Belhaj and Boudchar: Litigation Update

Baroness Chakrabarti Excerpts

Thursday 10th May 2018 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to the Minister for repeating the Statement and am especially grateful to Jeremy Wright, the Attorney-General, for advance sight of it yesterday and, in particular, for his humane handling of this matter.

Mrs Boudchar has been in the Public Gallery of the other place today, and I am sure that the whole of both Houses of Parliament will sympathise with her and Mr Belhaj for having suffered such appalling treatment at the hands of others. What happened to them both is deeply disturbing, not least as Mrs Boudchar was pregnant at the time. I only hope that the settlement of the legal case allows some closure to a terrible set of events in their lives.

The Prime Minister has written to Mr Belhaj and Mrs Boudchar, who is in the Palace today, to apologise for this terrible treatment. She is entirely right to have done so, and to accept—unequivocally and unreservedly—the failings on the part of the UK Government at that time.

I of course agree with the Minister and with the Attorney-General that our security and intelligence services carry out vital work in helping to keep us all safe. But the rule of law must always be respected and must always be the guide of the actions of government. Our security and intelligence services must be properly overseen. When things do go wrong, it is right to acknowledge that in very clear terms, to do what can be done to make recompense, and to learn lessons for the future.

The Attorney-General rightly raised in his Statement problems regarding information sharing, more actions being required to reduce the risk of mistreatment and missed opportunities to alleviate human suffering. We must do all we can to stop this ever happening again.

The relationship between our intelligence and security services and government is now subject to a different framework. That is a welcome step in the right direction. The statutory right of the Intelligence and Security Committee, independent of government, to review past intelligence operations and its direct access to agency papers are important. That Ministers must be consulted whenever UK personnel are involved in a planned operation in which they believe a detainee is at serious risk of mistreatment by another state is absolutely crucial. I appreciate that the Minister is, understandably, limited in what he can say openly today, but I would ask for an assurance that such ministerial consultation will be detailed, considered and informed by as much information as can reasonably be made available to Ministers at the time.

In addition, might the Minister assure your Lordships’ House that we will always be vigilant in ensuring that the framework within which our intelligence and security services operate is robust and is always shaped by our core values: the rule of law, liberty and human rights? After all, it is only behaving to those standards ourselves that allows us to stand up for those values around the world.

[Lord Thomas of Gresford (LD)]

My Lords, I too am grateful to the Minister for repeating the Attorney-General’s Statement.

On 21 February 2008, this House was concerned with the use of UK facilities and UK airspace by the United States for the purposes of extraordinary rendition. In answer to a Written Question from my right honourable friend Menzies Campbell, now my noble friend Lord Campbell of Pittenweem, assurances had been given by Mr Jack Straw in 2005, and later assurances were given by Mr Blair, the Prime Minister, in 2007, that these events had never occurred—that there had been no extraordinary rendition. A Statement in February 2008 was made by the noble Lord, Lord Malloch-Brown, in this House to the effect that this was incorrect and that extraordinary rendition had taken place through the British territory of Diego Garcia. Perhaps I may crave the House’s indulgence for quoting myself. I said on that occasion:

“We look for a public inquiry, as we have called for several times, which will investigate what extraordinary renditions have taken place not just to European countries but to places where we know that torture takes place—places such as Syria, Egypt, Morocco and Jordan, where it is thought that there are secret holes where United States detainees are held. We cannot be satisfied by assurances given by the Government today on this matter”.—[Official Report, 21/02/08; col. 351.]


Nothing was said in 2008 about the events of 2004—the abduction, detention and rendition to Libya of Mr Belhaj and Mrs Boudchar, who were opponents of the Gaddafi regime and could expect torture and imprisonment.

Today, the Prime Minister’s apology, as we have heard, contains the following:

“The UK Government’s actions contributed to your detention, rendition and suffering”.


We are entitled to know in what specific way. Mr Belhaj’s claim was that MI6 provided information to the CIA which led to his capture in Kuala Lumpur in 2004 and rendition via Bangkok to a Libyan jail. He further claimed that he was interrogated by British intelligence officers during his six years’ imprisonment and during the period of torture that he endured. All this was denied at the time. The Prime Minister says in her letter:

“The UK Government believes your accounts”.


Therefore, I take it that what Mr Belhaj said in his statement of claim is admitted, despite the fact that liability in the case is not admitted.

Another phrase used by the Prime Minister was that she was,

“profoundly sorry for the ordeal”,

of Mr Belhaj and Mrs Boudchar. If that is so, why did this Government try to quash these proceedings and argue a defence of state immunity and “foreign act of state” immunity all the way up to the Supreme Court as recently as January of last year? Do the Government now recognise that these defences must be subject to exceptions where there are violations of fundamental norms of international law and basic human rights, such as the prohibition of torture, which has been recognised in this country since Felton’s case in 1628?

