficiency of the courts service by diverting judges’ time from routine administrative tasks to allow them to focus their time and expertise on more complex and significant matters. However, there must be reasonable limits to what powers can be given to authorised persons who are not judges. Without those limits, we have a power that has the potential to change the essential nature of our judicial system. I am sure that this is not the Government’s intention, but we need to construct this power for future Governments of whatever stripe because significant judicial power should be exercised by judges.

While it is almost impossible to create a definitive or exhaustive list of appropriate judicial functions for the delegations that will cover every tribunal and eventuality, it is reasonable to expect some red lines and limits relating to the most significant decisions and exercise of power. It does not seem unreasonable to ask that Parliament have an opportunity to set out a framework for such delegation and to exclude decisions that deprive an individual of their liberty or of life-changing sums of money for most people, and decisions that parties have contested or those involving vulnerable witnesses or people lacking mental capacity.

Other provisions in the amendment provide a mop-up of what might provide a red line around a decision which could dispose of a matter altogether. Lord Briggs drew such a line in his civil court structure review, at caseworkers making dispositive decisions, which he saw essentially as a judicial role. All delegated functions in the civil jurisdiction are routine case management functions and are often confined to cases where all parties consent. Legal advisers do not currently make decisions that represent a final determination and a party may request reconsideration of any decision of a legal adviser within 14 days of being served notice of it. Are these not therefore reasonable restrictions to place on delegated functions in the context of criminal proceedings, where so much is potentially at stake? The MoJ’s own factsheet on delegation to staff says that delegated decisions are unlikely to involve contested matters. Why not put such a reasonable restriction in the Bill, given that many case management decisions are potentially important judicial functions that should not be delegated?

In addition to concerns about transparency, there is a danger that efficiencies gained by delegating case management decisions will be lost if the court then has to reconsider such decisions at a later stage in the process. Further, if one accepts the case for the limited delegation of some of the most straightforward decisions to such authorised staff, one has to raise concerns that these relatively low-paid staff—HMCTS staff being paid less than other government lawyers—are being used to save money without proper remuneration for their increased workload. I beg to move.

[Lord Marks of Henley-on-Thames]

My Lords, I have some sympathy with two of the new paragraphs proposed in the amendments. I have sympathy with those relating to orders of the tribunal or the court with a penal notice or power of arrest. I have some sympathy, too, with the restriction on the power of a court to make an order under Section 37 of the Senior Courts Act for an injunction, including any freezing order, and the corresponding power for the tribunal.

I am afraid that is as far as my support goes for the noble Baroness’s amendment, because all the other powers may be entirely trivial. In particular, the noble Baroness places reliance on the idea that a contested order should not be made. Some contested orders are unbelievably trivial. If I seek a 14-day extension for the service of my defence and the other side says that I should do it in seven, and the authorised person says, “Well, you can have 10”, the idea that he or she should not have the power to make that order is wrong.

One has to leave it to the good sense of the rule committees to decide where it is sensible that such restrictions should be drawn. Injunctions are in a different category and where the liberty of the individual is at stake we have a different category, but otherwise I am afraid I cannot support the amendments.

[Lord Neuberger of Abbotsbury]

My Lords, I applaud the noble Baroness’s concerns, which, as in the previous amendments, are directed towards ensuring that the high standards of justice in this country are maintained.

I echo to a considerable extent what was said by the noble Lord, Lord Marks. However, in the end, these are matters for the rule committee. There are two protected factors: one is that nothing can be done without it being in the rules, and the second is that the Lord Chief Justice needs to give his or her authorisation to the person who makes the decision. The other amendment concerns the Senior President of Tribunals. With the rules, there is the protection of them having to be laid before Parliament, and therefore any restrictions of the sort that the noble Baroness wishes to put forward would have to be considered by the rule committee. If they were not in the rules, and this House felt that they should be, this House would then have an opportunity to see what was said and why. I again suggest that these matters are best left to the rule committee. As the noble Lord has indicated, there is clearly room for disagreement over which items and categories should be included and what should not be included. That is best left to the rule committee and, in due course, to the Lord Chief Justice.

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[Lord Marks of Henley-on-Thames]

My Lords, I fully support the noble Baroness’s Amendments 9 and 11. It seems to me that the Bar Council is absolutely right to draw a distinction between the nature of rules specifying what decisions can be made by authorised persons and the question of whether such decisions made by authorised persons should be subject to a review.

