Civil Liability Bill [HL]

Debate between Lord Hope of Craighead and Lord Faulks

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

[Lord Hope of Craighead (CB)]

My Lords, I added my name to Amendment 69 and I support everything that my noble and learned friend has said. There is just one point that I would like to add. I draw attention to subsection (4) of the new Section A1, which is printed at page 7, lines 37 to the foot of the page. It refers to the content of the original order that the Lord Chancellor will have made, which is the background to the review process. The order not only talks about the rate but has to contemplate the possibility of descriptions of pecuniary loss, the length of the period during which pecuniary loss is expected to occur and the time when the pecuniary loss is expected to occur.

So one is not simply talking about the calculation of a rate of return in the abstract. It would be open to the reviewer to examine whether there should be some fresh approach to the matters that are contemplated in that subsection. It underlines the important point that my noble and learned friend has been making about the need for judicial input against the background of experience which everybody in the courts has drawn out of cases involving these very serious injuries. I support the amendment for that reason.

[Lord Faulks (Con)]

With some hesitation, I offer some slight doubt about the two contributions from the noble and learned Lords relating to the role of the Lord Chief Justice. I entirely accept the significance and appropriateness of the role of the Lord Chief Justice in the first part of the Bill, as the Minister accepted. I am more troubled about the suggestion in relation to the role which the Lord Chief Justice might play in the rate of return on investment. In essence, this is a quasi-mathematical function. The noble and learned Lord, Lord Judge, is quite right that judges regularly see and approve complex cases, and will be aware of the adequacy or otherwise of damages. However, with great respect, that is not quite the issue that the panel will be deciding.

I see a further problem and would be grateful for the Minister’s comments on it. The Lord Chancellor makes the rate determination—it has been accepted that this is essentially a political determination—must,

“give reasons for the rate determination”,

and,

“publish such information about the response of the expert panel established for the review as the Lord Chancellor thinks appropriate”.

If he or she has to give reasons in response to a judicial review—the Minister has said that the decision must be amenable to such review—presumably those reasons might include the advice that he or she has been given by the Lord Chief Justice. I am a little concerned that this puts the judiciary in an unfortunately political position, when it has been agreed that the role of the Lord Chancellor is pre-eminently a political one, albeit advised by the panel. So although I entirely accept the experience and wisdom of the judiciary, I wonder whether this is entirely the right role in this context.

[Lord Hope of Craighead]

Does the noble Lord agree that subsection (4), towards the foot of page 7, is not dealing with matters of mathematics? The matter of description of categories and so on is involved. It goes a little further than the noble Lord was contemplating in his brief remarks.

[Lord Faulks]

I entirely accept that it does, but ultimately the question of what the rate is is determined by experts, taking into account the factors which are, I agree, set out in the Bill. I shall listen with interest to what the Minister says, but it still seems to me that that is perhaps dangerously close to the judges getting involved in an area which might render them subject to criticism.

European Union (Withdrawal) Bill

Debate between Lord Hope of Craighead and Lord Faulks

Committee: 5th sitting (Hansard): House of Lords
Wednesday 7th March 2018 Lords Chamber

[Lord Faulks (Con)]

My Lords, I rather agree that “appropriate” is not particularly desirable. I wonder whether putting “helpful” in Clause 6(2) would more accurately reflect the way that courts generally consider law from other jurisdictions in developing the law—one always invites courts if they find a particular decision to be helpful—whereas I understand that “appropriate” is considered perhaps to have too much of a political charge. However, I do not wholly understand why the noble Lord, Lord Pannick, finds the initial words of Clause 6(2) rather offensive, where it says:

“A court or tribunal need not have regard”.


All that is saying is that they are not obliged to have regard—I do not think it says any more. I personally read no particular charge in it, and I think that the noble and learned Lord, Lord Hope, would agree.

There is something of an irony about these amendments, in that the only way to have real certainty would be to tell the court either to disregard it or to follow it. In a sense, we are dealing with an imperfect situation. We are trying, as the noble and learned Lord, Lord Neuberger, said, to craft something which helps judges by reducing any political element in their decision-making but which—I am sorry to use a political expression—allows our courts to take back control. In order to take back control, I am happy that they should have a great deal of freedom to do so without in any sense involving them in a political decision.

Amendment 56 from the noble Lord, Lord Pannick, and others is of course much longer than the original wording, with three subsections as opposed to one. Respectfully, I say that using words such as “relevant” is only quite helpful, because in any event a court will ignore matters that are irrelevant. I feel similarly about the word “significance”: a court will itself have to decide significance. That of course may offend the political element but, if something is insignificant, the court will disregard it in any event. Although I understand what lies behind this amendment, I am not sure that it really does the trick.

It is not just out of nominative loyalty that I turn to the amendment of the noble Lord, Lord Foulkes, but because he may be on to something. I agree with the use of “may”, which was endorsed by the noble and learned Lord, Lord Hope. I am not quite so sure about “persuasive”, but I will listen to what the noble and learned Lord says. However, I like the succinct nature of the amendment and it seems to me to allow our courts the freedom that we have, as it were, granted them by the decision that the country has made in the referendum, but nevertheless not to compromise them.

[Lord Hope of Craighead]

Does the noble Lord have any reaction to the point made by the noble Lord, Lord Pannick, about the reference to,

“another EU entity or the EU”,

in Clause 6(2) as it stands? Section 3(1) of the European Communities Act 1972 does not mention these and refers only to the European Court of Justice, so it may be that there is no need to refer to these entities and we can confine it to the European Court of Justice.