A further point is that the costs of such a series of applications and appeals, which were unsuccessful, have no doubt fallen upon the public purse. What were those costs?

Non-Disclosure Agreements

Baroness Chakrabarti Excerpts

Tuesday 1st May 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, in circumstances where a person accepts a sum of money which is beyond reasonable indemnity for any loss they have suffered on the grounds that they will not disclose wrongdoing or a criminal offence, they themselves are liable to commit a criminal offence.

[Baroness Chakrabarti (Lab)]

My Lords, the Minister will remember, I think, a very similar Question being asked on 22 January. It is now a glorious May Day. Given the complexities and competing public concerns around this issue, might the Government not consider setting out a clear timetable for clarity in policy and potential legislation in this area?

[Lord Keen of Elie]

My Lords, the House of Commons Women and Equalities Select Committee is currently conducting an inquiry into sexual harassment in the workplace and has taken evidence about the misuse of NDAs in that context. The Government want to see what the committee has to say about that before reaching their own conclusions. In other words, we will make an informed decision on the matter.

Civil Liability Bill [HL]

Baroness Chakrabarti Excerpts

2nd reading (Hansard): House of Lords
Tuesday 24th April 2018 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, one noble Lord’s declared interest is perhaps another’s experience and expertise, or perhaps even better put, interests and experience can sit simultaneously with a noble Lord. Perhaps uniquely, in what has been an incredibly thought-provoking debate, I seem to be without interest or expertise. However, I have listened with enormous care to the wonderful tutorial that noble Lords have given me. I have read, as have so many other noble Lords, many submissions to which we have had access in this House. Just as I respect the interests and experience of those debating inside this Chamber, I do not think it is completely fair to suggest that everything from outside is, as one noble Lord suggested, noise.

The noble Lord, Lord Faulks, said that there are some real polycentric issues at stake and important, occasionally competing, concerns. I do not accept that all insurers are unscrupulous, nor do I accept that all claims are fraudulent or indeed, that all professional legal practitioners who are trying to do their best for their clients in this area are ambulance chasers. Further, I too have had the benefit of meeting the Minister, so nor do I believe that Her Majesty’s Government are somehow completely captured by the insurance industry in what they are trying to do in this Bill. However, to improve it requires listening to some of the concerns that have been expressed both inside and outside the Chamber.

The Bill addresses its purported targets by—how can I put it?—circuitous routes. It is concerned with, at worst, fraud and, at best, inflation of, for example, whiplash claims. I agree with, I believe, the majority of noble Lords, that compulsory medical reports before settlement must be a good idea. It would be good to see clear provision in the Bill for the cost of such reports to be met by insurers where settlements are made. That seems completely fair, and might be something we could look to. But, essentially, the Bill does not directly deal with fraud.

Another stated target is unscrupulous claims managers and McKenzie friends. Again, there is nothing in the Bill about that public policy problem and social evil. These problems have been pointed out by a number of noble Lords, including the noble Lords, Lord McNally and Lord Hodgson, the noble Earl, Lord Kinnoull, my noble friend Lord Monks and the noble Lord, Lord Faulks. We know that there is some level of problem here; I do not think anyone doubts that.

Another target is the unfairness of overly high insurance premiums. Again, the Bill does not directly regulate insurance premiums. We are told that industry leaders have made a public pledge to pass on the benefits of limiting claims to insured persons, but there is nothing in the Bill at the moment to give teeth to that promise. It would be helpful to so many people to hear from the Minister about the teeth in that promise.

Finally, a target of the Bill is said to be devastating pressures on the NHS, and perhaps on social care, too. Again, this is a very indirect approach towards the devastating pressures on the NHS and on social care in this country at this time. I echo the sentiments of my noble friend Lord Beecham—perhaps other discussions need to be had about the 1948 Act and so on—that that devastating pressure has ultimately to be met with a more honest conversation about taxation with a country that loves its NHS.

Those are the targets. But, instead of the direct approach, the Bill approaches these problems somewhat indirectly. First, in relation to whiplash injuries in Part 1, it does this by limiting damages in a particular class of claims. I have to say that, on a day when there have been very special celebrations in Parliament Square, I was a little sad to notice that I was to be just one of two noble Baronesses speaking in this Second Reading debate. But that disappointment began to fall away when I heard the extraordinary, eloquent and principled speech from the noble Baroness, Lady Berridge. She spoke of the need to hear the voice not of lawyers, insurers or any other professionals and experts but of victims. I can only tell her that we heard that channelled through her voice today, and I am sure that people outside will be very grateful for that. She pointed out with particular clarity the problem of principle in singling out one class of victims—not even a whole class of victims but a class within a class of victims—and saying that they must have their damages limited by the Bill and by regulations under it, as opposed to other victims, who may also be inflating or misstating their claims.

