Taking Control of Goods (Fees) (Amendment) Regulations 2021

Lord Thomas of Gresford Excerpts

Thursday 13th January 2022 Lords Chamber

I know Ministers care about mental health; today, they have the opportunity to do something concrete to improve the mental health of those in greatest need. I want to thank the noble Lord, Lord Wolfson, for writing to me. It seems the Government are unwilling to make commitments at this stage and want to await the outcome of the litigation. Nevertheless, I look forward to the Minister’s response today.

[Lord Thomas of Gresford (LD)]

My Lords, it is a great pleasure to follow the noble Baroness, Lady Meacher, in her very clear and lengthy exposition of the position. I applaud her efforts and seek to follow in her footsteps.

In his Written Statement on 18 November, the Under-Secretary of State for Justice, James Cartlidge, said:

“While we take the view that the taking control of goods legislation when considered … with the common law position permits the recovery of VAT costs from debtors in this way, we have accepted … that this is an area where it would be beneficial to set out the position in regulations to put the matter beyond doubt.”—[Official Report, Commons, 18/11/21; col. 34WS.]


Well, they have done that, but some questions remain.

In enforcing a debt there are three parties: the judgment creditor, the judgment debtor and the enforcement agent. What this instrument does is permit the enforcement agent to recover from the judgment debtor a sum of money equivalent to VAT on his costs and expenses, even though the judgment creditor is not registered and therefore not liable to collect or account for VAT to the Treasury.

A number of questions arise. First, what if the enforcement agent is himself not registered for VAT? How does he account to the Treasury for a sum equivalent to VAT? Would he not just pocket it? What happens to that money? Secondly, when did the common law take cognisance of VAT? Perhaps the Minister will explain the meaning of Mr Cartlidge’s reference to the “common law position”? I find it difficult to comprehend why, if the judgment debtor would not have to pay VAT to the judgment creditor, the common law would force him to pay it to the tipstaff on behalf of the bailiff.

Section 90 of the Tribunals, Courts and Enforcement Act 2007 gives power to the Lord Chancellor if he “considers it necessary or expedient” to make

“supplementary, incidental or consequential provision”

or

“transitory, transitional or saving provision”

by regulations. In Schedule 12—on which this instrument also depends—paragraph 13(3) deals with taking control of goods, paragraph 42 with the sale of goods, and paragraphs 50(4) and 50(7) with the application of the proceeds. How is there power to make this instrument, which, in effect, imposes taxation upon the judgment debtor which he would not have to pay if the judgment creditor were registered for VAT? It is arbitrary; it is luck, a matter of chance.

The Minister will appreciate that if you have worked, as I have, as a solicitor in a close mining community in north Wales—not dissimilar to Tredegar, I may say—there is always concern about the activities of bailiffs and their tactics. I include in that claiming fees for visits to the debtor which were never made, or where the knock on the door was particularly soft and a second visit follows. Clients are not aware or made aware of their ability to go to court to tax the bills for their expenses, and these are not inconsiderable sums. If it is council tax, parking fines, or a debt under £1,500, for example, it is £75 for a letter, a £235 fixed fee for a visit to your home and a £110 fixed fee for taking and selling your possessions. Over £1,500, there is an extra fee of 7.5% on each of the latter two stages. A High Court judgment of under £1,500 attracts fixed fees of £190 for a visit, £495 for failing to keep to an enforcement agreement and £525 for taking and selling your belongings. If it is over £1,500, 7.5% is added to the enforcement and sale fees.

We are about to face a period of inflation, high interest rates and a rise in the cost of living. This will be familiar to those of us who are old enough but not to the youngsters raising their families. I hope somebody judicially reviews this instrument because I do not think it is properly made and I very much hope it will come back to haunt what is left of this Government.

[Lord Best (CB)]

My Lords, I support this Motion to Regret in the name of my noble friend Lady Meacher. The last thing needed by those trying to deal with a problem debt is an extra 20% charge on top of the collection costs in tax that should clearly have been levied on the creditors, not the debtors. It is surely a great injustice for debtors to have been charged VAT when they should not have been and to have to go to considerable lengths to recover money they have been falsely charged. It is certainly a matter of deep regret and the remedies proposed by my noble friend seem entirely justified.

Perhaps I could take this opportunity, on the subject of bailiffs, to note that there is considerable political and practitioner interest in bailiff reform. Will the Minister reaffirm the Government’s support for the enforcement conduct authority as organised by the Centre for Social Justice in partnership with both the bailiff sector and the debt advice sector? Impressive work has been done by the CSJ in securing agreement between those representing bailiffs and those providing debt advice, such as the charity StepChange. This now needs government to take matters forward and grant statutory powers to this new body to give it real teeth. Perhaps the Minister could comment.

