Criminal Injuries Compensation Scheme 2012 (Amendment) Instrument 2019

Debate between Lord Thomas of Gresford and Baroness Chakrabarti

Monday 20th May 2019 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I welcome this statutory instrument which makes an improvement to the current scheme, but it should be seen in context. I was a member of the Criminal Injuries Compensation Board from 1985 to 1994. In those days, there were 44 members who assessed eligibility for an award and the quantum on common law damages principles, and it was thought that a person injured by crime should receive no less than a person injured, for example, in an industrial or road accident. It was a non-statutory scheme under the prerogative of the Crown. In 1988, Mrs Thatcher’s Government introduced legislation to put that scheme on a statutory footing—in other words, to make common law damages the basis for compensation—but the statutory instrument to introduce that was never brought into force. In 1994, although legislation for the common law damages basis for compensation existed, it was decided that there should be a tariff scheme under the prerogative powers. That was challenged and, in the end, taken to the Judicial Committee of this House, which held it to be unconstitutional. At that point, I resigned from the board because I thought that this was merely a scheme to keep down compensation.

In 1994-95—the year that I resigned—compensation was awarded to the tune of £152.5 million. I was not alone. Mr Tony Blair, then the shadow Home Secretary, said that nothing so exposed the Government’s claims about law and order as the scrapping of the current system of compensation. He added that thousands of people would be worse off under the new arrangements and many would be substantially worse off. In 1995, Mr David Maclean, the Home Office Minister, said that the amount of compensation was expected to increase to £250 million. The Government changed in 1997 and ultimately the Labour Government introduced the Victims Charter. On 27 March 2001, I moved a regret Motion against a statutory instrument introducing modifications to the scheme. I said:

“What is to happen for victims? There will be better services; £4.6 million will be spent on introducing victim personal statements so that victims can tell the court what happened; £4.2 million will extend witness support services to magistrates’ courts and the Crown Prosecution Service will spend an extra £3 million on making direct contact with victims, either by letter or in face-to-face meetings to explain decisions to drop or alter charges. That is the Victims Charter. By their alterations to this scheme the Government have gone along with the tariff system which, instead of providing £460 million by 2001, as was thought five years ago, now produces £220 million. So they have saved more than half the possible cost of that and are spending £11 million on services that victims generally do not want and which are completely valueless for victims of crimes that are never solved”.—[Official Report, 27/3/01; cols. 230-31.]


The modification introduced today is to get rid of the same-roof principle, which prevented compensation being awarded to people living under the same roof. Back in the 1990s, and even when the scheme was introduced, there was not the same focus on historic sexual abuse cases that there is now. Consequently, the concern of the board was that women living with violent partners should be compensated but that the violent partners should not get anything as a result, so it was a requirement that they live apart. That was the reasoning behind the rule when it was introduced.

We have moved a long way and now live in different times, but I should like to point out that awards by the compensation board in 2017-18 totalled £154 million—in other words, £2 million more than when I resigned in 1994. Therefore, although the amendment is welcome as an improvement to the scheme, let it not be thought that victims are being properly compensated by the scheme for the injuries that they sustain. I retain the reservations that caused me to resign in 1994, including the concern that the scheme does not pay out what it should.

[Baroness Chakrabarti (Lab)]

My Lords, it is always a pleasure to meet the noble Baroness, Lady Barran, at the Dispatch Box but her bringing this instrument today is particularly welcome, as was her careful and clear speech explaining the historic reason for the same-roof rule, which to modern eyes is very difficult to understand, as well as why it is unsustainable now. Thanks are also due to the unsung officials who will have prepared the instrument. I take this opportunity to join the well-deserved tribute to the outgoing Victims’ Commissioner, the noble Baroness, Lady Newlove, who has brought such credibility to that role. She will be a tough act to follow. I am sorry that she is not here to hear these tributes, but I am sure that she will be told of them in due course.

I will not take up your Lordships’ time as there is other important business, but this is incredibly welcome and we wholeheartedly support it on this side of the House.

Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc.) (EU Exit) Regulations 2019

Debate between Lord Thomas of Gresford and Baroness Chakrabarti

Monday 25th March 2019 Grand Committee

[Lord Thomas of Gresford (LD)]

My Lords, I think it very appropriate that the Ministry of Justice should decide as a principle as far as possible to preserve the existing rules as they currently apply in the UK immediately after exit day. The purpose is,

“to provide maximum certainty and stability for businesses and individuals”.

