Counter-Terrorism and Security Bill

Debate between Lord Thomas of Gresford and Baroness Hamwee

Wednesday 28th January 2015 Lords Chamber

[Baroness Hamwee]

My Lords, I have Amendments 118G and 118K in this group but I want to say on Amendment 118J that I take the noble Baroness’s point about the impact on communities. The point has been raised with me as well and rightly so.

The first of my amendments in fact builds on the consultation paper. Under the section headed “What would the … Board do?”, it sets out in bullet-point form a number of core objectives. In most of the cases it uses the terminology that the subject of the consideration is,

“sufficient to meet the threat and adequately take account of privacy and civil liberties concerns”.

I think that I would prefer to see the word “properly” rather than “adequately” take account of privacy and civil liberties concerns. It is essential that that aspect is set out in the consultation paper, and I would hope to see it spelled out in the remit for the board in the statute as well. If it is not there, it is not there, and it will be difficult for the board to pursue that. My amendment is quite mild in that it seeks to provide advice to Ministers on that aspect of legislation. I have used the word “adequately” to reflect the consultation paper, although, as I said, I would prefer proper account to be taken of those concerns by that clear purpose being put on the face of the Bill.

My other amendment is about the chairmanship of the board, to which the noble Baroness referred. My amendment would give flexibility around whether the independent reviewer should chair the board. Mr Anderson has made his views clear about this being a possible diversion of his time and energy. I have a lot of sympathy with that, and the JCHR also took the point. The independent reviewer could still have an extremely central role in determining membership and the work programme without being the chair. I am not saying in this amendment that he—or, in future, she—should not chair the board; I am leaving it open for further consideration.

[Lord Thomas of Gresford (LD)]

I have an amendment in this group. It may be a miserable little amendment suitably to be looked at at 11.20 pm. It says simply that any regulations under the clause should be by way of affirmative resolution.

Perhaps I may say something a little more widely about the group. When I looked at Clause 36, the first question that came to my mind was: what is it for? You do not get very much out of the wording. It seeks to provide advice and assistance to the independent reviewer. Why and for what purpose? Then we look at what the regulations are to contain. They may include provision about,

“particular things that the board may or must do”.

This lack of clarification about the purpose of the clause is reflected in the amendments tabled by the noble Baroness, Lady Smith, and my noble friend Lady Hamwee.

I was quite interested in Amendment 118F because it contains provisions which I think would have shocked to the core the Home Secretary in the previous Government—the thought that these wide-sounding provisions should be given to a board. On the other hand, my noble friend stresses that this should be about privacy and civil liberty concerns. I think that if it were about privacy and civil liberty concerns, we would understand a little more about it. However, as it is, the lack of clarity about what it is for means that we are about to have the anvil dropped from a large height by the noble Lords, Lord Pannick and Lord Carlile. I trust that we will hear a little more in clarification from the noble Lord in reply.

Crime and Courts Bill [HL]

Debate between Lord Thomas of Gresford and Baroness Hamwee

Monday 2nd July 2012 Lords Chamber

[Baroness Hamwee]

Amendment 147A is in my name and that of my noble friend Lord Thomas of Gresford. I do not take issue with the principles set out in Amendment 147ZC, moved by the noble Lord, Lord Beecham, except that I question the term, “undue prejudice”. I wonder whether filming should be permitted if it might cause any prejudice, but that is a minor point.

I am pleased to see the government amendment providing for the affirmative procedure; it will give us the opportunity to debate the extension of the subjects that can be broadcast. I have no doubt with my amendments that the Government intend to see how it goes, limiting the items as they have described. The two paragraphs listed in our amendment may look less than the Government had proposed for the initial—experiment is perhaps too loaded a term—experience of filming, recording and broadcast, but my noble friend Lord Thomas corrected my drafting and said that the term “judgments” covered everything that was needed in the first paragraph. However, this development seems to me to be so significant that I am not convinced that it should not be stated in the Bill and that any extension of it should not be the subject of primary legislation.

I agree with those who predict pressure from the broadcasters for an extension so that there is livelier material for the 6.30 news and so on. Even “Today in Parliament”, admirable though it is, chooses the livelier and racier exchanges, and that is entirely understandable—it seeks to balance those with the important items that get discussed in both Houses, and it has half an hour to do so. When one is looking for a clip of only a few seconds, one is bound to want something that will grab the audience’s attention. Of course, a wider understanding of the justice system must be a good thing. I do not want to sound too paternalistic, but there must be a danger that an extension that popularises and simplifies would lead to a loss of subtlety and complexity. The noble Baroness, Lady Kennedy of The Shaws—who has far more experience of the courts than I do—spoke powerfully about this at Second Reading.

