British Bill of Rights

Debate between Lord Bach and Lord Lester of Herne Hill

Thursday 20th June 2013 Lords Chamber

[Lord Bach]

My Lords, I thank all noble Lords who have spoken in this debate, particularly, of course, the noble Lord, Lord Lester, for securing the debate and for attracting a stellar cast to speak, even rather late on a Thursday afternoon in the middle of June. I am certainly not one of those stars. I have comparatively little history, either as lawyer or politician, with regard to the Human Rights Act or the convention. However, it is an honour for me to speak from the opposition Front Bench on this occasion and I, too, pay tribute to the noble Lord, Lord Lester, for his well deserved reputation, mentioned by many noble Lords, in this field.

I start with a quotation from another memorable debate in your Lordships’ House, held exactly 25 months ago on 19 May 2011, when my noble and learned friend Lord Irvine of Lairg led a debate on the ECHR, with many of the same cast as today, and answered, as today, by the noble Lord, Lord McNally. The noble Lord, Lord Thomas of Gresford, ended his contribution with these words:

“I consider the Human Rights Act 1998 to be the outstanding piece of legislation of the previous Labour Government”.

He went on to say, and we must give him allowance for this,

“next to the Government of Wales Act 1998. I congratulate the noble and learned Lord, Lord Irvine of Lairg, not simply on introducing the debate but on being the architect of an important piece in the structure of justice in our country”.—[Official Report, 19/5/11; col. 1501.]

That was a generous but well merited comment from the noble Lord, and a well merited compliment to my noble and learned friend as well.

This year marks the 25th anniversary of the establishment of Charter 88, many of the aspirations of which were adopted by my party in the early 1990s and then put into effect by the Government from 1997 on. Who says that pressure groups cannot achieve results? According to Professor Bogdanor the constitutional achievements of the Labour Government, ranging from the Human Rights Act to devolution, freedom of information, the creation of the Supreme Court, and much more, represent a formidable list. He may go too far when he says that it was an era of constitutional reform comparable to that of the years of the Great Reform Act 1832 or the Parliament Act 1911. However, even more impressive is the amount of power that was given away by some of these measures by that Labour Government. For example, the Human Rights Act gave power to individuals, the national states were given power by devolution and the judiciary was given power by the difference between the role of the Lord Chief Justice and that of the Lord Chancellor and by the creation of the Supreme Court. Professor Bogdanor went on to say that no British Government since World War II had dispersed power to the same extent.

Speaking from the Opposition Front Bench, I am proud of that record. It made our country a fairer, more open and better place to live. We were supported in all this—certainly for the most part—both in argument and votes by the Minister’s party, the Liberal Democrats. Both party manifestos for the 2010 general election talked about support for the Human Rights Act; the Liberal Democrats’ manifesto talked about protecting the Human Rights Act. It is therefore hardly surprising that when the Liberal Democrats found themselves in a coalition Government they had to think hard and quickly about how to prevent the Human Rights Act and the ECHR behind it being savaged by their coalition partner during the course of this Parliament.

Make no mistake: both before 2010 and since being in power, of course not all Conservatives but many of their leaders have regularly and systematically tried to trash both the convention and the Human Rights Act. They have often used language—perhaps sometimes to placate their anti-European supporters—that has sometimes, though not always, been a disgrace to a great party.

Rather unusually for me, I will pay a compliment to Liberal Democrat Ministers in this Government, and not least—in fact, probably for the most part—to the noble Lord, Lord McNally, for the manner in which he, along with others, has successfully prevented the Conservatives from carrying out constitutional mayhem during this Parliament. I do not know whose idea a commission on the Bill of Rights originally was, and who put together the personnel. However, if the aim was to kick these proposals deep into the long grass, it appears to have succeeded.

I pay tribute to all members and staff of the commission, particularly its chairman, for giving up so much of their valuable time to its work. Many of its members were busy and distinguished Queen’s Counsel, while others had other important obligations. They deserve our thanks; not least the chairman, who has already been described in Job-like terms and whose distinguished career in public service must have helped him in an almost impossible task. However—and I suspect that the House might have expected a “however” at this stage—it is surely fair to ask whether it was really worth all the time and effort to produce two large volumes of a report in effect to solve a political problem?

