Rule of Law

Lord Thomas of Gresford Excerpts

Tuesday 26th November 2024 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, it was a great pleasure to hear the thoughtful speech of the noble and learned Baroness, Lady Smith of Cluny, who so much adds to the lustre of her family. She referred to her parents; the moment I walked out of court into the Old Bailey on an afternoon in May 1994 is fixed and etched in my memory. On a newspaper board opposite the entrance, I saw the sad headlines relating to her father and I was shocked and dismayed, even though I was not a member of his party. I wish her every success in this Chamber and in her new position, which her own talents and hard work have so richly deserved.

The assault on the rule of law started rather badly in September 2019, when the Government of the day’s unlawful attempt to prorogue Parliament was halted by the Supreme Court. But it was the bold attempt of Brandon Lewis, Secretary of State for Northern Ireland, in September 2020, to legislate in breach of international obligations that brought the rule of law into even sharper focus. He told the House of Commons that the internal market Bill broke

“international law in a very specific and limited way”.—[Official Report, Commons, 8/9/20; col. 509.]

The Constitution Committee concluded in its 17th report of that Session:

“Adherence to the rule of law is not negotiable … A government that brandishes the threat of breaching its international obligations, even in ‘specific and limited’ circumstances, is one that undermines the rule of law”.


This debacle was followed by the Northern Ireland Protocol Bill, which permitted the breach, by secondary legislation, of the United Kingdom’s international obligations as agreed in the Northern Ireland protocol. The Constitution Committee found that these were two conscious attempts to breach the United Kingdom’s international obligations, contravening Lord Bingham’s eighth principle that

“the rule of law requires compliance by the state with its obligations in international law”.

The Cabinet Office set out HMG’s legal position in 2020. The then Government argued that treaty obligations become binding only to the extent that they are enshrined as a matter of domestic law. It was claimed that there was nothing unlawful in Parliament passing legislation that was in breach of the United Kingdom’s obligations. The Constitution Committee rejected that argument in its ninth report of 2022-23, to which I was a party, stating:

“Whatever Parliament decides to do does not affect whether the state is in breach of international law … A treaty, once agreed, binds the state … the responsibility of the Government to honour the state’s international obligations requires it to refrain from inviting Parliament to legislate knowingly contrary to the United Kingdom’s international obligations”.


Parliamentary sovereignty is the foundation of our domestic law, but it is not the overarching, unbridled principle that is commonly claimed by political parties when they are in power. It is subject to constitutional principles: in particular, to the principle that a Government should not legislate to break international law. Indeed, the Ministerial Code is explicit in paragraph 1.6, which refers to

“the overarching duty on ministers to comply with the law, including international law and treaty obligations”.

The Rwanda Bill was another attempt to violate our international obligations, specifically the refugee conventions and the European Convention on Human Rights. The proposal was to bar access by asylum seekers to the courts of this country, contrary to Lord Bingham’s fifth principle of the rule of law and Article 6(1) of the European Convention on Human Rights.

The granting of an interim order by the European Court of Human Rights, which in effect prevented the removal of asylum seekers to Rwanda, had the originalists leaping snarling from their den. Originalists are those who deny that the European convention is a living instrument. The majority view is that the convention should develop through case law: modern remedies for modern problems. Society changes. Attitudes towards the status of women or towards gay rights have changed in the seven decades that have followed the signing of the convention. In the area with which I have a particular concern, military justice, the case of Findlay in the European Court set in train changes to the scope and procedures of military law in a way that the 1950 founders could never have foreseen.

As for the European Court’s interim order in the Rwanda case, it was in the 1970s that rules were made by the court, specifically rule 34, which required member states not to hinder the rights of an individual to make applications for relief to the court. You may well think that whisking Africans off on a one-way ticket to Rwanda would be something of a hindrance to such an application, and indeed a judge of the court, faced with an application by an asylum seeker, made an interim order under rule 39 to delay the flight. In due course, the UK Supreme Court ruled the proposed dispatch of asylum seekers to Rwanda to be unlawful and further European court proceedings were unnecessary.

“These European court rules were made in the ‘70s”—so wail the originalists. The scope of the European Convention on Human Rights, they say, should be confined to the powers explicitly agreed in 1950. “Do not look beyond the 1950 text, as illustrated by the preparatory papers of the time”. This argument was expounded by Professor Ekins of Oxford University in the unlikely forum of the Atkin Lecture in the Reform Club, of all places, and it has been supported by the noble Lord, Lord Wolfson of Tredegar.

Originalism is a right-wing doctrine developed in the past 40 or 50 years in the United States of America. It has found its way into the United States Supreme Court. It will not surprise noble Lords that four of the six Supreme Court justices who granted full presidential immunity to Donald Trump recently are self-confessed originalists. They believe that the US constitution should be construed as originally drafted and understood by the Founders in 1789. But somehow I doubt that Alexander Hamilton, Benjamin Franklin, Thomas Jefferson and the rest of them would have been natural Trumpsters in their aspirations.

This odd, fossilising theory of interpretation has crept across the Atlantic to this country, probably through the secret funders of the Tufton Street think tanks. That may be the reason why the recent Conservative manifesto referred to the European court as a “foreign court”—a phrase repeatedly on the lips of Rishi Sunak during the recent campaign. It is a sad withdrawal from the ideals promoted, paradoxically in 1950, by the Conservative Sir David Maxwell Fyfe, later Lord Chancellor and the Earl of Kilmuir, and developed by British judges of the court.

