Covid-19 and the Courts (Constitution Committee Report)

Lord Thomas of Gresford Excerpts

Wednesday 23rd March 2022 Grand Committee

[Lord Thomas of Gresford (LD)]

My Lords, I congratulate the noble Baroness, Lady Taylor of Bolton, and her committee on producing an excellent report in this field.

First, I pay tribute to the prison and court staff who kept the court system going through the pandemic to the extent that they could. It was particularly stressful for them because, with the lack of any contingency planning, they had to cope with new ways of working and new technologies. There was no central direction in the days leading up to 23 March 2020. One by one, Crown Court judges had to take individual decisions on whether to allow jury trials to continue based on inconsistent information and advice. There was no governmental risk planning; if there was, it was confined to Exercise Cygnus, which of course dealt with influenza.

In the weeks that followed, piecemeal solutions were put together jurisdiction by jurisdiction and court centre by court centre. It took months before there were any proper co-ordinated approaches. The High Court and the Court of Appeal coped but Crown Courts, where the bulk of the backlog of cases lies, did not. The digital case system in the Crown Court, which could be a brilliant resource to allow cases to be managed and prepared properly, was held back by the problem of getting jury trials up and running at all.

Some high-profile cases were able to go ahead. The trial for the murder of PC Andrew Harper at the Central Criminal Court led the way, but that case required huge resources involving a remote link to defendants in custody elsewhere. Only a tiny number of cases could be handled in that way.

Nightingale courts in a variety of strange locations—cinemas, theatres, hotels and even a football stadium—were a modest success but were limited because they could not deal with custody cases. You could not bring a defendant to court in a custody case. Custody time limits were extended by statutory instrument from six months to eight months to allow for the pandemic but courts routinely extended custody time limits further, beyond that time period, finding that the pandemic was “good and sufficient cause” for an extension. Eventually, the Divisional Court ruled that this should be followed nationwide in a case of judicial review.

The effect of this was that the defendants remained in custody way beyond the statutory time limit because the Crown Courts could not cope and could not put on trials for them. Now, as the courts begin to recover and tackle the backlog, priority must be given to these custody time limit cases. Other cases, often including serious sexual offences, which have such an effect on the victim, are being vacated from the lists as courts try to catch up on cases where an unconvicted defendant is languishing in prison on remand.

Fundamentally, the pandemic has exposed the chronic underfunding of the criminal justice system, as the noble Baroness, Lady Taylor, pointed out, supported by the noble and learned Lord, Lord Hope. There are not enough judges, nor enough courtrooms, nor enough court staff. Facilities have been shown up as old, defective, inefficient and unkempt; indeed, some were exposed as inadequately clean. Public Health England, which was brought in as part of Exercise Cygnus, was not impressed.

Since the courts resumed, there has been a problem with barristers becoming unwell, just as we in the Lords now find our colleagues falling by the wayside. There is a cohort of experienced criminal juniors who are struggling to cover the work. Some of them are voting with their feet. It is too stressful; the hours are too long and the courts are often not a pleasant working environment.

Paragraph 30 of the report recommends an increase in legal aid to match need. That is a very important finding. The report before us should be read with Sir Christopher Bellamy’s more recent review of criminal legal aid, published last November, which exposed the chronic underfunding that is undermining the profession. The Government have offered to implement at an unspecified point in future the minimum recommendation of the Bellamy review, which is an immediate £135 million investment in criminal legal aid. However, to date, there is no indication of how the money will be spent and the headline figure masks the reality. It is for all parts of the criminal justice system, not just the Crown Courts.

I was impressed by the speech of the noble Lord, Lord Howarth of Newport, a moment ago. He referred to the statutory instrument about legal advice that we debated in this Room not so long ago. Legal advice used to be provided on a green form: legal aid for legal advice was a way in which people could be pointed in the right direction for their problems to be solved. What we had last week or the week before was a statutory instrument to bring about a pilot scheme that will last two years and so cannot come into effect until 2024. That is wholly inadequate. We need to research whether this is required. I remember from my early days that more than 1 million people had legal advice on legal aid without it causing any huge problem.

The criminal Bar has decided that it is too little, too late. On 11 April next, the Criminal Bar Association is going back to a policy of “no returns”; that is, not to provide cover for a barrister who finds himself, by reason of the current deficiencies, listed in two courts at once and has to return his brief to someone else. It is not a strike but a work to rule, and it is planned for next month.

I know that the criminal Bar does not want to damage the system but to improve it. Unhappily, the criminal justice system has not been given sufficient priority in the nation’s recovery from the pandemic—if indeed there is such a recovery as yet.

I heard the noble and learned Lord, Lord Hope, talk about remote juries in cinemas and the noble Lord, Lord Faulks, talk about whether jury trials should exist at all. I have some experience of juries and of jury trials as an advocate. I do not believe that it is right to put a barrier between a jury and what goes on in court. It is a strange thing, but in the whole of my career, I have had only one case in a jury trial where I thought the jury got it completely wrong. I think juries do get it right and they do understand.

When it comes to special juries, we have heard a lot about that in the past, particularly in relation to financial fraud. I have always thought that I would not have confidence, never mind the broader public, in a jury composed of bankers trying a banker for fraud; it is like a jury of policemen trying a policeman for an assault on a member of the public. The whole thing about the jury system is that people come into the jury box with their various life experiences and sit there and listen. They may not follow every point of law that is put to them, but they are part of it. It is particularly important that juries have the confidence of the people of this country. I can well imagine that, if we were to remove jury trials in serious cases, that confidence would not last very long.

There is some research from a very long time ago on the jury system. The same case—obviously, it was not a real case—was put before various juries, one of 12, another of seven and another of, I think, 15. The research showed that, with a jury of 12, the issues in a case are more distinctly and completely covered than with different numbers. I have every confidence in juries, but it is a topic that I think we shall debate long and hard at some future time.

No-fault Divorce

Lord Thomas of Gresford Excerpts

Tuesday 15th March 2022 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, I do not make any apology for the mediation voucher scheme; it is important to encourage mediation in family law, as indeed across the civil justice system more generally. However, we have committed to exploring the financial provision aspects of divorce after the Act comes into effect. I cannot give the noble Baroness a timetable, but I assure her that we will look at this as a matter of principle and will not be bowed down by vested interests, whether legal or otherwise.

[Lord Thomas of Gresford (LD)]

Following the reference made by the noble Baroness, Lady Deech, to vested interests, I ask: have the Government had representations from solicitors practising in this lucrative area, or from members of the family Bar, to keep fault as an issue in financial provision proceedings? If so, what was the Government’s response?