The noble and learned Lord was good enough to circulate to us not only the draft statutory instrument that he mentioned but the policy statement in support of it. It is quite clear that the procedure rule committees will be responsible for making the decision as to what decisions should be made by authorised persons: that is, the Criminal Procedure Rule Committee, the Family Procedure Rule Committee and the Civil Procedure Rule Committee. Of course, the noble and learned Lord, Lord Neuberger, is right to point out that those rule committees make rules that are both subject to scrutiny by Parliament and subject to approval by the Lord Chief Justice. However, that does not have a bearing on the question of whether decisions, once made, should be reviewable.

I commend these two amendments because they set a simple and short time limit of 14 days for making the application for review, and a further 14 days only for the decision upon that review. Furthermore, I believe that there is some benefit to be gained from uniformity, so that all such decisions made by authorised persons are subject to the same time limits and the same procedure. It seems to me that to have different rules for different types of decisions would be a mistake.

I would of course expect that, in due course, the review provisions would be implemented by applying a test that the decision of an authorised person would be overturned only if it was outwith the range of reasonable responses to the question posed to the authorised person—the traditional appellate test, rather than a fundamental review test. Subject to that, it seems to me that to give an authorised person an unappealable, unreviewable power to make what will sometimes be very important decisions, even if they are sanctioned by the rules, would be going too far. So I support these amendments.

[Lord Neuberger of Abbotsbury]

My Lords, I have considerable sympathy with these amendments, in the sense that, as the noble Lord, Lord Marks, has said, the idea of a decision being made by a non-judicial person and not being referable to a judicial figure is inconsistent with justice. Whether it is right to provide in such clear terms, and such uncompromising general terms, for the circumstances and requirements for such an appeal seems to me, again, to be questionable. While I absolutely see the requirement for a right of appeal, I would have thought that, again, it would be better to leave it to the rule committee, which, as the noble Baroness has said, consists of experienced people from all aspects of the justice system.

Having chaired the Civil Procedure Rule Committee for three years, I can say, as has been quoted in relation to its criminal equivalent by my noble and learned friend Lord Thomas, that considerable care is given to ensure that all the requirements of justice are met. It is very rare, if ever, that I can remember a decision being arrived at which was not arrived at by consensus. To my mind, in those circumstances, while it is essential that there is this right, it is a right whose details should be worked out, at any rate, by the rule committee—the rules of which, as I have said, sounding like a scratched record, are put to the House.

National Probation Service

Lord Marks of Henley-on-Thames Excerpts

Wednesday 27th June 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, we continue to make advances in dealing with IPP prisoners, and the numbers continue to reduce. However, I am not in a position to say what the present number of IPP prisoners is in detention. If my noble friend wishes to see that figure, I will arrange to write to him and will place a copy of the letter in the Library.

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

My Lords, the Question of the noble Lord, Lord Beecham, is about the remaining National Probation Service, but the Justice Committee severely criticised the private CRCs for failure through poor contracting, lack of resources and a half-baked payment-by-results system that does not incentivise good practice. So through-the-gate supervision has produced only a poorly functioning signposting service, and voluntary sector involvement in rehabilitation, which we were promised would increase, has reduced instead. Will the Government now commit to implementing the Justice Committee’s recommendations, and there are many of them, and take a long, hard look at reversing this failed part-privatisation?

[Lord Keen of Elie]

My Lords, the Justice Select Committee observes that the model that was introduced by the coalition Government has been disappointing in a number of respects, and we will of course address the terms of the Justice Select Committee report.

Privately Financed Prisons

Lord Marks of Henley-on-Thames Excerpts

Wednesday 27th June 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, there is nothing craven about the approach that has been taken to the very real and challenging issues relating to our prison population. We are concerned that we should look more carefully at alternative forms of sentence, such as community orders, that would in themselves replace the requirement for sentences particularly of less than 12 months’ imprisonment. That is a matter for consideration. In addition, I remind the noble Lord that we are in the course of taking active steps to provide not only additional but new and refurbished prison accommodation in order to improve the standard of our prisons across England and Wales.

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

My Lords, new, modern prison places are sorely needed, but do not the failed Carillion maintenance contract, the CRC contracts that we have just discussed and other MoJ contracts show how far the ministry needs to take a serious look at its contracting procedures, just as Rory Stewart accepted when he was before the Justice Committee yesterday and assess tenders in a realistic and much more rigorous way? How does the department propose to improve its contracting procedures for these new prisons? Furthermore, Mr Gauke’s effort to get prisoner numbers down by cutting the number of short sentences, saving money in the process, is welcome. What proposals do the Government have to ensure that their prison building programme seeks to combine cutting numbers with transforming prisons, in both public and private sectors, to focus on rehabilitation and training rather than just containment and punishment?

