Assisted Dying Bill [HL]

Lord Brennan Excerpts

Friday 16th January 2015 Lords Chamber

[Lord Gold (Con)]

My Lords, I have put my name to this amendment because I agree entirely that we need certainty in our understanding of what this legislation is for. At the moment, although there is some reassuring language in the Bill, I do not think it clarifies what the noble Baroness has just stated, which is that this is a measure to assist suicide.

I am sure that all noble Lords have had correspondence—I have received many letters and e-mails—reflecting great uncertainty as to what this is all about. One of the things we in this House must do is make sure that, if we pass the Bill into law, we have spelt out exactly what it is for and the exact process that people will go through if they are to be able to take advantage—if that is the right word; I do not think it is, really—of this legislation. I hope that we will agree to clarify the position.

[Lord Brennan (Lab)]

My Lords, I rise to support the amendment for the following reasons. Parliament should speak the truth in legislation. In so doing, whatever degree of sentiment we strongly hold for or against an issue, when it comes to the very content of a statute there is no room for emotion and definitely no place for euphemism. The right words should be used in their right meaning. An Assisted Dying Bill could easily be understood to refer to a palliative care Bill. An assisted suicide Bill tells the truth, and the Bill should say that on its face.

It is a legislative irony that in Switzerland, which gave rise to Dignitas, the legislation specifically refers to suicide. At present, the word “suicide” appears only once in this Bill, in Clause 6(2), and that occurs because of statutory necessity. For the Bill to pass, the medical participant must be given an exemption from prosecution under that Act, otherwise the law will be broken. In the Bill’s present content the word is used once to amend a previous law, but not again.

It is necessary to use the word “suicide” because, first, death is normally a passive process. Medical participation in producing another person’s death is an active process. It involves the person wishing it, the doctor being satisfied and thus able to certify that it is reasonable, a process for use of the drugs that are to be given, and then the prospect of statutory provision. All of that surely requires clarity of expression. Secondly, it is necessary to better inform both our debate and public debate. In a Gallup poll conducted in 2013, 70% of the participants agreed with the proposition to:

“End the patient’s life by some painless means”,

but only 51% were ready to agree to:

“Assist the patient to commit suicide”.

The more bland and emollient the language used, the more acceptable the proposition becomes. The clearer the language, the more we are in touch with reality, and the better the decision to be made.

The Committee benefits from Members such as the noble Baroness, Lady O’Neill, with her clarity of thinking, accuracy of expression and modesty in presentation. I commend the amendment. Returning to my first point, there should be truth in legislation and, using her advice, we should pass this amendment because it is commensurate with the gravity of the issue with which we are dealing: life, or death, committed at the hands of a third party.

[Baroness Meacher (CB)]

My Lords, I want to make one brief point. I agree with the speakers who have contributed so far that we need clarity and truth. The issue here is the decision to be made. If someone wants to commit suicide, they are deciding whether or not they wish to die. This Bill is not about that at all. It is about people who are dying, and the only question for them is how they die and whether they can die with dignity. That is an entirely different question, and it is extremely important that the Bill is absolutely clear about that distinction.

Assisted Dying Bill [HL]

Lord Brennan Excerpts

Friday 18th July 2014 Lords Chamber

[Lord Brennan (Lab)]

My Lords, to make it lawful for doctors to assist people to commit suicide is a profound step. This morning’s editorial in the Guardian said that it would change the moral landscape of our nation. A Bill that proposes this therefore demands, whether you are for it or not, rigorous examination. If one applies that examination at this early stage, the Bill can be seen to be dangerous in its effect.

First, it favours the few invulnerable against the many vulnerable, who may be pressured into it by fears of being a burden, either through physical dependency or financial cost or both. I use those adjectives, “invulnerable” and “vulnerable”, following Lord Sumption, one of the judges in the recent case. He used them in counterpoint to explain the difference between the strong and clear-minded and the weak, depressed, ill and confused. At paragraph 228 of his judgment, in referring to the risk to the vulnerable, he said:

“There is a good deal of evidence that this problem exists, that it is significant, and that it is aggravated by negative modern attitudes to old age and sickness-related disability”.

The problem will surely get worse. Over the next 25 years, people of 60 and above will become 50% of the population of the nation, presently estimated to take up 60% of the National Health Service’s costs. Can it be doubted that the problem that Lord Sumption identified is not going to get worse? Of course it is, both in the individual case and in society, where the cost of living as an old or sick person will be balanced against the treatments of death under these arrangements. We must be realistic. Limited today, it will be extended soon enough if necessary.