My final point is that, if parliamentary sovereignty and executive government are to be subject to the rule of law, an independent judiciary is essential. Your Lordships may not fully realise the necessity of an impartial court, but I have had the experience of appearing in a foreign court in an action brought against my client by the premier of the country in question. My apprehension, whether right or wrong, that no submission I made could possibly succeed before that court induced feelings of utter frustration. I was wasting my time. Subsequently, success in the Privy Council in a linked case on behalf of the same client was followed within three months by the withdrawal of the country concerned from the jurisdiction of the Judicial Committee for ever. That Government said there was no connection between the two things.

I look forward eagerly to a commitment by this Government that the United Kingdom will observe the rule of law in all circumstances, that the independence of the judiciary will be properly defended, that Parliament will no more be invited to break international laws and treaty obligations—even in “a very specific and limited way”—and that they will maintain our good name as a country abiding by the rule of law in an increasingly lawless world.

Northern Ireland Protocol Bill

Lord Thomas of Gresford Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I, too, am a member of the Sub-Committee on the Protocol on Ireland/Northern Ireland, under the excellent chairmanship of the noble Lord, Lord Jay.

The noble Lord, Lord Frost, has just demonstrated to us that he would not get an O-level in the constitutional law and practice of the United Kingdom. He told us that this unconstitutional Bill was drafted to strengthen the UK’s bargaining position with the EU. It is an attempt to bully the EU into making changes to the Northern Ireland protocol. In saying that, he of course concedes that the UK lacks bargaining power against the 27 other members of the union. The UK does not have a large enough shillelagh.

However, there are problems. The noble Lord, Lord Dodds of Duncairn, referred to the barriers to trade, while the noble Lord, Lord Godson, took the opportunity to praise Tony Blair for his understanding. On 9 June 2016, in the course of the referendum campaign, Tony Blair, speaking in Londonderry, said that a vote to leave would mean that the only alternative to controls on a land border

“would have to be checks between Northern Ireland and the rest of the UK”,

which, he added,

“would be plainly unacceptable as well.”

This was described by the then First Minister, Arlene Foster—then leader of the DUP—as “a deeply offensive scare story”, but it came true.

We are all familiar with what happened. In October 2019, Mr Johnson described his deal as

“a good arrangement … with the minimum possible bureaucratic consequences”.

This was in direct contradiction of a contemporaneous document drawn up by the Treasury, which warned that

“customs declarations and documentary and physical checks … will be highly disruptive to the NI economy.”

That was the advice he had received. But he advised traders to throw paperwork into the bin. Famously, he said:

“There will be no border down the Irish Sea—over my dead body.”


But there is, and he is politically no more.

The noble Lord, Lord Howard of Lympne, raised the point—the noble Lord, Lord Pannick, followed him—that there has been no attempt to trigger the dispute resolution mechanisms contained in Article 16. It would have forced the UK into detailed negotiations with the EU, not breaking the protocol but taking place within its architecture. Instead, the Government promoted Article 16 as though it were a nuclear threat that, if employed, would obliterate the protocol altogether.

In particular, the DUP and, as the noble Lord, Lord McCrea, told us, all other unionists were misled into believing that the protocol was everything—“Break the protocol”—and that triggering these unremarkable dispute resolution procedures would somehow end the virtual border in the Irish Sea. As a result, they continue to block a new Executive, perhaps hoping for a rerun of last May’s election when time runs out on 28 October. However, as the noble Lord, Lord Howell of Guildford, pointed out, there have been demographic changes. Indeed, the last opinion polling on 25 July in no way pointed to a resurgence in DUP or unionist support. The Alliance Party is on track to overhaul them.

Why has the agreed machinery of Article 16 not been used? What Boris Johnson agreed through the withdrawal agreement, of which the protocol is a part, was that any issue of EU law arising in Article 16 arbitration procedures should be decided by the European Court of Justice. The Conservative Party opposite has a completely irrational hatred for that court, despite UK advocates having historically the greatest degree of success of any EU country before its judges. Mr Johnson pushed this concession through Parliament with his majority because they did not understand what he had conceded. In all probability he did not understand it, either, but the noble Lords and noble Baronesses opposite strewed flowers in his way. But they do not have to pick up Johnson’s leavings by continuing with this mis-sold Bill which shames our country. They can start again.

Take the European Court of Justice. In a debate entitled “Brexit: Dispute Resolution and Enforcement”, I suggested that the Government should negotiate for

“a special chamber of the European Court of Justice”—

they have the power in their constitution to create one—with an equal number of UK and EU judges. As I said, it could deal with

“disputes arising out of the special circumstances of our leaving the EU”.—[Official Report, 17/10/18; col. 466.]

I developed that argument at the time and will not repeat it, but that solution would deal with the issue that the CJEU is the court of one of the parties to a dispute.

If the current Prime Minister wants to make her mark in history in the limited time available to her, she should withdraw this ignominious Bill and get down to sensible negotiations immediately. Trade barriers and the democratic deficit are genuine problems that must be resolved by agreement fashioned with good will. In the past two weeks, her Government appear to have been making a start.

--- Later in debate ---

[Lord Stewart of Dirleton (Con)]

I respond to my noble friend by saying that the assertions that it breaches international law simply cannot be determined at this point because it is a matter of exploring the complex background of facts and circumstances, including the manner in which the protocol has been operated.

