Coroners (Determination of Suicide) Bill [HL]

Lord Trevethin and Oaksey Excerpts

2nd reading
Friday 28th October 2022 Lords Chamber

[Lord Trevethin and Oaksey (CB)]

My Lords, I too support this Bill. Because I agree with everything that has been said so far, I shall try to avoid wasting your Lordships’ time by repeating points that have already been made. I declare my interests as a member of Peers for Gambling Reform and as having sat on the Select Committee that looked into the current, and unquestionably unsatisfactory, state of gambling legislation in this country a couple of years ago.

I will make one or two observations about the rather slow developments in relation to the reform of gambling legislation, a matter with which the right reverend Prelate is very familiar. The current position is that we have been waiting quite a long time for the White Paper on reform of the legislation; time will tell as to what that document will say. A document emerged recently that may foreshadow the White Paper: the Government’s response to a consultation on the arcane subject of loot boxes, which are arguably an undesirably phenomenon related to gaming online. I will take forward one point from a recent debate on that subject.

The Government’s response correctly recognised the compelling evidence of a strong correlation between what might be called the excessive expenditure of money on purchasing loot boxes, on the one hand, and problem gambling on the other. Some might think that a reason for considering taking some kind of action in relation to loot boxes, which are available to children and young people. However, the Government, in their response, declined to take action and preferred to leave the matter to self-regulation, as it is called, principally on the basis that correlation is not causation and that a causal connection between what might be called addiction to loot boxes and problem gambling has not been made out. It is not difficult to foresee a similar type of analysis informing the Government’s position in the White Paper, when it eventually emerges. The Government of course are quite entitled to say that evidence is important and that decisive action should be taken only on the basis of evidence.

The Bill before the House is, I suggest, clearly desirable. Coroners use their skills to investigate the often very distressing circumstances relating to sudden death. In the course of those investigations and the inquest process, they acquire a lot of information about the causation of the death. That information is clearly a very valuable resource that ought to inform the development of policy in the near future, in relation to gambling legislation and a number of other possible causes of suicide. Why would we wish to deprive ourselves of that resource? I can see no conceivable, sensible reason for doing so. Accordingly, while the Bill might need some careful attention in Committee, it clearly deserves the support of this House and I hope that it moves forward.

Judicial Review and Courts Bill

Lord Trevethin and Oaksey Excerpts

Committee stage
Monday 21st February 2022 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

May I add a couple of observations? It seems to me that experience has shown that it was difficult for the Supreme Court to find the right balance. On the other hand, this Bill goes too far and, if I may respectfully agree with the noble Lord, Lord Pannick, it is very easy for a judge to think in the particular circumstances of a case that a point of law is just nonsense. Therefore, having a check where points of law can be brought forward is essential.

I tend to feel that the suggestion made and the amendment put forward by the noble and learned Lord, Lord Etherton, is probably the most pragmatic solution and I would support that. But one thing we cannot do is to leave out of the equation the ability to have a review where there has been a fundamental error of law. Experience has taught me that many people, when looking at the facts of a particular case, think that they are so against it that it is hopeless, but actually there is often something there, and we must preserve that. However, I commend, if I may, the solution of the noble and learned Lord, Lord Etherton.

[Lord Trevethin and Oaksey (CB)]

May I just ask a question about the middle way proposed by the noble and learned Lord, Lord Etherton? Would the bar he is proposing—which would, as it were, place a lid over the High Court so that matters could not travel from the High Court to the Court of Appeal or the Supreme Court—operate even in a case where the High Court judge who had heard the point that arose in relation to the other tribunal’s refusal to grant permission to appeal considered that it raised an issue of general importance which ought, in fact, to travel upwards for consideration by the Court of Appeal or the Supreme Court? Should there perhaps not be a proviso in the middle-way amendment that would permit the High Court judge, if he or she thought it appropriate, to grant permission so that the matter could go upwards?

[Lord Pannick (CB)]

That is a very important point. If the noble and learned Lord, Lord Etherton, brings back his amendment on Report, as I hope he will, he may wish to add in a provision along the lines of what we see in relation to criminal matters and under the Administration of Justice Act: that if the judge or the Supreme Court certified that it was a matter of public importance, either the judge or the Supreme Court could give permission for the matter to go straight to the Supreme Court. The judge at first instance may throw out the point, but may nevertheless recognise that it is a point of some significance that perhaps the Supreme Court may wish to consider.

