CPS: Disclosure of Evidence

Baroness Chakrabarti Excerpts

Monday 18th December 2017 Lords Chamber

[Lord Keen of Elie]

My Lords, disclosure in the context of criminal cases has not gone backwards since 1998. There is no present intention to set up an inquiry of the type referred to by the noble and learned Lord.

[Baroness Chakrabarti (Lab)]

My Lords, I think we can all agree that early and adequate disclosure is at the heart of a fair criminal justice system. Given that the senior independent prosecutor at the Bar who averted a recent miscarriage of justice, in addition to being a senior and experienced prosecutor, is a former Conservative MP, who described a system “creaking” for lack of resources, will the Minister please consider my noble and learned friend’s request and, in any event, return to this House with a Statement after more full and adequate consideration of what happened here?

[Lord Keen of Elie]

My Lords, the matter to which the noble Baroness, Lady Chakrabarti, alludes was a recent case in which the Crown withdrew and the matter did not proceed. There is to be a joint internal review by the CPS and the police to determine what occurred in that case. With regard to the case that she alludes to, the CPS has acknowledged that its standards may have fallen below what is expected and it has apologised to all the parties involved.

Bach Commission: The Right to Justice

Baroness Chakrabarti Excerpts

Thursday 14th December 2017 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I thank your Lordships for one of the most important, thoughtful, expert, evidence-based, compassionate, passionate and yet restrained and consensual debates I have had the privilege of listening to in your Lordships’ House. It is invidious to single out contributions, because there have been so many that I learned so much from. However, I cannot do much better on the principles than by following and agreeing with the noble Lord, Lord Marks, or much better on the practical crisis we face in legal aid than the noble and learned Lord, Lord Judge.

By way of declaring my interests, I have been a lawyer all my adult life. I no longer make self-deprecating jokes about that, because politicians of both persuasions have done that to all of us for long enough. I am a member of 39 Essex Chambers and, like, I believe, the noble and learned Lord opposite, I have been a bencher of the Middle Temple since 2006. I particularly thank my noble friend Lord Bach for the work he undertook and the cross-party, non-party way in which he undertook it. Surely, the rule of law and access to justice can and must be non-negotiable. I have often thought that party politics should be about tax and spend and, to some extent, about implementing social and economic rights. However, civil and political rights ought to be agreed on by all democrats, and it is self-evident that the rule of law is essential to civilised society, let alone democracy.

The poorest and most vulnerable always suffer most from abuses of power and therefore need the law most of all to protect and empower them. In my legal career I have never been in the Rolls-Royce; I have always litigated for and against the Government and, as I say, I have always been on the bicycle, acting in the public interest for Governments of both persuasions and for those whose most important legal relationships are with local and central government.

What would it feel like to face losing your children, income, job or anything of huge importance to you without any comprehension of whether the law protects you, let alone without advice and representation to allow you to argue your case? As the noble Lord, Lord Marks, said, this is a revising Chamber where noble Lords devote hours, days and weeks of their time to getting the law just right. But that legislative scrutiny remains a dead letter in a sealed book without advice and representation for the people we come here to serve. Unfortunately, the cuts to legal aid in recent decades, and in particular the last four years, have made this lack of access to justice a reality for too many in our society.

Schools and hospitals are seen rightly as vital pillars of the welfare state, but legal advice and representation does not seem important until you are really in trouble. Like joy and grief, the law can be a great leveller, but there is no longer a level playing field in legal services. After decades of cuts, the poorest and most vulnerable are often shut out altogether from a legal system that we were once so proud of. Entitlement to legal aid is not another service; it is a fundamental human right. We on these Benches are clear that we will support and defend the principle of legal aid and reverse the alarming trend towards a fundamental denial of justice. As we have heard from so many noble Lords today, including my noble friend Lord Bach and my noble and learned friends Lord Falconer and Lord Goldsmith, in the wake of the changes wrought by LASPO, we are in a world where access to justice is a reality for too few. It is in this context that we must consider the findings of the Bach commission.