[Lord Thomas of Gresford (LD)]

Can the Minister define in a few words what the necessity is in this particular instance?

[Lord Stewart of Dirleton (Con)]

My Lords, I think it would be wrong of me at this stage in the Second Reading to engage in a deeper debate. I refer the noble Lord to the terms of the legal statement issued by the Government.

On the diminution of rights which were raised among your Lordships, I return to the point raised by my noble friend Lord Moylan and indeed by other Members of your Lordships’ House from Northern Ireland: what are we to say of the diminution of rights which strips from citizens of this country the right to make laws? Must we not look to that? At present, the circumstances of Northern Ireland strip our fellow countrymen of that right.

Prison Officers: Occupational Pension

Lord Thomas of Gresford Excerpts

Thursday 16th June 2022 Lords Chamber

[Lord Stewart of Dirleton (Con)]

My Lords, while the Government acknowledge the challenging environment in which prison officers work, we consider that, by comparison with emergency services such as the police or fire brigade, while the environment is a challenging one, it is to an extent controlled, which those other occupations are not. In that context, we consider that 68 is indeed an appropriate age at which to retire.

[Lord Thomas of Gresford (LD)]

The Minister referred to challenging conditions in prison. Would he accept that it is a violent environment? Are prison officers who are sick or injured by assault, or who—very importantly—fail the fitness test, entitled to their full retirement pension between the ages of 60 or 68, or is it diminished because they have not reached the retirement age?

[Lord Stewart of Dirleton (Con)]

My Lords, the noble Lord and I share a background in the criminal justice system, and I am as aware as he is of the potential for violence to be inflicted on prison officers pursuing their duties. When a prison officer is no longer fit to undertake operational duties, and the operational health practitioner confirms that ill-health retirement is appropriate, the officer would be retired due to ill health and may receive in full the pension benefits due to them, calculated up to the last day of service. I acknowledge with gratitude that the noble Lord alerted me to his question in advance, so I was able to seek further background from officials. If there is other material on which he would like me to expand, I can of course speak to him in person, or I can write.

Probation and Court Services: Workload

Lord Thomas of Gresford Excerpts

Thursday 9th June 2022 Lords Chamber

[Lord Thomas of Gresford (LD)]

Cafcass is concerned with representing the interests of children in court. In the report assessing the risk of harm to children and parents in private law children’s cases, published by the Ministry of Justice in June 2020, the expert panel recommended that the MoJ should commission

“an independent, systematic, retrospective research study on the implementation”

of the current law and practice

“in cases where allegations of domestic abuse, child sexual abuse or other serious offences are raised.”

Has that study been commissioned and, if so, what point has it reached?

[Lord Stewart of Dirleton (Con)]

My Lords, I undertake to write to the noble Lord in relation to that study. I do not have information to hand on its progress but if I may pray the noble Lord’s patience, I will communicate with him in due course.

Divorce, Dissolution and Separation Act 2020 (Consequential Amendments) Regulations 2022

Lord Thomas of Gresford Excerpts

Tuesday 8th February 2022 Grand Committee

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, the draft instrument before us makes consequential amendments to primary and secondary legislation relevant to the Divorce, Dissolution and Separation Act 2020, ahead of its planned commencement on 6 April this year. The purpose of these measures is twofold: first, to introduce a new jurisdiction ground for joint applications for divorce—namely, either applicant’s habitual residence; secondly, to update the terminology relating to divorce proceedings consequential on the language changes made by the aforementioned divorce Act.

I will speak first to the amendments in paragraphs 1, 4, and 8 of the schedule to the regulations pertaining to the introduction of a jurisdiction ground for joint applications for divorce: namely, the habitual residence of either applicant. Jurisdiction grounds, in this context, are the grounds on which a divorce can be applied for and/or granted in the jurisdiction of England and Wales. The ground we are discussing sets out that, provided either applicant is habitually resident in England or Wales, a joint application can be made by both applicants within this jurisdiction.

This instrument amends a number of measures, including the Domicile and Matrimonial Proceedings Act 1973, the Civil Partnership (Jurisdiction and Recognition of Judgments) Regulations 2005 and the Marriage (Same Sex Couples) (Jurisdiction and Recognition of Judgments) Regulations 2014. To each of these pieces of legislation, it brings in the same ground to which I have just referred.

An equivalent jurisdiction ground appears in article 3 of EU Regulation 2201/2003, known as Brussels IIa. Until the end of the transition period, the Brussels IIa regulation jurisdiction ground applied to all cases of opposite sex divorce, legal separation and annulment in England and Wales. The United Kingdom is no longer governed by Brussels IIa, which was revoked by Statutory Instrument 519 of 2019. However, the choice was then made to replicate the applicable Brussels IIa jurisdiction grounds into domestic law by amendment to the Domicile and Matrimonial Proceedings Act 1973.

All the jurisdiction grounds in article 3 of Brussels IIa were replicated save for the ground that we are now discussing, that of habitual residence in joint applications. The sole reason why this ground was not replicated upon exit from the EU was because at that time it was not possible to make a joint application for divorce in England and Wales. With the commencement of the divorce Act, this will now be an option for the first time, so it would be remiss not to replicate this final ground now that the opportunity presents itself.

