Month: March 2012
A JUBILEE REPORT
Darfur: The Genocide Continues
Prepared by Lord Alton of Liverpool and Rebecca Tinsley
1.1 Lord Alton and journalist Rebecca Tinsley returned on Oct 4th from Geneina in Darfur,Western Sudan. This report confirms the World Health Organisation’s estimate that 10,000 people are dying every month from malnutrition and disease inDarfur. Put more starkly, as every hour passes another fourteen people die. By the close of each day another 333 people are among the 50,000 lives claimed in what the UN has rightly described as “the world’s worst humanitarian crisis.” In addition to the 50,000 dead, 1.4 million people are displaced. The rate of death is comparable to the death rate inRwanda at the height of the genocide in 1994.
1.2 Over the past nine months David Alton (LordAltonof Liverpool) and Caroline Cox (Baroness Cox of Queensbury) have urged the UN and UK Government to formally declare the events inDarfurto be genocide. Prior to this both peers have travelled independently intoSouthern Sudanand drawn attention to the two million fatalities, and the five million displaced people, since the war started in 1983 (see Jubilee Campaign Report on Sudan 2002 and Hansard). To date, the Security Council has simply established a committee to consider the situation.
1.3 In September 2004 in Parliament David Alton challenged the Leader of the House, Baroness (Valerie) Amos to follow the lead of Colin Powell and the US Administration in making a formal declaration of genocide. The Government have thus far declined to do so, but we strongly welcome the decision of the Prime Minister, Tony Blair, to visitSudan/Darfurto see the situation first hand.
1.4 In 2002 David Alton called in the House for oil sanctions and a calibrated response againstSudanand in May in the House he warned the Government that they were repeating the failure to intervene inRwanda’s genocide in 1994 (see Hansard).
1.5 During a visit to Darfur, on October 3rd and 4th, he and the journalist Rebecca Tinsley – on behalf of theUK human rights group, Jubilee Campaign – saw for themselves the situation in Geneina.
2.1 The British Government has said it sees no point in declaring the situation inDarfurto be genocide. Ministers have claimed that such a declaration would “add nothing” to theUK’s current actions. The EU mission to Darfur in August 2004 said the humanitarian disaster “fell short of genocide”, as did the UN’s Representative toSudan, Jan Pronk.
2.2 But, as the US has recognised – and as we were bitterly reminded during the taking of evidence in Rwanda immediately preceding our trip to Darfur (see Jubilee Report Rwanda/DRC – The Killing Continues) – when no formal declaration exists the international community feels able to stand idly by or literally conduct “business as usual” with the perpetrators.
2.3 Under the 1949 Geneva Convention Against Genocide any country that names genocide for what it is must then act to “prevent and to protect” and subsequently bring to justice those who commit crimes against humanity (Article 51 of the UN Charter).
2.4 Even if it were concluded that fewer than the 10,000 who died in August died in September 2004, it would not alter the reality of what has already occurred. Nor would it absolve us of our duty to bring to trial the perpetrators – something that will certainly not happen in the absence of a formal determination.
2.5 In any event, we received contemporaneous accounts that leave no room for purile theological debates about how many people have to die before western interests act. The day we arrived inWest Darfurtwo villages had reported that Government helicopters had arrived bringing arms for the Janjaweed. We cite other examples, below.
2.6 We spoke to the Fashir of the eastern district of Geneina, Suliman Dina, who is aged 71 and was appointed to his senior position of local leadership by the former Sultan of Darfur.
2.7 He told us that the build up to genocide began in 1995 and during the years that immediately followed. It began with the usual catalogue of plundering and looting. Cows and cattle were stolen, and rustling was accompanied by sporadic attacks.
2.8 In 1997 the Janjaweed militia began to consolidate their position and build a presence. Nine hundred Janjaweed fighters, formed in three lines of 300 mounted men, and reinforced by a Government helicopter from which guns and mortars were distributed, attacked the 54 villages in the Fashir’s district. 433 people were left dead.
2.9 Suliman Dina told us that of the 54 villages only one, Azena, was not raised to the ground. In Azena 12 people were killed and there was much looting, but it was not burnt. The Janjaweed forces were heavily armed and had land cruisers mounted with guns with which they have been able to control and subject the civilian population.
2.10 The Janjaweed tried to hunt down the Fashir but he escaped across the border (30 miles away from where we met him) with many other villagers.
2.11 In 1998 he returned when the Government said there would be no reprisals: “Instead of killing me, they killed my son inKhartoum.” His son, Adam Dina, was a doctor serving as a lieutenant in the Sudanese army. The Government has also continued to harass the Fashir. Last month he was arrested and released after several days in prison for being outspoken in reporting the events that have occurred inDarfur. His life is undoubtedly in danger, but he told us emphatically that he wanted the truth to be told and for the international community to act.
2.12 When we asked him what was the Government’s motive in allowing the rape ofDarfur, he said, “We have lived on this land for generations, under five sultans, but the Arabs want to empty us off our land and take it from us. Since the creation ofSudanthe Khartoum Government has never wanted us and they behave as if they want to rid the whole land of the tribes people.”
2.13 He added that they suspectKhartoumis fearful that “there are too many of us compared to them. Now that the world is open and we can be educated they fear we will over-whelm them.” Changing demography has accelerated a process driven by racism.Darfurwas always a collection point for the seizure of slaves, and even the Arabic word for their African population reflects this servile relationship.
2.14 The Fashir, and others we met, told us that among the Janjaweed fighters are zealots originally from countries such asChad,MauritaniaandNiger– who have been promised the land and possessions ofDarfur’s tribes’ people. Sheik Adam Abdullah Ismael described his harrowing ordeal. By the end of his account he and the other leaders were weeping. This glimpse of open emotion was itself indicative of the abyss into which these dignified people have been driven.
Sheik Ismael from Hafier Abu
2.15 Sheik Ismael lived at Hafier Abu, the site of a water-pool. In 1997, 15 men and 2 women died after an armed attack. One month later the fighters returned and burnt down the village. He and the villagers who escaped spent 11 hours walking and running, pursued by gunmen, finally reaching a place of safety. After several months they returned and rebuilt their village. Then in 2003, 400 Janjaweed arrived, mounted on horses and camels. “Don’t worry,” they said. “We are just here for the water.” Two days later they started attacking the villagers in the area, stealing every animal and all their property.
2.16 The Sheik went to Geneina to get a vehicle to transport his family and to escape. “If we return we die, if we go back, we die.” He decided to return and was accompanied by an Arab policeman. That night he was forced to watch as the Janjaweed raped 10 of the women. The policeman, who stopped the militia killing the Sheik, told him, “I thank God I am not from this tribe.”
2.17 Sheik Ismael movingly said, “A Government should act as a father – and a father should not love some of his children and not others. A father should love all his children.” He also reflected that “these events have created a climate of fear and a cycle of revenge that will last for generations.” Sheik Zacharia Yahian Ibrahim gave an equally harrowing account of events in thevillageofTerlile, in the east of theprovinceofWest Darfur, in 1999. During the religious festival of Eid three people were killed during an attack, including the 85-year-old sheik of the village. After looting the village, and stealing the cattle, the Janjaweed burnt it down.
2.18 After escaping, the Sheik returned with his wife and children in 2000. In November 2003 the village was incinerated after the men had their hands tied behind their backs and were forced to give promises never to speak of these events, never to reclaim their land and never to seek revenge. They were then allowed to leave with only the clothes on their backs.
The refugee Camp at Geneina, Darfur
2.19 Sheik Ibrahim Abaka Yakia described how hisvillage ofGosz Banat – in the north of the province – was also attacked by mounted Janjaweed and 17 were left dead: “Nothing was left. The village just disappeared.” Sheik Yacob De Allah lived in Ushara village, near the town ofGeneina. 200 men on horseback surrounded the village, whiplashed the women and children, and beat the men with sticks. Ushara was one of 13 small villages raised to the ground that day.
2.20 Sheik Ibrahim Adam Suleman told us that if the men now leave the refugee camps they will be killed by the Janjaweed. When the women leave the camp to collect firewood or fodder they are regularly attacked and raped by Janjaweed:
“A few weeks ago a lady went to collect firewood. They raped her, broke her arm and left her. Why? The plan of these people is to force us to abandon our land and never return.”
2.21 We were told of another woman who the day before our visit went to collect branches to make a fence for her small garden by her hut in the refugee camp. She is growing okra to try to support herself. She was carrying her baby on her back. When the Janjaweed fighter stopped her she asked if she could lay the baby on the ground while he raped her. After he did this she produced an axe concealed under her clothes and he fled. The attacker is known to the woman and is from Anjudol area.
2.22 Sheik Suleman said that the presence of Non-Governmental Organisations in the refugee camps had provided a measure of protection inside the camps: “but we are prisoners, denied the right of movement. You can’t go one kilometre from the camps.” Sheik Ismael added: “If it weren’t for the NGOs, we wouldn’t be able to stay here. We would have fled or have been dead ourselves.”
2.23 Never-the-less, the NGOs do not get to every part of Darfur (or to all the areas ofChadwhere refugees have fled). UN Security believes 17% of the population is deemed inaccessible. For instance, in addition to the police permit we had to obtain inKhartoum, travel passes are required to go outside Geneina. The Government of Sudan has recently put one of their senior intelligence officers in charge of security in Geneina and restrictions and reprisals against NGOs may intensify. Two weeks ago, local staff from an NGO were beaten and the local police refused to act “for fear of the army and Janjaweed.”
2.24 In addition to the numerous and repeated accounts of killings, burnings and lootings, we were shocked by the widespread use of rape as a weapon of war. We concluded that in every sense what we saw and heard about inDarfuris genocide and should be named as such.
3.0 Rape as a Weapon Of War
3.1 It is hard to overstate the scale of the continuing suffering of the Black African women and girls inDarfur. At Ardamata Camp, outside Geneina, where 30,000 people live, we talked to families who had fled from Abhasla, a village eight days’ walk to the west.
3.2 In February 2004 heavily armed Janjaweed on horseback swept into the village and killed every man and boy they could find. Their cattle were looted and their homes were burned down.
3.3 Thirty five year old Hawry told us that the men “harassed and beat” the women and girls before they rode off. It soon emerged that these are euphemisms for rape, but in their traditional society it is an unmentionable subject, bringing shame and humiliation on the victim and her family.
Women are at particular risk from the armed militia
3.4 We were told that the “Arabs” carried razor blades and sharp knives with them to cut open the atrophied vaginas of old women before they raped them. They also raped girls as young as 10. When the Janjaweed had gone, Hawry told us, the women abandoned the village. “My family once had 88 head of cattle, but I put one baby around my neck and another child on my back, and I started walking.” Her other three children had to walk for the next eight days, hiding in empty houses when they could.
3.5 When Hawry and the other women arrived at the camp they were just some of the 10,000 refugees who also arrived that same week. She and her girls built themselves a hut using branches, reeds and grass to weave a thatched roof. She draped plastic bags across the roof, hoping to keep the rain out when the season arrived.
3.6 As we sat in her hut she talked about the everyday difficulties of her life. She is grateful for the UNICEF school in the camp, but she is frustrated because she wants to find work. She yearns to return to her old life, but she knows it is not possible as long as the Janjaweed are armed. “And the children are too scared to leave the compound,” she adds.
3.7 We joined a group of 17 women sitting in the shade of a tree, drinking coffee. All the married women were widows, and most had also lost fathers, brothers and sons. They need firewood for cooking and grass for their animals, and are thus forced to go beyond the camp. It emerged that they were all, without exception, the victims of attack and rape by the Janjaweed. Although they are clearly traumatised by the daily risks they run, they speak philosophically about it. “If our men go out, they die. If we go, we are raped. That’s the choice.”
3.8 When speaking about the future, 20 year old Semira said the shame of rape would normally have prevented her from finding a husband. “Since most of the young men are dead, I suppose this isn’t going to be a problem.” Semira’s 18 year old sister, Roda, shrugged in agreement. Like all the other women in the group she wanted education, but our conversation kept coming back to their terror at leaving the camp compound to fetch firewood. “Someone has to take away their weapons,” she said. “They are cowards, and if they see soldiers fromBritainhere they will run away. We feel much safer when there are white faces around.”
3.9 The women agreed it would be best to have a European troop presence. “ThenDarfurcan be an independent country without the Arabs harming us and stealing our cattle.”
3.10 We also met 19 year old Jewa whose parents were killed by the militia, and who is now responsible for a family for six. Unfortunately her situation is common, and when one woman succeeds in getting a job she is expected to support her extended family. Sedeer, who cooks for an NGO, supports all eight families of her dead husband’s brothers.
3.11 Margaret, a nurse at the camp, summed it up when she said, “Life for women inSudanis hard, but it is especially hard for women inDarfur.” Her own parents had been killed in southernSudan, and she came toDarfurbecause she knows how the refugees feel, she says. “I keep telling the girls to get as much education as they can because that is their best hope.”
4.0 The Janjaweed is a pro-government militia.
4.1 It has its origins in the mid-1980s. Sadiq El Madhi initiated a policy of arming Arab Baggara militias in Darfurand Kordofan.(Human Rights Watch: Darfur In Flames). It was originally intended as a counter-insurgency measure against the SPLA rebels in the South and to entrench Tujammo Al Arabi (Arab Alliance) throughout the region, subjugating the non-Arab population.
There are no good roads to Geneina – making access for aid agencies difficult.
4.2 The name of the region is the key to understanding its ethnicity. “Dar” means homeland. In addition to the native Fur people the Massaleit and Zaghawa are among the 30 ethnic groups living inDarfur. Ruthlessly discriminated against and targeted for vicious treatment, the African people ofDarfur began attacking military installations in April 2003 at El Fasher airport.
4.3 The tribal leaders we met were emphatic that the Janjaweed are determined to bring about their annihilation. They cannot understand why other Muslims have attacked them (even as they have been gathered for religious festivals), why they have burnt mosques, raped their women, and killed their people. This troubling question is one also for Muslim leaders who need to appreciate the nature of the genocide against these gentle Muslim people who are living through a reign of terror.
5.0 The Government of Sudan
5.1 The Sudanese Interior Minister, Rahim Mohamed Hussein, has issued a bellicose declaration that “We will not agree to the presence of any foreign forces, whatever their nationality.” Mr.Hussein is part of a government that enjoys single digit support among a population that has been described to us by many people as overwhelmingly moderate in its attitudes (although there is a rump of people who want to see strict Sharia law).
5.2 Mr.Hussein’s attitude reflects his Government’s repeated indifference to international initiatives and a tendency to renege on undertakings given (eg the 1996 Peace Charter), and to allow initiatives to collapse (eg the Ajuba Talks in September 2004).
5.3 The Machakos Naivasha Protocols (2003), while a hopeful moment in the Government’s relationship with the SPLA, have been used by the Government of Sudan as a means of stifling international criticism. The talks, which are to resume this month, have become yet another bargaining chip.Khartoumhas threatened to withdraw from the north-south dialogue if the international community takes action against it overDarfur.
5.4 Throughout the gathering humanitarian disaster in Darfur, the Sudanese government has let it be known that it will restrict or deny humanitarian relief access if the international community asserts itself in waysKhartoumdislikes.
5.5 For the international community, the question is whether to accept such blatant blackmail or to make it clear that it will not tolerate genocide against a civilian population. The choice is between appeasement or decisiveness.
