Criminal Justice and Courts Bill

Lord Beecham Excerpts

Wednesday 23rd July 2014 Lords Chamber

Moved by

[Lord Beecham]

63AA: Clause 42, page 41, line 26, leave out “must” and insert “may”

[Lord Beecham (Lab)]

My Lords, the amendments in this group deal with the Government’s proposal to require a charge to be levied on those convicted of offences, in addition to any financial or other penalty which may be levied on them. Characteristically, this would be a mandatory provision, judicial discretion thereby being further eroded, and the proposition is unsupported by an impact assessment. Out of thin air, Ministers pluck a figure of some £65 million for the estimated yield of this new charge, which will be calculated not merely on the costs of the individual case but on the overall costs of the court system.

As I pointed out at Second Reading, this sum is but a fraction of the vast amount of money owed under court orders: some £2 billion as at March 2013, two-thirds of it represented by unenforced confiscation orders. At that point, £420 million was outstanding by more than 12 months and there were no fewer than 1.2 million individual accounts outstanding. That puts into perspective the amount which this proposal would, perhaps, realise. Not all the figures that I have referred to relate to criminal matters. However, Liberty, to which I am indebted for a most informative briefing, averred that in the first quarter of this year £549 million was outstanding. Collection rates are poor across a range of orders, with 48% of fines and 35% of costs unpaid after 18 months. The Ministry of Justice does not even bother to collect statistics in relation to older debt.

There are serious difficulties with the Government’s policy, quite apart from the likelihood that, on present form, they will be very unlikely to recover anything like the amount ordered. Several of the difficulties are identified in Amendment 63AF, which seeks to prohibit an order where the court thinks it might affect a decision on how the accused pleads. This is clearly a serious matter. Defendants should not be deterred from advancing a defence on the grounds that they may be liable for not only punishment for the offence but what might be a significant amount to be paid under the provisions for a court charge. The amendment would deal with the issue of where enforcement costs are likely to mount to more than the charge, as enforcement costs could well be significant, and where the charge relates to any part of the hearing for which the defendant is not responsible—for example, adjournments—or any appeal, as the charge would apply not just to the original trial but to any potential appeal. The deterrent effect could, again, come into play. Finally, the amendment would seek to preclude the operation of the charge if a written means assessment had not been carried out.

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[Lord Faulks]

It is certainly the case that the court should know, as far as possible, the level of outstanding fines. I understand the practical difficulties that can be encountered by courts but, with great respect to the noble Lord, we are concerned here with a definite, fixed cost in relation to the particular nature of the offence, which will not depend on fines outstanding. That is not a question—reasonable though it is—that arises on consideration of these amendments.

[Lord Beecham]

My Lords, I am struck by the direct relationship between the speed with which the Minister is racing through his brief and the embarrassment he no doubt feels at the material he is giving to the Committee. I cannot believe that the good and noble Lord is really convinced of the case he has been asked to put. That would not surprise me, because much of what we have heard is simply beyond credence. The noble Lord, Lord Marks, in a very powerful speech, made the essential point that—among other things—the court should have discretion on the amount. None of us is any the wiser about what kind of sums we are talking about. The Minister certainly has given no examples, except to say that it will be related somehow to the cost of the individual case. How is that to be calculated? On what basis will that be apportioned? Are we just talking about the cost of prosecution? That can be covered anyway, under the existing framework. Are we talking about a contribution to the cost of maintaining the court building or the cost of the judicial salaries in a higher court? There is no indication of how this cost is to be calculated and then passed on.

Equally, although the noble Lord rightly pointed out the provision in the Bill that the Lord Chancellor will prescribe the class of case to which the charge will apply, he has given no indication tonight—and I do not think that it was done in the other place either—of what kind of cases are envisaged. Why do we not know which cases are likely to be included? What will be the process, if any, for parliamentary approval of the classes as prescribed by the Lord Chancellor? Will Parliament be permitted any consideration in this, or will it simply be a matter of the Lord Chancellor’s fiat?

The Minister’s suggestion that it would be improper for the court to determine the amount because that would somehow reflect a vested interest on its part is simply risible. It is an absurd suggestion. The notion that magistrates or High Court judges will be influenced to make rather larger requirements of prisoners because that will somehow affect them, or the court system, is an insult to both the judiciary and the magistracy. It cannot be something that the noble Lord seriously believes. His scriptwriters need to go back to wherever they were taught their craft.

