Cross-Border Mediation (EU Directive) (EU Exit) Regulations 2019

Baroness Chakrabarti Excerpts

Wednesday 20th February 2019 Lords Chamber

[Lord Beith]

My Lords, this is another example of something we are losing, although in this instance the amount is relatively small. As the Minister has explained, this concerns mainly time and the confidentiality element as it is currently provided, and there are some alternatives to that.

It is extraordinary in that it repeals provisions that would be continued under the withdrawal Act—which we have already passed—in numerous other statutes, including the Equalities Act 2010, so we are bound to look at it suspiciously for that reason. The Government’s argument against continuing these provisions without guaranteed reciprocity—I accept that the Government cannot guarantee reciprocity—is that applying them unilaterally would result in preferential treatment for parties involved in EU cross-border mediations that they believe would no longer be justified when the UK ceases to be an EU member state.

If, however, the provisions can be used to assist in a mediation and the other EU state involved is willing to observe a reciprocal arrangement, why should we deny that benefit? What is the unfairness of that? There are many instances in which we have better arrangements with some states than with others in judicial matters, and in the case of our European neighbours it would be surprising if we could not have more arrangements facilitated than apply in other cases. We do not say that person X is being treated unfairly because their attempt to resolve a matter by mediation relates to a state that is not helpful, whereas person B is in a mediation involving a state with which we are able to make some reciprocal arrangement.

The Government have taken the view with most—although not all—of these statutory instruments that where we cannot have reciprocity we cannot have anything. That is not necessarily the case. The Minister kindly answered the question I asked him earlier in a way that seemed to imply that the Government, if there is an agreement during the transition period, would seek to negotiate back into existence something along these lines. Of course, during the transition period the provisions would continue to operate.

What if there is a no-deal Brexit, which looks increasingly likely? There is no reason why the Government should not seek to facilitate mediation with our former fellow EU states as a matter of policy. Clearly I am arguing that they should have a policy of negotiating during the transition for such arrangements—or even if there is no deal. The atmosphere might be less conducive but at some stage why should we not try to resurrect provisions of this kind?

Although, as I have said, the impact of removing these provisions is relatively small, it is another example of an area in which we ought to try to continue arrangements that are beneficial to people who have real problems to solve. Where possible, we should do so by direct agreement with the EU and, if not, by agreement with individual states.

[Baroness Chakrabarti (Lab)]

My Lords, as we have heard, this instrument sits against a backdrop of completely inadequate planning for justice co-operation after Brexit. The danger is that that inadequate planning could put vulnerable people in our society at risk. Across Parliament, including from the Justice Select Committee, there has been concern that the Ministry of Justice has failed to provide sufficient detail or certainty about how co-operation on justice will be managed after we exit the European Union.

As we all know, we currently benefit from well-established, frequently updated and comprehensive reciprocal justice arrangements within the EU. Without an agreement with our European partners on what the future of those reciprocal arrangements looks like, people forced to go to court or mediation to protect their rights can face extremely damaging consequences.

We on this side of the House have consistently said that Brexit must not be used to lower standards or reduce rights. There is a fear of that. I know that the noble Lord, Lord Beith, is a little sanguine about how significant that is in this instrument, but I am a bit less so. It nevertheless breaches that principle about a reduction in standards and rights.

Noble Lords will recall that the instrument was laid for sifting by the Secondary Legislation Scrutiny Committee on 16 November last year. The European Statutory Instruments Committee recommended that it be upgraded to the affirmative procedure because of its large volume of amendments to primary and secondary legislation, but also because it could diminish rights by disengaging from European Union obligations.

I may have misheard the Minister. He referred to an impact assessment. I do not know whether that included a consultation or whether he is instead relying on the Government’s general civil judicial co-operation framework. If it is the latter, the European Union Sub-Committee on Justice found that the framework contained little detail on how the Government’s aims for co-operation would be achieved.

This statutory instrument will repeal legislation enshrining the mediation directive. The directive extends time limits for bringing some civil claims—including child maintenance claims and employment tribunals—to enable mediation. I am sure we all agree that this is a very good thing. The directive is one of many examples whereby we have raised legal standards and protections across Europe through co-operation with our European partners.

