Litigation Funding Agreements (Enforceability) Bill [HL]

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Monday 29th April 2024 Grand Committee

[Lord Sandhurst (Con)]

My Lords, like others here today, I support the Bill and the amendments which the Government have laid. Like others, certainly including the noble Lord, Lord Carlile of Berriew, I am grateful for the Bingham Centre’s helpful briefing note. It sets out the issues clearly, in particular in respect of retrospectivity and the need for the Government to give good reasons for that, which I believe they have done.

What is important in this case is that before 19 July 2023, government policy endorsed the use of litigation funding agreements. There had been discussion about whether they should be regulated and how they should be managed, but the policy was absolutely clear. I referred to that at Second Reading. The Supreme Court, for good reason, did not have to address that issue of policy as it was not appropriate, but the effect of its decision is that litigants have lost much-needed support. If we are to ensure access to justice, particularly against monopolists, we now require a statute to undo that Supreme Court decision and do the best we can to restore the status quo ante. We have to hope that this legislation does not induce a spate of future litigation of the wrong satellite nature, but simply allows matters to proceed as they were until July last year.

For good constitutional reasons, retrospective provisions are not the norm, but when Parliament reaches a considered decision to pass legislation that is fully retroactive and does so for good reasons then, providing the legislation is drafted carefully, the Supreme Court has ruled that it is not contrary to our constitutional norms. In that respect, I refer to its decision in AXA General Insurance Limited and others v Lord Advocate and others, reported at [2011] UKSC 46.

I agree entirely with the noble Lord, Lord Carlile, that we should not fear challenge at some later date in the ECHR. The balancing reasons are absolutely clear: this is for access to justice. There may be no perfect answer, but this is the right route—or the least bad route. I am confident that the Government will look further at the detail of the retroactivity provisions and will not bring this Bill to finality without taking care to ensure that it is properly addressed. In doing so, they will have weighed the public interest in access to justice and in established positions that might be damaged by the Bill. It is pretty clear to me, and I think to others here, that the overwhelming public interest is in allowing matters to be restored to the general form of what everybody thought they were in the summer of 2023.

While I am sympathetic to the noble Lord, Lord Marks, and his amendment, I am persuaded and now agree that the appropriate course is to leave this to the Civil Justice Council. It is now seized of the matter and will have the benefit shortly of the report from the European Law Institute—the noble and learned Lord, Lord Thomas, is a member—and will guide this country into making good regulations. Regulation will not be straightforward, but it has been managed with some trial and error in conditional fee agreements, and we are now without problems there. It has been managed in damages-based agreements, so I would be surprised if it could not be managed in litigation funding agreements, albeit that I am sure that some lawyers will do well out of satellite litigation in the early stages.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I thank the Government again for bringing this matter with such expedition before this Committee. I wish to make two observations. First, I warmly welcome the Constitution Committee’s report, which is helpful and will no doubt help the Government further on the retrospectivity point.

Secondly, I am glad that the noble Lord, Lord Marks, put forward his amendment because it enables us to thank the Civil Justice Council and the Government for putting the terms of reference in such broad forms. As I mentioned at Second Reading, there is a lot of experience worldwide on that, but since then I have discovered more about the position in Australia and hope that the work done by the European Law Institute will in part reflect the substantial Australian experience. The Civil Justice Council will be able to look at that. Having heard what has been said in Australia, one has to take care, as not all are as responsible as the members of the litigation funders’ body. Others are tempted to enter into this area, so one might see that Australia has a lot of experience of how to deal with this, looking not to the creation of yet another regulatory body but to whether the courts themselves, through the Civil Procedure Rules, can be given the powers and guidance necessary to deal with the issues.

No doubt we will return to this in the autumn of 2025 for a very interesting debate.

[Lord Etherton (CB)]

My Lords, I just want to probe the Government to an extent on the involvement of the House once the Civil Justice Council has finished its review. It is an independent body. It is not itself a rule-making body; the rules are made by the rule committee. While I absolutely welcome the opportunity for the Civil Justice Council, with its expertise, to carry out its review, no changes to the rules will be made without a statutory instrument. My question for the Minister is: at what stage in the process will we have an opportunity of commenting on any recommendations made by the Civil Justice Council? That includes, for example, what my noble and learned friend Lord Thomas of Cwmgiedd has just said on whether a recommendation is made to deal with the question of regulation through amendment of the civil justice rules.

Litigation Funding Agreements (Enforceability) Bill [HL]

Lord Thomas of Cwmgiedd Excerpts

2nd reading
Monday 15th April 2024 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I also welcome the Bill. It is an enormous achievement of the Lord Chancellor. We ought to be grateful that he has recognised there is a serious problem that needs to be addressed quickly and has brought forward the Bill. I am also particularly grateful to the Minister for the clear way in which he has explained it. It is important to concentrate on what this Bill does and then, subsequently, to look at some of the other issues.

In the last few years, litigation funding has become part of the way in which access to justice is obtained. In a moment, I will say a little more about this. It is important to realise that this is a worldwide market. Issues similar to ours have arisen in Australia and across the member states of the European Union. There is a massive growth in litigation about this form of funding in the United States. The scale of this industry can be seen. The current estimate of the revenue of litigation funders is approximately $17 billion.

I was surprised, I think like many, that the Supreme Court reached the decision that it did, because over the years people had realised there was a clear distinction between damages-based agreements and what litigation funding produced. So, although the Supreme Court by a majority, reversing the Court of Appeal, came to the view that the principles applicable to damages-based agreements should also apply to these, otherwise they were unlawful, it was following what has been perceived in some states, such as Alabama, North Carolina and Pennsylvania, as a degree of hostility to this industry.

Given that so many thought that this was an industry that produced access to justice, and many have acted in reliance on what they thought the law was, it is plainly right that the decision should be reversed with retrospective effect. If there are issues about that, they can no doubt be looked at subsequently, but it is plain that litigation funding does provide access to justice. One has only to look at the Horizon case, where the very complex proceedings before Mr Justice Fraser involved a lot of financing in relation to technical issues, at equal pay cases, or at some of the consumer actions that have been brought to see that litigation funding is essential.

