Humanist Weddings
Lord Ponsonby of Shulbrede Excerpts(1 month ago)
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Baroness Thornton
To ask His Majesty’s Government whether they plan to give legal recognition to humanist weddings.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)
My Lords, I open by wishing my noble friend a happy birthday. However, I cannot give her the birthday present she would wish for. The Government understand humanists’ strength of feeling about legally recognising humanist weddings. I know that this strength of feeling extends to many within this House. As a new Government, we must look closely at the details of any proposed changes before setting out our position, which we will do in due course.
Baroness Thornton (Lab)
I hate to say it to my noble friend, but what a huge disappointment that is. Not only did this House put humanist marriage in the equal marriage Act of 2014 but, in 2020, the High Court ruled that the failure to provide humanist marriages in England and Wales means that the present law gives rise to discrimination, and that the Government
“could not sit on its hands”
and do nothing. Given that the Government know they must act here, given that this is Labour policy, given that it will cost nothing and given that the Church of England has given it its blessing, what is the problem and why can we not get on with it?
Lord Ponsonby of Shulbrede (Lab)
My Lords, we are aware that humanists have long been campaigning on this issue, and all the elements which my noble friend mentioned are true. However, the previous Government chose not to respond to the Law Commission report, and we believe that, as a new, incoming Government, we should give ourselves time to respond in as wide a context as possible. Therefore, we will set out our position in due course. We recognise that humanists have been campaigning on this issue for many years. However, there are other issues, such as co-habitation, on which there is also a Labour manifesto commitment, which we want to reflect on before we come forward with our position.
Lord Desai (CB)
My Lords, what is the difficulty about the humanists? I have been here for 30 years and again and again I have heard the answer that we cannot do it for humanists. We have can have Hindu, Muslim and Sikh marriages—we can have Satanist marriage—but no humanist marriage. Is the established Church so much against it that no Government here can do anything about humanist marriages? What is going on?
Lord Ponsonby of Shulbrede (Lab)
The Government are not in favour of Satanist marriages. I think the noble Lord answers his own question: there are other groups that would claim that they have special beliefs which they would want to be reflected through potential secondary legislation. We do not think that is the way to go. We think we need to look at the question in the round, and that is what the Government intend to do.
Lord Dobbs (Con)
My Lords, the noble Baroness, Lady Thornton, made a very eloquent plea, so can the old crusties from this side also join in? It is Labour policy; it is law in Scotland, Northern Ireland and Jersey; and we have been looking at it for ever. Why the delay? Why do the Government have to look at this yet again, when in opposition they were very clear about it? When they have looked at it, what is the timescale? When will the Minister bring the Government’s view back to this House, so that we can deal with something positive?
Lord Ponsonby of Shulbrede (Lab)
My Lords, unfortunately, the timescale is “in due course”. Nevertheless, there is a commitment to look at this and to look at the question in the round. The noble Lord’s question was answered by the noble Lord, Lord Desai: there are other groups that also believe they are special, and they want special recognition—Sharia wives might be one such group. We do not want to legislate by secondary legislation; we do not think that is appropriate in this example. That is why we will take our time and come back with a considered view.
Baroness Burt of Solihull (LD)
My Lords,
“the Liberal Democrats clearly support this change; the Labour Party supports this change; the Government in Wales support this change; the Government in Scotland support this change; and, as we have heard from the noble Lord, Lord Pickles, it is ultimately going to be a political decision, so why are the Government waiting for the Law Commission’s report?”.—[Official Report, 25/04/22; col. 9.]
These are not my words but the words of the Minister himself. I despair, to be honest. The Law Commission has now reported, as he knows. Will he answer now his own question? When will this happen?
Lord Ponsonby of Shulbrede (Lab)
Unfortunately, the answer is the same as the one I gave to earlier questions: it will be in due course. I understand the strength of feeling on this matter. There are a lot of other issues to be considered within this context, and the Government want to take time to do it properly.
The Lord Bishop of Sheffield
My Lords, on these Benches we would welcome humanist wedding ceremonies being given legal status, but the recommendations of the Law Commission go beyond that and would create a free market celebrant-based approach to the wedding industry. I gather that Humanists UK shares our concern that such a move could undermine the solemn nature of marriage, which is never a trivial transaction. Given this unlikely alliance between the Lords spiritual and Humanists UK, can the Minister confirm that the Government will not enact the recommendations of the Law Commission without considering carefully the impact of a further commercialisation of weddings?
Lord Ponsonby of Shulbrede (Lab)
I thank the right reverend Prelate for his question; he makes the point very well. I have heard the phrase “free market approach”, and I have heard people speak about the privatisation of weddings, which would not be the right approach. That is indeed the reason we want to look at this question in the round, and that is what we intend to do.
Lord Keen of Elie (Con)
Those who wish a marriage to be conducted in England without any religious significance have always been able to carry out a ceremony with a registrar. The places in which that marriage may be carried out have been extended. The fundamental issue in the law of marriage in England is that it is based upon the place of the celebration and not the identity of the celebrant, and there is no point in making piecemeal reforms to that basic law. It is therefore time, is it not, for the Government to address the key recommendation of the Law Commission to move from the emphasis on building to the emphasis on celebrant? That is not going to open up a free market in marriage; it will simply ensure that particular groups may be able to qualify as celebrants of a ceremony going forward. Does the Minister agree?
Lord Ponsonby of Shulbrede (Lab)
I agree with the noble and learned Lord. That is an important factor within the wider consideration of this issue. It is also a factor concerning which groups would be included. His point about focusing on the celebrant rather than the building is fundamental.
Lord Meston (CB)
My Lords, although this Question refers only to humanist weddings, it really does concern the unsatisfactory state of the law on the formation and validity of marriages. The inconsistencies and potential for unfairness have been comprehensively shown by the Law Commission in its report, which I remind the House was produced over two years ago. As to humanist weddings, which are part of the wider problem, there remains the anomalous difference between the law applied in England and Wales and the law in Scotland and other places where humanist marriages are recognised without the need for a separate civil ceremony. Can the Government indicate what work is under way to align and modernise the British law overall? At the very least, surely the Government do not want to become responsible for an exodus of lovelorn humanists to Gretna Green.
Lord Ponsonby of Shulbrede (Lab)
I thank the noble Lord, Lord Meston, for his question, and I agree with his premise that the current state of laws regarding weddings is unsatisfactory. Although the current weddings law is contained within the Marriage Act 1949, the fundamental structure of weddings law dates back to the 18th and 19th centuries. There are profound difficulties, and I acknowledge that point. I am giving a commitment that the Government will look at this in the whole and undertake to come back in due course with rounded recommendations to address these issues.
