Civil Liability Bill [HL]

Debate between Viscount Hailsham and Lord Judge

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

[Viscount Hailsham]

My Lords, I shall comment on an amendment that has not been spoken to—Amendment 12, which I think will be articulated by the noble and learned Lord, Lord Judge—and, more precisely, on the proposed new clauses, spoken to so admirably by the noble and learned Lord, Lord Woolf.

Amendment 12 seems manifestly sensible. Of course the Lord Chief Justice should be consulted by the Lord Chancellor. That is particularly important when one bears in mind that many Lord Chancellors nowadays are not lawyers and will therefore be entirely dependent on the advice of their officials, who might themselves not be lawyers. Therefore, it seems admirable that we should put into statute a requirement that the Lord Chief Justice be consulted. If the Minister says, “But of course he will be”, all I can say is that Ministers sometimes have a curious habit of forgetting the obvious and their obligations. For example, I was rather surprised about three weeks ago when the noble Lord, Lord Callanan, during the debate on Brexit, said that Ministers had never used the phrase “meaningful vote”. That was a curious lapse of mind, and it may well be that Lord Chancellors will forget the obligation to consult the Lord Chief Justice. Therefore, I am all in favour of the amendment and I hope the Government will concede the point.

Perhaps I may move more directly to the proposed new clause in the name of the noble and learned Lord, Lord Woolf, and Amendment 18. I do not have the experience of the noble and learned Lord but for many years I practised as a personal injury lawyer. I do not do so any more, so there is no need for me to identify an interest, but I used to do a lot of work in personal injury law. Indeed, I was instructed by my noble friend Lord Hunt and I was very grateful for the briefs in those days. Back then, we were informed about the level of damages by the guidance of the Court of Appeal and by the reports, which in those days were available in the current law citator. There really was no difficulty in operating within the parameters set by the judiciary.

That takes me to my objections to what the Government are proposing. The first is a very deep-seated reluctance to see the Executive or Parliament interfering with essentially judicial positions. I am bound to say that that informed my real reservations about the determination of Parliament to impose tariffs in homicide cases, set out in a schedule to the Act. I deprecated that. This is another example which we should be very cautious about. We need to ask ourselves what the essential characteristic of justice is. It is to respond to the individual and varied cases that appear before the courts. The effect of imposing a cap of this kind is to prevent the trial judge being able to respond to the particular aspects of the case in front of him or her, and in my view that is, by definition, unfair.

There is a further point that I venture to intrude on the observations of the noble Lord, Lord Marks. It is perfectly true that the Bill provides for an uplift, but the uplift requirement is discretionary on the Lord Chancellor; it is not mandatory. The Lord Chancellor may provide for an uplift in regulations but he or she does not have to do so.

I am sorry to be pedantic about this, but your Lordships will know that on many occasions I have spoken in pretty derogatory terms about the statutory instrument process that we have. This is another example. Let me acknowledge at once that we are doing it by the affirmative procedure, which is a lot better than doing it by the negative procedure, but the cap will be determined by statutory instrument. Who, pray, is going to set the cap? I can tell you: it will be officials. Unless the Minister of the day is particularly well informed and/or intrusive, the cap will be determined by officials without interference. I am bound to say that I find that a very unpleasing prospect.

If, therefore, the noble and learned Lord, Lord Woolf, is minded to press his amendment and his proposed new clause and to test the opinion of the House, unless my noble and learned friend is even more persuasive than he customarily is, I anticipate that I will support the noble and learned Lord.

[Lord Judge (CB)]

My Lords, it is a great comfort to hear the noble Viscount, Lord Hailsham, say that he agrees with what I am going to say before he has heard it. Now, perhaps he will not mind hearing it.

We have to face the reality that there are a huge number of fraudulent claims for damages arising from alleged whiplash injuries sustained in road traffic accidents—far too many of them. We also have to remember that a large number of perfectly honest claims are made as a result of injuries suffered in road traffic accidents. We have to find a pragmatic solution to the problem of fraudulent claims, given that the cost of contesting them in court tends hugely to outweigh the amount of money that is at stake if the claim is not substantial. Whiplash injury cases, in the way that will now be defined in the Bill, are not cases that attract vast sums of money in damages. I particularly welcome the requirement of medical evidence, which provides some level of protection against the fraudulent. I welcome also the prohibition on cold calling, and I think there is something in the provision for uplift.

Can we be clear, though, that some claims absolutely reek of fraud? I suspect many of us know, for example, of a case where, at traffic lights with two cars in a line and none behind, the front car moves forward across the junction, not too fast, and is followed by the second car. Then, suddenly, the front car slams on its breaks for absolutely no reason, resulting in an impact. I am certainly aware of at least one case—perhaps we all are. It was not a case in court but was narrated to me by a friend, who was rather mortified to find that, after a small accident, the recipient of the injuries in the other car came out of the car saying, “Whiplash, whiplash!”, and had no other word of English to speak. He then found that his insurance company had received claims for no less than four people, when there was only one person in the car. As I say, these cases reek of dishonesty.