Police, Crime, Sentencing and Courts Bill

Lord Thomas of Gresford Excerpts

Lords Hansard - part one & Committee stage
Monday 8th November 2021 Lords Chamber

[Earl Attlee (Con)]

My Lords, I support everything that noble Lords have said so far. Unless the clause is significantly amended along the lines suggested, I could not possibly support it if it were taken to a Division.

[Lord Thomas of Gresford (LD)]

My Lords, as this is about causing serious injury by careless or inconsiderate driving, the state of mind—the mental element—is involved. The noble and learned Lord, Lord Hope, referred to the case of Lawrence in 1982, a decision of Lord Diplock. In that same year I was appearing before the Appellate Committee in a case called Caldwell, in which a person who was intoxicated had gone to sleep in the doorway of a hotel, lit a fire to warm himself and severely damaged the hotel. The issue was whether he was reckless in so doing. What was his state of mind, his mental element? It was agreed that he had no intent to do it but Lord Diplock held that the conviction should be upheld because an ordinary person who was not intoxicated would have realised the consequences of what he was doing, although Caldwell himself had not done so. He spent quite a long time in prison, and it took 22 years for my argument to succeed in the case of G in 2002, when Lord Bingham held that Caldwell had been wrongly decided and that the test of the mental element has to be subjective—that is, it is necessary for the person to have a subjective understanding of what is going on. That is very similar to the issue we are discussing in this case.

However, I believe that Clause 66 is simply wrong in principle. It threatens to penalise the outcome of the offence—serious injury—with imprisonment when the mental element of the offence of careless driving is no more than negligence. I accept that there is a precedent for penalising driving offences by reference to outcomes. Clause 65, relating to causing death by dangerous driving or careless driving while under the influence of drink or drugs, has that effect, but dangerous driving and careless driving while under the influence of drink or drugs both have a far more serious mental element than simply careless driving. Dangerous driving involves falling far below the standard of a reasonable driver, and the drink or drugs offence involves deliberate impairment. In either case, the offending driver is knowingly taking a risk with the safety of other road users, so it is his mental element that is being punished in those serious cases.

On the other hand, as other noble Lords have said, careless driving involves driving that falls below the standard of care of a prudent driver—no more than carelessness, negligence or, in the terms of the clause itself, “inconsiderate” driving. A mistake, or inadvertence, may suffice. To make such an offence imprisonable because it results in serious injury is not a step that we have ever taken before, and offends against the principle that the seriousness of an offence should depend not just on the act done but on the state of mind of the offender.

Almost every accident is the result of negligent driving on the part of at least one of the drivers involved—that is, in the absence of mechanical failure or an unexpected event, such as the wasp sting that we have heard about, but such events are extremely unusual. Sadly, a vast number of accidents involve serious injury—a broken limb, for example, being “serious injury” for this purpose. The vast majority of accidents arising from negligence, whether or not they cause serious injury, do not lead to prosecutions. The clause would leave it to police and prosecuting authorities to pick out the few accidents that they wished to lead to prosecution, and would expose drivers to the risk of imprisonment for an accident that arose out of a simple mistake.

--- Later in debate ---

[Lord Falconer of Thoroton (Lab)]

The noble Lord has made a very interesting speech, but is it right that negligence and the harm that it does cannot be reflected in imprisonment for any criminal offence? What is the position in relation to health and safety at work? My understanding of the law is that once someone is convicted of what is in effect negligence in relation to providing conditions at work, the court can take such matters into account—for example, if they were negligent and someone lost an eye, that would increase the penalty, and imprisonment would be a possibility. I might be wrong about that.

[Lord Thomas of Gresford (LD)]

That is an interesting point. Manslaughter can obviously be by negligence.

[Lord Falconer of Thoroton (Lab)]

Gross negligence.

[Lord Thomas of Gresford (LD)]

Gross negligence, yes—although it is interesting that the word “gross” is put before it. But these are different offences, and it may be that I should confine my criticism to the road traffic situation and not extend it as a general principle of English law.

[Lord Beith (LD)]

My Lords, there have been some powerful contributions to this debate. I agree with the comments that the noble and learned Lord, Lord Hope, and my noble friends have made.

It is perhaps necessary that we should say in the debate that there are members of the public whose families have been drastically affected by serious injury resulting from careless driving who feel that there should be a stronger penalty, and that the particular circumstances in the accident with which they are familiar justify a stronger penalty. This is the simple point I want to make: the territory that we enter here is of believing that prison is the only way that society can say, “We are not going to put up with this. This is very bad. Drivers should drive better, and people should be aware of the dangers that they engage in if their concentration lapses.” Prison is probably one of the least effective ways of dealing with the individuals that we are talking about.