Secondly, there is a danger to the medical profession. This Bill dismantles the Hippocratic oath by creating two kinds of doctor: those who will not help you to kill yourself and those who will. I cannot imagine more diametrically opposed medical standards than those. How is it to be resolved within the profession? How can it help public confidence in doctors and nurses?

Thirdly, the Bill is limited in its effect, but the prospect of litigation and further legislation is obvious. The more we are told about autonomy and choice, the more a group of litigants will say to the court, “I want to exercise my autonomy and my choice. Why is it restricted to the terminally ill? Why six months? Why the discrimination between those types of cases and me? Look at the Equality Act”—et cetera, et cetera. It will come. The noble and learned Lord, Lord Falconer, has not told us, nor has any of his supporters thus far, what they will do in the future if this Bill is passed. Is this a first step or the last step?

Fourthly and finally, there is a danger to Parliament. If one doubts that it is as serious as I have suggested, look at Clauses 8 and 9. The Bill states that execution, oversight and regulation are given by us to the Executive to devise and implement without reference to Parliament. I find that astonishing.

I accept the misery that can come with illness and the time near to death, but in the 21st century, with all the technology and medical advances that we have, are we driven to the conclusion, in the words of one of the royal colleges, that it is best to be compassionate by eliminating suffering through elimination of the sufferer? Surely we can do better than that.

Legislating for hard cases nearly always produces bad law. In the rigour that we apply to this Bill, let us make sure that we do not make that mistake again.

Anti-social Behaviour, Crime and Policing Bill

Lord Brennan Excerpts

Tuesday 11th March 2014 Lords Chamber

[Lord Brennan (Lab)]

My Lords, I remind the House that I served for 10 years as an assessor for compensation for miscarriages of justice. That role required me to assess compensation, not to determine eligibility. However, in order to determine compensation I was equipped with the factual basis for the ministerial decision to allow compensation to be awarded.

We are here faced with a choice between two different ways of seeking to achieve justice, and the key test for this House should be which way better serves the interests of justice. The Lords’ amendment creates a stiff test: you have to show conclusively—it is a tough obstacle—that the evidence was so undermined that no conviction could possibly be based on it. The evidence so undermined is a matter for judicial assessment in this context. Whether it makes a conviction impossible to sustain is a matter for judicial decision. Both the assessment and the decision arise in the process of whether guilt has been established, not whether innocence has been shown.

Because of that well established system, judges, both at trial and in the Court of Appeal, look at these matters of assessment and decision very carefully. The process is a fundamental part of the system; it is well established. The judges, the lawyers and the legal commentators know what is happening. It accords with what we have traditionally thought to be the best of legal principle in applying our criminal law. A miscarriage of justice is an aberrant product of our criminal law going wrong in its process. The system I have just described has sufficient clarity in its process so that when the test in the Lords’ amendment is applied to it, justice will usually be done if there is a miscarriage of justice.

What of the government test? The words “innocent” and “did not commit” we can treat as synonymous for the purpose of this argument. The government test involves the Minister looking for material to show innocence from proceedings that were designed to establish guilt. Other than the Criminal Cases Review Commission, of the potential sources the key source of his or her approach will be what happened in court then, or afterwards if there was an appeal, or a newly discovered fact well after that. So the context of the ministerial decision will be outwith our present system.

Indeed, the Minister will be applying himself or herself to making a quasi-judicial decision: should this person, in justice, be given compensation for this miscarriage of justice? It is a very serious decision most pertinently determined by solid evidence, and from where is he or she to extract it in our present system? The new fact which establishes innocence or that someone did not commit the offence has to be very powerful indeed—for example, irrefutable DNA evidence or a subsequently discovered group of witnesses who prove a rock solid alibi. There are very few sets of circumstances.

It will be of significance to this House—and I trust to the other place if this goes back to it—that no one on the government side in any debate so far has chosen to illustrate by example how their test would work and why the Lords’ test is not appropriate. Although proceedings before the assessing Minister are confidential, it is open to the applicant to make them public. I shall refer to two public examples which show that the Lords’ test would work in justice and the government test would not.

The first is the “arms to Iraq” case, in which some of the defendants got to court and no evidence was ultimately offered against them—there never was a trial. Others of those cases were stopped during the trial and in yet more cases there were acquittals. The result of that set of circumstances meant that in the ones where no evidence was offered or the judge stopped the trial, there never was an appeal; there never was any new evidence because the scenario was well known. We did what we thought was legal because the government agents and people responsible said that we could do it.

In those circumstances, with no Court of Appeal judgment, on the test in the Lords’ amendment it is almost certain that those people would have received compensation. If you do not offer any evidence, how can you possibly say that the conviction could be sustained? If the judge stops it on the basis of the Lords’ test, why not give compensation? How could these men “prove their innocence” in the context of the government test?