That is a matter of principle and will be a concern for people on the outside who are looking to understand what is behind this legislation. It is important to address that principle if we are to retain the public’s trust in the legislative process and in public policy making. I moved closer and closer to the noble Baroness’s devastating logic when she spoke about the role of the Judicial College and her concerns about why these particular damages should be set by the Lord Chancellor, not by the judges, as with all other tortious damages in our law. The Minister will, no doubt, address her concerns.

The second circuitous route, and a matter of enormous concern expressed on all sides of the House, is the incredibly broad delegation granted to the Lord Chancellor in defining whiplash and then setting the level of damages. The Delegated Powers Committee’s findings on this cannot be easily ignored. We listened to the concerns and I hope we can take them on board in amendments as the Bill progresses. The noble and learned Lords, Lord Hope and Lord Thomas, the noble Lord, Lord Sharkey, and many other noble Lords pointed out that to give the Lord Chancellor the defining power over the problem and then the further power to set the damages is a step to far. It is a precedent that we do not want to set in any Bill. It is a wider constitutional point that applies to this Bill and we do not want to be doing it in future. It is a problem in relation both to the rule of law—and clarity and certainty in law—and to parliamentary sovereignty as opposed to ministerial fiat. I hope that the Minister will take that on board and that there can be further clarity and definition on the face of the Bill.

The third concern that has been expressed is about inequality of arms and, in particular, the effect of combining measures in this Bill with the increase in the small claims jurisdiction. As the noble Baroness, Lady Berridge, pointed out, in practice even amounts of money which are small to the ears of those of us in this Chamber are incredibly important to a lot of people who will hear about, and perhaps read about, this debate. Small amounts of money can be life changing for people. To leave a greater number of people who have been the victims of even relatively minor injuries unrepresented, with no means of recovering costs and, therefore, no means of getting proper representation, is an affront to access to justice. In the civil sphere in particular, that has already been diluted, if not positively undermined, in recent years.

The Bill attempts to nudge victims, even those with quite serious injuries, into becoming slightly higher-risk investors. Some on the outside have suggested that they are to become stockbrokers and have the confidence and expertise to become more adept at investing and managing single lump-sum payments. Noble Lords will have read the argument against that. Equally, the noble Lords, Lord Hodgson and Lord Faulks, and others have pointed to the inescapable logic of the preference for periodical payment orders. Yet there is nothing explicit in the Bill to incentivise those orders, as opposed to encouraging slightly higher-risk investments or discouraging playing it safe. In the case of an ordinary lay person who is not used to managing investments, particularly if they have had a serious personal injury, one can understand the instinct for playing it safe. Again, that was pointed out by several noble Lords. The point about lack of representation was mentioned particularly by my noble friend Lord Monks and the noble Lord, Lord Marks. I agreed with so much of what he said.

It is always worth listening very carefully to the noble and learned Lord, Lord Mackay of Clashfern, on matters of this kind. As I heard references to the discount, the complex nature of this decision, what is being asked of the Lord Chancellor in Part 2 and the prophet-like powers that the noble and learned Lord described, echoed by the noble Lord, Lord Marks, and others, I really thought that we might give further thought to how we could achieve greater clarity, transparency and accountability in the Bill for this incredibly complex decision over which so much might turn for victims and claimants on the one hand, but also, as the noble Lord, Lord Ribeiro, and others pointed out, for the NHS. I hope that on that matter, as well as on so many others in this Bill, there will be real room for the kind of thoughtful debate and constructive collaboration to improve what I believe to be a genuine attempt to balance a number of important societal interests.

Worboys Case and the Parole Board

Baroness Chakrabarti Excerpts

Wednesday 28th March 2018 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I am most grateful to the Minister for that Statement about today’s High Court decision. I hope that he will agree that the ruling was possible only because of the Human Rights Act and the victims’ rights contained in it. But today’s decision clearly highlights the deep flaws in the initial Parole Board decision, which caused enormous anguish for victims—those whose cases had been dealt with but also those who have not yet had justice. There is also deep concern among women and the public more widely.

Of course, the head of the Parole Board has decided to stand down—although I am sure that all noble Lords will be concerned to preserve the independence of the board going forward. So what is needed is surely a change in the way that the Parole Board and perhaps the wider justice system function. As the Minister said, the current legal restrictions on the Parole Board mean that we still do not know exactly why the initial decision was taken. That led to rumours about where Worboys would be released and even whispers that he might be released without a tag. It is not good for victims or public confidence.