As my noble friend Lady Randerson pointed out, the effects of these accidents—or rather incidents, following the noble Baroness, Lady Jones—which result in serious injury are devastating for all those involved. However, the Government need to resist the constant temptation to believe that spending a lot of money on sending people to a place that will not improve their driving—or indeed anything—but is likely to lead to despair and reduce their ability to contribute to society in years to come is a sensible course of action. They should recognise that this is a misuse of the expensive, although important, resource of custody.

[Lord Berkeley (Lab)]

My Lords, can I just ask the noble Lord, Lord Thomas, why he thinks that an offence in the transport sector might be different from the Health and Safety at Work etc. Act? Is it because transport is a middle-class crime and health and safety is not, on the whole, or is there something different?

[Lord Thomas of Gresford (LD)]

Driving is an activity which is universal. Equally, the mistake—or negligence—is also universal, and I do draw that distinction. I appreciate where the noble Lord is coming from, but that is the distinction I make.

[Lord Marlesford (Con)]

My Lords, I very much agree with the noble and learned Lord, Lord Hope, and other noble Lords who have spoken. It seems that there is a perfectly obvious, very serious penalty which can be applied to the most egregious cases of careless driving, where there is very serious injury, and that is a lifetime ban on driving. That would be much more effective than imprisonment.

Non-fatal Strangulation and Suffocation

Lord Thomas of Gresford Excerpts

Thursday 8th July 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, of course we need all agencies to be aware of their responsibilities. I have already spoken about the police. To pick another example, judicial training in domestic abuse is included in family law and criminal courses run by the Judicial College; it is prioritised for induction and continuation training. All judges get that training before they hear family cases and are therefore on top of domestic abuse issues.

[Lord Thomas of Gresford (LD) [V]]

My Lords, may I underline the point made by the noble Lord at the beginning of this session? My daughter-in-law did a thesis on the connection between violence, domestic abuse and sporting events. It is clearly a considerable problem. He is right to remind us of that.

The New Zealand Law Commission advised that the offence should require proof of strangulation but not proof of injury, on the basis that so many of these strangulation incidents do not cause visible physical injury. Is that the approach that the noble Lord is taking? Where does consent come into the new offence?

[Lord Wolfson of Tredegar (Con)]

My Lords, I will take the point about visible signs of injury first. A visible sign of injury is not needed: the offence requires the Crown to show beyond reasonable doubt that the person strangled or otherwise did something to affect another person’s breathing. You do not necessarily need visible signs of injury. The consent point raised by the noble Lord is a huge legal point. I summarise it by saying that it effectively follows the decision of the House of Lords in R v Brown that you cannot consent to serious harm. To say any more would, I am afraid, exceed the time allowance.

Criminal Justice (Electronic Commerce) (Amendment) (EU Exit) Regulations 2021

Lord Thomas of Gresford Excerpts

Wednesday 30th June 2021 Grand Committee

[Lord Thomas of Gresford (LD) [V]]

My Lords, I thank the noble Lord, Lord Wolfson of Tredegar, for his introduction. The Explanatory Memorandum could have done with illustrative examples to clarify the new position following the implementation of these regulations. I support the committee in insisting that this instrument had a hearing.

As I understand it, the e-commerce directive applied to companies engaged in internet trading, search tools, social media platforms and the like. A trader based in this country trading online in the EEA could be criminally liable under the laws of this country only, and would not have to comply with the criminal law of any EEA state in which he was trading. The strength of the country of origin principle, “the CoOP”, was that it was reciprocal; other countries dealt with traders operating within their jurisdiction similarly.

However, since the end of the transition, UK internet traders or social media platforms have had to adhere to the laws of each EEA country in which they operate. Equally, EEA traders can be prosecuted if they do not comply, when operating in the UK, with our criminal law. Perhaps the Minister can confirm that a UK trader now must have regard to the criminal law in each EEA country in which he operates, but will not be liable in this country for offences committed abroad, because the courts of this country will have no extraterritorial jurisdiction to prosecute here for such offences. If, therefore, a trader wishes to advertise his wares on the internet in, say, Belgium, Denmark or Germany, he will have to ensure that his advertisements or the products he is selling comply with the criminal laws of each country.

Take pornographic material, for example. If a trader in London publishes obscene material in EEA countries, he can be prosecuted there but no longer in the UK. He can be prosecuted by the appropriate prosecuting authorities in those countries but, unless the material is published in the UK as well, no prosecution is possible here.

Does it then follow that such a trader can sit in London and purvey his material in EU or EEA countries, safe in the knowledge that, in the absence of the European arrest warrant, it would be extremely difficult to extradite him to Belgium, Denmark or Germany, where the offence is committed? The converse is that, if a European trader publishes obscene material in this country, he can be prosecuted in UK courts if we can get hold of him. Absent the European arrest warrant, that is likely to be difficult.

