Parliament: Freedom of Speech and the Rule of Law

Baroness Whitaker Excerpts

Thursday 23rd May 2019 Lords Chamber

[Baroness Whitaker (Lab)]

My Lords, it is with great trepidation that I venture, as a non-lawyer, into this debate with so many distinguished experts, but I congratulate the noble and learned Lord, Lord Brown of Eaton-under-Heywood, on calling it as it concerns a fundamental aspect of our democracy. I have three short points for consideration.

I may be convicted of simplism, but my starting point is that law is not only for lawyers, and perhaps it is not even primarily for lawyers, any more than water is for water engineers. It is one of the essential protections of the citizen. It is for the people. Of course that does not mean that citizens are necessarily able to interpret or advise on the import of the law, but it is for them.

Secondly, the law as it stands is never quite coterminous with justice. It is our best shot at justice at one time and in one context. I think this must be so or the law would not be amended and reinterpreted as culture and values change. Non-disclosure agreements may be a case in point. What I look for in the law as a citizen, before redress, is first the correct attribution of responsibility for harmful acts. Among other things, that seems to me to be about establishing accountability.

My third point concerns the role of the rule of law—which of course I wholly support, on the basis above—in its crucial underpinning of democracy. My understanding is that it protects the citizen against exploitation or oppression by more powerful agents. It protects minorities against majoritarian bias, for instance. Thus it upholds the dignity of our fellow human beings, in particular through human rights law.

Looking at the conflict between a legal injunction and the conduct that is our subject, I am driven to think that the vulnerable citizen is not Sir Philip Green. Allegations of acts for which, I think, we would all agree that responsibility should be attributed were prevented from being disclosed. Accountability was not possible. The wrong conduct was protected.

We think, of course rightly, of the rule of law as essential to democracy. In so doing, we have put democracy as the primary objective. We do not say that democracy is essential to the rule of law. I am not sure that it is, unfortunately. So when a legal decision does not serve democracy, it is in a different place from those laws and judicial procedures that preserve rights.

I would not presume to question a court order, but there is a balance to be struck between juridical decisions and constitutional freedom to expose injustice. I submit that that balance lies in the exercise of parliamentary privilege, including in this case, and that it should not be undermined.

European Union (Withdrawal) Bill

Baroness Whitaker Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 26th February 2018 Lords Chamber

[Baroness Ludford]

There are several more speakers, I am afraid, including me.

[Baroness Whitaker (Lab)]

My Lords, in briefly supporting those amendments that seek to retain the charter, I owe your Lordships an apology. I ought to have declared that I am a member of the advisory board of the British Institute of Human Rights at Second Reading, but I forgot.

I am not a lawyer, but I respectfully submit that law is not primarily for lawyers, any more than water is for water engineers—it is for people to implement the central values of our democracy on their behalf, and the deprivation of rights and access to justice causes harm, unfair poverty, unfair unhappiness and, in some cases, unjustly shorter lives. That is the sort of thing we should be thinking of when we look at these amendments.

I shall just give three quick examples, much humbler than those of Mr David Davis. The general principles and the charter ensured that Mr John Walker could challenge and end pension inequality for same-sex couples. The charter and the general principles supported the recent case in the Supreme Court, which found employment tribunal fees implemented by the Government were unlawful. And the charter enabled the recognition of the importance of health as a fundamental right—not in our law—when tobacco companies challenged regulations to introduce plain packaging of cigarettes.

It seems extremely clear that dropping the charter will do away with protective rights and drop safeguards that have ensured justice in individual cases of injustice. It is individuals who we ought to be thinking about, and rights that would not otherwise exist that we ought to safeguard in the charter.

[Baroness Ludford]

My Lords, the Benches opposite have been well filled to harry the noble and learned Lord, Lord Goldsmith, about fundamental rights. Sadly, they were not here for the previous debate to speak up for achieving a fundamental right to safety and security.

I fear that parts of this debate have displayed a fundamental misunderstanding about the EU Charter of Fundamental Rights. There has been evidence of some quite muddled thinking. The charter is not a tool that extends the remit of EU law or promotes further integration; it protects citizens and businesses from abuse of the powers that EU laws confer on EU institutions and—I have to say to the noble Lord, Lord Faulks—on national Governments when they are implementing EU laws. So it is not just about all the EU institutions that we might leave; it is about achieving legal certainty and continuity. Deleting the charter means discontinuity by making substantive changes to the EU law that is retained in domestic law.