6.0 The United Nations
6.1 There is no United Nations peace-keeping presence inDarfur. The Government of Sudan have bitterly opposed the presence of “foreign troops” although the reincarnated African Union (AU) has sent a small force of Rwandan soldiers (something their President Paul Kagame, told us he is very proud of when we met him a week earlier in Kigali, and especially given the international community’s failure to respond to genocide in Rwanda in 1994). There are also troops fromTanzaniaandNigeria. Tribal leaders told us they would also like to see European and Commonwealth soldiers deployed.
6.2 Based at El Fasher, the main role of the AU peace-keepers has been to guard the UN monitors sent to Darfur. The UN has said that at least 3000 soldiers are needed and that they must have a robust mandate. The UN Security Council Resolution of September 18th 2004 committed the Security Council to do little more than think about possible penalties in the event of Sudanese intransigence.China,Russia,Pakistan andAlgeria abstained.
6.3 Despite at least eighteen months of atrocities inSudan, the international community has yet to take a single positive action against the Sudanese Government.
7.1 In 1898BritainandEgyptformed a joint government forSudan. The south, with its Christian and traditional religions, gravitated towards British East Africa, and the north toEgyptand Islam.
7.2 By 1947 – as a prelude to independence –Britainhad fused the two regions and handed power to the north. For the south independence resulted in a change of colonial masters. Within two years the army had taken power and begun a campaign of forced Islamisation. The cycle of displacements and refugee crises had begun. In turn the SPLA (Sudanese People’s Liberation Army) and other factions of resistance were spawned. InDarfur, the emergence of the Sudanese Liberation Army (SLA) – although acting independent of the SPLA – has now become a potent force. It has armoured vehicles and weapons, in many cases taken from their attackers during reprisal campaigns. Tribal leaders told us, “If we were given weapons, we would fight,” but then added, “We would prefer to go back to the way we were before all of this began.”
7.3 There is a real danger of linkage between the insurgents inDarfurand SPLA. Such a violent escalation could lead to the implosion of Sudan, a coup in Khartoum and the emergence of an even more authoritarian regime (an attempted coup by the Muslim Brotherhood occurred last month), and derailment of the Machakos protocols and the north-south process. The UK Government will want to emphasise all these consequences of the continuing genocide inDarfur.
7.4 Fashir Suleman Dina reminded us ofBritain’s historic links with Darfur, including a treaty with Sultan Mohamaed Baharadin that provided for westernDarfurto opt out of the state created in 1898 if it so wished. He said, “We never really thought about this before but if you are experiencing genocide then you would have to think of anything that would allow you to escape from this.”
8.0. Child Soldiers and the plight of children
8.1 We heard evidence that children as young as 10 have become child soldiers. We also had a chance to speak to Daniel Toole, Director of the office of emergency programmes for UNICEF worldwide about the plight of children. For instance we learnt that one child had joined the rebelSLAafter his father was killed. TheSLAand Justice and Equality Movement (JEM) inevitably attract marginalised, disaffected young people.
Omar was eight years old when he escaped on a train from Darfur to live on the streets of Khartoum.
8.2 Many children have also been left as orphans. In the camps children join the food lines for they are now the heads of their families. We were pleased to learn that the Government of Sudan has been supporting the immunisation programme inWest Darfur (especially against measles). However, polio has begun to reappear and also TB, and we were told that more needs to be done to combat it.
8.3 The worst health threat appears to be malaria. In one refugee camp we visited we were told that malaria is at its peak at present, with an average of one person per household suffering – and over 4000 cases in that camp alone last week. Chloroquinine treatments are not working due to high resistance, and other treatments are limited by their cost.
8.4 We learnt that before the genocide stable villages had been very positive participants in health improvement programmes for children, and although the camps were continuing their work children in inaccessible villages were greatly at risk.
8.5 An immeasurable problem will be the impact of so many babies born due to rape by the Janjaweed. While the women we spoke to would eventually open up somewhat about the horrors of their attacks by the militia, they would not even discuss what the future holds in store for so many children. “They want to dilute our blood, you see,” one woman said. “They hate black people.”
9.0 The IDPs
9.1 There is a traumatised, helpless mood of resignation in the camps. Sometimes it boils over, as, for instance, at Otash camp, near Nyala, when a policeman was recently lynched. A woman recognised him as one of those who massacred her family.
9.2 Some IDPs, an estimated 200,000 have fled toChadand 70,000 more toKenya. The other million have left their homes for makeshift camps that have sprung up in many parts ofWestern Sudan. This exodus has been precipitated by the Janjaweed’s reign of terror. We learnt for example of a boy aged 11 whose mother had been killed, leaving him to care for his three brothers in the camp in which he is living.
9.3 Over one million IDPs have been herded into camps which are run by the Government. Some of the policemen who patrol the camps are Janjaweed militia who have been given police uniforms. This understandably terrifies the people living there.
9.4 Stifling temperatures, soaring to a regular 45 degrees centigrade, food and water shortages, illness and makeshift sleeping quarters, all conspire to rob people of their dignity. They have already lost their land, their homes, their independence and self-sufficiency for which they were noted.
9.5 The irony is that a nutritionalist inDarfurworking for the UN earns $10,000 a month to oversee the distribution of grain and supplements to malnourished children. We are in grave danger of creating vast numbers of dependent people out of the previously self-sufficient.
10.1 Targeted oil sanctions should have been imposed at least six months ago. The failure to do so and the abject failure to control the flow of arms into Sudan has lulled Khartoum into believing (rightly thus far) that the world community would allow the Janjaweed militia, with their deep associations with the Sudanese Government, to continue to act with impunity.
10.2 It is extremely disturbing that countries with direct interests inSudanhave used their votes on the UN Security Council to soften the world’s response to the crisis inDarfur.China’s National Petroleum Company controls 40% ofSudan’s oil andIndiacontrols about 25% (through the Oil and Natural Gas Corporation Videsh Ltd).Malaysia’s Petronas Company controls a further 30%.
10.3 One Sudanese – from the south – who has survived nine attempts on his life, told us that, “every barrel of your oil is half filled with our blood”.
10.4Sudanproduces 32,000 barrels daily – worth $1m. In 2001 the Congressional Reserves Record estimated that this same sum, $1m, was what the Government of Sudan has been spending each day on arms.Chinahas sold AK47s, mortars, ammunition and rocket propelled grenades toKhartoum. We heard descriptions of such weapons in use against civilians inWest Darfur.
10.5 The elders whom we met – among the traditional leaders ofDarfur– told us that their greatest desire is peace and an end to the genocide.
10.6 In WestDarfuralone 600,000 of their people live in sprawling camps. There are 120,000 IDPs just in and around Geneina (doubling its previous population). Throughout Darfur – a land mass the size ofFrance– a colossal 44% of the population is directly war-affected.
10.7 Mercifully the rainy season this year was very light. Extensive flooding would have jeopardised humanitarian operations. Of course, this small mercy will also mean a modest harvest – so it is a mixed blessing. And no-one should under-estimate either the seriousness of the situation or the inadequacy of our response.
10.8 The elders said that security remains their greatest concern. They called for five things:
1) The disarmament of the Janjaweed
2) The restoration of looted livestock
3) The return or rebuilding of property
4) A resolution of the land issue
5) Freedom to move about
Above all they told us that the genocide must end.
10.9 Sheik De Allah put it well when he poignantly said, “We are a simple people. We know our farms and cattle and that’s all we want. The Government created Janjaweed and have created this situation. We are desperate and pray that the international community will intervene.”
1) The British Government, The European Union, The United Nations and the Arab League must immediately acknowledge that genocide has occurred in Darfur and that the Government of Sudan has supported the perpetrators, universally referred to by the people ofDarfuras the Janjaweed militias.
2) Targeted economic and military sanctions must be imposed uponSudan, and in particular oil sanctions, must be applied immediately. The international community must prevent the flow of arms intoSudan, and impose an immediate no fly zone overDarfur, enforced by an armed international force, mandated by the Security Council to use force to prevent over-flight of the region by the Sudanese Air Force or its proxies.
3) The Governments of Rwanda,TanzaniaandNigeriamust be applauded and supported for committing their troops to an international peacekeeping force inDarfur. International leaders must act upon their consciences by committing troops, resources and funding to assemble an armed peacekeeping force, mandated to use appropriate force to defend civilians, internally displaced people (IDPs), monitors and NGO staff in Darfur, and IDPs in camps in neighbouringChad.
4) The Government of Sudan is urged to immediately stop its military, materiel and financial support of the Janjaweed, to allow international peacekeepers to disarm the militias, and to guarantee the unconditional return of displaced people toDarfurwith the participation of the African Union. The Sudanese Government must begin constructive dialogue with all sides of the community inDarfurto institute a federal power-sharing system of government based on constitutionally enshrined equality for all citizens irrespective of race, religion, sex or ethnicity. As soon as feasible there must be a referendum on the future sovereign and legal status ofDarfur.
5) The Sudanese Government must immediately stop recruiting people perceived by the local people as Janjaweed into theDarfurpolice force. The international community must apply pressure on theKhartoumregime in this regard.
6) The international community must press the Sudanese Government to stop the intimidation and imprisonment of NGO staff and community leaders inDarfur.
7) The Sudanese Government must immediately drop its requirement for NGO staff to obtain travel permits to travel aroundDarfurprovince. NGOs must have freedom of movement to reach isolated areas at will.
8) Punitive financial penalties must be applied to international companies or governments involved in orchestrating or facilitating military sales toSudan. These penalties must also be applied to companies violating oil sanctions againstSudan.
9) Recognising that the genocidal terror campaign in Darfur has prevented crops being planted this year, the international community must prepare and adequately fund relief operations to feedDarfur’s displaced people. Given that the UN believes that theDarfuremergency is likely to continue for at least 18-24 months, planning is needed for returns and rehabilitation.
10) Recognising the burden being borne byChad, the international community must provide assistance and support to the Government of Chad.
11) We learned that the US Government had promised emergency food aid in the spring which finally arrived in September. There clearly exists a need for a mechanism by which governments who promise aid are held to their commitments.
12) The 135 signatories of the 1949 Genocide Convention must affirm that once genocide has been determined, action to “prevent and to punish” is required. This action must be commensurate with the magnitude and urgency of the catastrophe.
13) We commend the Sudanese Department of Health for its immunisation programme. Working with UNICEF and its NGO partners, two million children inDarfurhave been vaccinated against measles, out of a total target of 2.3m. Polio vaccination has been even more impressive, reaching 97% of the target. But at the same time theKhartoumregime must be condemned for its deliberate, cynical and racist neglect ofDarfurover decades. In all ofWest Darfurthere is one stretch of paved road; clinics go without supplies for three years before getting medicines; doctors and teachers are unpaid for months; and are expected to cope with minimal infrastructure. While the people of Darfur are resourceful and stoical, it is clearKhartoumhas brought the rebel insurgency on itself through the contempt with which it has treatedDarfur.
14) It is intolerable forKhartoumto impose Sharia law on the people ofDarfurto whom it is alien and unacceptable. The international community must insist the Sudanese Government requires the broad consent of the people for laws enacted and applied.
15) We recognised a profound need on the part of the people ofDarfurto give testimony about what has befallen them. We owe it to survivors, and those who will not survive because of hunger, AIDS or attack, to collect their testimony into an archive. We commend Human Rights Watch for compiling evidence to be used in judicial proceedings, but believe the voices ofDarfur’s persecuted people must be recorded if we are to learn from current failings.
16) On a practical level, there is desperate need for interpreters because the NGO community does not have enough Arab speaking personnel to communicate effectively.
12.0 Contact Details
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Tel 0044 1483 894 787 Fax 0044 1483 894 797
A JUBILEE REPORT
The Killing Continues: A path to peace
1.1 Between September 19th and October 2nd 2004 a delegation sponsored by the British charity, Jubilee Action, visited the Democratic Republic of the Congo (DRC) andRwanda. The delegation included LordAlton ofLiverpool, Canon Anthony Harvey, Sam Burke and Raphael Mpanzu.
2.0 Purpose of the Visit.
2.1 Jubilee is involved in advocacy on human rights and the promotion of dialogue and conflict resolution in many parts of the world. Jubilee Action also supports projects aimed specifically at alleviating the plight of street children, many of whom are often left orphaned, destitute or homeless as a consequence of conflict.
Lord Alton and Raphael Mpanzu talk to some children from the orphanage
2.2 In arranging a delegation to the DRC, Jubilee was responding directly to an invitation by the Congolese Government and was welcomed by the Vice-President, Yerodia Ndombasi. InRwanda, the delegation was welcomed by the President, Paul Kagame, and by senior Ministers.
2.3 Political, social, and economic progress in DRC is inextricably linked with conclusively ending the conflict betweenRwanda- a country that faces its own daunting but by no means insuperable challenges. We are indebted to the individuals and agencies that we met (Appendix 3) and to all those who went to so much trouble to make our mission productive.
3.0 Narrative and History.
3.I The Democratic Republic of the Congo (DRC)
3.1.1 After becoming independent from Belgiumin 1960, the DRC has been blighted by instability, by debilitating and incessant conflict and by corruption. We heard many allegations that, to this day, with the complicity of western governments, European quartermasters continue to fuel the conflict by the sale of weapons. This continues a tradition begun in the 16th century by French and Portuguese traders and pursued in the nineteenth century with ruthless zeal by King Leopold II ofBelgium (who literally sold the country – his personal possession – to the Belgian government in 1908).
3.1.2 The country’s Vice Minister for Foreign Affairs, Professor Mbwinga Bila, told us that as a consequence of the long corrupt and rapacious rule of President Mobutu and the almost incessant armed violence since decolonisation “the decaying infrastructure we have today is the one we inherited at the moment of independence. In fact, we have even less now than we had then. The only change is that in 1960 the infrastructure supported a population of 14 million and today the population is closer to 60 million. We have had 35 years of bad government followed by 10 years of armed conflict.”
3.1.3 Many Congolese told us that it is futile to simply blame the past and that it is now time for the country to move on. In doing so it faces enormous challenges and has great possibilities.
3.1.4 DRC is the third largest county inAfricaand the fourth most populous. Per capita income is $107 dollars.Congohas been benighted by exploitative rule, and by callous and corrupt leadership.
3.2 The Consequences of Conflict
3.2.1 According to the United Nations in the four years after 1998 more than 3.5 million deaths “occurred from the beginning of the war up to September 2002. These deaths are a direct result of the occupation byRwanda andUganda.” Put another way, 2,000 people a day were killed in a war that has been likened toEurope’s Great War. As the DRC saw this staggering loss of life, catastrophic conflict has rendered social development impossible.Congo became a text book example of a failed State – with marauding war lords vying for power and central government barely in control of the capital’s government buildings, let alone its far-flung provinces.
3.2.2 As the country was disfigured by the mass killing of civilians, by the end of 2003 3.4 million people remained internally displaced. Rape has been used as a weapon of war, accompanied by torture, arbitrary arrest, illegal detention, and the widespread use of child soldiers, some as young as seven.
3.2.3 From the moment of its birth DRC was plunged into civil war, with army mutinies, the attempted secession ofKatangaprovince (richly endowed with minerals) and the assassination of the first Prime Minister, Patrice Lumumba. By 1965 the head of the army, Jospeh Mobutu had installed himself in power, renamed the country Zaire, and initiated conflict with Angola.
3.2.4 Uniquely, the DRC has nine neighbours –Angola,Zambia,Tanzania,Burundi,Rwanda,Uganda,Sudan,Central African Republic, and the Republic of theCongo. At various times in its turbulent history the DRC has either been at war or in alliance with most of its neighbours. Internally, its sprawling landmass – covering an area half of the size ofWestern Europe– is occupied by ethnic groups who have invariably been at war with one another.
