Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Kennedy of Shaws Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 24th November 2020 Lords Chamber

[Lord Dubs (Lab) [V]]

My Lords, I remind the Committee again of my membership of the Joint Committee on Human Rights and the fact that the amendments in this group stem from the committee’s report, published some time ago, looking into the overall workings of the Bill.

There is widespread agreement that there should be oversight of criminal conduct authorisations. However, there is a dispute over whether that oversight should take place after or before the event. The point of the amendment is that there should be a requirement for prior judicial approval of such authorisations, with a possible provision for urgent cases in exceptional circumstances. The Bill does not provide for any independent scrutiny of criminal conduct authorisations before they are made and acted upon. There is the possibility of a review of such authorisations through the Investigatory Powers Commissioner but that would be after the event, by which time it is too late to influence whether an authorisation should have been granted. Nor does the Bill provide for the IPC to be informed of authorisations at the time they are made so that proper scrutiny can take place. That is surely the nub of the matter. Under the Bill, there would be no chance to look at authorisations until some time after the event.

The Joint Committee on Human Rights report stated that the lack of prior independent scrutiny for CCAs under the Bill stands in marked contrast to the procedures in place for other investigative functions such as police search warrants and phone tapping. That was mentioned at Second Reading. The noble Lord, Lord Macdonald, a former Director of Public Prosecutions, has stated:

“Under this bill it will be easier for a police officer to commit a serious crime than to tap a phone or search a shed.”


That is a pretty powerful statement. The powers of oversight are not proportionate to what is at stake, which is much more crucial than deciding whether the police can tap a phone or search a shed, important as those things are.

I should like to give a number of examples. If we had had oversight before the event, certain procedures would not have been followed. The most obvious was in Northern Ireland in relation to the death of Patrick Finucane and looked at in a report by Sir Desmond de Silva QC. He made a number of important points about the need for proper scrutiny of the powers being exercised, which would be exercised more freely, I contend, under the Bill. He said in his report:

“It is essential that the involvement of agents in serious criminal offences can always be reviewed and investigated and that allegations of collusion with terrorist groups are rigorously pursued.”


He did not quite say that that should happen before the event, but I contend that if it had been possible to do so, the tragic death of Patrick Finucane might not have happened and things would have been stopped in their tracks. Sir Desmond made some powerful conclusions that are entirely consistent with the requirements of human rights law. I will not quote all his comments, but the key question asked by the JCHR report is:

“Does the Bill provide the rigorous framework of oversight and accountability necessary to safeguard against abuse of the exceptional power to authorise criminal conduct?”


The committee also received evidence from the human rights organisation, Justice, which described the Bill as being,

“extremely limited in its oversight mechanisms”

and summarised its safeguards as “woefully inadequate”.

We all know about the tragic racist murder of Stephen Lawrence. The Lawrence family was apparently kept under surveillance afterwards. I contend that if there had been a proper system of oversight before that type of surveillance was exercised, it would not have been allowed and would have been stopped in its tracks, yet it went unheeded. I fear that anything similar would not be stopped by the safeguards in the Bill because they are woefully inadequate, as Justice said.

The third group of surveillance victims would be trade unions and other active organisations. We know that trade unions and environmental groups have been kept under surveillance. Those things would not have happened if such an amendment had been in place. It seems perfectly reasonable to require the tightest oversight of such extreme powers in a democracy—they are not minor powers—before the event. If something is being authorised that should not be, we would have at least one layer of safeguard to stop it going any further.

Amendment 59 is a let-out, providing that urgent CCAs can be granted without prior approval but must be confirmed by a judicial commissioner within 48 hours of being granted or they will cease to be valid. These powers would be applied only when there is an urgent case.

It is clear that whereas we all agree on oversight, what really matters is oversight before the event. The Bill must be amended to include a mechanism for prior judicial approval of CCAs in order to safeguard the human rights that we all believe in. I beg to move.

[Baroness Kennedy of The Shaws (Lab) [V]]

My Lords, by and large, I endorse what my noble friend Lord Dubs said. It is right that there need to be greater safeguards than there are in the Bill, which are not sufficient. Having public bodies essentially authorise themselves to conduct surveillance and undercover operations is unsatisfactory.

Criminal conduct authorisations are particularly invasive and warrant more scrutiny. The lack of scrutiny could be remedied by introducing approval from a judicial commissioner. This is where I am refining what my noble friend is asking for. I should declare that I am the president of Justice, which has carried out a significant amount of work on this issue and is the organisation that brings the legal profession’s expertise to it. It is suggested that there is already a cohort of very experienced judges who are used to dealing with difficult, sensitive material, as there would be in these cases.

We recommend that there should be judicial commissioners who are expert judges, senior in the profession, experienced in making quick decisions on sensitive material and—I say this in relation to the urgency issues so that my noble friend Lord Dubs can take that off the table—are available 24/7 when necessary. It is a bit like the need for judges to be on call for injunctions: if something comes up and there is a need for urgency they can deal with that because they have the expertise to sift difficult material and make complex decisions. It is important to emphasise that they are already part of the Investigatory Powers Commissioner’s Office. There is no reason why they cannot adapt. Judges are eminently adaptable, especially when they are of this seniority and experience, where they can do it as a prior scrutiny operation. They are used to dealing with these types of difficult operations and they are not junior members of the judiciary. I am anxious that my noble friend’s suggestions might lead to rather low-level judges overseeing this. They tend to be more inclined to accept things that the police and security services say to them.

For those reasons, I make the plea that the Government look at judicial commissioners as the appropriate place for creating some kind of proper scrutiny. Unfortunately, the Government are currently saying that there is no need for authorisation from a judge or judicial commissioner by way of a warrant, nor approval by the Secretary of State. The flaw in all this is that they are saying that it is enough, as the main safeguard against a public body carrying out unjustified surveillance or inappropriate undercover operations, for a senior official in their own organisation to authorise it. I am afraid that is marking your own homework. Even the most diligent official can struggle to be objective under pressure, particularly if their organisation has to meet targets or achieve certain results because of public demand at a particular time. We sometimes see that in relation to things such as terrorism.

The pre-existing safeguards in the present RIPA regime are already insufficient for the creation of undercover agent operations. Judicial approval is all the more necessary for the exercise of this new power. The Government claim that prior judicial authorisation is not necessary. James Brokenshire MP, the Minister for Security, only last month said in the House of Commons:

“The use of CHIS requires deep expertise and close consideration of the personal qualities”


of that particular undercover operation,

“which then enables very precise and safe tasking.”—[Official Report, Commons, 5/10/20; col. 662.]

I am sure that that is true, but this argument, which prioritises operational need over independent assessment, is not convincing. There is a significant difference between authorising passive undercover observation and proactive criminal conduct.

Our former Director of Public Prosecutions, the noble Lord, Lord Macdonald, has been quoted already. He agrees with me and my noble friend Lord Dubs that there has to be much better scrutiny. He would actually go further than my noble friend and thinks that it has to be at a high level. He says:

“There is no comfort in allowing senior figures in the police or the intelligence agencies the power to sanction lawbreaking, without the need to first obtain independent warrants from judges or some other”


judicial “authority”.

The benefits of judicial authorisation are further detailed in the case of Szabó and Vissy v Hungary, where the court held that it offers the best guarantees of independence, impartiality and a proper procedure. It is particularly pertinent in the case of surveillance, which is, to quote from that case,

“a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society”.

The quote concludes that

“it is in principle desirable to entrust supervisory control to a judge”.

Such scrutiny could be highly compelling for the potential use of CCAs.

Queen’s Speech

Baroness Kennedy of Shaws Excerpts

Wednesday 8th January 2020 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, as the noble and learned Lord, Lord Brown, has just said, there are ways of having a discourse about legal judgments even by our Supreme Court. One should conduct oneself in a sane and careful way. Last week we were subjected to the unseemly spectacle of the noble Lord, Lord Howard, red in face, frothing with indignation, fulminating against the judges of the Supreme Court and saying that they had committed a heinous outrage. They had reached a decision he did not like. The Supreme Court had found that the Prime Minister had behaved unlawfully in his attempt to prorogue Parliament; we all know the story and about the Policy Exchange debate.

What made the outburst all the more risible was that not very long ago the noble Lord, Lord Howard, had very loudly claimed that he wanted to leave the European Union to get us out of the European Court of Justice, to restore faith in our courts and particularly our Supreme Court, and to put it back at the apex of our legal decision-making—somewhat different. It almost seems that the noble Lord is protesting too much. Maybe it is the law, the rules and the decision that he does not like, whatever court he disagreed with.

