Arbitration Bill [HL]

Debate between Lord Ponsonby of Shulbrede and Lord Beith

Committee stage
Wednesday 11th September 2024 Lords Chamber

[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.

Sentencing Act 2020 (Amendment of Schedule 21) Regulations 2023

Debate between Lord Ponsonby of Shulbrede and Lord Beith

Tuesday 12th December 2023 Grand Committee

[Lord Beith (LD)]

I am very grateful to the Minister for his introduction and his helpful and illuminating response on the matters that I raised in my intervention. As he said, these regulations carry out the intention to address murder related to domestic violence and coercion. The intention was expressed in Schedule 23 to the Sentencing Act 2020 and follows the Clare Wade report. We support these provisions, which take into account the context of controlling and coercive behaviour in relationships, treating them as an aggravating factor in sentencing for murder or, in the case of a murder by a victim of a controlling relationship, as a mitigating factor.

The regulations introduce the concept of overkill—a word which bothers me as much as it did the Minister as being inadequate to describe the use of violence in excess of what would have been required to kill the victim—as an aggravating factor, not least because of the deeply distressing impact of some of these horrific murders on victims’ families.

However, I have some concerns. I begin with those raised by the Secondary Legislation Scrutiny Committee, one of which has been referred to by the Minister. The reference to consultation with the Sentencing Council blandly and misleadingly fails to mention the council’s concerns, including about the wording of the overkill provision. The Explanatory Memorandum should explain using all the relevant facts. It should not obscure by omission. I presume the revised wording has met some of the council’s concerns, but I would be grateful for some clarification of that as it was raised quite forcefully by the scrutiny committee.

The scrutiny committee also questioned the failure to include other provisions proposed in the Government’s response to the Wade review. We had a helpful explanation from the Minister that things are moving on and that the new Lord Chancellor has indeed taken up the concerns and included them in draft legislation. Indeed, I was a bit surprised by the Government’s defence that the earlier omission of some of the recommendations was because these statutory instruments were an interim response, but I will not criticise further because there is obviously progress on that front. I rather agree with the committee that

“in general, it is better policymaking to make all related changes at the same time”.

More than that, I argue that it makes for more coherent legislation if you put things in the same piece of legislation.

In supporting these provisions, I must, however, make clear what they cannot do. In the first case, they cannot and should not remove the judge’s ability to take into account all the relevant circumstances of the case when passing sentence. Justice should not be blind or deaf to the many different issues that may emerge in evidence or in mitigation. The judge must justify deviation from the guidelines but must be free to do justice.

Secondly, we should not deceive ourselves or the public with the pretence that these provisions will have a powerful deterrent effect. Justice has many purposes, including punishment and rehabilitation, but deterrence is scarcely a major factor for this kind of crime. Someone who, having used enough violence to kill the victim, carries on to inflict more violence is not going to think, “Oh, I’ll get a slightly longer sentence, won’t I, because of that statutory instrument?” That is not the real world; it is not the mindset of those who would carry out such terrible and vengeful acts.

That brings me to my final point. For the murders we are talking about, the murderers need in many cases to be imprisoned for long periods for public safety, including the safety of other potential victims of the same kind of crime, but adding a few more years to the sentence may only marginally, if at all, add to public safety and will do nothing to protect safety when they are eventually released. The extra years are added to recognise the greater severity of the offence, and we add them because they are almost the only means we know of recognising that severity and marking it with a more severe penalty. It would appear ethically bland if we treated different murders in exactly the same way, but what we actually do is allocate significant resources to keeping somebody in prison for a bit longer in a hopelessly overcrowded prison system, in which resources are desperately needed for rehabilitation to reduce the risk of reoffending when offenders are released.

As a society, we need to look for more effective ways of recognising and challenging crimes of varying degree and asserting that they will not be tolerated, otherwise we are condemned to endless sentence inflation because sentences for one crime affect sentences for another. It will not be long before comparison is made between these crimes and some other crimes and an argument for longer sentences for them. We have a problem as a society in finding ways of recognising the greater severity of some crimes than others that do not simply commit resources in an ineffective way when those resources are needed to secure public safety.