Judicial Review and Courts Bill

Lord Trevethin and Oaksey Excerpts

2nd reading
Monday 7th February 2022 Lords Chamber

[Lord Trevethin and Oaksey (CB)]

My Lords, it is a great pleasure to follow the noble Lord, and I agree with what he said about the glorious success of the noble Lord, Lord Pannick, assisted by the noble and learned Lord, Lord Garnier, in Miller 2, but I will not go into that now. I agree also with what the noble Lord, Lord Faulks, said about the very dubious Adams decision. If the Minister were to pick up the gauntlet in relation to that decision, he might find that quite a few of the legally qualified Members of the Chamber—who normally disagree with each other about such things—speak with one voice about the demerits of that decision.

I want to say a few words about—and solely about—Clause 2 and the reversal of the Supreme Court decision in Cart. The ouster clause in the Bill restores the position established by the decisions of the Divisional Court and the Court of Appeal in Cart. They were strong courts. The judgments were given respectively by the late Sir John Laws and Sir Stephen Sedley. They concluded that a refusal by the Upper Tribunal to grant permission to appeal was susceptible to JR, but only in two cases: first, on the ground that the Upper Tribunal had been guilty of what one may call “true”—or using the Court of Appeal’s terminology, “outright”—excess of jurisdiction, or, secondly, on the ground of some serious procedural irregularity—for instance, actual bias—which amounted to a fundamental denial of justice. The Bill, as drafted, reflects those two grounds quite properly. As Sir Stephen Sedley put it in the Court of Appeal: “Outright excess of jurisdiction”

or

“denial … of fundamental justice … represent the doing”

of something by the Upper Tribunal

“that Parliament cannot possibly have authorised it to do.”

What is “true” or “outright” excess of jurisdiction? Sir John Laws described it well in Cart: it denotes the case where the court—or tribunal, or executive decision-taker—

“travels into territory where it has no business.”

Such a case is different to the case where the court, tribunal or decision-taker has got it wrong, or is alleged to have got it wrong.

The Supreme Court in Cart overturned the decision of the lower courts. It observed that their approach led back to and, in a sense, reinstated, the distinction between “true” jurisdictional errors and other errors which had been “effectively abandoned” after the House of Lords’ decision in the Anisminic case in the late 60s. It was implicit in the Supreme Court’s judgment, I think, that this was considered a retrogressive and undesirable move.

However, as the Government said in their response to the report of the committee of the noble Lord, Lord Faulks, there are real distinctions between three different things: “true” excess of jurisdiction; serious procedural error or abuse; and all other errors, whether of law or fact. Paragraph 55 of the Government’s response to the committee report states that the ouster clause in this Bill may be used as an example to guide the development of effective legislation in the future. Some will regard that as ominous. I am not sure; that will depend upon the context in which any such attempt is made. It does seem to me—at least—that the Government are right to bring these distinctions that I have mentioned into sharp focus.

Anisminic is an example of judges interpreting words to mean something they clearly do not mean in order to achieve a desired outcome. The relevant statute provided that determinations made by the relevant tribunal should not be called into question in court. The House of Lords held that a determination based on error of law is not a real determination but a nullity and, therefore, was not within the statutory provision. Given that only arguably erroneous determinations are likely to be called into question in court, this may diplomatically be described as a very strained construction indeed. Sir Stephen Sedley, who is not opposed to judicial activism in this field, has described the reasoning as

“close to intellectual sleight of hand”

and “a masterpiece of equivocation”. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, used the term “troublesome doctrine” and the “metaphysic of nullity” when discussing related concepts.

In the recent Privacy International decision, both the judges who spoke for the majority and those who dissented recognised the highly unsatisfactory nature of Anisminic. Lord Carnwath said something to that effect. In the interest of saving time I shall move to Lord Wilson, dissenting, who said that the Appellate Committee

“picked a fig-leaf with which it attempted to hide the essence of its reasoning … The committee thereby set up 50 years of linguistic confusion for all of us who have been heirs to its decision.”

As the Government’s response to the Faulks report says at paragraph 55, legislation is communication. The text cannot speak for itself; obviously, it has to be interpreted by the courts. Effective communication requires a common and stable language—a point made elegantly by Professor Ekins in his book on legislative intent. Linguistic sleight of hand of the type deployed in Anisminic in undesirable. It generates not merely confusion but an unnecessary degree of tension between the executive and the courts.

If, as I think may be the Government’s intention, the formulation of the ouster clause in this Bill accelerates the retreat from Anisminic and promotes effective communication between Parliament and the courts in what is certainly a delicate area, it may be regarded as a good thing.