I, like many, wish that we had legal aid. On many occasions I have spoken of the wish that HM Treasury would open its pockets or that we would devise some other scheme, but I am afraid I have been a wholly unsuccessful advocate and legal aid has declined. Therefore, when those who criticise this industry come to look at what should be done, they ought very much to bear in mind that we as a state, and most other states in the western world, are failing in providing access to justice because there is no legal aid, and this industry has come, to an extent, to the rescue.

I will come back to the social responsibilities of this industry in a moment, but it is not only about consumers. It is also very important that SMEs and other medium-sized companies, which were never within the scope of legal aid, also have access to litigation funding. I am sure that hardly anyone in this Chamber could possibly contemplate the risk of litigation. It is far too expensive. Access to justice is not something that is open to an individual in this country, unless he falls within the very narrow band of people who can get legal aid or whose wealth is to be measured in enormous terms, so it seems important to have a sense of realism that no real alternative has yet been devised to this form of providing access to justice, given the cost of litigation. However, I do not want to descend into the costs of litigation because that would be straying off the point of what the Bill seeks to do.

I have also been very grateful, when speaking on this issue on previous occasions, to His Majesty’s Opposition, the Liberal Democrats and my noble and learned friends on these Benches for the support they have given in getting this issue back and dealing with it speedily. But I wish to raise two points. As the Minister mentioned, the noble Lord, Lord Hodgson of Astley Abbotts, raised the question of regulation during the course of the debates. I too am delighted at what the Lord Chancellor has done in asking that this issue—the way in which these agreements operate—should be independently looked at.

The operation of litigation funding across many jurisdictions has been the subject of work by the European Law Institute. It established a working group and, by complete coincidence, Mrs Justice Cockerill, who at the time was the judge in charge of the commercial court, and Professor Susanne Augenhofer, were appointed as rapporteurs of this group. It is a project in which I am an assessor, so I have considerable knowledge of it, but to try to help progress this, the council of the European Law Institute has made available the core part of the report, which sets out the principles that have to be addressed, such as transparency, disclosure and whether there should be a cap. I am sure that this report, a copy of which I have provided to the Lord Chancellor and others, will give at least a head start.

This is not the time to go into the details of that. Although the noble Lord, Lord Mendelsohn, addressed many of the issues, those are really not the subject matter of this debate; however, it is essential that they be dealt with. If you look at what is happening in the United States of America and what has happened in Australia, it is plain that the issues that arise are real and need detailed consideration. I therefore very much hope that the work done by the European Law Institute, along with some of the papers written about the position in the United States, will give the group that is to consider this at least an understanding of the broad issues that have to be resolved and the principles and alternatives that should be put before Parliament for its consideration in due course.

It may be that regulation is one alternative. I personally think that regulation has not served us well in many areas. Self-regulation may be the better thing; or, simply agreeing some principles and leaving the courts to police what is effectively in front of them may be a way forward. However, this is not a matter for debate today. We need a proper report, and we will need legislation in the next Parliament to deal with this, because it is such an important issue. There is a huge amount of learning, and I think you will find that the work done by the European Law Institute in its report will be of great assistance.

Finally, I want to turn to one other issue that I think it right to mention. Many think that people make a lot of money out of litigation in one way or another. The proverbial jokes, the proverbial cartoons, do not have to be referred to—they are well in everyone’s minds. However, I want to point to the example of one of the litigation funders, which established a not-for-profit company that provided funds that could be used for litigation that would not be suitable for litigation funding but that raised broader important issues. As is mentioned in the register of interests, when the funds were provided, I gave some advice as to the many competing claims for this. But I do hope—and this is a plea to the litigation funding industry, and maybe to others who do very well out of litigation—that they look at what can be done by way of providing some assistance for small but very important cases that have wide implications, and that are not suitable for litigation funding, and whether some of the money that is made can be put into this kind of enterprise, which is so important not merely for the rule of law but for our society as a whole.

It is an illusion to think that people have access to justice in this country: most people simply do not. Those who do so well out of litigation ought maybe to put in the back of their minds doing something along these lines, for the greater good of our society. I firmly believe that others who are better advocates than me will find that HM Treasury is a very, very difficult place to go and ask for money for litigation.

Imprisonment for Public Protection Scheme

Lord Thomas of Cwmgiedd Excerpts

Thursday 13th October 2022 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I pay tribute to the noble Baroness in securing this debate and to the noble Lord, Lord Blunkett, who has admitted that this was a mistake.

I want to make three points. First, we now have what is essential for policy, which is an evidence-based report. The committee listened to everyone on all sides. It has produced a clear analysis. The conclusion from that analysis is clear: although there are a few people who present an ongoing danger for a long time, the position of the vast majority needs reconsideration as incarcerating them for longer puts the public at greater risk.

Secondly, we must bring to an end delay, procrastination and failing to grasp the problem. It is very long standing. When I visited Leeds Prison in February 2006—some months after the sentence had been introduced—it was clear that the problems that have emerged were already apparent. There is no excuse for the inordinate and inexcusable delay. The report sets out with absolute clarity the effect of inaction. Inaction in many cases does not necessarily make the position worse but in this case it has. I have sat on cases where it is self-evident that the terms of the IPP sentence have made the prisoner more dangerous. That we cannot go on with. The reasons are set out with the utmost clarity. They are completely accurate and I need say no more.

Thirdly, I welcome all the solutions, but in the time allowed I will say something about resentencing. This was first raised with the Government by me in 2010, so it is nothing new. There are very good examples of where the judiciary and the Government have worked together to get sentencing right. The 2012 Act was got right with such work, save for this one problem. The experience of dealing with resentencing on murder—in which I had a role to play—has worked. Although there are difficulties, they can be overcome.

I urge the Minister: use an evidence-based report, do not delay, do not procrastinate and, at long last, achieve justice.

Queen’s Speech

Lord Thomas of Cwmgiedd Excerpts

Thursday 13th May 2021 Lords Chamber

[Lord Thomas of Cwmgiedd (CB) [V]]

My Lords, we must work collectively in this House, as the noble Baroness, Lady Crawley, has so eloquently explained, to give real effect to the commitment in the gracious Speech to promote the strength and integrity of the union. I therefore particularly welcome the step taken at the end of the old Parliament by the Secretary of State for Wales and the noble Baroness, Lady Bloomfield of Hinton Waldrist, to set about constructive discussion with Peers who have a particular interest in Wales.