The Explanatory Memorandum says:

“Removal of the CoOp”—


the reciprocal arrangements—

“will only bring regulation of UK ISS operating in the EEA in line with their operation in other foreign countries, and does not affect our ability to prosecute UK nationals or residents who commit offences outside the UK”—

this final section is underlined—

“where our courts have jurisdiction to do so.”

The Minister will know how limited extraterritorial jurisdiction is in this country: for murder, manslaughter in certain circumstances, sexual offences against persons under the age of 18, forced marriage and female genital mutilation—a short list. We are about to consider legislation which implements the Istanbul convention—ironically, the convention promoted by more Europeans than the Council of Europe—on preventing and combating violence against women and domestic violence. The fact sheet published by the Home Office last month indicates the extent of the proposed extension of extraterritorial jurisdiction. It does not include publicly publishing obscene materials or fraud.

Personally, I am sick to death of scams from abroad, sometimes from west African countries, which force every one of us to set up barriers on the internet, email and telephones. I hate the idea that persons could set up in this country to defraud people on the continent or flood their markets with pornography. Would it not be simpler if, rather than drawing up our skirts to avoid contamination by the EU or the EEA on every occasion, we now negotiated to enter into a new reciprocal agreement? As I see it, these regulations are a necessary consequence of Brexit, but creating a platform for criminals to defraud European citizens is in no way desirable. I await to see whether I have misunderstood the whole purpose of these regulations.

End-to-end Rape Review

Lord Thomas of Gresford Excerpts

Tuesday 22nd June 2021 Lords Chamber

[Lord Falconer of Thoroton (Lab) [V]]

The issue about the extent to which rape is properly prosecuted in this country is now a real one. The Lord Chancellor rightly apologised for the lack of prosecutions, yet did nothing to deal with the problem properly. He announced a sum of money, in the region of £150 million, most of which went to refuges. Refuges are very worth while but will not deal with the problem of the lamentably low rate of convictions for rape. The average amount of extra expenditure on rape cases, if one applies it to the number of rape cases the Government estimated last year, is £15 a case.

Why have the Government not made more resources available, if their apology is serious? Why have they not rolled out Section 28, which allows for victims of rape to give evidence as soon as possible after the crime has been committed and for their evidence to be recorded?

[Lord Thomas of Gresford (LD) [V]]

I congratulate the authors, researchers and statisticians who have contributed so much to this comprehensive and excellent review. I trust that the Government will fully resource its recommendations, but agree with the noble and learned Lord, Lord Falconer, that there is no sign of it so far.

I focus on one of the review’s findings—namely that, in 57% of all adult rape cases, the victim feels unable to pursue their complaint. Given that in 90% of cases the victim knows the perpetrator—as a member or friend of the family, fellow student or worker, friend or acquaintance—that may not be too surprising. I strongly suspect that very few of those withdrawals concern the small minority of cases where the perpetrator is unknown. I am interested to know whether the Minister has a figure for the percentage of withdrawals in cases of stranger rape.

So, what are the reasons for disengagement by the victim? First, there is delay. Giving evidence is always a stressful experience, as I know well. Standing exposed in a witness box with one’s honesty, accuracy of recollection and motives challenged is not pleasant. Giving evidence about intimate sexual encounters must be agonising and overwhelmingly stressful. Only those with a high degree of courage and persistence can be expected to stay the course without considerable support. I very much welcome the pilot schemes for the recording of evidence and cross-examination early, well before trial. How soon can those pilots be evaluated and rolled out? Months, if not years, of waiting for a trial must disincentivise victims pursuing their case.

Secondly, there is the intrusion into privacy. In January 2018, the noble and learned Lord, Lord Morris of Aberavon, introduced a debate on this topic. I suggested an algorithm which would require the defence to co-operate by setting out their case in a defence statement and, at that point, indicating keywords for the search of mobile phones. The revised Attorney General’s Guidelines on Disclosure, published in 2020, set out such a system and it is now operational. The review recognises the importance of privacy by its requirement that mobile phones be returned within 24 hours. If that is done, I hope this disincentive to reporting rape will be removed.

Thirdly, we come to sentencing. I am not convinced that longer and longer sentences have any benefit. The review points out that the minimum sentence guideline is now six years and that the average term served for rape is nine years. This increase in sentencing coincides with a decrease in convictions. So many cases depend upon consent, without these days, in England and Wales, any need for corroboration. The lack of consent by the victim must be proved beyond reasonable doubt, and that is the highest degree of proof.

A victim, already oppressed by delay in bringing a case to court, must generally also contemplate the destruction of the life of an offender whom she knows and may even love. That may also be a potent reason for her to disengage from the case. That there should be a substantial and significant sentence of imprisonment for rape is not in doubt, but excessive increases year on year may have unexpected consequences to the detriment of justice.