However, I am concerned about the impact on business, even though the impact assessment does not throw up anything in particular. I am always very conscious of the strength of Hong Kong, which built its reputation and financial power on the fact that it uses English common law as the basis of its legal system. That means that contracts are readily made and understood, which has been of great economic benefit to Hong Kong. I notice that the impact assessment refers to the,

“strong international reputation as a centre of legal excellence”,

that this country currently enjoys. Anyone connected with the law knows that our legal profession has a great reputation, English law is frequently the preferred law and English courts are used even though a particular dispute has nothing to do with England, so this is a very profitable part of the legal world.

I shall take as an example one matter referred to in paragraph 7.7 of the Explanatory Memorandum, which refers to,

“the law applicable to non-contractual obligations arising from infringements of unitary EU intellectual property rights … Trade Marks … Design Rights and … Plant Variety Rights. These unitary EU IP rights will no longer apply in the UK … and UK courts will no longer hear proceedings relating to such rights after exit day”.

It seems to me that there is a whole area of law which may be cut out from the jurisdiction of English courts and the services of English lawyers.

That is compounded by the fact that these regulations remove the ability of UK courts to refer questions of interpretation of the 1980 Rome convention to the Court of Justice of the European Union—to my mind, that is a significant restriction—just as the interpretation of retained EU law generally cannot be decided by that court. We are going from a well understood legal system to something that is much more limited than we have been used to.

On the broad basis, however, the fact that the rights are generally retained is to be welcomed.

[Baroness Chakrabarti (Lab)]

My Lords, in an attempt once more to be succinct, I can echo the point that the noble Lord, Lord Thomas, was making. The concerns from this side are essentially about regulatory diversion. I do not think anybody is going to object to these regulations; the concern is with ongoing regulatory divergence and its potential impact, whether it is on unfair competition cases or IP cases and so on. Perhaps the Minister might consider briefly that risk of regulatory divergence in his reply.

In relation to insurance, the Explanatory Memorandum says:

“The Government engaged with representatives of the insurance industry”,


in relation to “insurance risks”. Can the Minister outline the types of risks identified in that engagement? We are told that banks and insurers are shifting hundreds of billions of pounds in assets out of the UK ahead of exit day to keep their contracts and policies within the EU area. We have learned that Aviva, Britain’s second largest insurer, will transfer around £9 billion in assets to a new Irish company, for example. Does the Minister agree with having that sort of risk to our economy? Does this reflect the concern about different outcomes that could result from insurance contract cases being resolved differently in our courts and those of our EU partners in the future?

As I say, my general proposition is on the risks of regulatory divergence, but one can hardly object to the instrument itself.

Brexit: Legal Position of Withdrawal Agreement

Debate between Lord Thomas of Gresford and Baroness Chakrabarti

Monday 3rd December 2018 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I am of course grateful to the Minister for repeating that Statement and for advance sight of it and the position paper published today. However, all Members of this House and, even more importantly, all Members of the other place are at a major disadvantage when asking questions because they have not read the legal advice upon which the Statement is based. It is totally unacceptable that we are in this position when aspects of the Attorney-General’s advice have been selectively leaked to the press over the weekend. Perhaps the noble and learned Lord can confirm that in the Attorney-General’s letter to Cabinet Ministers last month, as has been reported, he declared in respect of the backstop arrangement:

“The protocol would endure indefinitely”,


if trade talks broke down.

On 13 November in the other place, my colleagues the shadow Brexit Secretary and the shadow Solicitor-General were both crystal clear that what was sought was the final and full advice provided by the Attorney-General to Cabinet on any completed withdrawal agreement, made available to all Members of Parliament in good time for the vote on the deal. Offers short of that made by the Government, including the Attorney-General’s Statement today, were roundly rejected and the House of Commons passed the Motion unanimously. The Government could have voted against it and did not.

The reality must be that the Government do not want MPs to see the advice for fear of the political consequences. There is no point in trying to hide behind the law officers’ convention; the Ministerial Code and Erskine May are very clear that Ministers have a discretion, as part of that convention, to make advice available in exceptional circumstances. Surely few circumstances could be more exceptional than these. The economic, political and constitutional integrity of our country is at stake and the House of Commons is tasked with authorising the deal.