The same ground is also being introduced into the following measures: the Civil Partnership (Jurisdiction and Recognition of Judgments) Regulations 2005 and the Marriage (Same Sex Couples) (Jurisdiction and Recognition of Judgments) Regulations 2014. This ensures equality in all legislation relating to ending a partnership or marriage, regardless of whether these are between same or opposite sex couples.

The other amendments in this instrument amend language in the Domicile and Matrimonial Proceedings Act 1973, the Civil Partnership (Registration Provisions) Regulations 2005, the Pension Protection Fund (Provision of Information) Regulations 2005, the Financial Assistance Scheme (Provision of Information and Administration of Payments) Regulations 2005, the Civil Legal Aid (Merits Criteria) Regulations 2013, and the Civil Legal Aid (Remuneration) Regulations 2013.

The amendments update the terminology in relation to divorce consequential upon the language changes made by the divorce Act. The divorce Act amended terminology in the Matrimonial Causes Act 1973—for example, by the replacement of terms such as “decree nisi”, “decree absolute” and “petitioner” with “conditional order”, “final order” and “applicant”. This means that the same terms will now be used in legislation relating to both divorce and dissolution. It simplifies language too, making terms more recognisable and readily accessible to members of the public. This supports the aim of the divorce Act in supporting citizens representing themselves in divorce proceedings. This instrument consequentially replicates those language changes across relevant legislation.

By making the amendments I have outlined today, the intention is that we will standardise and update language across all relevant pieces of legislation and amend jurisdiction grounds to add a specific relevant ground for joint divorce applications. This instrument is consequential on the divorce Act, reflective of the ultimate aims of the divorce Act, to reduce conflict between couples and families. I beg to move.

[Lord Thomas of Gresford (LD)]

My Lords, we support this instrument. I have just a couple of questions. I am surprised that the question of jurisdiction was not dealt with in the Act itself. Perhaps the Minister has some explanation for that, which I have not perceived.

My second question relates to paragraph 7.7 of the Explanatory Memorandum, which says:

“The Government’s policy intention behind the reformed law”,


which in turn has resulted in the consequential amendments contained in this instrument,

“is that the decision to divorce should be a considered one, and that separating couples should not be put through legal requirements which do not serve their or the state’s interests”.

I find that a bit puzzling, and I wonder whether the Minister can help me with what it is directed to. However, as I say, we support the amendments.

[Baroness Chapman of Darlington (Lab)]

My Lords, we, too, support the regulations. The provisions are primarily to reflect the new terminology associated with the reformed divorce, dissolution and separation proceedings in the Act, as well as to add a jurisdictional ground for the newly created joint applications.

The Act has not yet come into effect, but we hope that it will soon and that there is no further delay. I think I heard the Minister confirm that the date will be 6 April 2022—he is nodding, so I take that as an indication that that is correct—which is very pleasing. My party fully supports that Act and the changes to divorce, dissolution and separation that it will introduce. As a result of this Act, it will be much easier for couples to divorce in cases where the relationship has irretrievably broken down.

We hope that this will end some of the adversarial system currently in place. A spouse will no longer be able to object to or oppose a divorce, and couples will no longer have to apportion blame for the breakdown, leading, we hope, to less conflict and acrimony for all involved. A simple statement that the marriage has irretrievably broken down should be sufficient for proceedings to commence. I am very pleased to welcome the measures that the Minister has outlined today.

Police, Crime, Sentencing and Courts Bill

Lord Thomas of Gresford Excerpts

Lords Hansard - part one & Committee stage
Monday 22nd November 2021 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, Section 28 of the Youth Justice and Criminal Evidence Act 1999 allows for the cross-examination of vulnerable witnesses and victims of adult sexual assault to take place separately from the trial. The purpose of this provision—following Section 27, which allows evidence in chief to be given before the trial—is to allow a victim of adult sexual assault to give their evidence in chief and be cross-examined in a period quite shortly after the incident. It means that they do not have to wait a very long time for what will be a terrible ordeal. It means that they give evidence at a point when the events are only recent, rather than after a long period has gone by.

There is nobody, I think, who does not regard these provisions as beneficial. The purpose of this amendment is to ensure that they are as available as possible throughout the Crown Court estate in England and Wales. My understanding of the position is that they are available in respect of the victims of adult sexual assault only in certain specified Crown Courts in England and Wales. This amendment seeks to ensure they are available everywhere and as soon as possible, by saying they would be, in effect, available on the day this Bill becomes law.

It has been said that one of the reasons for not making the provisions available is that they require judicial resource—you need a Crown Court judge in order to hear the evidence, even though it is separate from a trial. It strikes me as very odd that adult sexual violence is not a priority of the Crown Courts. If judicial resources are the problem, my suggestion would be that making resources available to hear the victims of serious adult sexual assault should come sufficiently high up the priorities so that there is a judge available to deal with it. On that basis, I beg to move.

[Lord Thomas of Gresford (LD)]

My Lords, I very much understand the impatience of the noble and learned Lord, Lord Falconer, for the introduction of video recordings of cross-examination in cases involving sexual offences and modern slavery. It is important that evidence in such cases is given early and without pressure. However, I have some queries about the amendment.

The Government have introduced by stages these provisions under Section 16 of the Youth Justice and Criminal Evidence Act 1999 for witnesses

“under the age of 18 at the time of the hearing”

and witnesses suffering “from mental disorder” or

“a significant impairment of intelligence and social functioning.”