[Lord Wolfson of Tredegar (Con)]

My Lords, I have not had representations from those entities, but I dare say that the department might have done. We get representations, frankly, from all areas of the legal profession, and indeed more broadly, all the time. We will look at this issue on its merits. We have set out that we want to make sure that financial matters are dealt with as amicably as possible. The divorce Act will be a very good start and, as I say, we are encouraging it through family hubs, mediation vouchers and many other ways too.

Early Legal Advice Pilot Scheme Order 2022

Lord Thomas of Gresford Excerpts

Thursday 10th March 2022 Grand Committee

The essential point is that this will enable us, we hope, to have an evidence base to allow us to determine whether a service as set out in the pilot would provide meaningful benefit to individuals and local and central government. We think this is the best way to proceed so we can obtain that evidence, and I commend the instrument to the Committee.

[Lord Thomas of Gresford (LD)]

An evidence base? The clue to these proceedings was in the Minister saying that they are looking for savings to the public purse. I think the Treasury is definitely behind this.

When I was a humble solicitor in the 1960s, I used to fill in a green form for people to give them advice. In 1973, a simple green form scheme was introduced and in 1994 the noble and learned Lord, Lord Mackay of Clashfern, then Lord Chancellor, described it as

“an important means of access to legal advice for people on low incomes. In 1993/94, over 1,600,000 people received help from the … scheme.”—[Official Report, 3/11/1994; col. WA 73.]

I fail to see why we now need a highly expensive two-year study to find out whether there is a need for such advice. It is obvious. It was in 2013 that the coalition Government, I am afraid, reformed the scope of civil legal aid in the LASPO Act, including, as the memorandum tells us,

“the removal of funding for early legal advice and support for most social welfare law.”

Some reform that was.

As for research, the Explanatory Memorandum states in paragraph 7.3:

“While research by organisations such as Citizens Advice, Shelter, the Law Society and the Equality and Human Rights Commission was persuasive in suggesting a link between early legal advice and downstream benefits, officials in the department concluded that their findings did not robustly quantify the financial savings for government, nor did they account for the costs of individuals whose problems would not be resolved with early legal advice”.


So there has been considerable research by NGOs, all pointing the same way.

The Government produced their review in 2019, and it has been knocking about for three years before anything was done under it. There will now be a two-year pilot scheme, very limited to 1,600 individuals in Manchester and Middlesbrough. Some five years will elapse from the review that the Government themselves carried out.

The Government describe the pilot scheme in this way:

“the Ministry of Justice is commissioning a process, impact, and value for money evaluation to support the effective delivery of the project, and the generation of robust impact evidence. An initial phase ahead of pilot delivery will be an in-depth feasibility study to fully assess and recommend a robust, practical research pilot and evaluation design”.

It is

“the gold-standard approach to assessing impact, highly novel in the Access to Justice policy area.”

These very helpful answers were provided to the Secondary Legislation Scrutiny Committee, whose questioning of the Ministry of Justice was admirable and full and produced a lot of information that I need not go into. But there we are: gold-plated research, which means that people whose needs were seen in 2019 will have a five-year wait before anything happens, and we do not even know whether it will happen then because it will depend on the evaluation of the gold-plated people of the project.

We currently face a great rise in deprivation that will happen to people in this country. The situation as we know it is dire and will get worse, with price rises and additional taxes. Now is the time for the people in this category—the people I used to advise in those far-off days when we did not live in a very rich area—to be given support, not in 2024 and thereafter. This is a disgrace.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the noble Lord, Lord Thomas, has given us an historical context for what we are receiving through this statutory instrument. We of course support it, because it goes some way to ameliorating the position we have had since the massive cuts in 2013 with LASPO. The noble Lord has made the broader points, with which I agree.

I want to focus on two particular questions, one of which was asked by my honourable friend Afzal Khan when this matter was debated in the House of Commons. He contacted the Greater Manchester Law Centre and the Law Society there, the only two welfare benefit and legal aid providers in Manchester city and the only two debt legal aid providers in Middlesbrough, one of which also advises on welfare benefit law. He made the point in the House of Commons that the scheme will undoubtedly create an increase in demand. There was scepticism, from that limited number of providers, whether the three-hour limit is enough in itself and whether the pay is enough for those three hours. How, given that there is very likely to be an increase in demand, will the ministry respond?

The Minister used a couple of phrases that I thought were appropriate when he talked about the problem of the clustering of cases around a multitude of different contexts—housing, welfare and the like—and about the problem of escalation. From different parts of our working lives outside this House, we all know that both of those things are right and true, both in the housing context and the criminal justice context as a whole—something I know from my work in magistrates’ courts.

The Minister said that there was limited evidence of financial benefit from early intervention. The noble Lord, Lord Thomas, expressed extreme scepticism, and I agree with him: there is a multitude of reports about the benefits of early intervention, and I have lost track of the number of early-intervention pilots that I have seen on the criminal justice side that have fallen by the wayside for various reasons.

I will raise another question, which comes from the Secondary Legislation Scrutiny Committee report’s appendix 2:

“Further information from the Ministry of Justice on the draft Early Legal Advice Pilot Scheme Order 2022”.


Question 1c is as follows:

“The wording of the SI indicates that those who are selected but receive no advice will also be informed that they are part of the pilot—will that control group also be required to fill in any evaluation or description of their experience? Otherwise, they will be just like any other Housing benefit claimant—what marks them out?”


That is to say, what marks them out as different in the data collected? The answer is:

“The pilot is seeking to develop robust quantitative impact evidence, and so how to best collect control or comparison group evidence is a priority issue to be examined. The specific criteria and process for identifying and engaging the control or comparison group is to be determined based on feasibility work to be undertaken by the independent evaluator.”


I did not read that out very well, but I understand what it means. My experience on the family court side is that a large number of people drop out of the system. Advice is made available and people start accessing it, but then the process becomes difficult and tiresome and people just stop engaging.

So, arising out of that question and answer, my question to the Minister is: will there be an evaluation of people who start the process but do not finish it? That is part of the overall cost, and it is also a demonstration of the impact or otherwise of these schemes. As I say, from my experience in a different context—family law—a very big part of the overall picture is the people who do not pursue the advice and support that are available to them because doing so is just too burdensome.

Judicial Review and Courts Bill

Lord Thomas of Gresford Excerpts

Committee stage
Thursday 24th February 2022 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

The noble Lord is absolutely right, but I was seeking to make the point more broadly. I will come to the court procedures, but the noble Lord is right: Amendment 38 seeks to ensure that, when people go to pre-court dispute resolution—I think everybody in the Committee wants to encourage that—if the case does not settle in whole or even in part, they can seamlessly transition to the online court procedure. They do not have to repopulate forms or send in new documents. Of course, I emphasise the mediation bit of it remains without prejudice, obviously, that is fundamental to mediation. Amendment 38 is to ensure that there is a set of protocols, essentially, to make sure that we can have that seamless transition. It is part of enabling people to vindicate their legal rights, either by way of an out of court settlement, with which they are satisfied, or by migrating into the online court space.