At Second Reading I mentioned the issue of counsel playing to the gallery. It occurs to me that others may do so as well. The experience of the riots last summer, and what came out regarding the behaviour of some of those who were charged and what was prompting them, has made me wonder whether people in that situation might themselves seek to use proceedings that were broadcast in order to continue the political statements that they were making. The Government always say that we must beware of the lack of legislative opportunities but, as we generally get a criminal justice Bill each year, that does not necessarily seem to be the best argument.

When we have secondary legislation—I acknowledge that there have been improvements in the reporting by departments of consultation that has taken place before secondary legislation comes before your Lordships—it is likely that there will be a variety of views on the details of the extension and the parts of court proceedings that would be covered. These will be difficult to deal with because of the inability to amend secondary legislation. My general point is that this is so important a step that it should require the closest consideration.

As ever, when one looks at one’s own drafting immediately before standing up to speak to an amendment, one sees the faults in it. I should perhaps have included the word “only” after the phrase,

“an order may be made”,

but this is Committee so I hope that your Lordships will not hold that against me. I do not regard approval of the very limited recording that is currently proposed as amounting to approval in principle for recording and filming in court to such an extent as to avoid the need for the consideration, on the basis of primary legislation, of an extension to this.

[Lord Thomas of Gresford]

My Lords, I support my noble friend in the amendment that is also in my name. She referred to people using television for their own purposes. There has been an example of that recently in Norway, where your Lordships will recall that a defendant has made every use that he possibly could to carry his message to the public. Your Lordships may think that that is an example of the sort of thing that we wish to avoid.

The noble Baroness, Lady Kennedy of The Shaws, was somewhat caught today by the two back-to-back Statements and was due to preside over the important recognition of the anniversary of the 7/7 massacres. Consequently, she is not able to be here to promote her Amendment 147AA. She has no problem in relation to the higher courts and neither do I—there is no reason why the Court of Appeal or the Supreme Court should fear exposure to the cameras—but she is concerned, and I share her concern to a considerable degree, that the sentencing remarks can possibly lead to problems, as my noble friend Lady Hamwee has just pointed out.

I have no doubt that sentencing remarks would be used only in high-profile cases with salacious details or where celebrities were involved. It would not be long before there was pressure, when sentencing remarks were made, for the camera to show the face of the defendant as he received his sentence or, even worse, the faces of the victim or their families at that critical moment about which I spoke at Second Reading. I am very concerned about that. We must avoid the business of the court being made entertainment for people. Criminal court is a very serious matter and the parameters must be considerably restrained. I support the amendment in my name and that of the noble Baroness, Lady Kennedy.

Crime and Courts Bill [HL]

Debate between Lord Thomas of Gresford and Baroness Hamwee

Monday 18th June 2012 Lords Chamber

[Baroness Hamwee]

This amendment concerns the same paragraph of the Bill with regard to specials, whom I am beginning to think of as the National Crime Agency’s equivalent of interns.

Paragraph 14(4)(c) provides that the NCA is not prevented from,

“providing for the payment of sums to, or in respect of, current or former NCA specials to compensate for loss of salary attributable to injury or death resulting from the performance of duties as NCA specials”.

This is a probing amendment, the aim of which is to seek a better understanding of the provision. I assume that we are talking here about salary from their normal job, as it were, given that they are not being paid for being specials.

I was prompted to table the amendment by the thought that any claim that is made following injury or death in the course of a special’s employment is likely to be for far more than his salary. I am not sure that it is possible to exclude a claim for the normal areas of compensation that would arise in the event of injury. It certainly seems to me that it is not proper to do so. Why is this provision required? Is it as narrow as I have understood it to be? If it needs to be stated because the powers of the NCA would not be adequate if it were not, should it not be stated in full in the way that I have indicated? I beg to move.