Commission on Justice in Wales
Lord Ponsonby of Shulbrede Excerpts(1 month, 2 weeks ago)
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Baroness Smith of Llanfaes
To ask His Majesty’s Government whether they plan to implement the recommendations of the report of the Commission on Justice in Wales, chaired by Lord Thomas of Cwmgiedd.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)
My Lords, the commission’s report, published in 2019, is substantial and makes 78 recommendations, a significant number of which are for the Welsh Government to consider. There are some recommendations that the Ministry of Justice is either already delivering or has agreed to take forward, including better disaggregation of Welsh data. However, the report’s principal recommendation to devolve justice to Wales goes considerably further than what is in the current Government’s manifesto. Our manifesto made commitments to explore the devolution of services to enable them to be more locally responsive, and as part of that strategic review we will look into probation as part of wider devolution across England and Wales. We will also work with the Welsh Labour Government to consider the devolution of youth justice. Overall, we will work with the Welsh Government to ensure that we deliver justice in a way that best serves the people of Wales.
Baroness Smith of Llanfaes (PC)
My Lords, this month marks the fifth anniversary of the Thomas commission report, which called for the devolution of policing and justice to Wales. The Welsh Labour Government endorse this recommendation in their programme for government for 2021-26. Meanwhile, we have just heard that the UK Labour Government plan only to “explore” devolving youth justice and probation to Wales. Will His Majesty’s Government follow the calls of their Welsh Labour colleagues and take real action by devolving justice and policing to Wales?
Lord Ponsonby of Shulbrede (Lab)
The Welsh Government highlighted, in their May 2022 report Delivering Justice for Wales, the progress that they had made in implementing the Thomas commission recommendations that fall to them. They also commented that implementing the recommendation was delayed partly because of Covid-19. The commitment to pursue the case for devolution of justice and policing was included in the Welsh Government’s programme for government for 2021-26. However, as I made clear in the original Answer to the noble Baroness, the UK Government are not pursuing that option of complete devolution. We want to work in a constructive way on the initiatives that I have outlined to try to make the best possible benefit for the people of Wales.
Lord Thomas of Gresford (LD)
My Lords, why would it not be sensible and cost-effective at least to have a Welsh division of the High Court of Justice sitting permanently in Wales to monitor and construe the legislation of the Welsh Senedd and the administrative acts of the Welsh Executive, with increasing expertise from both lawyers and judges in Wales?
Lord Ponsonby of Shulbrede (Lab)
A lot of matters that are the responsibility of the Welsh Senedd are also cross-border issues. We are talking about police, courts and the way the court system behaves; probation is another example. My understanding is that this matter has been considered and keeping the arrangements as they currently are is seen to be beneficial for both England and Wales.
Lord Wigley (PC)
My Lords, was not the consideration that the Minister referred to a moment ago mainly undertaken under the auspices of the previous Conservative Government? Is now not the time that it would be appropriate to look again at this? Given her remit to look at the relationships with Cardiff and Edinburgh, would this not be a suitable matter for Sue Gray to look into?
Lord Ponsonby of Shulbrede (Lab)
I am the Minister of Justice for devolution and the various countries within the UK. The manifesto has made it clear that we want to work in practical ways for the benefit of the people of Wales. Two points that I made in my initial Answer to the noble Baroness were on probation and youth courts. I know that a number of very positive examples of practice in Wales are better than the average within England and Wales. We want to build on what is positive that is already happening rather than look at the overall devolution of these powers.
Lord Davies of Gower (Con)
My Lords, any observer of Welsh politics these days will not fail to have noticed that the Welsh NHS has 22,000 people on its waiting list awaiting operations, the Welsh education system is the worst in Europe, the Welsh Government are about to spend roughly £150 million on 36 additional Members, and there are vanity projects such as 20 miles per hour everywhere. Does the Minister really believe that the Welsh Labour Government can cope with the complexities of any aspect of the criminal justice system being devolved?
Lord Ponsonby of Shulbrede (Lab)
I notice that the noble Lord is addressing the House from the Back Benches, whereas I understood that he had a Front-Bench position. He is shaking his head, so I apologise. To answer his question, we want to work constructively with the Welsh Government. I personally will be visiting Cardiff and Newport before the end of this month, and I know that many of my colleagues have ministerial visits; we want to work constructively with the local Ministers.
Lord Keen of Elie (Con)
Can the Minister please confirm that, as the newly appointed envoy for devolved nations and regions, Sue Gray should have an oversight of the implementation of this sort of devolved policy? If that is not the case, will he please advise the House what she is going to be doing?
Lord Ponsonby of Shulbrede (Lab)
The simple answer to the noble and learned Lord’s question is that I do not know the answer to his question.
Lord Thomas of Cwmgiedd (CB)
The subject is a complex one; the report was lengthy. Do the Government intend to set out in detail why the report was wrong? It would be very useful to have a chapter-by-chapter explanation of why what was recommended unanimously by a completely apolitical group of experts is thought to be wrong.
Lord Ponsonby of Shulbrede (Lab)
The noble and learned Lord’s report was a large piece of work. As I said in my initial Answer, it is for the Senedd to take forward the vast bulk of the recommendations, and the UK Government are acting on some of the recommendations and are continuing to act particularly on the disaggregation of data. The Labour manifesto made clear that the principal objective of the noble and learned Lord’s report is not one that the current Government share. We want to work in practical ways for the benefit of Wales, and the examples that I gave of youth justice and probation are good examples of that.
Baroness Bennett of Manor Castle (GP)
My Lords, following on from the question from the noble Lord, Lord Wigley, who noted that the Labour Government seem, as in many things, to be following the path of the Tory Government, and picking up the point made by the noble and learned Lord, Lord Thomas, if the Government wish to maintain the union, given that there is rising evidence of interest in independence in Wales, would it not be a good idea to explain clearly to the people of Wales why, as the noble and learned Lord said, the Government are going against this report of independent experts that was very carefully considered?
Lord Ponsonby of Shulbrede (Lab)
It is worth saying that Welsh lawyers and Welsh law firms benefit from being part of the internationally-renowned English and Welsh legal system, and the Welsh people have consistently voted against devolution—the noble Baroness looks confused, but that is the context within which we are dealing with this question. We are clear that there are profound benefits from keeping a combined legal system for England and Wales. A couple of practical examples are in the context of prisons, where there is no women’s prison in Wales nor any category A offender prison. That is not a cost to Wales, but it is beneficial to the combined system as there are savings to be made through not repeating, for example, women’s prisons in different parts of the country. The benefit is there, and we want to protect it and manage the system for the benefit of the people of both England and Wales.
Public Libraries
Lord Ponsonby of Shulbrede Excerpts(2 months, 1 week ago)
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Baroness Rebuck (Lab)
I thank the noble Baroness, Lady Sanderson, for her comprehensive review and recommendations, and thank the noble Lord, Lord Parkinson, for commissioning it. I draw noble Lords’ attention to my interests in the register.
The BBC reported recently that public libraries are in crisis: 800 have closed in nine years; funding has halved, leaving many with reduced opening times; books have been cut by a quarter; and there are fewer computer terminals. However, there are still brilliant libraries busy with rhyme time for babies, homework clubs, employment support, access to local services and cultural activities. This could be the norm. There is no shortage of ideas in this sector, but now is the opportunity for delivery.
The review recommends an awareness campaign, but who would make it work, given that there is no single lead in government to bring policy and funding together? It also recommends a Libraries Minister, while a forthcoming Fabian arts paper suggests adding community digital responsibility, as research shows that 45% of families with children are digitally excluded. The Fabians also ask the BBC to consider local radio, news and community broadcast hubs from libraries to reach a new generation.
