European Union (Withdrawal Agreement) Bill

Lord Woolf Excerpts

Committee: 2nd sitting (Hansard) & Committee stage & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 15th January 2020 Lords Chamber

It seems to me, therefore, that one of the points that arises is which of the courts can and should be dealt with now, and if there is to be a modification of the test, that needs to be debated. This may not be the right time to do so because, as was pointed out in the earlier debates, the way in which retained EU case law is approached must depend on whether the decision is made for close alignment with the EU and therefore the need to continue the case law, or whether a different way will be put forward. So it is difficult to set out the test now, but it should be done, and done only by Parliament. We cannot give Ministers the power to tell judges how to decide cases.

[Lord Woolf (CB)]

My Lords, if the noble and learned Lord, Lord Mackay, would like to speak first, I would welcome that.

[Lord Mackay of Clashfern (Con)]

I do not particularly wish to speak first, but in view of the noble and learned Lord’s invitation, I will make my brief contribution. Unlike the noble Lord, Lord Anderson of Ipswich, I have a fair amount of experience in this area of European law and the modification of existing judgments—I sat in the House of Lords when it set aside a previous judgment. It is extremely important that we consider the principle that has to lie behind this. The present situation is that EU retained law has been made part of the law of the United Kingdom unless and until it is modified by Parliament in due course. When passing the previous withdrawal Act, we placed a number of restrictions on that power for Ministers in various areas relating to human rights and so on.

From what I read in the newspapers as these things developed, my impression was that the Government were anxious that the power to modify or depart from EU judgments would be better given to a wider set of courts than the Supreme Court, and the High Court of Justiciary in Scotland on criminal matters, as had been done in the withdrawal Act. I can see that it may be part of overall policy that it should be rather wider than the present law would permit. However, it is important that whatever method is used, it is one that will prevail across the whole of the United Kingdom. Therefore, to give the power to do this to, for example, the Inner House of the Court of Session, would have the effect that it would apply in Scotland but not in England and Wales directly, nor in Northern Ireland. There would be a degree of difficulty in that. That is why, in my view, this power should be in the Supreme Court. As we all know, when the Supreme Court gives a judgment, it is a judgment for the whole of the United Kingdom. It is important to emphasise that the name of the court is the Supreme Court of the United Kingdom.

If it is desired to give the power to a wider section of the courts, the way to do so is to specify which courts they are. The example given by my noble and learned friend is one possibility, but it is for the Government to decide how wide they wish to be. However, it is important that the courts should not have the power to ultimately decide; it should be required to refer the matter to the Supreme Court. The Supreme Court can modify the burden that that would involve by a lead process, leaving it free to dismiss a case where it was thought there was nothing in it. One possible line is for the lower court to give a judgment which might ultimately help the Supreme Court, but I do not know whether that would always be necessary. The important thing is that any court that has this power would have it only as a way of referring the matter to the Supreme Court.

I was thinking of putting forward an amendment to this effect, but I thought it probably better to leave it until we have had a chance to discuss it. I have reached the conclusion that, as a practical matter, if we in this House can persuade the Government to change, it is likely to be effective; whereas if we do not persuade the Government to change, it may not be effective, with results that we may not altogether approve of. My main effort in this is to try to persuade the Government that a system along the lines I have proposed would be perfectly acceptable and workable, and would embrace all the courts that it needs to embrace.

[Lord Woolf]

My Lords, I am grateful to the noble and learned Lord for preceding me because he is in a unique position to give advice to the House on this issue. I only intervene to add to what has already been said because I want to stress the importance of the issue. There is an old saying that hard cases can make bad law. This may be a hard situation for the Government but they are in danger of making very bad law indeed. Why they are in danger and why they would be wise to think very carefully again before they ask for this to be implemented is apparent from the careful steps that were taken back in 2005 when I was still one of the chief justices—to whom the noble and learned Lord, Lord Brown, referred—who are present before your Lordships.

At that time, changes were being made which went to the root of the constitution, and the courts were concerned that they could be severely damaging to our unwritten constitution. As a consequence, the then Lord Chancellor and I—then Lord Chief Justice—came together to make a concordat to try to deal with those difficulties. It was recognised that one of the underlying principles of our common law and constitution was the separation of powers, and what was being done in 2005—which affected the position of the Lord Chancellor in relation to the courts—was trespassing on the principles that had existed hitherto. The noble and learned Lord, Lord Mackay, was well aware of these principles when he was Lord Chancellor and a member of the Government. The role that the Lord Chancellor played at that time was to ensure that the important balance—which explained how we managed to continue without a written constitution—succeeded, which it did remarkably well.