In addition, and worryingly, the Minister suggested that there is no deterrent effect because the charge will be imposed only long after a plea was entered. That is absurd. The fact that the court is in a position to impose a charge is known to the defendant before he appears there; it certainly ought to be. Of course, it may influence a defendant as to the nature of a plea, particularly in the case of an appeal.

[Lord Marks of Henley-on-Thames]

Is not the noble Lord slightly mistaken? It is the fact that the court is bound to impose the charge that is known to every defendant before they go into court.

[Lord Beecham]

I am not known for being mistaken, but I am happy to concur with the noble Lord’s judgment of me. However, I am not happy to concur with the Minister’s judgment of the situation because it is simply fallacious, particularly in relation to an appeal, when the costs will necessarily be significantly more than they would be at first hearing. Of course, appeals are not just confined to going from the magistrates’ courts to the Crown Court. There is also the question of an appeal from the Crown Court to the Court of Appeal and, I suppose, ultimately to the Supreme Court, the costs of which would presumably be unimaginable to an ordinary defendant.

In my view the Minister’s case is in tatters, but let me put a further point. If we are talking about the cost of the case and the cost to the courts, where is the logic in not extending that to the costs—I am now looking at the noble Lord, Lord Paddick—of the police force or the probation service, which might also be involved with a particular client? Why are we confining this charge to the court process? There is no logic to this at all.

We still do not know how the £65 million figure is computed. No doubt the Minister, in fairness to him, does not know either. I cannot imagine he has been supplied with the information. Even if that figure were right, it is something like 3% of the total amount outstanding. The noble Lord gave figures for the uncollected sums for two quarters of 2012. I think my figures were slightly more up to date, if they were correct. However, he did not answer the point—I do not blame him, because presumably nobody has told him—as to why the Ministry of Justice does not know how much has been outstanding for longer than 18 months. Is there an implication that, if money is outstanding for more than 18 months, it would be written off? That would be curious, in the circumstances. There is also the point that the charge will apply to those who are sentenced to a period of imprisonment, presumably to be met after they come out, no doubt as part of their rehabilitation. Does this make any kind of sense, I ask rhetorically? The Minister may think it does; there will be few in this House or outside who would agree.

Of all the misconceived and less than half-baked ideas we have seen in the Bill, this proposal must surely rank in the front line. It is simply appalling and I hope the Minister will use his long experience of these matters, as both an advocate and as a recorder, to persuade his ministerial colleagues, in particular the Lord Chancellor, that he is bringing the whole system into a serious collision with reality, one that will do no good to the defendants, to the court system, or, frankly, to the reputation of those who are putting forward these proposals. However, as we are in Committee, I will not press the matter tonight. It is very probably one to which I and others will wish to return on Report. I hope the Minister will use his influence with the Lord Chancellor to see that some significant changes, at the very least, are made to these appalling, deeply flawed proposals. I beg leave to withdraw the amendment.

Amendment 63AA withdrawn.

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Finally, Amendment 63FG, which is the amendment in the names of the noble Lords, Lord Beecham and Lord Kennedy of Southwark, effectively reverses the point so that if a defendant is dishonest, the defence will be struck out and judgment will be entered. There is a difficulty about that. It is superficially attractive because it proceeds on the basis that what is sauce for the goose is sauce for the gander. However, unless the amendment goes only to the defence on liability, it is bound to be wrong because the judgment that should follow is a judgment only for damages to be assessed. It cannot be right that the defendant cannot put forward a counterschedule of damages, and that the claimant will get a windfall in damages of an amount to which he cannot possibly be entitled, because of the fact that the defendant is precluded from defending the claim. While I see the attraction of the way that the noble Lords have put it, I would not support that amendment.

[Lord Beecham (Lab)]

My Lords, I find myself not for the first time playing Spencer to the noble Lord, Lord Marks. We are almost ad idem on most of this evening’s discussions.

Clause 45 contains yet another mandatory instruction to the courts. On this occasion, as we have heard, it relates to findings of “fundamental dishonesty”. The noble Lord, Lord Hunt, raised some semantic issues about the terminology. I am personally rather anti-semantic but there is a possible interpretation of the phrase so that it is the effect of the dishonesty being fundamental to the claim, I think, rather than the nature of the dishonesty. As the noble Lord pointed out, the phrase is used in the Civil Procedure Rules. However, we need not worry particularly about the precise terminology. The problem is that if,

“on the balance of probabilities”,

such a finding is made, the court has to strike out the claim unless, as we have heard,

“the claimant would suffer substantial injustice”,

whatever that purports to mean.

