My Lords, with all respect—a phrase that lawyers use when they have no respect—to all noble Lords and noble and learned Lords and to the Minister who boasts that he is not a lawyer rather than disclaims that he is, the most important contribution to our short debate, for which I am very grateful, was by the noble Lord, Lord May of Oxford. He reminded us that we are changing the law and that will significantly affect the way in which lawyers, be they judges, barristers or solicitors, work in advising. We have set ourselves the task of trying to make the law in this area clear to affect the way in which people behave. Most of those people are not lawyers, and nor should they have to be lawyers in order to understand the limits of behaviour that will put them at risk.
With respect to the noble Lord, Lord Lester of Herne Hill, who knows that I have an enormous degree of admiration for him, his response to the intervention by the noble Lord, Lord May of Oxford, was—I hate using this phrase—technically correct, but it missed the point. The point I am trying to make in this part of the debate is that we have an opportunity to give an explanation of what we think we are achieving here. We have a perfect example in this short debate because of the very concise and helpful interventions by a number of lawyers about just how that could be confused. I am extremely grateful for that. In a simple sentence, the noble and learned Lord, Lord Scott,
supported my amendments and then made well made point that was not in any way undermined by the amendment tabled by the noble Lord, Lord Mawhinney, because neither he nor I—and I support his amendment for the purpose that I explained—think that judges are incapable of doing this. We know that judges are capable of looking at this test and applying it to the facts, having listened to the legal argument. We know because—although I have never practised in England, I have had to bone up on the procedure—there is a process whereby the issues in dispute become apparent by the process of pleading and the exchange of arguments and facts. I do not think that any of us have any doubt that judges will be able to that.
Actually, if that is the point at which decisions are made in relation to the tests that we set, we will have failed because we want these decisions to be made much earlier in the activity. We do not want people to have to go to the court at all, if that can be avoided. We do not want people to have to run off to very expensive lawyers who are capable of doing what we lawyers have just done in this debate, which is taking the advice of a former Lord Chancellor, the noble and learned Lord, Lord Mackay of Clashfern, who we all admire, which is that there is a distinction between “substantial” and “serious”. However, we had a very clear, lucid and believable explanation of why “serious” includes “substantial” from the noble Lord, Lord Faulks, using his experience and practice in the law. He was supported by the noble Lord, Lord Lester of Herne Hill, who said that this simpler, one-word test is the most appropriate way to move forward because the justice system can cope with it much better.
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If that is right, how did we go through a process which began with “substantial”, presumably the test advised by lawyers, then move through detailed consideration by a Joint Committee to a test of “serious” and “substantial”, which was probably informed by legal advice, and finally emerge with the Government saying, “We will drop the one that we started with and take part of the one that you propose, which is the difference that you have added to the one that we propose”? No doubt, they do that on the basis of legal advice. How did we get there if this is as simple as people suggest?