As I see the situation, what my noble and learned friends and my noble friend Lord Anderson have been saying to your Lordships is that this proposes a change in our law that would undermine the proper observation of the rule of law in a most critical way. I suggest that for this House to allow that to happen without protesting in the clearest way would be very undesirable indeed. I feel confident that if the Government look at this matter again and bear in mind the speeches made to this House today, they will see how it can be dealt with. However important Brexit is, it must not be allowed to create a precedent that could be followed hereafter, as has been suggested, which would damage our situation.

I hope we will always be able to continue in this country without a written constitution. However, if we let what is proposed go through with saying it should be amended, we will create a situation where that will not be possible. We should pause before doing so.

Criminal Justice System: Women

Lord Woolf Excerpts

Thursday 25th July 2019 Lords Chamber

[Lord Woolf (CB)]

My Lords, I refer to the disclosures that I have made in the register of interests; those interests have continued. I warmly congratulate the noble Lord, Lord Farmer, on obtaining this debate and on his two excellent reports, in particular his second report, The Importance of Strengthening Prisoners’ Family Ties to Prevent Reoffending and Reduce Intergenerational Crime. I hope that his recommendations are accepted.

I cannot help but indicate that I am sad that events in the wider political field mean that we have lost a Minister of Justice who I thought was exceptional in his attempt to acquire knowledge of the problems in the prison system and to promote changes that would help to break the cycle that has gripped our prisons for so long. Time is needed for the changes that are necessary in the prison system; the constant turnover of Ministers of Justice has been an unfortunate aspect of the scene for as long as I have known it.

There is no doubt that, when it comes to sentencing female offenders, special considerations arise. This has already been accepted by the Ministry of Justice. However, regrettably, insufficient effect has been given to this recognition. It is my hope that the second of the reports for which the noble Lord, Lord Farmer, is responsible will have the effect of redressing that.

I am a recently retired member of the Joint Committee on Human Rights, which has considered this subject recently. There will be a report from the Joint Committee in due course—after the Recess, probably in September. One of the matters focused on in the report is the effect that imprisoning mothers has on their children. It also stresses that the Human Rights Act requires, as a matter of law, the human right to family life of children. In considering this subject in relation to women, I suggest that considerable importance should be attached to that matter. The unfortunate fact is that the regeneration of criminals, as generations pass, is one matter that explains why we have such a consistent problem within our prison system. We must realise that if we do not get our approach to women and mothers right, that will continue. We will keep on creating the circumstances that lead to generation after generation being the subject of intervention from our criminal justice system.

One fact that comes out in the reports that have been published is that that no proper statistics and records have been maintained of cases where children could be affected. I suggest that this is a worrying sign. Of the recommendations of the noble Lord, Lord Farmer, that one should be given high priority because, if the records are not there, the defects in what happens will not be known in the way that they should. This indicates that sufficient attention is not being paid to what happens in our courts at different levels, every day, and the consequences on the responsibility of the judiciary for sentencing. The lesson has to be regularly repeated that judges have an important responsibility to make sure that they receive, in time to deal with it when it comes to sentence, sufficient information on the circumstances of the women before them. Once they have been dealt with and sent to prison, it is foolhardy not to arrange the available prison accommodation so that family ties are not prevented from operating normally because of the locations of prisons. I am afraid that that is the situation with female prisons today. It is a significant matter.

This is not a problem that is not capable of redress; it is just that one has to think about what is needed and ensure that it happens. We have to take into account that this is an important aspect of our criminal justice policy. Money will not be saved and our prisons will not be improved unless we give this the priority that it deserves. I say in the time available that, when this debate is over, we will hope that the messages that we have been learning today, from the admirable speeches that were made prior to mine, are taken into account in the future. Equally, I hope that it will be recognised that you cannot do this unless you are prepared to make proper use of the resources available.

Courts and Tribunals (Online Procedure) Bill [HL]

Lord Woolf Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 10th June 2019 Lords Chamber

[Lord Keen of Elie]

There are circumstances in which the Minister may give directions to the committee—I accept that—and that reflects the current position with regard to the other rule committees already in existence, including the tribunal rules, the civil rules and the criminal rules. It exists by way of an executive direction and is there for good reason as a fallback. I understand that the power has been used only once with regard to the existing committees, to address a potential anomaly in the existing rules. It is an exceptional power but it is there because it reflects the existing power in the provisions for the other rule committees.