There is another very telling example. Many of you will remember the case of Colin Stagg and the murder of Rachel Nickell on Wimbledon Common. She was stabbed to death, with 49 blows, in front of her two year-old child. Stagg was one of many arrested and he was eventually charged. The judge threw the case out at the end of the prosecution case. This was in the mid-1990s and Stagg was vilified in the national press almost from day one. When the judge stopped the case, he went back to Wimbledon and lived by night because he was hounded and harassed in the street by day. He lived a hermit life for years. Eventually the Minister decided, on all the material before him, to grant compensation, and I made an award. It was only a year or two later that someone else, Robert Napper, was arrested for that murder. He pleaded guilty to manslaughter on the grounds of diminished responsibility and was confined to Broadmoor for the rest of his life.

How can anyone in this House plausibly suggest that Stagg should not have got compensation until someone else was proved to have been the person who killed Rachel Nickell? Who would not regard that as an affront to justice? The Minister at the time, in applying the law on eligibility at the time, gave Stagg an award. Under the Lords’ test he would get such an award today; under the government test he would not—he would have to wait and endure circumstances until someone else was shown to be the murderer.

[Lord Brown of Eaton-under-Heywood]

My Lords, I just ask my noble friend to agree that, under any test, neither of these cases would qualify for compensation because compensation is payable not on an initial acquittal, a first appeal or an appeal brought in time, but only ever on a late appeal. They would therefore not have qualified anyway: it is only for a restricted group of cases in which they are not included.

[Lord Brennan]

Now that I am in the same House as the noble Lord and not appearing in front of him as an advocate, I very firmly disagree. Compensation for miscarriages of justice does not depend on a successful appeal. For years, in certain cases, awards have been made without such an appeal. In the examples I have given, no contrary example has been given thus far to show why the other test proposed by the Government should be put forward. I make the following concluding submission: the Lords amendment is based on well founded principle—the Adams terminology—arising from a well established system of criminal law and criminal justice. The government test is neither of those things. The Lords amendment better serves the interests of justice and this House should send it back to the Commons for reconsideration by MPs and by the Government in the interim.

[Lord Beecham]

My Lords, I must first congratulate the noble Lord, Lord Taylor, who managed to escape the onerous task of replying or, indeed, of advocating the Government’s case. The noble Lord, Lord Faulks—the Minister—has, as it were, picked up a dock brief. He comes before the House as a poor man’s lawyer—or, I should say more relevantly, a poor Lord Chancellor’s lawyer.

It is instructive to consider how the debate on the Government’s proposal played out in the House of Commons. Deep concern and opposition to the original Clause 151 was voiced on all sides of this House in 19 speeches. Speakers included former Law Lords, lawyers of varying experience in this field and non-lawyers. Members may recall in particular the powerful speeches of the noble Lord, Lord Cormack, the noble and learned Lord, Lord Hope, who has addressed us tonight, and my noble friend Lord Brennan, who has also spoken to us, with his long history of involvement with this issue. These and other noble Lords voiced profound misgivings over the Bill’s requirement for those claiming compensation for a miscarriage of justice effectively to have to prove their innocence. I do not need to rehearse the arguments advanced at Second Reading, in Committee, on Report and again today. Only four speeches, other than those from the relevant Minister, supported the Government. Three of these, no less, were made by the eminent former Law Lord, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, from whom we have heard again tonight. The other was made by the noble Lord, Lord Faulks, before his accession to ministerial office. One Member expressed doubts in a speech at Second Reading and did not vote on Report.

The overwhelming body of opinion in debate in this House—right through the progress of the Bill—was, therefore, opposed to a proposal that was at odds with our historic attachment to the presumption of innocence unless and until guilt is proved beyond reasonable doubt. It was a proposal that, as I have mentioned in previous debates, would save all of £100,000 a year, given the paucity of successful claims—some two a year, as the Government’s own impact assessment made clear.

The Government have consistently claimed that the law was uncertain: it was not, though the Supreme Court invited the Government and Parliament—having reached a conclusion by a narrow majority in the Adams case—to consider the matter. However, the decision in the Adams case was clear, and the noble Lord, Lord Faulks, was kind enough to advise me yesterday that it has effectively been followed and upheld by the Court of Appeal. Therefore, it was with some astonishment that I read the terms of the government amendment and the debate on it in the House of Commons.

The Minister, Damian Green, claimed:

“The Government have taken account of all the points that have been made and all the concerns that have been expressed and our position has changed as a result of the very good debates that have taken place in Committee as well as in the House of Lords”.—[Official Report, Commons, 4/2/2014; col. 163.]