I remind the House that that decision was unanimous and made by some of our finest legal brains, but that does not matter a jot to some. The decision was portrayed by the right wing of the Conservative Party as Brexit bias. Jacob Rees-Mogg branded the decision a “constitutional coup” and the MP Desmond Swayne called for the Supreme Court to be abolished. Geoffrey Cox, the Attorney-General no less, questioned the moral authority of the court and suggested that we might have to look at how our judges are appointed, even suggesting that we might look to America. That has been terrific, it would seem. The idea was that we would test the political opinions of those being appointed. Leave.EU, the Brexit campaign group, declared that we had an

“elitist Remainer logic at the top of our judiciary.”

We can laugh about all this stuff, but it is actually distinctly and seriously damaging. We are talking about trust in our constitutional arrangements, and if anything is destructive of trust it is disgracefully dismissing our senior judiciary in this way. Law matters, the rule of law matters, and I am glad that Robert Buckland, currently in the position of Lord Chancellor, is more robust in his protection of it than many of his colleagues.

Of course, the role of the courts has grown in our societies, because our societies have all become more complex. There has been a consequential growth in governmental functions, and at times they have to be challenged. The responsibility of judges is to resolve disputes not just between citizens but between citizens and the state. Judges have the duty to protect citizens against the overreach of Governments.

I heard it suggested by one of our newcomers—I welcome the noble Lord—that the remedy is to vote the rascals out. Tell that to the Hillsborough families who time and again had to seek a proper inquest. Tell that to the parents of the young woman soldier who committed suicide; then, after an inquest made after a judicial review, it was found that she had been subjected to a culture of bullying and harassment.

Much of the legislation that we pass in these Chambers has gaps that fail people, and there have to be methods to deal with injustice. The judges in a nation have to be free to exercise their judicial powers independently of the state, the media, powerful individuals and entities such as large corporations and so on. We know that matters. It is not enough just to talk about the rule of law; we have to mean it.

I share the concerns of others about what the purpose of this constitutional convention might be. The questions of any sensible person should be: “Are such proposals for constitutional change really a democratic necessity or a cynical attempt by the new Government to bolster their power? Are there plans to curtail the power of our judges? Does updating human rights law mean more rights or fewer rights for certain people?” I think I know the answer. There is clearly a policy yet again to limit access to judicial review, a process by which people can challenge decisions made by public bodies. Again, is that not liked because it was used to secure the judgments in the Supreme Court on Brexit? Was it displeasure with these rulings that motivates the updating?

I want to say this: Mr Johnson is willing to break laws, evade scrutiny and mislead the public in order to secure power and get his way. I am afraid that that is true of narcissistic, authoritarian Governments the world over; they are usually led by such people. I am concerned that he has oft got at his elbow the malign force of Mr Cummings, who believes in a scorched-earth policy when it comes to some of our most valued institutions. We must be careful: if we value our liberty and democracy, we will all have to be on our mettle. Complacency will carry a very heavy price.

European Union (Withdrawal) Bill

Baroness Kennedy of Shaws Excerpts

Report: 5th sitting (Hansard): House of Lords
Wednesday 2nd May 2018 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, in giving that very powerful list of what happened in that process, my noble friend has not mentioned the fact that southern Ireland also changed its constitution, whereby the claim it had always maintained to the six counties of the north was removed from the constitution of southern Ireland. In terms of symbolism, it was a huge change: we have to remember that it was not just the pragmatism of those in the north and in other parts of Britain, but also the pragmatism of those in the south who wanted peace too.

[Lord Murphy of Torfaen]

My noble friend is absolutely right: it was a huge development, and of course all this was voted on in a referendum, north and south. In both Northern Ireland and in the Republic of Ireland, there were big majorities for precisely that.

But Brexit does affect where we are in Ireland and affects the principles of the Good Friday agreement to a certain extent. In the first place, Ireland, of all the 27 countries left in the European Union when we have departed, will be the most affected by Brexit; of that there is no doubt. It also means that some unionists in Northern Ireland—not all—now believe that exiting the European Union will in some way reinforce their Britishness. Some nationalists and republicans—not all—believe that Brexit will bring a united Ireland closer. None of that helps because at the end of the day the agreement was about an agreed island.

The noble Lord, Lord Hay, talked about the need for balance in all this. He was absolutely right: that balance can be upset by what is happening as a result of the debate on Brexit—not necessarily Brexit itself, but the debate on it. The purpose of the amendment before us is to enshrine the principles of the Good Friday agreement in the Bill.

Non-Disclosure Agreements

Baroness Kennedy of Shaws Excerpts

Tuesday 1st May 2018 Lords Chamber

Asked by

[Baroness Kennedy of The Shaws]

To ask Her Majesty's Government what steps they are taking to ensure that non-disclosure agreements are not used to cover up criminal behaviour or silence victims, and that there are no financial or other consequences imposed when a breach of an agreement is in the public interest.

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

My Lords, non-disclosure agreements cannot prevent any disclosure required or protected by law. A court could find a non-disclosure agreement to be void or decline to give effect to it for reasons of public policy. The Government are looking at the structures around non-disclosure agreements and the evidence coming forward about how they are being used.

[Baroness Kennedy of The Shaws (Lab)]

Noble Lords will know that after the great surge of disclosure when Harvey Weinstein’s sexual abuse came to light, those very serious allegations gave light to many other instances of women in the workplace experiencing sexual abuse and drew attention to bullying experienced by men and women both. A light has been shone on the fact that non-disclosure agreements are used all too often to silence complainants who have experienced harassment of a sexual nature that sometimes falls short of criminal behaviour. Do the Government agree that they should give a clear statement, and, if possible, bring legislation, to say that it is not right to use non-disclosure agreements in this way for the purpose of silencing complaint?

The second matter is that we also know that many employment contracts now contain a clause to say that there has to be recourse to arbitration if there are any complaints or matters of dispute to avoid court hearings. Again, that silencing is often used to prevent those who are suffering harassment and abuse in the workplace from taking their cases forward. Should something not be done about that?

[Lord Keen of Elie]

My Lords, the Employment Rights Act 1996 makes two things clear. First, if an employee does not get independent legal advice regarding such an agreement it will be void. Secondly, it ensures that where a non-disclosure agreement has been entered into it does not affect the right of the employee to make a protected disclosure—that is, a disclosure that pertains to various forms of wrongdoing and is made to a protected party.

European Union (Withdrawal) Bill

Baroness Kennedy of Shaws Excerpts

Committee: 4th sitting (Hansard): House of Lords
Monday 5th March 2018 Lords Chamber

[Lord Farmer]

I thank the noble Lord for another intervention. They are a matter of negotiation and finding the best practice, as they are even with the EU. As I said, up until now they have operated well with other Governments around the world. They work well in the USA, Canada, Australia and countless other countries.

The narrow definition of family law in Amendment 336 ignores certain EU laws on the service of documents and taking evidence because we have perfectly satisfactory alternatives through Hague worldwide laws. Moreover, working with worldwide family laws with countries across the world, not just Europe, fits in entirely with the Government’s intention that on leaving the EU we will be a worldwide-facing country, looking at our global role and using the leading initiatives and developments in the UK to aid and encourage other legal systems.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I am sorry that I was not here at the beginning of the discussion on this amendment. My name is on a later amendment associated with the discussions on family law. As many in the House know, I chaired the group in the European Union Select Committee that dealt with family law. We created the report referred to by the noble Lord.

It is just not true that world law deals with this issue just as well as European law. Every family lawyer will tell you that some directives have made a huge difference to the safeguarding of children, women with abusive husbands and enforcing maintenance orders made in this country. Those directives can be enforced in another country in Europe with great ease without someone having to get themselves lawyers over there. However, you cannot do that with the United States. You have to get yourself “lawyered” up to the eyeballs in America to deal with your husband taking your children there and not returning them to you. If your partner goes off to another part of the world and is not paying maintenance, it is a very expensive and problematic business to get maintenance paid for your children, who need it. Therefore, I ask the noble Lord to please not mislead the House by saying that there is an equality of arms in this respect around the world. That is not true. We seek a mechanism to make this system operate after we leave the European Union—some kind of agreement that makes it possible for children, and perhaps abused partners, to have proper mutual recognition arrangements to enable them to seek remedies and enforcement easily. That is the point of this and that is what is misunderstood by the noble Lord.

[Lord Farmer]

I thank the noble Baroness for her intervention. Perhaps I can speak to her afterwards concerning countries outside the EU. It is worth mentioning that Professor Beaumont who I mentioned earlier—a leading expert on both the EU and The Hague—said in his opinion that The Hague alternatives are perfectly adequate and satisfactory on our leaving the EU. Apparently, the House of Lords committee does not seem to have heard this evidence.

I am sure noble Lords will be pleased to hear that I am coming to the end of my remarks. This amendment should be rejected because it concentrates on the UK remaining Eurocentric, not global, which is an important point if we are leaving the EU. Academics and lawyers who would have spoken favourably about the Hague laws were not consulted by the House of Lords Justice Sub-Committee, yet practitioners and others have described to me the incredible benefits to children and families from the UK being part of these worldwide international laws.