The European Statutory Instruments Committee considered whether this instrument could diminish rights and found that it repeals legislation that extends the time limit for bringing certain claims in civil courts and employment tribunals to enable mediation. Shortening time limits in that regard can have significant consequences, prohibiting parties from reaching mediated solutions in child contact cases, for example. This statutory instrument clearly breaches the principle that standards should not be lowered; it lowers the standards for enabling cross-border mediation from the higher EU standard to a lower international one.

The Government accept that the UK could unilaterally continue to apply the mediation directive post exit but have decided not to do so. The noble and learned Lord will correct me, but my understanding of the Government’s position is that, if someone wants to stop a time limit running in mediation, they should issue proceedings before a court and apply to stay or stop those proceedings. That is unfair and unrealistic for so many people in their current financial circumstances, let alone in the context of the obliteration of civil legal aid, which we have discussed in your Lordships’ House so many times.

Put simply, this statutory instrument does what Ministers promised—in this House and elsewhere—would not happen: it breaches the principle of not reducing standards in people’s access to justice. That is very disappointing.

[Lord Keen of Elie]

On that last issue, I am somewhat puzzled by the points that the noble Baroness, Lady Chakrabarti, is endeavouring to make in this context. The time limits we are talking about are measured in years—three, four, six or 10 years. If a party is intent on mediation before they raise proceedings, it is unlikely that they will be so disinclined or uninterested in the issue that they will wait years before even attempting to go forward with mediation. Let us be realistic and practical. However, where they have already commenced proceedings, they may then be directed by their lawyers or others to consider mediation as an alternative means of resolving the dispute. In those circumstances, they have already dealt with the time limit by raising the legal proceedings. Pending mediation, all they need to do, if necessary, is stay those proceedings—or sist them, in Scottish terms—putting them on hold while the mediation process is carried on. I do not see that this is a diminution of rights at all.

I come to the points raised by the noble Lord, Lord Beith. On the question of no deal, I understand his point entirely. If no deal occurs—which nobody wants—it will not be a case of switching off the lights and leaving the building. Clearly, we will want to continue discussing with our immediate European neighbours how we can best resolve any differences between us on judicial co-operation. One would hope that that would happen in any event, but I note the noble Lord’s point and cannot disagree. It might be more difficult in a no-deal scenario than during an implementation period, when we are negotiating a future agreement between ourselves and the EU 27.

On another point, it is not an issue only of preferential treatment—that is, the idea that parties from the EU would somehow have preference over those in the UK. There is a danger that we might mislead people if we do not deal with the directive provisions in this way. People may continue to believe that they are protected from having to raise proceedings beyond a limitation period because of the EU directive. We will have to make it clear to people that this will not be the case.

There is not the same issue with regard to confidentiality. The absolute confidentiality imposed by the directive is not immediately replicated in the law of England and Wales, but there is the usual provision for contractual agreement of confidentiality of the mediation process. In any event, as I sought to indicate, there is at least one High Court decision from 2009 that says that, even in the absence of an express contractual term, the court would readily imply an issue of confidence with regard to mediation.

In a way, then, the impact will be minimal, but I do not dismiss it out of hand. We are conscious that we are moving away from an EU-wide provision on mediation and we have to accommodate that at present. Our hope is that we will move into an implementation period when we continue to enjoy this reciprocity. We hope that, in due course and in the course of such an implementation period, we will agree future judicial co-operation, but that will require reciprocity. In these circumstances, I beg to move.

Assisted Suicide

Baroness Chakrabarti Excerpts

Thursday 14th February 2019 Lords Chamber

[Lord Keen of Elie]

It is not the intention of the Government to seek to change the law in this area. I emphasise that every case has to be considered according to its own particular facts and circumstances. I readily acknowledge that many of these cases are extremely tragic.

[Baroness Chakrabarti (Lab)]

My Lords, whatever the conflicting views—and there are many—on public and prosecutorial policy in this area, I hope we can all agree that the current situation presents loved ones of people with motor neurone disease and similar conditions at the end of their lives with an emotional, ethical and legal minefield. Is the Minister confident that these people, at a very difficult time, are getting the advice and support they need to navigate that?