The change, of course, is to drop the requirement for the claimant to establish that he was innocent of the offence and substitute the requirement to show that “he did not commit” the offence. I do not pretend to understand by what process of jurisprudential alchemy the base metal of proving innocence becomes converted to the gold of establishing that a claimant did not commit the offence. It is a distinction without a difference—an attempt to preserve the Government’s version of legislative maidenly modesty.

Anti-social Behaviour, Crime and Policing Bill

Lord Brennan Excerpts

Wednesday 22nd January 2014 Lords Chamber

[Lord Brennan (Lab)]

My Lords, from 2001, I served for 10 years as the assessor for miscarriages of justice—that is, as the assessor of compensation. I agree with the amendment proposed for all the intellectual and legal reasons advanced, but also for a series of practical reasons. Having given awards in various cases, such as that of Sally Clark and so on, I was required to read all the materials which founded the application. So although I awarded compensation by way of decision, by way of analysis I covered eligibility. This part of the Bill is directed at the test for eligibility, not for compensation, so it is a test that the Minister has to determine, not the legal assessor.

My concerns, for practical reasons, about the text of Clause 161 are as follows. First, as the noble and learned Lord, Lord Hope of Craighead, has pointed out, our criminal system is not in any way directed at establishing innocence; it is directed at proving a prosecution case or, for the defence, at seeking to undermine it. Therefore, it is unlikely that during a criminal trial the investigation will reveal a clear case of innocence for the defendant. It could happen, but it is unlikely. The appeal process thereafter in the Court of Appeal Criminal Division is directed at whether the verdict could be sustained: was it reasonable, safe and so on. That again is directed at the strength of the prosecution case, not at any question of proof of innocence. At the end of the criminal appeal, the process is over. It is only if a campaigning lawyer, NGO or the Criminal Cases Review Commission digs up new evidence that this phrase, “a new fact or a newly discovered fact”, is likely to come into play, which could be years after the original event and may not always be a matter of science. DNA may conclusively change things or a group of 10 or 12 citizens may prove an alibi where the defendant did not know that they could prove it for him or something like that, but that is very rare. Most cases are decided on what the jury think of witnesses’ behaviour and credibility, not science. So I ask the question: in relation to a new fact or a newly discovered fact that is not a matter of science or a compelling factual exposition of what did or did not happen, how will the Secretary of State or the junior Minister have any material on which to determine that there is no reasonable doubt whether there was an innocent man or woman? It is simply impractical. Not only is it impractical, it is unjust, because the person who has been in jail for years will have no means of seeking to advance a case absent the help of third parties. It is therefore impractical to put this clause into a system of justice for victims of miscarriages of justice.

Secondly, I am concerned about the variety of cases that come up. Even though the proceedings are private, it is public that I have the task of deciding the compensation—symbolic—to be given to the relatives of Derek Bentley. “Let him have it” was the key phrase on which the case was determined. That case came back to the Court of Appeal 50 years later, which overturned the conviction because of the conduct of the trial judge, particularly in the summing up.

Let us suppose that Derek Bentley’s case, or that sort of case, had happened in recent times and, instead of being executed, he had spent years in jail. The judge dies, the campaigning group get together and challenge the conviction on the basis of the summing up and the conduct of the trial, and it succeeds. The evidence is “Let him have it, Chris”. How on earth could any Secretary of State come to any conclusions about innocence under this test? You simply could not.

In relation to acquittals, the arms to Iraq affair was uncovered by the revelation of misconduct by government officials. How could a Secretary of State determine innocence in relation to the misconduct that had taken place, perhaps in another department? It does not sound at all right. Failure to disclose by the police or relevant state authorities, a major reason for miscarriages of justice, could not possibly usually involve this point about proving innocence, yet it provides the basis for a genuine miscarriage of justice.

Finally, this example is given with anonymity to test the propositions of each side. A complainant says that she was violently assaulted and raped. The defendant, a man of good character, goes before the jury and says that she consented: “I never use violence”. He is convicted and receives a number of years’ imprisonment. It is then discovered that the victim had made similar allegations on several previous occasions in different parts of the country against different young men, about which his defence team did not know and which would clearly have been relevant to his defence. It might even have resulted in there being no prosecution. Yes, this is not a safe case to convict, but I ask: how could any one of us say, beyond reasonable doubt, that he must be innocent? You simply could not do that. Yet not to compensate him after years in prison would be an outrage with a history like that.