European Union (Withdrawal) Bill

Baroness Kennedy of Shaws Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 26th February 2018 Lords Chamber

I hope the Minister will be able to say something at the end of this debate about these points. Above all, the call is for greater specificity regarding the Government’s plans. The Prime Minister seemed to set out down the right road towards that in Munich, but they remain shrouded in a good deal of mystery.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, there cannot be anyone in this House who does not agree that the security of this country is vital and that collaboration in fighting crime is really important. We have to remember that international cross-border crime is one of the real challenges that we face. It has been made easier because of developments in recent times, such as the electronic transfer of money, the ease of travel and the whole business of communicating by cell phones, email and the like. Just as that makes it possible for us to trade, it makes it much more possible for illicit trades to take place, too, so international cross-border crime is something that we really have to contend with in a way that was not the case 50 years ago.

Countering cross-border serious crime, whether it is terrorism, the transportation of drugs, the importation of firearms or all manner of illicit products or trading in human beings, involves incredibly important collaboration and co-operation, so like other noble Lords I welcome the fact that the right noises are being made about future co-operation in policing and security matters, particularly because of the real complexity of this stuff. I was with a group of recently retired senior counterterrorism police officers and someone who was about to retire last Thursday talked about the invaluable nature of these collaborations and the ways in which the European arrest warrant, Eurojust and the things on the list that was read out by the noble Lord, Lord Hannay, are so vital in countering this really serious level of crime. If you can penetrate the dark web, it shows just how active this criminality is.

I strongly support Amendment 13, tabled by the noble Baroness, Lady Ludford, and other noble Lords, but it raises an issue. The issue is that, if we are going to use something like the European arrest warrant, it involves something different from the need for arbitration or for some supranational tribunal to deal with trading disputes, as the noble Lord, Lord Hannay, said. This is of a different order. When we are dealing with something like the European arrest warrant, we are talking about the liberty of the subject. We are talking about people being arrested, kept in custody and transported from one place to another. The rights of the individual there are so significant that we have to have a court with highly trained judges at the apex of any legal system because people resist the possibility of being transferred for criminal trials to proceed.

I want to reiterate what the noble Lord, Lord Hannay, said about the old days. It would be a frequent occurrence that attempts would be made to extradite people and it took years. People were able to resist extradition for years. I see the noble Lord, Lord Thomas of Gresford, in his place. Once, many years ago, he led me in a case that involved lengthy extraditions and had gone on for years. The arrival of the arrest warrant put paid to that. The difference it has made has been considerable. The UK has extradited 1,000 people to other parts of Europe to be prosecuted for serious crimes and has received some 200 individuals from other places for serious crimes. I urge the Committee to think through the consequences of that. We need to have a court at the apex of this, and the court that is sought by the rest of Europe is the European Court of Justice, which already exists and knows and understands the nature of these processes. What do we do? Do we create some new court which has all the same powers and just give it a different name in order to appease those who do not like the European Court of Justice, or do we recognise that for this area there has to be the jurisdiction of the European Court of Justice?

A number of amendments in this group are tabled in my name, and I want to refer the Committee to them. Amendment 99 relates to the protection of “protected persons”. This may be something that noble Lords are not really aware of, but we adopted the European protection order directive in 2014. This relates to difficulties which are faced mainly, but not exclusively, by women who are stalked or victimised, often by former partners, and who go to live in other parts of Europe. Across Europe we have developed victim protection orders which involve mutual recognition so that, if someone stalks someone to somewhere else but we have created a protection order in the UK, it can be immediately made effective in another country where someone has pursued the person who is the obsession at the end of their malign intent. Such victim orders are used not just in relation to domestic violence and the stalking that happens in relationships but in relation to other forms of stalking, for example, in witness protection issues or in trafficking. It is an area in which I have particular experience, and these orders are going to be vital in providing protection for people in different jurisdictions. I really hope that, in seeking to create the right kind of regime for us to operate across Europe in relation to these criminal matters, we also protect the victim protection order regime—the European protection order regulations—as well.

The other matter on which I have put forward an amendment, in which I am supported by the noble Lord, Lord Paddick, and my noble friend Lord Judd, relates to justice and home affairs measures. I know it is the Government’s objective that some of these processes continue after departure. We are most concerned that there is a serious understanding of what mutual recognition means. There is some concern being expressed in other parts of Europe that we do not use the terms mutual recognition and harmonisation in quite the way that is intended when it comes to this collaboration on criminal and civil matters. I have spoken about this before in the House. It is about the fact that it is not enough to introduce European law into the UK, as some of these regulations require reciprocity of a very deep kind. It means that we will respect orders made in other countries and that they will respect orders that we have made here.

Think of the difference that it makes to a woman whose family are in Germany and who takes her children there to visit them, but who after a divorce is being harassed and stalked by her previous husband. She can get an order in her local court and know that when she goes to visit her family in Germany, the order will operate there too if she is pursued by her former—abusive and violent—partner. We know that this also happens in relation to matters such as access to children, where people can get maintenance orders in the local court: you can go down to the court in Bromley, get your order and it will be made effective in another country in Europe. It is so important that people do not have to instruct lawyers in other places, when they could ill afford to do so and thereby secure justice in the circumstances they find themselves in.

The mutuality there is of a very deep kind. Just introducing European law into our system and legislating for it will not be enough. What we really require is something that creates a regime that continues what has been established with great care over very many years.

[Baroness Massey of Darwen (Lab)]

My Lords, Amendment 209, which is in my name, follows directly from the remarks of my noble friend Lady Kennedy, so I thank my noble friend Lord Adonis for allowing me to slightly skip the order.

The amendment echoes the concerns of others, notably the noble Lord, Lord Hannay, and my noble friend Lady Kennedy about the UK’s access to and participation in Eurojust, Europol, ECRIS and the European arrest warrant. This also includes the database of the Schengen Information System II and the European protection order—I think we must have covered them all between us. I want to look at this from the perspective of child protection. This amendment has implications for a huge area that includes child trafficking, child abduction, forced migration, sexual exploitation, criminal proceedings, online abuse and missing children—a long list of concerns, also mentioned by my noble friend and the noble Lord.

--- Later in debate ---

In conclusion, there are probably two major reasons why I think that we ought to achieve this agreement with Europe. First, examples were given of where there is not a perfect arrangement—Denmark was mentioned. However, Norway is not a member of the European Union but is a member of Europol and seems to enjoy many of the benefits that European Union members obtain. Secondly, although it is true that we do not want to become a Costa del Sol for criminals, neither does any other country want to receive our criminals. There is no great benefit for our country in seeing our rapists walk free in other countries, or in seeing their armed robbers walk free in the UK—so it would be hugely mutually beneficial to achieve speedy transit between all countries, and it ought to be possible to achieve some kind of reciprocity that would at least mimic the benefits of our present system. That is vital for the operational work of police officers in the ways that I hope I have described.

[Baroness Kennedy of The Shaws]

How do you make that effective if you do not have the European Court of Justice at the apex?

--- Later in debate ---

[Lord Faulks]

My Lords, I am sure that the Committee will be greatly moved by what the noble Lord, Lord Cashman, has said. Everyone is concerned to protect human rights but we must not fall into the trap of saying rights are good and therefore, more rights are better.

The role of the Charter of Fundamental Rights in our law has been an uncertain one. The noble and learned Lord, Lord Goldsmith, has had a great deal to do with it and knows a great deal about its creation; he played a part in its drafting. He got his retaliation in first at Second Reading and today, knowing that it was going to be pointed out to him that he was not initially an enthusiast for the charter because of the apparent disorder it might create in the rights architecture of our law. There is nothing wrong with changing your mind. It is quite a fashionable course for the party opposite to take at the moment. My difficulty is not with the change of mind but the fact that I agreed with his original stance, which was that adding the charter, which was designed for an entirely different purpose, ran the risk of undermining the clarity and cogency of our law.

I have some experience of the way rights are played in court. I was part of the Commission on a Bill of Rights, together with the noble Baroness, Lady Kennedy, who is in her place. I was also a Minister with responsibility for human rights. I have considerable experience over the past 20 years, following the incorporation of the European Convention on Human Rights by the Human Rights Act, of acting for public authorities which have been sued for alleged violations of those rights. Rights are very difficult to interpret, whether they come from a declaration, a charter or a convention. Inevitably they tend to be expressed in general terms and leave a great deal to individual judges to interpret and try to make practical sense of.