[Lord Keen of Elie]

I am not in a position to say where such people seek advice on these matters, but such advice is available, and the policy of the CPS with regard to this matter is publicly available.

Legal Aid, Sentencing and Punishment of Offenders Act 2012

Baroness Chakrabarti Excerpts

Thursday 7th February 2019 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to the Minister for repeating the Statement. Sadly, I am not grateful for its content, which offers very little very late. The Government wasted two years investigating their own devastating cuts, perpetrated by the coalition Government on so many ordinary people in this country, for whom access to justice is no longer a reality. The review is a missed opportunity to restore legal support to people facing rogue landlords, debilitating family breakups and the Government’s hostile environment to not just migrants but poor people and people living on benefits.

There have been 99% cuts to benefits legal aid for some of the most vulnerable people in our society, which is completely unacceptable. The Statement’s accompanying documents include an action plan that is incredibly disappointing, in many cases offering just more reviews rather than the action that the term “action plan” would normally suggest. Legal aid has been slashed by hundreds of millions of pounds. Even the Government’s target of saving £410 million was exceeded by £200 million. Is that a record of which the Ministry of Justice can be proud?

On many occasions technology, as with the Northern Ireland border, is offered as a panacea to replace real lawyers offering people early advice and subsequent representation where necessary. That is what anyone would want when dealing with a difficult dispute in their life, and it should be available to everyone—rich or poor.

Cuts to public services and austerity are always political choices, but when the cuts are to the legal advice and representation at the heart of our rule of law, they become particularly ideological. All the exquisite legislation brought forward and scrutinised in your Lordships’ House remains a dead letter in a closed book without adequate legal aid. That is the situation in the United Kingdom—one of the wealthiest countries on earth—at this moment in the 21st century. To my mind, this is a national disgrace.

This year marks the 70th anniversary of the Legal Aid and Advice Act 1949. That piece of Labour legislation, of which we are proud, was as important in the post-war settlement as healthcare or universal education. I am sad to say this because I think that matters concerning the rule of law should be cross-party and bipartisan, but I have come to the view that only a Labour Government will restore access to justice, advice and representation for all.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, after a delayed process that took an entire year, we now have the post-implementation review of LASPO. I will focus on legal aid.

Of its four stated objectives, the MoJ claims success in just one: significant savings have been made. Well, we know that. As the noble Baroness, Lady Chakrabarti, pointed out, the savings wildly exceeded what was expected. However, on each of the other three objectives—discouraging unnecessary and adversarial litigation at public expense; targeting legal aid at those who need it most; and delivering better overall value for money for the taxpayer—the answer is an unimpressive “Don’t know”, dressed up in weasel words such as, “It is impossible to say with certainty”. I suspect that an independent review would have come to clearer conclusions.

The review identifies six themes echoing the experiences of all of us involved in the justice system. First, these changes in the scope of legal aid undermine value for money, particularly by preventing early intervention. Secondly, financial eligibility and operational requirements limit access to legal aid too harshly. Thirdly, the exceptional case funding scheme is not working well. Fourthly, legal aid fees are now so low that future provision by practitioners is at risk. Fifthly, increasing numbers of litigants in person increase costs and risk the perception of a two-tier justice system. Finally, advice deserts across our country threaten access to justice.

The legal support action plan seeks to address those issues, at least in part. I am more hopeful than the noble Baroness in saying that the action plan is welcome. Among the Government’s pledges, some of which were mentioned in the Statement, they promised to review eligibility requirements, increase public awareness of how to access legal aid, broaden the scope of legal aid in some immigration and family cases—that will not go nearly far enough—improve the exceptional case funding scheme, review criminal legal aid, widen access to the telephone gateway, increase support for litigants in person and examine complementary ways of providing legal support. Both those pledges and the others made must be kept and implemented soon. We will have further demands for improved support. We will hold the Government’s feet to the fire.

