Civil Liability Bill [HL]

Debate between Lord Mackay of Clashfern and Lord McNally

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

[Lord Mackay of Clashfern (Con)]

My Lords—

[Lord McNally (LD)]

My Lords, I have some trepidation in speaking before a former Lord Chancellor does, but perhaps what I have to say will help. I am grateful to the noble Lord, Lord Faulks, for reminding the House that I was the Minister who took through the LASPO Bill and I have been watching the Labour Front Bench nodding in unison at every word that could possibly embarrass the Government. However, the origins of what we are doing now lie with the last Labour Government, who shared then the growing cross-party consensus that we were becoming a more litigious society, driven by a compensation culture and a determination to have our day in court—the noble Lord, Lord Faulks, referred to Jack Straw’s campaigning on whiplash—and the response to that was the setting up of the Jackson report under Sir Rupert Jackson.

It is interesting to note that one of the reasons for the setting up of the Jackson report under the Labour Government was that the costs in civil litigation were often disproportionate to the issues at stake. Lord Justice Jackson, who has just retired, spoke at the Cambridge law faculty on 5 March 2018 and, reflecting on his reforms, he said that the problem was that,

“Almost everyone perceives the public interest as residing in a state of affairs which coincides with their own commercial interests”—

he might have said professional interests as well.

My locus in this is not as a lawyer—I have told the House before that when I was a Minister I once said to a visiting distinguished American lawyer, “I must explain that I am not a lawyer”, and he said, “Then I shall speak very slowly”—and, given the array of legal advice and talent we have already heard, I tiptoe into this with trepidation. This is based partly on a family experience of a whiplash, which was clearly fraudulent but the insurers thought that the cost of defending was greater than simply settling. That left me with the experience of not only a fraudulent claim but a fraudulent claim which was sustained by the obvious collusion of both the solicitors and the doctor concerned. Therefore, the noble Lord, Lord Hunt, is right to talk about a racket in which many respectable professions are involved. Those overseeing those professions have a duty of care to root out those who are complicit in these frauds.

As I have said, there was a growing cross-party consensus that something must be done. I confess that seven years ago I answered a Question from the Dispatch Box assuring the House of the urgency with which the Government were dealing with the issue of whiplash. I say to my Front Bench and to the noble and learned Lord, Lord Woolf, for whom the affection and respect I have is overwhelming, that I worry his amendment is just another one kicking the problem down the road when everybody else who speaks on it recognises that there is a problem. This has been said on a number of occasions: we are dealing with not the kind of catastrophic life-changing injuries that the noble Lord, Lord Faulks, often refers to when we discuss medical negligence, but the very lowest level of claims where, as the noble Lord again said, many people would not even think of claiming if they were not spurred on by the claims management industry out of its own self-interest.

I fully endorse what my noble friend Lord Marks said about the need for others to take responsibility, not least the industry itself, for fighting fraud and making attempted fraud not worth while. I worry that the legislation says that we need a medical certificate. Somebody said, maybe in a private briefing, that there was one doctor who had a kind of Roneo of letters that he just signed. If you are going to have a medical check in this, you have to make sure that it is not part of the fraud because in the past it has been.

Nevertheless, it is rather sad that we have this collection of amendments. I look forward to the usual forensic dissection of them by the noble and learned Lord, Lord Keen. There are some good and some not so good ideas in there, but I do not want us to see something that becomes a wrecking amendment when we have waited for far too long for this. Perhaps because I am not a lawyer I do not share the fear from the noble and learned Lord, Lord Woolf, that we are setting some terrible precedent that will weaken the role of the judiciary. I do not see that at this very low end of the process. I hope that, in our usual way in this House, we can extract some of the good ideas that have been put forward but not lose the sense of urgency with which the Bill, at last, tries to address a real problem in a practical way.

[Lord Mackay of Clashfern]

My Lords, I will speak primarily about the amendments that my noble and learned friend Lord Woolf has proposed. This part of the Bill is concerned only with claims for pain and suffering. It has nothing to do with any other form of loss. Other forms of loss are easily quantifiable, but loss arising from pain and suffering is a development of the law that has very little in the way of structure.