Paragraph 82 of today’s position paper confirms that there is no unilateral exit mechanism from the backstop for the United Kingdom—I stress, no unilateral exit mechanism. Perhaps the Minister could point me to a precedent for such a locked door with only one party as keyholder, which would not be us. Can he point to such a precedent in another treaty of recent times, or at all? The Government’s argument that the backstop will be only temporary is a political one, and politics changes. It is not the same as a firm, legal position. But articles 1.4 and 2.1 of the backstop protocol are clear that its provisions,

“shall apply unless … they are superseded, in whole or in part, by a subsequent agreement”.

Put simply, this means that parts of the backstop could become permanent even in the event that a trade deal were agreed. Can the Minister tell us of his view as to the parts of the backstop arrangement in this protocol that he considers most likely to become permanent?

There is then the impact on the Good Friday agreement. Page 305 of the withdrawal agreement refers to the need for this protocol to be implemented so as to,

“maintain the necessary conditions for continued North-South cooperation, including for possible new arrangements in accordance with the 1998 Agreement”.

Can the Minister confirm what his view is about, first, new arrangements that he believes would be in accordance with the 1998 agreement and, secondly, which new arrangements he believes would not be in accordance with it?

It is of course for the other place to rule as to whether there has been an arguable case for contempt in what we on these Benches believe to be a failure to comply with the Commons Motion of 13 November. But for the sake of our economy, our jobs and our futures, all possible information should be made available to those asked to vote on this deal. The Government should do the right thing and make the advice available. With so much at stake for all our people and with eight days now before the vote on the deal, both Houses and the country deserve better from this Government.

[Lord Thomas of Gresford (LD)]

My Lords, I too am grateful to the Minister for repeating the Statement and for giving me advance notice of what it contained. On 14 November, the Government published an explainer document in conjunction with the text of the draft withdrawal agreement. Paragraph 158 states that the agreement contains,

“assurances that we cannot be kept permanently in the backstop”.

That is not the view of the Attorney-General as set out in this Statement. He says:

“There is … no unilateral right for either party to terminate”,


the agreement. The Northern Ireland protocol places the whole of the United Kingdom in a single customs territory with the EU. As the Attorney-General’s Statement says, that will continue to apply in international law unless and until it is superseded by a permanent agreement. Northern Ireland alone must additionally follow many of the EU’s single market rules and will consequentially, whatever the DUP may say, have a different status from Great Britain.

The legal statement that has been produced today rightly focuses in particular on Article 20 of the protocol. It is not a break clause, which might in defined circumstances permit the United Kingdom to break the arrangements and walk away from the single customs territory; it is a review clause whereby one party, if it thinks fit, may seek agreement from the other that the protocol is no longer necessary essentially to protect the 1998 agreement in all its dimensions. If there is agreement, the single customs territory comes to an end but, in the absence of agreement, the dispute is to be resolved by an arbitration panel whose decision is binding on both parties. If a question of the interpretation of Union law arises, the panel cannot determine it; it must seek a definitive ruling from the Court of Justice of the European Union.

Paragraph 11 of the annexe to the legal position document suggests that the arbitration panel would be considering, for instance, whether the parties were acting in good faith or lawfully. I understand that the Attorney-General has expanded on this in another place today. I regard that as a distraction tactic. Does the Minister not agree that the real question the arbitration panel would decide is not whether the parties were acting in good faith but whether, in its opinion, maintaining the single customs territory was still necessary for the purposes of the 1998 agreement? Is not the whole purpose of the protocol to maintain frictionless trade between the whole of the United Kingdom and the EU in order to avoid a hard border in Ireland? Is it sensible to leave such a highly political and sensitive question for an arbitration panel to determine, even though it will get its law from the CJEU? If that arbitration panel says that it is still necessary to maintain the single customs territory, we remain in it. We remain in the backstop. We remain in the single customs territory. There will be no trade deals being brought into effect. Does the Minister agree that that is the legal position?

Belhaj and Boudchar: Litigation Update

Debate between Lord Thomas of Gresford and Baroness Chakrabarti

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?