The section also provides for witnesses with a physical disability. Various courts have been permitted to hear evidence in these circumstances, culminating in March of this year, when the provisions were extended to Preston Crown Court. But it was only on 30 September—six weeks ago—that the provisions were extended under Section 17(4) for complaints in respect of a sexual offence or a modern slavery offence. Only four courts were involved—Durham, Harrow, Isleworth and Wood Green. I have not seen any evaluation of the use of these procedures under Section 16, although they were piloted as early as December 2013 in Kingston, Leeds and Liverpool. I would be grateful if the Minister could tell me whether such an evaluation exists and, if so, whether it could be made available.

As for the proposal in this amendment to extend the provisions wholesale under Section 17, it is obviously too soon to evaluate limited pilots from the end of September. There can surely not have been time yet for any direction to be made by any judge of the three courts for such special measures for sexual offences and modern slavery.

Since I have no personal experience of these measures, I would be grateful if the Minister could inform me how they take place. As I read the legislation, the witness gives evidence to the court in the presence of the judge and counsel on both sides but in the absence of the accused. The accused is, however, entitled to watch the proceedings and communicate with his legal representatives. How exactly would this be organised? Is the accused in another part of the building, watching from prison, or what? In what way is this less intimidating to the witness than, for example, giving evidence down the line at the time of trial—a proceeding with which we have been familiar for some years?

My concern is that the distancing of the witnesses from the jury is artificial enough when it takes place at the time of the trial. But in my view it is even greater when the jury know they are watching a recording of examination and cross-examination which happened months, possibly even a year, before. While I appreciate that the best evidence is that which is given shortly after the events, the answer, really, is not to delay trials to get rid of the backlog. I heard on Saturday at my chambers dinner that the problem of delay is not the Nightingale courts but the number of judges and counsel needed to cover the trials taking place there and in the ordinary Crown Courts.

Originally, this amendment was grouped with Amendments 286 to 291. Are the others to be spoken to later?

[Lord Falconer of Thoroton (Lab)]

In this group, according to my listing, Amendment 268 is grouped with Amendments 286, 287, 288, 289, 290 and 291.

[Lord Thomas of Gresford (LD)]

That introduces the question about the complainant’s sexual history; I do not think the noble and learned Lord addressed that when he opened the case. The basic position in relation to that issue is stated in Section 41(1) of the 1999 Act, which says that

“no evidence may be adduced, and … no question may be asked in cross-examination,”

where

“a person is charged with a sexual offence … except with the leave of the court”.

Amendments 286 to 291 are concerned with tightening up the circumstances in which leave may be given. The noble and learned Lord, Lord Falconer, would not allow by these amendments such evidence whenever the issue of consent arises, whether at the same time or same event as the subject matter of the charge or where there is such similarity in the sexual behaviour of the complainant to the charge that the similarity cannot reasonably be explained as a coincidence.

--- Later in debate ---

[Lord Thomas of Gresford (LD)]

My Lords, I am disappointed that the noble Lord, Lord Pannick, did not refer to the opinion of the noble and learned Baroness, Lady Hale, in the case of J. She dissented—notwithstanding Lord Bingham’s inability to change the law—in these words:

“In short, the 1956 Act was a mess when it was enacted and became an ever greater mess with later amendments. It is not possible to discern within it such a coherent Parliamentary intention as to require it to be construed so as to forbid prosecution for a “mere” act of sexual intercourse after 12 months where that act properly falls within the definition of an indecent assault. Although we do have to try to make sense of the words Parliament has used, we do not have to supply Parliament with the thinking that it never did and words that it never used.”


I think we can see which side the noble and learned Baroness, Lady Hale, was on in that case.

The restriction has had an interesting history. Non-consensual sex was, and is, of course, rape, but consensual sex was a different matter. A girl was protected until the age of 10 under Queen Elizabeth I, to the age of 12 under George IV, 13 in 1875 and finally 16 in 1885. The time limit for bringing proceedings was at first within three months in 1885, which was increased to six months in 1904 and to nine months in 1922, and a provision of the Criminal Law Amendment Act 1928 increased the time limit to 12 months. It was anomalous then, and it is anomalous now, and I fully support the amendment in the name of the noble Baroness, Lady Kennedy of Cradley.

Amendment 292C in the name of the noble Baroness, Lady Newlove, seeks to extend normal time limits imposed on summary proceedings in the magistrates’ court and suggests that an offence of common assault may be brought within a period of six months from the date of reporting, rather than the date of the incident, with an outside limit of two years where it comes within the ambit of domestic abuse. This is an issue that might well have been discussed in the recent passage of the Domestic Abuse Bill. Summary proceedings are really intended to be summary. Assault and battery are attacks or threats of attack on the person. If significant injuries are caused, they should be tried on indictment in the Crown Court as ABH—assault occasioning actual bodily harm. So where is the dividing line between common assault and ABH?

The noble Baroness, Lady Newlove, referred to the CPS guidance Offences Against the Person, Incorporating the Charging Standard, dated 6 January 2020, which states that common assault is charged

“where injuries amount to no more than … Grazes; Scratches; Abrasions; Minor bruising; Swellings; Reddening of the skin; Superficial cuts.”

By contrast, ABH includes

“damaged teeth or bones, extensive and severe bruising, cuts requiring suturing”

and injuries

“that result in loss of consciousness.”

ABH is appropriate where

“the victim is vulnerable or intimidated”,

including

“a pattern of similar offending against the victim”,

and if a person suffers mental stress, that can also be seen as ABH. Your Lordships will appreciate that if the case is brought for ABH on indictment, this procedural limitation of the magistrates’ court does not apply.

