Global Climate Change

Baroness Kennedy of Shaws Excerpts

Thursday 29th October 2015 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I too thank the noble Lord, Lord Hunt, for initiating this debate, which is so timely. I should also say that I chair the International Bar Association’s Human Rights Institute, and recently I was invited to co-chair a working party on climate change and human rights. We reported last October and the report is now the subject of international debate and is being used by the United Nations in preparation for the Paris talks.

Climate change is one of those cross-border issues that presents serious challenges to all nations, so requires multinational responses. It is just like international terrorism or international trafficking of people or indeed any of those things that crosses borders. We need to have collective responses and, as the noble Lord, Lord Prescott, described, we need an international framework in which nations and national legal systems then act. It is important to recognise that—just as the noble Lord, Lord Stern, was saying, about the UK being very good at research and development and good in leading the way in so many areas—the UK is also very good at law. We have led the world, particularly in areas of law which we sometimes shy away from. We have led the way on human rights but we have also led the way in commercial law. People look to the United Kingdom courts and the arbitration system that we have set up to deal with disputes which cross borders. That has made international markets and globalisation possible. We should learn from commercial law that, where there is the political will to make things work, it can work. We really have to develop the political will around this issue to see the role that law can play.

Many serious human rights issues come out of all this. There is the right to life—indeed, the noble Lord, Lord Prescott, referred to it—which covers all the things that we know are necessary for a real human existence. There is the right to shelter, food, clean water and so on. People in the poor world, in particular, suffer from the changes that we see taking place. Sitting on that commission, looking at climate change, we really had to be persuaded by the signs. People who are in denial on this really have to get to grips with what the scientists of our world are telling us.

As the noble Lord, Lord Stern, said, people in low-lying regions, such as the Maldives and Bangladesh, are seeing their oceans rising and are living in fear of the consequences of the melting polar caps. People everywhere living on the water’s edges whose livelihood comes from fishing and so on are seeing those livelihoods destroyed. Indeed, we see the consequences of aridity and desertification of whole stretches of our land mass, and the effect of that on people’s lives. What people do is move. Yearning to survive means that people get moving, so having been alarmed by the sight of refugees on the Mediterranean drowning, we will see much, much more of that in our world as this problem increases. I do not think that we should allow those who are dismissive to seek to control of any part of this debate.

Our report was published and one of the things that we said, as lawyers entering this arena, was that we should develop the arbitration system internationally, just as we have done in commercial law, to deal with those cross-border issues that will arise almost of necessity. I want to ask the Government whether they have taken note of a case that has just been decided in June in the Netherlands where a citizens’ organisation got together. Under an NGO called Urgenda—obviously accepting the notion that this was an agenda that had some urgency attached to it—it brought a case against the Dutch Government saying that they had failed to reach the targets to which they had committed and had a duty to protect. It invoked tort and human rights law and this case was won by a three-judge court, deciding that the state has responsibilities to protect. Indeed, national law can be invoked within that international human rights framework. It has implications for all of us, because you can be sure that activists the world over on this issue will be bringing cases against their nation state. We are likely to see it here; the Government should be alert to that. I hope they will recognise that turning to law should be a last resort. We should be leading the way on all this.

I urge the Government to look at the report from the International Bar Association. It is highly measured—lawyers on the whole do not tend to be very radical. However, one of its suggestions—on which it has sponsored work that is now being done—is to create a model statute, to be drawn down by nation states, to turn international commitments into national law. Rather like our own Climate Change Act, this will ensure consistency of law internationally and that nation states can be held accountable for their commitments.

There is inevitably a role for law in all this. When discussions take place in Paris, I hope that Britain—which has such a proud legal record—will lead them and will argue for a commitment across nations, bound by an international framework, to draw down laws that call Governments to account.

Justice and Security Bill [HL]

Baroness Kennedy of Shaws Excerpts

Tuesday 17th July 2012 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, my name appears on some of these amendments, and I will briefly make a couple of points. I say first to my noble friend Lord Hodgson that he makes a mistake if he refers to me as heavy artillery, since I was the most inefficient gunner officer during the Suez invasion. I lost an entire water-carrying convoy, and laid a smokescreen with 100-metre gaps in it. I do not regard myself as heavy except in a physical sense. Further, the noble Lord, Lord Pannick, referred to Blackstone Chambers, which is my chambers as well. However, I make it absolutely clear than under the cab rank principle, many members of my chambers have appeared on the other side in these cases. Certainly, although I listened to Ben Jaffey, I regard the fact that I am in his in chambers as immaterial.

The noble Lord, Lord Pannick, said almost everything that needs to be said, except that the Joint Committee on Human Rights itself recommended what is now Amendment 62. In paragraph 106 of its report, it recommends that,

“the obligation to disclose sufficient material to enable effective instructions to be given to an individual’s special advocate should always apply in any proceedings in which closed material procedures are used”.