3.2.5 The Mobutu regime squandered 30 long years in an orgy of violence and corruption of a high order.
3.2.6 It was toppled by a rebellion in May 1997. This led to the installation of Laurent-Desire Kabila as President. A year laterRwandaandUgandasupported a rebellion against him while troops fromZimbabwe,Angola,Namibia,SudanandChadintervened on Kabila’s side. The stage was set for continued blood-letting in which the prize has always been the DRC’s huge potential mineral wealth. Sometimes the conflict is described in shorthand as a conflict between DRC andRwanda(and some of its other neighbours). Minister Bila reminded us that DRC “is 80 times bigger thanRwandaand we have no territorial ambitions inRwanda. They have no natural resources that we could possibly want” – and we were inclined to believe him.
3.2.7 Throughout the 1990s groups of militias and counter insurgents were spawned everywhere. The Rassemblement Congolais pour la democratie (RCD), the Mouvement pour le liberation du Congo (MLC), and the Mai-Mai all emerged in this climate. The instability and violence, particularly in the east of the county, was intensified by the exodus to DRC of 1.2 million predominantly Hutu refugees who had fled from during the genocide of 1994.
3.2.8 With impunity the perpetrators of the genocide used the cover of the camps to escape arrest. The Interahamwe militia used DRC as their base while they continued to mount incursions intoRwanda.
3.2.9 In 1999 a ceasefire was agreed. Intermittent fighting continued and it culminated in Kabila’s assassination in January 2001. His son, Joseph Kabila, assumed power.
3.2.10 Meanwhile,RwandaandUganda– former allies – fought each other for control of the strategically and commercially important city ofKisangani. 1400 Congolese civilians were left dead by the time the city fell to the Rwandans.
3.2.11 In 2002 President Kabila secured the withdrawal of the Ugandan troops from the Ituri district of theOrientaleProvince. Rwandan troops also withdrew from the east of the country (although around 10,000 Rwandan Hutu rebels – Forces democratiques de Liberations du Rwanda (FDLR) still roam the highlands ofSouth Kivu).
3.2.12 An agreement was made with the external parties involved in the conflict, accompanied by the creation of a coalition government of national unity (GNU). A National assembly – comprising 500 deputies and senators – was convened. A pledge was made to promote a new constitution and a promise of democratic elections for 2005. A rare window of opportunity for DRC had been opened.
3.3 An Impossible Task?
3.3.1 Kabila appeared to have been given an impossible task. Most observers believed the GNU’s life would be short-lived. The four vice presidents who were appointed to serve under Kabila each represent different parties to the conflict and seemed at best to be uneasy bedfellows and, at worse, belligerent parties who would only be interested in preserving their own position. It was suggested to us that this formula of “one plus four equals zero” but we saw encouraging signs that opposing factions have tried to make the process work. DRC is a fragile if no-longer a failed State and can best be characterised as “a situation that is not as bad as it could have been.”
3.3.2 DRC desperately needs peace. In a huge country of 2.3 million kilometres (about a quarter of the size of theU.S.) there is a population of 58.3 million – 65% of whom are` under the age of 25. Minister Bila told us that “only 3 million have a regular supply of drinking water and the same is true of electricity.” Life expectancy is put at 40.6 years; 1.3 million are living with HIV/AIDS, and infant mortality is 94.6 deaths for each 1,000 live births.35% of the people are illiterate. An estimated 3 million people have been displaced from their homes (accentuating urban drift and urban squalor). Inflation in 2001 peaked at 135% and bundles of Congolese Francs are still needed to buy basic things. Resources are virtually non existent for public services (the national budget is just $820 million). The social infrastructure is in a state of collapse.
3.3.3 We cite two examples, one a hospital and one a school. We visitedKinshasa GeneralHospital. Built in 1912, we were told that it had once been one of the finest hospitals inAfrica. With around 1700 beds it remains the biggest hospital \in the DRC. Dr.Diabeno Tombe, the hospital’s medical director, told us that the 160 doctors, 1,100 nurses and 1200 employees regularly go for months on end without remuneration: “This has led to us losing doctors to countries like Zimbabwe, Botswana and South Africa, because they have no salaries, no equipment and little else but disillusionment.”
3.3.4 Dr.Tombe said “patients have to pay on arrival and 4 out of 10 cannot pay. Sometimes people are removed from beds when there are not enough spaces or they cannot pay. Half the patients have HIV.”
3.3.5 He painted a grim picture, which we can confirm, of dedicated staff working in impossible conditions: “most of our equipment is useless, in our trauma service we have no artificial limbs; families have to bring in food to feed patients, or they would starve.” We saw what had once been the hospital’s kitchen – now an overgrown jungle, strewn with detritus and debris.
Two abandoned children at the Kinshasa general hospital. We later learnt that they had passed away.
3.3.6 In the premature baby unit there were nine incubators; most were occupied by tiny infants. Only two of the incubators were working, the others were no better than glass boxes. One of the babies, Mayamba – which means Welcome – had been born by Caesarean Section at 38 weeks gestation. Like her country, Mayamba’s situation was fragile and her future uncertain. We later learnt Dr.Jose Loumpze said, “We don’t even have nappies for the babies.”
3.3.7 The broken-backed facilities – a dearth of resuscitation equipment, malfunctioning aspirators, wholly inadequate equipment – is a stain on the reputation of the DRC’s government. Dr.Loumpze told us: “Yes, I feel anger and sadness to see the way the hospital was before and the way it is now. Every day children are losing their lives – lives that could have been saved. Officialdom is forever promising us improvements but seems paralysed and never delivers on its promises. They just don’t care about life. The big problem here is that no-one seems to respect the dignity of the human being.”
3.3.8 We were encouraged by two small signs of hope – one part of the hospital had been renovated thanks to a contribution from Shell and we learnt that the Knights of Malta and the hospital’s Catholic chaplaincy provide free medicines for many patients and pay for a medical team who attend the hospital each day.
3.3.9 If health provision inKinshasais minimal, it pales alongside the situation in the East of DRC. We heard from the co-ordinator of the (US) Presidential Emergency Fund for Aids Relief (PEFFAR), Colette Cunningham, of a medical worker who literally has to carry patients to her clinic on her back, and who has a complete dearth of medicines. She said that donors are reluctant to commit any funds because they simply believe it will be looted.
Orphaned schoolchildren attend classes.
3.3.10 In Kinshasa, we also visited a school, Mbenseke Futi, situated about 50 kilometres from the centre ofKinshasa. There are about 300 children in the school – including 50 street children, many of whom have lost parents during the conflict. Fernand Matabo, the headmaster, showed us decaying buildings, including a wing that had been storm damaged in 1991. The dangerous collapsed roof had never been repaired. The squalid kitchens had long since been abandoned and the children’s meals – usually nothing more than a pea broth – was being prepared in pots over an open fire. The dedicated teachers are unpaid and have to raise their own salaries by asking for donations from parents and there are few books and little equipment. We were especially moved by the school dispensary. Posters emphasised the importance of immunisation programmes but when we asked the elderly man who cared for the dispensary what drugs and medicines he had, he told us that he had nothing and simply pointed to a row of empty bottles. There was nothing to treat the malaria that affected all of the children – and the sleeping conditions, wooden slats in bunks placed in filthy dormitories, were an absolute disgrace.
3.3.11 Minister Bila told us, when we asked him, that this was not an untypical situation: “In our schools books don’t exist, parents have to pay and the buildings are in ruins.”
3.3.12 He was quite emphatic about the cause of the decaying hospitals and schools: “the real problem is the war. It has destroyed the infrastructure.”
3.3.13 It would be tempting for the outside world to see the DRC as an impossible situation. This was not our conclusion and we concur with the view of the All Party Parliamentary group on The Great Lakes Region and Genocide Prevention, expressed in their report “A Break in The Clouds”, October 2003, that there is “a moment of hope” in the DRC.
The roofless buildings of the orphanages.
3.3.14 If the hope is to become a reality and the catalyst for social change it will be because of the resolution of the conflicts that have scarred the face of the DRC. Only then will the exploitation of the country’s natural resources become a means of raising the standard of life of its people rather than a cause of fratricide.
3.3.15 The UN Security Council Panel of Experts have pin-pointed the continuing stripping of resources that are benefiting insurgents and outside interests (includingUKcompanies: cf Corporate Watch for examples) – not the people of DRC. Although ratifying and signing the Kimberley Process on blood diamonds and a Mining Code, these formularies are largely honoured in the breach and are unlikely to be enforced until security and the rule of law stabilise DRC. The pre-requisite for the long-term development of DRC is an end to conflict and the demobilisation of the competing marauding militias.
3.4 Demobilisation and the International Community
3.4.1 Despite the ceasefire and the shared power arrangements of 2002 and 2003, there are at least 200,000 men still under arms. And the violence is far from over. In May and June 2004 a battle ensued for control of Bukavu, the capital of South Kivu (DRC’s province abuttingRwanda). The renegades – the RCD, who were backed byRwandaduring the earlier war and who have been opposed to reunification – were doubtless encouraged by the military supportRwandais known to have given to several Kivu militias at the end of 2003.
3.4.2 The International Crisis Group (ICG) said in July 2004 thatRwanda“gave some of its old allies the belief that they could maintain the status quo.Kigalihas given the impression that the restoration of effective Congolese sovereignty generally orKinshasa’s authority in the Kivus specifically is not in its interests. Rwanda’s governing elite has developed important commercial interests in theCongothat alone may be sufficient to motivate continuing involvement in its internal affairs.”
3.4.3 The DRC’s transitional government has been mandated to form an integrated national army and to demobilise and to reintegrate into civilian life those combatants who will not be taken into the national army. Simultaneously, the international community has been represented by the UN Mission for the Congo (MONUC), and it has deployed peace-keeping troops inCongo(4800 deployed in Ituri).
3.4.4 In September 2003 the Security Council, in Resolution 1493, gave Chapter VII powers (“all possible means”) to the UN force in Ituri. This followed fighting in Ituri’s capital, Bunia, including the massacre of patients in a hospital. The same powers do not obtain elsewhere and the failure to forestall the unrest in the Kivu provinces has been blamed on MONUC’s apparent impotence, inadequate mandate and manpower and confused strategy. We also heard disturbing allegations about the behaviour of MONUC soldiers towards the civilian population, especially in relation to the sexual exploitation of young women and children.
Street children in Kinshasa
3.4.5 The ICG commented that MONUC’s shortcomings, which were evident during the Bukavu crisis, need to be overcome, and it must implement its mandate more assertively.” About 10,000 militia remain at large in the Kivus.
3.4.6 The criticism of MONUC was shared by members ofKinshasa’s diplomatic community who told us that “there are significant gaps” and an urgent need to strengthen capability and manpower. Some of the militias remain larger than the UN force and the different terms of reference within the mandate is a recipe for confusion and paralysis.
3.4.7 When we put the criticism of the ICG to Peter Swarbrick – who deals with demobilisation issues for MONUC, he warned that an over-assertive approach could lead to years of fighting against militias who would use the jungles and hostile terrain to their own advantage. Having “picked up all the low hanging fruit” he said that the fighters who remained to be disarmed were particularly “hard men who thrive in abnormal conditions.Rwandahas exported their genocide into theCongo. Just how are we supposed to tell the difference between the competing combatants?” He believed that the key to disarmament lies in normalisation.
3.4.8 We were told by a MONUC representative that normalisation is being impeded because “Rwandais not playing straight. They don’t believe that a resolution of this conflict is in their interests. But they are wrong. A stable DRC is in their interests.” It was put to us thatRwandaacts both covertly and overtly to cause instability.
3.4.9 About 6,000 men have been sent back to Rwanda thus far (about half of whom were combatants) but we were told that the most reluctant to return are those who would face genocide charges in Rwanda and that they had every personal interest in fighting on to avoid the inevitable jail sentences that would await them. We were told that about 5-15% of the militias at large in the Kivus are “serious criminals.” The MONUC representative told us that he believed “a climate of confidence and security will make them wither away. Pinstripe suits, not guns, will giveRwanda access to all the assets they want – not this futile war in which hundreds of thousands have already died and hundreds of thousands more will die unless it is permanently ended.”
3.4.10 During the course of our visit, the political crisis in the DRC was among the issues that dominated the 59th session of the United Nations General Assembly. On his return toKigali, the Rwandan Prime Minister, Bernard Makuza, said that the Security Council will set out clearer measures by which the Interahamwe militia and other rebels will be disarmed and returned toRwanda. He said that “The insecurity that is being caused by Interahamwe militias inCongo is comparable to the terrorism that is currently rocking the globe.”
3.4.11 He also confirmed that under the mediation of the UN Security CouncilRwandaand the DRC had signed a joint agreement aimed a wiping out the Interahamwe problem. He also claimed that MONUC was allied to the militias and that until the Security Council honoured its promise to investigate this alleged link it would not be possible to disarm successfully.
3.5 DRC and the International Community
Lord Alton and Raphael Mpanzu meet with Minister’s of the Christian Churches
3.5.1 No huge investment will be made in DRC until the conflicts and instability are seen to be resolved. Mark Bensberg, British Charge d’Affaires inKinshasa told us that without a legal framework for investment it is very difficult to persuade investors to engage commercially in the DRC. Risible levels of trade with theUK are indicative. In 2003 the tenth largest export to DRC from theUK was a second hand Mercedes. The bribes required by police officers at road blocks on the road to Kinshasa airport and the chaotic and anarchic arrangements at the airport itself would be totally unacceptable to legitimate western business interests but conducive to the corrupt. The Kinshasa Government could do worse than inviting the management ofNairobi’s Kenyatta airport to offer advice and they should prioritise the training of airport personnel and police officers on the main routes in and out of the city.
3.5.2 Corruption is not confined to DRC nationals. InRwanda, for instance, we heard allegations that, despite UN prohibitions, European companies (with, at best, the implicit connivance of some governments) are still selling weapons to parties involved in the conflict.
3.5.3 In this very complicated and difficult environment we were impressed by the high standing of theUnited Kingdomand the widespread belief in its probity and its enhanced commitment to the development of the country. We were impressed by the calibre of the British officials we met, their commitment to the country, and the clarity of their Engagement Plan.
3.5.4 Augustin Amisi Wa Lika and Rachel Brass, of the Department for International Development (DFID), outlined what is a new programme “aimed at supporting the peace and transition process” targeted particularly at vulnerable groups including displaced people “many of whom are women and children and child soldiers.” The DFID programme ranges from strategic macro-level interventions in Security Sector Reform, work for elections, support for the World Bank-led Multi-Country Demobilisation and Reintegration Programme (MDRP) of £25 million over 5 years.
3.5.5 We were pleased to learn of DFID’s decision to fund a peace and reconciliation programme throughout the Great Lakes countries, including DRC, which will be organised by the British Catholic Aid Agency, CAFOD and their international partner CARITAS. Christian Aid will receive £666,000 over 2 years to facilitate democratisation and human rights work in the Kivus. In addition, Christian Relief Network has been granted £697,000 over 3 years to provide relief assistance to 20,000 Rwandese Hutu refugees located in 8 transit camps in eastern DRC.
3.5.6 We agreed with DFID’s assessment that “faith based organisations have an important strategic role in the country as well as having influence at the local, micro and practical level.” DFID told us that “The Catholic Church in DRC is the organisation with the broadest reach down into the communities” and that “religious leaders have played a major role in promoting dialogue between the warring factions in promoting peace and bringing human rights violations onto the agenda.” We are also painfully aware that when the Church does not have such an appreciation it can remain silent and even a negative force.