Queen’s Speech

Lord Trevethin and Oaksey Excerpts

Tuesday 18th May 2021 Lords Chamber

[Lord Trevethin and Oaksey (CB) [V]]

My Lords, it is a pleasure to follow the noble Baroness. I had the privilege of being on the Select Committee on the Social and Economic Impact of the Gambling Industry, which reported in July 2020. I draw attention to my declaration of interests in that report, in particular to my work as a barrister in the field of claims by problem gamblers against gambling operators. I also sit on the executive committee of Peers for Gambling Reform. I pay tribute to the work of the noble Lord, Lord Foster of Bath, as the chair of that body. What I will say now is a coda to the powerful speech that he made a couple of hours ago.

The Select Committee report—and, for that matter, just about everyone who has considered gambling in the online age—identifies the scale of the problem that we now face. The liberalisation of the statutory regime that occurred when the Gambling Act 2005 came into force went too far, even at that point, but in any case online gambling was at an embryonic stage then. Some noble Lords, but probably not all, may know that it is now possible to turn one’s smartphone into a casino within seconds and gamble on virtual slot machines, poker tables, roulette tables, whatever takes one’s fancy. The only limit, in practice, to the amount that you can wager is the amount that you are able to deposit by debit card. You can play multiple tables or machines. The speed of play is far quicker than anything available in the physical world. The games are artfully designed. Most people can resist the temptation and gamble safely and enjoyably—and the liberty to do so must be protected—but many cannot. It is not an easy thing to measure, but one not implausible estimate is that there are 2 million problem gamblers in the UK.

Realism is required, it seems to me. It is unrealistic and unfair, really, to expect gambling operators to take effective steps to minimise problem gambling. There is an obvious conflict, which can be briefly expressed as, “The bigger the problem, the bigger the profit on the bottom line”. The stakes are high for the operators. Gross gambling yield in the UK, which is defined as the amount retained by the industry after the payment of winnings before payment of operating costs, is now a little over £14 billion a year. It might have risen over lockdown; we shall see.

Fundamental changes are needed and they will have to be enforced. Some changes certainly require primary legislation. Many important and necessary changes do not, as the noble Lord, Lord Foster, said. The Gambling Commission has extensive powers and it can be required to use them. It is able to control or prohibit the use of so-called VIP schemes and is beginning to develop provisions based on the difficult but important concept of affordability. The 2005 Act itself provides machinery enabling the imposition of a statutory levy that could fund research and treatment. Inexplicably, that has not happened yet.

Primary legislation will probably be required to create a gambling ombudsman. This is essential. The ombudsman will have powers to call for documents and information that will bring to light any improper exploitation of problem gamblers. The operators will then be very strongly motivated to act appropriately.

To my mind, it is a little troubling that it seems the online safety Bill will have nothing at all to say about gambling. Like the noble Lord, Lord Foster, I hope that the Minister might be able to address that omission in her closing remarks.

Courts: Resourcing and Staffing

Lord Trevethin and Oaksey Excerpts

Thursday 14th July 2016 Lords Chamber

[Lord Trevethin and Oaksey (CB)]

I respectfully congratulate the noble Baroness on her exceptionally powerful and informative speech on a problem which, when it arises in the course of the trial process, is capable of completely derailing things. I declare an interest as a practising barrister. I, too, rise with some trepidation in following a string of noble and learned Lords, some of whom I have harassed from the Bar.

One aspect of The Rule of Law identified by the late Lord Bingham in his amazing book of that name is:

“Means must be provided for resolving, without prohibitive cost or inordinate delay, bone fide civil disputes which the parties themselves are unable to resolve”.

In the context of a discussion of the Legal Aid and Advice Act 1949, Lord Bingham cited this passage in support of the general proposition that the state should ensure access to justice:

“Just as the modern State tries to protect the poorer classes against the common dangers of life, such as unemployment, disease, old age, social oppression, etc., so it should protect them when legal difficulties arise. Indeed, the case for such protection is stronger than the case for any other form of protection. The State is not responsible for the outbreak of epidemics”—

and so on—

“But the State is responsible for the law. ... It is therefore the duty of the State to make its machinery work”.

Writing in 2010, Lord Bingham expressed concern about the changes in the late 1990s that, in substance, replaced legal aid with a structure that permitted conditional fee agreements and “after the event” insurance in respect of costs liabilities, which allowed successful claimants to recover the retrospective uplifts and premiums from the unsuccessful party.

Since then, as all the lawyers in the House will know, things have changed radically. In 2013, the structure that permitted the recovery of uplifts and premiums was swept away in accordance with the recommendations in the report of Lord Justice Jackson. Over the course of the 2010 to 2015 Parliament, the Government pursued a policy aimed at decreasing the net cost of the Courts and Tribunals Service through the introduction of, and increases in, various fees and charges. In its December 2013 consultation paper, the Ministry of Justice stated:

“Providing access to justice remains the critical objective”.