[Lord Keen of Elie]

My Lords, the model of having both private and public custodial services and privately funded and publicly funded prisons has been in place for many years and has distinct advantages. On the maintenance of existing prisons, we have agreed an additional £16 million to start to improve conditions across the estate and not just to address the provision of new prison accommodation. On sentencing, as I indicated earlier, we are concerned to see a development with regard to community and non-custodial sentences. On the matter of contracts, we are pursuing and putting in place robust means of ensuring that contracts are analysed correctly and not simply on the basis of the lowest tender.

Civil Liability Bill [HL]

Lord Marks of Henley-on-Thames Excerpts

3rd reading (Hansard): House of Lords
Wednesday 27th June 2018 Lords Chamber

[Lord Hunt of Wirral (Con)]

My Lords, I congratulate my noble and learned friend on his expert handling of this Bill, together with his ministerial team, my noble friend Lady Vere, and their officials.

Part 1 has indeed proved to be more contentious than many of us expected, but I hope that all noble Lords have now recognised the true and serious nature of the problem that the Government need to tackle and also accept that the radical solution of a tariff is thoroughly justified. The social evil that we have discussed on many occasions, which this part is intended to address, will not completely evaporate as a result of these measures. There are too many vested interests at work for the compensation culture to vanish overnight. No doubt they will continue to set citizen against citizen and are already crafting new ways around any controls that we seek to impose. None the less, I feel that this Bill will certainly slow down the process and, I hope, end this great country being known as the whiplash capital of the world.

On Part 2, I am delighted at the consensus across the House that time is very much of the essence, as we lawyers would say. The overwhelming view of this House has been that change to the discount rate cannot come soon enough. I congratulate my noble and learned friend the Minister and noble Lords on all sides of this House who have all worked so hard to eliminate the scope for delays in reaching a first review.

[Lord Marks of Henley-on-Thames]

My Lords, on behalf of these Benches, I add my thanks to the noble and learned Lord the Minister and to the noble Baroness, Lady Vere, for their help, courtesy and consideration throughout the passage of this Bill. We have all approached the Bill with common purposes; on some of the issues, we have suggested different ways of achieving those purposes. With co-operation from Members across the House, in the Conservative Party and on the Labour and Cross Benches, we have produced a set of amendments that have now improved the Bill significantly as it goes to the Commons. If I may say so, it has been a model of co-operation. We are very grateful to the noble and learned Lord for the many meetings that he has held at which he has explained the Government’s thinking and listened to us, and for the letters that he sent us explaining their thinking and, sometimes, changes in thinking. Thank you.

[The Earl of Kinnoull (CB)]

I was not intending to speak, but I associate myself entirely with the remarks and thanks made and given by the noble Lord, Lord Marks. I was going to add only what fun it has been working with the Bill team, who have worked immensely hard. They have done a particularly good job on this Bill, which should be recorded.

Courts and Tribunals (Judiciary and Functions of Staff) Bill [HL]

Lord Marks of Henley-on-Thames Excerpts

2nd reading (Hansard): House of Lords
Wednesday 20th June 2018 Lords Chamber

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

My Lords, when my noble friend Lord Beith asked a Question on 6 June about the proposed modernisation of the courts, he described the Bill—and he repeated this today—as,

“a little mouse of a Bill”.

The Minister then contradicted him in response, saying that,

“this is a mouse that roared”.—[Official Report, 6/6/18; cols. 1305-06.]

I think there is consensus around the House today that, as it stands, the Bill is more of legislative squeak than anything approaching a roar. The Bill we all wanted to have would have covered the whole gamut of court modernisation and I fully endorse what the noble and learned Lord, Lord Thomas, said: the central point is that the alternative to comprehensive modernisation is significant decline.

I found Joshua Rozenberg’s description of the Bill in the Law Society Gazette as,

“a little too late and quite a lot too little”,

pretty accurate. In opening, the noble and learned Lord described the Bill as a positive first step in reforming the court system. Mr Rozenberg, however, criticised it as drip-feeding—a term also used by the noble Baroness, Lady Chakrabarti. The problem with drip-feeding is that you cannot see the entire flow, and the Bill gives little indication of the Government’s direction of travel.

There has been little substantive criticism today of the specific provisions that have found their way into the Bill. I shall, however, make a couple of points on those provisions. First, Clause 1 allows for the more flexible deployment of judges, which is generally sensible and to be welcomed, as the noble and learned Lord, Lord Thomas, explained. I would, however, caution against rowing back from our developing reliance on judges’ specialist expertise in centres across England and Wales, which has been uniformly beneficial. This was a theme pursued by the noble Lord, Lord Flight. It has been particularly true of specialist family judges, as forcefully argued by the noble Earl, Lord Listowel. It has been true also of mercantile judges, since last year called Circuit Commercial Court judges, which has ensured a spread of circuit judges with specialist commercial expertise in court centres across the country. It has been true also of judges of the Technology and Construction Court—the TCC—who handle difficult and lengthy cases in construction, engineering and IT disputes economically and efficiently in regional centres as well as in London. I also welcome the recently announced development of one overarching umbrella for specialist business and property courts across the country.