It cannot be right that victims had to resort to a crowdfunded judicial review—not a legally aided one—before any whiff of the reasons for the release of John Worboys became available. Judges in the judicial review said that there was too much secrecy about Parole Board decisions under Rule 25, which presents any reasons for decisions made by the board. The case underlines, once and for all, that we need urgent measures to achieve greater transparency in Parole Board decisions. I am sure noble Lords will agree that if the public are entitled to be informed about court judgments, it makes sense that they should also be informed about at least the rationale of Parole Board decisions. This is not about undermining the board’s independence. I am sure that all Members of your Lordships’ House can unite in defence of the independence of both the board and the judiciary. It is right that action is being taken. The Government have committed to taking action to improve transparency, but it seems that we need not just transparency but a clear mechanism to allow victims to challenge decisions when they feel aggrieved. Can the Minister commit to the review he discussed being concluded by this summer? It is inevitable in government, with so many pressures, that such reviews sometimes slip. Can we have some assurance that that will not happen in this case?

A lawyer for Worboys’s victims has said that the Ministry of Justice was responsible for preparing the dossier of evidence on which the Parole Board made its decision to release. Can the Minister explain why information about the “rape kit” used by John Worboys was not included in this dossier? Can he also explain why the sentencing remarks of the judge in the Worboys criminal trial were not included in that dossier? Why did the dossier contain nothing about the new information that had come to light during the proceedings brought by victims against the Metropolitan Police? It must be possible that the failures in the Worboys case go much wider than the rules governing the Parole Board or the board’s function.

It is clear from today’s ruling that judicial review is a key tool for every citizen to be able to challenge unjust or unlawful decisions by the state or other public bodies. Deep cuts to legal aid have undermined the ability of too many people in our country to pursue judicial review. I repeat: I do not think it is right that victims should have to resort to crowdfunding to access justice. Justice cannot be dependent on the depth of your pockets. Will the Government commit to using their review of legal aid to look in particular at how we might better support the basic right to judicial review of administrative action?

It seems that there have been widespread failings in this case from the very outset. In 2009, John Worboys was convicted of 19 offences against 12 women, but the police have also linked Worboys to about 100 other cases. Many of the victims have raised concerns about the police handling of the case. Others have raised concerns about the CPS decision not to prosecute in other cases. We have discussed at length the complaints about the Parole Board, particularly its failure to properly notify victims of proceedings. It is clear that we need a thorough examination of the end-to-end handling of this case, from the first attack reported to a police officer right through to the Parole Board hearings that were under review in today’s decision. Those of us on this side of the House have asked the Government to consider such an end-to-end review before. I hope, in the light of today’s decision, that the Minister might commit at least to considering that request.

Finally, for most people most of the time the justice system is out of sight and out of mind until a case such as this comes to public view. Yet, the justice department has in recent times faced 40% cuts—the deepest of any department. Is it not time to reconsider the effect of those cuts and whether they are sustainable? If I might be so bold or cheeky, I ask the Minister to consider lobbying the Lord Chancellor to get extra investment into a justice system that is at least strained, if not quite broken.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I join the noble Baroness in welcoming the Statement from the Secretary of State and the noble and learned Lord’s repetition of it in this Chamber. The High Court’s decision is a signal victory for the victims. I join the noble and learned Lord in congratulating them on bringing this case.

The High Court’s decision and the Statement mark a real endorsement of three important principles. First, the interests of victims should be given significant weight in the Parole Board’s decision-making at every stage. Secondly, the Parole Board should operate with far greater transparency and its secrecy hitherto has acted against the interests of justice. Thirdly, a much wider range of evidence, including evidence of past offending, which was so very relevant to the Worboys case, should be fully considered by the board.

I welcome the many steps announced by the Secretary of State in the Statement. I also endorse the points made by the noble Baroness about how important judicial review is and the importance of resisting any attacks on it, direct or indirect, through its funding by Governments in future. However, I have a number of questions for the noble and learned Lord. I appreciate that the answers will necessarily to some extent be preliminary at this stage, but I make two points about that. First, the answers will be relevant to the reconsideration to be given by the Parole Board pursuant to the decision of the High Court in the Worboys case. Secondly, as the noble and learned Lord stated, this work has been going on for two and half months already.

My first question is: what thought has yet been given as to how evidence of past offending will be heard, tested and then weighed up by the Parole Board? In that context, how is it proposed that the voices of victims will be heard?