There are four matters in particular which we should address together. First, there are the common frameworks —I have had the privilege of serving on the committee for their scrutiny, so ably chaired by the noble Baroness, Lady Andrews. The name of these instruments does not suggest for a moment that they are of much interest or importance, but the first report of the committee, published on 24 March, tried to make clear how essential they are to a co-operative union and the creation, by consensus, of UK-wide systems to protect matters as diverse as protection of the environment, public procurement and the regulation of subsidies, while allowing appropriate divergence, reflecting devolution. There is much we can do together to strengthen the union through effective common frameworks but, as was said by the noble Baroness, Lady Crawley, these require hard work and detailed co-operation.

Secondly, I will refer to the levelling-up funds, which Part 6 of the internal market Act permits this Government to use in areas of devolved competence. When these provisions were debated in this House and at the final stages of ping-pong on 14 December the Minister made it clear that while the specific arrangements for the governance of the funds were still being developed, there will be governance structures, and that the devolved Administrations—[Inaudible.] Can the Minister tell the House when the governance structures will be in place and assure us about the place of the devolved Administrations in those structures?

Thirdly, I will refer to the absence of proper structures for developing UK-wide policies on which again we in this House ought to work together. There are two basic problems: first, the current structures do not sufficiently involve the devolved Administrations and their Parliaments and, secondly—[Inaudible.]

Finally, I will refer to the balance of power between the Executive, the legislature and the courts. This must reflect a properly balanced, interdependent relationship between these three powers of the state. There is nothing that I can possibly add to the eloquent speech of the noble and learned Lord, Lord Judge, explaining how the balance has swung too far in favour of the Executive, to the detriment of Parliament, particularly in the light of our method of legislation, and particularly framework legislation, so clearly summarised by the noble Lord, Lord Lisvane. It is important to stress that it is in that context that the position of the courts must be set.

To go back to my theme about the need to work together to strengthen the union, there is one point I must mention. The proposals will also have implications for the devolved nations. Therefore, I trust that the Government will look at ensuring that the Parliaments and Executives in those nations have a decisive voice in the arrangements in so far as they may be affected by these proposals, because they relate as much to democracy in the devolved nations as they do to democracy within the United Kingdom as a whole.

[The Deputy Speaker (Lord Alderdice) (LD)]

I call the noble Lord, Lord Wigley. We cannot hear the noble Lord, so we will come back to him. I call the noble Lord, Lord Hannan of Kingsclere.

Counter-Terrorism and Sentencing Bill

Lord Thomas of Cwmgiedd Excerpts

Report stage & Lords Hansard
Wednesday 3rd March 2021 Lords Chamber

[Lord Strasburger (LD) [V]]

I speak in support of Amendments 15, 17 and 18, which would remove Clauses 34, 35 and 37 from the Bill. Each of those clauses would, if retained, significantly increase the severity of the TPIM regime or reduce the safeguards against the misuse of TPIMs and miscarriages of justice. Their combined effect would result in a dramatic increase in the powers of the Secretary of State, all to the detriment of fairness, justice and the freedom of those subjected to TPIMs.

The existing TPIM regime gives the Home Secretary the power to confine an individual to a property, perhaps located a long distance from their home, with a plethora of restrictions on how they live their lives and communicate. These clauses would give the Secretary of State new powers to impose a total 24/7 curfew, which is effectively house arrest, and to make this non-stop detention unending, permanent or until the person dies.

The subjects of TPIMs, who may never have been convicted of anything, could be condemned to a far longer period of incarceration than violent criminals and terrorists who have been convicted and sentenced by a court. That could happen without them knowing the allegations against them and without them having had any chance to see the evidence on which those assertions are based, let alone to challenge and refute them. Clause 34, even after being amended by the Government, makes it even easier for the Secretary of State to decide, at the stroke of a pen, to put an individual under this tough house arrest regime.

As the law now stands, she needs to believe, on the balance of probabilities, that the person is or has been involved in terrorism. I am no lawyer, but I can still do arithmetic and I take “on the balance of probabilities” to mean that there is a greater than 50% chance that she is right and the person is a terrorist. The clause changes the threshold from “on the balance of probabilities” to “reasonable belief”. Since the Government accept that this change lowers the burden of proof, I calculate that that means that the probability of them being a terrorist could be less than 50%, but they could still be locked away indefinitely. That means that the probability of them not being a terrorist threat could be greater than the probability that they are.

How could that come about? It could just be an honest mistake, based on flimsy evidence. We had a very strong hint that this does happen, when the current Independent Reviewer of Terrorism Legislation, who has access to classified material, gave evidence to the Public Bill Committee. He said:

“There is a risk that mistakes can be made about assessing intelligence. I have reason to believe that. My concern is that you are opening up a greater margin of error if the standard of proof is lowered. It is a fairness issue based on the authorities having all the cards.”—[Official Report, Commons, Counter-Terrorism and Sentencing Bill Committee, 25/6/20; col. 6.]


Answering another question, he said that he knew of instances where the intelligence had been misunderstood. There you have it: a highly reputable and well-informed person is warning us that innocent people are being punished under the current standard of proof, let alone the lower standard to which the Government would have us agree, under Clause 34, as amended.

What sort of country are we becoming if we are prepared to lock somebody away, all day and all night, indefinitely, even if the chance of them not being a threat is greater than the chance that they are, and having given them no chance to defend themselves? Why, you might ask, are the Government seeking to tilt the scales, not once but three times, towards even more draconian powers, with less justice and fewer safeguards against mistakes or abuse? You would think that there must be strong and compelling reasons for this triple assault on the fairness of our justice system, but the sad truth is that the explanations that have been offered during the passage of the Bill are utterly threadbare and unconvincing. They have the appearance of having been retrofitted, long after these clauses were added to the Bill, in a forlorn attempt to justify the unjustifiable.

The Independent Reviewer of Terrorism Legislation, with all his inside knowledge, searched for a good reason to lower the burden of proof and failed to find one. He said that

“it is not clear why there is any need to change the law in the manner proposed …where harsher measures are to be imposed, safeguards should be encouraged, not jettisoned.”