Where do the various and myriad conclusions lead us? What is the value of the so-called majority view, when it includes a number who clearly and honestly objected to the terms of reference and want us to be free of the convention? I admit that I do not completely understand the position of the noble Lord, Lord Lester, who is himself one of the architects of the Human Rights Act. When reading the 31—

[Lord Lester of Herne Hill]

I am grateful to the noble Lord. I wonder whether he agrees that it is core Labour Party policy since 1993 that a Human Rights Act is the first step, and a Bill of Rights the second. That was agreed by Labour in 1993, and as far as I am aware it is still Labour Party policy.

[Lord Bach]

As I understand it, the Human Rights Act is considered by some to be a British Bill of Rights in any event. However, I do not want to take issue with the noble Lord. I am here to praise him rather than criticise him. As I was going to say, when reading the 31 pages of the overview of volume 1, one can almost physically feel the strain in the language as it attempts desperately to find consensus where there is none. The majority view has been described as representing,

“a fragile coalition of views united around conceptions of a domestic Bill of Rights so different from one another as to render any consensus wholly illusory”.

These are the words of Mark Elliott, a reader in politics at the University of Cambridge, whose article is entitled, A Damp Squib in the Long Grass. This is perhaps a little harsh, but I think one senses what he is getting at. No wonder Professor Fenwick at the University of Durham described the document, perhaps rather generously, as “odd”. For me, the paper In Defence of Rights, by my noble friend Lady Kennedy and Professor Sands, is more persuasive. It destroys the confused majority view with a pretty well argued, moderate and sensible position.

The commission report has of course effectively stymied any change until after the 2015 general election. It is only when we know the result of that election and what will follow from it that we can realistically move forward. I would expect the Liberal Democrats to be every bit as robust in their defence of the Human Rights Act as I hope my party will also be.

I want to end on a perhaps rather less consensual note. I am afraid that the Liberal Democrats’ effective defence of the Human Rights Act and the convention is in marked contrast to the feebleness and lack of concern for the individual citizen evident in their acquiescence to—and sometimes even welcome for—some of the more reactionary measures that Her Majesty’s Government have recently taken. I of course refer to the restrictions either passed or proposed on judicial review, the no-win no-fee policy, and the position that private firms doing public work on public contracts may be exempt from freedom of information. Above all, I must say, it is evident in the decimation of social welfare law by taking it outside the scope of legal aid. It is no answer to say that citizens are still able in theory to go to law, because the reality is that without free legal advice, the poor and the marginalised in practice cannot go to law. Human rights exist outside the Human Rights Act. By limiting and restricting the ability of the citizen to take on the state, the Liberal Democrats are colluding in particularly anti-liberal acts.

I conclude by saying to the Minister that he has nobly protected the Human Rights Act in very difficult circumstances and that his part of the Government deserves great credit for that. Now is the time to protect the interests of individual citizens who need to take on the state. They, too, like those protected by the Human Rights Act, are an essential part of those who live in a free society.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Bach and Lord Lester of Herne Hill

Tuesday 27th March 2012 Lords Chamber

[Lord Bach]

My Lords, we have heard two powerful speeches on this matter. I say from the Front Bench that we support the amendment in the name of my noble friend. Legal aid has never been available for redress in this field, so no-win no-fee has become an essential bulwark for the impecunious citizen of moderate means against for the main part much more powerful media corporations. Such actions, as the House knows, recently led to the exposure of systematic wrongdoing at News International that saw innocent people’s lives just taken apart. We have heard reference already to the Dowlers and the McCanns, and to Mr Jeffries, too. But even politicians, such as the right honourable Simon Hughes, has been a victim, and have relied on no-win no-fee to get justice.

The Jackson reforms on road traffic accident personal injury cases, which we welcome very much on this side, comprising 75 per cent of all claims, are recognised as having a potentially devastating effect on this area of law. The Liberal Democrats in the other place agreed with us when they tabled amendments exempting privacy and defamation actions. I very much hope that they will be consistent if the matter is taken to a vote tonight. That is what they proposed in the other place, so will they really vote against it tonight? The Joint Committee is looking at the draft Defamation Bill. Everyone owes a huge debt to the noble Lord, Lord Lester of Herne Hill, who I am delighted to see in his place. He is unusually silent on this matter tonight but perhaps I can understand why.