[Lord Thomas of Gresford (LD)]

May I assist the Minister with an illustration? Four weeks ago, a close relative was owed a significant sum of money and used dispute resolution procedures. He filled in a claim form online, and the debtor filled in a claim form also online. There was a half-hour hearing on the telephone with a judge who reserved his judgment and fortunately found judgment for my relative very quickly after. It shows that it can be done. In that sort of circumstance, it saves days of problems in filling out written documents and attending at court.

[Lord Wolfson of Tredegar (Con)]

I am grateful to the noble Lord for his intervention. Absolutely, this is about enabling people to vindicate their legal rights. The Government are conscious—we put a clause in the Bill specifically for this reason—that we need to safeguard those who cannot get online, either because they do not have proper broadband or proper facilities or because they are incapable for whatever reason of using computers.

I anticipated that it would be the noble Lord, Lord Ponsonby, who spoke, so I apologise to the noble Baroness, Lady Chapman for that. She made absolutely the right point. We agree that assistance may well be needed. Although we do not accept Amendment 39, that is because the Bill already places a duty on the Lord Chancellor to arrange for such support. Extensive measures, which I will mention, have been put in place to make sure that assistance is provided to those who need it. We need to distinguish between online procedures, that is, the form-filling applications, and an online hearing. The two things are quite different.

So far as online procedures are concerned, I recognise that some users may find it difficult to use digital services. Therefore, I should make it absolutely clear that there will be no change in the current options to use paper forms and processes. As the noble Lord, Lord Marks, says, the cardinal principle is that nobody will be disadvantaged.

For those who choose to conduct proceedings using paper routes, they will be available in the same manner as at present. At HMCTS, we are improving and streamlining the paper routes and are committed to making sure that the level of service is the same no matter whether litigants are engaging with the justice system through online or offline routes. We will therefore be offering substantial support for those who want to use online routes and who can do so with support.

--- Later in debate ---

That was my best attempt to be as succinct as possible, because I know other Members of the Committee will want to say more about each of the new provisions in this group. For now, I beg to move.

[Lord Thomas of Gresford (LD)]

My Lords, the office of the coroner has evolved over 1,000 years since William the Conqueror introduced it. There were too many dead Normans lying about attacked by Saxon villains. The coroner inflicted a fine called murdrum on a community where a dead body was found. The deceased was presumed to be Norman under the presumption of Normanry, unless the community, by the presentment of Englishry, could avoid the fine by showing that the deceased was English, in which case it did not matter.

The problem is that traces of these ancient procedures continue to dog the present and to provide cover to government not to recognise the realities of coroners’ proceedings today. Coroners today will tell you that their duties are confined to determining who the deceased was and how, when and where they came by their death. But it is not as simple as that. The thread that runs through this chapter on coroners in this Bill is the lack of concern for the interests of the bereaved, particularly the involvement of the family. The Commons Justice Committee reported last year, and Section 3 of its report is entitled:

“Putting bereaved people at the heart of the Coroner Service”.


This Bill does not even begin to do that.

The evidence given at an inquest and the decision of the coroner or a coroner’s jury has many consequences. When the family of the deceased arrive at the coroners’ court, they will frequently find that skilled advocates are representing a hospital, the police if there has been a death in custody, the insurers of a potential defendant in a road accident or insurers where there may be defects in a stadium, a block of flats or other structure. The evidence given on oath before the coroner may be crucial in determining an allegation of assault or negligence or, where the suggestion is suicide, whether life insurance will be paid out to the dependants. A finding in a coroners’ court frequently determines whether the dependants of the deceased can settle a claim for compensation quickly and without stress or whether they have to go through the agony of a court case.

I turn to Amendment 40. Currently, as the noble Baroness, Lady Chakrabarti, said, the coroner can discontinue an inquest only after the results of a post-mortem have been delivered to him unless he suspects a sudden and violent death or a death in the custody of an organ of the state, such as the police. Clause 38 of this Bill now extends his discretion to discontinue by the use of wide words: if the

“cause of death becomes clear”

before inquest. Under this Bill, all the family receive is a statement of reasons. The purpose of this amendment is to ensure that, before the coroner makes his decision to discontinue, he has made all proper inquiries, and ensured that there are no ongoing investigations into the death, such as a hospital inquiry, and crucially that the family have been given the opportunity to make representations and actually consent to the discontinuance.

I think the Explanatory Notes are disingenuous when they suggest that an inquest adds to the distress of the bereaved family. Certainly, there is distress, but a decision to discontinue, taken above their heads and without their participation and consent, may very well cause much greater distress.

I come to Amendment 41. We are all aware of the struggles of many families to obtain an inquest through the courts by way of the discretionary remedy of judicial review. Amendment 41 provides for rules to establish an appeals process for those who disagree with the decision to discontinue. To succeed in the Bill as currently drafted, they would have to establish that the cause of death is not clear. What does that mean? What may seem clear to the coroner may not be clear to the family at all. If Amendment 40 is carried, the need for appeal would be considerably lessened since all interested persons known to the coroner would have been notified of his intention to discontinue prior to the inquest and would have consented to it. Appeals could then be brought only by interested persons who had been overlooked. That is possible but very rare.

I turn to Clause 39 and Amendment 42, where the theme continues. The decision of a coroner to determine that a hearing is unnecessary and may be determined in writing should also involve the consent of the bereaved: put the bereaved at the heart of the coroners service. Proposed new subsection (2)(a), to be inserted by Clause 39(2), requires the coroner to invite representations from known interested parties before he makes his decision, while (2)(b) deals with situations where no representations have been made and (2)(c) deals with situations where there is a disagreement between interested parties. That is what the Bill talks about, but nothing is contained in the clause about the position where all the interested parties oppose the coroner’s notification of his intent to determine the issues in writing on the papers, much less a requirement that they all consent. Amendment 42 would deal with those omissions.

Amendment 43 to Clause 40 again seeks to involve the family in the decision to hold remote inquests. First, they should consent. Secondly, the coroner should be assured that such a hearing is in the interests of justice, in particular that the issues are not too complex and interested persons are able to use to technology involved. Thirdly, the coroner should give his reasons in writing. However, a remote hearing has this disadvantage: the family are not open to the support services that would be available at a live hearing. The Commons Justice Committee recommended at paragraph 66 of its report that

“local volunteers in the Coroners’ Courts Support Service”

use their skills to assist the bereaved and commented that that service is not centrally funded, nor available everywhere.

Amendments 44 and 45 emphasise the public interest in inquests. If held remotely, they should not be held simply by telephone and absent the public. The rules require that inquests be held in public, except for reasons of national security.