While there has been considerable cross-ticketing of judges, as it is inelegantly known, whereby judges from one specialism are deployed in a similar field, it is important that flexible deployment develops alongside and in sympathy with the continuing specialisation of judges where it is needed. I never again wish to argue a long and complicated matrimonial finance case, as I did some years ago, in front of a deputy High Court judge who was highly distinguished in his field as tax counsel but had entirely the wrong end of the stick—and, frankly, not a clue—about his task in a matrimonial context.

Secondly, I accept that, as proposed by Clause 3, suitably qualified staff should be able to make not only administrative decisions but some of the less significant case management judicial decisions. I agree that it is not a definitive criterion that such a decision should be unopposed. If that is to be the case, however, we need robust safeguards to ensure that decisions that should be taken by judges are indeed taken by judges and not delegated to too low a level. We must also guarantee that staff making judicial decisions are adequately qualified.

I am also concerned about the prospect of under- qualified court officers giving advice to judges in the family court—they are often lay magistrates, as the noble and learned Lord, Lord Mackay, pointed out—or the magistrates’ courts. I note that the Schedule will provide that qualifications will be determined by regulations to be made by the Lord Chancellor with the agreement of the Lord Chief Justice. It is vital that such regulations establish clearly that those advising magistrates and judges are completely qualified to do so.

We have heard in this debate much more about what the Bill does not do but should do than about what it in fact does. So, turning to what is not in the Bill, I note that the Long Title is relatively wide:

“To make provision about the judiciary and the functions of the staff of courts and tribunals”.


It is certainly wide enough, I suggest, to accommodate the campaign of the noble and learned Lord, Lord Mackay, to give England and Wales back its supreme court, but not—sadly, I think—wide enough to comprise the campaign by Women’s Aid to prevent victims of domestic abuse being cross-examined by the perpetrators of that abuse. Having listened to the speech of the noble Baroness, Lady Newlove, many of us would no doubt hope that the Government and the noble and learned Lord might see their way to extending the Long Title to encompass provision in that regard. Noble Lords may wish to explore the process of modernisation with inventive amendments within the Long Title, as it exists, in that context.

I suggest that there are three significant areas for improvement. The first area is judicial diversity. Since the report of the noble Baroness, Lady Neuberger, in 2010, we have made some considerable progress, particularly with the work done by the judicial diversity task force. However, we have a very long way to go. I would like to see this Bill require more action on judicial diversity, more women judges, more judges with BAME heritage and backgrounds and a more socially diverse bench generally, to make our court system look and in fact be more attuned to and more in touch with our society. We could start with taking on the recommendations of the organisation Justice in its excellent paper, Increasing Judicial Diversity. I am not sure that accepting the suggestion of the noble Lord, Lord Hodgson, that we increase the retirement age of judges, would help. Flexible, family-friendly hours and more job sharing for judges, on the other hand, almost certainly would.

The second area is accessibility. I suggested on 6 June that we need court staff, in person and over the phone, court documents and online resources all to be committed to helping court users, particularly litigants in person, to navigate their way through the litigation process. This would mean court officers changing their traditional position that they are not there to give advice. The noble and learned Lord, Lord Keen, gave me a very encouraging reply. He said that,

“there is no reason why reallocated court staff will not be in a position to provide advice”.

But he then added the words,

“as they have in the past”.—[Official Report, 6/6/17; col. 1307.]

I think that the added words were overoptimistic. Those of us who regularly attend court tend not to appreciate quite how daunting an experience going to court is for members of the public. Traditionally, court staff have taken the view that their job is to be detached, impartial and objective, giving the advice that is needed on procedure but leaving it to litigants to get advice from their solicitors and other advisers. However, more litigants in person and less legal aid make it essential that court staff are trained to give real assistance to all concerned, including advice not only on procedures but on completing documents and the evidence that people will need to prove a case. The noble Baroness, Lady Newlove, with her call for help for victims, adds to the point. That does not mean that court staff have to act as lawyers for individual parties, and they should not. But they should act as firm friends in court for those without lawyers—litigants in the civil courts and defendants in the criminal courts. That should be true whether the contact is face-to-face, over the phone, by email or through the court’s online resources.