Can the Minister do two things today on this vital topic? Together, the four documents represent a massive report. Will he please use his influence to secure a debate, with adequate time and soon, on the reports and the action plan? Secondly, will he reassure us that where the promises in the action plan are not backed up by implementation dates—and some are—the MoJ will treat them with urgency?

Notwithstanding the warnings in the paper and in the Statement that all this cannot be delivered overnight and is the first step in the process, the rescue of our legal aid system and the improvement of our legal support system needs more urgency than was ever accorded to this review.

Voyeurism (Offences) (No. 2) Bill

Baroness Chakrabarti Excerpts

3rd reading (Hansard): House of Lords
Tuesday 15th January 2019 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

I beg to move that the Bill do now pass.

[Baroness Chakrabarti (Lab)]

My Lords, at the risk of my complete and utter humiliation, I rise in these difficult and fractious times to celebrate a moment of genuine positivity, collaboration and leadership in this place and beyond it. I pay tribute to the campaigner Gina Martin, whose original indignity was converted into a powerful campaign to do something important that we can all agree on. I also pay tribute to her lawyer, Ryan Whelan, for that campaigning partnership and to parliamentarians on all sides of both Houses who made it possible—even at the expense of rivalries and through self-censoring—to allow a speedy and successful passage of this Bill. I particularly thank the government Bill team, the Minister and his colleague, the noble Baroness, Lady Vere. This was good work and very well done.

[Lord Keen of Elie]

I am obliged to the noble Baroness, Lady Chakrabarti, for her observations. I, too, extend my thanks to all who were engaged in bringing this Bill to fruition. I thank in particular the Bill team, which did so much work to ensure that the passage of this Bill was as simple and swift as we would all wish.

Brexit: Withdrawal Agreement and Political Declaration

Baroness Chakrabarti Excerpts

Monday 14th January 2019 Lords Chamber

[Lord Keen of Elie]

Legitimate means and democratic means—let us put it that way. They went to the country in the general election as well and returned with 12 seats in the House of Commons; the Scottish Conservatives returned with 13 seats in Scotland, a part of the United Kingdom that voted to remain. But then perhaps people had intelligently understood that the outcome of the referendum should be respected and that they should support those who were prepared to respect it.

We see reference to a second referendum. That would be seen by many as a constitutional outrage. The United Kingdom voted, by a majority of about 1 million people, to leave the EU. The noble Lord, Lord Grocott, touched upon this point: people such as myself from north of Watford understand the meaning of “leave”. It is not a factual question; it is more philosophical. Their reasons for voting leave cover a spectrum, from the sublime to the ridiculous and from the laudable to the laughable. But it was this Parliament which decided that that was how the issue should be determined, so look to yourselves.

A democratic decision can be reversed. If you choose a party in a general election, you may decide that you are not entirely impressed by it and, at a second general election, decide on a new party of government.

[Baroness Chakrabarti (Lab)]

That is a good idea.

[Lord Keen of Elie]

I hear the noble Baroness, Lady Chakrabarti, saying that that is a good idea, but of course it has no comparison with the present situation, if we want to reverse the decision made in a referendum when it has never even been implemented. That is why people would regard it as something of an outrage.

As my noble friend Lord O’Shaughnessy observed, there are issues with the call for a second referendum. Indeed, many people would regard it as a charade, because those calling for it, or at least many of those calling for it, do not want the people to decide. They want the people to give them what they regard as the correct answer, because they did not give it last time. And there is no reason they would not ignore a second leave vote just as readily as they ignored the first leave vote. Of course, they seek to dress it up as the “people’s vote”. Who do they believe voted in the first referendum—sheep? It was the people’s vote.

I come back to the issue of trust. We have the withdrawal agreement and the backstop, which are and are intended to be temporary means for us to actually exit the European Union and do not, by themselves, determine our future relationship. That is outlined in the political declaration. If we do not trust the party with whom we are engaging, then all forms of agreement and negotiation are simply worthless. At the level of international law you cannot—short of war or gunboat diplomacy—force a nation or an international body to implement a promise or obligation if it decides not to do so. Whether it is an oral promise, a written assurance, a solemn undertaking, an international treaty or something written in blood on vellum, if they are determined to lie to you, to mislead you, to change their minds, you are simply going nowhere.

