Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Elystan-Morgan Excerpts

Monday 30th January 2012 Lords Chamber

[Lord Avebury]

My Lords, I do not believe that any cost whatever has fallen on public funds but I shall be as interested as the noble Lord, Lord Alton, to hear from the Minister about that aspect of the amendment. Both the noble Baroness, Lady Coussins, in moving the amendment, and my noble friend Lady Hooper, underlined the fact that we are talking about a very small number of cases that would not encourage the development of a litigation culture; quite the contrary. In the few cases that we are talking about, there would be a significant impact not only on the lives of many thousands of people who are directly affected but, as has also been emphasised, on corporate practices and international norms in business and human rights.

I declare an interest as president of the Peru Support Group, which was particularly concerned in the Monterrico Metals case described by the noble Lord, Lord Judd. This is a paradigm case because there is no doubt whatever that the poor indigenous inhabitants of Peru would have been totally unable to mount this action if the proposals in the Bill had come into effect. Is that really what your Lordships want—to say that people in the third world who are victims of appalling human rights abuses by United Kingdom or United Kingdom-based companies are not going to be able to bring proceedings in the courts of law? I do not believe that that is what your Lordships would like to happen. Therefore, I beg my noble friend to listen very carefully and come forward with proposals that, if they are not word for word on the lines of these amendments, at least convey their sense, as the noble Baroness, Lady Coussins, said.

[Lord Elystan-Morgan]

My Lords, I, too, support this amendment, which was presented with such lucidity and articulation by my noble friend Lady Coussins. The exact motivation behind the changes that are being incorporated into the Bill is not clear to me. Is it to save the public purse some money, or is there some other purpose? If it is a case of saving the public purse some money, what aspects of the possible results have been examined? Exactly what evidence has been collected? How satisfied are the Government that a net saving in that regard will be brought about? It is obviously not the Government’s intention to deprive worthy people of a redress that they have at the moment, albeit in an imperfect state, as my noble friend Lord Pannick suggested. That cannot be the motivation, but undoubtedly that would be the result.

It is true that the number of cases is not immense, but justice is one and indivisible. The stain on the name of justice in these matters is considerable indeed. I remember in the early 1970s being a member of Lord Elwyn-Jones’s chambers. He was briefed by some South Sea Islanders whose island had been abused by the rapacious acts of mining companies that were registered in the United Kingdom. Out he went for a conference. As the launch was drawing into harbour, hundreds of people were drawn up on the quay—a very high percentage of the islanders—all singing, “Oh God our help in ages past, our hope for years to come”. Elwyn-Jones, being the man he was, was greatly inspired by that and, indeed, the islanders won a redoubtable victory. It is in defence of such situations that I greatly welcome the initiative brought about by the noble Baroness.

[Lord Stevenson of Balmacara]

My Lords, this has been a very interesting debate that has been well supported all round the House. I hope the fact that so many noble Lords have spoken in support of these amendments will weigh on the Minister when he responds.

I would like to spend a few minutes talking about the dichotomy between the rhetoric that we have heard from the Government about the importance of human rights, which we support, and the impact of the measures before us. Under the existing regime, it is already extremely difficult for the cases that we have talked about to be brought in the UK. In the past 15 years, only nine or 10 such cases have been brought. However, these cases have had a significant impact not only on the lives of thousands of people directly affected but—this is important—on corporate practices and international norms in business and human rights.

When the Prime Minister met the Colombian President Juan Manuel Santos in London on 21 November, we were delighted to hear him say:

“Governments of the United Kingdom and Colombia reaffirm their shared commitment to respect, protect, and promote human rights. We reaffirm our commitment to uphold the human rights treaties and agreements we are signatories to, in particular the Universal Declaration of Human Rights, and the International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights”.

I am sure the Minister and his Government want to match reality to that rhetoric. The problem is that, possibly as a result of an unintended consequence or possibly of trying to get one cap to fit all cases, the considered view from all those involved in this area is that the practical result of the proposed changes will be that it will be almost impossible for poor individuals and communities from the developing world to pursue justice in UK courts. We think that this is wrong in principle but also because of the message that it sends to multinational companies based in the UK. Our amendments would create an exemption so that vulnerable victims of human rights abuses in the developing world would still be able to bring cases to the UK. There is no evidence of any need to address the possibility of a spate of spurious claims here; the truth is that it is already very difficult to bring these kinds of cases against UK-based companies in our courts.

Amending the Bill will be essential if the UK is to meet its commitments on business and human rights and to avoid giving the impression that somehow the Government have gone soft on the way they wish to treat business that causes abuse overseas. The rhetoric is good. We know that the Government have consistently supported the UN “protect, respect and remedy” framework for business and human rights and the guiding principles developed by Professor John Ruggie and adopted by the UN in June 2011. In those framework and guiding principles, Principle 26 explicitly states:

“States should take appropriate steps to ensure the effectiveness of domestic judicial mechanisms when addressing human rights-related claims against business, including considering ways to reduce legal, practical and other relevant barriers that could lead to a denial of access to remedy”.

As recently as December 2011, the UK submission to the UN Working Group on Business and Human Rights stated:

“The United Kingdom has placed human rights as central to and indivisible from the core values of British foreign policy. We believe the potential of business to impact on the human rights of individuals worldwide has only been fully recognised in recent years. The endorsement by the Human Rights Council of the UN Guiding Principles on business and human rights in June 2011 marks a high point of international consensus on the issue”.

In light of the praise for Professor John Ruggie’s achievements, it is vital that we keep open the chance of mounting human rights actions in the United Kingdom. The reality of today’s world is that global companies play an increasingly important role and can impact on almost all aspects of our lives. While many UK transnational companies act responsibly, it is important that in situations where human rights abuses occur abroad, poor and vulnerable victims can still seek justice in our courts.

As the noble Baroness, Lady Coussins, said, the Government have already made an exception in the Bill for ATE in clinical negligence cases. Is it not possible to do the same for this limited set of cases? As has been mentioned, the mover and supporters of the amendment met last week the noble and learned Lord, Lord Wallace of Tankerness, and the noble Lord, Lord McNally, who I thank for their time and courtesy in listening to us. I came away from the meeting feeling that there was a willingness to find an accommodation on this issue. If the Minister is happy to signal his willingness to continue those discussions, I am sure that there will be a way of resolving the differences, and I look forward to having a chance to do that.

--- Later in debate ---

[Lord McNally]

I am aware of that. As the noble Lord said, that issue was to a certain extent present in the Trafigura case, where 30,000 people each received £1,000 and the lawyer got—or tried to get— £100 million.

[Lord Elystan-Morgan]

I am most grateful to the noble Lord for giving way. Without detracting in any way from the point made by the noble Lord, Lord Judd, is not the difference between the damages counted and the costs incurred in many cases indicative of the inequality of arms between the situation of the claimants and that of the defendants, many of which are multinational companies with a gross turnover per annum greater than that of 50 of the least privileged countries in the United Nations?

[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.