[Lord Lester of Herne Hill]

I am waiting for the noble Lord to finish.

[Lord Bach]

That is a first. I am delighted to hear it. The Joint Committee looking at the draft Defamation Bill agreed with the point that I am attempting to make now. It said of the Government’s proposals that,

“we are sufficiently concerned about them to ask the Government to reconsider the implementation of the Jackson Report in respect of defamation actions, with a view to protecting further the interests of those without substantial financial means”.

The Government are trying to stay the House’s hand—many Members of this House are concerned about the impact on these cases—by saying that they will deal with the issue in the Defamation Bill. That is not good enough. In some ways, we will break the civil justice system in this Bill and the Government are saying, “Don’t worry; we’ll fix it later”. That is not good enough. Even if the Government change the definition of defamation, what will they do to make litigation viable for those of limited means? The fundamental problem, as the House knows, is that damages are low in these cases. Indeed, Lord Justice Jackson recommended increasing them substantially in a part of his report, but not the only part, which has been ignored by the Government. The costs of bringing them in are quite a lot higher.

The Government are doing everything they can to make these cases impossible to bring in the future. They are even refusing to put qualified one-way cost shifting in the Bill, which is an essential protection against adverse costs should a litigant lose in this kind of case. The House should not think that it is good enough for the Government to say, “Trust us; we’ll fix it all later”. The amendment should be supported because, as the noble Baroness said in her thoughtful and impressive speech, it is not good enough just to rely on some Bill that may or may not appear in the next Queen’s Speech whose contents we know not.

[Lord Lester of Herne Hill]

My Lords, I listened with great interest to the speech of noble Lord, Lord Bach. He will remember that when he was a Minister in the previous Government, his master, the right honourable Jack Straw, decided that the present regime of costs was oppressive and unfair because it imposed a chilling effect on the publishers of newspapers and other media. Mr Straw decided that it was an abusive system because of the effect that it had on free speech. The effect arose from the fact that unscrupulous, greedy or perhaps simply normal lawyers acting for claimants were taking advantage of success fees and running up enormous legal costs that dwarfed any claim for damages, leaving a publisher defendant, for example, with a damages claim for £20,000 accompanied by a costs claim for £250,000.

In the Naomi Campbell v Mirror Group Newspapers case, the European Court of Human Rights found that the circumstances breached the right to free speech enshrined in Article 10 of the European convention. In that case, exactly what I described happened in a gross and abusive way. Mr Straw and the previous Government recognised that the system was an abuse and proposed a rather crude mechanism to cut down success fees to an arbitrary figure. Although this House passed the measure, the other place refused to do so and it fell.

As I shall explain in a moment, I have great sympathy with the problem. However, at the moment I am dealing with the existing abuse. I begin by dealing with it because the amendments in this group, which refer to defamation, privacy and breach of confidence, would leave in place precisely the scheme that has been held to be contrary to the European Convention on Human Rights, on free-speech grounds. They would leave in place the exact conditional fee agreement and success fee scheme, with all its capacity for abuse. For that reason, the amendments should be resisted.

Of course, I agree with the noble Lord, Lord Prescott, and others who spoke, that there is a problem in defamation and privacy cases. It is that the normal costs regime does not work very well in those cases, where often what are sought are not massive damages but other forms of remedy that cannot be dealt with under the scheme in the Bill. That is why at a previous stage I tabled an amendment to introduce what I hoped would be a proportionate way of dealing with the problem. The noble Lord, Lord Prescott, put his name to the amendment. I am entirely at one with him in saying that there needs to be a special and proportionate regime that applies to defamation and privacy cases. We are entirely at one in our aim, and that is exactly what our colleagues in the other place indicated in the view that they took on the matter.

The question is: what is the best way of meeting this legitimate aim? A means must be found of dealing with the David and Goliath problem—both ways. In one case there may be an extremely rich and powerful claimant and an impoverished defendant—let us say a citizen critic, or a little NGO, who cannot afford to pay the costs of the claimant. In another case the claimant may be a weak or impoverished individual who is up against a powerful newspaper or other big corporation, and the same problem will arise. We need to find a scheme that ensures equality of arms—a level playing field—between the strong and the weak in these cases such as privacy and defamation claims where the remedy in the Bill is not suitable.

