Arbitration Bill [HL]

Lord Sentamu Excerpts

Committee stage
Wednesday 11th September 2024 Lords Chamber

[Lord Bellamy (Con)]

My Lords, in relation to the intervention of the noble and learned Lord, Lord Thomas, your Lordships will recall that on 27 March this year, when I was then the Minister in charge of the Bill, I said that I had written to the Chartered Institute of Arbitrators, the ICC, the LCIA, the London Maritime Arbitrators Association, GAFTA, the Law Society and the Bar Council to ask them

“what measures they have in place to mitigate the risk of corruption in arbitration, whether more should be done in the sector to mitigate corruption in arbitration”,

and any suggestions they had as to

“the best way to proceed and how the Ministry … could support the sector’s efforts”.—[Official Report, 27/3/24; col. 12.]

Before I had a chance to review or indeed see any of those replies, Parliament was dissolved, so I still do not know what the replies were. I understand from the Minister in a call this morning that there is some glitch in relation to the convention about what documents an incoming Government could see if those documents arose under the previous Government. I would have thought that this was an area where continuity between the Governments, transparency and a common approach were essential and necessary. I very much hope that in the meantime, any technical glitch about the change of Government should not interfere with the tackling of this problem.

As has been pointed out, the Minister in his letter of 15 August summarised the responses in some detail, but the question remains, as has been raised by two noble Lords—the noble and learned Lord, Lord Thomas, and the noble Lord, Lord Beith—as to whether those responses should be made public, with the co-operation, of course, of the institutions concerned, from the point of view of establishing and reinforcing the reputation of the City of London and, in particular, reassuring those who wish to arbitrate in this country that the question of corruption is being addressed.

It is true that the ICC is conducting an international review of the approach to arbitration in this sector, but that review is not due to report until the end of 2025. It seems to me that there is an argument for the present Government—the Minister—to go back to the persons to whom I wrote and ask them whether they would be prepared to make public their responses, with a view to reassuring and continuing to protect the reputation of the City of London.

That said, although I think we are all with the noble Lord, Lord Hacking, in spirit, amendment to the Bill is probably not the best way to proceed at this stage. As I indicated when I was myself the Minister, I would not support an amendment to the Bill to deal with this particular matter, but I invite the Minister to give us an assurance that the Government will continue to monitor the issue, to keep in touch with the relevant arbitral institutions in London, and take such steps as the Government think fit to ensure that the arbitration scene in London is as free from corruption as can conceivably be achieved. Nothing less will do. At the same time, I also invite him to perhaps revisit the question of publishing the responses, as the noble Lord, Lord Beith, and the noble and learned Lord, Lord Thomas, have just invited him to do.

[Lord Sentamu (CB)]

My Lords, I associate myself with the wonderful words of the three noble and learned Lords and I share the concern of the noble Lord, Lord Hacking, but when I was reading theology, my then—wonderful—professor of theology said that the only way you know whether you have resolved a theological conundrum is to try to find some practical solution to your particular difficulty.

My greatest concern with the amendment is this. It talks about safeguarding the arbitration proceedings against fraud and corruption. Probably Queen Elizabeth I would have said to such a suggestion what she said to the troops at Tilbury:

“I have no desire to make windows into men’s souls”.


How do you safeguard proceedings against corruption? Corruption is in the hearts and minds of people. How do you do it? I cannot find a real, practical solution. Therefore, on those grounds, although the amendment is well intentioned, I think the burden it would put on the proceedings of arbitration is far too great, so please may we not have a desire to make windows in people’s hearts.

[Lord Mance (CB)]

My Lords, I declare an interest as an arbitrator, including in cases involving corruption in my practice hitherto. It seems to me that there are two types of corruption that we may be talking about. One is substantive corruption affecting the transaction which is the subject of an arbitration. That is regularly arbitrated and investigated, and tribunals do their best. With respect to the noble and right reverend Lord behind me who has just spoken, I am afraid that sometimes involves trying to see into men’s minds. Arbitrators do make findings of corruption. I will come back to what might be done with those findings slightly later.

We have been talking mainly about corruption in relation to the arbitration proceedings, which is the area to which the amendment of the noble Lord, Lord Hacking, is directed. We have heard of cases in which—one hopes, remarkably—it has been found in court that both sides were involved in some sort of collusion. I am thinking not of the case which has been expressly mentioned but of a case which I believe was decided in the Commercial Court by Mr Justice Butcher, where a non-existent arbitration award endorsed by a non-existent foreign court judgment was attempted to be enforced in the Commercial Court. That could happen only by some form of collusion between those appearing in front of the court, hoping that the persons to be affected by an English judgment would not get to know of it or involve themselves in time. As it happens, they did, and of course the non-existent award was not enforced. I believe the matter was referred to public authorities who might be interested.

I agree with my noble and learned friend Lord Hoffmann that such investigations into the propriety or ethical behaviour of those appearing in front of arbitrators as a matter of standard procedure would be difficult to contemplate, given the sort of exercise that would be involved. That said, I am sure that arbitrators, if they were on notice for any reason of possible complicity in some corrupt activity by those appearing in front of them, would be very concerned to try as best they could to get to the bottom of it. I suggest that the noble Lord’s proposed amendment would, if anything, be duplicative and unnecessary if read mildly, but if read widely, as involving the sort of initial admonition which he suggested, it would be problematic and would not carry matters very far, so I, too, do not support it.

I will make a general observation about corruption, which, as I have indicated, is regularly fought in the courts in a substantive respect. Of course, arbitrators have the problem that they are confined by the agreement to arbitrate, which usually relates to a specific transaction. However, if you are talking about a widespread scheme of corruption, perhaps involving fraud on a foreign state, the state may not be party to the arbitration, and it may be quite difficult to investigate all the other ancillary transactions that form part of the web of corruption. Corruption notoriously involves complexity designed to confuse and conceal. That problem is inherent in arbitration; it seems to me that it may be one of the disadvantages of arbitration. It is a problem that can, to some extent, be alleviated by court assistance. There is a valuable clarification of Section 44 of the Arbitration Act 1996 in this Bill, which will enable that assistance to be secure when third parties are involved.

It is difficult to foresee arbitrators being made into investigators. That would be a change of role for which they are not suited. The one possible area where I suggest that legal attention might be considered—but not in this Bill, for the reasons already given by noble Lords—is where corruption is found by an award. There might be something to be said in that context for an express provision permitting disclosure, to interested public authorities, of corruption that has actually been found. One would not have or contemplate a situation where arbitrators had to disclose allegations of corruption that they were concerned to decide. But once they decided that there was corruption, disclosure might then be contemplated. It seems to me that it is probably already permitted by common law, because there is no privilege in iniquity; on the other hand, I do not believe that arbitrators at the moment would, without express legislative backing, be likely to disclose even corruption that they had found in their award. That might be a possible area where an express legislative provision—so they could at least just disclose corruption —would be valuable.