[Lord Woolf (CB)]

I apologise for not being at Second Reading but perhaps the Minister will indulge me by helping me with the purpose of Clause 1(1)(a), which states:

“For proceedings of a specified kind, there are to be procedural rules which … must require that kind of proceedings, or one or more aspects of that kind of proceedings, to be initiated by electronic means”.

--- Later in debate ---

[Lord Mackay of Clashfern]

Having had the honour of holding the office of Lord Chancellor when the Lord Chancellor was the head of the judiciary, I think it is right for me to say a word or two about the present position.

It is very important to remember that our constitution recognises three arms: the legislature, the Executive and the judiciary. The judiciary is a distinct arm from the Executive. The Executive have responsibilities in relation to the judiciary, and of course the judiciary has responsibilities in relation to the people of this country in a way that is unique. If somebody else is entitled to say, without getting the ultimate agreement of the Lord Chief Justice, “We’re going to alter your procedures in the court. We’ll tell you about it and we’ll consult you but, if you don’t like it, we’ll do it all the same”, that seems to subvert the idea that the Lord Chief Justice is the head of the judiciary. The judiciary must act according to procedures and, if you alter the rules or procedures without his agreement, it seems to me that you subvert his position as the head of the judiciary as distinct from the Executive and the legislature.

Incidentally, I cannot help remarking at this stage that the judiciary has been silenced from having any part in the legislature. I regard that as an extraordinarily retrograde step. I hope that some day it will be put right by a responsible Government and that we will have the very great advantage of hearing in the House of Lords not just all past Lord Chief Justices but the present one as well.

The Lord Chief Justice’s agreement seems to me absolutely essential. Indeed, I would like to feel that he would be the initiator of changes in procedure as a result of committee recommendations. His responsibilities will be encroached upon if these procedures do not work.

My only other remark is that the reference to the Secretary of State in Clause 6(2) is probably to the Secretary of States for Wales, the language of Wales being important in this connection.

[Lord Woolf]

My Lords, I hope it will not be inappropriate, in view of the elegant and powerful speeches already made, for me to say these few words. I was a party to the concordat, the importance of which was that it established the new relationship between the arms of government, to which the noble and learned Lord, Lord Mackay, referred, until the Constitutional Reform Act 2005. I hope it will suffice to say that everything said in support of this amendment seems four-square with what was said in the concordat, indicating when the consent of the Lord Chancellor or that of the Lord Chief Justice would be required. These were heavy burdens that my successors as Lord Chief Justice had to carry in consequence of, first, the concordat and then the Constitutional Reform Act. It would be so easy to allow legislation of this sort to undermine the spirit of the concordat and the provisions of that Act by creating a precedent, which could be pointed to subsequently, indicating that the clear distinctions of relevant situations where the consent of the Lord Chief Justice should be required are not as they were previously understood to be.

[Lord Beecham]

My Lords, I simply add that the crowded Benches behind me will support the amendment. We are entirely in sympathy with all that has been said.

Civil Liability Bill [HL]

Lord Woolf Excerpts

Report stage (Hansard): House of Lords
Tuesday 12th June 2018 Lords Chamber

Moved by

[Lord Woolf]

6: Clause 2, page 2, line 30, leave out “two years” and insert “twelve months”

[Lord Woolf (CB)]

My Lords, I thank the noble Baroness, Lady Chakrabarti, and the noble Lords, Lord Beecham and Lord Marks, for allowing me to speak first to this amendment, which also relates to Amendments 17B, 18 and 30. I also record my gratitude to the Minister for the courteous manner in which he has promoted the Bill and for being prepared to discuss its contents with me.

I draw attention to my interest in the register. I also disclose that I have a son who is a QC practising in clinical negligence. What is most relevant so far as my own career is concerned is having chaired the access to justice inquiry and helped with the implementation of its recommendations, in my then capacity as Master of the Rolls. The recommendations included different tracks and procedures for disposing of civil claims.

The one that we are concerned with today is the disposal of small claims by what is known as a small claims court. As noble Lords would expect, this was designed to provide speedy and simple justice for litigants who are not usually represented. The assessment by a court of damages has always been accepted as a purely judicial responsibility in England and Wales, as far as I know, and that responsibility has been reflected in many decisions of the courts. The Personal Injury Bar Association published a paper that referred in this regard to the speech of Lord Blackburn in Livingstone v Rawyards Coal, 5 App Cas 25, at page 39—a decision as long ago as 1880. Lord Blackburn said:

“I do not think there is any difference of opinion as to its being a general rule that, where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation”.