That is a practical example which shows the amendment test to be reasonable and the Government’s proposed test to be impractical. As the noble and learned Lord, Lord Phillips, has pointed out, it does not best serve the interests of justice.

[Lord Cullen of Whitekirk (CB)]

My Lords, I shall say something briefly about the reasons put forward by the Government in the past for the amendment to the law which is sought to be effected by Clause 161. In fact, as far as I can see, they have put forward two different explanations for this change in the law. The first is that there is said to be a doubt as to how the category of cases recognised in Adams should be formulated. I mention that in case the point is renewed again today. In his letter to the chairman of the Constitution Committee of this House, dated 11 November 2013, the noble Lord, Lord Taylor of Holbeach, said that there was a doubt created by the later decision of the Divisional Court in the case of Ali in explaining the effect of Adams. However, the formulation adopted by the court in Ali was rightly criticised at the Committee stage of this Bill. In any event, if there were a doubt as to how the category should be formulated, it is odd, if not extravagant, to deal with that doubt by getting rid of the category altogether, which is the effect of this proposed amendment to the law.

The second explanation, to which all the speeches today have been directed, is to do with whether one course or the other should be taken, with the Government preferring the narrow approach. As the noble Lord, Lord McNally, said in Committee:

“We do not believe that it is necessary to pay compensation more broadly than this”.—[Official Report, 12/11/13; col. 704.]

No doubt, Parliament can overrule a decision of the Supreme Court, but the question is whether it is appropriate that it should do so. I entirely agree with the eloquent speeches made today in support of the amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Brennan Excerpts

Tuesday 27th March 2012 Lords Chamber

[Lord Brennan]

My Lords, the topic under debate appears to involve general agreement that this class of case is a proper one to be brought in the courts of this country. The critical question therefore is: is it financially possible to bring such a case under the proposed reforms in this Bill? These are long cases, which take years, and they are complex and very expensive. They involve defendants with economic might who are prepared to take on the claimants remorselessly. I remind the House that the Trafigura case actually reached the stage where this Parliament was debating whether that company’s obtaining of a super-injunction meant that Parliament could no longer debate the issues raised by the case. That is might.

The idea that such a case can readily be brought and financed under these reforms is one with which no one whom I know in the law agrees. I have been involved in four of these 10 or 12 cases in the past decade and they have all involved millions of pounds on both sides. In Trafigura, the published costs of the defendants without a trial were £14 million. I await with interest to hear from the Minister any mathematics or economic analysis that explains to this country how lawyers here under these new arrangements—a reduced success fee and no “after the event” insurance—could fund such a case. Everyone I speak to says, frankly, that it is impossible.

If the Minister comes forward with some mathematics that are realistic and not ethereal, and if he gives us financial analysis that is not far distant from reality, the House might still be persuaded. As yet, no one in public has produced such material. The result is that we expect the developing world to open its doors to our great companies to make large profits for the benefit of our country but, when those investments produce adverse consequences, we in this country close our doors of justice to the people who have suffered. That cannot be acceptable, and the Government should think again.

[Lord Stevenson of Balmacara]

My Lords, the noble Baroness, Lady Coussins, has introduced this group of amendments with her customary fluency and passion, and she has been joined by other speakers who have made the case well. As has been pointed out, this measure risks damage to the UK’s reputation for justice to those people who have suffered damage to their human rights caused by companies based in the United Kingdom. I am sure that none of us wishes to see that happen.

We have support from all around the House, and we are grateful to those who have joined in on these amendments. The settled view of your Lordships’ House is clearly that there is a real danger that, if this Bill goes through in its present form, the changes that it makes to the way in which international human rights cases are to operate, combined with the restricted damages that the Rome II regulations impose on the level of damages that can be awarded to claimants, will make it impossible for such cases to be mounted in the UK in future.

As the House has heard, several very important independent charities have been lobbying hard on this issue. Several meetings have been held with the Minister and correspondence has been exchanged. We hoped that an accommodation could be reached, and we went to see him yesterday in the hope that that might be possible. He e-mailed us today to say that he could not accept our amendments.

It is clear to me that while on the one hand the Government do not want to be responsible for preventing these cases continuing in future, they have not so far been convinced that it is highly probable that they will occur in future. Why is that? The arithmetic, as has been said, is very clear. We seem to be in a situation where the department’s overriding concern that the architecture of the Bill should be retained is working here against good legislation. What other arguments can there possibly be? We have heard from those directly involved in these cases and we know what the figures are. It is clear that the facts outlined by the noble Baroness, Lady Coussins, and my noble friend Lord Brennan that the Government are wrong. I hope that when the time comes the noble Baroness will test the opinion of the House, and we will be supporting her in the Lobby.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Brennan Excerpts

Wednesday 14th March 2012 Lords Chamber

[Lord Brennan]

My Lords, the arrival of globalisation as a world economic and human phenomenon, we hope, brings more benefits than disadvantages. However, reality tells us that globalisation produces serious adverse consequences from time to time, particularly in the developing world. It cannot be right that developed countries such as ours do not have a system of justice that provides remedies for those affected in such countries because of the liability of companies based in this jurisdiction. That reality in terms of what justice should provide should enable people from those countries access to our courts to seek appropriate remedies.