When I was a junior at the Scottish Bar long ago these matters were often the subject of jury claims. Pain and suffering was an element in a jury claim. The judges were warned against suggesting a figure to the jury. You can imagine how difficult it was to provide a summing up that dealt with that. I remember well that one of the senior judges that I knew had a formula in which he said, “This is a sum to mark your sense of the pain and suffering that the claimant has suffered”. That was done by juries; it was before the time that judges were involved in this, and therefore it was a jury question. It has all the character of a jury question in the sense that there are no rules that I know of—none has so far been quoted—to determine the amount to be given. How has that been done? As my noble friend has just quoted from the judicial guidance, it has been done by collecting what others have decided in other cases. There is nothing specifically judicial about that. I think almost any of us could manage to deal with that; you do not need to be a very experienced judge to do that kind of calculation.

Sanctions and Anti-Money Laundering Bill [HL]

Debate between Lord Mackay of Clashfern and Lord McNally

Ping Pong (Hansard): House of Lords
Monday 21st May 2018 Lords Chamber

[Lord McNally (LD)]

My Lords—

[Lord Mackay of Clashfern (Con)]

My Lords, I want to raise with the Minister the question of how the amendment we are discussing can come into force. It is not covered by the existing list of sections that come into force when the Bill receives Royal Assent. Therefore, it requires to be brought in by regulation. If it is correct—and I must say, I assume that the authorities who have spoken on it already are certainly correct—that it is contrary to the legal rights of the territories, it may be that the regulations seeking to bring this provision into force would be challengeable by judicial review.

In any case, we know from experience that the mere fact that something has been put into statute does not mean that it will happen; if it is subject to being brought into law by a ministerial action, it may never be brought into law at all. I have fairly profound experience of that myself. Certainly, considerable consideration of this by the law officers of the Crown would be required if the Government were going to make an order under the commencement provisions in respect of something that is legally challengeable.

I raise this question as a matter of justice, and justice of course requires that justice be done to all. One of the difficulties with this provision is that attempting to do justice in these territories may lead to injustice to these territories, in that the business they have will go to other places where there is no such regulation, doing nothing to help the ultimate situation and in fact bringing into effect a different type of injustice. Justice is a difficult thing to operate across the world, as we all know, and it may not be easy to effect it in this situation.

My main point is on the commencement provision and the extent of the Bill, which is subject to Privy Council regulation. There is a fair amount to be done before this becomes law.

[Lord McNally]

My Lords, I gladly gave way to the noble and learned Lord, Lord Mackay, because I know from long experience that his contributions are always of great help to the Minister at the Dispatch Box, as they were for me for a number of years.

The overseas territories cannot say that they have not been represented in the House this afternoon. There have been passionate speeches, not least by the noble Lord, Lord Naseby. I am not going to be so hypocritical as to advise him that he should not challenge the wisdom of the other place, having only a couple of hours ago extolled to your Lordships the very virtues of this House occasionally challenging the views of the other place.

Following on from the intervention of the noble Lord, Lord Judd, this has to be put in context. The noble and learned Lord, Lord Neuberger, said that we had no direct interest in this legislation, but when places are called the British Virgin Islands or the British Overseas Territories, we have a reputational responsibility we cannot avoid. If we do, we will damage our reputation. It is therefore right to look at this issue.

I was Minister for the Crown Dependencies—I see the noble Lord, Lord Faulks, nodding—and my noble friend Lord Beith and I worked closely together precisely to avoid the impasse we have now reached. We recognised that we had to work out the problems so that Britain could take on its proper responsibilities for these matters without doing too much damage to the dependencies which were trying to catch up. The way it has worked is one of the reasons why the dependencies qualify so well in the temperature-taking of various international organisations.

However, we have to go beyond the technicalities. Much of the cynicism, particularly among young people, is caused by issues such as the Panama papers and other exposures. Yes, the City of London has to take responsibility for the obscene avoidance of taxes and its co-operation with criminality in moving large amounts of money around in a dark economy. It is that which produces the cynicism that undermines our democracies. Ever since I have been in politics we usually blame the French, but we cannot simply use the argument that if we stop doing it, the French will do it. That is not an excuse for not doing the right thing and trying to set standards. David Cameron was quite right in trying to do this.

It is quite clear, not least from the interventions of the distinguished jurists we have in this House, that there is a problem. The solution was given by the noble and learned Lord, Lord Brown. My opinion of the Minister is boundless—he is going to have a couple of tough years ahead—and it would give him an opportunity to engage with the overseas territories to see whether the full implications of this legislation can be avoided by co-operation and initiatives, rather than the kind of process suggested by the noble and learned Lord, Lord Mackay. We have to see this in the context of a general public who are looking with nausea at what seems to be the ability of this money to find a home outside proper accountability.