Most of the rights contained in the charter—obviously, some of them are inappropriate—are not controversial in what they seek to protect. What is far more controversial is how these rights should be interpreted. My right may be in conflict with your right. The protection of my right may have to be sacrificed or modified by the need to protect others’ rights or the powers that the state may inevitably have which affect or modify those rights. Of course we need to protect children, the disabled and the vulnerable in society, as a number of noble Lords have pointed out. Most of what we do in Parliament is concerned with the definition of circumstances in which individuals’ rights should be protected. A number of noble Lords have identified the right to dignity as being important since it is not reflected precisely in the European convention. We can all agree that it is important that citizens are treated with dignity but how does one translate that into anything meaningful in terms of the courts providing remedies?

The difficulty is that rights are now regarded as trumps and if we are to retain the charter, as seems to be the purport of the amendments in this group, we will have the rather strange situation of existing domestic law, whether it comes from the Human Rights Act or elsewhere, being supplemented by the charter, which will have a particular status. As the Government have made clear, the charter was never supposed to be a source of rights per se but a reflection of the rights that are generally protected by the European Court of Justice. It would be peculiar for our courts to continue to rely on the charter, which was designed to apply to EU institutions in interpreting the scope of EU law, after we have actually left the European Union.

The Advocate-General has occasionally made remarks about the charter. At its highest it has been described as “soft law”. If we need to protect or further protect rights, is that not a matter for Parliament or even judges interpreting the common law? Are we really so impotent as a Parliament that we have to rely on the relatively recent EU charter to provide such protection? Some of the amendments seek to turn soft law into hard law with application after we have left. This Bill is surely to provide clarity and coherence in the law after we have left the EU. Retaining the charter will do precisely the opposite.

I regret that I do not agree with various observations made at Second Reading that the Human Rights Act provides only for declarations of incompatibility. It does in fact provide damages for violations of the convention. I suspect the reason the charter has attracted such vigorous support is the rather egregious way it has been singled out for attention in the Bill. The reason it has been so singled out is the uncertainty of its application by the courts so far, and the Government’s desire to be absolutely clear that in the difficult task of interpreting the law that the judges will face, the charter can safely be ignored.

My amendment, which I come to in conclusion, is an attempt to provide some clarity as to what role, if any, the charter may have in the future. In so far as the charter is part of retained law—I appreciate that the definition of retained law is also the subject of debate—there seems no harm in it having some continued existence, in so far as it is necessary for the interpretation of that retained law; hence my amendment. What I find wholly unconvincing is the argument that it should somehow remain, as a non-native species, providing a free-standing source of rights—as in the Goldsmith amendment—or that it should be grafted on, subject to amendments to the Human Rights Act, as in the Wigley amendment. Who will benefit if the charter remains part of our domestic law after exit day? I fear it will not be those whom we rightly wish to protect; it will be the lawyers, and surely we do not want that.

[Baroness Kennedy of The Shaws]

My Lords—

[Lord Wallace of Tankerness (LD)]

My Lords, may I speak to Amendment 63A?

[Baroness Kennedy of The Shaws]

I stood up before the noble Lord, Lord Faulks, sat down as I knew he was coming to an end. He mentioned, and I accept entirely, his position that the Government may have excluded the Charter of Fundamental Rights because of uncertainty. But for many people it is an indicator of something else: that Conservative Party manifestos over a number of years have promised that the Human Rights Act would be removed. On many occasions, we have heard leading Conservatives say that we should remove ourselves from the European Convention on Human Rights, too. The absence of the Charter of Fundamental Rights from the Bill suggests to many that this is part of a journey taking us out of any international arrangements dealing with the protection of human rights, and that that is the real purpose.

[Lord Faulks]

The Government’s position has been made quite clear: they have no intention of repealing the Human Rights Act. It is perfectly true that the previous Government said that they would consult on the question and bring in a British Bill of Rights, which would not mean departing from the European convention. Of course, I understand that there are those who are suspicious of this Government’s motives—I do not speak for the Government—but if a Government were hell-bent on getting rid of human rights, they would of course be able to get rid of the charter as well. I do not accept the sinister interpretation of the noble Baroness. The intention is simply to achieve clarity; that is what the Bill is about.

Brexit: Justice for Families, Individuals and Businesses (EU Committee Report)

Baroness Kennedy of Shaws Excerpts

Wednesday 20th December 2017 Lords Chamber

Moved by

[Baroness Kennedy of The Shaws]

That this House takes note of the Report from the European Union Committee, Brexit: justice for families, individuals and businesses? (17th Report, Session 2016-17, HL Paper 134).

[Baroness Kennedy of The Shaws (Lab)]

My Lords, this report was prepared by the Justice Sub-Committee of the European Union Committee, which I chair. I should like to thank the members of this committee: they are as stimulating a group of people as you could ever find—intelligent, analytical and always great company. I thank also the staff of the sub-committee for their support and hard work. We had some of the finest lawyers in government service helping us to prepare this work and wonderful civil servants. I especially want to commend Amanda McGrath, whose quiet competence ensures that our work is effective.

The Government’s view is that once we leave the European Union there can be no jurisdiction for the Court of Justice of the European Union. That step would have profound ramifications for the UK’s continued participation in the European Union’s programme of civil justice co-operation—the so-called Brussels regime—that ensures that civil court decisions handed down by a court in one member state of the European Union will be respected and enforced in another member state.

That may sound arcane to non-lawyers, but will noble Lords please bear with us in understanding just how important this is? These three regulations—the Brussels I Regulation (recast), the Brussels IIa Regulation and the Maintenance Regulation—together play a significant if hitherto unheralded role in the daily lives of UK and EU citizens, their families and businesses in our nation, who work, live, travel and do business within the European Union. These regulations regulate a pan-European system of civil justice co-operation, which has been proved to work.

The regulations really do work. They provide certainty, predictability and clarity about where the resulting legal dispute should be pursued. They also provide for the automatic recognition and enforcement of judicial decisions and judgments throughout the European Union. To put that into lay terms, it means that if you are a small business in Britain doing business with Poland, and your Polish contractor does not supply you with the widgets you need and fails in the contract, you can go to a local court in Britain and get an order against him for that failure. It can then be enforced in Poland, so that you get either compensation or the follow-through of your contract. If you are a British woman whose marriage to an Italian ends in divorce and you have problems securing maintenance for your children, you can secure in the family court here an order on maintenance and have it put into effect in Italy in short order, as others on my committee will explain. The effect is that there will be distraint on the wages of a worker in Italy so that the mother of the children can receive maintenance. These things work smoothly. They have been developed over decades and I assure noble Lords that it is very difficult to replace what has been developed with the great input of British lawyers.

Far from being an imposition, the Brussels regime reflects the UK’s legal culture. The UK has been instrumental in shaping its content and it serves our country very well indeed. The UK Government had the choice of whether to opt in to these regulations or to opt out, and they chose to opt in. They did so with a sensible rationale. Since the referendum result, the Government have decided to opt in to the current renegotiation of the Brussels IIa Regulation, which will seek to update its provisions. That updating, perfecting and improving continues, depending on the development of our societies and ensuring that there will be effective remedies across Europe.

Clearly, by their actions, successive UK Governments from across the political spectrum have recognised that these regulations offer effective, predictable and clearly defined solutions to the legal issues encountered by UK citizens and businesses. These issues will not cease when we leave the European Union. So the question that our inquiry sought to resolve was: what alternative plans do the Government have to replace the Brussels regime once we leave the European Union? The Government state that they want close co-operation with the European Union on these matters—an aspiration the committee strongly supports. The issue, however, is not the aspiration, but rather the details. I am sorry to weary noble Lords with them, but they are rather important. If only some people actually bothered with the small print on some of these problems. Our concern is that very little is known about the Government’s thinking on these highly complex matters. We have found that there are alternatives, but any option that avoids the jurisdiction of the European Court of Justice will be less effective and more complicated than the existing system. Indeed, since the publication of our report, the committee—and other committees in Parliament—have found an ever-growing body of evidence that highlights the deep complications that will be caused by the Government’s red line on the European Court of Justice.

Turning first to the Brussels I Regulation (recast), covering civil and commercial matters, the UK could seek to use a combination of matters to fill the gap that will be created. The Lugano convention operates between EU members and Iceland, Norway and Switzerland; it applies to jurisdiction and the enforcement and recognition of judgments. We should be very clear that the Lugano convention is inferior to the Brussels regulations, operating as it does under an earlier and less effective iteration of the regulations that did not participate in the upgrading of regulations; it is stuck in aspic, as it were.

The Rome I and II Regulations deal with applicable law, namely which law ought to be applied in any given legal dispute with an external element. The Hague Convention on Choice of Court Agreements sets out uniform rules determining which countries’ authorities are competent to take child protection measures. This combination appears to offer at least a workable solution to the post-Brexit loss of the Brussels I Regulation (recast). However, it seems likely that there would be greater recourse to arbitration, which is thrown up by government as the answer to everybody’s prayers, but I assure noble Lords that it is not perfect. I support arbitration in the right circumstances, but although such arbitration would allow for judgments, it would not allow for enforcement. It would be harder—perhaps sometimes impossible—to compel courts in other EU states to support judgments made in the UK, and vice versa.