He also said that

“there is reason to doubt whether there exists an operational case for changing the TPIM regime at this … time.”

That is as forthright a condemnation of these three clauses as we are ever likely to hear from someone in his position.

What reasons have the Government come up with to justify lowering the burden of proof and therefore diminishing the safeguards against mistakes and misuse? We have been told that it will be easier to impose a TPIM, which frankly is a transparently circular argument. We have been told how hard it is to gather evidence to satisfy the current burden of proof. We have been told about pro-ISIS fighters returning from Syria being difficult to investigate. We have been told that it would simplify administration, although that is hardly a good reason for increasing the probability that innocent people are incarcerated by mistake.

All of these supposed justifications and all the others that have turned up and disappeared along the way were comprehensively holed below the water line by the Government’s star witness giving evidence to the Bill Committee. Assistant Chief Constable Tim Jacques gave evidence of behalf of the police and the intelligence services on 25 June last year. In answer to a question from Joanna Cherry MP, he made it clear that the current standard of proof is not an impediment to authorities getting a TPIM when they want it. His exact words were:

“MI5 has pointed out that there is no case thus far where the standard of proof has been a blocker.”


We have been told by the police and the agencies that there is currently no problem to be solved. The Government’s last resort in devising an excuse for these clauses is to tell us that we do not know what problems are coming down the track, and that it would be nice to have another tool in the toolbox. Well, on that basis we can justify just about anything—we could use the prospect of impending but unknown doom to excuse all manner of assaults on our liberty and our lives. This “just in case” style of legislation is fraught with dangers. Powers that we were told would never be used can quickly become heavily used and set the new standard. We cannot, in all conscience, allow the Government to get away with such slapdash explanations for making their powers even more draconian while reducing the safeguards against injustice.

Clauses 34, 35 and 37 are not needed. The Government have not come close to finding a cogent and convincing justification for them. They have no place in the Bill and must go. As Jonathan Hall QC, the independent reviewer put it so eloquently in his evidence to the Bill Committee:

“If it is right that the current standard of proof is usable and fair, and I think it is, in a word, if it ain’t broke, why fix it?”—[Official Report, Commons, Counter-Terrorism and Sentencing Bill Committee, 25/6/20; col. 7.]


I invite noble Lords to support Amendments 15, 17 and 18 should the House divide on them.

[Lord Thomas of Cwmgiedd (CB) [V]]

My Lords, I thank the Minister for the time he has given to speak about this Bill and for government amendment 14 on the burden of proof. I welcome the change of heart in that respect.

As to the other area on the potential length of TPIMs, I very much hope that the Minister will accept what is essentially the compromise in Amendment 16 between indefinite periods for TPIMs and the current period. It seems to me that the gap that divides us is not that great. TPIMs can be imposed not merely because criminal conduct is suspected, but also because of activities that may not be criminal. It is imposed by the Executive. Although, of course, there is a right of review to the court, a right of review is very different from the decision of a court or independent tribunal in deciding whether the grounds exist.

It is therefore important to appreciate that the very significant restrictions on liberty are imposed by the Executive, something generally alien to our tradition. It would be even more alien to our tradition to go to the extent of enabling the Executive to impose such a restriction for an indefinite period of time. Such restrictions should only be available on people’s liberty where people are convicted of serious criminal offences. Quite apart from the humanitarian and liberty and traditional aspects of that argument, there is the further argument which I raised, and will not repeat, on Second Reading: namely, indefinite orders can, as experience has shown, give people a loss of hope, and in effect make them more dangerous and less susceptible to being reformed.

The compromise that we have put forward in this amendment is further emphasised by the fact that of course if there is new evidence of activity during the period, the four years is not an absolute cut off.

Finally, there is a great deal of sense in having a cut-off period. It is very easy for any decision-maker, particularly one who is worried about the consequences of not extending the TPIM, to go on extending and extending it. It is very wasteful of resources, because enforcing a TPIM is very expensive. It is also fundamentally unfair that someone should be subject to a decision that can go on being rolled over indefinitely rather than someone—to put it in the vernacular—having to put up and charge with an offence or to shut up.

I very much hope that the Minister will think again about the compromise offered in this amendment and accept it.

[Lord Paddick (LD) [V]]

My Lords, this group deals with changes to TPIMs. The current Independent Reviewer of Terrorism Legislation, someone who has unique access to secret intelligence, operational partners and government officials, has previously stated that the changes proposed in the Bill to the TPIM regime were not necessary. We agree, as my noble friend Lord Strasburger so powerfully set out in his speech.

In relation to Clause 34, the current independent reviewer says that he is not aware of any case where operational partners had wanted to impose a TPIM but were unable to do so because the burden of proof was too high, as confirmed by the representative of operational partners in the Bill Committee in the other place.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Thomas of Cwmgiedd Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 24th November 2020 Lords Chamber

[Baroness Bryan of Partick (Lab) [V]]

My Lords, it is an honour to follow the speakers before me, who have such a range of experience. Many excellent amendments to the Bill have been proposed. Some are probing, looking for a response that might help to clarify the Government’s intentions. Others could serve to safeguard individuals who might be recruited as undercover operatives or those who might be affected by their actions.

Amendments 3 and 5, tabled by my noble friend Lady Chakrabarti and others from across the House, take us to the very heart of the issue. The ultimate safeguard we have from criminal activity is the rule of law. The very well-argued briefing from Justice points out that granting prior immunity would completely undermine the core principle of criminal law: that it should apply equally to all, both citizen and state.

At the briefing the Minister provided early in November, she was asked what would happen if an undercover operative exceeded their criminal conduct authorisation. To my mind there was not a clear answer. Another participant pointed out that the second part of the CPS test when deciding whether to proceed with a prosecution allows for public interest factors to be taken into account. During the Second Reading debate, I asked the Minister whether she could give an example of an undercover operative being prosecuted after having been authorised. She did not answer that point. My understanding is that the current test of the public interest has protected such activity, so why is there a need for prior immunity?

