Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, In moving Amendment 132AC, which was added as a manuscript amendment this morning, I shall speak also to Amendments 134, 135 and 138, which I believe are consequential to that first one and appear in the Marshalled List under my name and have the support of Members on all sides of the House. My amendments would ensure that in this country we retained effective access to justice in our courts for overseas victims of human rights abuses or environmental harm caused as a result of the operations of UK companies. These amendments would not involve any expenditure whatever from the public purse. I remind the House of my interest as a non-executive adviser on corporate social responsibility to various companies and I acknowledge the work of CAFOD, Amnesty, Oxfam and other organisations in the corporate responsibility coalition which strongly support these amendments. I am grateful to the noble Lord, Lord McNally, and the noble and learned Lord, Lord Wallace of Tankerness, for meeting with me and others to discuss these amendments and for the subsequent letter the noble Lord, Lord McNally, sent. I am only sorry that I do not seem to have persuaded him of the need for these amendments but I will have one more go here today and make four brief points in response to the reasoning set out in his letter of 29 February 2012 to me and the noble Lord, Lord Stevenson. First, the Government are clear that the effect of Part 2 of this Bill should be, and I quote from the impact assessment, "““a transfer of resources primarily from claimants and claimant lawyers to defendants. For many of the cases in scope, the defendant is a public body, funded by the taxpayer””." There is the critical difference. In the type of cases that I am referring to, the defendant is not a public body. It is not the NHS, for example. The defendants here are multinational companies, often with huge resources and large teams of their own very expensive lawyers. The claimants, by contrast, in past cases have included rural farmers from remote areas of Peru or Colombia, South African asbestos miners, or citizens of the Côte d'Ivoire, one of the poorest countries in the world. So my amendments are about an exceptionally different type of claimant from those this Bill is really about, and I think that that must be acknowledged. Secondly, the Minister has said that damages-based agreements, or DBAs, are the answer, but in my view he has not backed this up with evidence as to how DBAs would work specifically for these types of cases. Without my amendments, lawyers' success fees would not come from the losing company; they would be taken out of the victim's damages. Shifting the burden of payment for fees and insurance costs from the defendant to the victim risks substantially reducing or even wiping out the damages that victims receive. In such situations it is hard to imagine it being financially viable to bring the case in the first place. Thirdly, the Government acknowledge that a potential impact of the Bill's proposals is that fewer cases may be brought, especially where there is a lower probability of success or where cases involve highly disproportionate costs compared to the amount being disputed. That is exactly the case with these international corporate human rights abuse cases. This does not mean that such cases are not worth pursuing. It is still vital that vulnerable victims should get justice and at least some compensation. Companies need to know that they can be brought to account if they act irresponsibly. The proposed amendments to Clauses 43 and 45 would retain the current funding system for international human rights cases. I want to make it clear that creating this exception would not gut the overall aim of the Bill. It would not fundamentally undermine the Bill's purpose at all. The offending company would have to pay out only if the case met all the existing prescribed criteria to do with public interest. Finally, other countries will be looking to the UK to follow our lead in working out how to implement the United Nations' guiding principles on business and human rights. What kind of example are we setting to other countries if we change our laws now to make it even harder for poor victims of corporate abuses to seek redress. I urge the Government to agree to carve out an exception for these rare cases, which the Bill was surely not intended to be about in the first place. I beg to move.