Victims and Prisoners Bill

Lord Sentamu Excerpts

Report stage
Tuesday 21st May 2024 Lords Chamber

I make one final point. Noble Lords have said that this may be the last chance. It is not the last chance, by any means. There is power under the LASPO Act 2012 to change the test. If the action plan does not work out, and if, in later circumstances, a future Government decided that they were prepared to take the risk, they could still do so without any primary legislation, subject to affirmative resolution by both Houses of Parliament. We do not need to press this point now. Let the action plan work.

[Lord Sentamu (CB)]

In a debate on public bodies, protests and funding, we wanted to use the word “reasonableness”, and the Government still stuck to proportionality—in government circles, on that particular Bill, they knew what proportionality meant. Moreover, I was in the debates on the Human Rights Act; it was very clear that part of the human right is whether the decisions that have been taken are really proportionate. The Act spells this out, so I do not understand why, in this particular case, the Minister is relying on case law, particularly on the Human Rights Act. I do not see why that cannot be applied in this particular instance.

[Lord Bellamy (Con)]

My Lords, I cannot do better than simply refer to what I have already said: the Government think that there should be a very clear, simple test of public protection, and that the way to get these prisoners out is to work in a way that enables them to meet that test, so that they and the wider community are safe. My respectful submission to this House is that that is a reasonable and responsible approach, because otherwise we run terrible risks in relation to releasing this cohort, who have already been found several times not to be safe to release. That is the Government’s position.

I turn briefly to Amendment 147, tabled by the noble Baroness, Lady Blower, which relates to other support for IPP prisoners through the use of independent monitors, and in addition to the support I indicated on the last occasion. The Government will look at additional support, as the noble Baroness asked me to do, and consider whether that would be a further element that we can build into the action plan. I respectfully say to the noble Baroness and to other noble Lords who have made this point that, for prisoners who have lost hope, the Government’s actions should be the start of restoring hope. We are in the business of restoring hope for this cohort of prisoners.

Her Late Majesty Queen Elizabeth II

Lord Sentamu Excerpts

Saturday 10th September 2022 Lords Chamber

[Lord Cormack (Con)]

My Lords, it is always a great pleasure to follow the noble Baroness, Lady Andrews. When she was talking of her role as a receiver of distinguished foreign visitors, I immediately thought of one of the most unforgettable Members of your Lordships’ House who often did a similar job and told hilarious stories about the encounters that she had. That was, of course, Baroness Trumpington, of whom we all have such affectionate memories.

It has been an extraordinary period since Thursday lunchtime, when that difficult news came through. We all knew from the first moment that we had to expect the worst. I must say that I felt a great privilege in being a Member of your Lordships’ House yesterday. There were some very moving and splendid speeches, as there have been today. I have never, in my nearly 12 years in your Lordships’ House, nor in my 52 years in Parliament, heard better Front-Bench speeches than I heard yesterday in this House. However, the most moving moment for me was when we assembled informally in your Lordships’ Chamber to listen to the first words of our new King, who spoke with a quiet, moving dignity, suffused with deep affection for a wonderful mother.

Not being privileged to be a member of the Privy Council, I had to watch this morning’s Proclamation on television, as did most of us. The King spoke again and he used a few words that I want to dwell on for a moment:

“Even as we grieve, we give thanks.”


That is very important indeed. We are mourning the departure of a Christian monarch who believed in the afterlife. We are mourning the departure of one of the most remarkable women who ever lived, but who died in really wonderful circumstances, in the place that she loved, surrounded by people whom she loved, having just accomplished constitutional duties with panache and good humour, in instituting her last Prime Minister.

We have a lot to be thankful for. Having such a respectable bevvy of Bishops on the Benches, I appeal to them. Of course, what happens in 10 days’ time will be a great state funeral, but can it not also be designated on the service sheet as a service of thanksgiving, since that is what we will be doing? We will be not just mourning but giving thanks for someone who has done her duty better than anyone I can think of.

We have been talking of personal memories. I cannot pretend that I knew Her Majesty, but I had the very great good fortune to meet her on a number of occasions. Two stick in my memory. The first was in 2002. I was the treasurer of the CPA, the senior Opposition position in the CPA. We decided that we would have a conference of Commonwealth parliamentarians. We had an immediate affirmative answer from the Palace that Her Majesty and Prince Philip would be delighted to come, and they came. We met in Lancaster House.

I had two duties. One was to take round Prince Philip while the chairman took round the Queen. Then we all four gathered. I had the job of making a presentation to Her Majesty of a wonderful paper knife, crafted by perhaps our finest female silversmith. The knife had the mace at the end of it. She wielded it and said, “By Jove, that’s got a very good feeling.” Before the end of the day, I had a letter from her office saying that she was already using it and much enjoying it.

We were talking to her about the Commonwealth. As has been mentioned many times—particularly movingly today by the noble Lords, Lord Robertson and Lord Boateng—in a sense she lived for the Commonwealth. From going round with the two of them and talking to Commonwealth parliamentarians, I saw that there was not a country that they had not been to. They knew the intimate history of many of the people who were there and they both manifested a love for this greatest of international organisations.

My other memory is a very personal one. On 20 April 2010, I was at a farewell party at Windsor Castle for the Surveyor of the Queen’s Pictures. The Queen was there, mingling with us. Of course, the next day she was due to be 84. I said what I thought were some appropriate words and also said, “My grandson is six tomorrow and is very thrilled that he shares your birthday.” “Please give him my warmest wishes”, she said. Edward thought this was an extraordinary leg-pull when I rang him up and told him, but it was just typical of her ability to relate not only to significant Commonwealth parliamentarians but to a little boy whom she certainly never met. She cared about her family, as has been said so often.

How do we best thank her and how do we best encourage our new King? We do it, as was touched on last night in a very interesting and powerful speech by the right reverend Prelate the Bishop of Worcester, by trying to demonstrate the sort of unity for which she always stood. We have a particular responsibility in your Lordships’ House, where party politics is not as acerbic as it is in the other place. She was a person who brought others together. It is clearly the manifest desire of our new King to do the same. We must play our part in doing that.

I end on a note that I never thought I would end on this year, in emphatic agreement with Boris Johnson. He said, in some very remarkable words the other day, that he thought she should go down in history as Elizabeth the Great. I endorse that and I hope that, in due course, that will come to pass. God save the King.

[Lord Sentamu (CB)]

My Lords, I was three years old when, in a little village in Uganda called Masooli, we all gathered round a very small transistor radio and listened to the broadcast from the abbey of the Coronation of Queen Elizabeth. From then on in every school in Uganda on Empire Day we sang “God save the Queen”. We continue to do it; some still do it now. I stand here as somebody who is quite surprised that this little boy out in Uganda would today be part of the Accession Council and the confirmation of King Charles III. I have mixed emotions.

I want first to echo the words of the most reverend Primate the Archbishop of York, because on Thursday, as soon as we heard the news that Her Majesty had died, I put on Twitter this message:

“Today Churches Celebrate the Birthday of the Blessed Virgin Mary. The Death of Her Majesty Queen Elizabeth II on this day is a great shock & Mary’s Magnificat should be our response: MY SOUL DOTH MAGNIFY THE LORD: & MY SPIRIT HATH REJOICED IN GOD MY SAVIOUR; REGARDED & MAGNIFIED HER”.


