Criminal Justice and Courts Bill

Lord Hunt of Wirral Excerpts

Monday 30th June 2014 Lords Chamber

[Lord Hunt of Wirral (Con)]

My Lords, first I declare my interests as set out in the register, in particular as a practising solicitor and partner for the last 46 years in an international commercial law firm, DAC Beachcroft. I am also very proud to be vice-chairman of Justice. I am relieved and pleased to see in her place the chair, the noble Baroness, Lady Kennedy of The Shaws. I know that she will deal with some of the points, in particular those just raised by the noble Baroness, Lady Campbell of Surbiton, because Justice is concerned that the Bill raises significant issues in its proposals for the change to criminal and civil law regarding access to justice. I think we all want time to reflect on what the noble Baroness said about Clauses 64, 65 and 66, and we look forward to hearing the Minister’s reply.

I wish to concentrate on two areas, referred to by the noble Lord, Lord Beecham, from the opposition Benches. I would first like ask him why he looked at me so critically when he said “cavalier”. I am not quite sure why he did this. I could respond by saying that it takes a Roundhead to spot a Cavalier, but I would not dream of doing so.

[Lord Beecham]

The noble Lord makes precisely the remark I was about to make. I was not conscious of looking at the noble Lord. A cat, of course, may look at a king. I hope I may look at the noble Lord occasionally.

[Lord Hunt of Wirral]

I am relieved, mainly because I always pride myself on being a master of the single entendre, so I am happy I did not go down that route.

I formally welcome the Bill as an opportunity continually to revise the law. In many respects this House points out, as the noble and learned Lord, Lord Lloyd of Berwick, did once again, that we must be very careful about passing new laws and new provisions, but we must always reflect on how we can improve the existing law while always avoiding the law of unintended consequences. I suppose I could slightly misquote Socrates by saying that good people do not need laws; bad people will always find a way around them. Therefore, we must proceed with caution, particularly when we create new offences.

If I could I will also add my own experience of speaking from the opposition Bench on the Compensation Act 2006, when the regulation of claims management was first brought in. Kevin Rousell has done a magnificent job with limited resources in running that unit. It was always agreed from this Bench by the then Minister, the noble Baroness, Lady Ashton, that the claims management unit within the Ministry of Justice would act as a sort of temporary regulator and eventually the Legal Services Board would take on the responsibility for proper regulation. I know that some of my noble friends have elsewhere urged that it should be the FCA that takes on responsibility, but I think we have to deal with proper and effective regulation of claims management companies.

The claims farmers allege that I have a vendetta against them—and I plead guilty, because I think that some of them are responsible for the most outrageous practices. The noble Lord, Lord Marks, referred to the element of fundamental dishonesty, to which I shall return in a moment. When we get these phone calls and text messages when we have not had an accident, let alone a whiplash injury, urging us to bring a claim and being assured that we can get money and that it will not cost us a penny, I really think that we have to take further measures to regulate the sector.

The Bill is significant and far-reaching, and I want to concentrate first on Clauses 17 and 18. Once again we had a gap in the law. As one of my colleagues pointed out, in effect this is legislation to fill an odd gap, whereby a carer could wilfully neglect or ill treat an incapable patient and be criminally prosecuted for it but commit the same act in relation to a capable patient and have no obvious route to criminal sanction. That was the gap. We are now moving in another direction, where we must be careful about the law of unintended consequences. This new offence—in particular, the addition of a provider level, which is in effect a corporate offence—is a significant addition, augmenting the Care Quality Commission’s regulatory breach channels of sanction and duplicating the Health and Safety Executive’s regulatory sanctions against corporate bodies and directors. So we have to think through how we make sure that we avoid doing exactly the opposite of what is intended.

I urge on my noble friend the Minister the need for clear advice to the sector and the police. In particular, how is it decided that the differences between these three offences, or perhaps even four offences in some cases, should be clearly laid down? How is it to be decided which cases go into which investigative process? A provider could face three or four investigative threats arising from a single event. How well formed is that necessary clarity? I agree with my noble friend that we have to do something; we cannot allow the situation to develop whereby people who are guilty of very serious acts are able to escape unpunished. Equally, we must heed those in the professional organisations who point out that there has to be a need for the Crown Prosecution Service to develop clear guidelines as to the circumstances in which prosecution will follow, to quote the BMA,

“to provide care workers with the assurances they need to encourage incident reporting”.

It is an area on which I hope we will focus when we go into Committee.

I move on to the other part of the Bill that appeared for the first time at the last moment in the other place. Clause 45 is called, “Personal injury claims: cases of fundamental dishonesty”. It is very difficult to disagree that when someone has been fundamentally dishonest they should not be punished in some way. As with claims farmers, we have seen far too much of this dishonesty, so to stop someone who has a valid claim from exaggerating any part of it, which is the deterrent effect of what is proposed, is an admirable intention. But what does it mean to be fundamentally dishonest? What is the difference between dishonesty and fundamental dishonesty? Is it a civil standard of proof? To impose a criminal standard of proof would make it extremely difficult to bring any defence on this basis.

We also have the situation, which I have known in my career as a practising solicitor, where quite often an overzealous claimant lawyer will include all sorts of areas of claim for which the claimant probably never had it in mind to sue and perhaps will link subsequent injuries to the original accident, when they were clearly due to something that happened afterwards and independently. How are we going to deal with a genuine injury that has nothing at all to do with the incident that has given rise to the claim?

I do not say for a moment that we are opening up Pandora’s box, because I strongly support the view that we have to eradicate dishonesty from civil claims. However, we have to proceed carefully and with caution, and there may be a need for clarification and further amendment.

I say this as someone who practises in this area: we do often see genuine claims. However, as many noble Lords pointed out in previous debates, we are seeing far too many exaggerated claims and claims that have no real fundamental basis for litigation. Therefore I particularly want for all those concerned in this area a clear message that dishonesty is not to be tolerated. If that message can be strong enough, we will have achieved something.

Finally, as far as the National Health Service is concerned, we are seeing very substantial claims for future care, some of which dwarf the rest of the claim and which are far bigger and more extensive than I ever experienced when dealing with matters like this, where I often found that the person who was injured was far better off in a hospital that dealt with similar cases—whether it was a broken neck from jumping into a swimming pool or something of that nature—and being alongside people with a similar injury, rather than being allowed to develop a whole hospital around their home.

We have to be mindful of the Chief Medical Officer’s report, Making Amends. It was a long time ago, but at the time we all welcomed it when he said that it was necessary to review again Section 2 of the Law Reform (Personal Injuries) Act 1948. I think that time is now upon us. I also urge my noble friend the Minister to consider, as he looks at personal injury claims of this nature generally, introducing some form of capping, so that much needed money, particularly in the National Health Service, is not diverted into dealing with very substantial claims for future care but is far better directed to the necessary rehabilitation that so many of us have supported for so long.