In the previous paragraph, the report quotes my noble friend Lord Carlile as saying that AF standards—that is, these disclosure standards—,

“should apply to all proceedings in any event. I can see no respectable argument against gisting in any circumstances”.

The JCHR report concludes: “We agree”.

My other point is that although I am keen on the European Human Rights Convention setting minimum international standards, in this kind of area it is the common law standards and the standards of Parliament that really set fairness in this country. I sometimes worry that reliance on Article 6 of the convention, in a system where the civil law is very strong, may actually diminish the strength of the common-law system. So I hope that the fact that these amendments have the blessing of the all-party Joint Committee on Human Rights, of the special advocates and of my noble friend Lord Carlile, the former independent reviewer of terrorist legislation, as well as of those who spoke in this debate, will carry great weight with the Government.

[Baroness Kennedy of The Shaws]

My Lords, I agree with my legal colleagues in this House about the need for gisting as a step towards creating greater fairness. In my view, there has to be an obligation to disclose because the detainees in these cases—I have acted in them—are deeply disadvantaged. The noble Lord, Lord Pannick, has described powerfully the bewilderment and disappointment in detainees when an order is made against them, but they have not understood the case against them. I shall give an example because sometimes that helps us to root our understanding of why something might matter.

I took a case where a young man was to be deported on the grounds of concerns about national security. The gist of the case against him suggested that he had been present at a meeting in a house he shared with many other students at which discussions were held that were of concern to the authorities. Because the gist of the case was offered to us, it was possible to show that at the time the meeting took place the young man had been using a computer that was linked to the university in order to work on his thesis. The interactivity showed that he had been involved in quite complex, difficult work on his computer, which meant that he could not have been participating in and party to the meeting taking place in the house. That was one of the features of the case that made a real difference, but we would not have known about it if the gist had not been given to us. The force of something can only be brought home to those not involved in these cases by the use of a real example. The noble Lord, Lord Pannick, described people sitting in the court and being mystified by the process. That drives home just how unacceptable it can be.

I strongly urge that we do this least thing in trying to address the concerns about the whole business of closed material proceedings.

[Lord Carlile of Berriew]

My Lords, perhaps I may take a few moments to make four short points in support of Amendment 62, tabled in the name of my noble friend and the noble Lord, Lord Pannick. Gisting presents great advantages, above all of which, in a headline, is the advantage of fairness. First, it compels the Government’s advocates to focus on the real reasons for pursuing their particular point. Using the very good example cited by the noble Baroness, it enables them to see where they are wrong because an answer can be given if the gisting occurs. Secondly, it shortens the proceedings. If the gist is given, there have been quite a number of cases where the individual has seen that it is not worth opposing the application because he knows perfectly well where he was or what activity he was engaged in at a particular time. Thirdly, it is a fair process, or at least it is as close to a fair process as we are going to be able to achieve when dealing with national security. My fourth reason for supporting Amendment 62 relates to the other words in it which do not deal with gisting of itself. It concerns the ability,

“to enable the excluded party to give effective instructions to his legal representative and special advocate”.

I know that this is going to arise a little later too. To improve the procedure for arrangements to be made under the rules of court, it is absolutely essential for the individual to be able to give instructions to special advocates just as they can give instructions to their own counsel.

I think that this three-line amendment covers a multiplicity of issues and should be supported. I hope that my noble and learned friend on the Front Bench will see the sense of it.

Scotland Bill

Baroness Kennedy of Shaws Excerpts

Tuesday 6th September 2011 Lords Chamber

[Baroness Kennedy of The Shaws]

My Lords, it will surprise none of your Lordships to hear that I am not going to speak about air guns.

I was very proud to be among those who championed devolution for many years as chair of Charter 88, and I was in this House to see the passage of the first Scotland Bill, which fundamentally altered the constitutional architecture of the United Kingdom. I endorse what was said by the noble Baroness, Lady Ramsay; it was a time of excitement and exhilaration for so many of us who had wanted it for so long. It was not about holding the Scottish nationalists at bay. For us, it was about strengthening democracy and letting people make decisions closer to home on matters that affect them directly. I think that the reforms have been a success and that the new Parliament has made a real difference to the lives of everyone in Scotland.

There has been a bit of an argument about who said that devolution was a process, not an event. Donald Dewar recognised that we would continue to see a transfer of power from the House of Commons to the Scottish Parliament as the new Parliament bedded down and gained the confidence of the people. I know that because he told me so. Like Donald Dewar, I am a strong believer in genuine devolution. I do not support independence, because I think that the unity of our island gives us greater sway in the world. I think that huge benefits come from our union, from our partnership of nations but, as in the best of contemporary marriages, I think that strength comes from recognition of the distinct identities of the partners—that they are complementary yet separate entities within a conjoined state.