I hope that, if this part of the Bill is enacted, insurance companies will continue to remember that before a claim can be made for whiplash injuries, there has to be a claim and the claim should be contested as and when there is evidence of fraud. They cannot just sit back, otherwise they will find themselves paying out more and more. Some cases reek of fraud and they should be contested, and the easy way of doing nothing much more than that should be avoided. The police should be informed and the evidence should be handed to them so that at least they can investigate. I know that they have many other things to do, but a few knocks on doors and the word would go around the fraudulent area of this particular universe saying, “Hang on, there’s something going on here”. That too might discourage the odd dishonest claim.

What I cannot accept is a solution which means that a dishonest claim is handled in exactly the same way as an honest one. We cannot have dishonesty informing the way in which those who have suffered genuine injuries are dealt with. That is simply not justice. There should not be any idea that an honest claim for a whiplash injury made by the victim of a car accident should be less well compensated than an identical injury suffered by someone at work. There are all sorts of ways in which injuries can be caused; indeed, a slip in the street or a fall down the stairs can result in a whiplash injury, so there are many perfectly ordinary ways in which these injuries can be sustained. We need a process that produces the same result for the same victim who has honestly suffered the same consequences.

Sanctions and Anti-Money Laundering Bill [HL]

Debate between Viscount Hailsham and Lord Judge

Wednesday 17th January 2018 Lords Chamber

[Lord Judge (CB)]

My Lords, the issue which arises on this amendment captures precisely the same constitutional point on which your Lordships expressed your views on Monday. It is therefore disappointing that the Minister has not been able to acknowledge the view that vesting wide-ranging powers in a Minister to create criminal offences by regulation is constitutionally troublesome. Troublesome is a modest word; very troublesome is not much stronger; but understatement perhaps has something to do with my disappointment, because there is a further disappointment. During the course of the debate on Monday, the Minister made clear before the vote that he knew and, to use his words, “totally accepted” the concern of the House about the creation of criminal offences using secondary legislation.

There is a further reason for my disappointment. At least on the sanctions part of the Bill, the Minister was able to advance an arguable point—not a strongly arguable point, but an arguable point—that it was necessary to have the legislation in the form proposed because, after our departure from the EU, there would be a gap and sanctions would be needed which could not be provided for. In other words, there had to be an element of continuity. As I said, it was a colourable argument, but it was an argument.

No such argument is present in relation to this amendment. This is not a provision for continuity; it is not a provision for saving anything; it is a distinct part of a long Bill which is entirely creative and in no sense preservational. We have this very long Bill, and the legislation on money laundering which we are concerned with today is a very short part of it. There is no primary legislation in it at all; it is all regulation-making powers. It is backed up with an endless further supporting group of regulation-making powers in Schedule 2: on and on they go. I shall come to look at one or two of them in a moment.

Where criminal offences exist, and they do here, and if ever you were to be deterred from committing offences, there is also ample protection. The regulations which will support the regulations include: the power to have a supervisory body; directions for investigation; enabling those with the powers to do so to come into your home to search; liability to civil penalties; the fact that you can be caught if you are doing this abroad; and so on and so forth. There are ample powers, therefore, to provide the evidence which would be necessary to prove one of the many offences in the Terrorism Act, the Counter-Terrorism Act, the Terrorist Asset-Freezing etc. Act, the Proceeds of Crime Act—the litany is endless, and I shall not weary your Lordships with it.

Perhaps we may consider for a moment some of the offences which you can commit which exist and will exist whether we stay in Europe or come out of Europe—whatever we do until Parliament repeals them. There is the offence of entering into money laundering: precisely what this is about. There is the offence of concealing the proceeds of crime: precisely what this part of the Bill is about. There are endless offences currently in existence of which you will be guilty if the regulations come into force but which we do not need the regulations to base the prosecution on. The statute book is full of offences.

In none of our debates so far has a single possible gap been identified in the criminal law as requiring closure. I would have a recommendation to make if one had been identified—come back to Parliament—but there is none. As with the previous part of the Bill, we are invited to hand over power to a Minister which, save in the most exceptional circumstances, should remain within the power of Parliament to give or refuse on proper scrutiny.

[Viscount Hailsham (Con)]

Would the noble and learned Lord also agree that, if these powers were to be given, they should be exercised only in an emergency situation and that, heretofore, the Minister has not been able to identify any likely emergency not covered by existing legislation?

[Lord Judge]

I agree—and I do not propose to add anything to that, with no discourtesy to the noble Viscount. That is the reality. These powers are not to be given, save in the most exceptional circumstances—and I would not define them, but I would invite some suggestion of what is exceptional here.

So here we have it. There is no self-evident necessity for this. The criminal law covers what is proposed to be covered in the regulations that are proposed to be allowed to be created. Without this amendment, which I am advancing, we would once again be allowing an alarming accretion of power to the Executive. We should not do it; we did not do it on Monday; let us not do it today. I beg to move.