Bach Commission: The Right to Justice

Baroness Whitaker Excerpts

Thursday 14th December 2017 Lords Chamber

[Baroness Whitaker (Lab)]

My Lords, I declare an interest in that my daughter is a practising barrister, sometimes funded by legal aid. The rights we have declared since our earliest times as a society are nothing without access, as almost all speakers have said this afternoon. A right to justice Act would therefore be a necessary complement to the Human Rights Act 1998, one of our most important state achievements. My noble friend’s report is of signal importance, and, incidentally, is the best go yet at creating some sort of national legal service which neither incentivises litigation unnecessarily nor does this at exorbitant cost.

The British Institute of Human Rights—I declare an interest as an advisory board member—has many examples of rights denied because of lack of legal aid; that is to say, lack of capacity to challenge wrongful welfare or health or care decisions. The right to a fair trial or, indeed, to any trial at all is clearly dependent on access. One could go on through all the rights we have codified in the Human Rights Act.

When we look at funding arrangements, I draw on my experience as a member of employment tribunals, so often asymmetrically argued because the employer hired a lawyer which the complainant could not afford, with obvious disadvantages which the tribunal had to try to cut through. It took a long time. In some cases of discrimination, which are often very hard to prove, I think it is right to say that without that proper representation justice was not always done and, of course, the position is infinitely worse since the LASPO Act of 2012.

The Law Society has ample information about the cost to the public purse—£3.4 million—the delays and the injustices ensuing from the lack of legal aid-funded early advice, which was referred to by my noble friend Lord Bach in his powerful introduction. Even mediation in family law, the government’s fig leaf of justification aimed at deterring litigation, has declined by 38%.

Some of your Lordships will be aware of the severe disadvantages faced by the Gypsy and Traveller communities in trying to find sites to live on. The LASPO Act seriously curtailed their ability to obtain advice and assistance. Those Gypsies and Travellers living on local authority sites who had at last obtained security of tenure in the mobile homes legislation of 2011 found that they were denied any legal aid for advice and representation in respect of the rights conferred by that legislation, apart from possession actions and cases of very serious disrepair. Curtailment of legal aid for judicial reviews makes it increasingly difficult for Gypsies and Travellers faced with unlawful actions or decisions by public authorities to find any solicitor willing to take on their case because they might not be paid. Exceptional case funding under Section 10 of the LASPO Act, which was referred to by the noble Lord, Lord Faulks, does not really provide a practicable alternative route because of the time it takes to make an application and the extraordinarily low success rate, the consequence being that many solicitors will not contemplate such an application.

The Bach recommendations would put these injustices right. They could usefully add a recommendation that the exclusion of so-called trespassers from loss-of-home actions should be withdrawn, since the right to representation for Gypsies and Travellers who have been unlawfully moved on has also been withdrawn. The very estimable proposals for online access ought to be complemented by face-to-face advice for those who are not online.

Like others, I particularly value the recommendation for legal education in schools. We lack a written constitution which, among other benefits, would ensure that rights and responsibilities were taught. Think of how a British equivalent of the Gettysburg address might help our sense of national identity. Legal education could at least enable the guiding principles of justice to be communicated.

In conclusion, the recommendations in this invaluable report would go far to produce an effective system of public justice that we could be proud of and which, most of all, actually delivered justice to those most in need of it.

Brexit: Human Rights

Baroness Whitaker Excerpts

Tuesday 12th December 2017 Lords Chamber

[Baroness Whitaker (Lab)]

My Lords, in the unfortunately short time available, I draw attention to our EU nationals from the Roma community, many of whom fled from extreme discrimination—their children sent to special schools and not allowed to speak their own language, their villages burnt down like the pogroms of old, mistreatment at the hands of the police, and even murders committed and condoned by the rest of the population.

The reforms to EU migrants’ access to welfare benefits have had a disproportionate impact on Roma well-being and the conditions for assuring their residence in the UK are discriminatory. Five years’ continuous residence does not work for family units who go backwards and forwards over the channel for family events and contacts. Family is of particular importance to people who have little confidence in the state, and of course contributes significantly to its members’ well-being. It is not clear what will be adduced for the assessment of conduct and criminality. Will it be local resentment, no matter how prejudiced, or permanent exclusion from school, of which there is now a disproportionate and worrying amount? Will it be civil penalties, such as driving offences, or all criminal offences, no matter how petty? The use of income records as evidence tends to exclude anyone in the informal economy or a family enterprise, and the online stipulation is another barrier to many. Can the Minister specify exactly which documents will be accepted?

Since the referendum, border force police have deported over 5,000 EU migrants, one-third of whom were Romanians, including many Roma rough sleepers, although a legal challenge is ongoing. Some of these problems also affect Irish Travellers, and indeed Irish citizens in general. Have the issues of Roma rights and safety been raised at all in Brexit discussions? The UK Government set their face against adopting the national Roma integration strategy for 2015 to 2020, as requested by the European Commission. Will they now set out their policy for dealing equitably and justly with the human rights of the Roma people, and their eligibility to remain here?