We hear references to the EU wishing to punish us, wishing to put us into a triple lock, wishing to hold the backstop in perpetuity. Yet the European Union says, entirely candidly, that it wants a fruitful future economic, security and social relationship with the United Kingdom, so why would it want to punish us? It does not want to enter a backstop and if it does, it wishes to do so for the shortest time possible. Nobody appears to have acknowledged that, in fact, great advances were made over the backstop in the negotiations. It was proposed originally for Northern Ireland only, which would have had the most profound consequences for our constitutional situation in the United Kingdom, but that is no longer the case. It embraces the entirety of the United Kingdom and by doing so it breaks the four freedoms that the European Union said would never be broken and produces the very cherry picking that it said it would never contemplate.

In addition, the European Union has made it clear that it wants to implement the terms of the political declaration as soon as possible. If we do not believe it, we should stop now, but if we trust it, then we can place faith in these expressions, whether in a formal treaty, a written declaration or correspondence from the President of the Commission and the President of the Council. If we trust the integrity of our interlocutors, we may better understand the motives of those with whom we negotiate and the extent to which they are truly willing to compromise. We often see the European Union as concerned with economics, social policy and politics, but in reality I suspect that it considers its priorities to be political, social and economic. That is one reason so many people in the United Kingdom chose to leave: they were against the notion, that underpins even the original treaty of Rome, of ever-closer political union.

The withdrawal agreement and political declaration have to be read together and in good faith. We have to trust the promises that are made in good faith and understand the need for compromise on both sides.

Looking to ourselves, we perhaps need to remind ourselves that the referendum was not a choice between good and evil or between ruin and redemption. My noble friend Lord Forsyth of Drumlean suggested at one point that the most reverend Primate the Archbishop of Canterbury had implied that all those who voted leave would go to hell. I do not believe that he suggested any such thing.

European Union (Withdrawal) Act 2018

Baroness Chakrabarti Excerpts

Tuesday 11th December 2018 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I am genuinely grateful to the Minister for that Answer which clears up the apparent lack of clarity from the Prime Minister yesterday on the legal force of the 21 January deadline and the lack of certainty from the leader of the House of Commons yesterday on the ongoing force of Dominic Grieve’s amendment. However, six weeks is still a very long time for the errand of collecting mere assurances, not least when the Prime Minister openly contemplates,

“the risk of an accidental no deal”.—[Official Report, Commons, 10/12/18; col. 25.]

The clearest thing of all is that yesterday’s House of Commons vote was pulled in pure, blind panic with little regard for the economic and constitutional consequences for our country.

[Lord Keen of Elie]

My Lords, I do not accept the allusion to uncertainty that the noble Baroness referred to. We are following a discernible course of action in order to implement a demanding issue in accordance with the will of the people of the United Kingdom. As regards the idea that it will be six weeks, no time limit has been fixed for the period in which this matter will be the subject of further assurance and in which it will be brought back to Parliament. What we have said is that 21 January is a date beyond which we will not go.

Brexit: Legal Position of Withdrawal Agreement

Baroness Chakrabarti Excerpts

Monday 3rd December 2018 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I am of course grateful to the Minister for repeating that Statement and for advance sight of it and the position paper published today. However, all Members of this House and, even more importantly, all Members of the other place are at a major disadvantage when asking questions because they have not read the legal advice upon which the Statement is based. It is totally unacceptable that we are in this position when aspects of the Attorney-General’s advice have been selectively leaked to the press over the weekend. Perhaps the noble and learned Lord can confirm that in the Attorney-General’s letter to Cabinet Ministers last month, as has been reported, he declared in respect of the backstop arrangement:

“The protocol would endure indefinitely”,


if trade talks broke down.

On 13 November in the other place, my colleagues the shadow Brexit Secretary and the shadow Solicitor-General were both crystal clear that what was sought was the final and full advice provided by the Attorney-General to Cabinet on any completed withdrawal agreement, made available to all Members of Parliament in good time for the vote on the deal. Offers short of that made by the Government, including the Attorney-General’s Statement today, were roundly rejected and the House of Commons passed the Motion unanimously. The Government could have voted against it and did not.