Another well-established legal principle is that, if you are wrongfully injured, the wrongdoer has to take the victim as he finds them. The effect of whiplash injuries, with which we are concerned, can vary substantially according to the physical and mental sturdiness of the victim. This means that the appropriate amount of damages for a whiplash injury can vary substantially when applying the rule to which I referred. I suggest that they are not suited to a fixed cap, as proposed by the Government.

--- Later in debate ---

Without delaying matters for too long, I hope noble Lords will understand the Government’s position on these issues. We cannot accept the amendments proposed, particularly those that seek to affect the reasonable and necessary aim of this whole policy. We are concerned that the amendment which would remove Clauses 2 and 3 from the Bill would in effect tear the bottom out of it; it would remove its raison d’être. It would frustrate our manifesto commitment to reduce the cost of insurance for ordinary motorists by cracking down on exaggerated and fraudulent whiplash claims. I hope that in those circumstances, while I intend later to move government Amendments 19 and 25, the noble and learned Lord, Lord Woolf, will withdraw his amendment.

[Lord Woolf]

My Lords, we have had a good debate and all the points have been explored, so I shall not detain your Lordships for long by seeking to review the evidence which has been given, in excellent speeches, on behalf of both sides of the argument. However, there is a serious point to make. I would suggest that the vital feature at the core of my case for deleting Clause 2 is very clear: it results in injustice and it is known to result in injustice. Indeed, no one can deny that it results in injustice. There has never been a case where legislation deliberately introduces injustice into our law. It may be that it is only in regard to small claims, but surely it is important that we pause before we do that.

--- Later in debate ---

Moved by

[Lord Woolf]

18: Clause 2, leave out Clause 2

[Lord Woolf]

My Lords, I beg to move.

Civil Liability Bill [HL]

Lord Woolf Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Tuesday 15th May 2018 Lords Chamber

[Lord Woolf (CB)]

My Lords, we have had great help on this subject in the preceding speeches. Perhaps I should begin by giving my thanks to the noble and learned Lord, Lord Mackay, who is in his place, because many years ago he gave me the task of looking at civil justice with a view to producing a report on access to justice, which I did. Since that time the report has had a significant influence. However, when I wrote that report I could not possibly have anticipated the changes that would be needed as time went on, and what has just been said by the last speaker emphasises the fact that perhaps there are advantages in learning from experience.

There is no doubt in my mind about the problem that this Bill is intended to deal with, particularly in Part 1. Unfortunately, I could not take part in the discussion that took place on that part because I was not in the country at the time, but I shall try to avoid saying on Part 2 what I failed to say on Part 1 and thus use up the time of the Committee. However, to some extent one has to look at the whole of the situation in order to get the context. I would emphasise that although the Government’s motives here are good, they must appreciate that there are real dangers in interfering with the normal machinery used for dealing with questions around the assessment of damages which follow injuries. It is very important that justice is done in the case of small damages claims just as it is in large claims. One of the matters that I complain about in the whole of the Bill is that it is taking on responsibilities which are better dealt with elsewhere.

First, it is obvious that the assessment of damages has always been the responsibility and under the control of the judiciary. Indeed, following my report, it was initially felt that legislation was not required because the Civil Procedure Rule Committee and other methods existed which meant that changes could be made that were flexible. What one really has to do is get the culture right, and the culture is that those who are justly entitled—not those who make false claims—are given the proper award by what justice lays down for them on the circumstances of their case. I may well come back to this subject on Third Reading or on Report because Part 1 introduced principles that, as far as I saw it from what was said, were novel in so far as they distinguished between two people with very similar claims in the same circumstances by imposing artificial caps on damages. That leads to bad justice, I would say, in the sense of unfairness, as was said by other noble Lords when considering Part 1.

Coming on to what is being proposed—particularly by the noble Lord, Lord Hodgson, in his admirable remarks in support of his amendment—I want to make it clear that this matter is very important. Obviously, it is very desirable, as a matter of principle, for the courts to be given the power to make awards that will reflect the future. You cannot complain if the situation changes, so as to make the award of compensation either too low or too high, if it is able to be put right. As I understand it, the noble Lord, Lord Hodgson, has suggested machinery for doing that very thing, which is obviously a very significant change from what has happened so far in the courts. Therefore, leaving it to the courts to exercise flexibility and carry forward the principles that the legislation could support, as far as the detail in individual cases is concerned—so that they evolve with experience as well as with the change of facts—would be a very much better and more just result for the litigant. In fact, it would lead to economies in costs, which was one of the Government’s motives in the legislation.