Secondly, one of the problems has been that the victims were notified of the decision after it had been taken and made public. That cannot be right. I appreciate the commitment in the Statement to giving a summary of reasons, but can we be assured that victims of past crimes by offenders who are about to be released will be notified in advance of a decision to release?

Thirdly, how is it intended that the role of the Secretary of State’s representative at Parole Board hearings, which was mentioned in the Statement, will be enhanced?

Fourthly, on training, the Statement commits to further specialist training of Parole Board members. How is it that the training of Parole Board members has been allowed in the past to be of a standard that the Government now accept was deficient?

Finally, how, in general terms as well as, as far as possible, in the particularity, is it proposed, given the abolition of Rule 25, that greater transparency for Parole Board proceedings will be implemented?

Crown Prosecution Service: Disclosure Procedures

Baroness Chakrabarti Excerpts

Monday 29th January 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, clearly the development of digital media has increased the demands made on both the police and the prosecution service in the investigation of crime. Indeed, in their most recent report, National Disclosure Improvement Plan, the National Police Chiefs’ Council, the College of Policing and the Crown Prosecution Service indicated that they will develop a joint protocol by March 2018 for the examination of digital media.

[Baroness Chakrabarti (Lab)]

My Lords, on the one hand we have urgent crisis reviews of pending prosecutions for fear of potential non-disclosure and unsafe trials and, on the other hand, we have various women’s groups telling us that the existing law designed to protect women from degrading questioning about their sexual histories is not being applied, and that causes fear as well. To add insult to injury, a notorious sex offender will be released on parole without rhyme or reason and without a voice for the victims of crime. Will the Minister please agree that it is time for the Government to give urgent attention, if not resources, to restoring faith, trust and confidence in our criminal justice system?

[Lord Keen of Elie]

My Lords, what is necessary is that a responsible Government should not arm wave but, instead, respect the rule of law.

Non-Disclosure Provisions

Baroness Chakrabarti Excerpts

Monday 22nd January 2018 Lords Chamber

[Lord Keen of Elie]

The Government are conscious of the importance of confidentiality clauses, particularly between employers and departing employees. It may, for example, be important to protect confidential information material to a business. But we are equally concerned to ensure that the limitations are legitimate and that it is not possible to exploit such clauses in order to turn them into what are sometimes termed gagging clauses.

[Baroness Chakrabarti (Lab)]

My Lords, I think all of us, including the Minister, can agree that there are certain clear examples of cases where no court or tribunal should attempt to enforce one of these clauses, because it would be contrary to public policy. For example, the victim of a sex offence should be able to go to the police without anyone enforcing a clause against her. But it gets more complex beyond that. Does the Minister agree that if there are victims who are, de facto, chilled from coming forward, the Government have a role in clarifying and possibly legislating in this area?

[Lord Keen of Elie]

My Lords, the Government have committed to consider the report of the committee that is looking into this issue, and will then determine what further steps should be taken. We would prefer to react to the outcome of that report rather than anticipating it.

Transparency of the Parole Board and Victim Support

Baroness Chakrabarti Excerpts

Tuesday 9th January 2018 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to the Minister for repeating the Statement and for giving me advance sight of it. Our criminal justice system must of course have the interests of victims of crime at its heart. It is all too clear that victims of the vile crimes committed by John Worboys feel that the process has failed them. Such failings risk undermining public trust in our wider justice system and the rule of law. Many women, both victims and others more widely, will understandably be anxious about Mr Worboys’ release. The current legal restrictions on the Parole Board mean that we do not know why and how the decision was taken. So while I thank the Minister for repeating the Statement, do we really need to debate whether there is a case for greater transparency? Surely, the Worboys case has underlined that there is, and the chair of the Parole Board has already called for it. So does the new Secretary of State for Justice intend that this review should be about how to achieve greater transparency and not whether it is needed?

The failures go much wider than the rules governing the Parole Board. In fact, the whole matter has been dogged by failures in the system from the outset. In 2009 John Worboys was convicted of 19 offences against 12 women, but it has been suggested that the police have linked Worboys to around 100 other cases. The public are asking questions about the failings in the police handling of the case; about why there were no further prosecutions; and about failures of the victim contact scheme properly to notify victims of the parole hearing. The Worboys case raises so many serious questions that anything less than an independent, end-to-end review of the handling of the case, from the first reporting of an attack to the police right through to the Parole Board hearing, would let down victims and the wider public.

The previous Secretary of State did not take up the Opposition’s request to undertake such an inquiry, but the new Secretary of State can bring a fresh perspective. He also has an opportunity to reassure the victims and wider public by going further than his predecessor and agreeing to the kind of independent, end-to-end review that I have described. That would be the right thing to do and if the new Secretary of State does so, I will be the first to congratulate him. Will the Minister agree to at least take that suggestion back today?

