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

Debate between Baroness Kennedy of Shaws and Lord Lester of Herne Hill

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.

Immigration Bill

Debate between Baroness Kennedy of Shaws and Lord Lester of Herne Hill

Monday 7th April 2014 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I have made a number of speeches on this subject at different stages of the Bill and I do not want to take too much of the House’s time. I welcome the idea of an independent reviewer being involved, but I say to the Minister that it is not enough. As he will see, my name is on a number of the amendments that were referred to by my noble friend Lady Lister. I, too, am a member of the Joint Committee on Human Rights. The amendment tabled by the noble Lord, Lord Pannick, is really the course that I would urge this House to take.

The whole idea of making people stateless is unsupportable as a measure, but that fact does not place barriers in the way of the Government in their efforts to deal with terrorism. Terrorism is a serious threat nationally and internationally, and the Government must act in the interests of our safety. Opponents of this move, of whom I am one, are not objecting to removing citizenship from people who have two passports. If someone already has dual nationality—and not just the possibility of being able to get it from somewhere else because they have a father or grandfather who is of a different nationality—then on the right evidence and with due process there is no reason why citizenship cannot be removed from someone whose conduct has been shown to be a threat to our national security. The Supreme Court recently did precisely that in relation to a Pakistani-British family living mainly in Pakistan.

However, I want to remind this House why the idea of rendering someone stateless is so repugnant. After the horrors of the Second World War, the international community had the opportunity of reflecting on the whole notion of the Wandering Jew—as though “wandering” was a voluntary condition—and the idea of what it meant to have no secure home and of living with the mental torture of insecurity. The international community was conscious of the many other people forced to live lives of uncertainty—because it is a weapon used by tyrants and dictators—knowing that they could be ousted at any moment because of the instability of their status. We were all alert to how such persons lacked full rights if they were rendered stateless, and that was why the convention to end statelessness came into being. Britain was one of the countries at the forefront of such moves, which is why we have been a beacon in relation to this issue.

It is interesting that Germany, reviewing its own conduct in relation to statelessness after the Second World War, has made it part of its constitutional obligations that it will never remove citizenship once it is granted. The United States, too—which, of course, became a haven for those seeking sanctuary—never removes citizenship once it is granted and believes strongly that people should not be rendered stateless.

Of course, if you are not a citizen of anywhere, you cannot have the rights that citizenships confers on you—the very right to have rights, as has been mentioned already. The presumption should always be that if you commit crime you should be tried and jailed, and that there are steps that can be taken to deal with criminality and behaviour that is a threat to states. But there is also a presumption that if something happens to you abroad you can insist on contact being made with your embassy or consulate so that your rights can be asserted. It is not just about providing protection, it is about seeking to make everyone subject to the rule of law—the thing that Britain is renowned for. The presumption should always be that law is involved in these processes.

I have repeatedly told the story of Mahdi Hashi, who had his citizenship removed while in Somalia. Two other persons from whom Britain had removed citizenship were droned—killed by the use of drones—in Somalia. We should reflect on that; it was evidence given to the Joint Committee on Human Rights by the UN rapporteur on counterterrorism only a week or so ago. Mahdi Hashi was advised through his parents of having lost his citizenship and that he had a month to appeal. Somalia has no British embassy. He travelled to Djibouti, where he was picked up by the secret police. On saying that he was British, he was told that inquiries had been made and that Britain was denying any obligations towards him. We washed our hands of him—Pontius Pilate lives on.

Mahdi Hashi was interrogated at length—no lawyers, no court processes. He was then handed over to the CIA and further interrogated—no lawyers, no court processes. He had a hood put on his head and was transported to the United States of America—no extradition processes. This was essentially another rendition. But Britain can now claim that we were not complicit because he was not our citizen. Is that the purpose of this change of law, that we might be able to do things that make people vulnerable and deny them their rights, creating yet more black holes where no law obtains but where we cannot be accused of complicity?

We in Britain have always claimed our commitment to the rule of law; indeed, we like to think of ourselves as having parented its existence. You might ask: is this man, who is now sitting in a jail in New York, a bad guy? I cannot tell you. No evidence is in the public domain. But it matters not whether he is a bad guy—that is the important thing to have in mind. We are supposed to believe in due process, the rule of law and international human rights. By making him stateless, we stripped him of the safeguards that any human being should expect. That is not how we normally behave. That is not an acceptable way for a civilised nation to behave.

This is an issue of profound principle and much more care needs to be taken than we currently see in considering the implications of this in terms of what message we are sending to the world, what the position is with regard to international law, what it means to make someone stateless, and what other states, where such persons end up, might feel about our having made such persons stateless. All those matters should persuade us that there should be a committee set up and that this needs much further reflection, because there are principles involved that should be seriously considered by us all because it matters about the nation that we live in.

[Lord Lester of Herne Hill]

My Lords, I was not able to speak in Committee but, briefly, I will make a point that I think has not yet been made.

My noble friend the Minister reminded us, rightly, of the fundamental importance of national security and of combating the evil of terrorism by all effective means. I do not think that I needed to be reminded of that but he was right to remind us all the same. Equally, the noble and learned Lord, Lord Brown, reminded us of another fundamental matter, which is the parliamentary scrutiny of draconian powers before they enter the statute book.

If I were persuaded, as the Minister has suggested, that this debate and previous debates are adequate as a substitute for effective pre-legislative scrutiny, I would not support the noble Lord, Lord Pannick, but I am not persuaded of that. The issues are extremely complicated and even though I think that I am some kind of international lawyer, I am certainly not going to analyse what Professor Guy Goodwin-Gill has said, even though I agree with him, or bore the House, as lawyers frequently could do, by going into a lot of technical detail.