However, it also stated that those using the court system would be,

“expected to meet the cost of the service where they can afford to do so, and for certain types of proceeding would be expected to contribute more than the cost”.

The last phrase is rather remarkable, because it appears to amount to a concession that, in certain circumstances, litigants would be overcharged for what the state appears to regard as a sort of commercial service.

There is an obvious tension between access to justice and the imposition of a liability to pay substantial fees on the users of courts and tribunals. The new charging regime should itself be considered in the context of the major changes to funding arrangements, which are themselves very widely regarded as impairing access to justice. How do things presently stand? May I, in the time I have left, make one or two specific points that occurred to me as I read some of the available material?

The most contentious part of the new charging regime concerns fees for applications to employment tribunals. This subject will be debated in more detail in your Lordships’ House in a few days’ time. I want to make a few observations about it now, in the belief that certain issues that arise may be illustrative—I hope they are not—of a more fundamental problem. The fee structure introduced in 2013 in relation to employment tribunals differentiates between type A and type B claims, the latter being more complex than the former. In broad terms, it costs £400 to take a type A claim to a hearing before the tribunal and £1,200 to take a type B claim there. I have not been able to find anything emanating from the ministry—I may have missed it—to tell one how these figures were arrived at or to dispel the suspicion that they may have been plucked out of the air.

Access to justice is supposedly protected by a fee remission scheme. The applicant must first complete a not entirely straightforward form and there is a two-stage test. Disposable capital of £3,000 operates as an immediate disqualification. The point has been made to the Commons Justice Committee, which reported on court and tribunal fees about a month ago, that a significant number of applicants will have been made redundant or dismissed shortly before the making of the application, and may well have received a payment which would cause them to fail the disposable capital test. A single person who is not disqualified by that test must have a gross monthly income of no more than £1,085 to obtain full remission.

What may have been the consequence of introducing this charging regime? It is clearly established, in cases where the problem is considered and elsewhere, that there has been in broad terms a 70% reduction in applications to the tribunal since the introduction of these charges. The lawfulness of the charges has been challenged in judicial review proceedings. I will say nothing more about that, because it is travelling to the Supreme Court later this year, save to note that the main reason for the dismissal of the case in the Court of Appeal was the absence of clear evidence that individual potential applicants had been unable to afford the charges. The court described the overall picture of a large reduction in the number of claims as troubling. There is a certain irony in the fact that the ministry prevailed in that litigation because of a shortage of hard evidence, in that it began a review into the introduction of charges in this field in the summer of 2015. The ministry said that the review would be completed at the end of 2015 but it has not yet published the review, so far as I know.

The Justice Committee’s report makes moderately alarming reading. It recommends a substantial reduction in the fees, among other things. In the time available, I will pick out one point which particularly struck me. The Council of Employment Judges reported that many judges now hear no money claims at all. In this context money claims are typically claims for unpaid wages, notice pay, holiday pay and so on. The sums at stake tend to be relatively small, on one view—a few hundred pounds or so—but very significant to the individual concerned who may, to borrow a phrase, be just managing and whose life may be a struggle.

Let me try to move away from the dry stuff in the MoJ paperwork about meeting the costs of the service and imagine how things might look to someone who thinks that he or she is owed a few hundred pounds by their employer. There will be no access to legal advice. Obtaining fee remission is far from straightforward, if possible at all. Filling in the form in itself will deter quite a few. In many cases, remission is not available. The claimant then faces the prospect of paying about £400 to make good a claim which might be for the same sort of sum. This is a bet at even money, so to speak. However, 40% or thereabouts of employment tribunal awards are not fully enforceable so it is a bet at even money in circumstances in which the counterparty may not pay out at all.

Then, there is the daunting prospect of appearing unrepresented before a tribunal. In these circumstances, it is entirely unsurprising that the introduction of charges is deterring potential applicants. It may in theory be the case that the applicant could afford, just, to pay the charge but in the real world the claim will not be brought. This, your Lordships may think, is not acceptable. If the Government sought to legislate to remove the right of employees to bring small money claims of this nature, there would be outrage, but these charges may be regarded as substantially impairing and in many cases effectively removing that right, through the side or back door.

I have a number of other points with which I want to vex and harass the Minister. However, I am keeping an eye on the clock and am worried about strictures from that part of the House, so I shall have to attempt that exercise outside the Chamber.

Before I sit down, I respectfully echo, from the unlearned Bar, as it were, the many tributes which have been paid to the Minister by noble and learned Lords. I am very sorry to have detected, I think, that the noble Lord may be moving on. This House will be very much the poorer; he will be the richer.