There is also a question about whether wider problems in the justice system—a sector that has been subject to the greatest level of cuts to any department—may have impinged on this specific case. The failure to allow women victims the opportunity to participate in the parole hearing through written and oral statements, or properly to notify them of the hearing, was a significant breach of their rights. The National Probation Service manages the victim contact scheme; your Lordships’ House is all too familiar with the deep problems caused to probation by the chaotic reforms undertaken by the Government. Does the Minister believe those changes to the probation service have left the victim contact scheme more effective or less effective? Will he spell out today what the Government are doing to ensure that this scheme is functioning as it should and that we see no repeat of the failings witnessed last week? At the very least, will he consider amending the scheme so that victims opt out rather than opt in to the contact system?

Likewise, what is the Government’s assessment of the effectiveness of the current sex offender treatment programmes in prison? Last year, the ministry found that its core programme actually increased reoffending among sex offenders. Does the Minister know whether Worboys was on one of those core programmes that was subsequently withdrawn? Will the Minister take the opportunity to clarify the current procedure for prioritising which IPP cases are dealt with most pressingly? Are those on the shortest tariffs dealt with first?

Finally, I am glad that the Government are now focusing on victims’ rights but in 2014, the High Court found that the Metropolitan Police had breached the rights of the victims of Worboys under the Human Rights Act by failing properly to investigate many of the crimes he was linked to. This decision was later upheld by the Court of Appeal. So I think many of your Lordships will be surprised and disappointed that the Government, through the current Home Secretary and her predecessor, then backed taking Worboys’ victims to the Supreme Court last year. Will the Minister take this opportunity to express regret for treating those victims in this way?

CPS: Disclosure of Evidence

Baroness Chakrabarti Excerpts

Monday 18th December 2017 Lords Chamber

[Lord Keen of Elie]

My Lords, disclosure in the context of criminal cases has not gone backwards since 1998. There is no present intention to set up an inquiry of the type referred to by the noble and learned Lord.

[Baroness Chakrabarti (Lab)]

My Lords, I think we can all agree that early and adequate disclosure is at the heart of a fair criminal justice system. Given that the senior independent prosecutor at the Bar who averted a recent miscarriage of justice, in addition to being a senior and experienced prosecutor, is a former Conservative MP, who described a system “creaking” for lack of resources, will the Minister please consider my noble and learned friend’s request and, in any event, return to this House with a Statement after more full and adequate consideration of what happened here?

[Lord Keen of Elie]

My Lords, the matter to which the noble Baroness, Lady Chakrabarti, alludes was a recent case in which the Crown withdrew and the matter did not proceed. There is to be a joint internal review by the CPS and the police to determine what occurred in that case. With regard to the case that she alludes to, the CPS has acknowledged that its standards may have fallen below what is expected and it has apologised to all the parties involved.

Bach Commission: The Right to Justice

Baroness Chakrabarti Excerpts

Thursday 14th December 2017 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I thank your Lordships for one of the most important, thoughtful, expert, evidence-based, compassionate, passionate and yet restrained and consensual debates I have had the privilege of listening to in your Lordships’ House. It is invidious to single out contributions, because there have been so many that I learned so much from. However, I cannot do much better on the principles than by following and agreeing with the noble Lord, Lord Marks, or much better on the practical crisis we face in legal aid than the noble and learned Lord, Lord Judge.

By way of declaring my interests, I have been a lawyer all my adult life. I no longer make self-deprecating jokes about that, because politicians of both persuasions have done that to all of us for long enough. I am a member of 39 Essex Chambers and, like, I believe, the noble and learned Lord opposite, I have been a bencher of the Middle Temple since 2006. I particularly thank my noble friend Lord Bach for the work he undertook and the cross-party, non-party way in which he undertook it. Surely, the rule of law and access to justice can and must be non-negotiable. I have often thought that party politics should be about tax and spend and, to some extent, about implementing social and economic rights. However, civil and political rights ought to be agreed on by all democrats, and it is self-evident that the rule of law is essential to civilised society, let alone democracy.

The poorest and most vulnerable always suffer most from abuses of power and therefore need the law most of all to protect and empower them. In my legal career I have never been in the Rolls-Royce; I have always litigated for and against the Government and, as I say, I have always been on the bicycle, acting in the public interest for Governments of both persuasions and for those whose most important legal relationships are with local and central government.