Ultimately, the jurors are the judges. Acquittals reflect societal attitudes. At the moment, judges seek hard to dispel the myths and prejudices of the past, with lengthy exhortations and directions to the jury—but attitudes begin in the classroom, and we must train teachers to inculcate respect for others and, above all, the meaning and parameters of consent.

In the last few years, we have developed teams of specialised investigators and prosecutors, special measures for court hearings and victim support services. All these are steps in the right direction but have manifestly had no impact on the rate of convictions. We must try harder. We will support the Government further in implementing the policies that are set out in this review.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, I turn first to the points raised by the noble and learned Lord, Lord Falconer of Thoroton. First, I should repeat the apology that the Lord Chancellor gave in the other place yesterday, setting out by reference the reasons why he gave it, given the time.

As the noble and learned Lord, Lord Falconer of Thoroton, said, it is not right to criticise the Government’s response to the rape review for lacking in ambition. On the contrary, we have set out clear ambitions for rape cases with the police and the CPS, and we have set out actions against which they, and we, can be held to account. We want to return the volume of trials for rape to pre-2016 levels, with corresponding expectations for police referrals and cases charged. We want to ensure that no victim is left without a phone—noble Lords will appreciate how important the data found on phones these days can be in these prosecutions—for more than 24 hours. We should not underestimate how difficult it can be for a victim to hand over her—it is invariably her—phone and to know that it will be looked at. We will also publish updates every six months, detailing our progress against our expectations, with scorecards monitoring progress against key metrics, including timeliness and victim engagement in each part of the system. That will enable us to provide information on a regional and local level, to see where things are working well and where there is room for improvement.

I turn to the other substantive point that the noble and learned Lord made, about Section 28 of the Youth Justice and Criminal Evidence Act, which enables people to have their cross-examination recorded in advance. The pilots of this provision have focused on complainants for sexual and modern slavery offences. We are extending them from three to six Crown Courts. I want to increase the availability of Section 28, but we need to do this properly. This is a radical departure from the normal court process, where evidence is given at the same time, in front of the jury. The pilots enable us to understand the impacts of this way of giving evidence—not only the impact on the evidence itself but the operational impacts on the courts, because they have to set out, and set up, a bespoke hearing for such evidence to be given.

Although we have some experience of this working for vulnerable victims, primarily children, victims who can be intimidated or are subject to distress, such as victims of rape and sexual violence, are in a different category. That is why we need to look at the pilots and see how it works in practice before we roll it out nationally, if that is what we do.

I turn to the points made by the noble Lord, Lord Thomas of Gresford. The reasons for complainants’ withdrawals are complex, regardless of whether the victim knows the perpetrator. I do not have specific data for withdrawal in stranger-rape cases, but what we do know is that in all cases, good-quality support is a key factor in maintaining victim engagement with the process. That is why we are funding more ISVAs, and we will consider putting that on a statutory basis. As for delay and prerecording cross-examination, I think I have dealt with that point already.

As I said earlier, we recognise that a lack of privacy can be a deterrent and that having your phone gone through can be a very distressing process. We want to ensure that the focus is on the alleged perpetrator and investigating them, rather than on investigating the alleged victim. That is why we do not want to see victims without their phones for long periods of time, and only information that is necessary for an investigation will be asked for. In addition to new guidance for police and information for the public, the Police, Crime, Sentencing and Courts Bill will clarify the power used to extract information from victims’ devices and will include privacy safeguards.

As to sentencing, I must disagree with the point made by the noble Lord. Rape is a very serious offence and merits a significant sentence. I take issue with his proposition that there have been excessive increases. On the contrary, I suggest that the sentences for rape, which ultimately are a matter for the judiciary, are entirely appropriate for the very serious nature of that crime.

However, I agree with the noble Lord’s point about the importance of education. A tackling violence against women and girls strategy is forthcoming. It will focus on prevention, recognising the importance of education for preventing violence against women and girls. If I may say so, from my own knowledge of what is being taught to my children in secondary school today, the education given to children today in areas such as consent and sexual relationships is far improved and much better than it was years ago. That is a very important part of the process, and I agree with the noble Lord that education is a key component in this debate.

On that note, I echo another point that the Lord Chancellor made yesterday in the other place: we will work across party lines when it comes to this issue. I therefore welcome the noble Lord’s concluding remarks, in which he indicated that he too would be prepared to work on that basis.

Queen’s Speech

Lord Thomas of Gresford Excerpts

Tuesday 18th May 2021 Lords Chamber

[Lord Thomas of Gresford (LD) [V]]

My Lords, the noble and learned Lords, Lord Woolf and Lord Hope, quoted the Government’s expressed desire to

“restore the balance … between the executive, legislature and the courts.”