Most libraries are run on modest sums, but libraries urgently need a multi-year commitment of funding to plan ahead in the face of local authority funding crises. According to the Reading Agency, low literacy costs us £80 billion a year; as we have heard, its successful universal library membership trial should be rolled out. With a mission-led Government, we can be bold and transformative. My key ask of the Minister is that libraries, prime for action as they are, become central to the mission on breaking down barriers to opportunities; this should join up decision-making, funding and delivery to ensure that libraries guarantee inspiration and opportunities for all.
Lord Ponsonby of Shulbrede (Lab)
My Lords, let me just say that I will be less indulgent with future contributions.
Arrangement of Business
Lord Ponsonby of Shulbrede Excerpts(2 months, 1 week ago)
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The Deputy Chairman of Committees (Lord Kennedy of Southwark) (Lab Co-op)
The Grand Committee is now in session.
Lord Ponsonby of Shulbrede (Lab)
My Lords, before the noble Baroness, Lady Sanderson, opens this debate, I would like to highlight the one-minute speaking time limit for contributions, other than for the noble Baroness or the Minister. I appreciate that this is tight and that many noble Lords will have more to say. It is indeed a reflection of the popularity of the topic. I respectfully ask that all contributions are limited to one minute maximum to protect the time for the Minister’s response.
Arbitration Bill [HL]
Lord Ponsonby of Shulbrede ExcerptsWednesday 11th September 2024
(2 months, 1 week ago)
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The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)
My Lords, perhaps I might read out from Rule 44.2 of the CPR. It says that
“the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but … the court may make a different order”.
There is then considerable further guidance on the assessment of costs in the remainder of Rule 44. I can say, as a non-lawyer, that I think that is pretty clear. I note the point that the noble Lord, Lord Wolfson, made about having some sympathy with the language used, but the language which I just quoted is quite straightforward.
My noble friend Lord Hacking said that he was imploring me and he called the noble and learned Lord, Lord Hoffman, his nemesis. I might be my noble friend’s nemesis as well, because I will be arguing to reject his amendment. Of course, I thank him for tabling it. It is right that it is common practice that arbitrators already have great discretion on this matter under Section 61 of the 1996 Act. The Law Commission has made no recommendations for reform of Section 61, so we believe there is no reason for having a reform that may introduce some level of uncertainty, which we do not believe is necessary.
The previous arbitration Acts of 1889 and 1950 simply provided that costs were at the discretion of the arbitrators but the 1996 Act then provided the current default rule, which mirrored the position in the rules of the Supreme Court, which were the court rules then in force. Although the language has changed with the CPR now in force, the underlying principle is still the same. The CPR, and the RSC before them, take the view that costs should follow the event as a fair default rule. Section 61 allows arbitrators to depart from that rule as appropriate. In substance, therefore, Section 61 already allows the arbitration tribunal to award whatever costs it thinks fair.
The Law Commission received no representations from stakeholders that Section 61 was causing any difficulties in practice, and it is unusual to change the language of an Act if there is no change in principle. Indeed, it is possible that the amendment could be interpreted as a new, untested principle. In the light of this, I am grateful for the opportunity to clarify the current arrangements and would suggest that no amendment is needed. I therefore invite my noble friend to withdraw his amendment.
Lord Hacking (Lab)
My Lords, I intend to withdraw this amendment but perhaps I could say a short word before I do that. Of course, I have to do it because I have no support from anybody; I am doing no better than I did 28 years ago. I still say that this is unfortunate terminology and that it would be much more sensible if we brought the description of what decision should be made by the tribunal on costs into modern language, but if noble Lords like this ancient phrase of following the event they can chase around and look at Mr Justice Bingham’s judgment in Re: Catherine and so forth.
So I am in no better position than I was 28 years ago. However, there is one point I would like to make, which the noble Lord, Lord Wolfson, correctly made when he drew attention to Section 55. He could have drawn attention to Sections 62, 63, 64 or 65, because all of them deal with various provisions that are applicable to the cost issues that the tribunal faces. I respect and agree with that. I agreed with it 28 years ago and I agree with it now, but I still think it would be much nicer if we dropped this strange phraseology of costs “following the event”.
“Appeals to Court of Appeal from High Court decisions(1) In section 18(1) of the Senior Courts Act 1981 (restrictions on appeals to Court of Appeal), for paragraph (g) substitute—“(g) from a decision of the High Court under Part 1 of the Arbitration Act 1996 in a case where that Part makes provision about appeals from the decision, except in accordance with that provision;”.(2) In section 35(2) of the Judicature (Northern Ireland) Act 1978 (appeals to Court of Appeal from High Court), for paragraph (fa) substitute—“(fa) from a decision of the High Court under Part 1 of the Arbitration Act 1996 in a case where that Part makes provision about appeals from the decision, except in accordance with that provision;”.(3) In Schedule 3 to the Arbitration Act 1996 (consequential amendments), omit paragraphs 34(2) and 37(2).”Member’s explanatory statement
This clause corrects a drafting error identified in the House of Lords’ judgment in Inco Europe v First Choice Distribution and makes clear that appeals from High Court decisions under Part 1 of the Arbitration Act 1996 may, subject to provision in that Part, be made to the Court of Appeal.
Lord Ponsonby of Shulbrede (Lab)
My Lords, in this group I will speak to Amendments 3 and 4, tabled in my name.
It has come to light that Clause 13 does not adequately codify the case law on appeals under Part 1 of the Arbitration Act 1996. I have tabled Amendment 3 to replace Clause 13 and correct the root cause of this issue: a drafting error in the 1996 Act that provided for an incorrect approach to appeals under Part 1 of the Act. Allow me to explain both the underlying issue and the approach I am taking to resolve it.
Clause 13 of this Bill as introduced seeks to codify case law regarding leave to appeal decisions on staying legal proceedings under Section 9 of the 1996 Act, namely the House of Lords decision from 2000 in Inco and First Choice Distribution. As such, the current Clause 13 inserts into Section 9 provision that
“the leave of the court is required for any appeal from a decision of the court under this section”.
During the passage of this Bill, certain noble and learned Lords raised the point that Clause 13 as drafted would permit leave for appeal to be sought only from the High Court—the High Court being what is meant by “the court” in the provision. However, the current situation established by case law provides that leave to appeal can be sought directly also from the Court of Appeal. It seems that Clause 13 as drafted would have the effect of inadvertently narrowing the existing position, which was never the intention.
The root cause of this issue is that the 1996 Act made an incorrect consequential amendment to Section 18(1) of the Senior Courts Act 1981 and Section 35(2) of the Judicature (Northern Ireland) Act 1978. In Inco and First Choice Distribution, the late Lord Nicholls of Birkenhead identified that this provision in the Senior Courts Act was originally meant to give effect to restrictions on the right to appeal contained in Sections 1 and 2 of the Arbitration Act 1979. The Senior Courts Act then needed updating to reflect additional appeal restrictions in the 1996 Act. But, as Lord Nicholls put it,
“for once, the draftsmen slipped up”.