For the Brussels IIa Regulation—covering matrimonial matters and parental responsibility—and the Maintenance Regulation, finding an alternative poses a greater challenge than for the Brussels I Regulation (recast). Only yesterday morning, I spoke to a colleague at the Bar who described being involved in matters concerning a child with one parent in the United States and one here. They are not super-rich people—the kind who hit the headlines in our media—but an ordinary, middle-class family who will be crippled by the expense of American litigation, because they do not have the same arrangements in America as we have in Europe.

The Government have proposed to apply the 2005 Hague Convention on Choice of Court Agreements that covers most, although not all, of the same ground as the EU family law regulations, including rules for jurisdiction and for recognition and enforcement in child matters. The concern is about which matters would not be covered; we questioned that again and again. The Lugano convention would offer some support in cases involving maintenance. The 1996 Hague convention would offer some support on parental responsibility and measures for the protection of children, but less clarity and protection than the Brussels regulations.

Overall, there is no obvious replacement for the Brussels IIa Regulation and the Maintenance Regulation, so it seems likely that obtaining justice in these areas will be harder and less reliable. In the absence of clear replacements for the Brussels regime, our report also considered the fallback position, namely a return to common-law rules. Some of those who are romantic about common law and advocate a return to it do not realise the advancements that have been made, building on common-law principles. It was interesting that all the witnesses who assisted in our inquiry—bar one, who was an academic and not involved in practising law in the courts, dealing with real citizens’ lives—were concerned by the prospect of a simple return to the old ways of common law, as we had in the 1950s and 1960s. Their observations included that common law would be particularly detrimental to those involved in family law litigation, especially with the increase in cases for the already stretched family courts.

I said that the Government want close co-operation with the European Union on these matters. This should be an absolute priority, to give proper protections to citizens and businesses. So it is concerning that the Government’s formal response to our inquiry conceives of an eventuality in which the UK does not agree an arrangement for future civil judicial co-operation and in which ongoing co-operation in this area would be wound down.

I finish by highlighting the personal dimension to this matter. As with many aspects of Brexit, citizens face uncertainty about future rights and protections. The longer we wait for decisions and clear commitments from the Government, the greater the uncertainty for our citizens. Furthermore, the loss of the so-called Brussels regime will be felt most profoundly by those families who rely on its provisions, for example for the enforcement of judicial decisions. Small businesses will feel it, too. We know that the big corporates can lawyer themselves up to the eyeballs and get themselves lawyers in other nations. That will be no problem for them, but it is a problem for small businesses, families and people who go on holiday where something tragic happens and they want justice. We have these arrangements, which work effectively. To compound the issues, the UK’s family court system has said it would struggle to cope with such a radical change to the current arrangements. This is a matter of some seriousness. I beg to move.

--- Later in debate ---

[Lord Keen of Elie]

There is no legal barrier to us becoming a party to the Lugano convention, but that would be a subject of negotiation with the council to the Lugano convention. I believe it was the noble Baroness, Lady Kennedy, who suggested that the CJEU was somehow a red line in this respect. I emphasise that it is not a red line, but it is an issue that has to be addressed in the context of the present negotiations.

I will touch on one or two points made by noble Lords in the debate, beginning with the noble Baroness, Lady Kennedy of The Shaws. Again, I go back briefly to her suggestion that our rejection of the direct jurisdiction of the CJEU had a profound effect on civil judicial co-operation. I simply cannot accept that. It does not apply in the context of the UNCITRAL rules, the Hague convention or Lugano. Therefore, there are clearly areas where we can negotiate and determine judicial co-operation without accepting the direct jurisdiction of that court.

The noble Baroness also observed that Lugano had not been upgraded. I think she suggested it was essentially stuck in aspect, or something of that kind.

[Baroness Kennedy of The Shaws]

I said aspic. It is a sort of jelly.

[Lord Keen of Elie]

Indeed so. I am familiar with it—absolutely ghastly stuff.

It is not stuck; it so happens that the convention has moved more slowly than Brussels in this context. Lugano was essentially in parallel with Brussels I. When Brussels moved on to Brussels Ia Lugano did not accelerate at the same speed, but that is not to say that it is in aspic.

I may have misheard the noble Baroness, but she suggested, in the context of arbitration, that there was no allowance for enforcement of arbitral judgments. That is not the case, because the New York convention provides for enforcement of arbitral judgments. That applies right across the world. It is not limited in any sense to the EU. Again, it seems arbitration—and commercial arbitration, which is particularly important in the context of the City of London, for example—is not affected by these issues of reciprocal judicial agreement and enforcement.

The noble Baroness, Lady Shackleton of Belgravia, suggested that the Government’s response was disappointing. I hope we have moved on from that point. She suggested that the reference to things being wound down would not do, but with great respect, we have no desire to see any of this wound down. We seek certainty, predictability and an outcome that we can say is in parallel with Brussels Ia, Brussels II and the other regulations referred to.

The noble Lord, Lord Cashman, referred to the Brussels regulations having a significant role. He is absolutely correct about that and we acknowledge it. Indeed—I believe I can get this far—we certainly agree as to our goal. He may feel that we are a little less certain than others about how we get to it, but there is no suggestion or intention of us walking away from these regulations. We will have to address the question of the direct jurisdiction of the CJEU and we acknowledge that.

--- Later in debate ---

[Baroness Kennedy of The Shaws]

My Lords, I am grateful to everyone who has spoken, to all my committee members and to others. I am grateful also to the Minister for his recognition of this committee’s work and of the very high quality of evidence that we received from voices that should be listened to by government on the problems that will arise if we do not succeed in achieving the close co-operation referred to throughout this debate and the certainty that flows from it.

I hope that the Government, as they continue to negotiate Brexit, will take note of the concerns that have been expressed in the report, today and by our witnesses. Predictability and certainty, as the Minister has said, rely upon reciprocity. Rome I and II do not give reciprocity; they do not need reciprocity to work and I think the Minister will know that. It is different. The Brussels regulations give us something much more profound and the concern should be to make that possible in whatever is negotiated henceforth. Our concern is that we are likely to get something less: because of drawing a line around the court, we will no longer be party to the development of law.

One important thing—and I do not say this as a British lawyer, but on behalf of all colleagues and brilliant people I know in the law—is that the law has developed in Europe with a huge input from British lawyers, such as the Minister himself. To pull ourselves out of that discourse, which often takes place in the courtroom as well as in the committees and the other processes that develop law, would be a great shame and a great step back from the development of very positive co-operation.

So I hope that in the negotiations the Government will take note of this report, which is really urging that citizens will lose something serious if we do not maintain the current framework and if we are not party to developments as we go forth; that has been one of the great riches to emerge from the great collaborations across Europe. I say this not just of these matters but of all other rights, be it intellectual property rights, our rights as consumers, our rights as citizens—all our human rights. It is really important that we play a part in that development. We have done so, to our great credit, so far. Please, let that continue: that is the message of this report to the Government. I beg to move.

Motion agreed.

Brexit: Human Rights

Baroness Kennedy of Shaws Excerpts

Tuesday 12th December 2017 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

With the consent of both Front Benches, I shall speak briefly in the gap. I chair the European Union Justice Sub-Committee. Matters of justice and rights have been crossing our tables over the last few months. I share the expressions of concern that have been heard, particularly those of the noble Baroness, Lady Meacher, about our leaving the European Charter of Fundamental Rights behind.

The question posed by my noble friend Lord Cashman asks Her Majesty’s Government what are their human rights priorities in the light of Brexit. The answer should be simple: the priorities are to hold tight to our commitment to human rights. That must, inevitably, mean holding tight to the European Convention on Human Rights; to our international commitments on human rights in the many conventions and treaties we have signed; and, most particularly, to the Human Rights Act. I am not as sanguine as the noble Lord, Lord Faulks. I share the position of the noble Baroness, Lady Warsi: the Conservative Party has run hot and cold on this over the years and has not been very good on protecting human rights. The repeal of the Human Rights Act was taken off the table recently because there was not time in the timetable and it might muddy the waters during Brexit. It might confuse people even more that the European Court of Human Rights is quite distinct from the European Court of Justice. The Conservative Party was quite happy to live with this muddle for many years.

The people who want a hard Brexit are the same people who do not like human rights, and who want to leave the European Court of Human Rights. The people who want to completely turn their backs on the European Union are the same as those who want to leave human rights values behind. I am not optimistic. Only this morning, I took part in a debate on the “Today” programme in which one of the right-wing think tanks was, yet again, pulling out stuff about us having our own human rights rules and not being part of the European Convention on Human Rights. This is an agenda which a part of the Conservative Party will run with again and again.