It is also a pleasure to follow the noble Lord, Lord Faulks, with whom I largely agree on this topic. It is misleading to talk in terms of balance rather than of function. In our constitution, the legislature makes the laws, the courts interpret and apply them in specific situations and, in theory, the Government obey them. The problem arises when the Government do not wish to obey the laws that Parliament or the common law have created and seek to reject courts’ interpretation of them.

It is not a question of balance. In a judicial review, the scales of justice do not weigh the interests of the Executive against the strictures of the law. The concept of the scales of justice in a court setting is that, where an individual or organisation seeks judicial review of a government decision, the judge’s duty is to apply the law without favour to either side. If the Government’s purpose in introducing a judicial review Bill is to carry out the recommendations of the committee of the noble Lord, Lord Faulks, it will be unexceptional. No doubt we can argue about the details of the two main areas he recommends. If, on the other hand, the Government pursue the aims outlined in the Lord Chancellor’s statement setting out the further consultation to make areas of policy non-judiciable, that is an entirely different matter. The noble Lord’s committee would not support it, as he has made abundantly clear.

Ouster clauses are not effective because the courts assume that Parliament does not intend to give licence to a Government or to a Minister to break the law. Mr Brandon Lewis, the Secretary of State for Northern Ireland, attempted to introduce clauses that expressly involved the Government in illegality by breaking the Northern Ireland protocol. This episode demonstrated that Parliament will not stand for it. The attempt was defeated overwhelmingly by all parties, including former Prime Minister Theresa May and responsible and experienced Members on the Government Benches in this House.

I suppose it would be possible for the Government to introduce into a Bill or statutory instrument a clause that reads, “On questions of policy, a Minister can do what he likes”—or, to put it rather more formally, “A decision by a Minister under this Act shall not be set aside or voided by reason of illegality”. I very much doubt whether such a clause in its naked simplicity would get past a competent Attorney-General, never mind Parliament itself.

The Government can huff and puff when they lose a case, but that does not change the reality that they function within the rule of law as interpreted by the courts. As for the courts themselves, their decision in a particular case may have implications for the policy that the Executive wish to implement, but it is well understood that the system of judicial review does not permit a judge to substitute his own views or his own decision on the issue. All he or she can do is quash the decision that has been made and invite the decision-maker to think again. As for ousting the jurisdiction of the court, you can sum it up in seven words: “If it is illegal, it is justiciable.”

Civil Proceedings Fees (Amendment) Order 2021

Lord Thomas of Gresford Excerpts

Monday 19th April 2021 Grand Committee

[Lord Thomas of Gresford (LD) [V]]

My Lords, this is the sort of instrument to slip under the radar at the end of a Session. The proposal is to increase the fees for bringing money and possession claims, for the benefit of the Treasury.

It was a benefit to individuals, and to businesses both small and large, to commence proceedings by way of an online application. I can remember my days as an articled clerk when I made out the paperwork, physically took it to the registry of the High Court or the county court, handed it over the counter and payed the fees. Obviously, it is infinitely preferable to do all this online, not only for the poor old solicitor’s clerk but for the court staff in the registries up and down the country.

There must be an enormous saving in efficiency and time. It is not surprising that, as the Explanatory Notes made clear, 90% of claims are now launched online. To incentivise this increase in efficiency, fees were reduced for online applications, presumably still covering the reduced costs of filing. So there were, and are, two levels of fees: those for online applications, which are efficient and take less time, and those for paper applications in the old way, which obviously consume more time and resources.

One might have thought that in order to help, in particular, individuals and small businesses, who are the people most often chasing money from larger clients such as government departments, the Government would have equalled the fees by choosing the lower figure, but not at all; the watchword is “levelling up”. So this instrument is brought forward to make sure that individuals and small businesses pay more in order to pursue their claims. At a time when small businesses in particular are suffering greatly, many unlikely to survive the pandemic crisis, the Government are loading more expense upon them to the tune of up to an expected £25 million next year.

To add insult to injury, the note accompanying this instrument and the impact assessment proceed upon the curious premise that there is no impact at all on businesses and individuals because this is not an inevitable business expense. You can choose to pursue the money that you are owed—or recover the premises, if it is that sort of application—or, on the other hand, you can decide to do nothing. If you decide to do nothing then you do not have to pay any fees. That is the incredible argument for saying that there is no impact.

The noble Lord, Lord Blunkett, asked a very pertinent question: what is the actual cost of the filing of these proceedings? I have other questions. What percentage of the stakeholders on the consultation that took place responded to say that they were in favour? How many said they were willing for the fees for the more efficient online commencement of proceedings to be raised to match the fees for the less efficient paper service? I hope the Minister will answer those questions.