I have stood, on a number of occasions, near Her Majesty Queen Elizabeth as she sang the Magnificat. She did not need the words; she knew them. In a real sense, that was her song too. She sang it from the heart because it expressed who she was. Her true greatness was her deep humility in knowing that the Lord in many ways “regarded” her “lowliness” and, by divine providence, made her Queen. For her, being Queen was an act of nobody but God.

Humbleness was, for her, born out of having Jesus Christ at the centre of her living, her thinking and all her goals, her rejoicing and even in moments of sadness. She knew the holy scriptures well and sang many hymns without needing to look at the words. She really imbibed the whole tradition. Therefore, it was also comforting to hear our new King say the same thing about the services that shaped him.

When in her presence, you were the person who mattered when you spoke to her. She never looked around. It was as if you were the only person in the room, and until that conversation ended her eyes were fixed on you and your smile.

Forgive this testimony. I had an audience with her to ask for her permission to step down from my role after an extra year. Her response was, “The decision is yours and yours alone—not me, not anyone else. Give me the date and so it shall be.” I took that to be a command. There was a matter that was causing me great heartache. I told her, and I asked for her prayers. I knelt down and put my hands together. She put hers outside mine. There was this deep moment of silence. I think it lasted about two to three minutes. It was ended by Her Majesty saying, “Amen.” I got up and, friends, whatever burdens I had come with were lifted. It was as if I was with my grandmother, who had a similar effect on me. If you want to know more, you have to wait until my autobiography is published next year. You will get a bit more story because permission has been given to me to write some of those words down.

Her hospitality was amazing. I stayed at Sandringham and at Windsor. I will tell your Lordships a bit about Windsor. At Windsor on her birthday, after dinner she and Prince Philip guided us to the library. They had already arranged with the archivist the section on Uganda. The books were opened and copies were made so that we could take some of this material with us. The thing that most surprised me was to see writing dictated by King Muteesa I requesting Queen Victoria to send missionaries to Uganda, and subsequently a request that Uganda became a protectorate. Those documents are there. I was speechless, really. We ended up in the restored chapel at Windsor. Again, there were silent prayers. I cannot remember how long.

The death of Queen Elizabeth has left all of us with mixed emotions. I want to end with the experience of our eight year-old granddaughter, Abigail. When she saw the news that the Queen had died she cried, uncontrollably and inconsolably. When she calmed down, she said, “I will never see a queen in my lifetime”. She then said, “Long live the King”. Queen Elizabeth rests in glory. Long live King Charles III.

Nationality and Borders Bill

Lord Sentamu Excerpts

Committee stage
Tuesday 8th February 2022 Lords Chamber

[Lord Cormack (Con)]

My Lords, I intervene briefly and for the first time in this debate, provoked into doing so by what the noble Lord, Lord Kerr of Kinlochard, has just said. It is fundamentally wrong to legislate in a way that obliges you to break international law. It is very simple, but that is it. We do not have islands around our shores where we can gather together vast groups of potential refugees and asylum seekers.

The other day I was reading a review of a book, which has just come out, about the Isle of Man in the Second World War. There was of course great panic about people of German origin—although most of the poor people were of Jewish origin as well—domiciled in this country. They were rounded up and taken there. There are some fairly inspiring stories but also some very depressing stories. We have to tread exceptionally carefully here. We have gone on a lot about global Britain, but if I am to be proud of global Britain, I want to be proud of a country that is upholding the highest international standards.

Although I take on board what my noble friend Lord Horam said a few moments ago—he made a gently forceful speech that deserves consideration—I just cannot for the life of me think that to herd people into encampments in Rwanda and other far distant places is anything other than a repudiation of our standards as a great country. It would be fundamentally wrong for us to go along this line. Treat thy neighbour as thyself. There is a lot of wisdom in the 10 commandments. A bishop should really be saying this rather than me, but I really believe that it is essential that whatever we do is consistent with our record as the great nation that abolished slavery throughout its dominions and before that abolished the slave trade. There were battles in Parliament for both, but my parliamentary hero is William Wilberforce and I do not want to see his reputation traduced.

[Lord Sentamu (CB)]

My Lords, I have been sitting on my hands because whenever you tell a personal story, it looks as though you are not pleading what the noble Lord talked about—law. We arrived in 1974 and were treated with such great respect, love and care. For about 20 years we travelled on a British travel document. That kind of hospitality was of great help to us all.

The way I read this clause is almost as a revisitation of Guantanamo Bay—a very bad piece of work—or voluntary rendition, whereby people were taken from one country to another to sort out whether they were terrorists or not. This country should not use offshoring. The word “offshore” already does not have a good reputation in terms of money and offshore investment. This is a country that has been the mother of parliaments and the mother of legislation and where the rule of law is what governs all of us. How can we get a third country to take what we call refugees?

I can assure noble Lords that there will be many countries in Africa that will volunteer to do it. The question we have to ask is: how do those seemingly wonderful countries treat their nationals? Do they treat them in the same way that this country does? I would be very doubtful. For the sake of the rule of law, for the sake of this great Parliament and for the sake of the British people who have been very good in welcoming the likes of me, this clause should—please—not become part of the legislation.

[Baroness Neville-Rolfe (Con)]

My Lords, I am also very impressed by the moderate contribution from my noble friend Lord Horam on the Australian experience. I have a question, therefore. How do the Australians get round the alleged breach of the refugee convention?

--- Later in debate ---

[Baroness Bennett of Manor Castle (GP)]

I offer the support of the Green group for all the amendments in this group and express horror at the whole nature of this part of the Bill. It is a great pleasure to follow the right reverend Prelate and to agree with everything that she said about the gender aspects of the Bill as it now stands, as also mentioned by the noble Baroness, Lady Lister.

I want to address Amendment 111 and make a simple observation: the average length of a prison sentence in England and Wales in 2021 was 18.6 months, compared with 11.4 months in 2000. Is this really something extraordinary? Is the UNHCR right in saying that this change in terminology is not right? I think that it clearly is.

I want to draw out what the noble Baronesses, Lady Lister and Lady McIntosh, said, both of them reflecting on different elements of how this law is throwing out 25 years of British legal tradition. I am not going to reopen the discussion on the last group about particular political labels, but I will note that this is happening in a country where only a couple of years ago we saw our most senior judges under attack on the front pages of certain newspapers. That is the context in which this is occurring.

I want to reflect—a number of people have talked about this but I shall boil it down—on what the Government’s proposals are likely to do: produce a large number of people who are denied status but who cannot be sent home because it is clearly impossibly unsafe and dangerous to send them there. That leads to a situation of more chaos and more forced black-market employment, which surely no one could want.