Amendment 50, after Clause 42, is an amendment in my name to delete Rule 27 of the 2013 rules, which states:

“No person may address the coroner or the jury as to the facts of who the deceased was and how, when and where the deceased came by his or her death.”


I have been present at a number of inquests and have always found this to be quite extraordinary. Deborah Coles, the director of Inquest, told the Justice Committee about her experience of a culture of “defensiveness” on the part of public bodies:

“Very often, those lawyers are working as a team to try to reduce the scope of the inquest, to try to limit the number of witnesses or argue against questions being left to a jury, if indeed there is one, or argue against a coroner making a prevention of future death report … There is much more concern for reputation management, rather than a meaningful search for the truth.”


In my experience, it is much the same with employers who seek to limit their liabilities. “Well,” you might say, “so much the better if they cannot address the coroner.” However, they often make submissions on facts dressed up as submissions on process. Where both sides are represented, the coroner should be helped by submissions made by both sides to clarify issues of fact and make points about the evidence that has been heard; those points may be crucial to the issue of liability. Whether both sides are represented and there is equality of arms is a matter that we shall come to in the debate on the next group.

[Lord Beith (LD)]

My Lords, I agree with many of the points my noble friend has made. He made a particularly forceful point about addressing the jury at an inquest. It seems an absurdity that the law is in that state; I will come back to the encrusted historical nature of the law on coroners in a second.

I will add to what my noble friend said, although it might seem a slightly conflicting point. It is simply that the circumstances can be very different in so many of these cases. From my experience of inquests and dealing with families going to inquests, I have often come across the circumstances so vividly described by the noble Baroness, Lady Chakrabarti, of those who do have any equality of arms and are dealing with a major public sector body or a private organisation with great resources. There are other families for whom an inquest is just another liability they do not want at a time of maximum grief. If there are no grounds for holding an inquest or drawing them into that procedure, we do not want to make life more difficult for them at a time of very real grief.

--- Later in debate ---

I turn to Amendment 41. Interested persons who are not content with a coroner’s decision to discontinue an investigation already have the right to challenge that decision through judicial review or, in certain circumstances, through application to the High Court with the authority of the Attorney-General. So, we do not think an appeals process is appropriate, because the family is not a party in the sense that we use that word when we are talking about adversarial litigation. Coroners are inquisitorial, not adversarial, and we do want to preserve that. That is something that the Chief Coroner, I know, is very focused on. We do not want coroners’ inquests to become adversarial proceedings; we want them to remain inquisitorial.

[Lord Thomas of Gresford (LD)]

The Minister has said we want coroners’ inquests to remain inquisitorial. In practice, they are adversarial. The ancient position of a coroner does not allow the proper adversarial safeguards to be in place. I would like the Government to rethink that position and consider whether it is appropriate at this time.

[Lord Wolfson of Tredegar (Con)]

I can accept two points there. I can accept that I and the Government will reconsider it. We certainly will think about it. This is a bit of a chestnut point, if I may say so; it has been discussed on a number of occasions. But the Government’s current position is that we want coroners’ inquests to be inquisitorial and not adversarial. Secondly, I accept, as a consequence of that, that we do not have adversarial safeguards. But that is consequent on the first point; the inquests are not adversarial.

There is a real problem, I would suggest, in changing the nature of a coroner’s inquest to being adversarial. I accept there will be particular inquests where it is appropriate for people to be legally represented. I do not want to mix the groups up, but we will discuss in the next group the issues of legal aid, exceptional case funding, et cetera. But the central fact is that the inquest is there to determine who the deceased is, where he died—I will say he—when he died and how he died, but not why he died. That is an important point.

--- Later in debate ---

[Baroness Chapman of Darlington (Lab)]

My Lords, with the permission of the Committee, my noble friend Lady Chakrabarti and I have had a conversation and, in order to move things along, we have agreed that I will speak to her Amendment 49 as well as Amendments 47 and 48.

Having listened to the Minister’s response to the last group, I am incredibly disappointed at the lack of willingness to engage on the issues we were discussing. I really do not hold out much hope on this group, but these are matters that are of such importance. We have tried pushing this issue in the past via other Bills. Perhaps Covid and perhaps just more understanding and the work of Inquest are getting us to a point where the pressure to resolve this problem is increasing substantially. I know that the Minister understands the point we are trying to make. I get that he has a position he needs to defend, but he understands where we are coming from, so it would be welcome if he could try to do something through this Bill to try to improve the situation for bereaved families at inquests.

Amendment 47 would ensure that bereaved people, such as family members, are entitled to publicly funded legal representation at inquests where public bodies, such as the police or hospital trusts, are legally represented. Amendment 48 would remove the means test for legal aid applications for legal help for bereaved people at inquests. Amendment 49 would insert a new clause that would bring the LASPO Act into line with the definition of family used in the Coroners and Justice Act 2009.

The problem that we are getting at with these amendments is well understood. There are plenty of examples to which we can all refer. This is fundamentally about fairness. I pay tribute to the work of Inquest—we have referred to that organisation a couple of times—which has worked so hard on more than 2,000 cases, with 483 families currently receiving its support.

People who die in police custody, prison, hospital, a care home or a disaster such as Grenfell or Hillsborough need support in order to secure effective understanding and scrutiny of what has taken place. At Second Reading and again just now, the Minister said that the state did not need to fund representation for families as our system is not adversarial. I do not want to go through the whole argument again, but it is just nonsense. If relatives have to fight to discover the truth about what has happened to their loved one, with lawyers putting events in a way that suits the institution and with points that are contestable not allowed to be contested, that is in effect adversarial. The family’s desire to uncover the truth and the institution’s desire or need to conceal it, or to be insufficiently curious about discovering what has happened, are competing aims.

The two parties—I am not going to get into what and what is not a party: we know what we are talking about—might not be adversaries in a formal legal sense, and we understand that, but their competing, different interests mean that there is an inequality of arms which results in injustice for a bereaved family. That is what is happening. I do not believe for a minute that the Minister thinks I am wrong about that; it is just that at the moment he does not feel able to move the Government forward to do something about it.

Inquests are intended to seek the truth and to expose unsafe practices and abuses of power. They are about learning, so that lessons can be taken and future deaths prevented. This opportunity to learn is undermined by the pitting of unrepresented families against multiple legal teams defending the interests and reputations of state and corporate bodies. Public bodies have unlimited access to legal representation at public expense. Too often, families have absolutely nothing. At one of the most difficult periods in a family’s life, they are unrepresented.

