Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Judd Excerpts

Wednesday 14th March 2012 Lords Chamber

[Baroness Coussins]

My Lords, In moving Amendment 132AC, which was added as a manuscript amendment this morning, I shall speak also to Amendments 134, 135 and 138, which I believe are consequential to that first one and appear in the Marshalled List under my name and have the support of Members on all sides of the House. My amendments would ensure that in this country we retained effective access to justice in our courts for overseas victims of human rights abuses or environmental harm caused as a result of the operations of UK companies. These amendments would not involve any expenditure whatever from the public purse. I remind the House of my interest as a non-executive adviser on corporate social responsibility to various companies and I acknowledge the work of CAFOD, Amnesty, Oxfam and other organisations in the corporate responsibility coalition which strongly support these amendments.

I am grateful to the noble Lord, Lord McNally, and the noble and learned Lord, Lord Wallace of Tankerness, for meeting with me and others to discuss these amendments and for the subsequent letter the noble Lord, Lord McNally, sent. I am only sorry that I do not seem to have persuaded him of the need for these amendments but I will have one more go here today and make four brief points in response to the reasoning set out in his letter of 29 February 2012 to me and the noble Lord, Lord Stevenson.

First, the Government are clear that the effect of Part 2 of this Bill should be, and I quote from the impact assessment,

“a transfer of resources primarily from claimants and claimant lawyers to defendants. For many of the cases in scope, the defendant is a public body, funded by the taxpayer”.

There is the critical difference. In the type of cases that I am referring to, the defendant is not a public body. It is not the NHS, for example. The defendants here are multinational companies, often with huge resources and large teams of their own very expensive lawyers. The claimants, by contrast, in past cases have included rural farmers from remote areas of Peru or Colombia, South African asbestos miners, or citizens of the Côte d’Ivoire, one of the poorest countries in the world. So my amendments are about an exceptionally different type of claimant from those this Bill is really about, and I think that that must be acknowledged.

Secondly, the Minister has said that damages-based agreements, or DBAs, are the answer, but in my view he has not backed this up with evidence as to how DBAs would work specifically for these types of cases. Without my amendments, lawyers’ success fees would not come from the losing company; they would be taken out of the victim’s damages. Shifting the burden of payment for fees and insurance costs from the defendant to the victim risks substantially reducing or even wiping out the damages that victims receive. In such situations it is hard to imagine it being financially viable to bring the case in the first place.

Thirdly, the Government acknowledge that a potential impact of the Bill’s proposals is that fewer cases may be brought, especially where there is a lower probability of success or where cases involve highly disproportionate costs compared to the amount being disputed. That is exactly the case with these international corporate human rights abuse cases. This does not mean that such cases are not worth pursuing. It is still vital that vulnerable victims should get justice and at least some compensation. Companies need to know that they can be brought to account if they act irresponsibly. The proposed amendments to Clauses 43 and 45 would retain the current funding system for international human rights cases. I want to make it clear that creating this exception would not gut the overall aim of the Bill. It would not fundamentally undermine the Bill’s purpose at all. The offending company would have to pay out only if the case met all the existing prescribed criteria to do with public interest.

Finally, other countries will be looking to the UK to follow our lead in working out how to implement the United Nations’ guiding principles on business and human rights. What kind of example are we setting to other countries if we change our laws now to make it even harder for poor victims of corporate abuses to seek redress? I urge the Government to agree to carve out an exception for these rare cases, which the Bill was surely not intended to be about in the first place. I beg to move.

[Lord Judd]

My Lords, I strongly support and endorse this amendment. We have been reminded that a number of very significant organisations in this country which are working in the front line in the countries concerned feel passionately that this amendment is necessary. I declare an interest as a former director of Oxfam. All my experience during those years at Oxfam and since in my work with similar organisations has underlined the importance of this amendment. Not infrequently I found myself in a situation in which we were being asked to respond to need. In effect, by responding to need we were masking injustice because we were dealing with the consequences of what had happened instead of getting to the roots of what had happened. This seemed in a sense dishonest in that if we were serious about the issues that confronted us, we had to get to the underlying cause that had brought about the lamentable situation.

From that standpoint I reached a very firm conviction during my time at Oxfam and since that very frequently people in the Third World are not primarily asking for handouts or support, they are asking for justice. If they have not got justice, how on earth can they get themselves together to start self-generating progress and the rest because they are burdened by the consequences of what has happened to them as a result of abuse of one kind or another? That is fundamentally wrong. Of course, if people are desperate to start taking their situation forward themselves, we should ensure that that is possible and that they are not artificially and unnecessarily hindered.

I really do not know how a Government who set so much store by their commitment to the overseas aid programme—which is a great credit to them—in saying that it must be ring-fenced in the current economic situation do not see that the logic of that position demands that an amendment of this kind should be accepted. Failing to accept this amendment would be working against the very commitment of the Government. From that standpoint, I applaud the amendment and hope that the Government will feel able to take it seriously, even at this late stage.

[Baroness Miller of Chilthorne Domer]

My Lords, I have put my name to Amendment 134 in the belief that the Government are quite right, in general, on the principles in this part of the Bill but they are wrong not to have made an exception in this case. These are very modest amendments to allow exceptions to be made.

The noble Lord, Lord Judd, mentioned one reason why exceptions need to be made: DfID. This Government are working hard to follow the amount of aid that this country has committed—and I pay tribute to the Opposition. But it is not only DfID. The FCO realises that soft power is very important, and the Department for Business also realises that companies need to be socially responsible. Corporate responsibility has become a very important standard for this country.

This is recognised across almost all of government, and I urge my noble friend and the Ministry of Justice to join the other departments in making sure that companies listed here that have the potential to cause enormous damage—the extractive industries, in particular, whose work is accelerating at an enormous rate, and also agribusiness as commodity prices go up; there are a number of businesses whose turnover and impact in the world is growing day by day at a rate that was quite unimaginable even a decade ago—that needs to be balanced by better access to justice, not worse. It is for that reason that I support these amendments.

--- Later in debate ---

[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—

[Lord Judd]

My Lords—

[Lord Martin of Springburn]

My Lords—

--- Later in debate ---

[Lord McNally]

I am sorry, the noble Baroness, Lady Coussins. I am happy to re-engage between now and Third Reading, but at this point we are not convinced.

[Lord Judd]

So the earth is flat.

[Lord McNally]

No.