Amendment 63FG seeks, as the noble Lord, Lord Marks, pointed out, to even up the balance by putting the defendants in the same position as a dishonest claimant, such that the defence would be struck out. It would certainly be legitimate to apply that to the issue of liability. Frankly, if the Government were to insist upon the full operation of their proposals in terms of the quantum issues, it would not be unjust to apply the same principle to the defendants. That is perhaps a debatable point.

However, I want to explore generally the issues a bit more widely as they have been discussed before this evening by the noble Lords, Lord Hunt and Lord Marks. Certainly there are in my mind a number of questions about Clause 45, which is clearly another example of the Government’s Pavlovian reaction to pressure from their friends in the insurance industry, this time including the noble Lord, Lord Hunt. I am not criticising the noble Lord, who perfectly properly declares an interest, but I am saying that the Government—particularly the Conservative Party—do rather seem to be beholden to the interests of the insurance industry, which is one of their more prominent supporters. I am not suggesting for a moment that the noble Lord is in any way to be criticised personally for that. However, it is a matter of fact that—

[Lord Faulks]

Is the noble Lord suggesting that in order to bring in a provision saying that one cannot recover damages if one is fundamentally dishonest, that is simply serving the interests of the insurance industry?

[Lord Beecham]

Of course it is not simply serving the interests of the insurance industry, but it is serving its interests and there is no reason why the insurance industry should not lobby to that effect. But let us not be unrealistic. I repeat that it is perfectly proper for the noble Lord to make his case, and I have no criticism of him whatever. My criticism is of the Government. In any event, there are a number of questions about the situation, as created by the Bill.

First, why single out personal injury claims? There are many damages claims to which such a provision might apply. There are claims, for example, of breach of contract over the supply of goods or services, damages to property or professional negligence. Indeed, paradoxically or ironically, the driver of a car might be caught by this provision in respect of a personal injury claim arising out of an accident but not if he claims only for damages to the vehicle. Where is the logic in that? In fairness to the noble Lord, he quoted an example of a potential for a claim other than a personal injury claim. But that is not what the Bill says; it concentrates purely on the aspect of personal injuries.

The second question is why, particularly given the drastic consequences, should the balance of probabilities test apply only to something that after all amounts to fraud, and is capable, as pointed out by the noble Lord, Lord Marks, of being prosecuted? In that event, it should be prosecuted if it is committed, but a different standard of proof would apply to the treatment of the conduct, deplorable as it is, in a civil claim as opposed to a criminal claim. As we have also heard, claimants, in addition to the possibility of prosecution, which would be amply justified, could face contempt of court proceedings in which again the applicant for the contempt case must prove fraud beyond reasonable doubt. I do not think that different standards of proof should apply to the same conduct in this context.

The third question is on why the entire claim should be struck out instead of judicial discretion being exercised to reduce damages or penalise the claimant in costs. The noble Lord, Lord Marks, has dealt very effectively with an example in which that situation might occur. The fourth question is whether the Government have considered the impact on third parties, notably the National Health Service, which in personal injury claims can recover treatment costs from the person causing the injury. Again, the noble Lord, Lord Marks, was ahead of me, not for the first time, and was quite right to say that if the defendant escapes scot-free because of some misconduct on the part of the claimant in relation to part of his claim, it is the health service—and the taxpayer generally—that will suffer.

The fifth question is: what is meant by fundamental dishonesty? The CPR, as the noble Lord, Lord Hunt, pointed out, coined the phrase in relation to qualified one-way cost shifting when a party loses the protection of QOCS if he has been found to have behaved in this way. However, as far as I am aware, there has been only one unreported case. It may be the case to which the noble Lord referred; it rings a bell. I think it was the case of Cotton. That is the only one that has so far come to light since the provision came in. I assume that the Minister will confirm that the Bill’s provisions have the same meaning, as far as that is ascertainable, as the Civil Procedure Rules.

The sixth question is: yet again, why are the Government seeking to fetter judicial discretion? This is one of the most fundamental points. In Fairclough Homes Ltd v Summers in 2012, the noble and learned Lord, Lord Clarke, said:

“It is for the court, not parliament to protect the court’s process. The power to strike out is not a power to punish but to protect the court’s process”

The Supreme Court said that its already existing power to strike out,

“should be exercised where it is just and proportionate to do so which is likely to be only in very exceptional circumstances”.