Prisons (Substance Testing) Bill

Lord Thomas of Gresford Excerpts

2nd reading
Friday 16th April 2021 Lords Chamber

[Lord Thomas of Gresford (LD) [V]]

My Lords, I add my own tribute to those already given to Dame Cheryl Gillan both for her commitment to the work and success of the choir—I have been a member for many years—and for her commitment to Wales as Secretary of State. The noble Lord, Lord Cormack, pointed out only a moment ago that she was a person who put country, constituency and party in that order, and she demonstrated that as Secretary of State. I also congratulate the noble Baroness, Lady Pidding, on her clear exposition of this Bill.

However, I have some concerns. In short, the main thrust of this Bill is compulsorily to take samples from prisoners for the purpose of scientific research. If prisoners refuse to co-operate, they commit an offence against the Prison Rules for refusing to obey a lawful order. Article 8 of the European Convention on Human Rights says that:

“Everyone has the right to respect for his private … life … There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”


This Bill is concerned not with the detection of crime but with the gathering of information on an anonymised basis. It is not a criminal offence under this Bill to have substances in the blood, but it would be a crime simply to refuse to give the sample.

This Bill will be tested to determine whether it is in breach of Article 8. Because it is a Private Member’s Bill, it does not require certification by the Minister. The taking of a blood and saliva sample against the subject’s will constitutes a compulsory medical procedure which, even if it is of minor importance, must consequently be considered as an interference with his right to privacy; that is the case of Jalloh v Germany in the European Court of Human Rights. In Caruana v Malta, the court considered that the taking of a buccal swab was not a priori prohibited in order to obtain evidence relating to the commission of a crime in which the subject of the test was not the offender but a relevant witness. Taking a sample to prove a criminal offence is one thing; to take a sample for research is another.

I must make it clear that, like the noble Lord, Lord Farmer, I am very concerned about the existence of substances circulating in prisons. I join with the noble Baroness, Lady Pidding, in condemning the scourge of drugs in prison. A prisoner from Blaenau Ffestiniog died from smoking spice in Berwyn prison in March 2018; I have spoken of this before—it is Britain’s largest prison and the second largest in Europe. The coroner said that he was concerned about the continuing accessibility of drugs to inmates at that institution and that there was a sense of dread in his office over the number of deaths they would have to deal with. There is recent anecdotal evidence that all sorts of substances circulate through there. Visitors to the prison have been convicted: there was one case in November 2018 for bringing in a book soaked in spice, and another in October 2020 for bringing in letters similarly treated—a practice to which the right reverend Prelate the Bishop of Gloucester has referred. Every effort should be made to prevent the smuggling of drugs and other substances into prisons.

However, there is a solution in hand. A trial scheme was announced in February, to be operated in 12 prisons in north-east England, Yorkshire and Humberside, whose findings will help the Prison Service to target anti-drugs measures. The monitoring of wastewater for traces of drugs has been pioneered in Australia. Sewage monitoring is regularly carried out in Britain to monitor the spread of viruses, including Covid-19. I am sure that the noble Lord, Lord Ramsbotham, would approve of this approach. The Prisons Minister, Lucy Frazer QC, told the Daily Telegraph in February:

“Right across the estate, we’re increasingly using technology to help rehabilitate offenders and to prevent drugs and phones from entering prisons. This pilot will help monitor drug prevalence in prisons, detect new and emerging psychoactive substances and ultimately contribute to reducing crime behind bars.”


Perhaps the Minister can tell us how this trial is proceeding. Clearly, it is intended to answer the main purpose of this Bill—prevalence testing—without any breach of Article 8.

I have other questions about the Bill. Are random tests proposed, as opposed to targeted tests? At what point are the tests anonymised? The Explanatory Notes say that a purpose is to ensure the prisoner can have medical treatment, which does not suggest anonymity. The Bill says that any substances can be tested for; how is that limited? Finally, as my noble friend Lord German asked, what is the purpose of the tests? Is it to criminalise other substances if found? It does not seem to me that the suggestion that the Bill is proposed in order to prevent delays in criminalising is a very good one.

Independent Review of Administrative Law Update

Lord Thomas of Gresford Excerpts

Monday 22nd March 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, on the first point, I respectfully disagree with the comments of Sir Jonathan, whom I respect very much. In conclusion 7, particularly the first two sentences of that paragraph, it seems to me that the panel is clear that there are cases where the courts have gone beyond a supervisory approach.

On the question of potential injustice for those who have suffered, if one is going to have a suspended quashing order or a prospective remedy, as I have made clear, that is something that we are interested in consulting on. Indeed, I would welcome the noble Lord’s involvement in that consultation.

[Lord Thomas of Gresford (LD) [V]]

My Lords, the Statement says that

“the Government would like to go further to protect the judiciary from unwanted political entanglements and restore trust in the judicial review process.”