3.5.7 DFID has also earmarked £5 million to assist with the election promised for 2005. Trish Hiddleston of UNICEF told us that DFID’s assistance had been pivotal in getting their programme for the demobilisation of child soldiers off the ground – “it saved us”, she said.
3.5.8 Beyond the diplomatic and NGO communities, the DRC’s ties with theUKhave been sparse and sporadic.
3.5.9 Minister Bila reflected that “far too few visitors come to DRC from theUK.” He was pleased that the All Party Parliamentary Group had visited and intended to return. We commented that it would be helpful for the Inter Parliamentary Union to strengthen ties with the National Assembly and to invite a Congolese delegation to visitWestminster. The IPU might also arrange a round-table discussion betweenDRC,UKand Rwandan representatives.
3.5.10 Patrick Merienne, Director of the NGO, Search for Common Ground, told us that there was a desperate need for civic education, formation of citizens, and in facilitating the rapprochement of conflicting groups.
4.0 DRC and Human Rights
4.1 Jubilee’s triple mandate of advocacy, conflict resolution and protection for children, led us to concentrate on these three areas.
4.2 DFID told us that “There is documented evidence of appalling human rights violations in the country including murder with impunity and sexual violence as a weapon of war. Human rights are violated in all spheres – economic, social political and cultural.” We particularly commend the reports by Human Rights Watch (January, 2004), “DRC: Confronting Impunity” and “DRC: War Crimes in Bukavu” (June 2004) and Amnesty International’s 2003 Report “DRC: On the Precipice – the deepening human rights and humanitarian crisis in Ituri.”
4.3 Among the gravest reports we heard was one from the UN who estimates that between October 2002 and February 2003 some 5,000 women had been raped inSouth Kivu– an average of 40 women each day. Many were raped by men with HIV/AIDS.
4.4 Combatants operate with total impunity. We heard of a combatant who broke into the home of Kavira Muraulu I Mangangu, near Beni,North Kivu. Kavira was raped. She reported the crime to the Governor. She was then attacked again by the alleged rapist and four other soldiers – who beat her and stabbed her with a bayonet.
4.5 We learnt that serial human rights abuses and violence, particularly in Bukavu, the wider Kivu region, Ituria andKatanga, continues to this day. These include abuses by pro-government forces.
4.6 For instance, we were told that following the violence in Bukavu in May 2004 , forces under the command of General Mbuza Mabe killed civilians of the minority Banyamulenge (Congolese whose ancestors migrated from Rwandaand Burundi) as a reprisal following the death of a soldier. Between May 26th and May 28th at least 15 civilians were killed. These included six university students, two of whom were student leaders. They were stripped, tied together and beaten to death. Their bodies were thown into shallow graves. Among the dead were Ruhimisha Mahirwe Manege, Mahoro Ngoma, and Mande Manege.
4.7 The UN High Commissioner for Refugees (UNHCR) subsequently estimated that 3,000 Banyamulenge fled toRwanda– many with gunshot, machete and knife wounds.
4.8 The militia if the Rally for Congolese Democracy – Goma (RCD-G), supported by Rwandaand loyal to Colonel Jules Mutebutsi and Brigadier General Laurent Nkunda responded with their own orgy of violence. For instance, in Bukavu their soldiers shot a fifty-five year old man in his home wile they looted and plundered it. On June 3rd six soldiers raped a mother and another raped her three-year-old daughter in the centre of the town – forcing her husband and other children to look on. They then looted their home.
4.9 This violence and the mutual recriminations between DRC andRwandaled to the closing of the border in June of this year.
4.10 We also heard of retaliation against those who report these events or who champion human rights. For instance, N’sii Luanda Shndwe spent nine months in prison as a prisoner of conscience at the Centre penitentiaire et de reeducation deKinshasa. He was never formally charged with a criminal offence but was detained because of human rights activism. He was released at the end of January 2004.
4.11 InKinshasawe met an impressive human rights lawyer, Amigo Ngonde, who is President of the African Association for the Defence of Human Rights. He told us that the Government of DRC had “signed and ratified all their UN obligations but has not acted upon them.” He said that “The justice system is not working – resources are not made available for salaries, the magistrates work in intolerable conditions and there is widespread corruption… we have been at war since 1996 and this has paralysed our justice system. So many crimes and so many criminals have never been punished. There is a culture of impunity.”
4.12 He pointed to the wholly inadequate judiciary, the need to train human rights lawyers and judges, and an international tribunal (as in the case ofBosnia), including some DRC magistrates, to properly investigate and try the perpetrators of the massacres and human rights violations.
Delegation meets with Mr. Ngonde
4.13 He asked why the international
community suffered from myopia when it came to theCongoand why there is no universal applicability of the rights of man.
4.14 Mr.Ngonde is involved in promoting human rights information through the country’s churches and is developing programmes in schools, teaching duties, responsibilities, rights and obligations. He passionately believes that “without justice the conditions necessary for reconciliation and harmony cannot be satisfied. There has to be an honest facing up to the past. When members of the Truth and Reconciliation Commission (established in 2002) have themselves been accused of human rights abuses, it is difficult to see how it can do good work. They will be partie prie. If it is compromised, it cannot facilitate reconciliation. Nor should its existence prevent the administration of justice.”
4.15 We discussed the parallel withSouth Africaand Mr.Ngonde reflected: “Congodoesn’t have a Mandela. He gave inspiration. Here, we have more than 3 million dead and the killing is still going on. To end this we will have to do without a Mandela but we cannot do without a legal system. The instigators and perpetrators must be brought to account.” These were observations with which we profoundly in agreement.
5.0 DRC and its Children
5.1 One of Jubilee’s central concerns is the children who become caught up in conflict. In the case of DRC we are especially concerned about the use of child soldiers and about the plight of street children.
5.2 Two thirds of the population of DRC is under the age of 25. UNICEF told us that in broad terms about 30,000 children are under arms and comprise about 10% of the armed groups: despite the demobilisation programme “both recruitment and re-recruitment is continuing.” Children as young as seven carry arms – and we cannot adequately emphasise the importance of ending the traffic in small arms from neighbouring states (in breach of UN Security Council Resolution 1493).
5.3 Amnesty International reported in December 2003 that “all armed forces in the DRC” had used children as soldiers. In the east of the country children have comprised as much as 40% of the militias. Some were sent into combat, some were used as sex slaves. According to Amnesty, “some were forced to kill their own families; others were made to engage in cannibalistic or sexual acts with enemy corpses. Girl soldiers were raped and some died as a result.” Sexual violence has often been accompanied by subsequent HIV/Aids.
5.4 In January 2004 Human Rights Watch confirmed these reports: “All groups have recruited children, some as young as seven years old, for military service, subjecting the children to the risks and trauma of military operations.
5.5 We heard from UNICEF that as well as being used as combatants, children have routinely been used to clean and carry guns and to collect and prepare food and camps for combatants.
Brother and Sister, some of many children affected by the violence of the Congo
5.6 UNICEF told us that there has been a very small drift of children out of the militias. Sometimes commanders refuse to let them go but many children joined of their own volition – some enjoying the degree of power that a gun gives them, others without families pleased to be given food and camaraderie. Others again were even sent by their families. Many of the children are not interested in demobilisation as they have nowhere else to go and are fearful that if they are returned to communities where their past is known they will face retribution.
5.7 UNICEF told us that a lack of resources is also hampering the demobilisation of children but that the transitional government of DRC has played a constructive and helpful role.
5.8 Domestic laws now prohibit the use of children but paradoxically the demobilisation of children could make them doubly vulnerable unless proper social and educational provision is made. Clearly, children in a school are less likely to be recruited and more likely to be given a protective framework. While teachers remain unpaid, and parents and children are expected to pay for education, this protective environment will remain out of reach for the 30,000 child soldiers of DRC. UNICEF told us that the main-line churches remain the best hope for making such provision. UNICEF has also called for the creation of “convergence zones” where demobilised child soldiers can be helped in properly resourced health and education centres.
5.9 If no provision is made it will undoubtedly accentuate the growing problem of drifting, rootless, children on the streets. Save The Children have initiated a programme to re-integrate children into foster families but, welcome though this is, UNICEF point out that there is no tradition of fostering outside of extended families.
5.10 In the capital,Kinshasa, it is estimated that there are now some 20,000 children on the streets. We met and talked to some of them.
5.11 Like most children of their age they dream of becoming Beckham or Ronaldo. Poignantly, Yvec, aged 14 said “I would just like the same opportunities as other children, but I don’t even have a
football.” Nsimba, aged 13, saw her parents and her twin die. She now cares for her 3-year-old sister, Octavia. She didn’t want to talk about the things that have happened to her on the streets.
Yvec, dreams of a football career
5.12 During our stay we also heard reports about the plight of street children in the East of DRC. 18 children were reported dead by the local media after an incident in a small diamond mining town, reportedly killed by “unofficial” diamond miners and the reason given was that “they had made a nuisance of themselves.”
5.13 One of our delegation, Raphael Mpanzu (RM), is Congolese. After the death of his parents he came to theUKas a refugee and has worked as the project co-ordinator for the refugee and homeless people’s project at Notre Dame de France inSoho.
5.14 RM has established the Jedidah Foundation (named for his six month old son) to help the street children ofKinshasa. The Revd.Dr.Anthony Harvey, another member of the Jubilee delegation – and a retired Canon and sub-Dean of Westminster Abbey, is the President of Jedidah. They have acquired a small, safe, compound in Kinshasa which will house 32 young people and they hope that this may become a model for similar small-scale initiatives that can be taken by voluntary organisations, parishes, groups of friends, companies or parishes who wish to respond to the acute needs and desperate plight of the children of the Congo.
5.15 In addition, we took evidence on the phenomenon of “witch children” cited in the All Party Parliamentary group’s report. Although witchcraft has always been practiced in theCongo, and deep superstitions remain ingrained in their lore, over the past decade a new and disturbing trend has emerged. In a climate of deep poverty families who cannot cope with the up-bringing of their children, or who have a child with behavioural problems or disabilities, declare the children to be witches or involved in sorcery. This is used as a pretext for abandoning their children to the streets.
5.16 The situation has been exacerbated by i) the collapse of many traditional extended families who would have taken in a related child; and ii) the emergence of myriad independent Christian groups which display many of the attributes of cults.
5.17 Trish Hiddleston, Director of UNICEF’s Child Protection Programme in DRC, told us that the linkage of sorcery with disability or behavioural problems was used by self-appointed pastors as a source of income generation. These “dodgy priests”, as she described them, acquire small buildings on main streets, and by holding dramatic “healing” services where they claim to have purged children of their “darkness” reinforce the popular belief that God is to blame for infirmity, disability, or maladjustment and that it is legitimate and even necessary for the good health of the rest of family to be rid of “witch children.” UNICEF estimates that inKinshasaalone there are between 20,000 and 30,000 street children and that 60- 80% of these are “witch children” accused of sorcery.
5.18 AtKinshasageneral Hospital we saw a baby of two months, Mukranda, born with withered hands, and who had been abandoned at the hospital by the girl’s mother when she saw her disability, believing this to be a sign from God. We also visited a shelter for street children inKinshasawhere the only provision was a place to sleep overnight. Most children worked the streets by day in order to get money for food.
Mukrunda, abandoned by her Mother because of her deformed hands.
5.19 We were re-assured to be told that Government Ministers have begun to speak out about the phenomenon of “witch children” and we were assured by Simon Kimbangu Kiangani, the spiritual leader of the Kimbanguist church (founded in 1921 as a national Protestant church, highly influential and accounting for about 10% of the DRC population) that this is an issue he takes very seriously.
5.20 The Vicar general of the Archdiocese of Kinshasa (all the other Bishops being ill or absent) told us the view of the Catholic church which is carefully nuanced. Each case must be examined: there are instances of strange phenomena – a child speaking with the voice of an old man or in a foreign language for example. The causes may be imaginary or psychic or (in a very small number of cases) genuine possession, in which case a church service of prayer may be appropriate. Different churches have different approaches, which makes an ecumenical response to the problem difficult. But all churches, other than the small ones who are exploiting the situation by selling ‘exorcisms’, recognise the gravity of the problem and seek to combat it in their teaching.
6.0.1 Our recommendations fall into the three areas of our mandate: Conflict, Advocacy, Children.
6.1.1. The international community must use its leverage withRwandato end all military involvement in theCongoand to actively collaborate with the DRC and MONUC in disarming the militias.
6.1.2. Western governments should urgently hunt down and prosecute arms dealers and those giving assistance and training, or benefiting from involvement inCongo’s
6.1.3. MONUC’s mandate, capacity and effectiveness (as evidenced by its impotence in the events in Bakuvu in June last) are all in serious doubt and should be radically re-assessed.
6.1.4. The DRC’s unified army and the former rebel groups such as RCD-Goma must exercise more stringent control and discipline over their soldiers, hold them to account when accused of abuses, and accelerate the disarmament process and creation of an integrated professional national army.
6.2.1 The DRC must entrench the rule of law, hold to account those who have committed crimes against humanity and war crimes, with special regard to the use of rape as a weapon of war.
Canon Harvey speaks to the Congolese about the need for ecumenical efforts in combating the culture of child-sorcery
6.2.2 The DRC should allow proper debate about the transparency of bodies such as the Truth and Reconciliation Commission, seek assistance from the international community in the training of more judges and magistrates and police officers.
6.2.3 Human rights advocacy should not be seen as a threat but as a vital component in the upholding of the rule of law, human dignity and the sanctity of human life.
6.2.4 The central role of the churches as a lynch-pin in building civil society, in educating for citizenship, democracy and human rights, and in working for reconciliation should be further encouraged.
6.3.1. UNICEF’s work in demobilising child soldiers continues to be the highest priority and donor countries should remain committed to demobilisation and the creation of convergence centres where children can be helped to make the transition back into normal living.
6.3.2. The international community and DRC should urgently reassess their pitiful support of the DRC’s schools and paediatric facilities. Special attention should be paid to the removal of prohibitive school fees, the non-payment of salaries, the condition of buildings and provision of resources.
6.3.3. Those churches that have been capitalised on or encouraged a belief in “witch children” should be openly challenged by DRC government ministers, main-line church leaders, and the overseas churches that often support them.
6.3.4. An urgent co-ordinated, regulated strategy for the creation of child-headed households, shelters and opportunities for the children of the streets should be agreed between the government of DRC, the donor community and NGOs.
Lord Alton thanks a family for their warm hospitality
7.1 Our delegation was enormously impressed by the hospitality and warmth of the Congolese people. We marvelled at their capacity to endure colossal suffering and pain. We were shocked by the scale of what they have had to endure and staggered by years of indifference by the international community. But we saw signs of hope in theCongo and believe that the transitional government remains the country’s best hope. As DRC approaches free elections there is a moment of opportunity. If this moment is not seizedCongo could drift back into brutal anarchy with horrendous consequences for its people and its neighbours.
8.0 Contact Information
Tel 00 44 1483 894 787 Fax 00 44 1483 894 797 http://www.jubileeaction.co.uk
The Killing Continues – The Legacy of the Rwandan Genocide
1.1 Between Sept 26th to Oct 1st 2004, a Jubilee Action delegation including Lord Alton, and journalist Becky Tinsley travelled toRwanda.