The statement made by the Minister for Security during the debate in the other place that criminal action can become lawful is a clear example of doublethink, whereby we can accept two mutually contradictory beliefs as correct: the action is criminal, but it is lawful. We have been reassured repeatedly that actions carried out cannot be in breach of the European Convention on Human Rights. The Minister assured us that

“nothing in the Bill detracts from a public authority’s obligations under the Human Rights Act”

and that

“there are checks in place to ensure that no activity is authorised that is in breach of human rights obligations”—[Official Report, 11/11/20; cols. 1046-47.]

but, as the Justice briefing points out, the very act of granting immunity might be a breach by denying a victim of the crime the right to an effective remedy.

In seeking to give reassurance at Second Reading, the noble and learned Lord, Lord Stewart of Dirleton, directed us to the covert human intelligence source draft code of practice. He said that this would give authorising authorities

“clear and detailed guidance that they must follow in deciding whether to grant an authorisation.”—[Official Report, 11/11/20; col. 1045.]

The code accepts that there will sometimes be mistakes and there is a section covering that eventuality headed “serious errors”. It says:

“In deciding whether it is in the public interest for the person concerned to be informed of the error, the Commissioner must in particular consider: The seriousness of the error and its effect on the person concerned; The extent to which disclosing the error would be contrary to the public interest or prejudicial to: national security; the prevention or detection of serious crime; the economic well-being of the United Kingdom; or the continued discharge of the functions of any of the intelligence services.”


These were the very criteria used to issue the erroneous CCA in the first place.

I support Amendments 3 and 5 and the retention of the public interest test, which has, over the years, been sufficient protection for CHIS activity. I hope that we can take this amendment forward to the next stage.

[Lord Thomas of Cwmgiedd (CB) [V]]

My Lords, on the evidence I see great merit in these amendments. Our history of criminal law shows that the state has always gone to considerable lengths to protect those who assist it in the detection of crime. The prosecution service and judiciary have ensured that that works. I echo what the noble Lord, Lord Thomas of Gresford, said a few moments ago—that the system works well. My experience from a different perspective is that is so.

The question for this House is what is wrong with the current law and why it needs to be changed, because it has worked well. [Inaudible.] Of course, if one is going to a system where the authorisation authorises the commission of a crime, it is very important that we know how precisely that authorisation will be drafted. Precision was unnecessary under the present law, but it will be in future, bearing in mind the civil and criminal immunity that it grants. Therefore, I asked whether I could be shown examples of what it was intended to do. I wanted that in particular in areas of substantial difficulty relating to drugs and youth gangs, and I ran into a difficulty.

I understand the position of the officers with whom the noble Baroness put me in touch, who take the view, with which I profoundly disagree, that providing examples, even hypothetical ones, might endanger future operations of the police. That presents us with a difficulty, because we can neither look at what is wrong with the current system nor properly examine the future system.

Of course, we could take matters on trust, but I would be very reluctant to do so. I do not wish in any way to cast any doubt on the good faith, hard work or enormous risks that people take, but errors of judgment and maybe more have been traversed in the past. I need not set out the details of those, although I will if necessary at a later stage in Committee.

Therefore, I have given some thought to how the House deals with a very difficult problem—being satisfied that changes are needed and that the changes will work better. I ran into that insuperable problem on evidence only yesterday and so have not had the opportunity to discuss this more widely with the Minister. But under Standing Order 8.118, a public Bill can be committed to a committee, either in its entirety or in an issue, so that the committee can examine the Bill. This happens rarely; it happened with the Constitutional Reform Act, which is why I happen to know of this process. I have also inquired whether such a committee could take evidence in private, and it can; it can operate without transcripts being taken and, of course, what it publishes will be private. We can see whether this is necessary in the course of examining the Bill, but we ought not to make changes to the law and impose a new regime without proper evidence—and that is the responsibility of the legislature.

What we should consider, which I do not want to propose now but want to raise as an idea, is that at the conclusion of the Committee it may well be desirable, because the evidence cannot be given in public, for a small committee of the House, which can look at the matter, representing all the different interests, to take evidence and report. Immediate objection would be made that it is very difficult to report, but I do not agree. There was a case that concerned a real threat to life, with which I was involved, known as WV. We were able to report in detail the circumstances of that case without in any way compromising the life of the person involved. There are techniques for doing that.

I hope that the Minister will either come to a view that more evidence can be provided openly or, if that is not possible, consider the alternative of having a committee that can look at this and report to the House that, for reasons that cannot be set out, there are deficiencies in the law, and the new system will work well. At the moment, I regret to say that I cannot see this change to the law being necessary, and I foresee tremendous difficulties with going to the new system, particularly bearing in mind the way in which the police have discharged so badly in many cases the crafting of search warrants. That can obviously be put right, but commission of crimes cannot.

Prisoners (Disclosure of Information About Victims) Bill

Lord Thomas of Cwmgiedd Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Wednesday 1st July 2020 Lords Chamber

[Lord Garnier (Con) [V]]

My Lords, we have discussed the arguments behind these amendments in Committee and, to some extent, at Second Reading. I am not sure that much has changed since. For my part, while I entirely accept the motives and intentions of those behind the Bill itself, as well as the amendments in this first group, I remain sceptical about the utility of the Bill as an addition to the criminal law. That said, I have every sympathy—who would not?—for the living victims of the abhorrent criminals covered by the Bill, and know why they, and those who support the Bill so enthusiastically, want it enacted. I am sure it will be very soon.

Both the Minister and my noble and learned friend Lord Mackay of Clashfern were not favourably impressed with my suggestion of a discrete criminal offence. From memory, only the noble Lord, Lord Adonis, was prepared to agree with me about the value of the Bill in its current form. My suggestions have now sunk below the waves and can be forgotten. However, I urge the House, despite the experience and wisdom of those supporting these amendments relating to the offender’s state of mind—either through the greater emphasis demanded of the Parole Board in Amendment 1 of the noble Baroness, Lady Bull, or through a Newton hearing under Amendment 3 in the next group, proposed by the noble Lord, Lord Thomas of Gresford—not to curtail the Parole Board’s independence and discretion.

As I indicated in our earlier debates, I would like the Parole Board’s work to be more accessible to the public. Despite the powerful analysis of the noble Baroness, Lady Bull, the noble and learned Lord, Lord Hope, and the noble Lord, Lord Thomas of Gresford, I agree with the Minister’s argument in Committee—which he seems to have repeated in his meeting with the noble Lords—that the Bill in its unamended form enables the Parole Board to fully consider the offender’s state of mind and their reasons for not disclosing the requisite information.