First, is the political entanglement referred to the Prorogation of Parliament, and is referring an unlawful abuse of the royal prerogative to the court unwarranted? Secondly, who has lost trust in the judicial review process? Is it unsuccessful applicants whose applications have been refused, or is it the Government whose actions have been found so often to be unlawful? Thirdly, what does a presumptive decision mean? If it is that an appellant who is successful has no remedy or that the decision applies only to future decisions and not to him, why would anybody bother with a JR at all? So the Government want to go further; the review obviously has not gone far enough for them—oh, what a shame.

[Lord Wolfson of Tredegar (Con)]

My Lords, on the first point, the words used by the Lord Chancellor are straightforward; I do not think they need any glossing from me. On the second point and as to trust in the judicial review process, it is important that the process does two things. It enables Governments to govern; equally, it enables them to govern well. Judicial review is important for Governments because it makes sure that they govern well, and within the law. That is why we are particularly focused not only on the recommendations of the panel; we want to go to consultation on other matters as well.

On the last point, as to prospective remedies, with great respect, the noble Lord is simplifying what is a more complex matter. It is far from the case that a prospective remedy gives no remedy to the particular litigant in that case. It all depends on how the prospective remedy is furnished and how people affected by the decision can be compensated or otherwise dealt with during the intervening period. That is precisely why we want to go out to consultation: because the current cliff edge of either no remedy or a remedy ab initio, and a quashing from the moment of the decision, leads to unfortunate consequences. That is as the panel has said, as the Government have responded, and indeed, as the noble and learned Lord, Lord Hope of Craighead, explained in his minority judgment in Ahmed.

Judicial Pensions (Fee-Paid Judges) (Amendment) Regulations 2021

Lord Thomas of Gresford Excerpts

Tuesday 23rd February 2021 Lords Chamber

[Lord Thomas of Gresford (LD) [V]]

My Lords, I read these papers with considerable interest yesterday and realised for the first time, like the noble and learned Lord, Lord Morris of Aberavon, that I might already be entitled to a government pension. I therefore declare an inchoate interest.

I was appointed a recorder in 1975 and took the judicial oath. I sat as a recorder in Wales and Chester and, later, in the Old Bailey. There were two motivations: that it might be the first step to possible judicial preferment, as well as from a sense of public duty. It was not well paid and there were no thoughts of a pension. I should say that I later served on the Criminal Injuries Compensation Board.

There was a difference between appearing in the Old Bailey and sitting on the bench there. If you appeared as an advocate, you went in through the front door, in a queue of defendants and witnesses; your pockets were turned out, you were personally scanned and your bags were searched. If you went to the judges’ entrance round the back, the court usher seized your bags, led you to your room and produced a cup of coffee in fine china. You were then ushered into court by a sheriff of the City of London, in a blue gown with an enormous fur collar, surely provided by the Baltic Exchange. I would hold a nosegay, a posey with an 800-year history; it was necessary to keep from the nostrils the stench of the 12th-century Newgate gaol, which was originally attached to the Old Bailey. Of course, the gaol was demolished 120 years ago, but you have to support the tourist industry.

As a recorder, you were closely monitored by the Lord Chancellor’s Department, and I recall receiving a ticking off from its top civil servant for expressing some view mildly supportive of the civil rights movements in Northern Ireland in the 1970s led by Bernadette Devlin—not of course expressed in court but in a speech at a meeting of Welsh Liberals in Colwyn Bay, which was reported in the North Wales Weekly News. Newspaper cuttings were collected in the department on each person serving as a recorder, and I later discovered that my cuttings of Liberal insurrection had appeared in a colleague’s file, and it positively held him back. When I reached what would have been retirement age, I received not a pension but a one-liner from an official in the Lord Chancellor’s Department: “Dear Thomas, thank you for your services as recorder—you have reached retirement age. Yours faithfully”. I have resented it ever since.

I pay tribute to Mr Dermod O’Brien QC and Mr Miller for their 17-year fight to obtain a pension for part-time judges. They had to go via the Employment Tribunal, the Court of Appeal and the Supreme Court to the European Court of Justice, and they won on the provisions of a European directive on part-time workers. What a font of justice that court is. I gather that the Government’s argument was that the part-time workers directive was intended not for part-time judges but for apple pickers—and I am rather glad that they lost.

There are many who toil in this capacity of a part-time judge out of a sense of public duty. I recall a colleague who was offered an appointment as a circuit judge, which he accepted; he failed the medical. He sat for the rest of his career, until he retired, as a recorder, doing exactly the same work and attending the same courses as he would have done with a full appointment, but his remuneration was much lower and without a pension. I hope that the direction of decisions of the Supreme Court and Court of Justice in Europe have been a relief to him and to others.

I am sure that this measure went through the Treasury without enthusiasm—indeed, they probably had their teeth gritted. I welcome it, and I am sure that it will encourage many lawyers to come forward in the public service.