I listened carefully to the points made by the noble Lord, Lord Faulks, about the responsibility of government when it comes to funding legal aid. However, I am conscious also of the way in which legal aid can be annoying and irritating to Governments of either persuasion because, in part, legal aid is about holding Governments to account. Therefore, there may be some role for independence after the basic political decisions of funding in the round have been made.

I have various words to describe LASPO, but I will instead go back to the exquisite restraint and understatement of the noble and learned Lord, Lord Judge: LASPO was “not wise”. It has been widely criticised by expert stakeholders including the Bar Council, the Justice Committee and the Law Society. The Public Accounts Committee made it clear that in bringing in this legislation, the Ministry of Justice had not properly assessed the full impact of the reforms. That impact has proved devastating for too many.

The primary recommendation of the Bach report—a new statutory right to justice under which people have a right to reasonable legal assistance which they can afford—sends an important message. We need to fight against the erosion of rights and demonstrate commitment to the importance of legal representation.

It is important to understand the context of that recommendation. As we have heard, the number of civil legal aid matters initiated has fallen by 84% between 2009-10 and 2016-17. The number of legal aid certificates granted for civil representation is down by 36%. In November 2017, the Government stated in response to a Written Parliamentary Question that the MoJ projected departmental spending limit would be £5.6 billion in 2019-20, a cumulative real-terms reduction of 40% on the £9.3 billion limit in 2010-11. To repeat, that is a 40% cut in the space of nine years; hence the crisis in our prisons, the crumbling of our courts and the hollowing-out of legal aid. According to Amnesty, the year after LASPO came into force, assistance was given in under 500,000 cases, which was a drop of 46%.

One example of the problem is in the First-tier Tribunal asylum appeals system. Data obtained by a freedom of information request by the BBC has revealed that asylum seekers—some of the most vulnerable people in our society—are facing a lottery, depending on where their appeal is heard.

The problems caused by the new system are many and varied, and we have been given a flavour of some of the terrible problems today. I cannot address them all—and I do not intend to repeat them all—but the noble Lord, Lord Faulks, was right to single out that the exceptional case funding plainly is not working. The Government originally suggested that around 847 children and 4,888 young adults would be granted that kind of funding each year, and yet up to June 2015 only eight children and 28 young adults were granted legal aid under the scheme. The cuts, therefore, have been much deeper than anticipated by the coalition Government. It is a reason for all sides of your Lordships’ House to think again.

The pressing issue, which has been mentioned by many noble Lords today, is the abandonment of funding for most forms of early legal advice. In whatever detailed system we imagine and create in the future, we surely need to front-end the advice. We need early intervention and advice to mitigate pain, anguish, costs, court costs, litigation in person and so on. I do not need to repeat the problems that we have without early legal advice. Mediation is a great idea in principle but not if you do not have the advice to help you take forward sensible mediation. If you do, there is no inequality of arms.

The mass closure of legal aid firms is also a problem. That may not be the most popular position to take in Britain in 2017 but legal aid lawyers have been denigrated. Most are loyal public servants who could have chosen the Rolls-Royce and more lucrative careers elsewhere.

In setting out these challenges, noble Lords and the Government have an opportunity to reflect on the problems we face. However, there are also opportunities for cross-party reflection and co-operation on such a vital issue into the future. I am grateful that the Government have finally announced a review of Part 1 of LASPO. We have been promised that this will be concluded before the start of the Summer Recess. LASPO has been in place since 2012 and, to repeat the noble and learned Lord, Lord Judge, it has not proved wise. Let us all co-operate with the Government, look to reviewing it quickly and doing better for everyone in our country and for the rule of law in the future.