Thirdly and finally, we must make progress with the development of a fully online system, to enable cases that can be dealt with online to be processed efficiently and quickly through digital technology, with users feeling informed and not at sea. I accept that there has been considerable progress in pilot projects in this area, as the noble and learned Lord mentioned in opening. Online divorce; applications for probate, on which I should add that we never want to see the reintroduction of the ridiculous proposal for hyperinflated probate fees; online pleas in minor criminal cases; and huge numbers of debt recovery cases—these are all areas where the court could be made user-friendly and efficient with digital technology.

I look forward to working with the noble and learned Lord and others, in the likely absence of parliamentary time for other justice Bills, to inject a little more ambition into this Bill. If we can give the mouse if not a full-throated roar then at least a bit of an increase in volume, that will be all to the good.

Civil Liability Bill [HL]

Lord Marks of Henley-on-Thames Excerpts

Report stage (Hansard): House of Lords
Tuesday 12th June 2018 Lords Chamber

In any event, matters of legitimate concern cannot justify fixing damages in a manner which departs from that normally adopted in assessing the damages to which a claimant is entitled. Even when the amount involved appears to be modest, claimants are entitled to have the damages to which they would normally be entitled. To deprive them of this involves discrimination against legitimate claimants, irrespective of their means. The consequence is that they do not receive the compensation to which they would be entitled if the same pain or suffering was not caused by whiplash. This is not what a system of justice should do. Simply, it is unjust to do this—and for these reasons, I beg to move.

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

My Lords, we share the Government’s objective of reducing fraudulent whiplash claims, but we do not agree that the proposed arbitrary reduction in damages for all claimants, fraudulent or genuine, coupled with removing judges from the assessment of damages, is a proper way in which to address it. For that reason, I shall concentrate on supporting Amendment 18, so eloquently and comprehensively spoken to by the noble and learned Lord, Lord Woolf, with his strong appeals to principle.

We welcome banning cold calling, whether by claims management companies, car hire companies, car repair companies, solicitors or anyone running a calling operation for any of them. Section 35 of the Financial Guidance and Claims Act makes a start in banning cold calling, but its main weakness is that it does not outlaw the use in this country of information obtained by cold calling, often from abroad, and the definition of claims management services in that Act looks to me insufficiently broad. By amendments in the fourth group, we try to address the use of information from cold calling.

We welcome prohibiting settlement of whiplash claims without medical reports from properly accredited clinicians. So those provisions on cold calling and medical reports are targeted on reducing or eliminating fraud. However, the proposed radical reduction in the level of damages to the Government’s very low tariff is a blunt instrument that would indiscriminately cut to the bone compensation for genuine claimants as well as for fraudulent ones. The purpose of general damages in personal injury cases has, as the noble and learned Lord, Lord Woolf, explained, always been to compensate claimants, so far as money can, for the injuries they have suffered as a result of the negligence of defendants. Clause 2 abandons that principle in whiplash cases. If Amendment 18 is carried, Clause 3 would be meaningless, so we would expect the Government to accept Amendment 30 in the name of the noble and learned Lord, Lord Woolf.

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[Viscount Hailsham (Con)]

Will the noble Lord also observe that this clause is only permissive and does not require the Lord Chancellor to make an uplift?

[Lord Marks of Henley-on-Thames]

My Lords, I am very grateful for that intervention, which is absolutely right. The point about an uplift is that, if it is just, it should be given. We say that there may be a whole range of circumstances where it is clear that an award greater than the tariff figure is justified. We would regard it as far better than insisting on a finding of exceptional circumstances to permit the courts, as per our Amendment 20, to increase a tariff award where satisfied simply that it would be in the interests of justice to do so. Were Amendment 18 not carried so that Clause 2 survived, we would propose to pursue that amendment to improve Clause 3, which would then remain.

[Viscount Hailsham]

My Lords, I shall comment on an amendment that has not been spoken to—Amendment 12, which I think will be articulated by the noble and learned Lord, Lord Judge—and, more precisely, on the proposed new clauses, spoken to so admirably by the noble and learned Lord, Lord Woolf.

Amendment 12 seems manifestly sensible. Of course the Lord Chief Justice should be consulted by the Lord Chancellor. That is particularly important when one bears in mind that many Lord Chancellors nowadays are not lawyers and will therefore be entirely dependent on the advice of their officials, who might themselves not be lawyers. Therefore, it seems admirable that we should put into statute a requirement that the Lord Chief Justice be consulted. If the Minister says, “But of course he will be”, all I can say is that Ministers sometimes have a curious habit of forgetting the obvious and their obligations. For example, I was rather surprised about three weeks ago when the noble Lord, Lord Callanan, during the debate on Brexit, said that Ministers had never used the phrase “meaningful vote”. That was a curious lapse of mind, and it may well be that Lord Chancellors will forget the obligation to consult the Lord Chief Justice. Therefore, I am all in favour of the amendment and I hope the Government will concede the point.