[Lord Sentamu (CB)]

My Lords, I want to give practical expression to what those who have spoken, including the noble Lord, Lord Dubs, and the noble Baroness, Lady Ludford, have said, and to the exposition of the noble and learned Lord, Lord Brown: if a law is going to be passed, it needs to be clear, simple and not confused, as in Clause 31.

I shall tell a story. A friend of mine was going to be best man at our wedding, but Amin’s soldiers were hunting for him, so he left Uganda on the very day that we got married, dressed like a woman, and landed up in Kenya. That was the only way he could get away. He had nothing. Friends in Kenya managed to get him a ticket and he came to Oxford with nothing. There he studied law and did very well as a result, but if the test had been on the grounds of probability, he probably would not have done so. It comes down to the question of “reasonable likelihood”. All he could do was describe how he left Uganda. If you are from Uganda, you know you do not go around dressed like that, but the people who listened to his case at Oxford could associate with it.

I ask this for the reasons that the noble and learned Lord, Lord Brown, has given: why in one clause do we have “reasonable likelihood” and in another “the balance of probabilities”? That confuses the legislation.

I have been able to represent some asylum seekers when they have come here. I think the Joint Committee on Human Rights is right that this is what should be incorporated in our law and we should not try to change it—unless of course we are following the analysis of the noble Baroness, Lady Chakrabarti, that instead of making it clear as we incorporate this into our legislation, we are saying, “Throw it out. We know better and we are going to do it in our own way.” I do not think that that makes for good law. It is not simple, straightforward or clear. In the old days, it was said that any good law must be understood by the woman or man on the Clapham omnibus—if they cannot understand it, your law is not very clear. The judgment of Lord Bingham is clear.

Why abandon our case law as we begin to incorporate this into our law? This time the Minister will have to give us reasons why that is the case, instead of—forgive me—what sounds like a bullish reaction to every reasonable thing that has been said. I plead with the Minister to use simple language and retain “reasonable likelihood”, because that is much easier to deal with when people come here without papers or documents and their lives are in danger.

[Lord Paddick (LD)]

My Lords, I could simply repeat what I said at the conclusion of the last group: the UK should not engage in the unilateral reinterpretation of the refugee convention—not that we are rewriting it, but we are reinterpreting it—but I shall go into a little more detail.

The JCHR, supported by Amnesty and Migrant Voice, believes that the standard of proof as to whether an asylum seeker has a well-founded fear should remain as “reasonable likelihood”. Amnesty makes the additional point that, as well as raising the standard, Clause 31 makes the decision more complex and the Home Office is getting it wrong too many times already.

We support Amendments 103 and 104 but we also agree with the noble Baroness, Lady Chakrabarti, that Clause 31 should not stand part of the Bill. Amendment 105, to which I have added my name, attempts to bring the definition of “particular social group” into line with international standards and UK case law. Again, based on the principle that the Bill should not be unilaterally reinterpreting the refugee convention, as I said in the previous group, I agree with the noble Baroness, Lady Chakrabarti, that Clause 32 should not stand part of the Bill.

Amendment 111 seeks to prevent the definition of “particularly serious crime” from being reduced to 12 months’ imprisonment. As my noble friend Lady Ludford said, bearing in mind that the Bill attempts to set the maximum penalty for entering the UK without authority at four years’ imprisonment, the two changes could potentially exclude all asylum seekers who do not enter through resettlement schemes. As before, we support the assertion of the noble Baroness, Lady Chakrabarti, that Clause 37 should not stand part of the Bill.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

I really do not mean to be flippant. The consequence would be that every country would be interpreting the refugee convention in accordance with its terms. As a country, we are interpreting our legal obligations in the way that we ought to and are allowed to. We are going back—

[Lord Sentamu (CB)]

The Joint Committee on Human Rights recommended that this be amended. There must be good reasons for explaining why the Government do not want it amended and I have not heard them.

This is a true story; I can meet the Minister in camera and show him the evidence. A young man aged 17, whom we found in Kenya—

[Baroness Scott of Bybrook (Con)]

My Lords, this should just be a short question.

[Lord Sentamu (CB)]

I am giving an example of why Article 31, without the amendment, does not work.

[Lord Wolfson of Tredegar (Con)]

I am almost as new, I think, as the noble and right reverend Lord, but my understanding of procedure is that that is meant to be for questions. If the noble and right reverend Lord will write to me or meet me to discuss that particular case, I will certainly discuss it with him. If the case raises a point of principle, I will deal with it. If it raises a point of principle that I think will be helpful for the Committee to hear, I will write to him and provide a copy of the letter. I hope that is helpful for this evening.

Police, Crime, Sentencing and Courts Bill

Lord Sentamu Excerpts

Report stage
Wednesday 12th January 2022 Lords Chamber

[Lord Ramsbotham (CB)]

My Lords, I rise to strongly support this amendment, which was so ably introduced by my noble friend Lady Meacher, particularly if it is matched by a strong commitment to restorative justice among all sections of Her Majesty’s Prison and Probation Service, particularly prison governors. I have witnessed an unfortunate case in which a governor admitted to me that none of the recommendations of the very good police officer who was chairing the conference could be provided by the prison concerned, to the detriment of the whole process.

[Lord Sentamu (CB)]

My Lords, I too support this amendment. It asks the Secretary of State to prepare an action plan and to show how it is being implemented or otherwise, so it is not asking that which is beyond common sense.

I take your Lordships back to the Truth and Reconciliation Commission in South Africa, chaired by Archbishop Desmond Tutu. In front of him is a police officer who was responsible for setting alight a young man. The young man dies and the mother comes, and all that is left is just ash—the body is gone. Desmond Tutu asks, not the person who committed the crime but the mother: “What do you want to say to him?” The mother says, “I lost my son. In the light of what you have been saying to us about the need to address the maladies that have happened and to reconcile people, I say this. I have a broken heart; I lost my son. I want to take this police officer to the place where my son was burnt alive. When we have gone there and have actually touched the earth, I will adopt him as my son, because I no longer have a son.” Desmond Tutu broke down in tears. They go to the place where this had happened, and the mother takes in that police officer as her own son. That is the effect of restorative justice. It never asks the question: “Who has done this? What punishment do they deserve?” It asks the question: “Now that this rather unhappy fact has happened, what are we going to do about it?”

For nearly 20 years I have been lecturing all over the world on restorative justice. In this country, at an international conference gathered by the Bar Council, we had a great debate and discussion; but unfortunately, although we talk about restorative justice, in the light of our criminal justice system we really do not give a major role to what Desmond Tutu’s Truth and Reconciliation Commission did. Had it not been for restorative justice, a lot of people would have been revenging for what had happened. They were very angry and wanted to lock people away and throw away the key, but because of that mission and Desmond Tutu believing that, without forgiveness, there can be no peace—and that forgiveness is a consequence of restoration; it does not come out of nowhere—South Africa, where many people committed terrible, awful crimes, continued to live in peace.

I know that we will not be voting on this amendment, but somewhere, we must find words that express what the noble Baroness has put before us, because if there is no restoration of the relationships that have been fractured by a crime, you just think that that is it. After a big victory in a battle, George Washington started befriending the people fighting on the other side. Those on his side said to him, “Why do you want them to be your friends?” He said, “Well, if they don’t become my friends, they will still be protesting. The only way to overcome an enemy is to make them your friend; then, they stop protesting.”