As was pointed out in our earlier debates, when considering the public safety implications of permitting a long-sentenced offender to return to the community, the Parole Board is looking at information and coming to a decision many years after the offence and the trial. A finding made by the trial judge shortly after the verdict about the offender’s failure to disclose the site of the victim’s body or—as the noble and learned Lord, Lord Hope, properly reminded us—the identities of children in criminal images is valuable, and will surely be brought to the Parole Board’s attention, as will be the effect of that finding on the judge’s sentence. However, as the noble and learned Lord, Lord Thomas of Cwmgiedd, pointed out in Committee, we need to be careful not to confuse punishment for the original crime and the public safety implications of the prisoner’s much later release.

It must seem to many noble Lords that, not for the first time, I have got to the church by way of the moon. However, in short, let us leave the Bill as it is. It will be no more effective if amended.

[Lord Thomas of Cwmgiedd (CB) [V]]

My Lords, I agree with the noble and learned Lord, Lord Garnier: the Bill is best left as it is. Although it is a limited purpose Bill and to be welcomed, there is plainly a need for a proper review of the Parole Board in due course. That is the occasion on which we should look at matters in the round.

In my experience, the Parole Board approaches the exercise of its discretion with the greatest possible care and, in cases where there are issues of mental capacity, takes infinite care to ensure that it has available all the necessary information, including reports from the prisoner. Occasionally, mistakes are made. However, there is always the remedy of judicial review, and it seems to me that it would be much better to leave the Bill as it is, allowing any errors on matters as obvious as mental capacity or findings of the trial judge to be taken into account. The Bill should be left alone; we should not amend it.

Earlier this week, we considered the state into which the law of sentencing has got by a piecemeal approach. It is not something we should do in criminal justice. Although I shall have something to say in detail about Amendment 3, I accept entirely the analysis of the noble Baroness, Lady Bull, and that of the noble and learned Lord, Lord Hope of Craighead. However, my acceptance of their analysis of the proper approach does not persuade me that it is necessary to amend the Bill. The issues can be safely left to the discretion of the Parole Board, and there is a remedy if it fails to do that.

[Lord Balfe (Con) [V]]

My Lords, I spoke in Committee and, subsequent to that, I had an exchange of correspondence with Marie McCourt. I would not like anything said today, and I do not think that any noble Lord would mean it, to take away from the need to right the hurt that she, and those dear to her, have felt.

I said on the last occasion that the Parole Board itself needed a thorough overhaul and the Minister, if I remember correctly, agreed with me. My concern here, as it is in many places, is that any law brought in to right a specific wrong can often be wrong itself—you need a much more generalist approach.

None the less, I welcome the Bill. My point is that, when you deal with mental capacity, you also have to remember human frailty. The fact of the matter is that people can just forget. There is at least an element of possibility that someone could just forget what they had done. It is also possible that they could just forget who photographs were of. I know that that may not be a popular thing to say but, going back many years to when I was in the Territorial Army, we used to have exercises where we dropped people and they then had to find their way to places. I was always amazed at how people could not recognise things. There is a genuine defence that someone has just forgotten.

Secondly, I hope that the Minister can assure us that we are not passing a law that will go to Strasbourg to be interpreted. When I look at this, I wonder whether it will pretty quickly end up in the European Court of Human Rights, where it will not be us doing the legislating but the judges in Strasbourg. I welcome the Minister’s assurance that he really does think that it is proof against even a reasonable prospect of a challenge in the court.

Finally, I agree with the noble and learned Lord, Lord Hope, that wording matters. It can matter quite strongly in the case of a Bill such as this one.

--- Later in debate ---

[Lord Mackay of Clashfern (Con) [V]]

My Lords, I find difficulty with these amendments, and I will look carefully at the detail to understand exactly what is involved. As a Scottish lawyer, I was brought up in the Scottish system, where Newton decisions are utterly unknown. Since training in the law of Scotland, I have acquired a certain amount of familiarity with the law of England and Wales, and I have come across these Newton hearings, and indeed the judgment of the noble and learned Lord, Lord Judge, in the case which has been cited, and the explanation he gives for having them.

It may be wise just to look a little bit further into the detail which is required or which requires a Newton hearing. In the law of Scotland, the indictment of a serious offence requires the detail of the offence to be set out. If the accused wishes to plead guilty, he has the option to plead guilty to the indictment as served, or to plead guilty with items in the indictment which are matters of detail deleted. The prosecutor then has the option either to accept that plea, which will be of the offence with the details as agreed by the accused, or to proceed to trial. However, there is no room then for difference of opinion at the sentencing hearing about what the detail of the offence was, so there is no need for anything resembling a Newton hearing.

In England and Wales, the situation is somewhat different in that an indictment requires a description of the offence which does not, or may not, involve the same degree of detail. Therefore, the Crown may accept a plea of guilty from the accused when there is in fact quite a difference between them as to the detail of the offence, and that difference may make all the difference in the world to the seriousness of the offence. Therefore, when the question comes up for sentence, the exact amount of detail and what the details were becomes utterly relevant, but there is no way of resolving that, because there is no jury trial. Accordingly, the judge has to have a hearing when he determines what in his or her view actually happened. The result of that is that the accused has come to accept in effect a plea which has the effect not of being what he wanted but of something that the judge decided he should have wanted.

This is the reason for the Newton hearings. As the noble and learned Lord, Lord Judge, said, to make the matter just, you have to know what happened. That is because the plea has not been sufficiently detailed to determine that. That is why these hearings have to be held. I once thought that it might be possible to get to a better solution by making it a requirement of an indictment to have more detail in it, but that has not so far happened. Who knows what may happen yet?