Perhaps I may move more directly to the proposed new clause in the name of the noble and learned Lord, Lord Woolf, and Amendment 18. I do not have the experience of the noble and learned Lord but for many years I practised as a personal injury lawyer. I do not do so any more, so there is no need for me to identify an interest, but I used to do a lot of work in personal injury law. Indeed, I was instructed by my noble friend Lord Hunt and I was very grateful for the briefs in those days. Back then, we were informed about the level of damages by the guidance of the Court of Appeal and by the reports, which in those days were available in the current law citator. There really was no difficulty in operating within the parameters set by the judiciary.

That takes me to my objections to what the Government are proposing. The first is a very deep-seated reluctance to see the Executive or Parliament interfering with essentially judicial positions. I am bound to say that that informed my real reservations about the determination of Parliament to impose tariffs in homicide cases, set out in a schedule to the Act. I deprecated that. This is another example which we should be very cautious about. We need to ask ourselves what the essential characteristic of justice is. It is to respond to the individual and varied cases that appear before the courts. The effect of imposing a cap of this kind is to prevent the trial judge being able to respond to the particular aspects of the case in front of him or her, and in my view that is, by definition, unfair.

There is a further point that I venture to intrude on the observations of the noble Lord, Lord Marks. It is perfectly true that the Bill provides for an uplift, but the uplift requirement is discretionary on the Lord Chancellor; it is not mandatory. The Lord Chancellor may provide for an uplift in regulations but he or she does not have to do so.

I am sorry to be pedantic about this, but your Lordships will know that on many occasions I have spoken in pretty derogatory terms about the statutory instrument process that we have. This is another example. Let me acknowledge at once that we are doing it by the affirmative procedure, which is a lot better than doing it by the negative procedure, but the cap will be determined by statutory instrument. Who, pray, is going to set the cap? I can tell you: it will be officials. Unless the Minister of the day is particularly well informed and/or intrusive, the cap will be determined by officials without interference. I am bound to say that I find that a very unpleasing prospect.

If, therefore, the noble and learned Lord, Lord Woolf, is minded to press his amendment and his proposed new clause and to test the opinion of the House, unless my noble and learned friend is even more persuasive than he customarily is, I anticipate that I will support the noble and learned Lord.

--- Later in debate ---

[Lord Beecham]

My Lords, I shall speak very briefly to the amendments in my name and that of my noble friend Lady Chakrabarti. There is not, I think, a great deal of difference across the House on the need to ensure that there are proper medical reports and that the MedCo website should be used. The amendments would allow the Government to employ others with medical qualifications, in addition to MedCo, if that was thought to be helpful. Our amendments expressly state that there must be appropriate medical evidence of injury. The amendments are fairly straightforward: we do not dissent from those of the noble Lord, Lord Sharkey, and we hope that the Government will look sympathetically on the amendments here.

[Lord Marks of Henley-on-Thames]

I shall speak very briefly to Amendments 35 and 36, both of which concern medical reports. These and also Amendment 39, to which my noble friend Lord Sharkey spoke, are in my name. The purpose of Amendment 35 is simple. While it is very difficult to prove, there is widespread concern that the quality of medical reports and, sadly, sometimes the quality and genuineness of those who provide them, is low.

Of course, it is notoriously difficult for clinicians to give reliable evidence of whiplash injuries, both because the symptoms are self-reported—and reported differently by different patients depending on their robustness—and because patients’ accounts are hard to test objectively. Assessment of the likely duration of whiplash injuries, which becomes increasingly important in view of a cliff edge-type tariff, is also very challenging because the course of recovery is extremely difficult to predict and varies from patient to patient, again often dependent on no more than the robustness of the patient concerned. However, some clinicians develop considerable experience of these injuries, and a sensible system of accreditation, with the assistance of MedCo—which is already involved in assisting with the criteria for qualifications to produce medical reports, and quality assurance—ought to be able to encourage some consistency. That is why we seek the incorporation of a reference to MedCo in the legislation.

Amendment 36 would require the Lord Chancellor,

“by regulations make provision for the cost of obtaining appropriate medical evidence … to be recoverable by a claimant who succeeds … unless the court decides that such recovery would be contrary to the interests of justice”.

