National Security Bill

Debate between Lord Faulks and Lord Hope of Craighead

Committee stage
Wednesday 18th January 2023 Lords Chamber

[Lord Faulks (Non-Afl)]

With respect to him, the Minister is quite right: the application of ex turpi is very uncertain. There is a great deal of authority, and it is difficult to predict in particular cases whether they are going to rely on it. However, if there is going to be a statutory scheme then I return to my point: it needs to be a lot clearer so judges know how they are supposed to apply it.

[Lord Hope of Craighead (CB)]

I wonder if I may add a thought. One of the words that strike me in Clause 83(5) is “must”. If I were a judge at first instance, I would have to explain my decision, so I would have to say that I had applied my mind to the various factors. Having looked at the factors, I am still left in the dark as to what principle I should apply. I can look at them and understand them, but why should they affect the award? I do not think a list of factors is needed if the Government can explain the principle that should be applied. Is it that a kind of quasi-immunity should be given because of these various factors—some sort of overriding principle in favour of the Government’s security measures and so on that should be applied? I cannot devise that myself, but a list of A, B, C and D is not going to be helpful. We already have the factors there; it is the trigger, what the principle is that leads to the decision that the damages must be reduced, that is important. Otherwise, a first-instance court might say, “I’ve considered the factors and I can’t see any reason why the damages should be reduced”, and an appeals court will say, “Well, that’s perfectly right”, and we are left without any significant advance in this legislation. I hope I have made my position clear. I do not like lists of factors very much, but I like to have guidance as to principle.

Economic Crime (Transparency and Enforcement) Bill

Debate between Lord Faulks and Lord Hope of Craighead

Committee stage
Monday 14th March 2022 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, as someone who takes a close interest in devolution matters, I am delighted with these amendments. I have quite often moved amendments in similar terms and not been successful. It is a pleasure to see the Minister produce amendments in the very terms that I would have liked to have seen in the Bill. I very much welcome them both.

[Lord Faulks (Non-Afl)]

As a fellow member of the Constitution Committee, I endorse what the noble and learned Lord said. This is one of the points that we as a committee regularly make: it is one thing to have the Sewel convention in primary legislation; it is another to have it in subordinate legislation. We very much welcome this as a matter of practice.

Judicial Review and Courts Bill

Debate between Lord Faulks and Lord Hope of Craighead

Committee stage
Monday 21st February 2022 Lords Chamber

[Lord Hope of Craighead (CB)]

I shall say just a few words. It is very strange that there is nothing in the Explanatory Notes to explain why this presumption is in the Bill at all. I have searched the notes for guidance and can find nothing. That point aside, I stress the point made by my noble and learned friend Lord Etherton about the danger that lurks in proposed new subsections (9) and (10). If one is sitting in a court trying to work one’s way through the various phrases set out there, they create a number of traps—and certainly opportunities for the disaffected litigant to challenge the decision. There are value judgments to make about what is “a matter of substance”; you must address your mind to what is meant by the phrase “adequate redress”; and you must find whether there is a “good reason” for doing or not doing something. These are all things you must face up to, and you must explain yourself, because it is all qualified by the words “is to do” or “must do”. A judgment that is going to stand up to scrutiny in the Court of Appeal will have to work through all those phrases and explain what decision the judge has taken in order to support the decision that is ultimately made.

This remedial tool is being encrusted with so much stuff that it is almost unusable. It really is ridiculous to overwork to this extent the amount of directions being given to the judge. It is not necessary, it is bad legislation and it is extremely dangerous. It is not a remedial tool at all; the Government are trying to create something in their own interest, as has been pointed out already, and make it as difficult and dangerous as possible for judges to use this tool. It should certainly not be legislated for in this form. Therefore, I strongly support the removal of these two subsections.

[Lord Faulks (Non-Afl)]

My Lords, I feel tempted to respond to the contribution of the noble Lord, Lord Beith. It is absolutely true that this particular form of words does not find its way into our report in any way. That, of course, does not necessarily mean that it is a mistake to include it in the Bill.

The noble Lord, Lord Anderson, gives a choice that is not very inviting: either this is a mere surplusage, in which case it should go, or it is potentially something that an inexperienced judge might get wrong or feel compelled by to make an order that he or she would not otherwise want to make. I wonder if that does not slightly overstate the case. I should say that I am not wholly convinced of its necessity, but I do not think it anything like as damaging as has been described.

After all, before you even get to the question of whether the court is to make a quashing order, a considerable number of hurdles have to be surmounted, as do a number of considerations which we have canvassed during the course of the debate. So, if the “interests of justice”, or whatever term that the judge directs himself or herself to, have allowed them to reach the conclusion that it is not appropriate to make a quashing order, this question of a presumption, whether it is a weak or a strong one, simply does not arise. Of course, the judge can also simply say, “Well, I take into account subsection (9), but I don’t see a good reason for making the order”, having regard to whatever it might be. I do not see it as quite the same hurdle race that the noble and learned Lord, Lord Hope, described it as.