That is the situation of the Newton hearings. I understand the noble Lord, Lord Thomas of Gresford —with his great experience of both English and Welsh law on this subject—to suggest that if there is a dispute between the accused and the Crown about whether the accused has, justifiably or otherwise, refused to disclose what has happened to the body, the matter would be subject to a Newton hearing. I think that, if that happens, a Newton hearing is inevitable. Fortunately, I think that the noble and learned Lord who will follow me explained that that circumstance is usually taken into account at the conclusion of a hearing, including of course the jury trial, if the matter has become an issue between the parties at that stage. On the whole, it seems likely that this kind of question would be resolved without difficulty. It must be pretty much a matter of clear fact at the time of the trial and, therefore, the judge would usually take account of the situation agreed between the parties as to whether the accused has disclosed where the body went. This is on the assumption that the accused accepts that he committed the murder. I believe that the consequence of all that is that the number of Newton hearings with this subject matter will be relatively small.

I have to say that I speak on this matter subject to the observations of those learned in the law of England who will follow me. This is a matter of course only for the Crown Court, and therefore does not involve the magistrates’ court in which the noble Lord, Lord Ponsonby, is so experienced. In my view, accordingly, there are a very limited number of circumstances in which this arises at all but, if it does arise, it is obvious that the decision of the judge in the Newton hearing will take place before he commits sentence. Therefore, Rule 5 of the Parole Board Rules requires that if the observations of the judge at trial before sentence are available, they are to be considered. The rules already take account of the exceptional cases, if any, in which a Newton hearing has taken place in relation to this matter. I therefore cannot see that it is at all right to modify the Bill by such an exceptional circumstance, which in any case illustrates a possible need for improvement in the law of England and Wales.

[Lord Thomas of Cwmgiedd [V]]

It is a pleasure and privilege to follow the noble and learned Lord, Lord Mackay of Clashfern, in this debate. It is important to observe at the outset that I consider this amendment the kind of amendment that shows the danger of trying to make piecemeal amendments to a very limited-purpose Bill.

If I may be permitted, I will first say a little about the law of England and Wales in relation to the role of the judge and of the parties in determining the facts for sentencing. The least common form of determining the facts is a Newton hearing. More commonly, the facts—if there is to be a plea of guilty—are determined on the basis of plea. Both procedures are set out in cases to which reference has been made, but they are now codified in division VII B of the Criminal Practice Directions. By far the most common method of determining the facts is the determination made by the trial judge for the purposes of sentencing. Although a jury determines guilt or innocence, save in a most exceptional circumstance, it is for the judge who has heard all the evidence to determine the facts on which he or she will sentence. If the judge follows the correct approach to this, there can be no dispute before the Court of Appeal in relation to the findings made, as set out in the 2018 judgment of Mr Justice Sweeney in the Queen v King.

Thus, what this amendment seeks to do, on the face of it, is to refer to the least common means of determining facts for the purposes of sentence, leaving out a slightly more common means, but not so common in murder or the other cases covered by the Bill where a life sentence will be involved—that is, a basis of plea agreed with the prosecution—and leaving out of account entirely what would normally happen, which is that the trial judge would have made findings. In the case of murder, this is particularly important because, as I mentioned in Committee, if the body has not been found or has been dismembered so that it cannot be found, this is provided as an aggravating factor under Schedule 21 to the Criminal Justice Act 2003 and the judge must make findings about it—and, in my experience, they invariably make findings about it—and it would be essential for the Parole Board to take that into account to avoid any risk of double punishment.

I therefore regret to say that, on its face, the amendment, if it seeks to deal with the narrow issue of what the Parole Board should do, is not a good amendment, because it leaves out the most common form of the determination of facts. However, if the wider purpose, as explained by the noble Lord, Lord Thomas of Gresford, is to encourage the taking place of Newton hearings after a trial, I venture to suggest that this is a most undesirable process. The trial judge will have heard the evidence; it is plain that, if a body has not been discovered, its whereabouts have not been discovered or the identity of the victim is unknown—as happens often in indecent image cases—this is bound to have been debated at the trial, and the trial judge will, as the law stands, have made the necessary findings. It is to those that the Parole Board should have regard.

If, however, it is thought that there should be a different procedure and that we should look at this matter again, I respectfully suggest that this is not the Bill in which to do it, and that this provision does not achieve what is intended. It illustrates that, if there is a problem with the way in which facts are determined—I believe there is no such problem—this is a matter that should be part of a wider investigation and not undertaken in this limited-purpose Bill.

I therefore propose to vote against this amendment on various completely different grounds. First, it has the potential to impair the discretion of the Parole Board by expressing reference to a particular means of determining the basis of sentencing and leaves out the more important. Secondly, it is unnecessary for the way in which the Parole Board approaches cases for the reasons I gave last time. Thirdly, the Parole Board is under a duty to look at what the judge has found. Fourthly, if there is a wider purpose, this is something that should be examined separately. This amendment achieves none of these purposes and I urge the House to reject it, if the House is divided.

Private International Law (Implementation of Agreements) Bill [HL]

Lord Thomas of Cwmgiedd Excerpts

3rd reading & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords
Monday 29th June 2020 Lords Chamber

[Lord Thomas of Cwmgiedd (CB) [V]]

I too warmly support these necessary amendments. I do not wish to traverse the arguments that took place on Report or prior to that. I merely add a word about the Lugano convention. It is universally agreed among lawyers that although it may not be the best solution, it is probably the best available solution to the position that we are likely to find ourselves in at the end of the year. It is of the upmost importance to many in the United Kingdom economy, but in particular also to those who conduct legal business in London, that we adhere to the Lugano convention. I see no reason why the other parties to the convention will not agree. I therefore express my earnest hope that if that takes place there will be no delay whatever in bringing forward the necessary legislation to make it part of our law. Any delay in the matter of the reciprocal enforcement and recognition of judgments can do nothing but damage the position of the United Kingdom as a whole and in particular London as a dispute resolution centre.

[Lord Foulkes of Cumnock (Lab Co-op) [V]]

My Lords, I enjoyed the speech of the noble and learned Lord, Lord Garnier, especially when, having made a couple of political points, he asked us to cast political points aside. It is nice to see that he is in his usual jolly form.

I am very pleased that the Government have decided to remove Clause 2 and Schedule 6 from the Bill. I agree with my noble and learned friend Lord Falconer. We would not want to give the Government carte blanche on any agreement, especially at a time when the Civil Service is being taken over by political ideologues—friends of Mr Cummings. But, like the noble and learned Lord, Lord Garnier, having made a couple of political points, I have two specific questions for the Minister. First, on the state of play in discussions with the Crown Dependencies and Overseas Territories, have any memoranda of understanding been agreed, and what does he expect the final outcome to be?

