Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Coussins Excerpts

Monday 30th January 2012 Lords Chamber

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[Baroness Coussins]

136: Clause 43, page 30, line 18, at end insert—
“( ) After subsection (7) insert—
“(8) The Lord Chancellor may by order prescribe that sections 58(4A) and (4B) and subsection (6) shall not apply to any conditional fee agreement where all of the following conditions are met—
(a) the proceedings include a claim by an individual or group of individuals for damages, (b) the loss or injury allegedly caused has occurred in a developing country,(c) a judge of the High Court has certified, whether before or after the commencement of court proceedings, that—(i) the proposed litigation raises issues which ought, in the interests of justice, to be considered by a court in England and Wales;(ii) the resources of the proposed claimant or claimants are significantly less than those of the proposed defendant or defendants; and(iii) in the absence of the provisions of this subsection there would be a significant risk that the proposed claimant or claimants would be unable to secure effective legal representation in England or Wales.(9) In subsection (8) “developing country” means a country, not being a member state of the European Union, whose per capita gross national income was less than 50 per cent of the per capita gross national income of the United Kingdom in any of the three years prior to the year (or if more than one year, the first year) in which the injury or loss is alleged to have occurred.”.”

[Baroness Coussins]

My Lords, Amendments 136, 137 and 140, which are in my name and supported by others, are designed to protect access to justice for vulnerable victims of human rights abuses committed in developing countries by UK multinational companies. I thank the Minister for meeting me to discuss these amendments, and I know that he shares my commitment to ensuring that this Bill will do nothing to undermine or impede access to justice for some of the world's poorest and most vulnerable people. Unfortunately, without these amendments—or amendments along these lines—there will be a serious risk of doing exactly that. I am grateful also to CORE, the corporate responsibility coalition which includes CAFOD, Amnesty, Oxfam and other leading international NGOs, for their support for these amendments. I should also declare an interest as an independent consultant on corporate responsibility.

The sort of cases I am referring to are few and far between. There have been only nine or 10 in the past 15 years, which reflects the high cost and high risk of bringing such cases in the first place, so we are not looking at a situation where any floodgates are likely to be opened by retaining the current system. We are talking about cases such as the one against Trafigura in 2006 on behalf of 30,000 residents of Côte d'Ivoire who were affected by the dumping of toxic waste, or the one against Monterrico Metals in Peru, where 28 people who objected to the mining company's development plans were detained and tortured. That case was finally settled in 2011, five years after the incidents.

I will not recite details of all the other cases but I assure your Lordships that whether we are talking about asbestos miners in South Africa, campesinos in Colombia or Peru, or communities living in Abidjan, these are people who face indescribably difficult hurdles in seeking justice against the multinational companies which have harmed them. In a context where there is a clear imbalance in influence, economic clout and access to legal expertise, the odds are stacked against them already and it is vital that we do not close off the route to justice in the UK courts that occasionally can be pursued.

--- Later in debate ---

[Lord McNally]

Part of the problem of answering a debate such as this is the horror stories, abuses and problems raised about the capability of multinational companies to misbehave. No one denies that. I have spent most of my life in politics being greatly suspicious of many such operations. We cannot funnel that down to a change in an area that, it has been admitted, has covered 10 cases in the past decade. I understand noble Lords’ commitment to take on those abuses, but to suggest that the English legal system is in any way able to meet the point is to put too much of a burden on it.

As I told the noble Baroness, Lady Coussins, I do not believe that such cases will not be brought because often the motive is not profit; it is many of the motives that have been explained tonight. What is at stake for the companies concerned is often not money but reputation. I do not believe that we are creating an insurmountable barrier to take cases where English or Welsh companies are at fault, but I will draw the debate to the attention of my right honourable and learned friend the Lord Chancellor, because the speakers list should be respected. My right honourable and learned friend and I believe that the fear of the effect of what we are doing is exaggerated. The opportunity that the Bill offers for other forms of financing of litigation is underestimated, but I will ask him to read the debate, look at the arguments deployed and consider the amendments. For the moment, I ask the noble Baroness to withdraw her amendment.

[Baroness Coussins]

My Lords, I thank all noble Lords who have contributed to the debate and the Minister for his reply. I remain convinced that it would be much better to avoid an undesirable, unintended consequence than to worry about adding something to the Bill that might not be 100 per cent technically, strictly necessary. If the lawyers behind CAFOD, Oxfam and Amnesty are convinced that the amendment is necessary, the Government should take them seriously. I look forward to the Minister's response after he has spoken to his colleagues. This issue will not go away, but, for now, I am happy to withdraw the amendment.

Amendment 136 withdrawn.