Amendment 134 in this group gives a power to the Lord Chancellor to provide regulations that would permit, in certain circumstances, our courts to deal with such cases. The numbers of cases that are likely to arise are few. Their cost and complexity is very large. To make provision for them would produce no consequence that would damage the Government’s policy in this Bill to save money and introduce cost control. None of that would be affected.

In my professional experience at the Bar I have done several of these cases. I have two examples to illustrate what I consider to be the validity of my submission to your Lordships. The South African resource of asbestos was a major benefit to companies in this country for decades. The standards of working practices and protection of ordinary workers were extremely low. I will not reveal anything that is not in the public domain by saying that I represented the plaintiff African miners—7,000 of them—many of whom were women, who were being used to break asbestos rock against granite to free the asbestos fibres for collection and use while bearing on their backs newborn babies. It is difficult to imagine that anyone would not think that that called for some remedy, if proved.

The case was dealt with in this country in the 1990s and it took three years of hearings in the lower court, the Court of Appeal and the House of Lords Judicial Committee before the plaintiffs finally got an order that the case should be heard in this country. Not surprisingly, it was eventually settled, a settlement that included compensation to all those people who had had to produce their medical records, their X-rays, from the very difficult administrative circumstances of the young South Africa of the 1990s and of the Government of South Africa, who were given money by the defendant company to contribute toward the clean-up of asbestos residues at the mines where they had been produced. All of that produced a trust settlement. All of that cost a huge amount in expense, with top class lawyers. Can it seriously be suggested that, under any of the reforms proposed in this Bill, such services by lawyers would be given these days? It is an absurd proposition.

I will move on to describe the second case, and then I will briefly come to a conclusion. I was involved in the Ivory Coast case in its early stages and I went to Abijan. We had tens of thousands of claimants, all of whom had to fill in questionnaires and produce medical evidence—often in French, in Francophone Côte d’Ivoire —and then come to England to pursue their case. By the time of this case, a few years ago, the law had changed, and I invite the Minister and his staff to bear this in mind. The law of the European Union now states that plaintiffs like that must sue the company which is alleged to be at fault in the jurisdiction from which that company operates. They are required to come to our country to pursue their claim. It is not a matter of form shopping—it is a requirement. That case cost a fortune, and it was settled, and it took years.

Companies such as this are often either insured, with enormous excesses that give them a lot of influence on the conduct of the litigation, or they are self-insured, because they are so big and powerful. For two or three years the programme is one of the plaintiffs producing all their medical and expert evidence and then going to court, hearing after hearing, long before trial, and spending a fortune. However, there was legal aid for the South African case and a conditional fee agreement for the case I have just mentioned. It worked and justice was done. That is all that I am asking the Government to consider should be done for this class of case in the future. These people have to come here. They do not have elite lawyers, funding or local remedies. They come to our country for justice. They come to where the company was based and where it should face justice.

This is a state of affairs which I commend to the attention of the Government and the House. How could it be said that any such case was properly catered for by allowing the previous system that was used in the Côte d’Ivoire case to continue? How could that adversely affect all the domestic factors that figure for local people? How could it benefit this country? Will we leave the Chamber having voted in favour of this, with our heads held high because we represent a country in which justice still prevails and access for the poorest, from wherever, is still available, or do we hang our heads in shame over something that cannot possibly be justified?

There is a risk that if this kind of exception is not made grave injustice will follow and the reputation of our country and our courts for just civil proceedings will be seriously damaged. It is time to think.

[Lord Stevenson of Balmacara]

My Lords, I thank those noble Lords who have spoken in this debate, in particular the noble Baroness, Lady Coussins, who, with her usual fluency and clarity, made the case extremely well. My noble friend Lord Judd, with his lifelong commitment to human rights, also drew attention to the many organisations who have written to us and who have supported the case that has been made tonight. My noble friend Lord Brennan, who has just spoken, has direct experience of many of the cases which we are talking about today and left us with a very powerful message about the impact that could be effected if the Bill goes forward unchanged. I thank the noble Baroness, Lady Miller, for her support of our amendment, particularly for drawing attention to the wider soft-power aspects which are so important in this area, and the right reverend Prelate for bringing into play the inevitable impact on poor communities of the Rome II regulations. Those will of course limit the level of expenses that they can possibly receive, and therefore create a completely unbalanced playing field in this area.