I will listen carefully to the Minister on why it is in there. I do not think it particularly harmful, but there is, as it were, enough here to allow the judges to do what is fair without necessarily including this particular presumption.

Overseas Operations (Service Personnel and Veterans) Bill

Debate between Lord Faulks and Lord Hope of Craighead

Report stage
Tuesday 13th April 2021 Lords Chamber

[Lord Faulks (Non-Afl) [V]]

My Lords, Amendments 7 and 8 are, in effect, wrecking amendments, while Amendment 13 seeks to distinguish the position of service personnel and other potential claimants. I expressed the view in Committee that I was not convinced that the provisions in Part 2 would make all that much practical difference. The primary limitation period for personal injuries is three years, as the noble Lord, Lord Thomas, has just pointed out, except in so-called delayed date of knowledge cases, as provided by Sections 11 and 14 of the Limitation Act 1980. There is a discretion to disapply the limitation period under Section 33 of the 1980 Act. As he also pointed out, claims under the Human Rights Act have to be brought within one year, with a discretion to extend in rather limited circumstances.

My experience of personal injury claims as a barrister is that courts need considerable persuasion before they extend the three-year period and that the burden rests on a claimant to persuade a court that that primary limitation period should not apply. Limitation periods exist to reflect the difficult balance that has to be struck between allowing everyone to put a line under actual or potential claims and the fact that some claimants will have good reason for delay.

The provisions in Part 2 provide a long-stop, subject to a delayed date of knowledge provision. It seems that claims arising out of overseas operations present particular difficulties for all those involved, and I respectfully differ from the comment made by the noble Lord, Lord Thomas, about Salisbury Plain, particularly in overseas operations where the theatre of operations has moved on or changed its location and it may be extremely difficult to investigate, on either side, the basis of any such claim.

As I said, the provisions are not likely to have much practical effect, but they will nevertheless have some indirect effect in encouraging appropriate claims to be brought with as much speed as is practical. They will also provide a degree of reassurance to our service personnel that a time will come when they will be involved in one way or another in so-called late claims. The noble Lord, Lord Thomas, referred to some uncertainty over what the date of knowledge might be which would defer claims. Subject to what the Minister says, I understand it to be concerned with cases where, for example, there is latent disease that could not be reasonably known about by a claimant at the time; for example, somebody who sustains mesothelioma as a result of exposure to asbestos dust or who has some other illness or injury that becomes manifest only some years after the event in question.

I am not attracted to Amendment 13 either. In Committee, the noble Baroness, Lady Chakrabarti, suggested that I was concerned only with claims brought by the military and not with those brought by the non-military or civilians in, say, Iraq or Afghanistan. That was not in fact what I said or thought. It is therefore something of an irony that this amendment would make that very distinction. I am unaware of any such provision in any other area of the law of limitation of actions—that is, a provision that distinguishes between classes of claimant. There are of course provisions distinguishing the position of a claimant who has not attained his or her majority or who lacks mental capacity. However, it would set a most unfortunate precedent somehow to elevate a particular claimant to have a special status.

The provisions in Part 2 ought to apply in precisely the same way across the board to whomsoever is involved in claims arising out of overseas operations and provide equal protection for all of them. This amendment is discriminatory and should not be included in the Bill. Surely our service personnel want to be treated fairly, rather than to be given some special privileged litigation status. I will listen with great interest to what the noble and gallant Lords who are to follow in this debate have to say about the matter, but for the moment I am unconvinced that any of these amendments should be made to the Bill.

[Lord Hope of Craighead (CB) [V]]

My Lords, I will add just a few words to what the noble Lord, Lord Thomas of Gresford, said in support of Amendment 13. The provisions to which it is addressed which are of particular interest to me are in Schedule 3, which seeks to amend the legislation that applies in Scotland to the same extent to that in Schedules 2 and 4, which apply to the other jurisdictions. The crucial point is the imposition—for such it is—of an absolute prescription of six years.

As we know, the three-year limitation period that applies at present is accompanied by protections that enable the court to extend the limitation period if it is justified by the circumstances—the date of knowledge exception. It seems that the Bill applies a hard-edged cut-off that makes no allowance whatever for extenuating circumstances. I could understand it if this proposal had been accompanied by a carefully conducted research programme into how the three-year limitation has worked in practice over the years, identifying on how many occasions the period has been extended for more than three years, and why and at what point the extensions have been sought and justified. We are, of course, in this case, and indeed throughout the Bill, dealing with the consequences of operations that have been conducted overseas, maybe under very difficult circumstances. Gathering together enough information to determine whether a claim would be justified, let alone to bring together all the information needed to justify bringing the claim before the court out of time, may take much more time and effort than is needed in the more benign domestic cases. That is the reason for seeking the discrimination to which the noble Lord, Lord Faulks, referred.