The reality must be that the Government do not want MPs to see the advice for fear of the political consequences. There is no point in trying to hide behind the law officers’ convention; the Ministerial Code and Erskine May are very clear that Ministers have a discretion, as part of that convention, to make advice available in exceptional circumstances. Surely few circumstances could be more exceptional than these. The economic, political and constitutional integrity of our country is at stake and the House of Commons is tasked with authorising the deal.

Paragraph 82 of today’s position paper confirms that there is no unilateral exit mechanism from the backstop for the United Kingdom—I stress, no unilateral exit mechanism. Perhaps the Minister could point me to a precedent for such a locked door with only one party as keyholder, which would not be us. Can he point to such a precedent in another treaty of recent times, or at all? The Government’s argument that the backstop will be only temporary is a political one, and politics changes. It is not the same as a firm, legal position. But articles 1.4 and 2.1 of the backstop protocol are clear that its provisions,

“shall apply unless … they are superseded, in whole or in part, by a subsequent agreement”.

Put simply, this means that parts of the backstop could become permanent even in the event that a trade deal were agreed. Can the Minister tell us of his view as to the parts of the backstop arrangement in this protocol that he considers most likely to become permanent?

There is then the impact on the Good Friday agreement. Page 305 of the withdrawal agreement refers to the need for this protocol to be implemented so as to,

“maintain the necessary conditions for continued North-South cooperation, including for possible new arrangements in accordance with the 1998 Agreement”.

Can the Minister confirm what his view is about, first, new arrangements that he believes would be in accordance with the 1998 agreement and, secondly, which new arrangements he believes would not be in accordance with it?

It is of course for the other place to rule as to whether there has been an arguable case for contempt in what we on these Benches believe to be a failure to comply with the Commons Motion of 13 November. But for the sake of our economy, our jobs and our futures, all possible information should be made available to those asked to vote on this deal. The Government should do the right thing and make the advice available. With so much at stake for all our people and with eight days now before the vote on the deal, both Houses and the country deserve better from this Government.

[Lord Thomas of Gresford (LD)]

My Lords, I too am grateful to the Minister for repeating the Statement and for giving me advance notice of what it contained. On 14 November, the Government published an explainer document in conjunction with the text of the draft withdrawal agreement. Paragraph 158 states that the agreement contains,

“assurances that we cannot be kept permanently in the backstop”.

That is not the view of the Attorney-General as set out in this Statement. He says:

“There is … no unilateral right for either party to terminate”,


the agreement. The Northern Ireland protocol places the whole of the United Kingdom in a single customs territory with the EU. As the Attorney-General’s Statement says, that will continue to apply in international law unless and until it is superseded by a permanent agreement. Northern Ireland alone must additionally follow many of the EU’s single market rules and will consequentially, whatever the DUP may say, have a different status from Great Britain.

The legal statement that has been produced today rightly focuses in particular on Article 20 of the protocol. It is not a break clause, which might in defined circumstances permit the United Kingdom to break the arrangements and walk away from the single customs territory; it is a review clause whereby one party, if it thinks fit, may seek agreement from the other that the protocol is no longer necessary essentially to protect the 1998 agreement in all its dimensions. If there is agreement, the single customs territory comes to an end but, in the absence of agreement, the dispute is to be resolved by an arbitration panel whose decision is binding on both parties. If a question of the interpretation of Union law arises, the panel cannot determine it; it must seek a definitive ruling from the Court of Justice of the European Union.