I refer the noble Lord, Lord Naseby, to the briefing from 12 highly respected charities, and I understand the passion of the noble Lord, Lord Judd, in defending Oxfam. Although he did not name the Members of the other place, I will do so. In fact, Margaret Hodge and Andrew Mitchell are very well respected for their knowledge of and interest in these areas. We have to realise that the other place has been neither impetuous nor ill-informed in what it wants to do. But within the wider moral context set out by the noble Lord, Lord Judd, I hope that the Minister will find this debate useful in the very difficult diplomatic task that he now faces.

Data Protection Bill [HL]

Debate between Lord Mackay of Clashfern and Lord McNally

Report: 1st sitting: House of Lords
Monday 11th December 2017 Lords Chamber

[Lord McNally (LD)]

My Lords, I follow with some trepidation my successor at the Ministry of Justice, the noble Lord, Lord Faulks. I do so because, for the three years before he took up his office, I was the Minister of State at the Ministry of Justice who had responsibility for the negotiations around the GDPR in its early stages. It is interesting that this debate reflects very much the early gestation of the GDPR. At that point, there was a very clear division between what I would describe as the Anglo-Saxon approach—which the noble Lord, Lord Faulks, has expounded—and the continental approach. I suspect that is something that has bedevilled our approach to law-making in the EU over 40 years.

The truth of the Anglo-Saxon approach is this: of course we believe in these things, and if we look here, there and everywhere we will find that they are all covered; but hold that against points made by people who have only very recently experienced the power of the state and its abuse of the law by the Stasi and others. They want a much clearer definition that can be clearly observed. Thanks mainly to the hard work of my noble friend Lady Ludford in the European Parliament, we got a GDPR that was not overprescriptive in that direction but satisfied those very real concerns. We are at the same point again in this Bill.

Of course the noble Lord, Lord Faulks, is undoubtedly right about the various guarantees found in this and other legislation, but the politician in me says that if we are to get the adequacy we want in due course, we must not—to use a phrase of an old mentor of mine, Joe Gormley—build platforms for malcontents to stand on. We must not leave in everybody’s mind the question of why they did not want this in the Bill, when it is such a clear statement of their beliefs and our beliefs.

To revert to my old job as a political adviser, my advice to the Minister is this. In doing what he has been asked to do—to withdraw the amendment—he should work with the amendment tabled by the Opposition and bring through at Third Reading something that will cover our Anglo-Saxon desire to see these things in law but also reassure in a very political way those who have genuine concerns and want to see us carry out and stand by these responsibilities.

[Lord Mackay of Clashfern (Con)]

My Lords, I find this situation slightly difficult because it looks to me as though what is wanted is to say that there is something in the charter that is not already in the Bill; otherwise it does not seem very much to the point. If it is already in the Bill, the two proposed new clauses—which are not intended to be additional but optional—are unnecessary. If it is not in the Bill, surely we should put it in the Bill and not leave it. I do not know whether I am Anglo-Saxon, Celtic or what, but I do not distinguish between these various matters. As for being political, I am not sure that I want to be that either.

I want the Bill to be as precise as it can be in a difficult area. Both the government amendment and the opposition amendment strike me as vague. I will say a few words about the opposition amendment because the government amendment, as the Minister says, is not intended to confer any new rights. That is a clear situation. Proposed new subsection (5) of the opposition amendment states:

“Restrictions on the rights of a data subject and any limitation on the exercise of the right to the protection of personal data under this section must be provided for by legislation”.


I would like to see it stopping there. I do not see how you can start to judge the legislation that has already been passed by considering whether it respects the essence of that right. If it does not, it should not have been passed as legislation.

Proposed new subsection (6) has the same effect. It states:

“Subject to the principle of proportionality, the restrictions and limitations under subsection (5)”—


these are restrictions brought in by statute, according to subsection (5)—

“may be made only if they are necessary to support a democratic society”,

and so on. I think I know where that comes from. The point is that if that is right, it should not be in the legislation. This is a requirement about the nature of the legislation which, on the theory of proposed new subsection (5), has already been passed.

It is not appropriate for the Bill to try to control legislation which, according to this, does not seem to have been passed, unless it is already in this Bill, in which case we should accept it.