--- Later in debate ---

[Lord Judge]

My Lords, my concern with this clause is that it is a Henry VIII provision. A number of your Lordships have listened to me on the subject of Henry VIII clauses and I do not want to repeat myself but it remains a matter of puzzlement to me that Governments of all different hues and compositions rely on them. To rely on such a clause is not to rely on a badge of honour—Henry VIII was a monstrous tyrant. There are many things about him that I would like to say but anybody who thinks that Henry VIII is less than a badge of shame should just look at the story. Ignore the hypocrisy of sleeping with Anne Boleyn and not Catherine of Aragon because his brother had slept with Catherine, when he himself had earlier slept with Mary, Anne’s sister. How do you square that for honesty and integrity? Much more seriously, how do you claim to have clauses in the name of a man who gave his solemn oath as the anointed monarch to Robert Aske at the Pilgrimage of Grace that he would reform, and then sent his troops out under the Duke of Norfolk to exercise and wreak vengeance and havoc so as to deter anybody from ever rebelling against him again?

Noble Lords will not want to hear any more from me on Henry VIII, but he was a monster and these are monstrous clauses. Take this one—with Clause 44, there is no primary legislation at all. As I have said in the course of the debates on other aspects of the Bill, one cannot find anything in it to bite on. It just says, “Let’s give the Minister regulation-making powers for this, that and the other”. I am not suggesting this about our Minister tonight, but it is, “Come in and buy one: take anything you like—it’s regulations”. Can we bear that in mind, given that we are now to have a regulation which can be supplemental, incidental, consequential, transitional or saving, and which may amend, repeal or revoke enactments whenever passed or made—possibly even in the future?

This is all being done on the basis of an unknown law, because the Minister has not yet brought the regulations into existence. In advance of the law being made by regulation, we are giving the Minister power to amend the regulations and to do away with statute. This is in a world where, as we discussed earlier, we already have the Terrorism Act, the Counter-Terrorism and Security Act, the Terrorism Asset-Freezing etc Act and the Proceeds of Crime Act—goodness knows how many—all of which bear on this Act, and all of which will be susceptible to amendment repeal at the Minister’s behest.

The lesser will override the greater; the secondary will override the primary; and the Minister is, in effect, going to replace Parliament. I hope that when the Minister comes to deal with this part of the debate, he is able to reflect on the vote earlier this afternoon on allowing the Minister to create criminal offences by regulation. That vote, which I urged on the House, reflected a constitutional concern about too much power being vested in any Minister. Today, the vote against giving Ministers these extraordinary powers was clear and unequivocal. It is a sign that Ministers need to be cautious; that maybe times will come when Ministers will not be given Henry VIII powers just because they ask for them, and will have to reflect carefully before they allow such a clause to be included in any Bill. For the time being, I beg to move, and I invite the Minister to address the consequences of this afternoon’s vote.

[Viscount Hailsham]

My Lords, I support what the noble and learned Lord has said. My own view is that the power in the Bill gives far too great a power to Ministers. The fact that this specific power is subject to the affirmative resolution procedure is not a sufficient safeguard, not least because—a point I have made time and again—the procedure does not provide a power of amendment.

Let us consider for a moment what this power enables the Government to do. It could be used in amending, revoking or repealing existing legislation or to extend classes of offence to which the amended legislation applied. It could be used to increase penalties. It could be used to remove statutory defences. It could be used to amend the definition of criminal intent. Indeed, it could make absolute offences that presently require proof of a specific intent. Because it is an amending power, it could be used to give further powers to the investigating officials or to increase the penalties imposed by the courts.

One can get a very good guide as to what could be done from the clause of the Bill on enforcement, Clause 16, where one can find among other things that the regulations could impose a sentence of imprisonment of up to 10 years. That could be done by regulation—without the power to amend. There is a further objection if one actually considers, just for a moment, the purpose that can be used to justify the regulations. Clause 1(2) states:

“A purpose is within this subsection if the appropriate Minister making the regulations considers that carrying out that purpose would—


(a) further the prevention of terrorism, in the United Kingdom or elsewhere,

(b) be in the interests of national security,

(c) be in the interests of international peace and security, or

(d) further a foreign policy objective of the government of the United Kingdom”.

Paragraph (a) is all right, but paragraph (b) is becoming pretty broad and paragraph (c) is even broader, and paragraph (d) refers to an objective that might never previously have been discussed by Parliament or even disclosed to an admiring public. We are enabling a Minister, by fiat, to introduce regulations of that kind.

There are well-intentioned Ministers on the Front Bench such as the noble Lord, Lord Young. We have known each other for almost 60 years. I would no doubt be very content to let him have those powers. But then I ask myself whether I would want to give those powers to Mr McDonnell or Jeremy Corbyn. I suspect that nobody in your Lordships’ House tonight would wish to do that—certainly not the noble Lord, Lord Adonis, very sensible fellow that he is. I suspect that we would be paving the way to the elective dictatorship of which my father wrote and spoke.

If we are to do these things we do them by primary legislation, surely not by secondary legislation over which we have precious little control and when I know that the Whips will be very active with noble Lords who have never read the legislation. I do not know whether the noble and learned Lord will press his amendment, but, if he does, he will have my support.