What would it feel like to face losing your children, income, job or anything of huge importance to you without any comprehension of whether the law protects you, let alone without advice and representation to allow you to argue your case? As the noble Lord, Lord Marks, said, this is a revising Chamber where noble Lords devote hours, days and weeks of their time to getting the law just right. But that legislative scrutiny remains a dead letter in a sealed book without advice and representation for the people we come here to serve. Unfortunately, the cuts to legal aid in recent decades, and in particular the last four years, have made this lack of access to justice a reality for too many in our society.

Schools and hospitals are seen rightly as vital pillars of the welfare state, but legal advice and representation does not seem important until you are really in trouble. Like joy and grief, the law can be a great leveller, but there is no longer a level playing field in legal services. After decades of cuts, the poorest and most vulnerable are often shut out altogether from a legal system that we were once so proud of. Entitlement to legal aid is not another service; it is a fundamental human right. We on these Benches are clear that we will support and defend the principle of legal aid and reverse the alarming trend towards a fundamental denial of justice. As we have heard from so many noble Lords today, including my noble friend Lord Bach and my noble and learned friends Lord Falconer and Lord Goldsmith, in the wake of the changes wrought by LASPO, we are in a world where access to justice is a reality for too few. It is in this context that we must consider the findings of the Bach commission.

I listened carefully to the points made by the noble Lord, Lord Faulks, about the responsibility of government when it comes to funding legal aid. However, I am conscious also of the way in which legal aid can be annoying and irritating to Governments of either persuasion because, in part, legal aid is about holding Governments to account. Therefore, there may be some role for independence after the basic political decisions of funding in the round have been made.

I have various words to describe LASPO, but I will instead go back to the exquisite restraint and understatement of the noble and learned Lord, Lord Judge: LASPO was “not wise”. It has been widely criticised by expert stakeholders including the Bar Council, the Justice Committee and the Law Society. The Public Accounts Committee made it clear that in bringing in this legislation, the Ministry of Justice had not properly assessed the full impact of the reforms. That impact has proved devastating for too many.

The primary recommendation of the Bach report—a new statutory right to justice under which people have a right to reasonable legal assistance which they can afford—sends an important message. We need to fight against the erosion of rights and demonstrate commitment to the importance of legal representation.

It is important to understand the context of that recommendation. As we have heard, the number of civil legal aid matters initiated has fallen by 84% between 2009-10 and 2016-17. The number of legal aid certificates granted for civil representation is down by 36%. In November 2017, the Government stated in response to a Written Parliamentary Question that the MoJ projected departmental spending limit would be £5.6 billion in 2019-20, a cumulative real-terms reduction of 40% on the £9.3 billion limit in 2010-11. To repeat, that is a 40% cut in the space of nine years; hence the crisis in our prisons, the crumbling of our courts and the hollowing-out of legal aid. According to Amnesty, the year after LASPO came into force, assistance was given in under 500,000 cases, which was a drop of 46%.

One example of the problem is in the First-tier Tribunal asylum appeals system. Data obtained by a freedom of information request by the BBC has revealed that asylum seekers—some of the most vulnerable people in our society—are facing a lottery, depending on where their appeal is heard.

The problems caused by the new system are many and varied, and we have been given a flavour of some of the terrible problems today. I cannot address them all—and I do not intend to repeat them all—but the noble Lord, Lord Faulks, was right to single out that the exceptional case funding plainly is not working. The Government originally suggested that around 847 children and 4,888 young adults would be granted that kind of funding each year, and yet up to June 2015 only eight children and 28 young adults were granted legal aid under the scheme. The cuts, therefore, have been much deeper than anticipated by the coalition Government. It is a reason for all sides of your Lordships’ House to think again.

The pressing issue, which has been mentioned by many noble Lords today, is the abandonment of funding for most forms of early legal advice. In whatever detailed system we imagine and create in the future, we surely need to front-end the advice. We need early intervention and advice to mitigate pain, anguish, costs, court costs, litigation in person and so on. I do not need to repeat the problems that we have without early legal advice. Mediation is a great idea in principle but not if you do not have the advice to help you take forward sensible mediation. If you do, there is no inequality of arms.

The mass closure of legal aid firms is also a problem. That may not be the most popular position to take in Britain in 2017 but legal aid lawyers have been denigrated. Most are loyal public servants who could have chosen the Rolls-Royce and more lucrative careers elsewhere.

In setting out these challenges, noble Lords and the Government have an opportunity to reflect on the problems we face. However, there are also opportunities for cross-party reflection and co-operation on such a vital issue into the future. I am grateful that the Government have finally announced a review of Part 1 of LASPO. We have been promised that this will be concluded before the start of the Summer Recess. LASPO has been in place since 2012 and, to repeat the noble and learned Lord, Lord Judge, it has not proved wise. Let us all co-operate with the Government, look to reviewing it quickly and doing better for everyone in our country and for the rule of law in the future.