Therefore, it is arguable that injuries of the nature that require interfering with the customary time limit applied in summary proceedings may not demand a change. I think the protections which are contained in the Domestic Abuse Act 2021 should deal with the problems in the area referred to by the noble Baroness, Lady Newlove. If a domestic abuse protection order is issued, breach of it is a criminal offence, which can be triable either way. A summary conviction may lead to a sentence of 12 months’ imprisonment, while conviction on indictment may lead to a term of imprisonment not exceeding five years.

This is the important point: a protection order can be made where the court is satisfied on the balance of probabilities. The prosecution does not have to prove beyond reasonable doubt that the victim has suffered. It is on the balance of probabilities for a protection order: simply that the person concerned has been abusive towards a person aged 16 or over to whom he or she is personally connected, where it is necessary and proportionate to protect that person from domestic abuse or the risk of domestic abuse. No time limits are set. I think we have moved on from common assault at common law in this field, and it may well be that this amendment is unnecessary.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I support both these amendments. My noble friend Lady Kennedy of Cradley is seeking to get rid of time limits relating to having sex with girls aged between 13 and 16 before 1 May 2004. As she said in her comprehensive introduction to the amendment, it is not known whether this anomaly, which a number of noble Lords have described, affects thousands of girls or fewer. It is simply not known. Nevertheless, from my understanding of the way she presented the case and the other comments on the amendment, it clearly seems to be a loophole which could be closed.

The noble Baroness, Lady Newlove, explained why common assault is different in domestic abuse cases from general common assault. As I think I have said in other Committees, I fairly regularly sit in domestic abuse courts in magistrates’ courts, and I have to say that I disagree with the concluding comments of the noble Lord, Lord Thomas of Gresford, that we seem to have moved on from common assault with domestic violence protection orders. Certainly, the way I view them, and I do those courts as well, they are very different because they are dealing with the civil standard. You can have cases where people have simply been abusive to each other and you are dealing with a very different type of case, in my experience, from common assault cases which you see in a more standard domestic abuse court.

--- Later in debate ---

[Lord Thomas of Gresford (LD)]

My Lords, when I was a young solicitor in north Wales, I recall a knock on the door at about 6 o’clock in the evening. There was an agitated man of Polish extraction on the doorstep saying, “Please come quickly. My friend is dying in hospital and he wants to make a will.” I went to the hospital, which was just around the corner, and discovered that the patient spoke only Polish. I said to the first man, “What are we going to do?” He said, “We don’t need an interpreter. I’ll do it. He wants to leave everything to me.”

Crown Courts: Outstanding Cases

Lord Thomas of Gresford Excerpts

Thursday 15th April 2021 Lords Chamber

[Lord Beith]

To ask Her Majesty’s Government what steps they are taking to reduce the backlog of outstanding cases in the Crown Courts.

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

My Lords, I beg leave to ask the Question standing in the name of my noble friend Lord Beith, who is regrettably attending a family funeral. Given that physical accommodation has at last been made available for Nightingale courts—

[Lord Ashton of Hyde (Con)]

My Lords, we ought to allow the Minister to reply.

[The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)]

My Lords, in relation to the Question posed by the noble Lord on behalf of the noble Lord, Lord Beith, we spent more than a quarter of £1 billion on recovery in the last financial year, making court buildings safe, rolling out new technology for remote hearings and opening 60 Nightingale courtrooms. Although there is further to go, this has made a difference. In the Crown Courts, we are completing around 2,000 cases each week, which is the same as before the pandemic.

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

My Lords, my apologies. Given that physical accommodation has at last been made available for Nightingale courts in football grounds, hotels, theatres and even the ballroom in Chester Town Hall, how are these being manned by trained court staff? Given the fact that very few have custody facilities, to what extent are serious cases being held back and periods of remand in custody thereby lengthened?

[Lord Stewart of Dirleton (Con)]

My Lords, at the Nightingale venues, we use experienced court staff who are trained to deal with the type of work heard on site. While Nightingales deal with non-custodial cases, by taking this work away from the main court estate, custody cases can be heard in our specialist facilities faster than would otherwise be possible. To expand further our capacity to hear complex cases, we have also modified around 70 courtrooms to increase the capability to hear multi-handed trials of up to 10 defendants. In addition, work has begun on a super-courtroom in Manchester, which will further increase capacity for multi-handed cases. For those on remand in custody, our systems show that the majority of such cases had their first hearing in February 2021, and those who have pleaded not guilty have been listed for trial prior to September 2021. I acknowledge the courtesy shown by the noble Lord, Lord Thomas of Gresford, by intimating to my department the terms of his supplementary question in order that a specific answer could be given to this important point.

Counter-Terrorism and Sentencing Bill

Lord Thomas of Gresford Excerpts

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

[Lord Wolfson of Tredegar]

My Lords, I apologise for the short break in proceedings while I came back to my place. I am afraid that the convention of not moving while the Chair is standing, and social distancing, do not go too well together.