There are so many people in our country for whom crimes have caused untold difficulty—take the Stephen Lawrence murder. It would have been good if some kind of restorative justice had happened. Neville Lawrence says, “Those five young men did a terrible thing to my son, but I have now realised that if I continue to be angry, it is me who is being destroyed.” Unfortunately, he is not being given the opportunity to go through the restorative justice process. I support the amendment.

[Lord Laming (CB)]

My Lords, perhaps I may make three quick points in support of this important amendment. First, we all accept that short sentences are extremely expensive to manage and expensive to our society, and we ought to do our best to provide alternatives to them. They are also expensive in other ways because they introduce often naive offenders to much more serious crime. Secondly, short sentences are extremely disruptive to the individual concerned. They often lose whatever jobs they have and a whole range of things that are important in their life. Thirdly, restorative justice is a learning experience. Would that there were other parts of the criminal justice system that I could say with confidence were a learning experience.

Restorative justice is the opportunity for an offender to reflect carefully on what has happened as a result of their behaviour and on why it is important that they learn from that experience and change their way of life. This is an important amendment that I hope the Government will take seriously.

--- Later in debate ---

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I cannot say that I know many teenagers who, growing up, aspire to be police crime and commissioners. However, I was convinced by the arguments made in Committee and I wanted to just make a couple of additional small points. For me it is not just about unfairness; there is a principle here. If you work with teenagers and one of them has made a mistake and has been fined or has broken the law in some way, you say to them, “Now we want you to rehabilitate and become a fine upstanding citizen”, and, “The world is your oyster and you can do anything.” I cannot imagine anything that is more proof of being fine and upstanding than growing up and then saying, “I want to be a police and crime commissioner.” I do not even know whether I agree with the idea of police and crime commissioners, but that is not my point.

The other thing, on a kind of principle, is that increasingly I would like public servants and people taking on roles such as police and crime commissioners to have some real-life experience—and that might involve youthful indiscretions.

I completely support the amendment. There are principles here that could easily be upheld by the Government simply accepting it; it makes perfect sense. I think even the public would cheer.

[Lord Sentamu (CB)]

My Lords, since I have been gratuitously referred to, I ought to say some words. Archbishop Robert Runcie said, “A saint is a person whose life has never been fully examined.” All our lives have never been fully examined, but I confirm that I never committed any crime at the age of 15 or 16, and have not done even now. Even if I committed one, I am already excluded from becoming an archbishop again because I am now 72. Age would discriminate against me and push me out.

What I do not get is why being a police commissioner is the only calling where there is discrimination if something was done at the age of 16. I would have thought that, 40 years on, the person has done their time. Yes, there is a record but it does not have to be the only thing over which you exclude them, because they have come on in age. In wanting to remove this for police commissioners, we are not sending out a message that it does not matter whether you commit a crime at the age of 16. We are saying: why is there this hindrance to this profession? Because one day I may become a saint and my life will never be fully examined, I want to vote for this amendment. I hope that the Minister will just accept it and it will be put into statute without more debates, because this just does not make sense. But I speak like a fool.

[Baroness Jolly (LD)]

My Lords, as we said in Committee, we are in principle supportive of this amendment. However, we would want in an ideal world a balancing amendment to ensure the possibility of recall and by-election should a police and crime commissioner be found guilty of misconduct, along the lines of the Recall of MPs Act 2015. I agree with the noble Lord, Lord Bach, about the discrimination of early offences. Currently, because police and crime commissioners are democratically elected, they can be replaced only by means of another election, and as things stand there is no mechanism to force such a by-election. It is hoped that a disgraced PCC would resign but this should not be at the sole discussion of the PCC concerned. Therefore, we are reluctant to support the amendment without another along the lines of the one described earlier. My noble friend Lord Paddick says that he thinks it is unfortunate that the noble Lord, Lord Bach, did not take the hint that he gave him in Committee.

Assisted Dying Bill [HL]

Lord Sentamu Excerpts

2nd reading
Friday 22nd October 2021 Lords Chamber

[Lord Sentamu (CB)]

My Lords, in light of the letter that appeared in the Times yesterday, I confirm that I am the former Archbishop of York, I am black—but I am not the holy Desmond Tutu.

Any community, society, institution or legislature that forgets its memory becomes senile. Fifty-four years ago, in 1967, Dame Cicely Saunders founded St Christopher’s Hospice, the first hospice linking expert pain and symptom control, compassionate care, teaching and clinical research. The model is now established worldwide, resulting in the amazing advances in and increased diffusion of palliative care, in which of course Christian practitioners who value human life were pioneers. Frankly, why is this framework for thinking about the clinical management of death regarded as outdated, although some still think it is both/and? We ought to be following the line of approach that has proved itself so successful not only in dealing with pain but in helping the dying achieve peace, which is pastorally so indispensable. This could, no doubt, be extended with more pain research and funding, so that these hospices are no longer depending just on private individuals but become part of our caring for the dying.

I declare an interest: I spent five days and five nights watching my mother, Ruth, dying from cancer of the throat in Trinity Hospice in Clapham. Those days indeed increased our bond. She died in deep peace and when our children came to pay their last respects, they said, “Grandma is at peace”. It was a similar story when the mother of our two foster children died of breast cancer in St Christopher’s Hospice.

Hard cases always make bad law. The voices of those who warn us of the law of unintended consequences must be heeded, especially the noble Baronesses, Lady Masham and Lady Campbell. The death of any person puts burdens on loved ones, but it is at the same time a supreme moment for caring, reconciliation and affectionate service. At the very heart of the problem the Bill purports to resolve, there is an ideal perception of the human being as isolated and autonomous, always in control, always on his or her own, beholden to no one. It is an unreal idea which has constantly to be overcome, in the interests of their living to some good purpose. Of course, the noble and learned Lord, Lord Neuberger, spoke of this very eloquently in his most powerful speech.

The desire to live is always responsive and outward-looking: living for the good goals, living for other people, living for the service of God and the common good. The desire to control one’s death is an attitude premised on the notion that the life of a person succumbing to a fatal illness cannot be a life to be lived. That view should not be recognised by our law, except as a pathology which itself needs addressing.

Social Action, Responsibility and Heroism Bill

Lord Sentamu Excerpts

Monday 15th December 2014 Lords Chamber

[Lord Faulks]

I think there is something of both, in the sense that very often in the law of negligence, although the principles are clear, when identifying the answer to a particular factual case—one very much on the margins—a great deal of judicial time is spent identifying what is a duty of care, whether there is a breach of the duty of care and whether there is foreseeability. Extracting the principles from the morass of common-law cases is not easy. This Bill sets out in statutory form principles to which a judge may have regard. That is a legal process. It is also not, I suggest, inappropriate for some form of message—I do not like the word “message” but I think everybody in your Lordships’ House knows what is meant by that—or for some sort of guidance and reassurance to be given to the general population, so that they can act in a way they would like to act without the fear of uncertainty that accompanies litigation.

