Rule of Law

Lord Sikka Excerpts

Tuesday 26th November 2024 Lords Chamber

[Lord Sikka (Lab)]

My Lords, I congratulate the noble and learned Baroness, Lady Smith of Cluny, and the noble Baroness, Lady Laing of Elderslie, on their excellent speeches. I welcome them to the House and look forward to working with them.

The rule of law is the foundation stone of democratic, open and peaceful societies. It provides stability, accountability and the protection of rights. When applied correctly, it can limit the arbitrary powers of the state and wealthy elites. But all is not well: the rule of law is weakened when people cannot afford access to the courts and are forced to suffer in silence. With the erosion of legal aid, access to the law is now denied to millions of people. The backlog of some 60,000 Crown Court cases means that legal processes are not delivered on a timely basis and justice is denied.

There can be no equality before the law unless there is equality of access to the law. Even if people get access to the courts, at best they will get only an interpretation of law, not justice. The rule of law and justice are not synonymous. Justice is a higher-order concept and is concerned with fairness, equity, respect for others, freedom, equality, human rights and much more. Such concerns are increasingly downgraded in the creation of new laws.

There is also concern that some are not subject to the laws applied to the masses. For example, the Duchy of Cornwall enjoys tax exemptions not available to other businesses that compete with it. Its exemptions, in my view, are not consistent with the rule of law. To the best of my knowledge, no one has ever organised petitions or marches demanding social harms, but that is what is inflicted on the people by Governments and Parliament as they enact a large number of laws.

Some 6.34 million people in England are waiting for 7.57 million hospital appointments; 2.8 million people are chronically ill and 300,000 people a year die while awaiting hospital appointments; but Governments prioritise arbitrary fiscal rules over human welfare. For the last 14 years and more, Governments and Parliament have passed numerous laws to impose austerity, cuts in real wages—especially in the public sector—and cuts in benefits and public services. Major parties now compete to see who can cut the most, but they never talk about justice and human cost and what the consequences of these new laws are in human terms.

Earlier this year, a report published by the Institute of Health Equity at University College London reported that more than 1 million people in England died prematurely in the decade following 2011 due to poverty, austerity, and the impact of Covid, all of which could have been controlled by the Government. This month, Marie Curie reported that last year 111,000 people died in poverty; 16 million people, including 5.2 million children, live in poverty. Many go hungry, but Governments continue to enact laws which perpetuate hunger, injustice and poverty on people.

Governments remain obsessed with austerity. Laws are passed to impose a two-child benefit cap and winter fuel payment cuts on pensioners living below the poverty line. Hungry children, shivering pensioners and premature deaths of millions are the product of the contemporary rule of law, which is increasingly held in contempt by many people for the hardship that it inflicts on them; yet at the same time they want laws changed so that they can be protected. The Criminal Justice Act 2003 introduced indeterminate prison sentences for minor offences, and has blighted lives. Such laws are the outcome of political populism, which has little regard for the human consequences, and a political system where legislators are pressurised to follow the diktats of the party machine. Justice simply takes a back seat. It is good to know that the Legal Aid, Sentencing and Punishment of Offenders Act 2012 abolished IPP sentences, but the abolition did not apply retrospectively to people who had already received such a sentence. Injustice continues.

Parliament plays a dual role. It excludes people and inflicts injustices, yet at the same time it is the only body that can address them. Women had to resort to violence to get the right to vote. People have long highlighted the evils of gender and racial discrimination through petitions, marches and social disruption before Parliament could be persuaded to move. Why does the rule of law seek to exclude people and make them second-class citizens? Why is Parliament not proactive in dealing with injustices? Why do these injustices have to linger on for decades and decades?

Such is the rule of law in this country that the state actually protects organisations with criminal records. Water companies are permitted by law to dump sewage in rivers, seas and lakes because it is profitable. They have 1,109 criminal convictions, yet this House has just passed a law saying that these organisations can remain in control of the supply of a vital resource.

Any discussion of the rule of law ought to ask these fundamental questions: whose rule, whose law, and for whose benefit? We live in a society differentiated by class, income, wealth, age, gender and many other factors. There are no universal laws that benefit everyone, but that is what we should be aiming at. Regulators often act as judges, juries and quasi-courts. They very rarely act with any impartiality. Just today, a report by the Investment Fraud and Fairer Financial Services APPG said that the Financial Conduct Authority failed to investigate frauds.

Frauds at HBOS go back to 2002 but are yet to be investigated. No Minister is pushing the FCA to investigate. In 2012, HSBC pleaded guilty to “criminal conduct” in the US and was fined $1.9 billion but the then Chancellor, George Osborne, and the regulators secretly urged the US authorities to go easy on HSBC. To this day, there has been no UK investigation, and no Statement has been made to Parliament to explain the Government’s position. People expect the rule of law to be impartial and fair, but that is not the case.

Parliament makes laws which privilege the rich and powerful. A carer earning £1 over the income threshold faces the possibility of being prosecuted and forced to pay back large sums of money. That does not apply to people dodging taxes by using offshore vehicles. No questions are asked about their conduct. HMRC has absolutely no estimate of the taxes lost due to profit shifting. The Criminal Finances Act 2017 was introduced to curb corporate tax abuses, but to this day there has been no prosecution at all under it.