Jubilee Action delegation with President Kagame
1.2 The purpose of the trip was to gain a fuller understanding of the cause and legacy of the 1994 genocide, to visit sites where an estimated 800,000 people were killed over a period of 100 days and to assess the prospects forRwanda’s future. We listened to the testimony of survivors, and visited projects for widows, abandoned children, orphans and people with HIV/AIDS. We also met NGOs, leaders of civic society, religious leaders and politicians to discuss the process of achieving reconciliation and justice, and rebuilding the nation. We learnt more about the residual problems in the neighbouring Democratic Republic of Congo where genocidal militias remain in exile with dire consequences for all concerned.
2.0 Narrative and History
2.1 AsRwanda’s colonial power, the Belgians instituted identity cards classifying most of the population as either Hutu, who made up the majority, or as Tutsi. After independence in 1962Rwandawas ruled by Hutu-dominated governments, including a period of one-party rule under the Hutu President Habyarimana between 1972 and 1994. During this time the Tutsi minority (making up 15%) were excluded from power, denied university education, and restricted to a few professions like teaching and nursing. Consequently many Tutsi became businessmen, and comprised a large part ofRwanda’s middle class.
2.2 Discrimination and ethnic hatred resulted in widespread massacres of Tutsi in 1959 after which many Tutsi went into exile, particularly inUganda. Further violence followed, and as a reaction some Tutsi inUganda, including the current President, Paul Kagame, formed the Rwanda Patriotic Front (RPF) and its armed wing, the Rwandan Patriotic Army (RPA).
2.2 The RPA invadedRwandain 1990 but were halted by the Forces Armee Rwandaises (FAR). Unrest and dissatisfaction continued, and in April 1994 President Habyarimana signed a power-sharing agreement in Arusha, but on his way back fromTanzaniahis plane was shot down.
2.3 This event is widely understood to have been the pre-arranged signal the Hutu militia, the Interahamwe, had been waiting for: roadblocks went up across the nation, and the systematic and coordinated killing of Tutsi and moderate Hutu began. It is thought 100,000 Interahamwe spearheaded the genocide, supported by Hutu peasants who had been indoctrinated with ethnic hate propaganda against their neighbours. Between 800,000 and a million people were murdered, and it is believed at least 200,000 Tutsi women were raped.
2.4 From their base inUgandathe RPA invaded and reachedKigaliby July, fighting off a coalition of FAR, Interahamwe and supporting Zairean troops who retreated intoZaire. Since 1994 they have used their bases in exile to menace local ethnic Tutsi in what is now the Democratic Republic of Congo (DRC), as well as Tutsi inRwandaandBurundi. Their presence in eastern DRC has also contributed to the continuing violence and massive bloodshed there (see previous Jubilee Action report on DRC).
2.5 Meanwhile, in 1994, a government of national unity was formed with Pasteur Bizimungu, a Hutu, as president, and Paul Kagame, the Tutsi commander of the RPA, as his deputy. In effect the RPF have since dominated Rwandan government and institutions, and when Bizimungu resigned in 2000 Kagame became president. He was later sentenced to 15 years in prison by the Kagame Government on allegations of inciting genocide.
2.6 In late 1996 the RPA backed a rebellion in eastern DRC (then still calledZaire) which destroyed the Hutu/Interahamwe/ex-FAR refugee camps, and precipitated the downfall of Mobutu Sese Seko. A million refugees returned toRwanda, but many ‘genocidaires’, as they are known, escaped. They remained in easternZairefrom which they continued to attack northwestRwanda.
2.7 In 1998RwandaandUgandatogether backed rebel militia in DRC ostensibly to eliminate the Interahamwe/ex-FAR. They defeated the combined forces ofZimbabwe,Chad,AngolaandNamibiawho were supporting DRC, leading to a stand-off with Mobuto’s successor Laurent Kabila. By the time a ceasefire was signed inLusakain autumn 1999 the rebels had taken large parts of the north and east, at the cost of millions of civilian lives. A further agreement, brokered bySouth Africa, was needed in 2002 before Rwandan forces began to withdraw from DRC.
David Alton pays his respects at the Murambi Genocide site
2.8Rwanda continues to have interests in the vast mineral wealth of eastern DRC, and it is accused of using local militias to impose their will in the area and to fight against remaining Interahamwe/ex-FAR groups who are believed to number about 8,000. EquallyRwanda accuses DRC of arming and supporting Interahamwe/ex-FAR militia and their allies who have been killing and terrorising the ethnic Tutsi population in eastern DRC. We used most of our one hour meeting with President Kagame to raise Rwanda’s continuing conflict with the DRC.
2.9 The Rwandan economy is based almost completely on agriculture (coffee, sugar cane, bananas) of which the majority is peasant subsistence farming. It lacks the huge mineral wealth of neighbouring DRC, or an industrial base. It currently imports goods it could be manufacturing for itself, and there is potential to develop a more value-added agricultural export business, given effort and imagination.
2.10Rwandasuffers from deforestation (another consequence of the war) and soil erosion. Its economy is vulnerable to both world commodity prices, and the cost of oil. The continuing violence in DRC restricts regional trade and discourages inward investment.
3.0 The Consequences of Genocide: Political Freedom and Human Rights in Rwanda
3.1 The Rwandan Government is currently struggling to strike a balance between allowing free speech, and defeating once and for all the genocidal ideology responsible for inspiring millions of people to participate in the murder, betrayal, and looting of their fellow Rwandans.
3.2 Everyday, in every encounter we had, we were reminded that people have good reason to be apprehensive to the point of paranoia about allowing people to make derogatory comments about the ethnic minority Tutsis, or to deny the genocide occurred. We are also sensitive to fears that the exiled Interahamwe and ex-FAR wish to destabilise the country by force. We met many people who either fear for their lives, or are receiving threats, or have actually been attacked by those who believe their testimony will put them in prison. We took evidence of genocidaires released under the Gacaca and returning to their communities to commit revenge attacks on those who testified against them. 30 Tutsi survivors were reported to have been killed in June 2004 in Butare.
3.3 The aspiration of the Government, recited by all and sundry in positions of power and by many NGOs, is that the Gacaca system will bring about justice and reconciliation, given time. We were constantly told that the future lies in all people regarding themselves as Rwandans first, and Hutu and Tutsi second. Although we agree with the importance of national identity, history suggests that trying to wish away ethnic awareness is futile and counter-productive. You can remove ethnic identity from ID cards (good) but not from memory. Co-existence , mutual respect and power sharing would be a more productive course.
3.4 There has been criticism of the dominant role taken by the Tutsi minority in government, the army and throughout society. We would question whether the Hutu majority has a big enough stake in Rwanda’s future, and if there is a role for power-sharing structures, and confidence building measures to bring about reconciliation through practical, everyday cooperation in rebuilding Rwanda. Although acutely conscious thatBritainfailed the Rwandan people in 1994, we suggest that we might now make a small contribution by sharing our experiences of building cross-community institutions inNorthern Ireland(see: recommendations).
3.5 Human Rights Watch recently catalogued its concerns about the suppression of the free press, the imprisonment or exile of political opposition figures, and the 96% (sic) President Kagame received in recent elections. Our impressions, from speaking to people as varied as 14 year old rape victims, Hutu genocidaire prisoners, town mayors, social workers, and government ministers, was that the Kagame administration is determined to silence criticism or divergence from the agreed path forwards. One local health worker in Butare claimed that political dissidents are first warned and then imprisoned for criticising the government.
Category 1 prisoners in Nyanza prison responsible for the worst acts of genocide in 1994
3.6 A vital element in this strategy is eliciting confessions of guilt from prisoners, and encouraging them to provide information on who planned the genocide, in exchange for their freedom: the Gacaca process. In every province, citizens are being trained to chair Gacaca tribunals, to ensure victims are able to confront their attackers, and that witnesses can give testimony. Whilst the planners of the genocide and those who raped are considered category one prisoners, and do not qualify for parole, the rest have the chance to confess.
3.7 We visited Nyanza prison and watched in admiration as the country’s Prosecutor General, Jean de Dieu Mucyo, urged the five thousand genocidaires (male and female) gathered before him in the prison yard, to confess their guilt, submit to the Gacaca process, and go home to their families. Given his own personal loss during the genocide, his commitment to resolving the future of the prisoners was doubly impressive. On a practical levelRwandacannot afford to keep 70,000 genocidaires in prison indefinitely, and if they want to reconcile their shattered nation, we concluded there are worse ways to go about it than the Gacaca process.
3.8 Some doubts remain about the validity of the confessions from the point of view of the victims and survivors. The President of the Rwandan Survivors Fund (SURF) told us of her disappointment when she was able to confront the killer of her husband and children, only to find he felt no remorse. We also heard prisoners say they were under pressure from fellow Hutu not to confess or implicate genocidaires who have avoided punishment so far. Some less skilled Hutu freely admitted they preferred to stay behind bars where they were given three meals a day, rather than to face the economic hardships in the outside world.
3.9 Whether the Government will succeed in persuading the majority Hutu population that the genocide was wrong remains to be seen. Tutsi unease at the true intentions of their fellow Rwandans is understandable, given the undercurrent of genocide denial, and threats to witnesses and survivors. They are not allowed to keep weapons at home, but the tension within the community was apparent.
3.10 We note the importance of learning from experiences in the formerYugoslavia, where the International War Crimes Tribunal has been careful to hold each community to account for the atrocities perpetrated on each other. Croatian and Bosnian generals allegedly responsible for war crimes against Serbians have been arrested and put on trial atThe Hague.
3.11 Until 2003, Carla del Ponte was the Prosecutor for the International War Crimes Tribunal responsible for bothRwandaand the formerYugoslavia. She believes there was political pressure from the Rwandan Government for her removal because she was urging the investigation of the members of the RPA suspected of reprisal killings.
3.12 If this indicates a subjectivity or an unwillingness to accept that there was retaliatory violence on Hutu civilians, then this would not bode well for theRwanda’s future.
David Alton with the Prosecutor General – Mr Mucyo
3.13 Being even handed, and being seen to be even-handed, could be an important element in trying to assure one part of the community in Rwanda that even though the other part of the community bore the greater brunt of the horrors of genocide, they have not been absolved of atrocities they in turn committed, even if they were smaller in scale. We were struck by testimony from Hutus who suffered greatly in 1994 when up to 100,000 were killed by the RPA when they invaded the country. We also heard of mass reprisal killings in1996, and we believe that until these events are acknowledged openly and justice is delivered, the level of resentment in the Hutu community will severely damage attempts to unite and reconcile the nation.
3.14 We urge President Kagame to embrace the political benefits that could accrue from an admission that atrocities, reprisals, and large scale revenge killings were carried out by the RPA in 1994 and 1996. We were pleased to read an interview given by President Kagame to the BBC during the tenth anniversary commemorations in which he accepted RPA responsibility for killings of Hutu. We urge him to build upon this by bringing to justice those responsible for atrocities in 1994 and 1996, and so to assure the whole community of his government’s intention to apply justice evenly, irrespective of ethnic background.
3.15 We were concerned to learn that six well-respected NGOs who are the subject of a Parliamentary Report have had no opportunity to defend themselves against the extremely serious charges of inciting genocidal ideology. To accuse an organisation of using ‘divisionist’ language damages the credibility of the NGO concerned, and the rules of natural justice require there to be a transparent and fair means of examining the evidence and presenting a legal defence.
3.16 In discussions with officials at the Commission for Human Rights, and with Jean de Dieu Mucyo, the Prosecutor General, we raised this issue, and urged them to allow a full and open judicial process, giving the NGOs concerned the right to defend themselves. Officials were unwilling to explain exactly what the individuals at the NGOs are alleged to have said or done, and we remain concerned that well-intentioned NGOs or other groups in civil society will be subject to harsh and arbitrary punitive measures. We hopeRwandawill study the ways in whichBritainis currently legislating against the incitement to racial and religious hatred. We also trust that reference to our anti-discrimination laws, evolved and refined over decades, might be of some use. We were also concerned that if every criticism of the government were to be labelled as inciting genocide, it would devalue the use of the word and minimise the enormity of what actually took place.
3.17 Similarly, we are alarmed by reports from Human Rights Watch about opposition politicians, who have not previously promoted ethnically divisive views, now being accused of ‘divisionism’. The most startling example of this is the former president ofRwanda, who is in prison awaiting Gacaca, although he was a military supporter of President Kagame during the Genocide. We have also heard of other long-standing members of the RPF and RPA, who faithfully served their cause throughout the years of struggle, and whose credibility has suddenly been challenged, and who are now accused of promoting genocidal ideology.
3.18 Human Rights Watch has catalogued the cases of a number of democratic politicians who have expressed criticism of the Government, and who are now in exile, fearing for their safety and liberty. HRW also questions the reported crackdown on press freedom, and the suppression of healthy, pluralist dissent.
3.19 We were told by the authorities that they come down on genocidal ideology swiftly and surely. While we are sensitive to the reasons why any ethnic slurs or genocidal denial must be firmly dealt with, we are concerned that genuine free speech may be sacrificed, and a system of informing and the censorship of well-intentioned political criticism and debate may arise as a consequence.
3.20 We are pleased there are now several independent radio stations inRwanda, but were dismayed to learn each station had been required to sign a commitment to avoid political subjects. We are acutely aware of the role played by the media in disseminating hate ideology and propaganda during the genocide. For the future, we hopeRwandawill gradually appreciate the benefits of allowing free speech within a framework of legal guarantees for the respect of minority rights, human rights, anti-discrimination and mutual tolerance.
3.21 As friends and admirers of Rwanda we hope our concerns about the slide towards repressing free speech will be taken as they are meant: constructively. We are hugely impressed by the way in whichRwandais being reconstructed, by the lack of corruption, and by the efficiency of the Government which is an example to all in the region. We share the Government’s aspirations to pull all Rwandans together, emphasising what they share, rather than what divides them. But we are also concerned about the potential backlash from an overzealous rewriting of history, and from denying fair comment. From our meetings with politicians, religious leaders and activists acrossRwanda, we are confidentRwandais strong enough to allow full and informed national political debate.
3.22 In Butare we were deeply impressed by the personal friendship and public leadership of the Catholic and Episcopal (Anglican) bishops, Bishop Msgr. Philippe Rukamba and Bishop Venuste Mutiganda. They are both involved in reconciliation and social projects. InKigaliwe visited the Catholic Cathedral, met with Protestant church leaders and talked with faith-led individuals and groups about a whole host of impressive initiatives.
3.23 As mentioned above, we met Antoine Rutayisire of African Enterprise whose book, “Faith Under Fire”, details the stories of individual Christians who resisted the genocide. We heard of pastors who lost their lives , and of a group of nuns who refused to abandon the children in their care, and were brutally murdered.
3.24 Antoine Rutayisire is involved in a coalition seeking to encourage Christian dialogue and engagement. He also told us that “the position of the church is very complex: it has taken many different positions and reconciliation is not a popular concept. It often sits on the fence.”
3.25 It is also clear that during the genocide individual pastors, priests, and Christian leaders either collaborated in the killing or failed to speak out prophetically against the slaughter.
3.26 Fatuma Ndagije, Executive Secretary of the National Unity and Reconciliation Commission, alleged that the deceased Catholic Archbishop, Nsengungiyuva, had been involved in planning the Hutu attacks on the Tutsis. At Nyanza Prison we talked to one of two Episcopal priests who are prisoners, Musominali Paulin, who was accused by a parishioner of betraying her husband. He has been waiting for seven years to be tried for a charge he strenuously denies. He told us that at Nyanza there is a Baptist pastor, and two Seventh Day Adventist pastors, and that a Catholic priest had been in the prison, but under the Gacaca system he had been released (and is back in his post in his parish). Musominali raised an interesting aspect of Gacaca when he said, “some confess to things they have not done in order to secure release. Why should a man confess to a crime he did not commit?”