The provision in the Senior Courts Act, when read literally, suggests that no appeals against decisions under Part 1 of the 1996 Act are allowed, except where expressly provided for in the 1996 Act. However, the intended and correct position is that appeals are indeed permitted unless expressly restricted by the 1996 Act. Due to this misunderstanding, Clause 13, in inserting its express language on appeals into Section 9 of the 1996 Act, establishes restrictions on those appeals. Accordingly, the provision that
“the leave of the court is required for any appeal from a decision of the court under this section”,
as used in other sections of the 1996 Act, is intended as a restriction providing that leave under those sections can be sought only from the High Court. As it was not the intention of the Law Commission or the Government to add such a restriction on Section 9 appeals, we must correct it.
Simply amending Clause 13 to permit direct appeals to the Court of Appeal under Section 9 could raise questions about other sections of the 1996 Act and whether similar provision should also be made elsewhere. Deleting Clause 13 would maintain the current appeal process but miss the opportunity to fix the issue properly. This seems remiss, given that the clear objective of this Bill is to refine and clarify our arbitral framework.
Amendment 3 therefore rectifies the underlying issue. It replaces the current Clause 13 with amendments to the Senior Courts Act 1981 and the Judicature (Northern Ireland) Act 1978. These clarify that appeals against High Court decisions under Part 1 of the 1996 Act, including under Section 9, may, subject to provision in that part, be made to the Court of Appeal. This will establish beyond doubt the current position on appeals.
Amendment 3 also necessitates a change to the Bill’s Long Title, which is currently:
“A Bill to amend the Arbitration Act 1996”.
However, under Amendment 3, it will now also amend the Senior Courts Act 1981 and the Judicature (Northern Ireland) Act 1978. This will not practically widen the scope of the Bill, given that it modifies that other legislation only to the extent that it relates to the 1996 Act. Nevertheless, Amendment 4 is required and updates the Long Title, adding “and for connected purposes”. I beg to move.
Lord Beith (LD)
My Lords, we support this amendment and are grateful to the Government for bringing it forward. The Minister’s remarks could usefully be framed and provided as an object lesson in the fact that drafting really does matter and that, when it goes wrong, the consequences mount up in subsequent legislation. He illustrated that well.
Lord Wolfson of Tredegar (Con)
My Lords, I am personally grateful to the Minister for engaging with me and others on this. These are technical matters, but it is important to get them right. I acknowledge the assistance I have had from my colleague Toby Landau KC, who, as the noble Lord, Lord Hacking, said on the previous group, did a lot of work on the original DAC report. I also acknowledge members of the Law Commission team with whom the Minister and I have both engaged, especially Nathan Tamblyn.
As the Minister said in moving his amendment, in Inco Europe, Lord Nicholls of Birkenhead, with whom the rest of the Appellate Committee agreed, said:
“I am left in no doubt that, for once, the draftsman slipped up”.
He put it in those terms because, again, as the noble Lord, Lord Hacking, said on the previous group, this is an extremely well-drafted Act. It is probably one of the best-drafted Acts on our on our statute book. To pick up the other phrase that Lord Nicholls used in that case, for once, Homer had nodded. This amendment rectifies the position—I am not sure what the opposite of nodding is, but, whatever it is, it puts Homer’s head back upright. I am grateful to the Minister for bringing forward this amendment, which we support.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank both noble Lords for their support for this amendment. I agree with noble Lord, Lord Beith, that drafting matters, and I agree with the points made by the noble Lord, Lord Wolfson. I note the support given to him by those individuals, including Toby Landau, who was an expert witness in the previous consideration of these matters.
Member’s explanatory statement
The amendment amends the long title to cover my amendment to replace Clause 13.
Arbitration Bill [HL]
Lord Ponsonby of Shulbrede ExcerptsWednesday 11th September 2024
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The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)
My Lords, I thank the noble Lord, Lord Wolfson, for welcoming me to my current position; I am very glad that he has 20/20 eyesight and is looking at these matters so closely. I am also thankful to my noble friend Lord Hacking for initiating this debate. He said very clearly when he introduced his amendment that he supports the Bill, and I am grateful for that. He is again raising the issue of protecting the arbitral process against corruption, and of course that is extremely important. Having considered this very carefully, the Government’s position is that our framework already provides a robust regime and that no law reform is necessary. A tribunal, like a court, must always guard against fraud and corruption, and I will explain what mitigations our existing regime already provides.
Under Section 33 of the Arbitration Act 1996, the tribunal is already under a duty to “act fairly and impartially”, and to
“adopt procedures suitable to the circumstances of the … case”.
An arbitrator who is corrupt would fail in their duties under Section 33. Furthermore, the arbitrator’s appointment can be revoked by the parties under Section 23, or an arbitrator can be removed by the court under Section 24. An arbitrator who acts in bad faith loses their immunity under Section 29 and can be sued.
When arbitral proceedings are tainted by fraud or corruption in the arbitral process, any arbitral award can be challenged in court under Section 68 for serious irregularity, as indeed was successfully done in the recent case of Nigeria v P&ID, which we heard about earlier. Indeed, the reason why arbitral corruption is currently a talking point is that the court identified corruption and prevented abuse in that case. Arbitral awards can also take account of corrupt conduct and deprive a corrupt party of any arbitral award which is sought to permit fraud or corruption. It would be unenforceable as contrary to public policy under Section 81. It is possible for an arbitrator to publish their award and denounce the fraud publicly. In ruling an award to be unenforceable, the court can also publish its judgment publicly. The scheme under the 1996 Act is sufficient and has not revealed any deficiency in practice.
The Government oppose legislative reform here precisely because it is unclear what additional benefit it would provide over the current regime, which provides both parties and arbitrators with routes to challenge and address corrupt conduct, as well as duties on the arbitrator to ensure fair and proper proceedings. A new, untested measure may simply introduce uncertainty for both parties and arbitrators.
The 1996 Act and the modernising impact of this Bill are designed to ensure robust and efficient arbitral proceedings. Our framework provides this balance and well equips the tribunal and courts to deal with corruption. The Government will continue to support the sector’s efforts on arbitral corruption. We will keep track of initiatives that are under way, such as that of the ICC anti-corruption task force, to which a number of noble Lords referred, and engage with the sector to push for the swift adoption of best practices as they are developed. I hope that this explanation reassures my noble friend and that he will withdraw his amendment.
To go a little further, as noble Lords are aware the previous Government wrote to leading arbitral institutions seeking views on the mitigations that are currently in place and whether more are needed. I understand that responses were received from the Chartered Institute of Arbitrators, the International Chamber of Commerce, the London Court of International Arbitration, the London Maritime Arbitrators Association and the Grain and Feed Trade Association, in addition to the Law Society and the Bar Council.
All those institutions mentioned mitigations they had in place against corrupt conduct. None expressed support for amending the Arbitration Bill to strengthen anti-corruption. In addition, concerns were raised that a one-size-fits-all approach would be ineffective and risk unintended consequences. Nigeria v P&ID was raised as a highly unusual case where the court effectively performed its proper role in setting aside the award. Where a role was suggested for the Government, it was in ensuring that the courts continue to be equipped to provide checks in cases put before them, as they did in the Nigeria case, and to engage in discussions with the sector and promote its work combating corruption.