If we have bad law, people will want to challenge it. They will argue against it and seek to lever the facts of their case into a situation that does not justify that approach. However, having a broad and wide approach that evolves in the way I said it should, and can—because of the intervention of either the rule committee or practice directions, which can be done by judges without the committee—is a much better way forward. In principle, we want to take what has been urged by the noble Lord, Lord Hodgson, and apply it. That would leave it to those who do the work day by day to do it in the best practical way.

[Lord Beecham (Lab)]

My Lords, it is a great pleasure to follow the noble and learned Lord, Lord Woolf. We very much look forward to his participation at this stage and on Report.

At the outset of our discussion on Part 2, I want to set out the underlying approach that we on these Benches are adopting. The Bill and the problem that it seeks to address in Clause 8 represent a challenge to two groups. The first comprises those who have suffered serious injuries that, in many cases, will have a lasting impact on their well-being and will engender financial loss, expense, pain and discomfort. The second group includes the first one, but it potentially extends to everyone who will require the services of the National Health Service at some point. We ought not to protect the second group at the expense of the first by artificially limiting the compensation payable to victims of negligence, whether by the NHS or other parties. We should look at ways to fund any liabilities incurred by the NHS for clinical negligence claims as part of society’s financial responsibility to maintain the service, rather than looking to victims to do so.

Periodical payments, to which noble Lords have already referred, clearly have an important future role and we would certainly wish to see them carried forward. The amendments before us touch on a number of issues. Amendment 92 calls for a review of periodical payment orders within a period of six months of this part of the Act coming into force. That might be too tight a timetable. The work certainly needs to be done, but that strikes me as potentially rather early.

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[Lord Woolf]

There is an answer to the problem that the noble and learned Lord raises. It might have implications for the workload of the judiciary but I think that could be handled. We should get away from the idea that a judge should assess damages in appropriate cases only at one stage. There is no reason why you cannot have a system where the matter can be restored to a judge in a case of differences of opinion to take into account succeeding circumstances. If the power existed, the courts would find that in the majority of cases, litigants—properly advised, as they are in these big cases—would come back only when there was a real difficulty between the insurer in practice and the claimant. In that way, matters could be reviewed to reflect any differing circumstances. It was not a one-off assessment that I was advocating but the ability to change the assessment. That would apply to PPOs as it would to any other laws.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I am obliged to my noble friend Lord Hodgson for setting out the background to this matter. His Amendment 55 would require what he referred to as new rules of court to be made that highlight features of periodical payment orders which may make them a more appropriate way for a person with a long-term injury to receive an award for damages for future care costs. I understand that Amendment 55 and the other amendments in this group are essentially probing amendments.

“Rules of court” in Amendment 55 means the Civil Procedure Rules. The purpose of the Civil Procedure Rules—and, indeed, all rules of court—is to govern the practice and procedure of the court and the parties in court proceedings. This may be a technical issue but that does not detract from the importance of ensuring that claimants who have suffered long-term serious injuries are well informed as to the implications of their choice between a lump sum payment of damages and a PPO. I am conscious of the point made by the noble and learned Lord, Lord Mackay of Clashfern, about the care that the Executive must always exercise in circumstances where it may be perceived that they are giving directions to the judiciary. I will explain why the Government therefore take a more modest approach to this issue but one which they feel will be effective.

Of course, some Civil Procedure Rules have been made in relation to the exercise by the court of its powers under Section 2(1) of the Damages Act 1996 to order that all or part of an award of damages in respect of personal injury is to take the form of a periodical payment order. These rules already require the court to consider all the circumstances of the case, as well as the preferences of the claimant and defendant and the reasons for them. I appreciate that there are instances in which PPOs may not be available; for example, a mutual insurer such as the Medical Defence Union would not be considered sufficiently well reserved to meet future liabilities. I appreciate also that there have been reservations among insurers about the use of PPOs because of the way in which they are required to reserve for them and the capital requirements related to that.

PPOs are certainly in principle considered a better form of taking compensation for future loss than a lump sum because they provide strong protection for claimants who may be concerned about the return on a lump sum. This Government certainly support their use. At the same time, we must keep in mind that the person behind a claim has a choice and is entitled to make one in such circumstances. We consider it important that claimants making a choice in these circumstances should be properly informed, irrespective of whether their particular case reaches such a stage that the court has to consider whether to order a PPO. Of course, not every case will reach the court; many will be settled before that and, at an earlier stage, claimants have to be properly informed as to which option they should adopt.