Few modern women would want to go back to the marriage of old, where their status was second-class and survival depended on the good will of their man, without recognition of their huge contribution to the family and where their autonomy and ability to make choices on matters directly affecting them were profoundly constrained by their spouse. A modern marriage involves constant evolution. Donald Dewar always recognised that Scotland would have to have its own fiscal powers, and the first drafts of the devolved powers included fiscal powers. It is claimed that it was our then Chancellor who quashed those plans.

As my noble and learned friend Lord Davidson and the noble and learned Lord, Lord McCluskey, said, there are matters to resolve around the Supreme Court. I hope at some point in Committee to add my voice to those concerns and my belief that the Supreme Court plays an important role for our whole United Kingdom.

There is much that I support in the Bill. It accepts that greater financial powers should be devolved to the Scottish Parliament. I welcome that shift—in principle. I am rather tired of the talk of whinging Scotland. As has my noble friend Lady Ramsay, I have listened over the years to speakers in this House complain about the Barnett formula and the way in which Scotland has apparently benefited disproportionately from the Westminster grant. Nothing is ever said in those debates about the reciprocity involved: the benefits to the United Kingdom as a whole of the North Sea oil revenues over many years or the intellectual property brought to the United Kingdom by Scottish inventions from Watt to Macadam. We can name those great inventors, and they still exist in Scotland. We even gave you capitalism, for which you should still be paying us commission.

The Barnett formula has not been mentioned in the Bill. That causes me concern, too. It does not have to be mentioned because it is an administrative arrangement, but I suspect that it will be altered once the Bill is passed. It seems clear to me that it is an intention of Government to have a staged withdrawal of that grant. We should be clear, and there should be discussion in Committee, on what the implications of that are and whether increases in taxation are actually going to meet the default.

The people of Scotland want to see the functions of their Parliament strengthened. They want their Parliament to have greater fiscal responsibility so that it can be held accountable. They would accept the Calman proposition that the Scottish Parliament should not be there simply to divide up the block grant but that it should have fiscal accountability. Currently, the budget bears no relation to economic performance in Scotland. The Bill replaces the Scottish variable rate of income tax with a new Scottish rate that will be decided by the Scottish Parliament annually and applied consistently to the basic, higher and additional rates of tax.

Although there are other areas where the Scottish Parliament can make changes, the noble Lord, Lord Forsyth, told the House that Alex Salmond said that you cannot make an economy run on a narrow tax base. On other occasions, the noble Lord described it as,

“You can’t play golf with just one club”.

You cannot limit financial responsibility to income tax and stamp duty if you want to manage the economy. If the Scottish Parliament is to have responsibility, it must be responsible not just for varying tax but for its own economy. The noble Lord, Lord Forsyth, said that and I agree with him. Scotland has to be given the levers to grow its own economy, then it really can be self-reliant on taxation, otherwise Scots are going to suffer. That means that there have to be increased borrowing powers. We have already seen those in the Bill, but they are not adequate to the task. Nor, as my noble and learned friend Lord Davidson said, are they coming into force soon enough. The limited £500 million borrowing powers are allowed only if tax receipts fall short of those anticipated. That puts Scotland under pressure to make significant cuts should a shortfall arise.

What are the implications of that? Scotland should be allowed to say that it might choose a different route out of recession than the one selected by the current Westminster Administration. Many in the House are against the idea of Scotland being able to set its own corporation tax. That corporation tax and other fiscal matters have to be thrown into the mix if Scotland is to be able to choose a different set of priorities. I say this as someone who would like to see the harmonisation of taxation across Europe, but we are certainly not going to see that delivered by this Government. How can Westminster think of allowing Northern Ireland to set its own corporation tax but withhold such powers from the Scots? You cannot do that. Think of the feelings of inequity that that is going to create in Scotland. Think what that is going to mean in terms of adding to the numbers of those who will vote for the Scottish nationalist party.

The problem with this Bill is that it might create unintended consequences. It gives just enough tax powers to make the Scots parliamentarians more accountable, but not enough to enable a truly different set of economic choices.

Unlike the Scottish nationalist party, I do not believe that the people of Scotland as a whole want independence. What they want is a different visioning of their destiny from the one that is being offered by the coalition Government. They do not want the slash-and-burn approach to public services and the introduction of extortionate fees for a university education. They do not want sado-monetarism. They are revolted by the triumphalist language surrounding the cuts, where toughness is good and compassion is deemed pathetic. They find the current economic policies of Westminster morally repellent. They are revolted by the characterisation of the public sector as some kind of parasite, draining the wealth of the nation.