The priority today should be to say that human rights will be even more needed in this period of disruption, when we are seeing pain in the lives of many people, particularly the poorest in our communities or those who belong to minorities. They will need the reassurance of human rights. If the Government want to set their priorities at the heart of Brexit, human rights should be their major one—protecting the human rights of individuals and those who will be most vulnerable in this process of change.

This is really important. Human rights matter; they are the set of values that we have clung to and created. Indeed, Conservative lawyers were the great creators of the European Convention on Human Rights. Such rights have to be living and breathing and must adapt to the world as it changes. That is what is wonderful about human rights. I say to the Government: please, cling to them, and to the Human Rights Act. See them as being the Government’s staff in helping to get the change that is going through now. They will protect many people and give them reassurance.

--- Later in debate ---

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

My Lords, I congratulate the noble Lord, Lord Cashman, on securing this important debate. The noble Baroness, Lady Kennedy, said that human rights matter. I would go further: human rights are central to the way we live now and to the way we wish to live in the future. They are an integral part of the society of which we wish to be a part. It is not only that they matter but that they are there and will be retained.

Protection of human rights remains a priority for this Government. The principles that underpin our legal and justice framework have developed over many centuries, with the evolution of human rights at its heart. As the noble Lord, Lord Cashman, pointed out, history is important because it has taken time for these rights to develop, emerge, be recognised and upheld without qualification. We look back upon a long-standing tradition of liberty and human rights.

The noble Lord mentioned Magna Carta, which was rediscovered in the 17th century but nevertheless is a critical foundation of the rights we enjoy today. The 1689 Bill of Rights and the common law underpin much of what we have, including—as was pointed out in the recent Unison decision of the Supreme Court—the right of access to justice, which is essential to the maintenance of human rights. We also have the Human Rights Act 1998, which this Government are committed to retaining in the present Parliament.

Reference was made to the role that the United Kingdom has played in developing the international human rights framework—including in the Council of Europe—the European convention and the United Nations. We have recently been re-elected to the United Nations Human Rights Council and will be a part of that until at least 2019. That is an important step and position for the United Kingdom.

The United Kingdom’s human rights framework is multi-layered and has developed over many years. Our departure from the European Union does not change our commitment to human rights, nor is there any reason why it should. The European Union began to recognise what it termed fundamental rights many decades ago. This initially occurred through the case law of the European Court of Justice and subsequently through EU legislation. The EU decided to reaffirm the rights and principles that it recognised in what became the European Union Charter of Fundamental Rights—the charter, as it has been referred to by noble Lords. That was first proclaimed in 2000 and became legally binding in 2009 with the introduction of the Lisbon treaty.

It is important to stress that the charter did not create rights. It brought existing European Union and international rights and principles together into a single document—the charter—but it did not create them. EU fundamental rights in the charter then applied to member states only when they were acting within the scope of EU law. Now the United Kingdom has, despite the misgivings of many in this House and elsewhere, voted to leave the European Union, and the withdrawal Bill currently being discussed in the other place is designed to ensure that the United Kingdom exits the European Union with certainty, control and continuity. That is essential in the national interest. The Bill will save EU-derived domestic legislation, including UK legislation that has been passed to implement EU directives, and incorporate direct EU legislation and directly effective rights that arise from treaty articles into domestic law.

The substantive rights that provide the source law of the charter will be retained or converted into domestic law. Although the charter will not be retained after exit, non-incorporation of the charter into domestic law will not in itself affect the substantive rights that individuals already benefit from in the United Kingdom, as the charter was never the source of those rights. The Government remain fully committed to ensuring that there are strong human rights protections once we leave the European Union; we do not consider that those are in any way undermined by our decision not to incorporate the charter into domestic law.

The Government are committed to furthering the United Kingdom’s status as a global, outward-looking nation, contrary to the suggestion of the noble Baroness, Lady Chakrabarti. We are playing an active, leading role in the world in that regard; I mentioned our position on the UN Human Rights Council. We will continue to support an international order in which rules govern state conduct, and be champions of British values of freedom, tolerance, democracy and the rule of law. We will continue to comply with our international human rights obligations and take action to tackle any abuse of those rights where we can.

Of course, as far as the United Kingdom is concerned, the principal international treaty in this regard is the European Convention on Human Rights, which is given further effect domestically by the Human Rights Act. The Government have made clear their commitment to respecting and remaining a party to the convention. We will also continue to work with our European partners to improve the functioning and efficiency of the Strasbourg Court—particularly in the light of its enormous backlog of pending cases, which disrupts its ability to maintain the jurisprudence of the convention. Our commitment to European co-operation in this area and pan-European standards is as firm as ever. Of course, we remain members of the Council of Europe. In addition, as I believe the noble Lord, Lord Cashman, noted in his opening speech, we are signatories to the Council of Europe Convention On Preventing And Combating Violence Against Women And Domestic Violence—the Istanbul convention—and we are working towards meeting our commitment to ratifying it.

I turn to some other specific areas of rights where the UK is taking action. I hope the noble Lord, Lord Cashman, would agree that the United Kingdom is now recognised as a world leader on LGBT rights. We can take some comfort from our record but we cannot be complacent. We have made significant progress over the past 50 years, tackling some of the historic prejudices that existed in our laws and ensuring that LGBT people are involved in the issues that affect them. We are also seeking to tackle discrimination in wider society. Homophobic, biphobic and transphobic bullying in schools is clearly unacceptable, as is the disability-based bullying that was alluded to by the noble Baroness. We have invested some £3 million in a programme to tackle this bullying in primary and secondary schools in England. The programme is aimed at schools that currently have no or few effective measures in place to address the issue.

We are also looking to the future. In July this year, we launched a national online survey to gain the views of LGBT people living in the United Kingdom on what they think about public services. There are questions on health, education, safety, the workplace and more general questions about what it is to be an LGBT person in the United Kingdom. The survey received quite unprecedented feedback, with over 100,000 responses, making it the largest LGBT survey in the world. We will analyse those results closely and set out further steps to promote LGBT equality next year.

We are also committed to achieving gender equality—I noted, as has been mentioned, that more than half of the contributions in this important debate were from women; I certainly welcome that. We will be doing that through the 2015 UN sustainable development goals, which consist of 17 goals, one of which specifically focuses on achieving gender equality and women’s empowerment. Indeed, our Foreign Secretary wants our foreign policy consciously and consistently to deliver for women and girls, and he appointed the first FCO special envoy for gender equality in February. The Foreign and Commonwealth Office works closely with other departments to achieve our gender equality goals.

If I stray a little beyond my time I hope noble Lords will forgive me. Defending the right to freedom of religion or belief—a point touched on by the noble Lord, Lord Alton—remains a high priority for the Government. Freedom of religion or belief is a human right enshrined under the universal declaration and one that we respect. Indeed, in February the Prime Minister reiterated her commitment to,

“stand up for the freedom of people of all religions to practise their beliefs in peace and safety”.

Domestic violence again is a matter that has to be addressed in this context. We are committed to introducing a draft domestic violence and abuse Bill to demonstrate our commitment to, among other things, ratifying the Istanbul convention, which I mentioned before. There is a further ambitious package of non-legislative measures to be funded in that regard.

I turn to the particular comments made by noble Lords. Much was said by the noble Lord, Lord Cashman, that I hope I have touched on already. I hope that I have, in a sense, been able to put some of his doubts to rest. While the general principles underpinning the charter are of critical importance, the law we retain after Brexit will ensure that the rights of individuals will be respected. In so far as the charter distinguishes between rights and principles—a point touched on by a noble Lord—we can of course enforce the rights, but we cannot enforce principles. However, they will remain relevant and material to the interpretation of the jurisprudence going forward in so far as it applies to the construction and applicability of rights relating to equality and other human rights. There was also the issue of EU case law post Brexit, which is addressed by Clause 6 of the Brexit Bill.

My noble friend Lord Faulks observed that the charter contains a fine statement of general principle. I hope I have addressed that point. Those principles of course are important, but they do not operate in the same way as rights.

The noble Baroness, Lady Drake, referred to concern about a lack of confidence and a need for the Government to set out a clear vision that there will be no dilution of human rights post Brexit. There is no intention that there should be a dilution of human rights post Brexit. The intention is that those rights that we enjoy and which underpin the charter—they are not created by the charter—should continue and be maintained.

On the contribution of the noble Lord, Lord Alton, I noticed that he proposes to put forward the genocide Bill. I will of course look at it and consider its terms. We have debated this on previous occasions. I understand his concern and his deep interest in this area.

My noble friend Lord Shinkwin had very particular points to make about the position of a commissioner in the context of disability. He added that he would ask me nothing. I am obliged to him for that, because it is beyond my brief to address the points that he raised, but I noted what he had to say.