Legal aid is granted under the Government’s exceptional funding scheme only if it is considered that there is a wider public interest in the inquest or if it is an Article 2 inquest, where a death was in state custody or it could be argued that the state failed to protect someone’s right to life. It must also meet the financial means test. Removal of the means test in these cases will be helpful, but given that asking people to demonstrate Article 2 qualification is such a high bar, this will not be sufficient to correct the injustice that many families are experiencing now. The evidence for change is completely overwhelming. I hope the Minister will not rely solely on the adversarial/inquisitorial argument. Frankly, it is beneath him. I hope that he will feel able to persuade his colleagues of the need for change. I will say no more. I think that is sufficient to make the point today, but I do not see a situation where we will not come back to this on Report or in future Bills. I gently suggest to the Minister that we have a Queen’s Speech coming up. This is such a problem for the coroners service across the country that it might be worth a Bill in its own right. We could then do justice to the service and to the experience of bereaved families. We are not doing so at the moment.

[Lord Thomas of Gresford (LD)]

My Lords, in the mists of time I was articled to Maurice Evans, who was the coroner on the inquest of the 266 miners who lost their lives in the Gresford disaster. The mine owners were represented by Hartley Shawcross, later the chief prosecutor at Nuremberg, Attorney-General in the Attlee Government and after that a very distinguished Member of this House. On the other side for the miners there appeared pro bono Sir Stafford Cripps, who later became the Chancellor of the Exchequer in the Attlee Government. There was equality of arms there. That is what it means, that is what it is about and that is what these amendments are about.

Inquest has very helpfully set out a schedule to its briefing in which it outlines what representations have been made over time. In 1999, Lord Macpherson in the Stephen Lawrence inquiry said:

“That consideration be given to the provision of Legal Aid to victims or the families of victims to cover representation at an Inquest in appropriate cases.”


That is 23 years ago. The Corston report and the review led by the noble Lord, Lord Harris, made similar recommendations. His Honour Judge Sir Peter Thornton QC was the first Chief Coroner appointed and I knew him very well; he was in my chambers. He made his report in 2015-16 and said:

“The Chief Coroner … recommends that the Lord Chancellor gives consideration to amending his Exceptional Funding Guidance … so as to provide exceptional funding for legal representation for the family where the state has agreed to provide separate representation for one or more interested persons.”


You could actually take that and make it the amendment we are seeking to put before the Government. Dame Elish Angiolini carried out an independent review of deaths and serious incidents in police custody in 2017 and put it this way:

“For the state to fulfil its legal obligations of allowing effective participation of families in the process that is meaningful and not ‘empty and rhetorical’ there should be access for the immediate family to free, non-means tested legal advice, assistance and representation immediately following the death and throughout the Inquest hearing.”


The right reverend Bishop James Jones in the Hillsborough review said that:

“Publicly funded legal representation should be made available to bereaved families at inquests at which a public authority is to be legally represented … the requirement for a means test and financial contribution from the family should also be waived in these cases. Where necessary, funding for pathology or other expert evidence should also be made available.”


I could go on because there are a large number of these quotes but, coming closer to the present time, the Joint Committee on Human Rights in 2019, considering the detention of young people with learning disabilities and autism, said that:

“Families must be given non-means tested funding for legal representation at inquests where the state has separate representation for one or more interested persons.”


The Justice Select Committee, reporting last year in the other place, said:

“Bereaved people should not be put through the difficult and time-consuming process of meeting the exceptional cases requirements and the means test for legal aid where public authorities are legally represented at public expense at the inquest into the death of their loved one. The Ministry of Justice should by 1 October 2021, for all inquests where public authorities are legally represented, make sure that non-means tested legal aid or other public funding for legal representation is also available for the people that have been bereaved.”


Your Lordships will see that this is not a single voice calling. Everybody who has looked at this particular problem realises that there is no equality of arms, as there was in the Gresford disaster inquest, and that families suffer as a result. They cannot put their case adequately. It is time that the Government should grasp this and not go back to talking about coroners being inquisitorial, therefore we cannot have proper legal representation and so on. It is just shutting your eyes to what is going to happen, and I am sure it is going to happen with the quality of advocacy of Inquest and other people. I hope it will happen through this Bill if we can get together and put the proper amendment forward.

Judicial Review and Courts Bill

Lord Thomas of Gresford Excerpts

2nd reading
Monday 7th February 2022 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I too welcome the noble Lord, Lord Hacking, back to his place. We worked together in the latter part of John Major’s Government; subsequently, when he occupied the Benches opposite, I am sure that we would have been on the same side on the Human Rights Bill, devolution and matters of that sort. It is very pleasant to see him back.

My first encounter with the prerogative writs was an application for leave to move for certiorari—what today is called a “quashing order”, to obtain the reversal of a decision to refuse a war pension to my client. He was suffering from what today would be easily recognised as PTSD, as a result of experiences he suffered in Montgomery’s push from El Alamein to Tunis. The Government were represented by the noble and learned Lord, Lord Woolf, who I am very pleased to see is in his place. Modesty forbids me from saying who won the case, but I would have been incensed if my client had been denied arrears of his war pension to the date of the decision—that would be the effect of the prospective quashing order proposed in this Bill—or denied it to some indeterminate point in the future to give the Government time to correct the defect in the decision, which I had established was unlawful; that would be the effect of the proposed suspended order. If the court had exercised a power to make a suspended and prospective order combined, my client would have won the case but received nothing.

Ubi ius, ibi remedium: where the law has established a right, there should be a corresponding remedy for its breach. The right to a remedy is a fundamental right, historically recognised in all legal systems. It would also have been unthinkable if those not parties to my case, but who benefited from the court’s declaration that the Government had acted unlawfully, had been denied their rights. Of course, we abolished the word “certiorari” some time ago—“too much Latin”, as my grandson, in his first year studying law in Cardiff, would say. It was out of date, too redolent of 800 years of history when, under the British Constitution, the High Court could insist that a Government, public body or inferior court had acted within the law. We called it the rule of law. Today, the rule of law is mocked, privately and publicly, by our own Prime Minister. But what under this Bill would be the point of any person taking proceedings against any public body if, when he had won the game at full time, that body were given extra time until it managed to score the winning try?

Another glaring defect is that the Bill markedly tilts the judge’s hitherto untrammelled discretion in determining the appropriate remedy in the Government or the body’s favour, even though the judge has found that it has acted unlawfully. Under new subsection (9), the court must make a prospective or suspended order or both,

“unless it sees good reason not to do so”.

I ask the Minister to explain and illustrate what he envisages is a “good reason”. New subsection (8) sets out a list of factors that the judge must consider in making an order. Is it intended that one of those factors would suffice to be a good reason?

Let me move on to Clause 2. The Minister has explained the Cart case. The Government have decided to prevent an appeal against refusal of leave to appeal from the first tier to the Upper Tribunal and endeavour to oust the supervisory jurisdiction of the High Court. However, it is not just that. The Government seek in the Bill to forge a template for an ouster clause—they freely admit it—which they hope will in the future be used in other Bills.