Under the insolvency laws, secured creditors, which are usually banks, private equity or hedge funds, have the first bite of the assets available when the borrower goes bankrupt. Small people—SMEs or individual traders—get nothing. There is no equity in insolvency law; there is no equality; there is no fairness. We really need to ask questions about whose rule it is, whose law it is and who actually benefits from it.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Sikka Excerpts

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Thursday 10th December 2020 Lords Chamber

[Lord Sikka (Lab) [V]]

My Lords, it is my great honour and pleasure to join the debate. I wish to speak to Amendment 70, which seeks to constrain ministerial discretion to amend the list of relevant authorities.

We all know that, as time goes by, Ministers and Governments are tempted to expand the list of regulators. In this case, they would be tempted to expand the list of relevant authorities contained in the Bill. How would they do that? They could bring about primary legislation and allow Parliament sufficient time to scrutinise it, or they could have a rushed amendment through a statutory instrument. I do not favour the second choice.

I am a relative newcomer to the House, but a little amount of research has shown me that, in the last few years, the Government have made considerable use of statutory instruments to rush through legislation, often with little time or detailed parliamentary scrutiny. Statutory instruments can vary in length and breadth. As my noble friend Lord Cunningham of Felling noted on 10 January 2019 in the official record, one statutory instrument was 636 pages long and weighed 2.54 kilos.

The increased length of secondary legislation has not been accompanied by commensurate increase in the time and resources available to Parliament. The House of Lords Secondary Legislation Scrutiny Committee, in its report published on 20 February 2019, expressed considerable concern about the extensive use of secondary legislation and argued that it prevents Parliament effectively fulfilling its scrutiny function. The participants in such debates often receive little briefing to help them prepare for the debate beyond the standard explanatory memorandum provided with the draft secondary legislation. This is often at very short notice. The impact assessments which have accompanied some of these statutory instruments have been deficient.

On 22 May 2019, in the other place, the Shadow Chancellor pointed out, at Hansard col. 6, that statutory instruments often contain “deficiencies, ambiguities and errors” which cannot be properly scrutinised by a rushed passage through Parliament. The deficient parliamentary process in turn leads to more statutory instruments to correct previous errors, and thus an overload is created.

The use of statutory instruments diminishes parliamentary powers to scrutinise the Government and their legislation. During the debate on the present CHIS Bill, many noble Lords have indicated their unease at the daunting list of relevant authorities contained in the Bill and their possible scrutiny and public accountability. There have been concerns about the use of children and vulnerable people who may be used and then discarded, left alone with their families to face private nightmares, flashbacks and mental health problems. Noble Lords have raised concerns about the rule of law, the rights of negatively affected individuals, human rights, and much more. Any future amendment to the list of relevant authorities will raise the same issues again. Such matters cannot be dealt with through statutory instruments and minimal parliamentary debates. They require public consultation, primary legislation, full debate and scrutiny by Parliament, which forces Ministers to justify their policies and practices. For these reasons, I urge the House to support my amendment.

[Baroness Chakrabarti (Lab) [V]]

My Lords, it is a pleasure to follow all those who have spoken in this group. The size of the group and the number of speakers are indicative of the seriousness with which the length of the list of agencies is viewed by Members of the House. I thank the Minister for her fortitude and patience on this fourth day in Committee on this important Bill, and for her letter earlier today inviting Members of the House to further briefings.

I repeat that she has made the case for the value of putting this kind of policy on a statutory footing, and I do not think anyone is really disagreeing with that in principle. The problem is that the detail of the Bill, by accident or design, creates a real constitutional over- reach with a grave risk of what the noble Baroness, Lady McIntosh of Pickering, called unintentional consequences. That is not to impute the Government with bad motives in this respect but it is to be really concerned about the unintended consequences of the overreach contained in various components of the Bill, in part because it grafts a criminal conduct regime on to what was previously just a surveillance regime, with no extra safeguards to speak of in terms of authorisation; in part because it creates no statutory limits on the types of offences that might be authorised; and of course in part because of this very long list of agencies that do very different work.

Ultimately, I say that the real overreach which makes that combination of challenges particularly problematic is that what is at stake is that the status quo, whereby an authorisation leads to a public interest defence—in practice, almost a presumption that the person authorised would not be prosecuted—will be replaced with total landmark immunity, lawful for all purposes, civil and criminal. That is what makes the list of agencies and the ability to amend it by Henry VIII powers so very grave and ripe for abuse well into the future by a Government of any stripe, whether, as I say, by accident or design.

I ask the Minister to reflect on whether Amendment 63, which is my favourite in this group, can be considered for adoption by the Government. I ask the Government to reflect and adopt some constitutional humility rather than overreach, and to accept that we are genuinely trying to help to improve this legislation so that it can do what it needs to, which is to put criminal conduct on an open, accessible, primary legislative footing, but not create the graver dangers of abuse well into the future.