Scotland is a nation that has been built on respect for learning and public service. There is still huge admiration in Scotland for teachers, doctors and nurses, for academics and ministers of the churches. The Scots do not want the brand of global turbo-capitalism to which Westminster is so wedded, which sets itself up in hostile opposition to professional public service. They want something different. They want a modern mixed economy of private enterprise, creativity and public service, a mix of commercial success, social responsibility and civic engagement. They have turned to the Scottish nationalist party out of disdain for the three main political parties, disdain for the modern Conservative Party, disdain for the changes and shifts that the Liberal party has made, and disappointment that Labour failed to create a distinct social democratic model. They have watched the honourable, law abiding Adam Smith tradition of wealth generation being trashed, and have seen it give way to a system in which the big corporations and the bankers and the Murdochs of this world can suborn any elected Government with threats of taking their ball elsewhere; where the masters of the universe can get laws changed that in any way interfere with their super-profitability, and blackmail Governments into doing it all their way.

Well, it is not the Scottish way. This is not the model of capitalism that the Scottish people want. The deficit-cutting strategy of the coalition Government is not going to create growth in Scotland, and the Scots know it. It is going to bring higher unemployment and misery.

Around me on my own Benches—they are all absent because they are all down in the bar, I am sure—are the many who fear that giving greater powers to the Scottish Parliament will provide a gift to Alex Salmond, who will use increased borrowing powers to protect Scots public sector workers, maintain things such as free prescriptions, and increase his chances of winning a referendum on independence. Well, I think you are all underestimating the canniness of the Scottish electorate.

The Scottish nationalist party is not in government in Scotland because of the folly of devolution. It is not in government in Scotland because of some kind of peculiar election system. It is there because of the failure of the main political parties. And I am afraid it is there because of the folly of new Labour in failing to have a sufficiently social democratic agenda. If Labour wants to recover in Scotland—and I say this to my own party—it has to stop defending its romance with neoliberal economics. It has to stop canoodling with Thatcherism and revive its belief in equity and social justice. It has to embrace new models of enterprise fit for the 21st century, and provide Scotland’s Parliament and people with the powers that they really need.

One day, I hope, we—Labour—will want to exercise those powers. The noble Lord, Lord Wigley, got it right when he said that the United Kingdom in its present form is not serving Scotland’s needs, and we should take lessons from that. There is plenty of evidence that the people of Scotland want a stronger form of devolution. We now have a unique opportunity to reshape how that devolution works. Therefore, I welcome the Bill. I welcome the opportunity that it provides to us to strengthen and change it, and I hope that in its passage through this House it will become more empowering and more reflective of the concerns of the Scottish people.

Privacy Injunctions

Baroness Kennedy of Shaws Excerpts

Monday 23rd May 2011 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, as I have already made clear, it is almost self-evident that the Bill of Rights 1689 and the Parliamentary Papers Act 1840 were promulgated in times very different from today. Notwithstanding that, there are clearly some important principles enshrined in them. Indeed, on numerous occasions, even in recent times, we in this House have sought to emphasise their importance and how much we cherish them. In terms of the Joint Committee and in the opportunity to look much more broadly at parliamentary privilege, that will be an opportunity to consider in detail some of these issues. The Master of the Rolls’ report published last week has a chapter devoted to parliamentary privilege and identifies some of the tensions that are there. All of those elected to the other House and Members of this House take parliamentary privilege very seriously, and if we wish to say anything on matters that are sub judice it should be done only with the greatest of forethought.

[Baroness Kennedy of The Shaws]

My Lords, I, too, welcome the establishment of the Joint Committee. What I really want to ask is whether the new media will be part of the remit, and whether there are ways in which one can restrain publication there. I have a great reluctance in saying that I do not think it is possible; I think we have crossed a Rubicon, and that new technology now means that it is now very hard to restrain publication of matters that invade privacy. Although our courts seek to influence courts in California to have disclosure of names by twitter, the culture in the United States is very different and it is very unlikely that there will be disclosure by courts there. In my experience, even getting them to disclose matters relating to national security issues is difficult enough. The American courts are very protective of freedom of the press. Will the remit of the Joint Committee look at the new media—twitter and the like?

[Lord Wallace of Tankerness]

My Lords, the noble Baroness raises an obvious but very important issue on the new media, whose relevance has been very obvious to these events. I have to confess that I do not tweet. I may have been one of the last people in the kingdom to find out the subject matter of some of the tweets over the weekend. It would be an issue that the Joint Committee would want to look at, because it is very pertinent to the kind of issues that we are talking about. But just because it makes it far more difficult to police and enforce, that does not make it right to breech an express order of the court. Obviously, if there are means to identify those who did it, the appropriate procedures should be followed.