Let us look at the terms of that. Under the title of “Finality of decisions”, new subsections (2) and (3) declare that

“The decision is final, and not liable to be questioned or set aside in any other court … In particular … the Upper Tribunal is not to be regarded as having exceeded its powers by reason of any error made in reaching the decision … the supervisory jurisdiction”


of the Hight Court

“does not extend to, and no application or petition for judicial review may be made or brought in relation to, the decision”.

It is stamp, stamp, stamp. It is like someone is trying to put out a fire with a broom on the hillside.

I move on to Part 2. On the issue of online court proceedings, I am certainly in favour in principle, but there are concerns to be explored in Committee over the rights of those who have no facility for the use of, or access to, online technology. Similarly, I am concerned, as was the noble Lord, Lord Ponsonby, that young people will not have the same access to interventions available in the criminal justice system to match the problems which have caused them to offend in the first place. As for inquests under Chapter 4, it is essential that we do not miss this opportunity to enshrine the principle of equality of arms into coroners’ proceedings. I have appeared in a number of inquests, sometimes funded by insurance companies, where there was a possibility of the insured being sued for negligence. On other occasions, I have appeared pro bono for relatives of the deceased. It is unconscionable that police forces, hospitals and the like should be fully funded by the state for representation by counsel, or perhaps by solicitors, while grieving relatives with no experience of any sort of court should be left to fend for themselves.

Finally, I shall want to explore the rationale in the 21st century for Rule 27 of the Coroners (Inquests) Rules 2013. This might sound a little exotic, but that rule reads in this way:

“No person may address the coroner or the jury as to the facts of who the deceased was and how, when and where the deceased came by his or her death.”


I have always considered it an anomaly that family representatives may not make submissions, either in person or by their lawyer, to a coroner or a coroner’s jury as to what their verdict should be.

Time and again, this Government have shown a tendency to try to rig the system in their own favour. In areas like mandatory and minimum sentences, and in this Bill, concerned with determining the lawfulness of government action and decision-making, they muscle in to usurp the discretion of that other essential limb of a liberal democracy, the judiciary. It refuses to let judges do their job. It must be resisted.

Criminal Justice: Royal Commission

Lord Thomas of Gresford Excerpts

Monday 7th February 2022 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, since the Queen’s Speech in 2019, there has been the small matter of a global pandemic, which has affected the criminal justice system very substantially. We reacted to that: we put in place particular new ways of working. We have taken a lot of that work forward: there is the Second Reading this afternoon of the Judicial Review and Courts Bill, which contains more reforms to the criminal justice system. I therefore think, with respect, that it is a little unfair to say—in fact, it is inaccurate—that we have no intention of implementing that. As to what I said in response to the noble Lord, Lord Bach, in Committee, I stand by that, absolutely.

[Lord Thomas of Gresford (LD)]

My Lords, in the Council of Europe’s recent report on penal matters, England and Wales scored very high in a number of categories, including prison population, prison density, suicide rates, the proportion of prisoners not serving a final sentence and the rate of admissions per 100,000 inhabitants. It is almost a world-beating record. Will the Minister ensure that the terms of reference of any royal commission that is set up include an in-depth consideration of sentence inflation in our courts?

[Lord Wolfson of Tredegar (Con)]

My Lords, one of the other things on which we score extremely high internationally is the quality of our judges. That ought to be mentioned as well. So far as prisons are concerned, we published a prisons White Paper in the last six months, which deals with a number of the matters raised by the noble Lord. As to the terms of reference of any royal commission, of course I have heard what the noble Lord has said.

Social Welfare Law Cases: Legal Aid

Lord Thomas of Gresford Excerpts

Tuesday 1st February 2022 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, I am well aware of the noble Lord’s experience and work in this area, and I respectfully commend him for it. If I may say so, I think it is rather unfair of him to say that we are spending peanuts, when actually last year we spent £1.7 billion on legal aid services. I agree with him that access to justice is a fundamental part of any justice system, and our reforms are intended to ensure that people have not only legal aid but legal support at an earlier stage of the proceedings.

[Lord Thomas of Gresford (LD)]

My Lords, The Impact of LASPO on Routes to Justice, by Dr James Organ and Dr Jennifer Sigafoos of the University of Liverpool and published by the Equality and Human Rights Commission in 2018, found that, due to the lack of legal aid and the demise of specialised advice, the high demand for advice on disability benefits means that the almost complete removal of welfare benefits from the scope of legal aid has had a disproportionate impact on disabled people and those with long-term health conditions. The Minister mentioned a number of areas where pilots are being carried out, but will the Government take steps to restore the funding, at least for this important sector of the community?

[Lord Wolfson of Tredegar (Con)]

My Lords, I note that when it is Justice Questions we always seem to have longer questions. We are starting a pilot in both Manchester and Middlesbrough to focus on the point that the noble Lord makes: to what extent can we divert people away and solve their problems at an earlier stage? I am aware of the report the noble Lord mentioned, and of others, but we are starting a pilot, so that we have evidence of what actually works on the ground.

Competition Appeal Tribunal (Recording and Broadcasting) Order 2022

Lord Thomas of Gresford Excerpts

Tuesday 25th January 2022 Grand Committee

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, the statutory instrument before us this afternoon grants the Competition Appeal Tribunal a permanent power to broadcast its hearings to the public using audio and video technology. I put it in terms of a power because the decision to broadcast in any case is subject to judicial discretion, should the judge have a reason in a particular case not to allow a hearing to be broadcast. The draft order is made under Section 32 of the Crime and Courts Act 2013 with the concurrence of the Lord Chancellor and the Lord Chief Justice. Importantly, this order replaces a temporary order which will expire on 25 March 2022.

For noble Lords who are not intimately familiar with it, the Competition Appeal Tribunal, more generally known as the CAT, is a specialist tribunal whose principal functions are to hear and decide cases involving competition or economic regulatory issues, including appeals to decisions by the Competition and Markets Authority and some other economic regulators. The CAT is sponsored by BEIS, the Department for Business, Energy and Industrial Strategy, but, as the power to make this order is conferred on the Lord Chancellor, it has therefore been drafted and laid before Parliament by the Ministry of Justice.

Noble Lords will be aware that, during the pandemic, our courts and tribunals swiftly moved to holding hearings remotely using audio and video technology. To ensure that open justice was maintained in these circumstances, a temporary provision in the Coronavirus Act 2020 allowed most courts and tribunals to transmit their proceedings to remote observers who had specifically requested access. The CAT was not included in the Coronavirus Act 2020 provisions. So, to ensure that the CAT could continue to hold its hearings and broadcast them, a temporary statutory instrument, under Section 32 of the 2013 Act that I mentioned, enabled the CAT to broadcast its proceedings via a link on its website.