Paragraph 11 of the annexe to the legal position document suggests that the arbitration panel would be considering, for instance, whether the parties were acting in good faith or lawfully. I understand that the Attorney-General has expanded on this in another place today. I regard that as a distraction tactic. Does the Minister not agree that the real question the arbitration panel would decide is not whether the parties were acting in good faith but whether, in its opinion, maintaining the single customs territory was still necessary for the purposes of the 1998 agreement? Is not the whole purpose of the protocol to maintain frictionless trade between the whole of the United Kingdom and the EU in order to avoid a hard border in Ireland? Is it sensible to leave such a highly political and sensitive question for an arbitration panel to determine, even though it will get its law from the CJEU? If that arbitration panel says that it is still necessary to maintain the single customs territory, we remain in it. We remain in the backstop. We remain in the single customs territory. There will be no trade deals being brought into effect. Does the Minister agree that that is the legal position?

Brexit: Attorney-General’s Advice

Baroness Chakrabarti Excerpts

Thursday 29th November 2018 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to the Minister for that Statement, but with the greatest of respect, what have the Government to hide? The Motion passed in the other place the other week was completely unequivocal. It demanded the full and final advice provided by the Attorney-General to the Cabinet in relation to this deal which Parliament is being asked to approve. Surely it would be nothing short of contempt for Parliament not to disclose the full and final advice without delay.

[Lord Keen of Elie]

My Lords, the observations of the noble Baroness simply underline the prematurity of this Question. A Statement is going to be made by my right honourable and learned friend the Attorney-General on Monday. To anticipate the content of that Statement in the way proposed by the noble Baroness is wholly inappropriate. As regards the suggestion that the Government are hiding anything, perhaps I may quote the noble and learned Lord, Lord Goldsmith, who said that advice from the Law Officers is,

“covered by legal professional privilege, and is subject to a long-standing convention which prevents disclosure of the advice (or even the fact that the Law Officers have been consulted)”.

That explains why it is not appropriate for me to go further. However, to anticipate a Statement that has not yet been made is, I suggest, wholly inappropriate.

Courts and Tribunals (Judiciary and Functions of Staff) Bill [HL]

Baroness Chakrabarti Excerpts

3rd reading (Hansard): House of Lords
Tuesday 13th November 2018 Lords Chamber

[Lord Keen of Elie]

That the Bill do now pass.

[Baroness Chakrabarti (Lab)]

My Lords, I shall not trouble the House for long. Notwithstanding some differences of principle between us, I am very grateful to the Minister and his Bill team for the limited movement towards safeguards in the Bill, but it is a shame that the Bill was not a possible vehicle for the prohibition of cross-examination of domestic violence victims in the family courts. It is government policy and it would surely command cross-party and non-party support, so I hope the Minister will talk to his colleagues in government and make time for this discrete but vital measure before too long.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, we are conscious of the need to address this measure and have of course addressed it in the past. I note what the noble Baroness, Lady Chakrabarti, has said on that topic but, nevertheless, I beg to move that this Bill do now pass.

Voyeurism (Offences) (No. 2) Bill

Baroness Chakrabarti Excerpts

2nd reading (Hansard): House of Lords
Tuesday 23rd October 2018 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, as someone who has spent most of her adult life resisting unnecessary criminal offences, I know a genuine and serious gap in the criminal statute book when I see it. I therefore join the chorus of congratulations for those who campaigned for the Bill, in particular Gina Martin and the Member of Parliament for Bath, Wera Hobhouse, who supported campaigners and worked so diligently on the introduction of the Private Member’s Bill that was so notoriously hijacked and wrecked in the other place. I welcome the Government’s decision finally to own and introduce this legislation.

At first blush at least, I rather agree with the Minister and, in particular, the noble and learned Lord, Lord Judge, in their analysis of the offence. The Minister will, no doubt, say more in response to recent contributions about purposes. On my recent reading of the Bill, my first thought is that person C, as they appear in the construction of the offence, may help to take care of the distribution issue.

Secondly, the Bill creates a serious criminal offence and it is in the best traditions of the criminal statute book for such offences—particularly those that attract custody—to have some kind of mental element. On first analysis, I find the offence tight and the penalties proportionate. As other noble Lords have said, it is difficult to imagine those two purposes not being met by those who deliberately upskirt someone, who will usually be a woman. I was grateful to noble Lords around the Chamber for pointing out that, while people may have kilts and so on, it would be surprising if this did not operate for the most part as a very misogynistic criminal offence.