I was addressing the point made the noble and learned Lord, Lord Walker, about the Law Commission. He is right about the immensely valuable role it plays in making the law and how desirable it often is to have a proper review. He would accept, I am sure, that it is not a prerequisite for the making of law that the Law Commission has examined a particular area. In fact, the Compensation Act 2006 followed an inquiry by the Department for Constitutional Affairs. The committee had produced a report—I was a special adviser so I declare an interest—so it was not via the Law Commission. Valuable though that can be, there is a limit to the amount it can do in a particular timeframe because of the immense calls on its services. While not disagreeing with anything the noble and learned Lord has said, it does not, I suggest, prevent there being a change in the law, notwithstanding the fact that the Law Commission has not considered this matter specifically.

I suggest that this is an important, although not radical, declaration of the existing law. It sends an important note of reassurance. I accept that it may not be the most transformative Bill that has reached this House but that does not mean that it does not serve an important function. The noble Lord, Lord Beecham, continued his attack, which I have sustained now for approximately 12 months, on every proposition that the Government have put forward. I normally follow his arguments, which are lucid and clear. On this occasion, I am unable to follow his argument. However, I do not wish to stretch my already stretched synapses even further in an attempt to do so; I will simply accept what he says.

[The Archbishop of York]

My Lords, I am puzzled. Will the noble Lord tell us whether it is ever worthy to use a statute as a means of giving assurance? I thought that a statute was to state the law, not to assure somebody somewhere. That would be okay. It would be an amazing way of—you know what I mean.

[Lord Faulks]

I think I know what the most reverend Primate means. With respect, as I said on a previous occasion, describing a statute as sending a message is too simplistic a way of explaining what we do in Parliament. We do not legislate in a vacuum. For example, we identify particular issues, whether they are modern slavery or revenge porn, which became part of an amendment to the Criminal Justice and Courts Bill. We pass laws which serve the purpose of clarifying the law but they also reflect what people in society think we ought to be doing in Parliament. I rely on what my noble friend Lord Hodgson said about the desire for neighbours to be unshackled. We need more volunteers; we need people to be unshackled. This law may make a modest contribution and I ask the noble and learned Lord to withdraw his amendment.

Assisted Dying Bill [HL]

Lord Sentamu Excerpts

Friday 18th July 2014 Lords Chamber

[The Archbishop of York]

My Lords, let me state at the outset that the official Church of England position was made very clear on 9 July 2005, when the General Synod voted on a motion referring to the joint submission of the Church of England House of Bishops and the Roman Catholic Bishops’ Conference to your Lordships’ House Select Committee. The motion argued strongly against making assisted suicide or euthanasia lawful. The vote was carried by 297 votes to one. This position was reaffirmed in a General Synod motion in 2012.

The present Bill is not about relieving pain or suffering; it makes that quite clear in its definition of a terminally ill patient to include those whose progressive illness can be relieved but not reversed. The Bill is about asserting a philosophy, which not only Christians but also other thoughtful people of good will who have had experience in care for the dying must find incredible—that is, the ancient Stoic philosophy that ending one’s life in circumstances of distress is an assertion of human freedom. That it cannot be. Human freedom is won only by becoming reconciled with the need to die, and by affirming the human relations we have with other people. Accepting the approach of death is not the attitude of passivity that we may think it to be. Dying well is the positive achievement of a task that belongs with our humanity. It is unlike all other tasks given to us in life, but it expresses the value that we set on life as no other approach to death can do.

We need time, human presence and sympathy in coming to terms with a terminal prognosis. To put the opportunity to end one’s life before a patient facing that task would be to invite him or her to act under their influence rather than dealing with them.

It is possible to think abstractly that one’s early death would be welcome to one’s nearest family and would spare them trouble. But in fact the best service one could do for them would be to accept their care and to show appreciation of them at the end of one’s life. When it was discovered that my mother, Ruth, had aggressive throat cancer, she was expected to live only a few weeks, but through the skill and care of the hospital and Trinity Hospice, she was able to live for 18 months. During this time, our children, who had been born in England, were able to get to know and love their grandmother, and she was able to delight in them. This was a gift.

The right reverend Prelate the Bishop of Worcester, John Inge, recently wrote about his wife, Denise, who died of a sarcoma on Easter Day. He writes:

“How easy it would have been to succumb to despair when the diagnosis was given. It looked as though she had only days, or weeks at most, to live ... as the dreadful effects of chemo took their toll and I became more and more … distressed at seeing her in such pain and discomfort … How tempting it would have been for me”—

if assisted dying had been legal—

“to have suggested that … it would be ‘for the best’ for her to end it all there and then.

Many … argue that it would have been the ‘compassionate’ and ‘caring’ thing to do”.

But Denise survived several more months, and during the times when I visited and prayed with her and Bishop John, I saw her emerge from the initial darkness to enjoy some precious time with friends and family. Shortly before she died she wrote:

“Contemplating mortality is not about being prepared to die, it is about being prepared to live. And that is what I am doing now, more freely and more fully than I have since childhood. The cancer has not made life more precious—that would make it seem like something fragile to lock away in the cupboard. No, it has made it more delicious”.

The Assisted Dying Bill could deprive some terminally ill individuals and their families of this very important time of shared love and wonder. I urge noble Lords to resist it. This is far too complex and sensitive an issue to be rushed through Parliament and decided on the basis of competing personal stories. It may be better if a royal commission were to look at this, with members from both sides not appearing as if they were shouting across the banks of a river.

Defamation Bill

Lord Sentamu Excerpts

Tuesday 5th February 2013 Lords Chamber

[Lord Phillips of Sudbury]

At Second Reading, I devoted most of what I said to the issue of access to justice. I take my hat off to the noble Lord, Lord Puttnam, and his supporters, as well as the noble Baronesses, Lady O’Neill of Bengarve and Lady Hollins, for concentrating on the huge lacuna in this Bill and in the law of defamation generally. Let no one be under any misapprehension as to how unjust our law of defamation is. I speak as one solicitor—long in the tooth, it must be said—who has dealt over the years with defamation, from time to time. It is a scandal how much it is a plaything of the rich, completely beyond access by people of even ordinary means. So I am wholly emotionally in favour of what is intended by this set of amendments and the schedules.

I have listened to the noble Lord, Lord Lester, who never speaks with less than authority. At first hearing, I am not sure how all the points that he made would impact, but I accept at large what he has said. One has to hope that my noble friend Lord Fowler is correct, and that if we pass this set of amendments today the defects in them can be rectified either at Third Reading in this place or in the House of Commons or when it comes back to us. I am convinced that to leave this for another day would not be responsible of us—as the last speaker said. We must take the chance that we now have, defective though the amendment may be.