The noble Lord, Lord Judd, opined that human rights are not an option and I hope that what I have said will reassure him that this Government do not regard them as anything like an option. We certainly do not regard them as a form of negotiating point. I wish to make that clear.

The noble Baroness, Lady Campbell of Surbiton, indicated that there should be no regression. Again, I emphasise that there is no intention that there should be. She touched on some specific questions about how we will maintain protections post Brexit if there is no charter. Again I emphasise that the charter itself is not the source of rights; it is an expression of principles and rights that already exists, and already existed, in our domestic law. As to the issue of how one vindicates those rights, as the Solicitor-General observed in the other place, in so far as there is a question about that, the Government will consider and address it, if there are issues about whether certain rights have to be implemented in a different way after Brexit.

On the matter of immigration, one has to emphasise that there will not be an absolute bar on immigration. They are talking about free movement, and the two things are quite distinct. The immigration process is yet to be worked out and, as noble Lords are aware, there will be an immigration Bill which will address some of these issues.

My noble friend Lady Warsi suggested that human rights are not a priority for this Government, but I would dispute that. They remain central to this Government’s vision of a society. Whether it is the society that exists within the European Union or without it, it is a society that exists in Europe and exists internationally, and that has as one of its motivations a respect for the rule of law and respect for human rights, and in particular for equality.

The noble Baroness, Lady Grey-Thompson, spoke about the issue of disabled people’s rights. Again, I simply underline that those rights will be retained and protected. As regards hate crime, of course it is an important issue. I hope that I have been able to give some reassurance about the Government’s recognition of it as an issue and the steps we are attempting to take to deal with it.

The noble Baroness, Lady Whitaker, alluded to the position of the Roma population in the United Kingdom. This Government are concerned about the inequalities experienced by the Roma and Traveller communities, particularly in the context of health and education, but there are other areas as well where issues arise. There has been a race disparity audit showing that these communities are among the most disadvantaged in British society and we agree that more needs to be done to ensure that these people are not excluded and not left behind.

The noble Baroness, Lady Meacher, asked whether there are plans to water down employment and other rights by means of the powers given to Ministers under the EU Bill. That is not the intention. It is quite clear what the purpose of these powers is—it is to ensure that there is a smooth transition at the point when we leave the European Union with regard to the workability of our existing legislation. That is the aim of those particular powers.

I think I have touched on the observations from the noble Baroness, Lady Kennedy, and I hope I have responded to her concerns. But I would make one observation. She suggested—I might have misheard her—that people who want to leave the European Union, people who want a hard Brexit, do not have human rights values. I would dispute that, and I would reject it.

[Baroness Kennedy of The Shaws]

I was referring to the sections of the Minister’s own party, the Conservative Party, that are driving for a hard Brexit and have led on it. They are not people who have been proud exponents of human rights. They have been great critics of the Human Rights Act and wanted to see its abolition. They have often spoken of withdrawing us from the European Convention on Human Rights. It is reasonable to make the connection between the desire to rid ourselves of Europe and the desire to rid ourselves of the human rights connections that we have with Europe. I think that is regrettable.

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[Lord Keen of Elie]

I was not here yesterday afternoon but I am obliged to the noble Lord for his intervention.

[Baroness Kennedy of The Shaws]

My Lords—

[Viscount Younger of Leckie]

Order!

Queen’s Speech

Baroness Kennedy of Shaws Excerpts

Wednesday 28th June 2017 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I have the privilege of chairing the European Union Justice Sub-Committee, which scrutinises legal matters and deals with regulations and sanctions emanating from the EU. In the period since the referendum, we have issued two reports. One is on the acquired rights of EU nationals, which will be debated next Tuesday, and I encourage Members of this House to attend and take part. The other report we have issued is on civil justice issues in the Brexit negotiations affecting individuals, families and businesses. Currently, we are beginning an inquiry into consumer rights, and we are taking evidence on the potential impact on those rights as we leave the EU. The report that will follow will look at patent law.

All those reports show that a hugely beneficial body of law exists across Europe and works to the benefit of businesses as well as ordinary citizens, but it depends on reciprocity. Bringing in new legislation here, which is supposed to bring all this home, is not going to deal with that need. What is being done to create that reciprocity, and are the negotiations taking account of the need for it? We have a very interesting system just now called the “Brussels regime”, which creates opportunities through protocols that enable enforcement. It is enforcement that is the difficult aspect of issues such as divorce and maintenance for children in cross-border marriages, or if you are trading with Poland and the company goes bust and you want your money back. Currently, we have mechanisms for getting an order in the courts here and having it enforced over there. What is going to be done about enforcement? Those are difficult matters of law that should be exercising us, and they show us the complexities of what is going to be involved in the negotiations to come.

I am an unrepentant remainer, and as far as I am concerned it is clear that this country is making a grave mistake in deciding to leave the EU. Economically, it makes no sense, but it also undermines one of the greatest projects of international collaboration in the history of the world. So much that has been carefully woven together over decades is being unravelled. Behind it is an aspect that I feel is forgotten in so much of this discussion: a project for peace and justice. In a globalised world, being part of a trading bloc makes absolute sense. We trade with each other within the bloc, but we also trade as a group with the world. As the noble Lord, Lord Adonis, said, many of those preferential trade agreements work to our benefit. Being in a group provides us with protection and solidarity when being buffeted in globalised markets. We have created high standards among ourselves regarding the ways in which we deal with each other, and in turn we demand high standards when we are dealing with the world. We do so through law and regulation.

I want to remind the Government and some of the people who sit on the Opposition Benches that cross-border relationships require cross-border law, and supranational bodies are needed to deal with disputes. We need international courts—you can call them what you like, but you need them—and good regulation. It is part of the incremental way in which we improve the world. The fixation on the European Court of Justice is ludicrous. You need a court if you make a deal. If you make deals with the World Trade Organization, you will end up going before what is essentially a court if things go wrong.

However, we hear from people like the noble Lord, Lord Robathan, who seem not to understand that while we may have marvellous judges and courts here—I am second to no one in saying how great our judges are—they are no good if, say, you are having a battle with Poland over a Euro-warrant. The Poles are not going to want that decided by our courts; there has to be an ultimate court that is seen to be independent of either of the jurisdictions to deal with those overarching issues. If we want to be part of the Euro-warrant and Eurojust, that system of collaboration that deals with terrorism and international crime, then we have to get our minds set on the fact that we need to have courts.

I want to mention the matter of regulation. If you look at the recent flaming inferno in the Kensington tower block, you see where lowering building regulation standards and sneering about health and safety standards gets you—scores of people dead. Our children are protected by many of the regulations that we have created over the years, with British lawyers often taking the lead because it is a collaborative project: insisting that there should be no lead in paint; that plastic toys should contain no poisons; that fertilisers and insecticides are not toxic; and that pharmaceuticals and other drugs and medicines reach high standards so that we do not have repeats of disasters like thalidomide. You will not get those kinds of relationships in trading with China for some time to come. By being included in a trading bloc but, more importantly, by being an active participant in it, providing our legal expertise and joining in with others, we raise the bar for other countries within the EU, for ourselves and across the world for the people we trade with as a bloc. For years, we have been subjected to a barrage of tripe from the tabloid press claiming that there was a tide of laws coming at us, when in fact we have been at the heart of creating some of that very good law.

Brexit was supposed to be at the heart of the election, yet for many people it was not. We are in a deeply divided country where the better-off do fine, thank you, while the rest feel totally undervalued. That includes many doctors and people working in healthcare, law and the sort of areas that I work in, social services, probation, the police and so on. Labour’s great success in this election—a Corbyn-led Labour success—was that its manifesto touched a nerve with the public, especially the young and those who are disadvantaged. It was a social justice manifesto that directly challenged the neoliberal economic policies that have damaged our communities and are destroying our public services.

The young—basically, those who want to be in Europe—came out in favour of that manifesto. I say to noble Lords on the opposite Benches that they should listen to the young. It was the old who voted for them, and who voted in Mansfield against Labour, but the young are increasing in number. The young will wash you away if you do not listen to them because they want a different world and a different society, and they want to be in Europe.

Civil Proceedings, First-tier Tribunal, Upper Tribunal and Employment Tribunals Fees (Amendment) Order 2016

Baroness Kennedy of Shaws Excerpts

Wednesday 20th July 2016 Lords Chamber

[Lord Lester of Herne Hill (LD)]

My Lords, I first commiserate with the noble and learned Lord, Lord Keen of Elie, in having to lie upon another bed of nails. Through him, I also congratulate the right honourable Liz Truss MP on her appointment as Lord Chancellor, a great office of state whose origins may be traced to Anglo-Saxon times. In her study of the office, Diana Woodhouse observed that there were no qualifications for Lord Chancellor—that any man or woman could be Lord Chancellor, although in modern times it was always a senior and distinguished lawyer. As your Lordships know, that changed in 2005 when Parliament enacted the Constitutional Reform Act. Section 2 says that a person may not be appointed as Lord Chancellor unless he or she,

“appears to the Prime Minister to be qualified by experience”.