The noble and learned Lords, Lord Bellamy and Lord Thomas, and the noble Lord, Lord Beith, raised the issue of the letters and whether they could be published. I am unable to share those letters. The noble and learned Lord, Lord Bellamy, can see the letters that were responded to when he was a Minister, but they were written specifically to him in that role. I would not necessarily be able to see those letters, which would create a difficult situation. I understand that a couple of letters came in when the new Government were formed. But I can say with complete confidence that the substance of those letters was explained and explored within the letter that I wrote to the noble and learned Lord, Lord Bellamy, which is in the public domain. I am confident that if I was wrong somehow in asserting that the substance was inaccurate, those various bodies would be able to draw that to my attention. I am confident that the substance of the letter I wrote on 15 August is completely accurate. I hope that noble Lords will accept that.
A number of noble Lords spoke of their reasons for opposing my noble friend’s amendment. They said that it might well be duplicative, unnecessary and problematic in various ways, which they explored. I have to say that I agree with the noble Lords who made those points.
In closing on one point, the noble Lord, Lord Wolfson, asked about relevant arbitral bodies being given a nudge regarding corruption. They are of course perfectly able to do that. It would be beneficial, and maybe they should remind themselves that they have that responsibility to give a nudge if they suspect corruption in particular cases. So, having said all that, I ask my noble friend to withdraw his amendment.
Lord Hacking (Lab)
My Lords, it is my intention to withdraw my amendment, but perhaps I could say just a few words after a fairly long debate on it. First, I thank those noble Lords—there were several—who accepted the principle that I sought to express. It was nice to have that support but, as was very clear, not one noble Lord accepted my amendment. Therefore, I am not exactly in a strong position to press it now, or indeed on Report.
I did not realise when I cited three cases put before us by Spotlight on Corruption that the noble Lord, Lord Wolfson, was counsel on every one. So he has extensive knowledge—greater than that I gave him credit for in my opening words.
One thing that has been missed in this debate—it was the first point I made—is that I wanted us, by legislation, to set out our standard. I described the first importance of my amendment as putting a flag in the ground so that the world may know that, in arbitration proceedings where England is the seat of the arbitration, we will not countenance corruption and fraud. I still think that is an important point.
I did not know when I got up to speak that there would be such a formidable line of noble and learned Lords alongside me, including the former Lord Chief Justice, who has not actually spoken but who has a devastating commitment to good argument, so I am not inviting him now to make any interventions because he will make some argument that will totally defeat what I am trying to say.
The noble and learned Lord, Lord Hoffmann, said that he thought my amendment was impractical, and of course arbitral tribunals do not have the power of investigation. The point I was making was that, at the commencement of the arbitration, the arbitral tribunal could speak to both counsel and the parties who should be present at the inaugural meeting and remind them of the seriousness of rooting out any corruption or fraud. I also point out, as a former counsel and solicitor, that when you take instruction from a client, and statements from clients’ witnesses, you have a lot of opportunity to know what is going on. So there is a role for counsel and the parties in rooting out corruption, and that is why I thought it useful to have this revision.
The noble and learned Lord, Lord Hope, said that the committee—which was so well chaired by the noble and learned Lord, Lord Thomas—had not reached any view about corruption. There was in fact a reason for that. I do not know whether the noble and learned Lord, Lord Thomas, is listening, but we received these two reports from Spotlight on Corruption at his instigation, and his view, and that of the committee, was that under the timetable we were working to, this was too big an issue for us to take on. That is why we made no pronouncement on that subject.
My Front Bench is getting a bit restless, but I am sure that there will be plenty of time to consider the next amendment. I rather get the feeling that there will be an intervention now in Committee on the Arbitration Bill and we will debate another excitement. I am withdrawing this amendment, but I hope that noble Lords have heard and agree that this is a continuing matter. I am particularly grateful to my noble friend for his promise to keep this under review—and may it continually be kept under review.
Arbitration Bill [HL]
Lord Ponsonby of Shulbrede ExcerptsTuesday 30th July 2024
(3 months, 3 weeks ago)
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The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)
My Lords, I thank noble Lords for their interest in the Law Commission’s review of the Arbitration Act 1996 and this Bill, which enacts the commission’s recommendations. Many of your Lordships will be aware of the Bill’s history, but let me provide a summary of it for the record.
In 2021, the Ministry of Justice asked the Law Commission of England and Wales to carry out a review of the Arbitration Act 1996, which provides the arbitral framework for England, Wales and Northern Ireland. The purpose of the review was to ensure that our world-renowned arbitration laws remain just that—world leading and fit for purpose in a changing business landscape.
The commission conducted two public consultations before laying its report and draft Arbitration Bill before Parliament on 5 September 2023. This report was widely praised for recommending measured rather than wholesale reforms of the 1996 Act to bring the law up to date and modernise the arbitral framework.
That Arbitration Bill was introduced into this House in November 2023, in the final Session of the last Parliament, by the noble and learned Lord, Lord Bellamy. It progressed through a Special Public Bill Committee, of which I was a member, under the Law Commission Bill procedure. That committee held an evidence-taking process chaired by the noble and learned Lord, Lord Thomas of Cwmgiedd, which marshalled expert views from practitioners, academia and the judiciary. The Bill was amended in response to the evidence gathered, and I will return to those changes shortly.
I am pleased to bring these reforms before Parliament again, as it is clear to me, from my position on the committee, that the Law Commission’s recommendations for reform commanded strong support from the sector and were the result of extensive consultation. By supporting our arbitration sector, this Bill will help to deliver one of this Government’s guiding missions: to secure economic growth.
The benefits that arbitration brings to this country are plain to see. The Law Commission estimates that the sector is worth at least £2.5 billion to the British economy each year, while according to industry estimates, international arbitration grew by some 26% between 2016 and 2020. Of course, London remains the world’s most popular seat for arbitration by some stretch.
However, we face healthy competition from Singapore, Hong Kong, Sweden and Dubai. They have all updated their arbitration frameworks in recent years and our legal system too must continue to adapt and evolve if we are to remain ahead of the curve. The changes this Government bring forward now will undoubtedly be a foundation for future success, although we are also clear that they represent evolution not revolution. I am therefore delighted that this Government have been able to prioritise time so early in this Session to legislate for these reforms to the 1996 Act and to support this crucial sector.
The Bill takes forward the full set of reforms recommended by the Law Commission. It also incorporates the minor and technical improvements that were made as amendments to the former Bill. There has also been one further change made to Clause 1 to address a point raised on investor-state arbitrations. For brevity, I will summarise only the key provisions of the Bill now and point out the revisions as I do so.