The court referred to other ways of punishing fraudulent claimants in costs, criminal or contempt proceedings.

Let me be clear: the Opposition are not in favour of tolerating, let alone encouraging, fraudulent claims whether or not the fundamental dishonesty applies to the whole claim or any part of it. To that extent, all of us who have spoken tonight—the noble Lords, Lord Hunt and Lord Marks, myself and no doubt the Minister are absolutely agreed. But the Opposition are content to allow the courts to deal with any abuse, both in determining the issues of damages and costs and in pursuing criminal proceedings when they are appropriate, and would regard that as applicable to all kinds of claims, not just personal injury claims. That would be illogical, in my submission. The Minister may wish to take that back as a matter to consider. I do not see why personal injury claims should be singled out for this particular treatment.

There is certainly a need to deal with people who abuse the system, but in my submission what is proposed here goes too far and leaves too little discretion to the courts, which are really capable of dealing with it. I beg to move.

[Lord Faulks]

My Lords, I am grateful for the contributions of all noble Lords to this useful discussion of Clause 45. Until the conclusion of the remarks of the noble Lord, Lord Beecham, I was beginning to wonder whether he thought that there should be any problem with people grossly exaggerating or being fundamentally dishonest in pursuing their personal injury claims. However, by the end I realised that the party opposite is not in favour of that, although he asked why we singled out personal injury claims.

The answer to the noble Lord’s question was provided very elegantly by my noble friend Lord Hunt. There has been—and the Government seek to address this by this clause—an epidemic of people claiming in circumstances that most right-thinking people would find deeply unattractive. The Supreme Court recently in the case of Fairclough had to deal with this particular issue, which the Government seek to address in Clause 45. So it is a particular problem that is troubling most people in society generally, with the so-called compensation culture, but also with a specific problem that has come before the courts. We suggest that it is entirely appropriate for the Government to endeavour to address this difficult problem; indeed, the Supreme Court found it difficult to find a satisfactory answer.

I am grateful for some of the constructive suggestions that have been made about how the clause ought best to have been drafted. At the moment, it requires the court to dismiss in its entirety any personal injury claim when it is satisfied on the balance of probabilities that the claimant has been fundamentally dishonest, unless it would cause substantial injustice to the claimant to do so. That is of particular relevance when the claimant has grossly exaggerated his claim, and in cases where the claimant has colluded with another person in a fraudulent claim relating to the same incident—also, sadly, a far too common feature of the whole claims industry at the moment.

This is part of a series of measures taken by the Government to discourage fraudulent and exaggerated claims, which arise often in motor accident cases and so-called “trips and slips” claims. Such claims cause substantial harm to society as a whole, not least in increasing the insurance premiums that motorists have to pay. I notice that the noble Lord criticised the Government; I think that the inference was that they were in some way in league with the insurance industry. We are talking here about insurance premiums paid by members of the public. These cases also eat up valuable resources of local and public authorities and employers, which could otherwise be used for the benefit of business and in providing services to the public.

Under the current law, the courts have discretion to dismiss a claim in cases of dishonesty, but will do so only in very exceptional circumstances, and will generally still award the claimant compensation in relation to the “genuine” element of the claim. The Government simply do not believe that people who behave in a fundamentally dishonest way—and I will come to address the adverb in a moment—by grossly exaggerating their own claim or colluding should be allowed to benefit by getting compensation in spite of their deceit. Clause 45 seeks to strengthen the law so that dismissal of the entire claim should become the norm in such cases. However, at the same time, it recognises that the dismissal of the claim will not always be appropriate and gives the court the discretion not to do so where it would cause substantial injustice to the claimant. To that extent, some of the remarks of my noble friend Lord Marks were entirely apposite. The clause gives the court some flexibility to ensure that the provision is applied fairly and proportionately.

The amendments tabled by my noble friend Lord Marks and others would considerably weaken the effect of the clause by simply giving the court a wide discretion were it satisfied that the claimant had been fundamentally dishonest, which would enable it to either dismiss the claim, reduce the amount of damages or to do neither. That would make it much less likely that those provisions would be used, even in cases where the claimant has clearly been fundamentally dishonest. I do not believe that that would be appropriate. We do not believe that people who behave in a fundamentally dishonest way should be able to benefit by getting compensation regardless.