Brexit: Human Rights

Baroness Chakrabarti Excerpts

Tuesday 12th December 2017 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, it has been an absolute privilege to listen to this important debate instigated by my noble friend Lord Cashman and to listen to so many eminent speakers from all sides of this House. It is wonderful that we have marked Human Rights Day in this way, and I agree that we should do so every year as one small contribution to our commitment to human rights in this House. I am also delighted that more than half the speakers in this all too short debate have been women. Women’s rights are human rights, as I am sure we will discuss much more next year as we mark 100 years of the Representation of the People Act. That was achieved through struggle, including very serious struggle and trips to prison, force feeding, torture and so on—not just gradualism but very hard won rights indeed.

Last week, I had the pleasure of accompanying the Leader of the Opposition, Jeremy Corbyn, to Geneva, to hear him address the UN there. In that address, he outlined his plans for a new approach to foreign policy based on solidarity, international co-operation and human rights. He said clearly:

“The survival of our common humanity requires nothing less”.


This approach will place human rights at the centre of Labour policy, at home as well as globally, and it also categorises our Brexit position. Labour has been consistent in calling for retaining workers’ rights protections, environmental and animal welfare standards, and on the incorporation of the European Charter of Fundamental Rights into British law. Under a Labour Government, that is the vision for a post-Brexit Britain, based on our values of co-operation and internationalism.

In stark contrast we heard the Prime Minister’s conference speech in September, in which she laid out her party’s philosophy and vision for a post-Brexit Britain, beginning with the now infamous quote, “If you believe you’re a citizen of the world, you’re a citizen of nowhere. You don’t understand what the very word ‘citizenship’ means”. That negative view of internationalism speaks to a creeping xenophobia that was not sated by the EU referendum result and continues, I am afraid, to colour too much thinking from the party opposite on Brexit negotiations. I therefore ask noble Lords on all sides of this House to look at the use by the Government of the rights of EU nationals resident here as a bargaining chip in the talks, leaving them in limbo for the last 18 months. I agree with my noble friend Lady Whitaker that the Roma people are perhaps one of the most demonised minorities in Europe, and we should give particular care to their treatment in the months and years ahead.

I am afraid that Mrs May and her Government have consistently demonstrated a lack of support for European human rights law—the same laws, as my noble friend Lady Kennedy said, that we Britons were so instrumental in creating and which set the historic status of the UK as a global leader on equality and human rights on the world stage. That status is now in grave peril.

More worrying still is the lack of will and a culture of disregard for the importance of human rights and sometimes even for the rule of law. I talk in particular about the recent statement made by the Defence Secretary that terrorists should be “eliminated”, with no reference to due process, and of course refer also to other Ministers’ intention, repeated over many years, to scrap the Human Rights Act in favour—no question—of a lesser instrument that would protect people differentially, not least on grounds of nationality or other badges of worthiness.

More worrying still, the Government are now tasked with the complex negotiations for the UK’s exit from the European Union, and have given us no reason to believe that they have a true commitment to human rights. In spite of repeated assurances that the withdrawal Bill will maintain the status quo, various rights and protections have been explicitly excluded, in particular the European Charter of Fundamental Rights, which the Government maintain creates no new rights. That is simply not the case; if it were, the Brexit Secretary, Mr Davis, would not have needed to rely on it in his own ultimately successful challenge to the Data Retention and Investigatory Powers Act.

It is simple: losing the charter means losing rights. I agree with others who said that, in particular the noble Baroness, Lady Meacher. The charter created new rights; for example, Article 8 on data protection, Article 13 on academic freedom, Article 24 on the rights of the child, Article 26 on disabled people’s rights, Article 21 on sex discrimination, and so on. The Equality and Human Rights Commission, the British Institute of Human Rights and the Law Society and so many other vital civil society stakeholders have expressed concerns about the loss of the charter. Moreover, the Human Rights Act is still in jeopardy, as is, potentially, our continued support and signatory status to the European Convention on Human Rights itself. We heard from my noble friend Lord Cashman and the noble Baroness, Lady Warsi, about our poor response to the UN Human Rights Council’s periodic review of human rights compliance in this country.