I note the point made by the noble and learned Lord, Lord Judge, with which I entirely agree. It is perhaps moot to say that no estimate of life expectancy is ever precisely accurate because they are just that—estimates—and one takes that out of the equation where you have a PPO.

The Government remain fully committed to ensuring that appropriate advice is available to claimants in all cases and stand by the commitments they made to action in their response to the Justice Select Committee. To pick up on the points made by the noble and learned Lord, Lord Hope of Craighead, the point made in paragraph 50 of the response to the JSC was a concern to ensure that guidance was provided to individual claimants. It is our intention to put in place appropriate guidance and to ensure that it is available. We aim to do that by the end of 2018. In addition, we are investigating whether current advice received by claimants on the respective benefits of lump sums and PPOs is effective, and whether there are other ways in which the use of PPOs could be increased within the present system. At present, we intend to complete this work by the summer of 2019.

I hope that goes some way to meeting the concerns expressed by the noble Earl, Lord Kinnoull, on these matters. He raised a further question on indexing and I think the noble Lord, Lord Monks, touched on this. The reason that the ASHE 6115 index is taken is that it is the specific care costs index. It may be that wage costs have not increased at the same rate as the wider RPI, which may explain the discrepancy the noble Earl pointed out. However, the ASHE 6115 index is a specific care costs index, which is why that has been employed in the past.

Amendment 92 would require the Lord Chancellor to conduct a review of the impact of setting a new discount rate on the extent to which PPOs are made by the courts, but within six months of the provisions in Part 2 of the Bill coming into force, and then to publish a report of the results within 18 months of commencement. As the noble Lord, Lord Beecham, hinted, that may be far too tight a timescale to produce an effective report. We certainly do not consider that a requirement to carry out a review of this nature at the time proposed would be particularly informative. That is because the first review of the rate under the Bill would probably not have been completed by the time at which completing the review under this amendment would be required. Effectively, that would mean that the review would have to focus on any impact that had resulted from the setting of the rate as of March 2017 under the present law, which was a rate of minus 0.75%. I suppose that such a review may, however, be of limited use given that the legal framework for setting the rate would have changed but I suspect that it would tell us only something about the past, not the future.

I also observe that the settlement of major cases can take some years to agree, whether or not they arrive at the door of the court, so it might be some time before there is sufficient evidence to draw meaningful conclusions about changes in claimant behaviour. We do not yet have the statistical information about the effect of the March 2017 change in the discount rate on the use of PPOs. We therefore do not know whether the lowering of the rate has diminished the take-up of PPOs, although there is certainly some anecdotal evidence to that effect. It is logical to assume that this would occur, given the size of the change that took place in March 2017.

The evidence from the previous four years does, however, suggest that the use of PPOs is concentrated in the most serious and long-term cases, with the propensity to use them increasing with the size of awards up to about £5 million. They are not really employed in cases where the award of damages is lower than £1 million. That is largely because the use of PPOs is concentrated on provision for future care costs—long-term care costs, generally in cases of catastrophic injury. That is why there is a large percentage of cases in which PPOs are not considered appropriate. The National Health Service pays out PPOs in about 70% of awards over £1 million, while the equivalent figure for insurers is only about 36%, and there may be further work to be done. That is why we are going to look at the question of further guidance in order to encourage their use. Certainly, the take-up is far from negligible in serious cases.

On the comment of the noble Lord, Lord Beecham, this is not just about funding clinical negligence claims by the NHS. It goes far deeper than that; it is about ensuring fairness between claimants and defendants in the difficult process of assessing damages, particularly damages awarded for future care. I do not accept the noble Lord’s general point that we are simply trying to move the cost of future care from victims to somewhere else. That is not what we are about; this is concerned with ensuring fairness between claimants and defendants.

I have spoken about the way in which the amendments would require some sort of review. Amendment 92A would also require such a review to assess whether the fact that a PPO may be uprated by reference to an inflation index other than the retail prices index is having an impact on the relative merits of PPOs versus lump sums in the context of a revised discount rate. That would go beyond a consideration of the impact of the discount rate to the overall level of damages award, and how individual elements may be indexed for inflation. At present, the index used for PPOs is a very specific care cost index rather than the RPI.