This rather technical amendment to Clause 48 clarifies that the provisions of the Bill have UK-wide extent in so far as they are applied by the Armed Forces Act 2006. That is the burden of proposed new subsection (4A). The amendment also rectifies an oversight in the original drafting of the Bill, to make Section 384 of the Armed Forces Act 2006 apply to provisions in the Bill if they amend or modify the Act, and when they are applied by that Act. This means that they will extend to the Isle of Man and the British Overseas Territories, except Gibraltar, and can be extended to the Crown dependencies. That is the burden of proposed new subsection (4B). That ensures that the same version of the Armed Forces Act 2006 will be in force in all the jurisdictions to which that Act extends.

I apologise for the fact that this amendment has not been brought forward until now. That was an oversight, but I hope that noble Lords will accept that it was an understandable one, given the number of issues that the Bill deals with, and their frequent complexity. The interrelationship between sentencing provisions and armed services issues adds a further element of complexity. The amendment itself, as I have said, does those two things, in proposed new subsections (4A) and (4B). I beg to move.

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

My Lords, Clause 48 deals with the extent of the Bill. It provides that

“A provision of this Act which amends, repeals or revokes an enactment has the same extent within the United Kingdom as the enactment amended, repealed or revoked.”


Under subsection (2), provisions that do not amend, repeal or revoke an existing enactment extend to all four nations—England, Wales, Scotland and Northern Ireland—save for two limited exceptions, in that Clauses 21(2) and 44(2) are of a limited nature, referring to retrospectivity.

It is not easy to extract the purpose of Amendment 26. Someone in the Ministry of Justice has concluded that there are problems under the Armed Forces Act 2006. Proposed new subsection (4A) suggests that, in the context of jurisdiction under the Armed Forces Act 2006, all the provisions of the Bill extend to all four countries. This is so even if an amendment repeals or revokes a provision of an existing Act that does not have that extent.

Under proposed new subsection (4B), the provisions of the Act extend outside the United Kingdom to the extent set out in Section 384(1) and (2) of the Armed Forces Act. That section applies to the Channel Islands, the Isle of Man and overseas territories excluding Gibraltar. British Overseas Territories do not include Cyprus, Belize or Gibraltar itself, which is specifically excluded. Those are all venues where I, as chairman of the Association of Military Court Advocates, know that courts martial take place.

Those are three places, and I am sure there are more, where courts martial take place—not to mention Germany, where the facilities have ceased. Courts martial can, of course, take place anywhere in the world, if properly constituted, and if charges for service offences are brought against anyone who is subject to the Armed Forces Act.

Terrorism exists outside the overseas territories. I would very much welcome clarification as to what happens if a court martial is held outside the United Kingdom, but not within those overseas territories to which the Armed Forces Act applies. I cannot help feeling that I am missing something, but the statement attached to the amendment is not at all clear—even though it states that the purpose of the amendment is to clarify the position. I look forward to the Minister doing so.

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

I endorse the question so clearly put by the noble Lord, Lord Thomas of Gresford. Despite the clear explanation given by the noble Lord, Lord Wolfson of Tredegar, I am still struggling with this amendment. Can he tell us the sort of problem that proposed new subsection (4A), which Amendment 26 seeks to insert into the Bill, tries to deal with? What is the lack of clarity with which he was concerned? Can he also indicate whether there are any implied provisions put into the Armed Forces Act by this Bill?

Proposed new subsection (4C)(a) specifies:

“a provision made, or inserted, by or under this Act so far as it is applied (by whatever words) by or under the Armed Forces Act 2006”.

Can he indicate what sort of provision that is aimed at? I would find it really helpful, in relation to proposed new subsections (4A) and (4B), to have an example of a problem that these two provisions would solve.

Bribery Act 2010: Post-legislative Scrutiny (Select Committee Report)

Lord Thomas of Gresford Excerpts

Wednesday 3rd February 2021 Grand Committee

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

My Lords, as a member of the committee, I, too, pay tribute to the careful chairmanship of the noble and learned Lord, Lord Saville, and I thank Michael Collon and his staff and the expert advisers for all the hard work they put in.

Bribery is an offence which occurs in the shadows. It is a transaction which brings advantages to both parties, neither of whom can complain, whether satisfied or dissatisfied with the corrupt bargain. Its detection may well depend on a chance: an auditor stumbling on it in the course of an audit, a report from a whistleblower, or a complaint from a competitor. Nevertheless, like all corruption, it can be highly corrosive and potentially damaging. Even when the active agents are identified, the individual in the higher echelons of a corporate body who authorised or turned a blind eye to what was going on may still be too hard to pursue. Hence, it is justifiable to introduce the concept of corporate criminal responsibility, although the company itself is a legal person which can neither speak nor hear, much less form an intention.

I was involved in the pre-legislative committee prior to the passing of the Bribery Act in 2010. The policy which emerged was to create a climate in corporate business which would lead to the elimination of bribery altogether. One way of doing that would be, as my noble friend Lord Stunell argued, to make a corporate body vicariously liable for crimes committed by its employees or agents. But it could not be right to criminalise a company with absolute liability, and therefore there would have to be a right to a statutory defence—for example, that the company had taken all reasonable steps to prevent bribery and, once its existence were known, had not covered it up.

Of course, if there is sufficient evidence that the director or manager of a company—the captain on the bridge of the sinking ship—was complicit in bribery, “wilfully blind”, as my noble friend Lord Stunell said, or if he covered it up, he will be charged accordingly under Sections 1, 2 or 6 of the Act or with conspiracy.