Fundamentally, it is a question of what kind of Britain we want to build post Brexit. Some want a race to the bottom and we want a race to the top. We want to champion the rule of law and progressive values and not allow a bargain-basement Britain, where you pay no tax and low wages and have no standards for employment protection, human rights, workers’ and disabled people’s rights, environmental rights, equalities and ethical business. We want to match European and international standards. No, we do not want to match them—that is not enough. We want to raise them.

Guardianship (Missing Persons) Bill

Baroness Chakrabarti Excerpts

2nd reading (Hansard): House of Lords
Thursday 6th April 2017 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, what a privilege to follow the hard work and moving speech of the noble Baroness, Lady Hamwee. We on these Benches are more than happy to support the Bill at its Second Reading. It provides a much-needed remedy to the sometimes devastating financial and legal problems faced by the families of missing persons as a result of a gap in the law, which has remained unfilled for far too long.

As we have heard, each year more than 80,000 adults are reported missing to British police forces. Mercifully, most are found safe and well within the first week but around 4,000 remain missing for more than seven days and up to 1,500 adults are missing for longer than a year.

For the families left in limbo, the pain of not knowing where their loved one is or what has happened to them is compounded by a range of serious practical, financial and legal difficulties as the result of a disappearance. The vanishing of the individual has no legal impact on the person’s obligations and commitments. As a result, their affairs may be unmanaged and unprotected for the duration of their absence. Without a court mandate, institutions such as banks or insurance agencies are limited in how they can deal with those left behind. This can have disastrous repercussions, particularly for those who have shared assets or liabilities with the missing person, or for those financially dependent on them.

The creation of a new legal status of guardian of the property and affairs of the missing person would mean that families had an alternative and more immediate recourse when seeking to protect the financial and legal interests of their loved one. Under current law, in the Presumption of Death Act 2013, family members must wait a minimum of seven years before application can be made for a declaration that a missing person is presumed dead and their property can pass to others. Under the Bill, applications can be made after 90 days following a disappearance, and the court would be able to tailor the terms of the appointment of a guardian to the circumstances of the missing individual.

The charity Missing People has been campaigning to fill the gap for nearly six years, launching its Missing Rights campaign in 2011. Your Lordships will remember that, following calls for reform, the coalition Government launched a consultation in 2014, and in 2015 confirmed that they would legislate to create a new legal status of “guardian of the property and affairs of a missing person”. Despite a Written Statement from the then Justice Minister, the noble Lord, Lord Faulks, in which he expressed his hope that legislation would be brought forward without delay in the new Parliament, it failed to materialise. Today, however, by means of this Private Member’s Bill and through the admirable hard work of Kevin Hollinrake MP in the House of Commons and the noble Baroness, Lady Hamwee, resolution for families left behind is finally in sight. We owe a substantial debt of gratitude to both parliamentarians.

This much-needed legislation would plug a legal lacuna that has been acknowledged by the previous Government, the present Ministry of Justice and, as of late March, honourable Members in the other place. Support for the Bill in its current form has also been expressed by a variety of stakeholders including the charities Missing People, Prisoners Abroad, Hostage UK and the Council of Mortgage Lenders.

As my colleague in the other place, Richard Burgon, said at the first sitting of Committee on the Bill:

“We must not drag our heels”,—[Official Report, Commons, Guardianship (Missing Persons) Bill Committee, 21/2/17; col. 5.]


when there is political consensus on the need for and appropriateness of this legislation. So I urge your Lordships to lend support to this fine Bill and to help ease at least the practical burdens—if not, unfortunately, the ongoing emotional suffering—of those families who continue to wait for news of a loved one or their return.

Finally, if I may, I thank all of your Lordships for your company and courtesy, and for the enormous contribution that you have made to the life of this country in recent weeks and months. I wish you all a very happy Easter with your own families.

