Is the UK really going to make it even harder for poor communities overseas to access justice?

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This week in London peers in the House of Lords have been discussing a crucial question for the UK’s record on business and human rights.  

In the middle of hundreds of amendments to the huge Legal Aid and Punishment of Offenders Bill which is currently passing through Parliament, the peers reached amendments designed to make sure that overseas victims of abuses committed by UK-based companies will still be able to bring cases in the English courts.

These amendments were proposed by cross-bench peer Baroness Coussins. Conservative, Liberal Democrat and Labour peers all spoke in support of creating this exception which would apply to a small number of significant public interest cases. In response Lord McNally said the Government didn’t believe such an amendment was necessary but promised at least to look again at the issue.

Foreign victims do not of course have any access to Legal Aid so these claims already depend on ‘no win, no fee’ agreements with lawyers and claimants being able to get insurance to cover the costs and risks of such lengthy, complicated cases.

The Government is proposing to change this system so that lawyers’ success fees and the insurance premiums would be paid out of the damages awarded to the victim instead of being paid by the losing company. In practice this would make bringing a court case financially impossible for many victims from developing countries.

Two points raised by the Lords this week – which the Ministry of Justice has yet to answer adequately – show why an exemption is urgently needed.  The costs in these kinds of cases are often much higher than the damages awarded.  This can’t just be dismissed as ‘greedy lawyers’.  First, European legislation means damages are now awarded at the level of the home country whereas the costs reflect the reality of bringing an international legal case in the English courts.  Second, the deliberate actions of companies facing such cases also drive up costs.

With the other Catholic development agencies, CAFOD has been following the UN discussions on business and human rights for many years now.  For me one of the most eye opening experiences of the UN Special Representative’s mandate was a particular roundtable discussion about bringing human rights abuse cases on behalf of foreign victims. A corporate lawyer candidly described all the tactics and obstacles that they would use on behalf of a multi-national client to stop such a case ever reaching court.  It was a good reminder that phrases like “access to remedy” can be pretty hollow if you don’t have both the means and several years’ time necessary to pursue a case.  That lawyer was just being honest and describing the current system in the UK.  The changes proposed in the Bill now going through parliament would mean the situation of South African asbestos miners or Peruvian campesinos would become even more difficult.  It won’t change the delaying tactics and procedural distractions at a company’s disposal though.

It is clear that access to justice is already heavily loaded against poor people from the developing world who try to bring cases against multi-national companies. For me the UN Principles on access to remedy are about recognising the obstacles and thinking about the implications of new laws, rather than making this situation worse.

The UK has committed its support for the UN Protect, Respect, Remedy Framework and is due to unveil its strategy for putting the Guiding Principles into practice in June this year. Many other countries will be looking to learn from our approach. The first test of how seriously the UK Government takes that commitment will be whether it amends the Legal Aid bill.

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