Brexit: Human Rights

Baroness Chakrabarti Excerpts

Tuesday 12th December 2017 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, it has been an absolute privilege to listen to this important debate instigated by my noble friend Lord Cashman and to listen to so many eminent speakers from all sides of this House. It is wonderful that we have marked Human Rights Day in this way, and I agree that we should do so every year as one small contribution to our commitment to human rights in this House. I am also delighted that more than half the speakers in this all too short debate have been women. Women’s rights are human rights, as I am sure we will discuss much more next year as we mark 100 years of the Representation of the People Act. That was achieved through struggle, including very serious struggle and trips to prison, force feeding, torture and so on—not just gradualism but very hard won rights indeed.

Last week, I had the pleasure of accompanying the Leader of the Opposition, Jeremy Corbyn, to Geneva, to hear him address the UN there. In that address, he outlined his plans for a new approach to foreign policy based on solidarity, international co-operation and human rights. He said clearly:

“The survival of our common humanity requires nothing less”.


This approach will place human rights at the centre of Labour policy, at home as well as globally, and it also categorises our Brexit position. Labour has been consistent in calling for retaining workers’ rights protections, environmental and animal welfare standards, and on the incorporation of the European Charter of Fundamental Rights into British law. Under a Labour Government, that is the vision for a post-Brexit Britain, based on our values of co-operation and internationalism.

In stark contrast we heard the Prime Minister’s conference speech in September, in which she laid out her party’s philosophy and vision for a post-Brexit Britain, beginning with the now infamous quote, “If you believe you’re a citizen of the world, you’re a citizen of nowhere. You don’t understand what the very word ‘citizenship’ means”. That negative view of internationalism speaks to a creeping xenophobia that was not sated by the EU referendum result and continues, I am afraid, to colour too much thinking from the party opposite on Brexit negotiations. I therefore ask noble Lords on all sides of this House to look at the use by the Government of the rights of EU nationals resident here as a bargaining chip in the talks, leaving them in limbo for the last 18 months. I agree with my noble friend Lady Whitaker that the Roma people are perhaps one of the most demonised minorities in Europe, and we should give particular care to their treatment in the months and years ahead.

I am afraid that Mrs May and her Government have consistently demonstrated a lack of support for European human rights law—the same laws, as my noble friend Lady Kennedy said, that we Britons were so instrumental in creating and which set the historic status of the UK as a global leader on equality and human rights on the world stage. That status is now in grave peril.

More worrying still is the lack of will and a culture of disregard for the importance of human rights and sometimes even for the rule of law. I talk in particular about the recent statement made by the Defence Secretary that terrorists should be “eliminated”, with no reference to due process, and of course refer also to other Ministers’ intention, repeated over many years, to scrap the Human Rights Act in favour—no question—of a lesser instrument that would protect people differentially, not least on grounds of nationality or other badges of worthiness.

More worrying still, the Government are now tasked with the complex negotiations for the UK’s exit from the European Union, and have given us no reason to believe that they have a true commitment to human rights. In spite of repeated assurances that the withdrawal Bill will maintain the status quo, various rights and protections have been explicitly excluded, in particular the European Charter of Fundamental Rights, which the Government maintain creates no new rights. That is simply not the case; if it were, the Brexit Secretary, Mr Davis, would not have needed to rely on it in his own ultimately successful challenge to the Data Retention and Investigatory Powers Act.

It is simple: losing the charter means losing rights. I agree with others who said that, in particular the noble Baroness, Lady Meacher. The charter created new rights; for example, Article 8 on data protection, Article 13 on academic freedom, Article 24 on the rights of the child, Article 26 on disabled people’s rights, Article 21 on sex discrimination, and so on. The Equality and Human Rights Commission, the British Institute of Human Rights and the Law Society and so many other vital civil society stakeholders have expressed concerns about the loss of the charter. Moreover, the Human Rights Act is still in jeopardy, as is, potentially, our continued support and signatory status to the European Convention on Human Rights itself. We heard from my noble friend Lord Cashman and the noble Baroness, Lady Warsi, about our poor response to the UN Human Rights Council’s periodic review of human rights compliance in this country.

Fundamentally, it is a question of what kind of Britain we want to build post Brexit. Some want a race to the bottom and we want a race to the top. We want to champion the rule of law and progressive values and not allow a bargain-basement Britain, where you pay no tax and low wages and have no standards for employment protection, human rights, workers’ and disabled people’s rights, environmental rights, equalities and ethical business. We want to match European and international standards. No, we do not want to match them—that is not enough. We want to raise them.