This is a topic on which I have sought reassurance from the Minister in previous stages, and I have received some. But the current position is that recoverability is a matter of discretion. With the proposed change in the small claims limit and the proposed new portal, we would like to hear a statement that it is intended that in all cases where a claimant, even one below the small claims limit, succeeds in recovering damages for pain, suffering and loss of amenity under the tariff, the cost of obtaining the medical report, which will be compulsory, will go with it, unless doing so,

“would be contrary to the interests of justice”.

[Baroness Vere of Norbiton]

My Lords, the amendments in this group all relate to either the provision of medical reports in relation to the ban on pre-medical offers for whiplash claims or the cold-calling provisions.

I start by reassuring noble Lords that the cost of medical reports is already recoverable in personal injury claims where the defendant insurer has admitted any part of liability. They will continue to be recoverable following these reforms, including in the small claims track following the proposed increase of the limit to £5,000.

The amendments in the names of the noble Lord, Lord Beecham, and the noble Baroness, Lady Chakrabarti, place the requirement for medical reports to be,

“provided by an accredited medical expert selected via the MedCo Portal”,

or other experts specified by the Lord Chancellor in regulations. Currently, the Civil Procedure Rules require any initial medical report in support of a whiplash claim to be sought through the MedCo IT portal, which, as noble Lords will be aware, was established to improve the independence and quality of medical reporting. The Civil Procedure Rules also require that all MedCo medical reports must be provided by an accredited medical expert.

These provisions were made through the Civil Procedure Rules for a reason. The Civil Procedure Rules are flexible and their use allows for rapid responses to changed circumstances. MedCo is an industry-owned and operated company, and it would be very unusual to enshrine the purposes of such an organisation in the rigid structure of primary legislation. MedCo was formed to take forward government policy in relation to medical reporting. However, circumstances may change, as could MedCo’s role. Alternative accreditation schemes may be added or it may become necessary to appoint another organisation to operate the current process. Were the use of the excellent MedCo process to be put in the Bill, the ability to respond to such changed circumstances would be lost, and genuine claimants could suffer as a result. I therefore urge the noble Lord, Lord Beecham, not to press his amendments.

Amendments 32 and 39, in the names of the noble Lords, Lord Sharkey and Lord Marks, seek to add a requirement relating to claims sourced through cold calling to the Government’s prohibition on the making or seeking of settling whiplash claims without medical evidence. While I fully understand the noble Lords’ motivations in tabling these amendments, I believe it would not be appropriate to widen the ban on seeking or offering to settle a whiplash claim without the claimant first seeking medical evidence to also include claims which may have been sourced via a cold call. This could discriminate against genuinely injured claimants.

Civil Liability Bill [HL]

Lord Marks of Henley-on-Thames Excerpts

Report stage (Hansard - continued): House of Lords
Tuesday 12th June 2018 Lords Chamber

[The Deputy Speaker (Viscount Ullswater) (Con)]

I must advise your Lordships that if this amendment is agreed to, I cannot call Amendment 54 because of pre-emption.

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

My Lords, we support the thrust of the amendments tabled by the noble Lord, Lord Hodgson, and his introduction of Amendment 53. My noble friend Lord Sharkey and I, together with the noble Earl, Lord Kinnoull, and the noble Lord, Lord Faulks, have tabled a number of amendments to the proposals for later reviews of the discount rate; that is, all reviews after the first, which we discussed in the previous group. These amendments on the later reviews are considered in this and the following group—the last group—and I shall speak to both groups of amendments now.

Broadly, we support the following propositions. First, we do not regard it as sensible to have a fixed three-year period, or even a fixed five-year period, between reviews of the discount rate. Interest rates and rates of return change unpredictably and at very different speeds over time. Years may go by, as they have recently, with very little change then a period of rapid change may follow. Fixed periods between reviews do not respond to that pattern of change and slavish adherence to fixed periods would lead both to reviews required by statute taking place unnecessarily during periods of stability and, more seriously, to there being periods—possibly long periods—following rapid changes in rates when the discount rate failed to represent an accurate assessment of predicted long-term returns.

Courts: Modernisation

Lord Marks of Henley-on-Thames Excerpts

Wednesday 6th June 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, first, with regard to the online system, which is being piloted in a number of areas, over 16,000 people have already engaged with the pilots relating to online matters such as divorce and minor pleas in road traffic cases. In addition, we have the online system with regard to payment claims. We appreciate that there are those who will continue to have to engage with the offline systems and we are of course concerned to ensure that we make further progress with regard to court reform. But as I indicated earlier, that will be brought forward as and when parliamentary time allows.

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

My Lords, what we need is accessibility: a set of proposals, properly financed, for court staff, in person and over the phone, court documents and online resources all to be committed to helping court users, particularly litigants in person, to navigate their way through the litigation process. This will mean court officers changing their traditional position that they are not there to give advice. What proposals do the Government have along these lines?