Being a lawyer is not a requirement, although a non-lawyer needs to have the rule of law in his or her political DNA. That was made clear in the 2005 Act’s reference to the Lord Chancellor’s continuing constitutional role in relation to the rule of law.

The noble Lord, Lord Faulks, and the noble and learned Lord, Lord Falconer, among others, have criticised the new Lord Chancellor for lacking the necessary experience to uphold the rule of law; indeed it seems that the noble Lord resigned for that reason. But the new Lord Chancellor should in fairness be given time to be judged by her actions in office. She cannot be criticised for the Motion and the amendment tabled by the noble Lord, Lord Beecham, which I strongly support. The mischief of which he rightly complains derives from previous Lord Chancellors—Chris Grayling and Michael Gove. It is part of the continuing assault by successive Governments on access to justice.

Law care is as important to our well-being as healthcare, but it is no longer within the reach of most people. Law centres report people collapsing from lack of food because they are unable to contest benefits sanctions. Parents are unable to challenge their children being taken into care or put up for adoption. Unscrupulous employers sack workers knowing that they cannot afford tribunal fees.

The cost of going to courts and tribunals is exorbitant because of swingeing user fees—rightly described by previous speakers as a tax on justice—even in cases involving alleged race and sex discrimination or claims for asylum by victims of political persecution. For claims involving unfair dismissal discrimination, whistleblowing or equal pay, claimants must foot a bill of £1,200 on top of their legal fees. Asylum fees for a full First-tier Tribunal hearing are £140 and it is proposed to increase them by 472% to £800.

These are exorbitant taxes on justice. As the noble Lord, Lord Beecham, said, it is a matter for regret that under the coalition Government the Treasury sought, for the first time ever, to make a profit from people seeking to enforce their legal rights, granting the Lord Chancellor the power to prescribe fees above cost. The noble and learned Lord, Lord Keen, described that tax on justice as necessary to secure access to justice. I hope that he will not mind my saying that that is an example of irrationality in the Wednesbury sense—a defiance of accepted moral standards, among other things. When the proposals were announced, the noble and learned Lord the Lord Chief Justice of England and Wales warned that the Government had made “very sweeping” and “unduly complacent assumptions” about their likely effect on access to justice. Successive Governments have treated legal aid as the Cinderella of the welfare state, an easy target of Treasury raids. Access to justice is seen as a luxury rather than a necessity underpinning our way of life, yet it is central to the rule of law.

Without going into too many figures, I would like to add some to what has been said already. The order introduces 10% fee uplifts across civil and magistrates’ courts. A contested hearing has increased from £515 in 2014 to £567 in the magistrates’ court, from £280 to £308 in the county court, and from £480 to £528 in the High Court. Those are increases well above inflation, and are cumulative. The request to reconsider at a hearing a decision on judicial review permission in civil proceedings cost £180 in 2008 in comparison to £770 today.

Fees act as a deterrent to bringing a claim to court. They dissuade people with legitimate grievances from coming to court. As your Lordships have heard, last month the House of Commons Justice Committee reported how fees in employment tribunal cases had led to a “startling drop” of cases brought, by 67%. That includes a decline in claims for breaches of the working time directive, unauthorised deductions from wages, unfair dismissal, equal pay, sex discrimination—the list goes on.

Fees prevent or deter people from articulating and enforcing their rights to a minimum standard of treatment in the workplace. As the Minister may well know, employment tribunal fees are being abolished in Scotland. I wish the same would happen in England and Wales. The risk of losing their case or getting a partial costs order is one that many vulnerable and low-income claimants cannot take, no matter how egregious the wrong they have to suffer. Some claimants have to choose between stumping up the fee and paying for a lawyer. Many end up without legal assistance. Others will get payday loans to assist with their claims, and then are saddled with debt and have to pay interest to exercise their right to justice. The upshot of all that is that the justice system is too expensive for traders, small businesses and the victims of personal injuries and of unscrupulous employers. There is a risk that parties with deeper pockets will deny liability on the basis that claimants are unable to fund court fees.

I am also concerned by the increase in fees to judicial review applications in civil proceedings. The fee for permission to proceed with a judicial review will increase from £700 to £770. The Government already have sufficient safeguards against abuse of judicial review proceedings. As has also been said, the fee uplifts in immigration and asylum cases are particularly worrying. The Law Society warns that higher fees for immigration and asylum cases may encourage individuals who cannot afford fees to risk criminal prosecution and illegal overstay.

The Government are introducing fee increases before the publication of the impact review on employment tribunal fees and before responding to the Justice Select Committee’s report on the impact of fee increases, despite 93% of respondents to the Ministry of Justice’s enhanced court fees consultation having disagreed with the proposal to uplift all civil fees by 10%. It is also questionable whether the increased fees will create £6 million in additional income, as the Government claim. Since fees were first introduced in 2014, judicial review applications have fallen from 15,600 in 2013 to 4,680 in 2015. I have already mentioned the 67% drop in employment tribunal applications. The 10% increase in fees will discourage more litigants.

Justice is a necessity, not a commodity. We should, as the amendment of the noble Lord, Lord Beecham, states, and his powerful speech underlined, certainly express our regret. The Government have ignored the wise counsel of the Commons Justice Committee that access to justice should prevail over generating revenue. Instead, they continue to increase the already enhanced fees and have set them above cost. That is deplorable.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I start by returning to the matter of Ms Truss being made Lord Chancellor. I share the view of lawyers in this House that it is regrettable that Lord Chancellors are no longer people with substantial legal experience. I regret that it was a Labour Government who changed that practice and the way it was done. However, I object to people feeling that Ms Truss is somehow short of the substance necessary for the role. I was very disappointed to hear the noble and learned Lord, Lord Brown, suggesting that she was not overburdened with experience in court matters. Were the men of law as vociferous when Mr Grayling or Mr Gove took up their appointments and did they make the same complaints when it was a man in that role? We should look at whether we are seeing something inappropriate about a woman taking this role. I regret that we have heard a clamour of male lawyers and judges saying that this is not a suitable appointment when they made no such complaints when men were put into that role. I welcome the appointment of Ms Truss, given the current rules.

I turn to the Government’s Motion. It is an assault on access to justice that they are seeking to do this yet again. Only last year, the Justice Committee examined the issue of tribunal fees and made it very clear to Parliament that the level of fees charged for bringing cases should be substantially reduced and that no fee should be charged if the amount claimed was below a certain level. It was particularly concerned about cases dealing with unpaid wages or people not getting their holiday pay, so the sums of money were not great but an injustice was taking place and employers were behaving badly. Of course, there are thresholds for fee remission, but the bar is too low; the committee made it very clear that too few people could claim fee remission.

The committee expressed special concern about how that impacted on women bringing cases. That is what I want to emphasise today. Women are having particular problems with this provision. Women alleging maternity or pregnancy discrimination, where some excuse is found for easing them out of their jobs, not letting them return after they have had children, want to bring a case, but the time limit is too tight and they are considerably put off by the cost to them, often at a time when money is sparse because they are at home with a newborn.

--- Later in debate ---

[Lord Keen of Elie]

I do not believe that that difficulty arises. I emphasise the point that I made earlier: if you look, for example, at the fees in respect of the employment tribunal, the gross figure is £12 million-plus; the sum remitted for those who could not afford the fees is £3.9 million. In other words, something of the order of 30% of employment tribunal fees came under the remittance scheme. It is working. It is effective. It is allowing access to those tribunals for those people who could not otherwise afford it.

I turn to the points made by the noble Lord, Lord Pannick, and the three questions which he posed in the context of the Justice Committee’s June report. We welcome the report from the Justice Committee. We will consider it in detail. We will consider its conclusions. We will respond to it as it requested, and we anticipate responding by September this year in accordance with the Justice Committee’s wishes. It would not be appropriate for me to anticipate that response at this time.

As the noble Lord, Lord Pannick, observed, there are instances in which some of our greatest advocates will take on the most hopeless of cases, and I applaud the noble Lord, Lord Pannick, for stepping forward to take into court the issue of Article 50 and its exercise in the context of our exit from the European Union. I look forward with interest to the outcome of his efforts in such hopeless endeavours.

[Baroness Kennedy of The Shaws]

Are the Government going to look at whether there are particular impacts that these changes are having on women? The Minister has not responded to that question.

[Lord Keen of Elie]

That matter is the subject of comment in the Justice Committee’s report, and we will respond to it. I again emphasise that from the figures we have it is clear that a large proportion of women qualify under the fees remittance scheme and to that extent have that relief.