We will, as I have indicated, be taking forward a range of initiatives to encourage the use of PPOs and to ensure that claimants are properly advised when choosing the form of their award. We hope to have the first part of that process completed by the end of 2018 and the wider investigation completed by the summer of 2019. We believe that those practical steps will encourage the use of PPOs where appropriate—we will, of course, monitor that—and create a situation in which a review requirement, such as that envisaged by the amendments, will not be necessary. Indeed, it would be more appropriate to move in this direction rather than find ourselves in the somewhat invidious position of the Executive sending out directions to the judiciary about how it should approach the award and determination of damages in such serious cases.

With that explanation of the Government’s position, I hope the Committee will be reassured that we are committed to effective action to encourage the use of PPOs. On that basis, I invite the noble Lord to withdraw the amendment.

Worboys Case and the Parole Board

Lord Woolf Excerpts

Wednesday 28th March 2018 Lords Chamber

[Lord Woolf (CB)]

My Lords, I shall take up the last point that the noble and learned Lord made in answering the questions raised a few moments ago. Nick Hardwick has been an outstanding contributor to criminal justice in this country. I say that knowing that other Members of this House who have occupied the highest judicial posts in this country share that view, even though they have been closely involved in criminal justice as Lord Chief Justice. I have not spoken to the noble and learned Lord, Lord Phillips, but I have spoken to the others and they confirm that that is the case. It was not mentioned in the Statement that has just been read out that Nick Hardwick indicated that his role in this matter was extraordinarily limited. Although the Parole Board may have been at fault, as indicated in the judgment, it is right to say there was no personal criticism of its chairman. I am sure the House accepts that being a member of a parole board is an extraordinarily difficult task. A parole board can act only on the information given to it. In those circumstances, I ask the Minister to make clear that the view I have just indicated about Nick Hardwick is accepted by the Lord Chancellor and Minister of Justice. It is right that it was made clear to him that he should resign, albeit that he thought he would have been able to carry on perfectly well in the role. Bearing in mind the importance of the Parole Board, this is a most important matter.

[Lord Keen of Elie]

I am obliged to the noble and learned Lord, Lord Woolf, for his observations and readily concur with his comments on the contribution that Professor Nick Hardwick has made to criminal justice in this country. I say that without qualification. Clearly a situation had arisen in which there had to be consideration, both by the Secretary of State and by Professor Nick Hardwick, of whether it would be tenable for him to continue in the present circumstances. In light of that, he tendered his resignation. Again, I repeat, I accept without qualification the comments made about his considerable contribution to criminal justice in this country.

Prisons: Women

Lord Woolf Excerpts

Monday 5th March 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, we are seeking to invest in what is termed the whole system approach in respect of female offenders who are released from custody in order that we can develop a female offender strategy. By 2020 we will have invested £1 million in seed funding investment for community provision.

[Lord Woolf (CB)]

Does the noble and learned Lord agree that in dealing with female prisoners it is most important that great attention is paid to the need for offenders to have regular contact with their children? Otherwise there is a danger of repetition by succeeding generations of what happened in the case of the offender.

[Lord Keen of Elie]

I entirely agree with the observations of the noble and learned Lord. We are concerned to ensure that such contact can be maintained. At another level, of the 12 prisons currently located throughout the country for female offenders, six have mother and baby units.

Prisons

Lord Woolf Excerpts

Thursday 8th February 2018 Lords Chamber

[Lord Keen of Elie]

No, it is not possible for me to give that figure. However, it is an indication of the pressures that have developed on the prison population.

[Lord Woolf (CB)]

My Lords, the Minister accepts that there are great problems within the Prison Service. They seem to correlate with the result we now have of constant changes in the Lord Chancellor or Minister of Justice—I say that seeing the noble and learned Lord, Lord Irvine, in his place—and the fact that Ministers have to learn about prisons, which is not an easy task. So we get a situation where good reforms are overlooked and mistaken reforms are implemented. Does he think that there is a solution to this?

[Lord Keen of Elie]

Speaking from a personal perspective, I hope that there is a solution in the form of some consistency and constancy of ministerial appointments in particular departments—but I quite understand the noble and learned Lord’s concern. Within the Ministry of Justice we are pursuing a consistent policy with regard to prison improvement.

Bach Commission: The Right to Justice

Lord Woolf Excerpts

Thursday 14th December 2017 Lords Chamber

[Lord Woolf (CB)]

My Lords, I also commend the noble Lord, Lord Bach, for the excellent report that has been produced and is the subject matter of this debate, and for securing the debate. There is so much that is worth while in the report that in the time available it is possible to focus only on one issue. I will focus on the suggestion that there should be established a justice commission; a matter already mentioned in the course of his powerful speech by the noble and learned Lord, Lord Phillips.