First, Clause 1 clarifies the law applicable to arbitration agreements by providing that the law governing the arbitration agreement will be the law expressly chosen by the parties; otherwise, it will be the law of the seat. An express choice of law to govern the main contract does not count as an express choice of law to govern the agreement to arbitrate. Clause 1 will provide greater certainty as to the law underpinning arbitration agreements, and ensure that arbitrations conducted in England, Wales and Northern Ireland are supported by our arbitration law, where appropriate. Here, we retain the change to Clause 1 made by the Law Commission draft Bill, which removed the words “of itself” from inserted Section 6A(2), as they were thought to be unnecessary and to cause confusion.
We have also made an additional change to Clause 1. Clause 1 now provides that the new default rule on governing law does not apply to arbitration agreements derived from standing offers to arbitrate contained in treaties or non-UK legislation. The reasons why are as follows. There were concerns raised during the previous Bill’s passage that Clause 1 should not apply to some investor-state arbitration agreements; that is, those arising under offers of arbitration contained in treaties and foreign domestic legislation. Sector feedback was that such arbitration agreements are, and should continue to be, governed by international law and/or foreign domestic law.
The Government agree that it would be inappropriate for a treaty—an instrument of international law—to be interpreted in accordance with English law principles. Likewise, we should not subject foreign domestic legislation to English law rules of interpretation, rather than its foreign law. To apply Clause 1 to these arbitration agreements may have discouraged states from choosing London as a neutral venue for their investor-state arbitrations. Just as investor-state arbitrations with the International Centre for Settlement of Investment Disputes have their own separate regime, so too should non-ICSID investor-state arbitrations be treated separately in the matter of governing law. This change will ensure that will be the case.
Lastly on Clause 1, noble Lords have also brought to my attention a further matter requiring clarification. It is possible that issues may arise which are not expressly provided for by the inserted Section 6A; in particular, where there is no choice of seat in the arbitration agreement and no seat has yet been designated by the tribunal or the court. This rare issue was considered by the Law Commission in its final report, and the Government are confident that the courts will be able to resolve such matters through common law. We will also update the Explanatory Notes in due course to make this point clear.
I move on to the other key measures in the Bill. Clause 2 codifies a duty of disclosure for arbitrators that will protect the principle of impartiality and promote trust in arbitration. This duty will apply prior to the arbitrators’ appointment when they are approached with a view to being appointed. It is a continuing duty that also applies after their appointment ends.
Clauses 3 and 4 strengthen arbitrator immunity against liability for resignations and applications for removal. This will support arbitrators in making robust and impartial decisions.
Clause 7 empowers arbitrators to make awards on a summary basis on issues that have no real prospect of success. This will improve efficiency and aligns with summary judgments available in court proceedings.
Clause 8 will boost the effectiveness of emergency arbitration by empowering emergency arbitrators to issue peremptory orders and make relevant applications for court orders.
Clause 11 revises the framework for challenges to an arbitral tribunals jurisdiction under Section 67 of the 1996 Act. This will allow new rules of court to provide that such applications should contain no new evidence or new arguments. That will avoid jurisdiction challenges becoming a full rehearing, thereby preventing further delay and costs. Clause 11 also retains the improvements made to the previous Bill, including: the inclusion of subsection (3D), which makes it clear that the general power of the Procedure Rules Committee to make rules of court is not limited as a result of the provision; the change in subsection (3C), which ensures that the court rules within must provide that the restriction is subject to the court ruling otherwise in the interests of justice; and the change in the drafting of subsection (3C)(b), which clarifies that the evidence mentioned includes oral as well as written evidence.
These measures extend to England, Wales and Northern Ireland. They will apply to arbitration agreements whenever made but not to proceedings commenced before these measures come into force. There are other more minor yet quite worthy reforms in the Bill that I have not covered here but which I would be pleased to discuss during this Bill’s passage.
The Bill will enable efficient dispute resolution, attract international legal business and promote the UK’s economic growth. I welcome noble Lords’ participation in this debate.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I am grateful to all noble Lords who have taken part in the Bill. Although it is a very short list of speakers, it is fair to say there are a number of other noble Lords who said that they are sorry not to be here, and have also said to me personally that they would have supported the Bill.
I will start with the comments of the noble Lord, Lord Beith. I agree with his overall point, which is that there has been a lot of process on the Bill and that we really need to conclude the Bill as soon as possible—we have written to all the arbitration institutions, and all the people who gave evidence in the process for the previous Bill, and that is a common theme in the responses we have had. I have been lobbied separately by numerous groups to say that they want the Bill to be concluded.
I turn to my noble friend Lord Hacking, who raised the issue of corruption. This of course is a serious matter, and I do not know the answer to the question raised by the noble and learned Lord, Lord Bellamy, about the responses to the letters he wrote to the institutions. I will see whether those letters have come back and will write to the noble and learned Lord and my noble friend, and copy it to other noble Lords. I am happy to have a private meeting with my noble friend, but my point is that we do not want anything that will hold up the current Bill. It has had a lot of process, and it is to the benefit of the arbitration process that it is concluded as quickly as possible. However, I will meet my noble friend when he wishes.
Lord Hacking (Lab)
My noble friend would have heard my worry that the opportunity for arbitration reform is an opportunity that does not arise until a number of years have passed. Can he give any assurance that, as corruption is a serious issue—I think he recognises that—this Government will support this further investigation into corruption and whether any legislation relating to arbitration law should be brought in, and fairly swiftly?
Lord Ponsonby of Shulbrede (Lab)
We are always open-minded about addressing problems. We need to scope out the true extent of the problem, which is why I have offered to write to noble Lords about the responses that we may have received—I do not know the answer to that—to the letter written by the noble and learned Lord, Lord Bellamy, when he was the Minister concerned.
I turn to other points. The noble and learned Lord, Lord Bellamy, was very gracious to me in his opening, and I thank him for that. I certainly intend to behave as a Minister as he behaved when he was a Minister, and to consult with colleagues across the House to try to make sure that we focus on the real issues of difference between us, rather than any other matters that may distract us. I will take a leaf out of his book about how I conduct myself in trying to achieve that.
The noble and learned Lord asked about the possibility of carryover for uncontentious Bills between Parliaments. I will bring that comment to my noble friend’s attention. I do not know what the reaction will be, but it seems a sensible idea to me.
The second point the noble and learned Lord made concerned the choice of seat. I had a discussion with the noble Lord, Lord Wolfson, about this very issue, and my opening speech referred to it. I agree that we should have confidence in our judges, and perhaps some extra words can be added to the explanatory notes to reflect the position. We have undertaken to look at that.
The noble and learned Lord also raised an issue concerning Clause 13. I will have to write to him about that as well, as I am not sighted of that issue.
In conclusion, this Bill achieves a balance. It neither seeks to fix what is not broken, nor does it sell short the potential of our jurisdiction. Growth is a fundamental mission of this Government, and this Bill plays its part. I thank all noble Lords who have taken part in this short debate, and I look forward to interacting with them as the Bill progresses.
Fundamental Rights and the Rule of Law
Lord Ponsonby of Shulbrede Excerpts(3 months, 4 weeks ago)
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Baroness Chakrabarti (Lab)
My Lords, with the caveat that the word “eater” on today’s list should read “greater”, I beg leave to ask the Question standing in my name on the Order Paper.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)
My Lords, as the Prime Minister has made clear, the UK is unequivocally committed to the European Convention on Human Rights. My right honourable friend the Lord Chancellor has said she will champion the rule of law at home and abroad, and my noble and learned friend the Attorney-General has described it as our lodestar. We are committed to rebuilding public trust in our political system by explaining how the rule of law serves us all and by promoting human rights as British values.