Murambi Genocide site in South-West Rwanda
3.27 Notwithstanding individual acts of bravery during the genocide, the failure of the church to be more outspoken is partly to do with the over-identification of individual denominations with one ethnic group of the other, and the failure to inform individual believers and parishes/fellowships in the duties that go with Christian citizenship. In facing the future the church must learn hard lessons from this experience.
3.28 Our visit to the Murambi Genocide Site in the south west ofRwandaserved to remind us of the hellish reality ofRwanda’s recent past. Murambi was a technical college, to which children from a nearby orphanage, went there to take shelter. They believed the French garrison there would protect them. Instead, so we were told, the French soldiers stood by and watched as the Interahamwe hunted down local Tutsis, as they are reported to have done throughout the country, delivering them to what became the mass graves of Murambi.
3.29 Fifty six thousand bodies were found there, and we walked from classroom to classroom, viewing 852 remains that have been disinterred. Within a few days of the massacre, a volleyball court had been built on top of one of the mass graves which, we were told, the French then used in their leisure time. We saw the site of where the French raised their flag while the killings proceeded without impediment. Meanwhile, at the UN, French diplomats were working in concert with Secretary General Boutros Ghali (cf family connections) to withhold any information about the genocide from the Security Council as it occurred.
3.30 The French position was unquestioningly supported byBritain’s representative to the UN and in the House of Commons by the Foreign Secretary at the time.
3.31 France’s role in allegedly training FAR, and supplying them with satellite telephones with which to coordinate the killing from community to community, deserves special mention, but equally we were constantly aware on our trip around Rwanda that Britain’s record in 1994 is nothing to be proud of. However, while theUKis now the biggest donor toRwanda(£37m in 2003-4),Francehas given very little, has refused to examine its role in the run up to the genocide and during it, and denies any moral responsibility. We agree with President Clinton’s reflection that the failure to act in theRwandagenocide was ‘the greatest regret of my Presidency’ – a view shared by the British Aid Minister of the time, Baroness Chalker.
4.0 The Consequences of Genocide: HIVAIDS
4.1 “We are a generation in transition, carrying the wounds of the past, and trying to shape the future.” (Antoine Rutayisire)
4.2 With every personal connection we made inRwandawe were reminded that the consequences of the 1994 genocide are still making a profound mark on almost all aspects of life. There is great continuing hardship for widows who survived the war, in particular those who were raped and are now HIV positive. However, because of the genocide women inRwandaare more aware of HIV/AIDS than elsewhere in the region, and we trust this will assist the spread of awareness about the need for testing. In many respects, the fatalities of HIV/AIDS represent a continuing genocide inRwanda.
4.3 There are 260,000 orphans inRwanda, of whom 65,000 are HIV positive, and the President’s office told us they classify one million children as vulnerable. Given that the total population ofRwandais eight million, it is clear the country faces an enormous challenge. Every year, 40,000 children are born to HIV-infected mothers.
4.4 Of the 100,000 Rwandans who need HIV treatment, only 4,000 are currently receiving anti-retro viral (ARV) medicines. Disgracefully the international community decided to prioritise the treatment of HIV positive prisoners, most of whom participated in the genocide, as their victims died of AIDS or struggled to survive, the perpetrators of the genocide received three meals a day and ARV. This perverse situation was compounded by the knowledge that those who could testify against them would die before they could go to trial. This grotesque iniquity is finally being corrected, and the President’s office told us they hope to have virtually everyone who needs treatment receiving ARVs within five years. However there are only 274 doctors serving a population of eight million inRwanda, and we applaud efforts to train survivors and victims to administer home-based care.
4.5 In our meeting with the Minister for Health for HIV, Dr Innocent Nyaruharira, we agreed that a campaign to help school children become AIDS-aware would provide a great opportunity to explain that in the case of consenting sex, AIDS is 100% preventable but 100% fatal. We gave the Minister to “Towards an Aids-free generation”, a primary school level book produced inAfrica. It was agreed this book would be highly appropriate for distribution to every pupil inRwanda. We also gave the Minister a copy of the secondary school level book, “Aids and You” with the same purpose in mind.
4.6 We also met Colette Cunningham of World Relief who is responsible for delivering World Relief’s portion of theUSPresident’s Emergency Plan for AIDS Relief (PEPFAR). Colette told us that ‘for once, thanks to theUS, there is money. It will change the face of AIDS inAfrica.’
5.0 The Consequences of Genocide: Orphans
5.1 Forty per cent of all 10-14 year olds inRwandaare orphans. 26% of all children inRwandaare orphans and the UN forecasts this will rise to 32% in 2005. There are 6000 child-headed households inKigalialone. The Rwandan Government is encouraging a policy of allowing extended orphan families to live together and manage their own lives, with modest financial support, rather than putting children in orphanages. Many live a hand-to-mouth existence, and are burdened with remarkable responsibilities at a young age, but we were impressed by how optimistic and ambitious the children we met were.
Two orphans at Kabuga
5.2 We spoke to children as young as 14 who were running households of four or five, at the same time as attending school, earning money to support their families, and coping with the legacy of having lost their parents either to AIDS or the genocide.
We visited thePeaceVillage, just outsideKigali, where 52 children live in a community of ten simple but well-built homes. Gratien Gatete, age 24, told us his “mission” was to have a career in which he could create jobs for as many people as possible. During the genocide Gratien’s life was saved by a Hutu man who recognised him and told the Interahamwe he was his brother. The man hid Gratien and five other people for days until he could escape. Of Gratien’s nine siblings, three survived. One of his sisters, Marie Rose, has saved when a Hutu priest rescued her and took her to a doctor: she had been cut with a machete twice on her head, and on her back and arms, and left for dead. The priest’s mother took the girl over the border into DRC, cared for her for two years and on her return re-united her with her brother. Gratien now lives with his surviving siblings and cousins, and they help each other to solve daily problems and to make sense of their experiences, he said. “We have formed a community, and we stick together”.
5.3 Gratien spoke for many we met when he told us he was glad the truth was finally coming out through the Gacaca system of local truth and reconciliation trials. “At least now I know where my parents were killed, and where they are buried.” However it disturbs him to see his brother’s killer on the streets, and wishes the ‘genocidaires’ were still in prison. (Under the Gacaca system, prisoners who confess before village trials are released from prison, unless they are the highest category of killer who planned the genocide or committed rape).
5.4 When we met Jean-Pierre Kanyandekwe at his home in thePeaceVillagehe was still badly bruised from a beating the previous week. He feared his mugging was part of a pattern of attacks on Tutsi survivors who know the identities of genocidaires and might therefore testify against them at Gacaca hearings. The shy, thin 26 year old told us he had faith that the rule of law would deter wide scale reprisals, but, as he said, “We live together in our country but we don’t love each other.”
5.5 Jean-Pierre was 13 during the genocide. He escaped by carrying a sack of cooking charcoal on his back for miles, past Interahamwe checkpoints, pretending to be a trader heading for Burundi. Jean-Pierre does not know who killed his parents, but he understands that the man who killed his brother is in prison, waiting to be released. “He confessed at Gacaca, and he told them how and where he killed my brother, but he did not apologise or ask for forgiveness.”
5.6 Life has been particularly harsh for orphans like Jean-Pierre who were between the ages of 10 and 15 during the genocide because they had to quit school to care for their remaining young family members. Now they have no skills to sell, and cannot afford to go back to school to get an education. Jean-Pierre sells cabbages in the market, but when he was younger he had wanted to be a teacher.
5.7 At thePeaceVillagewe also met Gihozo Christian (aged 4) who is the first child in the village to be born to an orphan. Perhaps Gihozo represents new life for such a traumatised country.
5.8 Every person we met had their own traumatic story of bereavement. Nineteen year oldConstanceworks at a garage during the day to provide for her four siblings. At night she attends computer classes and hopes to one day have an information technology career.Constancewas nine at the time of the genocide, and she survived by hiding beneath the body of a dead boy. As she was escaping the militia, she came across the corpses of her father, aunt and two sisters, but she never found her mother’s body. Constance and her four siblings lived with another aunt after the war, but the aunt got married and the new husband beat the children and eventually threw them out. Constance had heard about the work of the Solace Ministries inKigaliand approached them for advice. They found her a house where she now lives with her family.
5.9Constanceis grateful for having a roof over her head, but she told us it was more important that she had dependable adults she could come to for support. She also finds it invaluable to discuss everyday problems with other child heads of households, although she insisted the most ‘healing’ benefit of her involvement with the Solace Ministry was finally being able to tell her story.
Constance was nine years old when she survived the genocide.
5.10 Another orphan survivor, John Bosco Gasangwa, from Butare, agreed. “After the genocide no one wanted to talk about what had happened, and we children went around with a huge pain in our hearts. For years I felt so depressed and despondent, and I didn’t know what the point of living was. Then I was able to talk to others who had experienced the same horrors, and it was amazingly healing.”
5.11 Although the Rwandan Government favours the creation of child-headed households, the scale of the orphan problem means there are still many orphanages, some of which cater for abandoned babies too. Despite the difficult circumstances at Reverend Ngondo’s Foundation inKigali, we were struck by the determination of the children to make the most of school and become professionals such as lawyers and doctors. Ngondo’s orphanage has 41 children, most of whom are genocide survivors or the offspring of people who have died of AIDS. A few of the children are HIV positive, and we were concerned that there appears to be no special provision in Rwanda for dealing with the medical problems of child AIDS sufferers, or their eventual demise. Although the other children at the orphanage are supportive of the ones with AIDS, we wondered how they were expected to cope with their medical needs.
5.12 There is currently only one hospice inRwandawith just 10 beds and no children’s hospice, something World Relief’s Colette Cunningham hopes to change in the future. However next year World Relief hopes to train church volunteers in palliative care and to support Home based palliative care with HBC kits and volunteer training. She explained that $28m from the PEPFAR has been allocated to the Community Based NGO partners inRwanda, one of which being World Relief. Initially the church, which is still greatly respected in Rwandan life, was reluctant to get involved in AIDS, but it has now committed itself to using its pivotal position in the community to ‘mobilise for life’. Increased financial assistance is being used to train pastors and volunteers in each province to identify orphans and vulnerable children and to make sure they are tested, given nutrition, support and treatment within the community. However Colette Cunningham warned us thatRwandahas a very young population, growing rapidly, and already 16% of the 20-24 age group are HIV positive.
5.13 Another challenge presented by the growing population, and the huge number of orphans, is in education. Before the war teaching was one of the few professions open to Tutsi, and they were wiped out en masse during the genocide. As a consequence there is a now a severe shortage of both educators and school places.Rwandarecently made primary education free for all, and classes of 30 suddenly became classes of 200.
5.14 Many people we spoke to expressed reservations about the quality of the state system. “If you pay $2 a year to go to the village school, what do you expect?” said one parent who prefers to make sacrifices to send her children to private schools. There are not enough places in state schools, so there is a large private sector. We were told a reasonable education would cost $200 a year, a huge sum, given that average earnings are $280 a year inRwanda.
5.15 Church groups running orphanages or supporting child headed households had no choice but to pay for their children to go privately, and to supply uniforms, books and transportation costs. This is a financial burden on already overstretched NGOs caring for orphans, and we hope the international community will earmark funds to enable the Rwandan Government to provide free education of orphans, a vulnerable group which, as has been mentioned, often selflessly put the needs of their extended families before their desire to go to school.
5.16 The Government ministers we met, such as Angelina Muganza, Minister of State for Public Service, Skills Development, Vocation training and Labour, were acutely aware of the need to skill their young people and encourage them away from the belief that they can work on the land as their parent’s generation had. “Educate the women and you educate the nation,” she said, describing initiatives to get girls to study science subjects in particular.
5.17 The United Nations estimates that 98% of children witnessed someone being killed during the genocide. We cannot begin to adequately evaluate the long term repercussions for both the survivors and those who perpetrated the murders. Ben Kayumba of Solace Ministries put it, “I used to look at every face I passed on the street or in a crowds and wonder if they had killed my family. It took me a long time to stop thinking everyone was evil.”
5.18 Antoine Rutayisire believes many young people are burdened by feelings of great anger that they have been unable to express, not least because others, particularly adults, have wanted to avoid the subject. Groups like Solace Ministries organises forums where survivors can give testimony, but generally there are very few arenas in which young people can confront the past, grieve or express their resentment.
5.19 “How are the children of the generation who committed the atrocities going to make sense of the behaviour of their parents?” Rutayisire wonders. “What are we going to do with children who were so brainwashed by propaganda that they killed their own mothers and desecrated their bodies?”
5.20 John Bosco Gasangwa is a survivor, now at university, who found it changed his life to meet with other orphans to talk about his experiences. He felt profoundly empty and alone until he heard what another boy his age went through. “This boy hid behind a fence when the Interahamwe came for his father. His father was a very tall man, and so the militia first cut off his legs, then cut him in half at the middle, and finally cut off his head. Then the boy watched as the same men attacked his pregnant mother and cut her open.”
5.21 InRwandaevery orphan has a similar horror story, but Rutayisire, who runs African Enterprise inRwanda, is optimistic, and believes young people are now growing up in a much less corrosive environment, without ethnic labels. “Now they may discriminate in private, but hopefully the next generation will put it behind them. We are a generation in transition, carrying the wounds of the past, and trying to shape the future.”
6.0 The Consequences of Genocide: Widows
6.1 The story of one woman we met represents the dire consequences of the genocide still being visited uponRwanda’s women. The past ten years of Bertrude Mukandigo’s life encapsulate all that has flowed from the 100 days of murder. On the day when the genocide reached her town ofGuro, Bertrude was raped by eight different men. On subsequent days she was raped again repeatedly by soldiers who tormented her as if returning and violating her were a game. She became pregnant and HIV positive as a result, and the baby she gave birth too was also HIV positive.
6.2 The men who raped her escaped across the border. One of them returned from the refugee camps in 1996, and when she passed him in the street he was initially afraid she would report him to the authorities. Due partly to the stigma attached to rape inRwandaand due to her decision to forgive her perpetrators, Bertrude told him he had nothing to fear.
Bertrude’s story encapsulated the plight of Rwanda’s widows.
6.3 She married a man who, it emerged was also HIV positive, and they had two children, one of whom has Downs Syndrome, and other of whom is HIV positive. Her husband has now died, leaving her with three children, and no extended family nearby. As if that were not bad enough, the man who raped her began to threaten her, fearing she would go to the Gacaca to denounce him. His threats have become more frequent and frightening, made worse for her by the knowledge that genocide survivors acrossRwanda are being hunted down and intimidated and in some cases killed.
6.4 An example of this intimidation is the story of one of Bertrude’s friends who was attacked and raped with a stick and who is still in hospital. Bertrude is terrified because she is receiving threatening letters, and wants to move to an area where she is among friends and feels safer. Sadly she lacks the money to relocate at will. When asked what the police were doing about the intimidation, she explained that in country areas there are too few police to respond. Jubilee Action has committed to raise the funds to re-house her, but we are acutely aware her plight is shared by many thousands of genocide survivors.
6.5 The Interahamwe systematically used rape as a weapon of war throughout the genocide period, knowing it would shame and humiliate their victims, particularly in a traditional society in which rape stigmatises the female victim. Human Rights Watch estimates that more than 200,000 women were raped in the course of the 100 days, and many more were made widows. The rate of HIV/AIDS among widows is twice the national average as a result of the genocidaires programme of ethnic extermination.