To apply the test that was proposed by the noble Lord, Lord Faulks, in the previous group, it is clear that the widely held view around your Lordships’ House is that once this Bill becomes law, it will not be possible to mount cases brought by vulnerable victims of corporate abuses perpetrated overseas by UK companies within the English courts. As we have been reminded, they have to be raised here. There can be little doubt that the Government really are on the wrong side of the argument tonight, and I join with the noble Baroness, Lady Howe, in not being at all clear why this is the case.

In his letter to me and the noble Baroness, Lady Coussins, of last month, which has already been referred to, the Minister argued that corporate human rights cases could still be viable under the measures contained in the Bill, and he helpfully highlighted the opportunity to use damages-based agreements—DBAs. This line of argument derives from the much quoted Jackson report which, it is worth pointing out, did not specifically deal with the cases that we are highlighting today. I will not go into the detailed arguments, as they have been well covered, but neither of Lord Jackson’s suggestions—under which the effect of lower damages recovery would be ameliorated, in his view—will work for typical corporate human rights abuse actions brought by claimants from developing countries.

We recognise, and indeed support in some ways, that one objective of this Bill is to reduce the costs of cases across the legal system as a whole, and one cannot be against that. Clearly there is a much better reason for this where these costs fall to be met in whole or part by the public purse but, as the Minister has already accepted, we are not dealing with this area in this part of the Bill. However, in the cases we have highlighted, not only is there no cost to the public purse, but there is already a system in place to decide whether the legal costs awarded are appropriate. Indeed, it was used in recent cases to significantly reduce the costs claimed by the winning side, although they did in fact settle.

It may be irritating to the department to have to create a carve-out in a Bill for such a small group of cases, but surely it is vitally important that vulnerable victims should get justice—and at least some compensation —for the trauma and harm that they have experienced, or for the loss of livelihood or even of life that has been caused by UK companies. It is equally important that companies need to know that they can be brought to account if they act irresponsibly. That is why we believe it is warranted to carve out an exception, so that the broader measures in this Bill do not close off justice in the UK for this small but very significant group of cases.

Our amendments would retain the current funding system in effect for human rights cases. Creating this exception would not be fatal to the overall aims of the Bill. The existing regime of success fees and “after the event” insurance premiums being paid by the losing company instead of coming out of the damages of the claimant are, in our view, the most sensible way of ensuring that these cases continue to be mounted. Moreover, it is unlikely to be more than a few cases a year, as stringent rules have to be met before such cases can be mounted.

In the debate last week, the noble and learned Lord, Lord Wallace of Tankerness, recognised that, in clinical negligence cases, removing the recoverability of ATE insurance premiums could create a real problem for claimants. The Government have therefore created a carve-out because expert reports are such an essential requirement for building clinical negligence cases successfully. However, the expenses of obtaining such reports would not necessarily be covered under the new regime. In the human rights cases that we are looking at, expert opinions and reports—for example, the analysis of alleged toxic waste or polluted water; or medical examinations in relation to asbestos ingested by miners in South Africa—are a vital part of showing that there is a valid case to answer. There is a very strong read-across from clinical negligence cases to the sort of human rights cases we are dealing with here.

I hope we can find an accommodation here. In plain terms, all the evidence suggests that the approach being taken in this Bill will kill off the chances of mounting this very small group of special cases in future. How poignant it is that at the same time as we are debating this amendment, the Foreign Office is leading valuable cross-governmental work on how we implement the UN guiding principles on business and human rights adopted in June 2011, which the Ministers told us in our meeting with them that the Government support. We were one of the countries most closely involved in UN Special Representative John Ruggie’s work. Indeed, the previous and the present Governments have been vocal in their support of the guiding principles and the present Prime Minister has committed publicly to implement them.

What sort of example are we setting and what message are we sending to UK companies if we now change our laws to make it hard for poor victims of corporate abuses perpetrated by UK companies to seek redress? They may be a small number of cases but they have had a direct impact on the lives of millions of people in the developing world. Each successful case has shone a harsh light on key areas of corporate misconduct in the developing world—from the dumping of pollutants in the water supplies of communities to appalling health and safety standards in mines and to direct corporate involvement in abduction and torture. Ultimately, it is surely important that businesses know that they cannot act with impunity. We do not want the majority of responsible UK businesses to be at a disadvantage because laggard companies get away with substandard, harmful business practices.