That has worked successfully. In a recent case concerning Newcastle United Football Club, around 33,000 individuals from over 50 countries were interested in watching the hearing, with around 4,000 observers watching it at any one time. Whether that was due to the legal issues in that case or was related to Newcastle United Football Club, I am afraid I cannot assist the Committee.

This current and temporary SI will expire, as I say, on 25 March this year, when the Coronavirus Act 2020 is due to expire. Because the broadcasting in this tribunal has been a success, we want to make the CAT’s ability to broadcast its proceedings permanent.

This instrument reproduces the existing temporary order, with two additional provisions which I should bring to the Committee’s attention. One is provision to revoke the temporary order, which is self-explanatory. The other mirrors provision included in other instruments under this power in relation to the Court of Appeal and Crown Court and requires that any use of the footage of the CAT must be fair and accurate. For example, it cannot be used for party-political broadcasts, advertisements or promotions, light entertainment or, need I add, satire. Additionally, the CAT has guidance accompanying each hearing listed for broadcast containing a warning that it is not permitted for any person to record a live-stream hearing and that breaching this requirement would constitute contempt of court.

I underline the point that this order strengthens the principle of open justice, which is a fundamental principle in this jurisdiction and has been for centuries. It means that those who are interested will be able to watch the CAT’s proceedings from the convenience of their homes or offices, or anywhere else. Importantly, it retains ultimate judicial discretion over the actual broadcast in any particular case. I commend this instrument to the Committee.

[Lord Thomas of Gresford (LD)]

My Lords, the Liberal Democrats have always supported open justice and continue to do so. Therefore, we very much support this instrument. During the lockdown periods, I watched my daughter-in-law, who is a judge of the First-tier Tribunal, conduct her hearings online. She has done so consistently in providing justice in the north-west. I have been very impressed with the way in which justice has been seen to be done in that area. I have nothing further to add.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we too support these measures. It seems entirely sensible that they should continue, as they seem to have been operating satisfactorily during the various lockdowns we have been through.

As the Minister said, judicial discretion is retained. I would be interested if he could give an example of when it may be appropriate for the judge to determine that the proceedings should not be made available to members of the public who may wish to hear what is going on.

I have done my fair share of remote hearings in court from my dining room table. I sometimes did hearings in court and then proceedings in Parliament on the same day, from the same dining room chair. It can be done and I have made sure that my colleagues on the magistrates’ Bench have had training on how to behave when doing hearings via MS Teams or Zoom. In fact, we have a retired magistrate who is a former TV producer. It is very interesting to be trained to do this properly, because it is very easy for standards to slip. For the Committee’s information, we are arranging further training entitled “Keep the bar high; don’t let standards slip”, because it is very easy for that to happen when one is working remotely. We support the instrument.

Taking Control of Goods (Fees) (Amendment) Regulations 2021

Lord Thomas of Gresford Excerpts

Thursday 13th January 2022 Lords Chamber

I know Ministers care about mental health; today, they have the opportunity to do something concrete to improve the mental health of those in greatest need. I want to thank the noble Lord, Lord Wolfson, for writing to me. It seems the Government are unwilling to make commitments at this stage and want to await the outcome of the litigation. Nevertheless, I look forward to the Minister’s response today.

[Lord Thomas of Gresford (LD)]

My Lords, it is a great pleasure to follow the noble Baroness, Lady Meacher, in her very clear and lengthy exposition of the position. I applaud her efforts and seek to follow in her footsteps.

In his Written Statement on 18 November, the Under-Secretary of State for Justice, James Cartlidge, said:

“While we take the view that the taking control of goods legislation when considered … with the common law position permits the recovery of VAT costs from debtors in this way, we have accepted … that this is an area where it would be beneficial to set out the position in regulations to put the matter beyond doubt.”—[Official Report, Commons, 18/11/21; col. 34WS.]


Well, they have done that, but some questions remain.

In enforcing a debt there are three parties: the judgment creditor, the judgment debtor and the enforcement agent. What this instrument does is permit the enforcement agent to recover from the judgment debtor a sum of money equivalent to VAT on his costs and expenses, even though the judgment creditor is not registered and therefore not liable to collect or account for VAT to the Treasury.

A number of questions arise. First, what if the enforcement agent is himself not registered for VAT? How does he account to the Treasury for a sum equivalent to VAT? Would he not just pocket it? What happens to that money? Secondly, when did the common law take cognisance of VAT? Perhaps the Minister will explain the meaning of Mr Cartlidge’s reference to the “common law position”? I find it difficult to comprehend why, if the judgment debtor would not have to pay VAT to the judgment creditor, the common law would force him to pay it to the tipstaff on behalf of the bailiff.

Section 90 of the Tribunals, Courts and Enforcement Act 2007 gives power to the Lord Chancellor if he “considers it necessary or expedient” to make

“supplementary, incidental or consequential provision”

or

“transitory, transitional or saving provision”

by regulations. In Schedule 12—on which this instrument also depends—paragraph 13(3) deals with taking control of goods, paragraph 42 with the sale of goods, and paragraphs 50(4) and 50(7) with the application of the proceeds. How is there power to make this instrument, which, in effect, imposes taxation upon the judgment debtor which he would not have to pay if the judgment creditor were registered for VAT? It is arbitrary; it is luck, a matter of chance.

The Minister will appreciate that if you have worked, as I have, as a solicitor in a close mining community in north Wales—not dissimilar to Tredegar, I may say—there is always concern about the activities of bailiffs and their tactics. I include in that claiming fees for visits to the debtor which were never made, or where the knock on the door was particularly soft and a second visit follows. Clients are not aware or made aware of their ability to go to court to tax the bills for their expenses, and these are not inconsiderable sums. If it is council tax, parking fines, or a debt under £1,500, for example, it is £75 for a letter, a £235 fixed fee for a visit to your home and a £110 fixed fee for taking and selling your possessions. Over £1,500, there is an extra fee of 7.5% on each of the latter two stages. A High Court judgment of under £1,500 attracts fixed fees of £190 for a visit, £495 for failing to keep to an enforcement agreement and £525 for taking and selling your belongings. If it is over £1,500, 7.5% is added to the enforcement and sale fees.

We are about to face a period of inflation, high interest rates and a rise in the cost of living. This will be familiar to those of us who are old enough but not to the youngsters raising their families. I hope somebody judicially reviews this instrument because I do not think it is properly made and I very much hope it will come back to haunt what is left of this Government.