6.6 At Solace Ministries inKigaliwe attended a widows’ support meeting at which women listened to each others’ testimony about their experiences during the genocide, and the hardships since. Many had scars on their arms, heads and faces from machete cuts, and some were missing hands. Each had an extraordinary story: witnessing their husbands, siblings and children killed; hiding from the murderers who were often their neighbours and friends who had suddenly turned on them, calling them snakes and cockroaches; travelling across country to try to find refuge; and being raped by genocidaires. Since the killing stopped, some of them they have suffered from the stigma of rape; some have become HIV positive, infected by the men who raped them; most have had trouble finding somewhere to live and work; and all have struggled financially.
6.7 Another feature common to the widow’s lives is the difficulty in coming to terms with what they saw, and talking about their experiences. Solace provides a supportive forum for widows to come together, as well as practical help, training women in handicrafts such as soap-making, toy-making and weaving to help them generate income. They also have a bakery and a pineapple plantation producing 12,000 fruit a year currently, and aiming for 50,000 next year. In addition Solace has fields outsideKigaliin which they grow mushrooms, beans and sweet potatoes.
6.8 We met Patricia, a tall, elegant woman with a quick smile, who is the president of the community association of 35 widows in Kabuga. There the widows make soap and weave baskets to support themselves. They said they feel safer living together in the same community, and they were very aware of the threats to genocide survivors who witnessed killings and are potential witnesses at Gacaca hearings. As she said, “The devil of death is still operating in this region.”
6.9 Jean Gakwandi, who started Solace in 1995, recognised an enormous need for comforting and understanding, putting people in touch with deeply suppressed emotions. He now runs special camps for the most profoundly traumatised, and has found it is only with time that the widows are able to admit what had happened to them. Often it takes months or years before it emerges they were raped, and them Solace arranges HIV testing.
6.10 Those who test positive receive nutrition, and as much medical treatment as Solace can afford. Currently, 23 out of a total of 350 HIV positive widows are getting ARV, with 49 on the waiting list. They all attend twice monthly meetings to share their problems, fears and experiences of living with HIV or AIDS. The cost of treating people is falling, and will be further reduced due to Kenyan-produced generics, but the current $160 a month for ARV alone is a fortune in a country where the average annual income is $280.
6.11 Solace is also training widows to provide counselling and health education to other women in the same situation. In addition they have collected testimony, an activity we increasingly realised is vital to countering genocide-denial charges (see below: Human Rights). Solace make a point of integrating HIV positive sufferers with healthy women in each of their work and training areas, aiming to build support mechanisms for when they become ill and need help. They have found that HIV sufferers survive longer when they live and work with uninfected people, and healthy people in turn lose their fear of HIV and AIDS. Solace also has a home-based programme of support for AIDS sufferers. We were both moved and impressed by the work being done at Solace, and by the commitment, efficiency and humanity of Jean Gakwandi, Ben Kayumba and the others.
6.12 Women have a tough enough time inRwandabecause in their traditional role they carry the burden of working in the fields, walking miles twice a day to fetch water, raising the family and taking care of their house and husband. We were told on many occasions that women are not given enough say in whether or not they consent to sex or marriage or the use of condoms. In some areas custom has it that a widow can be claimed by the male relatives of her dead husband’s family and forced to marry one of them. There is also pressure on young girls to become sexually active at puberty, with little consideration given to their wishes. The fight against AIDS inRwandahas not been helped by hostile male attitudes to abstinence, monogamy and condoms, nor by a reluctance to discuss such previously taboo subjects.
6.13 Josephine Uwamariya of Health Unlimited runs a weekly radio soap opera, called Urunana (hand in hand) which is modelled on the Archers, in which social problems such as HIV/AIDS, rape and domestic violence are dramatised. It is a hugely popular programme – reaching 60% of the population – although men are known to confiscate the household radios in annoyance at its message.
Rwandan Warriors in Butare
6.14 A member of our delegation, Dr Richard Rowland of Judah Trust, has run AIDS awareness programmes acrossRwanda in which sensitive subjects are broached through drama. Despite these excellent initiatives, and the wholehearted commitment of the Rwandan Government to tackle AIDS, general ignorance and truculent male attitudes make it an uphill struggle at a grassroots level. It is very encouraging thatRwanda leads the world in female parliamentary representation (48%) and women government members (30%), and we trust and believe their influence is already being felt throughout society. This partnership of men and women will be required to re-shape attitudes and behaviour.
6.15 When we met President Kagame we asked him if he would spearhead a public information campaign to educate Rwandan men about HIV/AIDS and sexual health. Given the respect in which President is held across the country, we felt it could be invaluable to use his standing to get the message across. He agreed with this suggestion. He was also supportive of an initiative to put primary school books designed to teach children about HIV/AIDS in schools. Dr Richard Rowland gave him an example of the book produced and used inZimbabwetowards an AIDS-Free generation.
7.0 The Consequences of Genocide: the Democratic Republic of Congo
7.1 Another lasting and devastating consequence of the genocide is the ongoing violence in the Democratic Republic of Congo (see opening narrative). Our meeting with the Rwandan president was timely because Prime Minister Bernard Makusa had just signed an agreement with DRC’s President Kabila at the 59th session of the UN General Assembly inNew York.
7.2 When we met President Paul Kagame at his offices inKigali, we encouraged him to pursue and persist with his attempts to build a personal bridge to DRC’s President Joseph Kabila. We referred to the lessons ofNorthern Irelandpeace process, and urged him to put in place confidence building measures such as exchanging diplomatic representatives withKinshasa. He was receptive to attempts to establish and maintain dialogue with Kabila personally, and DRC, and we hope to propose a tri-partite Inter Parliamentary Union dialogue, bringing politicians from DRC andRwandatoBritain.
7.3 We also met the Hon. Evariste Kalisa, a member of the Rwandan Parliament who chairs the Human Rights Committee. He told us of the Amani Forum (the Great Lakes Parliamentary Forum on Peace) which he helped found in 1998. Based inNairobi, the Forum includesRwanda,Uganda,Tanzinia,Kenya,ZambiaandBurundi– but not yet DRC. President Kagame told us that he strongly welcomed such initiatives and said that the ideal way forward would be a bilateral DRC/Rwandan military force to deal with the militia and to assist DRC restore sovereignty over its territory. We were impressed by the President’s commitment to forging a personal and close working relationship with President Kabila.
7.4 Although we are acutely conscious theUKdid nothing to helpRwandawhen it needed it in 1994, President Kagame made it clear to us that he values the friendship and active help of theUnited Kingdom.
8.1.1Rwandadeserves the support of the international community in their concern for the rights of the ethnic Tutsi population in eastern DRC. We call upon the DRC (as we haveRwanda) to commit itself to stopping the flow of arms and support to militia within eastern DRC which continue to harass and kill the ethnic Tutsi population. We also call upon the international community to respond toRwanda’s concerns.
Specifically we urge theUKgovernment to use its role as a permanent member of the UN Security Council to demand the clarification of MONUC’s mandate in DRC. We call for a consistent mandate to be acted upon and publicised sufficiently to let the local population know what they can expect from UN peacekeepers.
8.1.2 We urgeRwandaand DRC to establish embassies in each other’s countries as soon as possible. We also urge them to begin a process of constructing confidence building measures and joint institutions between the two nations, their politicians, business leaders, civil society groups and churches. Moreover we urge the leadership of bothRwandaand DRC to develop the personal relationships from which so much reconciliation and practical progress can flow.
8.1.3 We welcome the Amani Forum initiative and hope the DRC will support it. We believe it provides a very helpful model of building multinational institutions which can further mutual understanding, air differences and lead to constructive engagement.
8.1.4 We commendRwandafor being the first nation to send peacekeeping troops toDarfur. We urge the Rwandan army to maintain its high levels of professionalism.
8.1.5 We commend the British Government for its overall support forRwanda, and for maintaining relationships between the two countries through regular ministerial visits. However we think it is vital for the Foreign Office to recognise the scale and impact on the region of the conflict in DRC, and therefore to visit DRC and establish equally strong ties.
8.1.6 Leading on from recommendation 5) above, we believeBritainis uniquely placed to act as an honest broker between DRC andRwanda. Just as an outsider, Senator George Mitchell, helped to make theNorthern Irelandpeace process work, so it may be thatBritaincould play a useful role in facilitating dialogue between DRC andRwanda. The British Government should commit itself to playing this role, recognising how interconnected so many of the region’s problems are.
8.2.1 We applaud the training of judges and court officers throughoutRwandato handle the huge backlog of Gacaca trials. We recognise the enormous strides that have been made in rebuilding the nation’s system of justice. We therefore urge the Rwandan Government to strive to protect the human rights of all its citizens through a legal system that is transparent and fair.
8.2.2 We urge the Human Rights Commission to establish and maintain a proper dialogue with human rights NGOs, recognising that an exchange of views can be invaluable for both sides, and thatRwanda’s friends around the world need to be reassured about the country’s commitment to democracy, human rights, and fostering an open society.
We also urge the Human Rights Commission to demonstrate its independence from government by questioning the suppression of constructive dissent and political opposition withinRwanda, and by pressing for the prosecution of those responsible for crimes against all parts of the community during and after the genocide.
We urge them to benefit from decades of trial and error inEuropeby examining existing European Union and British laws which guarantee human rights, and balance freedom of speech with the need to prevent ethnic hatred and discrimination.
8.2.3 We applaud the decision by the international community to provide funding to develop an infrastructure to provide HIV/AIDS treatment for women who were raped and infected during the genocide, however late it might be.
8.2.4 We commend President Kagame for agreeing to spearhead a public information campaign to educateRwanda’s men about HIV/AIDS and sexual health.
8.2.5 We applaud NGO’s such as World Relief for providing books appropriate for secondary schools.
8.2.6 We urge the Prosecutor General and the Ministry of Justice to bring to justice perpetrators of genocide from all parts of the community and to apply justice, and what is more, be seen to apply justice equally. We commend the work of the International War Crimes Tribunal in the formerYugoslaviain striving to hold to account members of all sections of the population who violated the human rights of others, and we believe their work should be of interest to the Rwandan Government in its attempts to bring true reconciliation toRwanda.
8.2.7 The central role of the church in promoting national cohesion, reconciliation, and a recognition of human dignity should both be recognised and encouraged. The courage of those who resisted the genocide should be celebrated and taught as an inspiration to others, and where the church failed, appropriate public admission should be made and lessons learnt.
As a priority, western churches should devote resources to helping the Rwandan church, and parish-to-parish, fellowship-fellowship relationships should be forged.
8.2.8 The Governor of Butare province told us that he would like to see Butare city to twin with a British city. Since an admirable proportion of the Rwandans we met are ardent supporters of Liverpool Football Club,Liverpoolwould make a good choice. Its association with Africa and its own suffering during World War II commend it but there are other obvious cities such asCoventry. The Foreign and Commonwealth Office might like to facilitate this request.
8.2.9 We commend the efforts by SURF and the Solace Ministries to compile an archive of testimony from genocide survivors, so long as they reflect the suffering and experiences of the whole community.
8.3.1 We encourage NGOs to actively promote African solutions toRwanda’s problems, pointing out African success stories and projects appropriate toRwanda. For instance we commend the Scripture Union of Zimbabwe’s primary school textbook, “Towards an Aids-free generation”. On women’s issues, we also urge that the success of projects run by African women should be a model for initiatives inRwanda. For instance we commend the work of Dr Phylista Onyango inNairobias a model to create self-help commercial initiatives.
8.3.2 We commend to Dfid the application of the women’s organisation MOGAR, whose President is Josephine Irene Uwarmariya of the proposed project to redress and prevent acts of sexual gender violence.
Child born inside Nyanza Prison
8.3.3 We applaud the Rwandan Government for making primary education free to all. We urge the international community to direct its resources to programmes aimed at providing free education, books and uniforms toRwanda’s orphans. We believe this would remove a great financial burden from overstretched NGOs and church groups struggling to provide for orphans.
8.3.4 We applaud the enthusiasm of the Rwandan Government for cultivating computer literacy. We urge the international community to focus its programmes on supporting and enhancing the teaching of information technology to both children and adults inRwanda.
8.3.5 We recognise that the genocide and the fast rate of population growth have placed great burdens on the Rwandan education system. The decision to make primary education free has meant that classes of 30 have grown to 200. We urge the international community to direct its aid at programmes for training many more teachers, retraining existing teachers, and enhancing the quality of education.
8.3.6 We recognise that the medical profession was decimated in the genocide and we urge the international community to prioritise programmes aimed at training new doctors and retraining existing medical professions to prepare for the challenges of a rapidly growing population, HIV/AIDS etc.
8.3.7 We recommend that World Relief incorporates the cost of printing “Towards an Aids-Free generation” into the current PEFFAR programme, so that every schoolchild inRwandamay receive a copy; and that the proposal for a children’s AIDS hospice inRwandaand the development of palliative care be made an urgent priority.
8.3.8 We welcome the Rwandan Government’s commitment to provide AIDS treatment to street children, and we will be recommending to Jubilee Action that they support the work of the Catholic and Episcopal Bishops of Butare in relation to their work with street children and commercial sex workers.
8.3.9 We recommend Jubilee Action responds practically to assist the orphans of genocide by supporting education, health, housing and IT projects; in addition should continue to promote dialogue internally inRwandaand externally in the DRC.
9.1 We re-iterate our enormous gratitude to our hosts and for their commitment in facilitating our visit and in patiently answering our inquiries.
9.2 We were visiting the country just after Rwandahad commemorated the 10th Anniversary of the genocide.
9.3 At many of the sites where the killings occurred, we saw the words “Never Again”.
David Alton with the first child of an orphan at the Peace Village
9.4 Rwandan people need to forgive one another, if the country is to be healed and enabled to move on, and if such shocking events are not to be repeated in a future bloodbath. ButRwanda should never be asked to simply “Forgive and Forget”. Rwanda does need to forgive but it must also remember. The international community also needs to remember.
9.5 If we learn nothing from our failure to prevent the deaths of 800,000 people – and from what we saw in DRC and later inDarfurthat seems to be the case – it truly will be unforgivable. It would also make a mockery of the cry of the dead that such crimes against humanity should never be allowed to happen again.
10.0 Contact Information
Tel 00 44 1483 894 787 Fax 00 44 1483 894 797 www.jubileeaction.co.uk
132AA: Before Clause 43, insert the following new Clause—
“Exception in respiratory (industrial disease or illness) cases
The changes made by sections 43, 45 and 46 of this Act do not apply in relation to proceedings which include a claim for damages for respiratory disease or illness (whether or not resulting in death) arising from industrial exposure to harmful substance.”
My Lords, in speaking to Amendment 132AA, I shall speak also to Amendments 136, 141 and 142, which relate to Clauses 43, 45 and 46. In speaking to them I return to the issue of mesothelioma and its victims, the question that I raised on 22 November at Second Reading, at some length in Committee on 30 January, and during Oral Questions on 29 February. At the outset, may I thank the Minister for his courtesy in meeting the noble Lord, Lord Avebury, and myself yesterday, and for listening so carefully to the arguments that we advanced to him?
Anyone who has ever contested a parliamentary by-election knows that it is the most special way of entering Parliament. It is something that I share with the noble Lord, Lord Avebury, and it is 50 years to the day since the noble Lord, Lord Avebury, entered the political lexicon as Orpington Man. Over the many years that have passed since then I have always found myself wanting to be on the same side of the argument as the noble Lord, Lord Avebury, and nothing gives me greater pleasure than the fact that he is one of the signatories to this amendment.