I assure the Committee that the way that the clause is drafted should not result in the courts using the measures lightly. Civil courts do not make findings of dishonesty lightly in any event; clear evidence is required. The sanction imposed by the clause—the denial of compensation to which the claimant would otherwise be entitled—is a serious one and will be imposed only where the dishonesty is fundamental; that is, where it goes to the heart of the claim. That was very much what my noble friend said about what it was aimed at.

Of course, “fundamental” has an echo in the Civil Procedure Rules and the qualified, one-way costs shifting. An adverb to qualify a concept such as dishonesty is not linguistically attractive, but if we ask a jury to decide a question such as dishonesty, or ask a judge to decide whether someone has been fundamentally dishonest, it is well within the capacity of any judge. They will know exactly what the clause is aimed at—not the minor inaccuracy about bus fares or the like, but something that goes to the heart. I do not suggest that it wins many prizes for elegance, but it sends the right message to the judge.

The amendments tabled by my noble friend Lord Hunt, who has enormous experience in this area, reflect the fact that in his view, any degree of dishonesty, unless the court is satisfied that dismissal would cause substantial injustice to the claimant, would be sufficient. It is a difficult balancing act, but we do not believe that that would be proportionate or practical. The sanction imposed by the clause is a serious one—denial of compensation to which prima facie somebody is entitled—and we believe that it should be imposed only where it goes to the heart of a claim. It would be disproportionate to require a claim to be dismissed in its entirety. It would also not be practical as it would be likely to lead to a large number of disputes between the parties over whether the claimant had or had not dishonestly exaggerated the claim. There is potential for it to impede settlements, leading to an increase in contested litigation.

My noble friend is quite right; the Government hope it will act significantly to deter people from bringing claims or exaggerating in any way at all. The fact that there may not be many reported cases about fundamental dishonesty and the QOCS scenario may be an indication that the concept does not engender great difficulties for judges applying it in practice, and therefore, there is no need for reported cases.

It should not be forgotten that the courts still have powers available—for example, the awards of costs to penalise claimants whose behaviour falls short of financial dishonesty—if it considers the sanction is merited. We consider that the courts will be able to apply the test. In addition, supplementary provisions are included to ensure that the sanctions imposed on the claimant are proportionate. Subsections (6) and (7) ensure that in the event of subsequent proceedings against the claimant for contempt or criminal prosecution, the court has a full picture of the consequences of the dishonest conduct for the claimant when deciding what punishment to impose.

Subsection (5) ensures that when a court dismisses a claim under this clause, it can award costs against the claimant only to the extent that these exceed the damages that would otherwise have been awarded. I thought that I understood what that meant, but I hear what my noble friend says about it, and what my noble friend Lord Marks says about it, and if it is not as clear as it might be I will take that back to consider the drafting before Report. The intention is to limit the extent. We think that that is what it says, but I will definitely take that back and consider it.

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[Lord Hunt of Wirral]

My Lords, I thank my noble friend the Minister, in particular for his generous tribute to the way in which I introduced the amendment. However, I am gravely disappointed by the reaction of the noble Lord, Lord Beecham, whom I have always felt to be my noble friend, in seeking to categorise me in some way. Perhaps I should have declared an interest as a solicitor for many years for the Transport and General Workers’ Union, acting in many claims. Perhaps I should have declared an interest as acting for the child most seriously damaged by the thalidomide drug, in a lengthy court action against Distillers. Perhaps it is all my fault that he should have categorised me in the way that he did—but I regret it.

As to my noble friend Lord Marks, I think that we are more or less in agreement, and I thank him for what he said. All I would say is that I do not think that we should have just a discretionary power because, as my noble friend the Minister just said, we all surely want to combine to send a strong message from this House that dishonesty must never pay. That is the purpose behind this.

I say to the noble Lord, Lord Beecham, whom I still regard as my noble friend, that he ought to have a word with Mr Jack Straw, who has been fighting hard on behalf of genuine claimants and seeking to eradicate this tendency to exaggerate claims and to make us the whiplash capital of Europe.

I think that the Government are taking a step in the right direction. I am very grateful to the Minister for agreeing to look at certain aspects again. In the light of that, I beg leave to withdraw the amendment.

[Lord Beecham]

My Lords, I have clearly upset the noble Lord. It certainly was not my intention to do so. We have a very long association, going back to the time when we were involved in the inner city partnership in Newcastle. We have always got on very well. I intended no imputation whatever upon the noble Lord. I do think that the insurance industry, as an industry, has been overpersuasive with the present Administration, in particular with the Conservative Party.

