Crime and Policing Bill

Lord Davies of Gower Excerpts

Tuesday 9th December 2025 Lords Chamber

Moved by

[Lord Davies of Gower]

289: Clause 82, page 98, leave out lines 3 to 11
Member’s explanatory statement
This amendment removes the ability of the court to dismiss an action in respect of personal injuries attributable to child sexual abuse on the grounds that the defendant would suffer substantial prejudice.

[Lord Davies of Gower (Con)]

My Lords, Amendment 289 is a probing amendment through which I am seeking the Government’s justification for the substantial prejudice provision in Clause 82. By way of background, Clause 82 removes the three-year limitation period for personal injury claims in cases relating to child sexual abuse. As such, it implements recommendation 15 of the independent inquiry into child sexual abuse chaired by Professor Jay. The inquiry found that most personal inquiry claims relating to child sexual abuse are not only modest in value, but in many cases do not result in compensation being paid. The reason for the high rate of failure is that a significant number of those claims are prevented from proceeding as a result of the limitation period on bringing forward a claim under the Limitation Act 1980. That Act permits the three-year period for claims resulting from sexual abuse as a child to begin from age 18, therefore expiring at 21, but many survivors do not feel comfortable with coming forward and telling people what happened until much later, never mind gathering the courage to bring a lawsuit against their abuser. The result is a lack of justice for those who have been abused as a child, and it is welcome, therefore, that the Government have decided to bring this forward.

However, there is possibly an issue with the drafting of Section 11ZB, which is inserted by this clause. It establishes the situations in which the court must dismiss an action for injury arising from child sexual abuse. It states that for all cases brought after the commencement of this clause, the court must dismiss the action if the defendant can prove that a fair hearing cannot take place. However, for any case that started before this new clause comes into force, the test for dismissal is set considerably lower because in this instance, the court must dismiss the claim if the defendant can prove that they would suffer substantial prejudice, and thus the proceedings are inequitable.

This goes further than was recommended by the Jay inquiry. Its report referred to

“the express protection of the right to a fair trial, with the burden falling on defendants to show that a fair trial is not possible”.

The only test the independent inquiry wanted was that the test of whether a fair trial can take place applied to all past and future cases. I know there is concern that the ability of the court to dismiss actions due to substantial prejudice placed on the defendant will create uncertainty for survivors of child sexual abuse and delay access to justice. This has the potential to undermine the purpose of the recommendation of the Independent Inquiry into Child Sexual Abuse and might not provide the certainty and support survivors deserve.

I reiterate that this is simply a probing amendment, and I would be grateful if the Minister could elaborate on why the Government have gone further than recommended by the Independent Inquiry into Child Sexual Abuse. I beg to move.

[Lord Faulks (Non-Afl)]

My Lords, I have an amendment in this group. I repeat a declaration of interest I made at Second Reading: that I have appeared as a barrister in a number of the leading cases about limitation of the law of tort. The purpose of limitation periods is to give a claimant a fair chance to decide whether to bring a claim, but also to place some sort of time limit on claims. Limitation periods vary according to the cause of action—for example, defamation claims have to be brought within one year. Personal injury claims have always been in a special category. The normal limit is three years or, in the case of a young person, three years after attaining the age of majority. But because some personal injuries manifest themselves only some time after they have been caused, particularly those relating to disease claims, the law has responded by postponing the starting date to reflect something called the “date of knowledge”.

What constituted knowledge was difficult to encapsulate in statute and gave rise to a lot of litigation, particularly in the context of what are generally known as historic claims for child sexual abuse. But these difficulties were largely overcome by Section 33 of the Limitation Act 1980, which gave the court a complete discretion to disapply the limitation period. Although the section gave various sensible guidelines as to matters to be taken into consideration, the discretion was expressed to be entirely unfettered.

One difficulty of the law remained. In claims for deliberate acts of assault, there was a finite six-year limitation period, rather than a three-year extendable limit for claims in negligence, so some claimants did not have the advantage of Section 33. This problem was overcome by the decision of A v Hoare in 2008— I was one of the unsuccessful defendants in that case—when the House of Lords decided that, whether the claim was in negligence or in assault, there was still a discretion to disapply the limitation period.