Baroness Chakrabarti (Lab)
I am grateful to my noble friend the Minister—it is very nice to be able to say that—for that Answer. The Human Rights Act 1998 was a wonderful innovation: a modern bill of rights for this country. There was very little public education and information to go with it, and that has made it vulnerable to attack and misrepresentation, including from allegedly moderate Conservative leadership candidates, even today. Will the Government therefore now use this second opportunity and every resource available, digital and otherwise, in government, to put things right?
Lord Ponsonby of Shulbrede (Lab)
I thank my noble friend for that question. We consider that the UK’s three national human rights institutions, each with specific jurisdictions and functions, have a role in this. They are the Equality and Human Rights Commission, the Northern Ireland Human Rights Commission and the Scottish Human Rights Commission. Each has an “A” status, as rated by the UN, and a role in promoting human rights and awareness of human rights within the United Kingdom.
My noble friend’s original Question went wider than that, to include reinvigorating an appreciation of human rights. While the bodies I have just described have a statutory responsibility, there is nothing to stop central government doing that as well. As I think I pointed out in my initial Answer, both the Lord Chancellor and Attorney-General take this matter extremely seriously and see it as central to what they are doing.
My noble friend also referred to today’s press reports. Tom Tugendhat MP said in his pitch to be leader of the Conservative Party that he is ready to leave the ECHR. That is in marked contrast to what the leadership of the Government are saying.
Lord Oates (LD)
My Lords, does the Minister agree that respect for human rights and the rule of law are key pillars of any free society, both at home and abroad? The Government will be aware of the brutal arrest and detention of Zimbabwe opposition leader Jameson Timba and 78 of his supporters, including a mother with a one year-old child. They have now been detained for 39 days in appalling conditions and denied their constitutional right to bail by a captured judiciary. Will the Minister make it clear that the new Government stand with all people standing up for their fundamental rights? Will he ask his ministerial colleagues to convey this message strongly to the Government of Zimbabwe?
Lord Ponsonby of Shulbrede (Lab)
I thank the noble Lord for his question. I am not sighted on that issue, but I will absolutely take up his suggestion that the relevant Ministers make clear their position regarding the importance of human rights in all parts of the world, and in the example he gave as well.
Lord Alton of Liverpool (CB)
My Lords, the noble Lord will know that the House of Commons has accused the Chinese Communist Party of genocide in Xinjiang against the Uighur Muslim population. He will also know that the health of 76 year-old British national Jimmy Lai, who is being kept in a cell along with 1,800 other political prisoners, is deteriorating. What is the Government’s view on the continued presence of British judges dignifying the courts of Hong Kong?
Lord Ponsonby of Shulbrede (Lab)
I thank the noble Lord for that question. Hong Kong is a friend of ours, and this means we can have a frank exchange of views on human rights matters, which the Government continue to do. The noble Lord raised a specific question about Jimmy Lai and the other prisoners detained in Hong Kong. I will make sure that that is brought to the attention of my noble friend Lord Collins, who is directly responsible for these matters. If necessary, he will write to the noble Lord.
Lord Lexden (Con)
My Lords, have the Government been advised to establish whether it is compatible with the European convention to slap VAT on independent school fees? The noble Lord, Lord Pannick, does not believe it is.
Lord Ponsonby of Shulbrede (Lab)
The advice we have received is that it is within the law, and we have every intention of carrying it out as soon as is practicable.
Lord Keen of Elie (Con)
My Lords, Michael Forst, the UN special rapporteur on environmental defenders, recently displayed a profound ignorance of the rule of law when he suggested that the Government should intervene with the judiciary over the legitimate and necessary sentences passed on the M25 Just Stop Oil conspirators. Will the Minister take steps to educate the rapporteur about the application of the rule of law and the separation of powers in the United Kingdom?
Lord Ponsonby of Shulbrede (Lab)
My Lords, of course it is for judges to sentence as they see fit within sentencing guidelines—whichever case it is. It is important that peaceful protest is a vital part of our democratic society. It is a long-standing tradition in this country that people are free to demonstrate as they want, as long as they do it peacefully and within the law. But there is a balance to be struck. The rights of protestors must be weighed against the rights of others to carry out their daily activities without fear of intimidation or significant disruption. Peaceful protest does not include violent or threatening behaviour, and the police have the power to address this, as they have done.
Baroness Whitaker (Lab)
My Lords, I am delighted to congratulate my noble friend on his role. Will he recognise the role in human rights of non-statutory bodies such as the British Institute of Human Rights? I declare my interest as an advisory board member. It trains many public servants in how to implement equality and human rights legislation. Will he also note that there is a certain absence of teaching human rights in schools? We do not have a written constitution, like the Gettysburg Address, which can be easily communicated to young people, so we should do more to let them know what rights actually consist of.
Lord Ponsonby of Shulbrede (Lab)
I agree with my noble friend. There is an absence of teaching civic rights in our schools, and we could do more on this. Given the new focus on and enthusiasm for human rights, the various non-governmental bodies to which she has referred can play a greater role in promoting human rights in our society.
Lord Carter of Haslemere (CB)
My Lords, the Independent Human Rights Act review of 2021, led by Sir Peter Gross, recommended a programme of civic and constitutional education in our schools and universities. Does the Minister agree that this is essential to ensure that our human rights framework develops to meet the needs of society?
Lord Ponsonby of Shulbrede (Lab)
Yes, I think I do agree with the noble Lord, Lord Carter. I spoke to Sir Peter Gross about this a number of years ago, and I will make essentially the same point that I have made in answering other questions from noble friends. There is a role for greater promotion within our schools, and that should be seriously looked at.
Baroness Bennett of Manor Castle (GP)
My Lords, in a speech to the Institute for Government on 10 July 2023, the then Attorney-General said:
“Laws should be accessible, intelligible, clear, and predictable”.
The last two questions have referred to the difficulty and lack of understanding of the UK’s constitutional arrangements. Our constitution, accreted by centuries of historical accident, fails to fit the criteria the Attorney-General set out. Are the Government prepared to set out a path towards a modern, democratic, functional written constitution?
Lord Ponsonby of Shulbrede (Lab)
I think the short answer to that is no. The accretion of laws the noble Baroness refers to is the common law system. She is shaking her head, but that is an accretion of laws over centuries. All the lawyers I have spoken to are very proud of it and think it a flexible system. Many times, it is a better way of dealing with changing circumstances than primary legislation. We want to keep that flexibility in our current arrangements.