However, that is no reflection on the noble Lord. I made it clear that he has behaved with complete propriety, as he always has. I am sorry if I have upset him; I can say no more than that. I apologise if that has been the effect—it was certainly not intended. I look forward to engaging in civilised conflict with him from time to time over this and other measures in the spirit that we have enjoyed hitherto. I certainly would not like him to leave the Chamber tonight feeling that I have cast any slur or imputation upon him. He is widely recognised as extremely able and a man who has devoted a great part of his life to public service. I would not wish in any way to detract from his record or his sincerity.

[Lord Faulks]

I want to ask the noble Lord about that comment. He redirected his fire at the Government and said they had been improperly influenced by the insurance industry. Perhaps he can assist the Committee as to the basis of that allegation and how it is relevant to the amendment that the Committee has before it tonight.

[Lord Beecham]

I was trying to say that the Government have frequently changed the law in relation to claims, not just with regard to tonight’s amendment but on a range of issues in a way that adversely affects claimants and generally favours insurers. Whenever the Labour Party makes a proposition that affects working people and trade unions, it is accused of being in the pockets of trade union leaders, dancing to Len McCluskey’s tune. If that is a legitimate comment for the Conservative Party to make about the Labour Party, it is quite legitimate for us to point to some of those industries—not just the insurance industry; there are others—that seem to be willing to fund the Conservative Party, whether or not that involve tennis matches with the Prime Minister.

Amendment A63FD withdrawn.

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Amendment 64A (to Amendment 64) not moved.

[Lord Beecham]

My Lords, I am perfectly satisfied that the Minister makes a very good case. We support it and would also support the amendment of the noble Lord, Lord Hunt. He and I between us have nearly 100 years—God help us—as practising solicitors and we have seen our profession change from a profession to a more conventional, perhaps even less than conventional, business. Professional standards seem to me—and, I dare say, to the noble Lord—to have suffered considerably from the commercialisation of the profession in a way that I find distasteful. I dare say he does as well. So we welcome this.

The problem does not stop with the inducements offered by solicitors or other people. All of us, I suspect, are constantly beset by unsolicited telephone calls raising the possibility of claims where there is no foundation to them, and all kinds of other calls selling services and the like. Quite apart from this legislation, the Government generally need to look at what can be done to make it much more difficult for this cold-calling industry across a range of issues—and certainly in the areas of promoting claims for PIP or accidents that have never occurred and so on. They should consider whether there cannot be a framework that makes it much more difficult.

Many of us have signed up to a system that is supposed to screen such calls but it simply does not work. Although it is impossible, I suppose, to stop e-mails, telephone calls which constantly occur—whether they are about this specific issue or more generally—are a nuisance. They are expensive and they are extremely irritating. It is not a matter for the Bill but perhaps the noble Lord could take back to his colleagues in BIS, and possibly other departments, that this issue generally needs addressing in addition to the specifics referred to in the government amendments and the noble Lord’s amendment, which we support.

Amendment 64 agreed.

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[Lord Hope of Craighead (CB)]

My Lords, I am very conscious of the lateness of the hour and I shall be as brief as I possibly can.

This amendment, together with Amendment 69 which follows it, seeks to deal with matters which may have been overlooked when the Constitutional Reform Act 2005 was passing through Parliament. They both relate to the Supreme Court, provision for which was made in Part 3 of the Act. I tabled both amendments at the request of the President of the Supreme Court, the noble and learned Lord, Lord Neuberger.

Amendment 68 would extend to the President of the Supreme Court the same opportunity to lay representations to Parliament on matters that appear to him to be of importance that Section 5 gives to the heads of the judiciary in each of the three separate jurisdictions within the UK: England and Wales, Scotland and Northern Ireland.

So far as I can recall, no thought was given to the position of the President of the Supreme Court when the Bill that became the 2005 Act was passing through Parliament. There may be various reasons for that. I do not recall the matter being discussed at all. I do not think that there was any policy decision on the matter either one way or the other. There may have been a drafting explanation, because Part 2, which contains Section 5, appears in the Act before Part 3, which created the Supreme Court. The separation of those two parts may have led to the matter being overlooked. Whatever the matter, the fact was that the point was concealed from us by the events that were going on at the time. If we had been thinking of the matter now, we would certainly have asked for the president to be included.