The only question that remained was whether it would ever be too late to bring a claim in the light of Section 33. Lord Brown of Eaton-under-Heywood, a much-missed Member of your Lordships’ House, made this observation:

“If a complaint has been made and recorded, and more obviously still if the accused has been convicted of the abuse complained of, that will be one thing; if, however, a complaint comes out of the blue with no apparent support for it (other perhaps than that the alleged abuser has been accused or even convicted of similar abuse in the past), that would be quite another thing. By no means everyone who brings a late claim for damages for sexual abuse, however genuine his complaint may in fact be, can reasonably expect the court to exercise the section 33 discretion in his favour. On the contrary, a fair trial (which must surely include a fair opportunity for the defendant to investigate the allegations …) is in many cases likely to be found quite simply impossible”.


That passage was in fact referred to in the conclusions of IICSA, which decided that the three-year period should be removed, but that there should be

“express protection of the right to a fair trial, with the burden falling on defendants to show a fair trial is not possible”.

The Government responded to IICSA’s report and did not support getting rid of limitations. The Government acknowledged the importance of Section 33 and made this point:

“A limitation period also encourages disputes to be resolved timeously thus promoting finality and certainty. Both are key cornerstones of the legal system. As such, the Government’s opening position, ahead of consultation, is that it does not support this option”.


Nor did they support a special limit for claims arising from sexual abuse. I remind the Committee that, in 2017, in the case of Carroll v Chief Constable of Greater Manchester Police, the Court of Appeal emphasised the unfettered nature of the Section 33 discretion.

My question to the Government at Second Reading was essentially this: what cases do they envisage would now be allowed to proceed which would not have done under the current law? I do not expect an immediate answer, but the Government have now had plenty of time to consider their response. There was a consultation following the Government’s response that I referred to, but it was not particularly large and did not contain consistent answers.

Changing the law of limitation is best an exercise following the careful balancing of respective interests, perhaps by the Law Commission. What appears to have happened here is that the Government, notwithstanding the initial view that I referred to, have decided to come up with some sort of compromise. In doing so, I fear they have produced in Clause 82 a real dog’s dinner of a provision.

Clause 82 is headed:

“Removal of limitation period in child sexual abuse cases”,


but it does not do that. It specifically provides that sexual abuse is in a separate category from, for example, physical abuse, although this was precisely what the Government did not want when they responded to the original recommendations. It contains a rather unclear provision that, when a dispute has been settled, it will no longer be subject to these new provisions. It probably does not include discontinued claims or claims settled otherwise than by way of a formal agreement.

New Section 11ZB contains some very unclear provisions as to the circumstances in which the court can dismiss an action, while at the same time containing in new subsection (2) the provision:

“The court must dismiss the action if the defendant satisfies the court that it is not possible for a fair hearing to take place”.


The interrelationship of new subsections (2) and (3) is incoherent and will inevitably result in litigation. The lack of clarity on what is and is not sexual abuse, and what is and is not settlement, will, I fear, also give rise to litigation.

I agree with the Opposition Front Bench’s probing amendment that we should get rid of new Section 11ZB(3), but that would leave a repetition of what the law is anyway and would not deal with the points about what constitutes sexual abuse or settlement via agreement. My conclusion is that there is absolutely nothing wrong with the law as it is. This rather messy compromise will give rise to unnecessary litigation and I am unsure it will provide remedies where remedies are not already available.

Sexual abuse, particularly of children, is abhorrent, and we now know there has been far more of it than was originally perceived. It is, however, important to point out that claims are not usually made against individual perpetrators; one can understand why there would not be much sympathy for a claim being brought, however late, against such a perpetrator. The usual defendant is, for example, a school, religious organisation, local authority or even central government. They may or may not have any knowledge of what happened but, because of the expanded doctrine of vicarious liability, will be deemed in law to be responsible for what occurred. They may or may not be covered by insurance.

As Lord Brown pointed out, there will come a time when it is quite simply inappropriate, many years later, for claims to be brought before the court. However sympathetic one is to the victims of sexual abuse, the law currently caters adequately for the balance between the interests of claimants and defendants. If we include Clause 82 in the Bill, I fear we will make bad law. The clause should not stand part.

--- Later in debate ---

[Baroness Levitt (Lab)]

My Lords, it is no answer to say that another Government considered it carefully: different Governments have different priorities. I am not sure that that is going to come as a great surprise to the noble Lord. As for Section 33, this Government are satisfied that it does not provide sufficient protection.

[Lord Davies of Gower (Con)]

My Lords, I shall be very brief in my response. As I say, this was a probing amendment, and I am grateful to those noble Lords who have contributed to this short debate. I thank the Minister for her clarification. I am content with the Government’s assurances, and I therefore beg leave to withdraw my amendment.

Amendment 289 withdrawn.