It will be known to certain of the lawyers here that in the course of my legal career I was responsible for producing a report on this subject, in the long and distant past of 20 years ago. The noble and learned Lord, Lord Mackay of Clashfern, who was in his place, was the Minister responsible for asking me to make that report. If you are going to make a report, you are usually very dependent on the Minister who commissions you to do so. I could not have been more fortunate than to have the noble and learned Lord, Lord Mackay, as my source of authority. I welcome the opportunity to say that he not only supported me during the course of the inquiry but supported me magnificently in helping get some of my reforms implemented.

But the civil justice system in this jurisdiction does not stand still; it continuously evolves. It does so because it is basically a common law system, one of the virtues of which is that it continuously evolves. Whatever the virtues of a civil justice system, it does not have that benefit.

Whatever the report says, it will need to be continuously reviewed to bring it up to date. That is why a justice commission is so important. One consequence of LASPO was attempts by the Government to alleviate its worst effects. However, they did not work as well as the Government thought they would. As a result, the Government were in the unfortunate position of putting aside money to help with special cases but, lo and behold, that money did not get to the special cases that needed it. I remember hearing debates in this House where that fact was deplored, and the Government went on to try to find better ways of doing it. No matter how many reports you have, better ways of doing things will be found, and we must focus on this.

Mention has been made of the quality of our legal system, which has rightly been commended. But, as the noble and learned Lord, Lord Phillips, indicated, it is an expensive system. One of things I achieved—but failed to do—was to ensure that in big cases, where all the people involved were wealthy, they should be able to use all the Rolls-Royce assistance the system could apply; but if you had the misfortune to be a small person in a small case, you should be able to use a bicycle to achieve what was needed in the justice system. I still believe we provide the Rolls-Royce in our system but we do not provide the bicycle—and that is one of the issues upon which we should focus. I urge that we find ways of making that happen—and I can think of no better way of doing so than by establishing the commission the report recommends.

I have had the good fortune of being gainfully employed abroad since I retired as a judge in this jurisdiction. I received that benefit because of the reputation of our system. However, I have always been rather nervous that it might be pointed out to me that our judges may be very good but, unfortunately, the system is far too expensive.

Serious Disturbance at HM Prison Birmingham

Lord Woolf Excerpts

Monday 19th December 2016 Lords Chamber

[Lord Keen of Elie]

I am obliged to the noble Baroness. Of course well-trained prison officers have the ability to identify problems that are developing, which those of lesser experience will not be able to do. Eighty per cent of the present cohort of prison officers have five years’ experience or more in their job. We are not only working hard to recruit new prison officers but we are working very hard on a programme for the retention of prison officers, because, as the noble Baroness indicated, experience is as important as numbers.

I am not in a position to comment on individual prisons on a case-by-case basis. However, clearly, what lies behind our intention to invest £1.3 billion in the prison estate is the desire to ensure that there are decent conditions available for prisoners during their sentence. I accept that there was an incident at Moorland. There was an incident at Bedford and there have been others during the year. Those clearly place strain on the prison estate, prison officers and staff in general. However, we are responding positively to those concerns. One of our principal aims is to ensure that rehabilitation and the opportunity for work and education are principal goals in the context of prison policy.

[Lord Woolf (CB)]

My Lords, I am grateful for the answers that we have had to the questions raised. As the House knows, the Strangeways inquiry resulted in my giving a report and since that time, I have followed up what has been happening in prisons, not least because of my involvement with the Prison Reform Trust. Does the Minister agree that it has to be recognised that overcrowding is a cancer that can destroy all the best endeavours in prisons? I am afraid that any answer given to the problems which does not take that into account, notwithstanding what was said about building more prisons, will not really root out the problem because the sort of things which the Minister has talked about are so much more difficult. Finally, does he agree that it is a particularly difficult time in prisons when they go through a process of reform? That was true just before Strangeways and we are, I hope, going through a period of reform now. Are Ministers conscious of that?

[Lord Keen of Elie]

I am obliged to the noble and learned Lord. We are of course conscious of the demands placed upon the prison estate and prison staff at a time of change. It will be demanding as we go forward with the development of the new prison estate. Clearly overcrowding, not on its own but as part of that terrible mix of issues, can lead to difficulty, danger and violence in our prisons. That is why we are concerned to address the issue of overcrowding as swiftly as we possibly can.