[Lord Best (CB)]

My Lords, I support this Motion to Regret in the name of my noble friend Lady Meacher. The last thing needed by those trying to deal with a problem debt is an extra 20% charge on top of the collection costs in tax that should clearly have been levied on the creditors, not the debtors. It is surely a great injustice for debtors to have been charged VAT when they should not have been and to have to go to considerable lengths to recover money they have been falsely charged. It is certainly a matter of deep regret and the remedies proposed by my noble friend seem entirely justified.

Perhaps I could take this opportunity, on the subject of bailiffs, to note that there is considerable political and practitioner interest in bailiff reform. Will the Minister reaffirm the Government’s support for the enforcement conduct authority as organised by the Centre for Social Justice in partnership with both the bailiff sector and the debt advice sector? Impressive work has been done by the CSJ in securing agreement between those representing bailiffs and those providing debt advice, such as the charity StepChange. This now needs government to take matters forward and grant statutory powers to this new body to give it real teeth. Perhaps the Minister could comment.

Police, Crime, Sentencing and Courts Bill

Lord Thomas of Gresford Excerpts

Lords Hansard - part one & Committee stage
Monday 8th November 2021 Lords Chamber

[Earl Attlee (Con)]

My Lords, I support everything that noble Lords have said so far. Unless the clause is significantly amended along the lines suggested, I could not possibly support it if it were taken to a Division.

[Lord Thomas of Gresford (LD)]

My Lords, as this is about causing serious injury by careless or inconsiderate driving, the state of mind—the mental element—is involved. The noble and learned Lord, Lord Hope, referred to the case of Lawrence in 1982, a decision of Lord Diplock. In that same year I was appearing before the Appellate Committee in a case called Caldwell, in which a person who was intoxicated had gone to sleep in the doorway of a hotel, lit a fire to warm himself and severely damaged the hotel. The issue was whether he was reckless in so doing. What was his state of mind, his mental element? It was agreed that he had no intent to do it but Lord Diplock held that the conviction should be upheld because an ordinary person who was not intoxicated would have realised the consequences of what he was doing, although Caldwell himself had not done so. He spent quite a long time in prison, and it took 22 years for my argument to succeed in the case of G in 2002, when Lord Bingham held that Caldwell had been wrongly decided and that the test of the mental element has to be subjective—that is, it is necessary for the person to have a subjective understanding of what is going on. That is very similar to the issue we are discussing in this case.

However, I believe that Clause 66 is simply wrong in principle. It threatens to penalise the outcome of the offence—serious injury—with imprisonment when the mental element of the offence of careless driving is no more than negligence. I accept that there is a precedent for penalising driving offences by reference to outcomes. Clause 65, relating to causing death by dangerous driving or careless driving while under the influence of drink or drugs, has that effect, but dangerous driving and careless driving while under the influence of drink or drugs both have a far more serious mental element than simply careless driving. Dangerous driving involves falling far below the standard of a reasonable driver, and the drink or drugs offence involves deliberate impairment. In either case, the offending driver is knowingly taking a risk with the safety of other road users, so it is his mental element that is being punished in those serious cases.

On the other hand, as other noble Lords have said, careless driving involves driving that falls below the standard of care of a prudent driver—no more than carelessness, negligence or, in the terms of the clause itself, “inconsiderate” driving. A mistake, or inadvertence, may suffice. To make such an offence imprisonable because it results in serious injury is not a step that we have ever taken before, and offends against the principle that the seriousness of an offence should depend not just on the act done but on the state of mind of the offender.

Almost every accident is the result of negligent driving on the part of at least one of the drivers involved—that is, in the absence of mechanical failure or an unexpected event, such as the wasp sting that we have heard about, but such events are extremely unusual. Sadly, a vast number of accidents involve serious injury—a broken limb, for example, being “serious injury” for this purpose. The vast majority of accidents arising from negligence, whether or not they cause serious injury, do not lead to prosecutions. The clause would leave it to police and prosecuting authorities to pick out the few accidents that they wished to lead to prosecution, and would expose drivers to the risk of imprisonment for an accident that arose out of a simple mistake.

--- Later in debate ---

[Lord Falconer of Thoroton (Lab)]

The noble Lord has made a very interesting speech, but is it right that negligence and the harm that it does cannot be reflected in imprisonment for any criminal offence? What is the position in relation to health and safety at work? My understanding of the law is that once someone is convicted of what is in effect negligence in relation to providing conditions at work, the court can take such matters into account—for example, if they were negligent and someone lost an eye, that would increase the penalty, and imprisonment would be a possibility. I might be wrong about that.

[Lord Thomas of Gresford (LD)]

That is an interesting point. Manslaughter can obviously be by negligence.

[Lord Falconer of Thoroton (Lab)]

Gross negligence.

[Lord Thomas of Gresford (LD)]

Gross negligence, yes—although it is interesting that the word “gross” is put before it. But these are different offences, and it may be that I should confine my criticism to the road traffic situation and not extend it as a general principle of English law.

[Lord Beith (LD)]

My Lords, there have been some powerful contributions to this debate. I agree with the comments that the noble and learned Lord, Lord Hope, and my noble friends have made.

It is perhaps necessary that we should say in the debate that there are members of the public whose families have been drastically affected by serious injury resulting from careless driving who feel that there should be a stronger penalty, and that the particular circumstances in the accident with which they are familiar justify a stronger penalty. This is the simple point I want to make: the territory that we enter here is of believing that prison is the only way that society can say, “We are not going to put up with this. This is very bad. Drivers should drive better, and people should be aware of the dangers that they engage in if their concentration lapses.” Prison is probably one of the least effective ways of dealing with the individuals that we are talking about.

As my noble friend Lady Randerson pointed out, the effects of these accidents—or rather incidents, following the noble Baroness, Lady Jones—which result in serious injury are devastating for all those involved. However, the Government need to resist the constant temptation to believe that spending a lot of money on sending people to a place that will not improve their driving—or indeed anything—but is likely to lead to despair and reduce their ability to contribute to society in years to come is a sensible course of action. They should recognise that this is a misuse of the expensive, although important, resource of custody.

[Lord Berkeley (Lab)]

My Lords, can I just ask the noble Lord, Lord Thomas, why he thinks that an offence in the transport sector might be different from the Health and Safety at Work etc. Act? Is it because transport is a middle-class crime and health and safety is not, on the whole, or is there something different?

[Lord Thomas of Gresford (LD)]

Driving is an activity which is universal. Equally, the mistake—or negligence—is also universal, and I do draw that distinction. I appreciate where the noble Lord is coming from, but that is the distinction I make.

[Lord Marlesford (Con)]

My Lords, I very much agree with the noble and learned Lord, Lord Hope, and other noble Lords who have spoken. It seems that there is a perfectly obvious, very serious penalty which can be applied to the most egregious cases of careless driving, where there is very serious injury, and that is a lifetime ban on driving. That would be much more effective than imprisonment.