Strategic Lawsuits Against Public Participation
Lord Ponsonby of Shulbrede Excerpts(4 months ago)
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Baroness Stowell of Beeston
To ask His Majesty’s Government what plans they have to introduce legislation to prevent ‘strategic lawsuits against public participation’.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)
My Lords, the Economic Crime and Corporate Transparency Act 2023 was a positive and significant step forward in tackling SLAPPs relating to economic crime. The Government are now carefully considering options to tackle SLAPPs comprehensively. I know that the noble Baroness has a long-standing interest in this area, and I assure her that the Government are taking the matter very seriously and are establishing working parties, working at pace to try to address this issue.
Baroness Stowell of Beeston (Con)
First, I welcome the noble Lord to his new appointment. It is very important for us to understand that SLAPPs are related not just to economic crime. SLAPPs are illegitimate and aggressive lawfare, used by all kinds of the rich and powerful to silence politicians, journalists and public bodies. They are an abuse of our legal system, and they are a threat to press freedom. Before Dissolution, we were very close to outlawing SLAPPs in their entirety, through the then Government supporting a Labour MP’s Private Member’s Bill. Would the Minister ensure that his Government supported another Private Member’s Bill, if another MP was to bring forward a revised version that incorporated all the amendments and agreements reached with the previous Government before the general election? If not, could he commit to the Government bringing forward their own legislation in this first Session of Parliament to outlaw SLAPPs comprehensively?
Lord Ponsonby of Shulbrede (Lab)
I agree with the first point that the noble Baroness made. It is not just about economic crime, and that is one of the reasons why we want to have a wider review of potential SLAPPs legislation coming forward. I am not in a position to make the commitment that the noble Baroness has asked for around when any legislation might come forward, but I reassure her that we are taking this matter very seriously. On the Private Member’s Bill that fell at Dissolution, we support the principle behind it. However, we believe that there are outstanding questions that need to be properly balanced. That is to prevent the abuse of the process of SLAPPs, about which the noble Baroness spoke, but we also need to protect access to justice for legitimate claims. It is that balance that needs to be fully worked through. There were live discussions with important stakeholders—for example, the Law Society—at the time of the previous Private Member’s Bill. We have every intention of continuing those discussions as we review any potential legislation.
Lord Thomas of Gresford (LD)
The Private Member’s Bill that I produced on the abusive SLAPPs civil litigation, which was given its First Reading in the last Session of the last Parliament, was based on the Ontario model, which was approved in the Supreme Court of Canada as recently as last year and provides a way forward. It was also well received, as I recall, by the Ministry of Justice. Will the Minister take that into account?
Lord Ponsonby of Shulbrede (Lab)
My Lords, there are various attempts at dealing with SLAPPs in different legislatures across the world. The Government are currently working with the Council of Europe, with its 46 member states, to try to get a more comprehensive approach. The noble Lord’s experience in Ontario, which he referred to, will be taken into account.
Lord Faulks (Non-Afl)
My Lords, I congratulate the noble Lord on his appointment. He is of course doubly there—he is not only elected but appointed, which gives him particular status on the Front Bench. I sympathise greatly with his position in the Ministry of Justice, which he will much enjoy. He will remember the terms of the amendment put down to the then Economic Crime and Corporate Transparency Bill; it was a start, but will he agree that it is important that we have really muscular legislation? Can he bear in mind that his own Foreign Secretary said that these SLAPPs have the effect of
“stifling effectively not just the rule of law and freedom of speech, but particularly going to journalists doing their job”?
Lord Ponsonby of Shulbrede (Lab)
Regarding the noble Lord’s opening comments, I am a hereditary Peer, though not an elected one, but I am a life Peer, which is the reason I am standing here at the moment. The noble Lord is absolutely right: my right honourable friend David Lammy has expressed very strong views on this matter, which is one that the Government are taking seriously. As I tried to reassure noble Lords in my earlier answers, we want to get this right and to be trenchant in the legislation that we bring forward.
Lord Cromwell (CB)
Does the Minister agree that any further legislation coming forward on SLAPPs should enable the judge to determine the intent of the litigant by their actions as to whether they are trying to harass the defendant? Will the legislation further make clear that no level of such harassment is acceptable?
Lord Ponsonby of Shulbrede (Lab)
I thank the noble Lord for that question. SLAPPs represent an abuse of the legal system, where the primary objective is to harass, intimidate and financially and psychologically exhaust one’s opponent via improper means. Judges are able to assess that. One objective of any forthcoming legislation will be to give them greater capacity to assess improper use of these objectives within the court’s process.
Lord Keen of Elie (Con)
I welcome the Minister to his place on the Front Bench. As has been indicated, SLAPPs often involve an insidious abuse of domestic legal systems in order to intimidate investigative journalists, or indeed human rights defenders. At the same time, it is necessary to balance any consideration of that with the issue of access to justice. The issue of harassment can sometimes be a somewhat subjective one. However, at the end of last year, the European Union published a directive to address SLAPPs and how they might be dealt with in domestic jurisdictions. The Minister may not yet have had an opportunity to consider that directive. Will he undertake to do so, lest it might give some guidance to our way forward as well?
Lord Ponsonby of Shulbrede (Lab)
I thank the noble and learned Lord for that question. I am happy to give that undertaking. As I mentioned, there is a Council of Europe initiative going on, but clearly we should, and we will, look at the EU directive.
Lord Browne of Ladyton (Lab)
My Lords, I welcome my noble friend to the Dispatch Box. Recognising that the Government are planning a review, do they still agree that there is an urgent need for a stand-alone anti-SLAPP Bill, and that the lack of legislation will see SLAPP litigations continue? In the words of our right honourable friend the Foreign Secretary, as already mentioned, and as reported in the i newspaper on 3 June, they will continue effectively to stifle
“not just the rule of law and freedom of speech, but particularly … journalists doing their job to throw a spotlight and transparency on the most egregious behaviour of oligarchy, plutocracy, and very corrupt individuals doing bad things”.
Surely we need to stop that as soon as possible.
Lord Ponsonby of Shulbrede (Lab)
I agree with everything that my noble friend has said. I cannot make a commitment to a stand-alone Bill, but there is nevertheless an urgent need for legislation. My noble friend may be interested to know that the number of Russian litigants appearing in judgments from the Commercial Court has more than halved in the year to March 2024, falling to 27 from a record high of 58. We believe that that is a result of the successful UK sanctions regime taking effect.
Viscount Colville of Culross (CB)
My Lords, to build on the question from the noble Lord, Lord Cromwell, surely it would be better for a judge to be able to infer the intention of a SLAPP litigant based on their actions, rather than, as happens at present, having to infer the litigant’s state of mind, which is so hard to determine.
Lord Ponsonby of Shulbrede (Lab)
I agree with that point, but it is a complex question and we want to look at it in the round.
Lord Garnier (Con)
My Lords, I declare an interest, in that I have been practising at the defamation Bar since the mid-1970s. Much has been said in this House and in Committee about the need for SLAPP laws. I invite the Minister to look, if he can, at the letter I wrote to his predecessor, my noble and learned friend Lord Bellamy, on this very subject just before the election; if he cannot look at it, I will send him a copy. Will he also undertake to put this matter before the Law Commission, so that we can generate rather more light than heat?
Lord Ponsonby of Shulbrede (Lab)
My Lords, I am happy to look at the letter and to consider whether the matter should go before the Law Commission.