[Lord Thomas of Gresford]

I speak in support of this amendment. When I looked at it, I thought that I would not advise anybody to become a special in the National Crime Agency as not only do you not get paid but even if you are injured or killed in the course of your employment as a special, you get nothing other than compensation for salary. Therefore, if you are not a salaried person—for example, if you are self-employed—you get nothing. You get nothing for the injury itself. Presumably, the Government have in mind that you would sue somebody, whether it is themselves or the criminal concerned who caused the injury or death. Do they have in mind that a person should go to the Criminal Injuries Compensation Board to recover compensation? Putting in compensation for salary is so limiting that there must be some purpose behind that wording. I look forward to hearing it.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Thomas of Gresford and Baroness Hamwee

Wednesday 7th March 2012 Lords Chamber

[Lord Thomas of Gresford]

My Lords, I am sure that the noble and learned Lord, Lord Lloyd, and the noble Lord, Lord Newton, will appreciate the importance of the concessions which the Liberal Democrats have negotiated—namely, that there should be a power in the Lord Chancellor to put areas of law back into scope because they may very well be right. It may be that these alterations will be more expensive than the Government think at this time. I very much welcome Amendment 68 which keeps birth injuries within the scope of legal aid. The reason for being concerned about cases claiming damages for personal injury arising out of medical negligence is that they currently receive legal aid as an exception to the previous Government’s removal of legal aid in personal injury cases.

Of course, four out of five claims fail or are withdrawn. Unlike a car accident or a factory accident, it is very difficult to appreciate negligence where negligence happens without the highly specialised and expensive investigation to which my noble friend Lord Faulks has referred. Although I have some experience of medical negligence cases, I defer to his very great experience and expertise. He raises the question, which I think is on everyone's mind: if you make an exception for birth injuries, what about the rest? It does not mean that claimants will be denied access to justice. If at the moment 80 per cent of clinical negligence cases are handled by conditional fee agreements, a greater proportion of these cases will simply be added to that route for funding.

In the course of the reforms that are set out in this Bill, it is essential that one-way cost shifting occurs in relation to cases that are brought under conditional fee agreements. That means that, win or lose, the defendant insurers will pay their own costs. The reason for the huge rise in insurance premiums, to which the noble and learned Lord, Lord Lloyd, referred, is the huge increase in the costs of the defendants. If four out of five claims fail, a claimant is very much without insurance; after-the-event insurance is very much at risk of being ruined by bringing an action. If, as the Government propose, one-way cost shifting is applied in this area, the unsuccessful claimant will have to carry only the costs of the disbursements. In medical negligence cases, as has been pointed out, such costs can be very high. It was for that reason that, in the Commons, the Government, recognising the problem, amended the Bill so that the cost of the premium of ensuring the disbursements, the costs of the medical expert reports, will be passed over to an unsuccessful defendant and will be absorbed, in the usual way, by the insurance company if the claim does not succeed. The insurance premium, instead of being at the dramatic size that it is at the moment, will be very much reduced and the risks under conditional fee agreements of unsuccessful claimants paying a great deal of money will be very much reduced.

The whole area of medical negligence needs to be looked at. Although we have been talking about high-cost cases, in fact the majority of these cases attract damages of less than £20,000. They are for negligent treatment for minor injuries perhaps. We are not always talking about catastrophic injuries in relation to medical negligence. Therefore, I have been arguing for an NHS redress scheme, such as that which was introduced in Wales within the past two years. The Government have said that they regard that scheme, which deals with cases up to a value of £20,000, as a pilot and, depending on how the scheme goes, will consider introducing it into England.

But the power already exists. The previous Government passed the NHS Redress Act in 2006 and Wales grasped the opportunity, as did Scotland. They grasped the opportunity of introducing a scheme with fixed fees for lawyers and fixed fees for expert reports to satisfy the problem that exists with low-value medical negligence cases. If we could progress that a little further in England, it would do a great deal to relieve the concerns that have been expressed here today.

I hope that my noble and learned friend Lord Wallace will be able to make some favourable noises in relation to an NHS redress scheme. The Opposition could not object: they brought in the Act in 2006, though they never thought that the people of England deserved it being implemented. On the other hand, the people of Wales took a different view. All reports so far on how its scheme is going suggest that it works well, reduces legal fees and provides solutions for people who have been injured. I hope that the Minister will tell us that something along those lines will be considered in this very difficult area.

[Baroness Hamwee]

My Lords, perhaps I may ask a short supplementary question following the queries made by my noble friend Lord Carlile about Clause 9. I was intending to raise it on a later amendment but will do so now if my noble friend is going to deal with it.

The natural meaning of “exceptional cases” suggests to me something very unusual about either the claim or the claimant. I am troubled that claimants might fall foul by virtue of being part of a cohort. Can the Minister help me with what is meant by “enforceable EU rights”, which, along with convention rights, bring one within the exceptional determination provision?