I should say that there are no issues of current concern to the president. However, unless the statute is amended, he would be unable to make representations should something of concern arise. He has been looking for quite some time for a suitable vehicle to introduce an amendment to that effect and it seemed to him that this Bill contains that kind of vehicle, which is why this has been brought forward now.

I will say just a brief word about the wording of the provision that is being proposed. The heads of the judiciary in each of the three jurisdictions have no objection in principle to what is being proposed. However, some thought has been given—especially by the noble and learned Lord, Lord Neuberger, and myself—to the precise wording. The words,

“that appear to him to be matters of importance relating to the Supreme Court”,

which is the first part of the formula, are simply a translation of the first part of the formula in Section 5(1) to accommodate the new court. It has been a little more difficult to find a formula that is appropriate to the situation of the new court in place of the words,

“or otherwise to the administration of justice”,

in Section 5(1). The wording in my amendment uses the phrase “or the jurisdiction it exercises”—that is, the jurisdiction of the Supreme Court. The intention of that formula is quite simple: to ensure that the responsibilities of the heads of the judiciary in their respective jurisdictions are respected by the president, which of course he would seek to do.

Finally, I will address two very short points on this amendment. The first is that it would be highly desirable for this formula—or at least one that the Minister can be assured has the agreement of all concerned—to be adhered to in any revised version of this amendment. The second is that between now and when we come back on Report the president and the heads of the three jurisdictions will be seeking to agree a mutually acceptable form of words that will ensure that their respective areas of jurisdiction are respected. They may come up with the same form but, if there is any difference, we will of course let the Minister know.

The second amendment is quite short. It relates to the composition of the supplementary panel, provided for in Section 39 of the Constitutional Reform Act, from which the president may invite someone to sit as an acting judge of the court under Section 38, as is necessary from time to time when places need to be filled. The section contains a number of different sources from which that supplementary panel may be drawn, but time has marched on and subsections (2) and (3), which extended membership of the panel to Members of the House of Lords under conditions which are set out, are no longer relevant as there is now no one who can possibly satisfy those conditions. That is a feature of time marching on. Subsection (6) is of no help for the present either, for the same reason.

Therefore, the only subsection that can now be relied on is subsection (4), which is very tightly drawn, but it requires a decision to be made as to membership of the panel before the individual retires. The president, the noble and learned Lord, Lord Neuberger, has found that embarrassing in at least one case. He wanted to appoint somebody who was eminently suitable and who had retired very recently, but it was too late to catch him to put him on to the panel. The amendment seeks to retain the principle of tightness to avoid individuals becoming too, perhaps, stale after retirement but nevertheless to make it a little easier to draw in people who are suitable for appointment to the panel. That is the purpose behind the amendment. I do not think there is any dispute between any of the heads of jurisdictions about this amendment; it is just a simple matter of facilitating the sensible provision in the Act. I beg to move.

[Lord Beecham]

My Lords, I am very happy to support the noble and learned Lord’s amendment and I take it that the Government will accede to it. It is a very sensible change.

[Lord Faulks]

My Lords, Amendment 68 would have the effect of allowing the President of the United Kingdom Supreme Court to make written representations to Parliament about the Supreme Court and its jurisdiction in the same way as the Lord Chief Justice of any part of the United Kingdom is able to do under Section 5 of the Constitutional Reform Act 2005. The Lord Chief Justice of England and Wales has used the provision under Section 5 of the 2005 Act to lay before Parliament his annual report, which highlights his accountability for oversight of the judiciary in England and Wales.

Amendment 69 would have the effect of allowing the United Kingdom Supreme Court the flexibility to appoint judges to the supplementary panel within two years of their retirement, providing they are under the age of 75.

First, I should very much like to thank the noble and learned Lord, Lord Hope, for all his work on these issues and for being so patient in waiting for this amendment to be reached at such a late stage. Given his background, he is of course well placed to speak with authority on these matters. I know that he has been working closely with the judiciary on these amendments and he has also recently written to me regarding them.

The Government understand the rationale behind the amendments. However, before we can agree to make such changes, we will need to consider the matter and the impacts of the proposed changes further and discuss them in more detail with the President of the Supreme Court, the Lord Chief Justice, the Lord President of the Court of Session and the Lord Chief Justice for Northern Ireland. I will also be happy to have further discussions with the noble and learned Lord about the amendments and will respond fully to his letter shortly. On that basis, I hope that he will feel able to withdraw the amendment.