I welcome the Government’s recent approach to this. The delay in getting to where we are is unfortunate and, to some extent, inexplicable. Upskirting may be a crime of the modern era—notwithstanding comments made about more archaic technology—and technology has made a difference. None the less, as your Lordships have heard, upskirting has been an offence in Scotland since 2009, and that nine-year delay is inexplicable. It is almost a year since the shadow Justice Secretary asked his counterpart to act. It was the embarrassment of the actions of the Member of Parliament for Christchurch that led the Government, and the Prime Minister herself, rightly to intervene. We are all grateful for that.

All noble Lords should be clear that upskirting is a very serious violation of the privacy and dignity of the victim. It is an urgent problem that there is no specific criminal offence in England and Wales to cover all the scenarios, and this should be borne in mind in hoping for a swift passage for this legislation. As it stands, the law maintains a focus on protecting the public from potential exposure to lewd acts et cetera, rather than protecting the individual from this indignity which is very disturbing, particularly when exacerbated by publication online.

A number of cases have highlighted the failings of the current law. In 2007, for example, Simon Hamilton—a barrister, no less—was convicted after secretly filming up the skirts of women in supermarkets. However, he was able successfully to appeal on the basis that, as none of the victims had been aware of the filming and no one else had seen it, public decency could not have been outraged. Guy Knight, another professional man—a former chartered accountant—took photographs up women’s skirts on trains over a period of five months while commuting to work. He was caught after suspicious passengers reported him to the police. More than 200 illicit images were found on his phone and laptop, and 10 of the women in the pictures were traced by the police. None of them was aware in that moment that they had been photographed. Last year, he was convicted but fined only £500 and asked to pay a further £500 in costs. That is not a proportionate reflection of the gravity of this offence.

It is therefore important that women, and in particular Gina Martin, have been speaking up; the facts of her case have already been set out. Colleagues in different parties have worked closely with her and her lawyer, Ryan Whelan, since last year. It is a wonderful campaigning achievement to have garnered 100,000 signatures for their petition. It is an important recognition that women across the United Kingdom have been affected by this practice, the ease with which technology facilitates it and the exacerbation of publication. It is almost impossible to know how many victims have been affected.

It is therefore important that, notwithstanding wider concerns about other matters, we give the speediest passage to this tightly crafted criminal offence. No doubt, the Minister will respond to any concerns about the offence itself and will consider them if they are real. However, I urge noble Lords around this House to resist using the Bill for our numerous other concerns around misogyny and misogynistic crimes. During the Bill’s passage through the other place, several Back-Benchers, understandably, tabled amendments to the Bill, looking at issues such as street harassment, anonymity for victims of revenge porn, the cross-examination of victims of abuse in civil courts, and the distribution and sharing of images, and so on—which are all important matters that need to be looked at, but not so as to slow the passage of the Bill and this particular offence, which must be got right. Other matters ought to be dealt with in another vehicle.

I am therefore incredibly heartened to hear the commitment from the Government with regard to the Law Commission review of this area of law. The Law Commission is a wonderful body, designed to do just that work. There are too many crimes of misogyny and too much misogyny in the culture. In this country and all around the world, from Riyadh to Rotherham, certainly in numerical terms, gender injustice may be the greatest abuse on the planet.

I was conscious both in this important debate and in the earlier Question and exchange between the noble Lord, Lord Balfe, and the noble Lord, Lord Ashton of Hyde, that the cowardice of anonymity, when degrading or, to use the language of the Bill, “humiliating, alarming or distressing” women does not just happen online but via other vehicles as well. I take this opportunity to say in your Lordships’ House that I was reminded of this over the weekend by some of the language directed at the Prime Minister by a man—I believe—who is allegedly her colleague. That violent language was humiliating, distressing and alarming, if not to the Prime Minister herself, to every decent Member of either House of Parliament. Yes, we must legislate in many respects, but legislation is not the only way that leadership should be shown by people in political life. Forgive me for going off at that tangent, but I think that it is important.

In the meantime, I look forward to hearing the Minister’s reply and I hope we have speedy and unanimous support for the passage of this Bill.