Crime and Policing Bill

Debate between Lord Faulks and Baroness Brinton

Report stage
Monday 2nd March 2026 Lords Chamber

[Baroness Brinton (LD)]

My Lords, I supported the amendment in Committee, and I echo the thanks given by the noble Baroness, Lady Royall, to the Minister for listening. I also thank the noble Lord, Lord Davies, who tabled the original amendment. This is a really important clarification, which will help victims and prevent injustices happening in the future.

[Lord Faulks (Non-Afl)]

My Lords, I apologise for being a little late into the Chamber; things moved much more rapidly than I think any of us anticipated. I spoke about this issue at some length, I fear, at Second Reading, in setting out what I thought were the difficulties legally in this area. In Committee, I invited the Government to give their response to my various submissions, which were effectively that the law, as it existed, provided sufficient safeguards so that claimants could bring their claims much later than the three-year limitation period that applies to a personal injuries claim, provided that they satisfied the various criteria set out in Section 33 of the Limitation Act 1980.

I agree with the Minister that the clause as originally drafted ran the risk of generating further litigation—and I declare my interest in having been involved in a great deal of this kind of litigation over the years. I thought that would be a mistake. I am glad the substantial prejudice provision has been removed from the clause, because it gives some welcome clarity and should minimise the risk of there being further unnecessary litigation in which the precise meaning of the provisions is probed inevitably by one side or another.

This is not quite where I would have liked the law to be, because I think the law is satisfactory as it is. However, I think that I, or anybody else concerned in this area, would differ with the general aim, which is to make sure that those who, for very good reasons, have delayed bringing claims are sufficiently protected by the law and can invite the courts to take into account their delay. The risk that I was concerned about, which was adverted to in the well-known case of A v Hoare, was the real risk that it would be impossible for there to a be a fair trial in certain circumstances because of the lapse of time. Perhaps witnesses have disappeared, documents have gone missing, and then there are all the other factors that can make it impossible for a fair trial to take place.

Although this is not quite the result I would have preferred, I think I look forward to the Minister’s reassurance that the Government’s position will preserve those twin aims: to preserve a claimant’s right to bring claims, albeit late, if there is a good reason, but also to protect a defendant if, because of the lapse of time, it is impossible for there to be fair trial. I hope that she can reassure me that she thinks that this definition will preserve the observations made by the House of Lords in A v Hoare that there comes a time when it is simply too late to have a fair trial. A fair trial, of course, will concern a defendant who probably was not in any way responsible for the perpetration of any sexual abuse and, because of the operation of the doctrine of vicarious liability, was deemed to be responsible—such as a school or other institution—because I do not think anybody has any sympathy for the actual perpetrators, however late a claim may be brought.

It is my observation that it is not a wholly satisfactory situation, but I am grateful to the Government for at least removing some of the ambiguity that was in the original way that the clause was framed.

Crime and Policing Bill

Debate between Lord Faulks and Baroness Brinton

Committee stage
Tuesday 9th December 2025 Lords Chamber

[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.

[Baroness Brinton (LD)]

My Lords, I have signed Amendment 289. This is the first opportunity I have had to speak in Committee because of family illness, and it is good to be back.

In a previous group of amendments last week, the Committee heard the concerns of a number of Peers worried that the Government’s proposals might not ensure a fair route to reporting child sexual abuse. This amendment is just as important, and I thank the noble Lord, Lord Davies of Gower, for tabling it. I also thank the noble Lord, Lord Faulks, for his helpful exposition of the legal details. I come to this as a champion for victims, rather than from the legal perspective.

Despite the many concerns about those accused of child sexual abuse being able to escape from the accountability provided by the courts, the Bill, in Clause 82, lines 3 to 11, lays out a specific route for those accused who the courts “must”—a strong word; we note that it does not say “consider”—cease action against if the defendant in question claims

“there would be substantial prejudice to the defendant”

if the proceedings were to proceed. To put it bluntly, this is a gift to any defence lawyer. Much of the evidence heard by the Independent Inquiry into Child Sexual Abuse was scenario after scenario where senior people—clergy, politicians, police officers, magistrates and so on—were able to cover up what had happened because they were in a position of power over the victim, and, quite often, over potential witnesses too.

Border Security, Asylum and Immigration Bill

Debate between Lord Faulks and Baroness Brinton

Committee stage
Wednesday 3rd September 2025 Lords Chamber

[Baroness Brinton (LD)]

My Lords, it is an honour to follow the noble and learned Baroness, Lady Butler-Sloss, who eloquently set out some of the history of the most recent slew of immigration Acts.

I have a slightly more practical question for both the noble Lord, Lord Cameron of Lochiel, and the Minister, which relates to the various lists of safe countries. The Opposition will discuss their Amendment 120 later. In Amendment 109, proposed new subsection (5) states:

“P may be removed to a country or territory … only if it is listed in”


their proposed new schedule. That schedule is in Amendment 120, where, for many of the countries listed, it states “in respect of men”—in other words, men will be regarded as safe to go back to that country. However, many of those countries already have severe discrimination against LGBT people, including men. In some countries, it is punishable by death and, in others, by imprisonment—but, much more importantly, society feels at liberty to attack and kill gay men. I ask both the Minister and the Opposition spokesperson: what happens to an individual in that position, where the country is regarded to be safe in general but for one group of people it is clearly not?

[Lord Faulks (Non-Afl)]

My Lords, I am sure the Minister will answer that question in due course.

The noble and learned Baroness suggested that the Government should not even be asked to respond to these amendments. With very great respect, I do not agree. The previous Government’s Bill that eventually fell away—the Rwanda Bill—was intended to provide a deterrent. I think it is common ground that a deterrent is necessary. The nature of that deterrent may be very much in dispute. Government thinking is still forming on the best way to deal with this very real problem.

The Government need to come up with a response. They had quite a lot of time in opposition in which to generate what they thought was an appropriate deterrent. They have now been in power for a year, and it appears that there is more thinking going on in recognition of the very real problem that they face. In my respectful view, the Government have a case to answer as to what precisely the deterrent will be. What will prevent what we see in our papers and on our screens every day?

My second point is about Amendment 107 and the interim measures of the European Court of Human Rights. I think it was during the Minister’s interregnum that there was a great deal of debate about the interim order made by the European Court of Human Rights. Even the most fervent defender of the European Court of Human Rights would be hard pushed to defend the order it made, which rejected a decision by our courts. It was made by an unnamed judge, it did not give the Government an opportunity to make representations and it did not have a return date by which, in accordance with normal practice, a Government or any other party would have a chance to answer the original order. This was a flagrant breach of natural justice, as was more or less accepted.

Whatever form the Government’s policy finally takes, they would be well advised to bear in mind what is in Amendment 107. It would give the Government the chance to consider the appropriateness of the interim measure—it is a very carefully drawn amendment because it gives that responsibility to a Minister of the Crown. There were many debates about whether the European Court of Human Rights even had the jurisdiction to make these interim measures. I respectfully suggest that, whatever else the Government think about these amendments, Amendment 107 ought to be very carefully considered.