Secondly, as a delegate from this Parliament to the Parliamentary Assembly of the Council of Europe I noted that paragraph 5 of the Explanatory Note states that

“Agreements containing PIL rules may also be negotiated through the Council of Europe.”


I am keen to know what agreements would come into that category. I would be grateful if the Minister could respond today, but if he cannot, I would appreciate his response in writing.

Sentencing Bill [HL]

Lord Thomas of Cwmgiedd Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Thursday 25th June 2020 Lords Chamber

[Lord Thomas of Cwmgiedd (CB) [V]]

In warmly welcoming the Bill, I pay tribute to the Law Commission for its outstanding achievement, particularly to Professor David Ormerod, whose scholarship, knowledge of criminal law, patience and persistence with this project has ensured that it has come to fruition—and to almost universal approval. In large part, that is due to the time taken on consultation in a most courteous and patient way.

There can be no doubt that the Bill is needed. The reason that there have been mistakes—I need not go over the number of them—is that the law was inaccessible. Only by collecting former editions of textbooks or having the resources of the Criminal Appeal Office could you have untangled the mess the law had got into through successive changes in sentencing policy. Obviously, the Joint Committee on Consolidation Bills will take the necessary evidence in relation to this.

Perhaps I can answer the question of why there are no Explanatory Notes. In looking at previous consolidations, I saw that this was raised by the noble Viscount, Lord Hanworth, in 2014. It was pointed out that it might be useful and could be considered in the next consolidation. For my part, I would not ask for Explanatory Notes on this Bill; it would impose an enormous burden on the Office of the Parliamentary Counsel, and the Bill is explicable without them.

My final remarks are for the future. The experience is not good. We ought to be very much aware of that. The Powers of Criminal Courts (Sentencing) Act 2000 was meant to consolidate a large area of sentencing law. However, within a year or so of that Bill passing, legislation came forward that made it redundant. Please can we bear that in mind for the future?

I have a note of optimism: the Bill shortly to be considered in relation to terrorist sentences contains drafting which shows that it is possible to do all this with the amendment to this code. I also hope that in future the Law Commission can be provided with the resources to carry on this valuable work. The judiciary has modernised criminal procedure and it is now in effect in the procedural code, and there are other aspects of the criminal law, particularly substantive criminal law, which could well benefit from codification, but that may be to dream too far.

Private International Law (Implementation of Agreements) Bill [HL]

Lord Thomas of Cwmgiedd Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Wednesday 17th June 2020 Lords Chamber

[Lord Blunkett (Lab) [V]]

My Lords, I speak in support of my noble and learned friend. He will recall that in Committee, when we debated this matter briefly, the noble and learned Lord, Lord Garnier, laid down a challenge. He said that those who are in government are in favour of secondary legislation but, when they are in opposition, they are against it. I think that the case has been made this afternoon very clearly that this is an extension of the way in which Governments apply secondary legislation, and the Constitution Committee and Delegated Powers Committee have reinforced that very strongly.

As a politician—I am not a lawyer, although I am in the company of distinguished lawyers—I am reminded of the kinds of proposals that used to be brought before Labour Party conferences in the 1980s. A number of rather sensible measures—my noble and learned friend mentioned the 1996, 2005 and 2007 measures—are completely undermined by something highly controversial and unnecessary which is thrown in.

We are dealing with this matter in our virtual Parliament and seeking to find a way through. I hope that, as this amendment to delete this clause is pushed to a vote, the Government will think again and be prepared to attend to the major issues, rather than push through an extension of delegated power, including to complementary and associated measures and model laws, as has been described. We could then have wholehearted agreement.

[Lord Thomas of Cwmgiedd (CB) [V]]

I too support this amendment. In the light of what has been said by the noble Lords and noble and learned Lords who have already spoken, I can confine my remarks to a very few sentences.

Essentially, the constitutional position is one of long standing and should not be changed without justification. That justification has to be seen in the context of a significant move towards Bills becoming more of a framework and with more being done by secondary legislation. We should take a firm stand that that should happen only where necessary. No justification has been put forward for it being necessary. For example, most international conventions and model laws are negotiated at a glacial pace. There can rarely be any justification for the need for legislation to be implemented quickly.

I should add that of course there might have been an exception in the case of Lugano but, as the noble and learned Lord, Lord Falconer of Thoroton, has already explained, that could have been dealt with. Of course, it is a convention that many lawyers in the UK want and hope that we shall accede to in the interests of the UK economy and of the position of London, but the Minister has taken the view that the clause cannot be confined to that. In those circumstances, I fully support, and will support in a Division, the amendment put forward by the noble and learned Lord, Lord Falconer.

--- Later in debate ---

[Lord Hope of Craighead [V]]

My Lords, it is all too easy to think that a sentence of imprisonment for a term of not more than two years, which is what paragraph 1(1)(b) of Schedule 6 by implication permits, is a relatively light matter. It certainly is not. Any conviction for a criminal offence, whatever the sentence that results from it, can have the most serious consequences for the individual; for example, opportunities for travel, employment and obtaining insurance can all be affected. The issue, therefore, is one of principle. It should not be for Ministers to create criminal offences by statutory instrument.

[Lord Thomas of Cwmgiedd [V]]

I will be very brief, as this amendment really has no purpose in the light of the result of the Division.

I too agree that, as a matter of principle, it was wrong to seek to include this power in the Bill. Furthermore, it must be recalled that, in relation to most aspects of private international law and the reciprocal enforcement of orders of other courts, the courts have significant powers by way of committal for contempt or injunctions. It cannot be justified to create and impose criminal offences with sentences of imprisonment in the circumstances of this particular Bill.

[Lord Mance [V]]

I share the view of other noble Lords and noble and learned Lords. This is pre-eminently a matter for Parliament. It has been slipped into Schedule 6 as a qualification to Section 2 powers regarding private international law. I suggest that, if one had read Section 2 by itself, one would not normally have expected it to cover crime at all, and yet this comes in as if it is automatic that it would cover it. It clearly should not.