I add only one detailed point. My noble friend Lord Lester said that he was wholly opposed to the notion of exemplary damages pretty well willy-nilly. At least subsection (8) of Amendment 1 talks about exemplary damages for,

“a flagrant breach of … rights”,

of the claimant. Given the sensitivity of the relationship between the press and the citizenry, it might be an acceptable use of what is generally not desirable—exemplary damages, or the concept of it—in respect of a “flagrant breach”. Incidentally, subsection (8) of the amendment has in it a serious misprint. It talks about breach of a defendant’s rights when it should refer to a claimant’s right. That is but one of several matters that could and, I hope, will be improved in the course of this Bill through the two Houses. On that basis, I am in favour of the amendments going through.

[The Archbishop of York]

My Lords, first, I apologise that I was not in Grand Committee when the Bill was going through. The noble Lord, Lord Lester of Herne Hill, always speaks with great authority on human rights and the conventions, but I would have thought that this was not the Third Reading of the Bill. If it were, we would be coming to the end of the game. This is Report, so the noble Lord, Lord Lester, might put right the defects in the amendments so that when the Bill comes back at Third Reading it will be amended. So that argument does not hold water.

In the end, it is to do with trust. If trust is absent, what do you do? We all want to trust our newspapers, but what happens when there is no trust? The amendment proposes an:

“Arbitration Service for defamation and related civil claims against members of Independent Regulatory Board”.

Because it is to do, first of all, with a question of arbitration, I am attracted to it. I am attracted to it because the preacher from Galilee said that, if you have a dispute with your neighbour, it is better to try to settle it before you go to court, because when you go to court you may find yourself being given such a stiff sentence that you end up losing doubly. Therefore, I am attracted by the whole question of arbitration. The courts, of course, can look at whether the parties were willing or unwilling to engage in arbitration. If a person has been wronged and another person does not think that is the case, arbitration obliges them to have a conversation. It seems to me that we should accept Amendment 1 at this stage. Then the Government can perhaps suggest alterations to it. Certainly, the noble Lord, Lord Lester, is always very assiduous in correcting things that are not well put. Perhaps he can suggest alterations to the amendment.

I am not persuaded by the part of the amendment in the names of the noble Baronesses, Lady O’Neill and Lady Hollins, which seeks to delete subsections (5) to (7) of the proposed new clause in Amendment 1, although I may be persuaded by other parts of their amendment. Those subsections are very important. They set out what needs to happen. Therefore, I urge your Lordships’ House to pause and consider whether we really think that only the rich ought to have recourse to a remedy in defamation cases. The ordinary citizen could find redress very easily and quickly through arbitration. The press ought to welcome arbitration because it would cost far less than an elaborate court case, which may collapse in the end after a lot of costs have been incurred. When there is no trust, what do you do? You want to be in a position to rectify your situation. For those reasons, I support Amendment 1 and resist deleting proposed new subsections (5) to (7) from it.

[Baroness Kennedy of The Shaws]

My Lords, I, too, support these amendments. I always listen with care when I hear the noble Lord, Lord Lester, speaking about human rights because of his great experience and his important role in our nation in arguing for human rights. However, I take issue with his interpretation of Article 6 and the statement that any kind of arbitration in this field would in some way contravene that article. The whole purpose of human rights is to empower the weak and to recognise the ways in which due process can often disadvantage those who have no money. The purpose of arbitration in this context is not simply to speed things up or to move things along. Much of our arbitration concerns two parties coming together to try to find a smoother way to deal with something, but in this context the purpose of arbitration is to redress the fact that our current system disadvantages whole tracts of people who cannot afford to go to litigation at all. I think you would find that the courts would not accept the literal interpretation of this concept on the part of some of our colleagues. The noble Lord, Lord Faulks, also said that this provision would be a contravention of human rights. I think you would find that the courts would take a very different view.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, I, too, support the amendment, but I do so on the basis that the general restriction on companies suing for defamation is limited to the requirement in subsection (3) of the proposed new clause that trading entities should have to show actual or likely financial loss before being entitled to sue for defamation. As drafted, proposed new subsection (2) would introduce a restriction on companies that is not so limited and is entirely undefined.

However, the restriction in proposed new subsection (3) is in line with the recommendation of the Joint Committee on the draft Bill, on which I served, and, as the noble Baroness, Lady Hayter, has pointed out, the recommendation of the Joint Committee on Human Rights as well. Whether companies should be able to sue for defamation was one of the issues that the Joint Committee was specifically asked to consider outside the ambit of the draft Bill, and we took a great deal of time and heard a great deal of evidence on this issue. The amendment accords with the sense of many who believe that corporate bodies trading for profit should not be in precisely the same position as natural persons in defamation law.

As in so much of the law in this area, the task is to strike the right balance between the right to free speech and the right to protect reputation. But it is a fact that companies cannot suffer hurt in their feelings and personal reputations in the same way as individuals can. Therefore, many have called for companies to be denied the right to sue for defamation. It is argued that companies have other ways to protect their reputations. It is argued that individual directors can sue, but to bring a suit for defamation is a serious undertaking and would expose those individual directors to substantial personal risk in costs when the real claimant should be the company. It is argued that large companies may have other steps they can take to protect their reputations by advertising or seeking publicity for their position, but that depends on their financial strength. A right to sue for malicious falsehood is often mentioned, but that is dependent on an ability to prove malice, which is notoriously difficult to do.

I take a different view. While companies do not have feelings that can be hurt, they can suffer financially, as my noble friend Lord Lester has pointed out. Defamatory statements about companies can have very serious consequences for their businesses, affecting the jobs of their staff and the prosperity of all concerned in them—whether or not untrue and defamatory statements are made with a view to profit by competitors or innocently by journalists. Therefore, it does not seem to strike the right balance to deprive companies of the right to sue for defamation altogether, quite apart from the fact that it would probably be contrary to the HRA to do so.

However, it seems proportionate and balanced to insist that companies and other non-natural persons trading for profit show that they have suffered or are likely to suffer substantial financial loss as a result of the defamation in respect of which they wish to sue. Imposing that condition recognises the difference in kind between individuals and non-natural persons trading for profit. It would not restrict the right of charities and other not-for-profit organisations to sue, and it is right that it should not do so; for example, charities can suffer from defamation in their future ability to raise funds, but it may be very difficult for them to demonstrate that. Proposed new subsection (3) of this amendment applies only to import a modest and proportionate restriction on the right of trading entities to sue and would introduce a valuable extra reform to this Bill.

Finally, I support the reform suggested by proposed new subsection (4) relating to bodies performing public functions, for the reasons that the noble Baroness, Lady Hayter, and my noble friend Lord Lester have already given, but principally because bodies performing public functions should be open to public criticism, even if private, in just the same way that public authorities are.

[The Archbishop of York]

My Lords, I, too, want to add a sentence of support to what the noble Baroness, Lady Hayter, and the noble Lord, Lord Lester, said.

I am patron of many charities and it would not be right if we did not strike the right balance. If a charity felt it was defamed because it was a body corporate, the restriction that has been put in here requiring the permission of the court is necessary. We are living in a very litigious society so if you are going to go to court to sue anybody, the permission of the court should be shown.