What I want to do, and which gives rise to a question, is to deal with a point that the Joint Committee on Human Rights, of which I am a member, raised in our report and the way that the Government responded to it. In our report, we drew attention to the relevance of the European Convention on Human Rights and its various provisions, and we disagreed with the Government, whose position was that the European Convention on Human Rights had nothing to do with the issue. We went into the matter in paragraphs 45 and 46 of our report. In footnote 25 we referred to a case in which I was counsel for the applicants in the great case of the east African Asians against the United Kingdom.

That was a case which involved not national security but racism. It was a case where, to their shame, the then Labour Government persuaded both Houses of Parliament in emergency debates over three days and nights to take away from 200,000 British Asians, who were citizens of the United Kingdom and colonies, their right to enter and live in their only country of citizenship. By doing that, Parliament made 200,000 British citizens de facto stateless, even though a promise had been given to them by the previous Conservative Government that if they did not become local African citizens, they would be given the right to settle in this country. That promise was broken because of an extremely effective racist campaign mounted by Enoch Powell and Duncan Sandys, which led the Labour Government, with the support of both Houses, to pass that obnoxious legislation.

When we challenged that successfully before the European Commission of Human Rights, we relied upon two American cases. One was called Trop v Dulles. That was a case where under United States law somebody had been deprived of his American citizenship by Mr Dulles. The US Supreme Court said that under the American constitution, that was impermissible. The European Commission of Human Rights was impressed by that and it held that our Parliament had subjected British citizens to treatment that was racist and degrading.

Defamation Bill

Debate between Baroness Kennedy of Shaws and Lord Lester of Herne Hill

Tuesday 5th February 2013 Lords Chamber

[Baroness Kennedy of The Shaws]

My Lords, I, too, support these amendments. I always listen with care when I hear the noble Lord, Lord Lester, speaking about human rights because of his great experience and his important role in our nation in arguing for human rights. However, I take issue with his interpretation of Article 6 and the statement that any kind of arbitration in this field would in some way contravene that article. The whole purpose of human rights is to empower the weak and to recognise the ways in which due process can often disadvantage those who have no money. The purpose of arbitration in this context is not simply to speed things up or to move things along. Much of our arbitration concerns two parties coming together to try to find a smoother way to deal with something, but in this context the purpose of arbitration is to redress the fact that our current system disadvantages whole tracts of people who cannot afford to go to litigation at all. I think you would find that the courts would not accept the literal interpretation of this concept on the part of some of our colleagues. The noble Lord, Lord Faulks, also said that this provision would be a contravention of human rights. I think you would find that the courts would take a very different view.

[Lord Lester of Herne Hill]

I am grateful for that but I think the noble Baroness does not understand what I was saying, which is my fault. I was saying that the Arbitration Act is a perfectly fair way of tackling this issue but these amendments do not give effect to that Act and a right of appeal. If they did so, it would be quite a different matter. I was trying to explain why they do not. For that reason, they violate Article 6 as well as Article 8.

Justice and Security Bill [HL]

Debate between Baroness Kennedy of Shaws and Lord Lester of Herne Hill

Wednesday 21st November 2012 Lords Chamber

[Lord Lester of Herne Hill]

The noble Baroness gave the example of drones. Could she explain how anything in the Bill would impact on a claimant in the context of drones?

[Baroness Kennedy of The Shaws]

There is a case going through the courts. A British resident called Noor Khan is seeking a judicial review. He wants a declaration of unlawfulness made because his father—a civilian, not a terrorist—was killed in northern Waziristan in an American drone attack. This was not in the conflict area of Afghanistan but in Pakistan, and the victim was a civilian casualty. I am told that a number of cases that concern people are linked to the use of drones in Afghanistan, Pakistan and elsewhere. People in Britain will call into question certain legalities because our domestic law covers the behaviour of people who are not in a war zone, and who therefore are subject to domestic law. The noble Lord, Lord Lester, will know that that does not mean that international humanitarian law gives them any protection.

[Lord Lester of Herne Hill]

I am sorry to press the noble Baroness, but I still do not understand what she is saying. It must be my fault. I would like to know how, in a judicial review of that kind about drone policy, what is in the Bill will change the matter in a way that will not allow the applicant for judicial review to secure justice. How will the process be different from what we have now? That is what I am trying to understand.

[Baroness Kennedy of The Shaws]

I am interested to hear the noble Lord, Lord Lester, the great human rights lawyer, defending secret processes of this kind. There is no doubt that applications will be made for closed material proceedings in those sorts of cases because the state will not want to divulge the circumstances in which locational intelligence was given. What we as members of the public would want to know would be whether we are playing the role of providing that kind of intelligence, which may in turn lead to the deaths of many civilians, particularly in places that are not covered by war.

I call upon the moral impulses of the House. Do noble Lords think that this is a proper way of dealing with activities that may be covered by national security, when national security is being used as an excuse to cover unacceptable behaviour? It may mean that we will never be able to find out the truth about rendition and the use of torture, and about any role that British operatives played. That would be a very unhappy state of affairs, and a departure from a very proud part of our common-law history and principles. It is a source of regret that so many people are prepared to go down this road.

Justice and Security Bill [HL]

Debate between Baroness Kennedy of Shaws and Lord Lester of Herne Hill

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.