As I said, we support these provisions, but room must be left for judicial discretion and there must be some recognition that we do not cure crimes simply by passing statutory instruments such as this.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I, too, thank the Minister for introducing this statutory instrument. The Labour Party supports these regulations.

As we have just had explained to us, the instrument introduces two additional statutory aggravating factors and one additional statutory mitigating factor in the determination of the minimum term relating to the mandatory life sentence for murder. The new aggravating factors are the fact that the offender had repeatedly or continuously engaged in behaviour towards the victim that was controlling or coercive and the use of sustained and excessive violence towards the victim. The new mitigating factor is the fact that the victim had repeatedly or continuously engaged in behaviour towards the offender that was controlling or coercive.

Investigatory Powers (Communications Data) (Relevant Public Authorities and Designated Senior Officers) Regulations 2022

Debate between Lord Ponsonby of Shulbrede and Lord Beith

Tuesday 20th December 2022 Lords Chamber

[Lord Beith (LD)]

My Lords, perhaps I might ask the Minister a couple of questions arising out of this. First, am I right in thinking that, to satisfy the court judgment, we must pass these regulations before the beginning of January? Perhaps he could clarify that. Secondly, looking in more detail at the position of the Security Service in particular in dealing with organised crime, I think I am right to say that the only change made by these regulations to satisfy the court judgment is that the urgency procedure would be able to address serious crime communications bids only if there is a matter of urgency, otherwise they would need to go through the normal process.

What slightly puzzles me about that is that I would expect the Security Service, which makes an enormous contribution in dealing with serious crime, to work in close conjunction with the police and, presumably, the National Crime Agency. Would it not be the police leading many such investigations? Would they not themselves be in a position to make the urgent request for communications data? I ask that simply for clarification, not out of any criticism of the fact that the Government have implemented the court’s decision.

Clearly, this restriction will not apply to other areas in which the intelligence agencies work. They will be able to make their own applications on their own initiative, even if it is not an urgent case, because it is within their core areas of activity. But when it comes to serious crime their responsibilities are shared with other bodies, which might be expected to take a lead on the requirement to use communications data.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the Minister for his opening comments. He has outlined what the statutory instrument does. These changes come as a result of the High Court ruling in June this year in the case of Liberty v the Secretary of State for the Home Department and the Secretary of State for the FCDO.

This SI will allow for the internal authorisation of the acquisition of communications data solely for serious crime purposes in urgent situations, as prescribed by Section 61A of the Investigatory Powers Act 2016. I understand that parts of the wider case were dismissed. However, the High Court ruled in favour of Liberty on one key point—namely, deeming it to be unlawful for the security services to obtain individuals’ communications data from telecom providers without having prior independent authorisation in certain circumstances.

In preparing for this debate, I read the blog of Neil Brown, who says he is an internet, telecoms and tech lawyer. He commented:

“I suspect, absent an appeal, there will be a tweak to the Investigatory Powers Act 2016, to provide for independent authorisation of requests by security or intelligence agencies before obtaining communications data, retained under Part 4 Investigatory Powers Act 2016, for the applicable crime purpose.”


This SI is indeed the tweak he refers to. He goes on:

“While important, this decision is unlikely to have a material impact on telecommunications operators, whether it applies to all communications data or only communications data retained by a telecommunications operator under Part 4. This is because it relates to what happens ‘behind the scenes’ before a Part 3 authorisation or notice is served on a telecommunications operator. The impact of a Part 3 authorisation or notice has not changed, nor has the obligation to provide data in response to a notice. I suppose that it might have an impact in the short term on the volume of requests, if OCDA”—


the Office for Communications Data Authorisations—

“is to have an increased workload—presumably, if that is the case, there would be a plan to increase OCDA’s staffing.”

My questions for the Minister arising from those comments are, first, does he believe that Neil Brown is accurate in his assessment that there is likely to be a lack of impact on the telecommunication operators through this SI? Secondly, is there a plan to increase the OCDA’s staffing if necessary?

We welcome the Government’s corrective action through this SI. We recognise that there needs to be an appropriate balance between our civil liberties and the fast-changing threats posed by serious and organised crime.