Rehabilitation of Offenders (Amendment) Bill [HL]

Baroness Chakrabarti Excerpts

2nd reading (Hansard): House of Lords
Friday 27th January 2017 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, my noble friends and colleagues are far too kind in giving me this opportunity to respond to a debate in which I think I have agreed with every word that has been spoken from across the House. The debate has been particularly pointed for both the humanity and logic in the contributions from all sides. It is always a particular privilege to listen to the noble Lord, Lord Ramsbotham, on any issue relating to prison reform and rehabilitation more generally. I must confess that when I was a child, the name Rambo conjured a rather different figure—a bloodthirsty cinema character played by Sylvester Stallone. Years later, when I entered the law, then the Home Office and finally a human rights NGO, the name Rambo was often whispered. I came to realise that it was the noble Lord, Lord Ramsbotham, to whom everyone referred. He has an incredible record of holding successive Governments to account on urgent issues—becoming increasingly urgent, I might add—in our penal system. It is in this knowledge that I completely support from this side his call for a Second Reading of this important Bill and everything he is trying to achieve by bringing it forward.

As we have heard, the Bill seeks to reduce rehabilitation periods and is one aspect of vital reform that is necessary to the now completely outdated 1974 Act. Despite commitments from successive Governments to push through reform in this area—we heard about the excellent Breaking the Circle report, produced by the Labour Government in 2002, to which the noble Lord referred in his introduction—we have seen only incremental changes over the years. That Act is now completely inconsistent with contemporary sentencing practice. The result is that, far from allowing reformed individuals the second chance that is promised in the Act, its shortcomings leave many excluded from any prospect of rehabilitation and meaningful employment after they have completed their sentences.

Under the current legislation, as we have heard, the rehabilitation periods—in truth the disclosure periods—are overlong and not based on any real evidence. For those serving sentences of over four years, convictions can never be spent. Individuals are therefore forced to live with the shadow of their convictions, through a lifetime of disclosure and without the prospect of review. In addition, the legal regime relating to criminal record exposure, as laid out in the 1974 Act, is inclusive of children. Children, who find themselves exempt under this Act from the presumption that their spent sentence will not be disclosed, face a very uncertain future of indefinite disclosure, alienated from opportunities in education, employment and housing. As we heard from the noble Lord, Lord Dholakia, sentencing inflation over the years has changed and weakened the efficacy of the original 1974 Act regime.

In terms of non-disclosure of convictions, rehabilitation is just one part of a system that is supposed to serve those individuals and the general public. It is an essential tool in reducing crime and ensuring public safety. For our criminal justice system to be effective, it must be reformed in the round. We face a crisis in our prisons. Cuts to public spending under this Government, I am sorry to say, have been at the expense of prison security and public safety. Currently, over 84,000 prisoners are held in just 118 prisons, 75 of which are overcrowded. These 118 prisons are underresourced, understaffed and increasingly, dangerous places of violence. The Secretary of State herself has admitted that rates of violence and self-harm have increased significantly over the past five years, with 6,000 assaults on staff and 105 self-inflicted deaths in the 12 months leading up to June 2016. Since then, we have seen riots in six prisons across the country. It is not surprising in this context that our prisons are failing to deliver rehabilitation and, alongside a privatised probation service, are failing to reduce reoffending.

Against that backdrop, I share the noble Lord’s frustration with the much-anticipated White Paper, Prison Safety and Reform, published in November. Far from being,

“a blueprint for the biggest overhaul of our prisons in a generation”,

as promised, it lays down only sketchy policy objectives, very little guidance on implementation and even less on cost. The debate today takes place in this wider context and I urge the Government to respond to this Bill. I understand that the noble Lord, Lord Ramsbotham, intends to initiate a more substantial, cross-departmental review, beginning with criminal records disclosure and ending with the criminal justice system as a whole.

Finally, I commend the noble Lord, Lord Ramsbotham, for his perseverance and courage in bringing this issue back again and again. Yes, ultimately, this is an issue of human rights, but it is also one of sound public policy. He has dedicated so much of his working life to this and I hope to continue to dedicate mine in the same way. I look forward to making contributions to this House and to his campaign.