[Lord McNally]

My Lords, the noble Baroness, Lady Coussins, said that making this exception would not “gut” the Bill. But I hope that noble Lords who sit through these debates or perhaps read Hansard will see the pattern. Clauses 43 and 45 are a fundamental element of the package of reforms recommended by Lord Justice Jackson to deal with the problems of disproportionate costs in civil litigation under CFAs. I have called that the central architecture of the Bill. The clauses seek to reform and remove the inflationary defects introduced into the system by the previous Administration, which is the central point.

The Jackson reforms look at a specific part of our civil justice system. Throughout the passage of the Bill, we have had claims for exceptions to the central architecture. Certainly, in debates an adopter stands up and goes into the great clinical detail of an illness that we might be talking about, as if that is what the debate is about, and whether one should vote for or against it. Or the noble Lord, Lord Brennan, tells us of the suffering and the hardship of working in mines in South Africa as though that was the subject of the debate. Then everyone thinks, “Oh, we can’t be against poor women in South Africa in such conditions or people suffering from such terrible diseases”. In fact, that will remove the central reforms of the Bill.

In most of the examples that we have had so far, when one looks at what we are actually doing, they do not stand up to examination. It is of course always possible to make the case for an exception in a particular class of case, as noble Lords have done. But we believe that our changes must apply across the board. However, let me make it clear at the outset that we support claims arising from allegations of corporate harm in developing countries being brought and we support the protection damages for personal injury. No-win no-fee conditional fee agreements will continue on the same basis on which the noble and learned Lord, Lord Mackay of Clashfern, introduced them. Indeed, if the noble Lord, Lord Brennan, was referring to a case in the 1990s, it was probably brought under this regime, which is the basis on which it still operates in Scotland. We are also extending the availability of damages-based agreements, which are sometimes called contingency fees, to enable their use in civil litigation. Some of the objections to DBAs from the representatives of big business make me feel that they are a much more potent weapon than people give them credit for.

As I have said, we recognise how important these cases can be. We recognise also that, following the Rome II regulations, the damages in these cases can be relatively low. But the costs have been extremely high, as demonstrated in the now notorious Trafigura case, in which the Court of Appeal criticised the claimant lawyers for seeking costs of £100 million in a case which resulted in £30 million in damages. I should add that the defendant’s costs were only approximately £14 million, which was about one-seventh of the costs claimed by the claimants.

The reforms in Part 2 are about making costs more proportionate, while allowing meritorious claims to be pursued. As has been recognised by the noble Baroness, Lady Coussins, I and my officials have met on several occasions with representatives of NGOs which support these cases but we are not persuaded that they cannot be brought when our changes are implemented. We have asked for examples of further details of costs. If noble Lords want to engage between now and Third Reading, I will be happy to do so.

However, I continue to come to this Dispatch Box to answer attacks on this legislation that do not stand up to examination of the reality. It often means that the Opposition cleverly erase their own record in these areas and immediately adopt whichever hard case is being brought forward as the exception that will not damage the whole architecture of the Bill. We believe that Jackson was right in his reforms. We do not believe that those kinds of cases—I think the number referred to is about 10 such cases in the past 15 years —will be prevented from being brought.

We have listened carefully and we have sought to engage with relevant NGOs on this issue. As I said I would in Committee, I have now discussed this matter further with the Secretary of State but for the reasons that I have given we remain unconvinced that these cases cannot be brought under the new regime, as was suggested by the right reverend Prelate the Bishop of Newcastle.

[Lord Brennan]

The noble Lord is most gracious to give way. The points I was making were illustrated with cases. My principle point was that these cases are so expensive to run that you need a capital base which is not available to lawyers in this country. I should like the Minister to consider—if not now, later—in explaining to the House how it is that his advisers are telling him that lawyers in this country can raise £2 million, £3 million, £4 million or £5 million to run a case for three or four years. How will that be done?

[Lord McNally]

I will certainly take note of that. I realise the experience of the noble Lord, Lord Brennan, in these areas. When we asked the NGOs for hard facts and figures on costs, they were not forthcoming but perhaps there is time between now and Third Reading to re-engage. I also think that part of the problem is that whatever we have in civil law, conditional fee agreements or anything else, some of the problems raised by the noble Lord, Lord Brennan, in illustration will not be solved in British law courts or by changes in the British legal system. We are trying to reform what everyone who comes to the Dispatch Box acknowledges is a defect in our civil legal system and for which Lord Justice Jackson has produced a reform package that we are trying to put into law. Everyone agrees that we are right to do so, but for this, that and the other exception. Again, I am willing to discuss this further, but I do not think the case has been made—