In proposed new subsection (3) there is the question of finance and the possibility of striking out if you cannot actually show that you have suffered loss. Because of that balance—that common sense that the noble Lord, Lord Lester of Herne Hill, was talking about—I am very attracted to this, and I hope that the Government will accept both limbs of the amendment, because you really could not do one without the other. It strikes a balance. For such a very long time, individuals could sue but reputational damage, as well as financial loss, is often incurred by a number of charities and it would be good to be able to do the same thing in terms of bodies corporate.

[Lord Faulks]

My Lords, of course, there is in the Bill a significant hurdle for any claimant, whether a non-natural person or a natural person: they have to show serious harm, so that is a hurdle of itself.

I supported the general tenor of this amendment in Committee but expressed a reservation at that time. Indeed, the Joint Committee on Human Rights expressed a similar reservation, which is: what about the small companies? Of course, I accept that the individual can sue if he or she is sufficiently identified, but if it is a small business—say, the local ice cream vendor; maybe nobody knows them by name but they have a valuable local business reputation—it will have to overcome considerable hurdles before suing. It will have to show substantial financial loss; it may not be very substantial objectively but it may be very substantial to that business. The hurdle of serious harm added to this procedure seems to prevent it recovering in circumstances where it should be able to recover.

Malicious falsehood may be difficult to prove, in the sense that malice is always difficult to establish. None the less, if I say that Hayter & Co. is going out of business, when it plainly is not, it is not difficult to infer malice from that pronouncement. It would be unfortunate if companies had to resort to the alternative tort in circumstances where they should, in my view, be able to rely on ordinary defamation.

My final observation relates to proposed new subsection (4). I accept what my noble friend Lord Lester said about the public function. Deciding whether somebody performs a public function is not necessarily very easy, just as deciding whether something is a public authority for the purposes of the Human Rights Act has caused the courts considerable distress.

I have sympathy with the general tenor of this amendment but I cannot go all the way with it.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Sentamu Excerpts

Tuesday 27th March 2012 Lords Chamber

[Lord McNally]

Citizens advice bureaux operate in a country that is 10 per cent poorer than the last Government gave the country to understand. It is absurd to pretend that citizens advice bureaux or any other sector—local government and national government —should not face this reality.

In civil cases, it is already a requirement of the rules of civil litigation that a child or other protected party who lacks capacity must have a litigation friend to conduct a case on their behalf. In the case of a child, this is usually a parent unless the court specifically orders otherwise. It will only be in exceptional circumstances that the court will make an order permitting the child or protected party to conduct proceedings on their own behalf. Any step taken before a child or protected party has a litigation friend is of no effect unless the court makes such an order. There is no requirement that a litigation friend must act through a solicitor. It is therefore open to a child’s parent or other person caring for the child, for example, to act as the child’s litigation friend in proceedings where the child is a party. We believe that this provides a clear safeguard for children and vulnerable young people who lack capacity to conduct proceedings on their own behalf.

We recognise that Amendment 5 also covers the 18 to 24 year-old category. As I said earlier, we have provided for those who are most vulnerable. However, we have also been clear that, in what is a complex area, there must be flexibility. The exceptional funding scheme therefore provides a mechanism whereby the director of legal aid casework can grant legal aid in areas of scope which would normally be out of scope, where necessary, to ensure the protection of the individual’s right to legal aid under ECHR and EU law. In cases engaging Article 6 of the ECHR, the director of legal aid casework must take into account a person’s ability to represent themselves, the complexity of the proceedings, the importance of the issues at stake and all other relevant circumstances. An individual’s age as well as their capacity will be a key consideration in determining a person’s ability to represent themselves. The exceptional funding scheme will clearly be an important safeguard for children and vulnerable young people who would otherwise be unable to present their case.

Amendment 3, in particular, seeks to bring all cases back into the scope of legal aid where a child is a party, but the Bill already provides for child parties to be within scope of legal aid in family proceedings. The amendment is therefore in part unnecessary and seeks to replicate what is already in scope. The rest of the amendment seeks to keep funding across the board for children in all civil disputes without regard to the relative priority or alternative methods of resolving them. The majority of children will already fall within the scope of legal aid as provided for by the Bill. However, there are additional safeguards to provide further protection through exceptional funding powers and, should it prove necessary, the power to add to civil legal services.

[The Archbishop of York]

The Minister has not yet answered the question which I think the noble Lord, Lord Thomas, raised—and had I had the chance, I would have raised the same question—on Amendment 3, in relation to proposed new paragraph 1(1)(k), which specifies:

“civil legal services relating to an appeal to the Supreme Court”.

I have not seen that provision in the Bill as drafted, but it is quite important. What will happen to it? I agree with the Minister about the other provisions, but I do not think that he has answered the question on that one.

[Lord McNally]

It is always a pleasure to see the most reverend Primate the Archbishop of York in his place. I shall give him a definitive answer as I sum up and come to my peroration, as there are a number of other matters that I wish to cover.

Amendment 4 seeks to bring into scope children for all clinical negligence cases. I have already set out my arguments on how we have protected children in the Bill. On clinical negligence, in particular, we recognised the concerns that serious and complex cases involving brain-damaged babies may not be able to secure a conditional fee agreement, and we therefore brought forward an amendment on Report that will provide certainty for families and make the application process straightforward.

The amendments we have made will allow funding for cases where the negligence occurs in a period of time beginning with the point of the mother’s pregnancy until eight weeks after birth. This does not mean that the symptoms have to become apparent during this period. They could become apparent beyond this period and still be in scope providing that the relevant negligent act or omission took place during that period. We also moved to include an additional safeguard in respect of babies who are born prematurely. We recognised that these children are particularly vulnerable in the post-natal period and have therefore provided that where a baby is born before the 37th week of pregnancy, the period of eight weeks will not run from birth but will be taken to start from the first day of what would have been the 37th week of pregnancy. I hope noble Lords will recognise that the Government have listened and acted to introduce back into scope the most serious clinical negligence cases involving children.

Amendment 5 seeks to bring into scope civil legal services in relation to advice and proceedings for any person who is 24 years old or under and has a disability, is a former care leaver or is a vulnerable person as specified by regulations. We have provided for those who are most vulnerable, as I have said, under Amendment 3, which covers those under the age of 18. However, we have also been clear that there must be flexibility in this complex area. The exceptional funding scheme therefore provides a mechanism whereby the director of legal aid casework can grant legal aid in areas that would normally be out of scope, where necessary, to ensure the protection of an individual’s rights to legal aid under the ECHR and EU law. In cases engaging Article 6 of the ECHR, the director of legal aid casework must take into account a person’s ability to represent themselves, the complexity of proceedings, the importance of the issues at stake and all other relevant circumstances. An individual’s age as well as their capacity will be key considerations in determining a person’s ability to represent themselves. The exceptional funding scheme will clearly be an important safeguard for children or vulnerable young people who would otherwise be unable to present their case.

I am told that we have lost the vote about retaining legal aid for appeals to the Supreme Court.