For corporate criminal responsibility, however, it was thought preferable not to introduce vicarious criminal responsibility but to encourage a company to put in place systems of training and supervision and to frame the criminal offence as “failure to prevent bribery”. Thus, the company is not prosecuted and convicted vicariously for the bribery which its agent has committed. As an inanimate legal person, the company can have no knowledge of the offence, nor can the company be convicted positively of failing to have adequate procedures in place, whether or not bribery has been proved. An offence delineated in those terms would put the onus on the prosecution to prove that the company did not have adequate procedures.

Under Section 7 of the Act, the burden of proof is where it ought to be. If bribery has taken place on behalf of a company, the onus under Section 7 is on the company to show, as a defence to the charge that it failed to prevent it, that it had adequate procedures to prevent bribery in place. My noble friend Lady Bowles was concerned that the phrase “adequate procedures” is too low a bar for a defendant company to surmount. However, I am happy that the decision as to what is adequate is one for the jury, which imports the standards of the ordinary citizen, not the standards of the City.

The investigation carried out by the committee demonstrated that the architecture of the Bribery Act has been well conceived—a tribute to the noble Lord, Lord Bach, in fathering it, and to my noble friend Lord McNally in acting as its midwife. Its definition of what constitutes bribery and its use of the defence of adequate procedures are well received and applauded internationally. It is regarded as the gold standard. No significant legislative changes have been recommended.

Where concerns are expressed in the report, they refer to advice, delay in investigation, and resources. Guidance could be improved in important areas, such as facilitation payments. But the idea that the Government should set up an advice bureau to authorise the conduct of an individual or a company before a transaction takes place was rightly rejected by the committee. Nevertheless, consular services to advise on overseas trade customs and norms should be strengthened, as the noble Baroness, Lady Fookes, emphasised.

An unintended consequence of the Act was that corporate sponsoring of events took a hit: sporting and musical events in particular. It is a matter of balance and common sense, as both the noble Lord, Lord Gold, and the noble and learned Lord, Lord Morris, noted, which defies statutory definition. However, the committee concluded that guidance could be improved by the inclusion of examples to illustrate what is or is not acceptable. I am sure that that would be helpful.

On investigations, the report points to the fact that only 12 out of 45 police forces had taken advantage of specialist training in the Bribery Act, and it recommended that a senior specialist investigator trained in the provisions of the Act should be employed in each of the 45 forces. As my noble friend Lord Bradshaw said, training is a long-term commitment. Can the Minister tell us whether this recommendation has as yet been taken up?

When guilt in a case against a corporate body depends on whether it has employed adequate procedures, the field to be covered will be much larger than establishing the mere fact of an incident of bribery. The report calls for investment in artificial intelligence, document sifting and similar modern technologies which can handle what have been in some of the cases millions of documents. Like my noble friend Lord German, I would welcome the Minister’s report on the Government’s up-to-date position on greater investment in these areas.

DPAs have been a success under strict judicial control. However, I underline the one concern of the noble and learned Lord, Lord Saville. In all criminal proceedings, lesser sentences encourage pleas of guilty; defence counsel always brings this to the attention of a defendant at the earliest moment. Self-reporting should similarly lead to similar discounts otherwise there is no benefit in self-reporting. I do not propose to debate whether the concerns expressed about co-operation in criminal investigations with the EU after Brexit have been met by the trade and security agreement, save to say that they manifestly have not. But that is surely for another day.

I hope that the work of the committee and the report it has produced has given direction to the investigators and prosecutors of bribery. I hope it also gives confidence to the business community that there is in place an effective weapon against bribery, and that it has encouraged the climate of honest and successful business that was intended without being too onerous a burden of time and cost, despite the many naysayers, to whom the noble and learned Lord, Lord Hope, and my noble friend Lord McNally referred. My noble friend Lord Bradshaw referred to the UK slipping down the league table, and money laundering is a real issue. However, in the field of bribery, this Act has served to uphold our reputation for fair dealing across the world and, as the noble and learned Lord, Lord Hope, said, without commercial disadvantage.

Divorce

Lord Thomas of Gresford Excerpts

Wednesday 6th January 2021 Lords Chamber

[Lord Stewart of Dirleton (Con) [V]]

My Lords, with regard to the noble Lord’s first question, legal aid is available for private families where an applicant is a victim of, or at risk of being a victim of, domestic abuse or child abuse, and that is subject to the means and merits criteria. Legal aid is available for the purpose of obtaining urgent protection such as non-molestation orders without any up-front evidence requirements, and the Legal Aid Agency has the power to waive all financial eligibility limits so that a victim may qualify for legal aid even if their income or capital exceeds the eligibility limits. An overall contribution may be required later. Legal aid for matters out of scope of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is available via the exceptional case funding scheme. That is intended to ensure that legal aid is accessible in all cases where there is a risk of breach of human rights, subject to the statutory means and merits test.

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

[Inaudible.] Can the Minister confirm that, as discussed in the recent GR judicial review case, where a wife subjected to domestic abuse has been assessed as having capital in a jointly owned matrimonial home but is otherwise penniless, and where she can demonstrate that she is unable to access that capital because the violent husband refuses to sell or mortgage the property, the director of legal aid casework has a discretion which he should exercise to treat the applicant as financially eligible for legal aid?

[Lord Stewart of Dirleton (Con) [V]]

The noble Lord’s question addresses aspects of detail as well as recent case law. I do not have the detail and the material with me to permit me to provide the noble Lord with a satisfactory answer. Again, I shall ensure that I correspond with him and put down in writing the answer to his question.