[Lord Keen of Elie]

My Lords, there is no reason why reallocated court staff will not be in a position to provide advice as they have in the past. We are at the commencement of an extensive reform of our court processes. Indeed, I quote the Lord Chief Justice and the Senior President of Tribunals:

“While there is still much work to do, the introduction of this Bill is a positive first step in legislation to deliver reform”.

Rape Trials

Lord Marks of Henley-on-Thames Excerpts

Wednesday 6th June 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, the review that was undertaken involved consideration of 3,637 cases in the period between 1 January and 13 February this year. In respect of those cases, 47 were identified where there were concerns about the management of disclosure. However, that does not mean that this was the reason for the discontinuance of the prosecution in each and every one of those cases. There is of course concern that disclosure should be carried out fully and properly pursuant to the legal requirements of the Criminal Procedure and Investigations Act 1996. That obligation lies not only on the police and Crown Prosecution Service but on the defence, which is required within a certain period—28 days—to give a defence statement. That, in itself, indicates where there may or may not be room for further investigation of material that could pertain to the prosecution case or assist the defence. It is necessary for all parties involved in this process to engage in order that it can be properly discharged.

As I indicated earlier, further work is being undertaken by the Attorney-General to deal with this question, which we hope to report upon by the summer. I do not accept that we are going backwards. Technology is going forward, and very quickly indeed. We now live in an environment in which there are vast quantities of social media apps—Instagram, Facebook and the like—that can be contained on one or two mobile devices and which make demands upon the police service, the Crown Prosecution Service and indeed the defence. They did not exist 10 years ago. We are seeking to meet those demands; it is important that we do so.

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

My Lords, the number of recent cases collapsing following late disclosure—many of them well publicised—is frankly a disgrace. It is made even worse because it has often happened when defendants have been remanded in custody pending their trial. The Director of Public Prosecutions says that the prosecution is disclosing relevant evidence to the defence in the vast majority of cases, but it needs to be—so far as it can be achieved—invariable. I hear endless anecdotal reports from criminal lawyers that these failings are widespread and attributable largely to a lack of resources, often to download and go through smartphone records—as the noble and learned Lord’s last answer implicitly recognised. We accept that trawling through records harvested from confiscated smartphones is time-consuming and expensive, but fairness and justice require it. Can the noble and learned Lord guarantee that the Government will respond to recent failures by giving all necessary resources to be devoted to this work to ensure that we achieve full disclosure of relevant material to the defence?

[Lord Keen of Elie]

My Lords, we must always aspire to full disclosure in circumstances when material could otherwise undermine a prosecution or assist the defence to a criminal charge. No one would doubt that for a moment. As I understand it, there has been no complaint to date about a lack of resources as regards the police and the CPS. I go back to the point I made earlier, that these obligations with regard to disclosure extend beyond the police and the Crown Prosecution Service to the defence as well. I am not in the business of giving guarantees, but we will look clearly, unambiguously and carefully at the findings of the Attorney-General’s investigation in the summer and will respond appropriately to its conclusions.

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

Lord Marks of Henley-on-Thames Excerpts

Wednesday 23rd May 2018 Lords Chamber

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

My Lords, I will be very brief. We note that these changes are supported by the judge who chairs SIAC, Mrs Justice Laing, and whatever we may think about the closed material procedure, the changes themselves are clearly sensible.

I use this opportunity to suggest that it is very important that closed material procedure be used only as a last resort and in cases of necessity. I note that only 14 cases have been before SIAC in the year under consideration, and that itself is a helpful indication.

On the implementation of the changes to immigration bail under Schedule 10 to the Immigration Act 2016, it is plainly sensible that there should be arrangements for the commission to grant bail. “Financial condition” is sensible terminology that is much better than “recognizances”, if I may say so. We also think it sensible that there should be arrangements for the amendment or variation of bail conditions in appropriate cases.

The Minister is plainly right that leap-frogging is a useful procedure that is used in other courts and jurisdictions. Where there is a point of law of public importance or binding authority that would prevent a decision at a lower level than a Supreme Court, it is plainly sensible that the Supreme Court should be the first port of call in cases that are so certified by the commission, and where the importance of the case warrants it.

We also applaud the longer time limits. The time limit was five days for appellants who were in detention and 10 days otherwise. Fourteen days is a very short time limit, but it is at least a little longer, and it is of course important that appellants have a chance to consider their appeals and their applications for a certificate under the legislation before they have to make the application. However, broadly, we support this statutory instrument.

[Lord Hodgson of Astley Abbotts (Con)]

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