Public Bodies Bill [HL]

Debate between Lord Bach and Lord Lester of Herne Hill

Tuesday 14th December 2010 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, I ought to point out that I said I would abstain.

[Lord Bach]

We should be very grateful indeed to the noble Baroness, Lady Finlay, for raising this matter. We on this side of the Committee support her amendment because we think it is sensible and right. As the Minister, along with my noble friend Lord Tunnicliffe, who took the Coroners and Justice Bill through this House, we understood clearly that reform was considered vital and not before time. The coronial system had failed to keep up with the demands of this century. There were flaws that were evident from the Shipman inquiry and other reviews. Both the inquiry and the reviews recommended a fundamental overhaul of the current arrangements and everyone agreed that reform was essential and urgently needed. After some time listening to evidence and considering the options, a consensus emerged and the Bill came to Parliament. The roles of the chief coroner and the chief medical adviser to the chief coroner sat at the heart of the reforms to which Parliament agreed. The chief coroner is intended to provide the necessary oversight, training and, above all, leadership for the coronial system and to be at the head of the appeal framework for people affected by the decisions that coroners make. While there was substantial debate in this House on many aspects of this part of the Bill, whether there should be a chief coroner or a chief medical adviser was, frankly, not an issue. Indeed, there was strong support on all sides of the House for these reforms.

The Government’s decision to abolish these positions came as a shock to all those involved in the coronial reforms. Considerable concern has been expressed by bereaved service families and those who have lost loved ones who have died in custody, and many noble Lords will have received correspondence from groups and individuals. On behalf of everyone, I thank those who have bothered to write to us, including the Royal British Legion—I declare an interest as an individual member—and the organisation INQUEST for making the issue clear to the House in considering the Bill.

It is worth putting on record what the distinguished director-general of the Royal British Legion said when hearing of the Government’s decision. He stated:

“We believe this decision would be a deep betrayal of bereaved Service families … The Legion campaigned long and hard as part of its campaign to honour the Military Covenant for reforms to the inquest process—to guarantee bereaved Service families a modern, thorough and transparent investigation”.

He concluded:

“The Chief Coroner’s Office and role are absolutely central to this”.

Will the Minister clarify whether it is really argued by the Government that people’s concerns, which are centred on having inquests that are fair and just, will be assuaged by taking in-house the role of the independent chief coroner? The argument that the responsibilities of the chief coroner can be taken inside the Ministry of Justice and somehow, at the same time, be perceived to be independent of government is, frankly, fatuous; it is a laughable argument. Coroners are intended to be judicial officers, independent of government and impartial. The leadership of these bodies obviously warrants similar independence. The public of course expect justice to be done, but also justice to be seen to be done. Indeed, it is for this reason that a distinguished judge had been appointed as the prospective chief coroner before the Government’s edict was announced.

There was a clear consensus about the role of the chief coroner and his team during the passage of the Bill and everyone looked forward to the start of the new framework in 2012—and now this. Surely, at the very least this proposal must leave a bad taste in the mouth; at the most, it is surely constitutionally inappropriate for important legislation, passed as recently as November 2009, having been through both Houses—a great amount of time was spent on it in this House—to be abolished by a mere affirmative order in council. That is what the House is being asked to approve today.

Why? It surely cannot be only a matter of costs. The noble Baroness skilfully took apart the alleged costs, as did the noble Lord, Lord Ramsbotham, in his contribution. Moreover, as I understand it, the Government have already made it clear that this Bill is not really about cost savings and the chief coroner comes well within the Maude test for public body reform. My noble friend Lord Harris referred to the charter for bereaved people. The Government say that it will survive, but the powers of the chief coroner were central to the satisfaction and comfort of people who had been bereaved. And now, if the Government have their way, there will be no chief coroner.

We all know that Governments of all colours sometimes latch on to a policy and will not come off it when it is obvious to the world and even to themselves that it is wrong. Indeed, the more sensible the criticisms, the more likely are the Government to stick to their guns. Sometimes it is the role of Parliament to step in and save Governments from their own macho tendencies. This is one of those occasions. We support the amendment of the noble Baroness, Lady Finlay, because it is so obviously right and so obviously common sense.