Some 18 Members of your Lordships’ House are signatories to a letter supporting this amendment. They include the noble Lords, Lord Bach, Lord Beecham, Lord Brennan, Lord Elystan-Morgan, Lord McColl, Lord McFall, Lord Monks, Lord Newton, and Lord Wigley, the right reverend Prelate the Bishop of Blackburn, my noble and learned friend Lady Butler-Sloss, and my noble friends Lady Finlay, Lord Martin, Lord Patel and Lord Walton of Detchant. I give those names to your Lordships’ House to demonstrate the breadth of support for this amendment from all sides and they include distinguished lawyers, distinguished medics and representatives of working people’s interests.
Noble Lords may also have seen a letter which appeared in the Times on 3 March signed by several Members of this House. In conclusion, it states that,
“asbestos victims should not, and financially cannot, subsidise other claimants’ access to justice, nor can they afford to defend test cases run by rich insurers”.
In a nutshell, that is the principle we are debating today. We must decide whether it can be right that asbestos victims should be required to surrender as much as 25 per cent of their damages for pain and suffering to pay for legal costs. Let me repeat, the clauses we are now debating required terminally ill asbestos victims who succeed in a claim for compensation against negligent, guilty employers to pay up to 25 per cent of their damages for pain and suffering in legal costs associated with the conditional fee agreement system, the CFA.
Let us also be clear about what we are not debating. This is the Legal Aid, Sentencing and Punishment of Offenders Bill. Into which of those categories contained in the Title do people suffering from mesothelioma fall? As the Bill aims to restrict legal aid and to curtail what has been described as a compensation culture, it is worth nailing two myths at the outset. First, these mesothelioma cases have not been legally aided and are not legally aided now. They have not been legally aided for some 12 years. Secondly, they are not part of the compensation culture. I know that the Minister concurs with those propositions.
Mesothelioma cases receive no legal aid. They are not fraudulent cases and do not involve fakery. On that much we can be agreed. As one victim put it to me, “I can understand the need for legislation to prevent the trivial and no-win fee claims but how can the claim of a mesothelioma sufferer be ‘lumped in’ with ‘ambulance chasers’? Mesothelioma has only one outcome and that is loss of life. It is not trivial, and patients need help not hindrance”.
Currently, solicitors are paid a success fee by the losing defendant to fund very difficult but meritorious cases. This replaces the funding which was available under legal aid. One claimant will have to pay for another claimant’s chance to gain access to justice if we agree the provisions in the Bill. Important test cases which determine the right of mesothelioma sufferers to claim would never have been run under the new prescription. Those who tabled this amendment argue that asbestos victims should not, and financially cannot, subsidise other claimants’ access to justice, nor can they afford to defend test cases run by rich insurers.
What else do we agree about? We are all agreed that this is a terrible disease. The Minister movingly described to us in Committee how a member of his own family had their life cruelly ended by this fatal disease. We are all agreed that once diagnosed the victim’s life is drastically curtailed. Many doctors say that the average lifespan from diagnosis to death is likely to be around nine months to one year. Some 30,000 people have died to date and as many as 60,000, according to official figures, could die in the future.
What have been the lines of disagreement? The Government have argued that conditional fee agreements, as currently constructed, mean that win or lose a claimant risks nothing but that has encouraged frivolous and fraudulent claims to flourish. Yet those who tabled this amendment argue—as I have said, the Government have said that they agree—that the claims of dying asbestos victims can never be frivolous or fraudulent. So who is responsible for exploiting CFAs? The Government and the insurance industry are quite clear: road traffic accident claims, which make up over 70 per cent of all personal injury claims, particularly whiplash claims, are to blame. In total, whiplash claims add up to a staggering £2 billion annually. We argue that RTA problems will not be solved by punishing asbestos victims. As one victim explained to me:
“My life has been turned upside down, and I really didn’t want to think about anything except spending my last days with my family. I worked all my life and paid all my N.I. and taxes, so this seems unfair”.
That is expressing it with commendable understatement.
Those who tabled this amendment argue that the victims suffer enough. It is iniquitous that they should lose their modest compensation to reduce solicitors’ costs. Those costs can be reduced directly and access to justice preserved, but not by scapegoating asbestos victims. Many sufferers are so defeated by their illness that they never make a claim as things stand now.
The Government additionally argue that claimants must take some of the risk and have an investment in a claim—“skin in the game”. This in my view is an ugly, awful phrase and it is telling. If you consider that mesothelioma sufferers have given their health and their lives because unknowingly they took unwarranted and fatal risks, it is obscene that they of all people should have some “skin in the game”. A contributor to a family asbestos forum said:
“The whole point of making a claim is to make a guilty party pay attention and take responsibility. As the ‘victim’, why should we ‘pay’ again? Is our life not enough?”.
This is not like a win on the lottery or a windfall, it is about restoring victims to something like the position they were in before diagnosis, and making proper provision for them and for their families. Making mesothelioma sufferers pay legal costs will not result in greater competition, thus driving costs down, or give mesothelioma sufferers “skin in the game”. Instead, it will inhibit claims, thus adversely affecting access to justice.
Another perverse outcome will be that challenges to insurers’ appeals to limit liability for mesothelioma claims will be unaffordable, as will taking a case to trial, a point raised by me and by the right reverend Prelate the Bishop of Liverpool during our recent exchange at Question Time with the Minister. The perverse effect of making claimants responsible for success fees will be to make one claimant pay for another’s chance of taking a claim—an extraordinary prospect for mesothelioma sufferers.
Let me also say a word about “after the event” insurance. It has been said that qualified one-way costs-shifting will resolve the issue of claimants paying ATE insurance. Leaving aside the punitive qualifications, that is true, but the Government failed to add that mesothelioma sufferers will face heavy disbursements in the form of court costs, medical reports and so on, which are not covered by QOCS. If ATE insurance is available for disbursements, the premiums are expected to be about two-thirds of the present premiums. These fall to the claimant. If the punitive qualifications regarding the behaviour of the parties and their financial status are unchallenged, claimants will not risk their savings and perhaps their houses to make a claim.
Let me end by returning to the Government’s best argument, that changing the law will turn claimants into a rod for the back of recalcitrant lawyers. Let us think about that. What dying man or woman is going to do this? Would you or I? It is simply fallacious to argue that making claimants pay costs will mean that they will shop around for the best deal. Dying asbestos victims have already invested enough, and given their pitiable condition, it is risible to suggest that they will shop around. Terminally ill and dying people will simply not have the energy, and they have other things on their mind than looking for a lawyer to give them a better rate.
Whatever else now divides the House on how the increased costs of litigation should be resolved, surely we can see the force of the practical and the moral case to exempt people who are dying of mesothelioma from the strictures and provisions of the Bill. Once again, I am indebted to your Lordships for the widespread support for these amendments and to the Minister for the courtesy he extended yesterday in listening to the arguments. I hope that the amendments will commend themselves to a majority in your Lordships’ House and I beg to move.
My Lords, I congratulate the noble Lord, Lord Alton, on the effectiveness and the tenacity with which he has pursued the issue of mesothelioma victims, and I am also grateful to him for his kind reference to my 50th anniversary, which falls today. I also join him in the thanks he has expressed to my friend Lord McNally for the sympathetic and careful hearing he gave us yesterday to discuss these issues.
The horrors associated with these diseases go back four decades and more, when it first became known that the ingestion of tiny amounts of asbestos could lead to painful and invariably fatal diseases. Even then, it was in the teeth of opposition from the manufacturers of asbestos products that health and safety measures were finally enacted to remove the use of this deadly product from the workplace and pave the way for the existing health and safety at work legislation.
When we discussed these amendments in Committee, the first reaction of my noble friend the Minister was to classify them as yet another in the series of amendments calling for an exception to some aspects of the Bill’s architecture. As my noble friend Lord Thomas of Gresford pointed out, Lord Justice Jackson was not looking for an architecture that involved everything but for what was right in particular categories of case, which must be the right way to proceed.
As we know, this is not an area of the Bill where there is public money to be saved, other than in cases where public authorities are defendants. What we are arguing about is whether some of the costs of this very special group of victims of mesothelioma disease in CFA cases should be borne by the claimant rather than the defendant or the insurers. Nor is this one of the areas of the Bill on which there has been lobbying by lawyers or insurance companies, as the noble Lord, Lord Alton, said.
Furthermore, it is not an area in which, as my noble friend the Minister put it, we are trying to create a structure that squeezes out an inflationary element of the process. Between 2007 and 2011, there was a 6.6 per cent reduction in employer liability cases, of which most respiratory claims are a subset, and it is expected that mesothelioma claims will peak in 2015, or perhaps a little later, because of the elimination years ago of asbestos from the working environment. During that same period, 2007 to 2011, road traffic accidents increased by 43 per cent to nearly 800,000 cases. That is where there may well be the abuse referred to by my noble friend. Unscrupulous claimants may be able to fake road traffic injuries, but not mesothelioma or asbestosis. It is impossible for the victims of these horrible diseases to launch a frivolous or fraudulent claim, and it is unconscionable that people on their deathbeds should be mulcted of thousands of pounds out of the damages that they are awarded by the courts.
As matters stand, the claimant pays nothing if he loses. He takes out “after the event” insurance which will pay the defendant’s costs as well as the ATE premium if the case is lost, and the claimant’s solicitor bears his own costs if he loses under the no-win, no-fee arrangement. If the claimant wins the case, the defendant pays the claimant’s solicitor’s base costs plus disbursements, including medical reports, court fees et cetera, plus the success fee and the ATE insurance premium; that is, all the costs. So, with ATE insurance, the claimant pays no costs, win or lose.
Under QOCS, which is not in the Bill, as we have heard, but is due to be implemented by order—we are glad to hear that it will be coterminous with the introduction of this part of the Bill—the defendant again pays the claimant’s solicitor’s base costs whether the claimant wins or loses. ATE insurance will not have to be taken out to cover the contingent liability. Whether a market will develop in this area remains to be seen, as the noble Lord, Lord Alton, said, but assuming that it does, we are advised that the premium could amount to at least two-thirds of the current ATE premium in a similar case.
My noble and learned friend Lord Wallace wrote to me and the noble Lord, Lord Wigley, on 7 February, partly explaining how QOCS would operate. Yes, it removes the need to fund an ATE premium to cover the risk of having to pay the defendant’s solicitor’s costs if the case is lost, but that is not the full story, as the noble Lord, Lord Alton, has reminded us. Given the high costs of disbursements in mesothelioma cases it would be right to extend the recovery of the ATE premium to mesothelioma claims as it is already in clinical negligence claims.
My noble and learned friend omitted to say also in the letter that the claimant is now going to forfeit not only the ATE premium, which is no longer recoverable, but the far higher amount of the success fee, for which the defendant is no longer liable. The claimant is effectively to be fined 25 per cent of the general damages he has been awarded, losing perhaps £15,000 or more from the amount that has been awarded by the court. It is certain that when this and the ATE liability is explained to mortally ill claimants, many of them will decide that it is not worth the hassle of pursuing the case.
My noble friend Lord Thomas suggests that the claimant should pay only half the success fee, but our case is that victims of mesothelioma should receive the whole of the amount they are awarded by the courts, as hitherto. My noble and learned friend Lord Wallace says that solicitors will compete on maximising the damages that claimants can keep, an expectation which is unlikely to materialise in some of the very complex cases to which we are referring. However, if our amendments are accepted, the right way to reduce the legal costs would be to regulate them further, such as by providing that a success fee is payable only in cases that come to court.
My noble friend says that he cannot believe that lawyers will be unwilling to take cases after the Bill becomes law, and of course they will, but, in the opinion of those advising us, they will take far fewer of these cases. We are also told, not as a matter of opinion but as a fact, that fewer claimants will decide to pursue their cases under this regime. As matters stand now, the victims of these painful diseases are often reluctant to bear the mental stress of dealing with solicitors and court proceedings. Almost unanimously they have said to Tony Whitston, the expert who advises us, that the prospect of losing thousands of pounds out of the award that they may receive would mean that many of them will not go ahead with their claims.
We are not talking only about another concession in the range of issues discussed in Committee, as the Minister put it, but one that engaged the support of every one of your Lordships, of all three parties and the Cross-Benches, who spoke in that debate. The Minister, who has personal experience through his family of the dreadful fate of the victims of mesothelioma, as we have heard, recognises that we are dealing with cases that are sui generis. They have at least as great a claim to be dealt with in a different way from the run-of-the-mill CFA claims as clinical negligence cases, and conceding this amendment would involve no costs to public funds.
My Lords, as another co-signatory to the letter to which the noble Lord, Lord Alton, referred, I endorse the argument so ably put forward today by the noble Lord and the noble Lord, Lord Avebury. I do not need to add anything to what they have said. The speech of the noble Lord, Lord Alton, today follows the magisterial speech that he gave in Committee. These arguments are irrefutable. To trammel the access to justice of mesothelioma sufferers would be a terrible thing to do. I am sure the Minister, as a kind and good man, will agree with that.
My Lords, I add my tribute to the noble Lord, Lord Avebury, for his 50-years’ celebration of Orpington. It was life-changing for me because I joined the Liberal Party a fortnight afterwards. Therefore, in a fortnight’s time it will be my 50th anniversary as a member of the party and, shortly after that, my 50th anniversary of failing to win a seat. That is how it goes.
The amendment seeks to retain the status quo in relation to one industrial disease—mesothelioma. Your Lordships will appreciate from what I said in Committee that these cases are terrible. I feel that completely. I told your Lordships about a lady who lives very close to me in Gresford. She came to this House and spoke, and no doubt a number of your Lordships will remember her vividly. Her husband died as a result of being exposed to asbestos in Brymbo steel works, which is perhaps three miles from where I live. But if you give mesothelioma a special, unique status, what about the people in my village who were in Gresford colliery—that has a certain resonance, as your Lordships may recall the disaster in 1934—or in Llay Main colliery, about two miles away, which was the deepest pit in the United Kingdom? I refer to those who suffer from pneumoconiosis, another industrial disease. How can I say, “I’m supporting that lady but I’m not supporting your claims to have the same treatment for pneumoconiosis”?
However, you could widen that to all sorts of industrial diseases and add in the person who has suffered catastrophic injuries in a factory or road accident, or multiple injuries that have severely disabled them. Should mesothelioma be given an exceptional status? To an extent, it already has that status because under the Compensation Act 2006, there are very special provisions. Providing that you can prove that a person has been exposed to asbestos negligently in the past, you do not have to prove that the mesothelioma that arises 30 or 40 years later has derived from that particular act. The responsible person under the 2006 Act is liable to all the damages, and the person suffering from mesothelioma can recover accordingly.
Of course, there are special provisions about tracing the insurers of employers some 30 or 40 years back. The Government have a scheme to identify insurers. I hope that they take it a step further, so that when they cannot identify insurers of employers who have long since departed they introduce something similar to the Motor Insurers’ Bureau. Your Lordships will recall that if you are injured in a car accident and either the driver cannot be traced or was driving uninsured, it is possible to bring an action against the Motor Insurers’ Bureau and recover damages as if they were the insurers of the person injured. In those cases of mesothelioma where the original employers’ insurers cannot be traced, a scheme like that should be introduced.
Furthermore, is the status quo for which this amendment argues the best model? I do not believe that it is. The model that the Government have adopted follows the Jackson proposals in part; it does not follow them entirely as it has left out some crucial caveats such as the retention of legal aid in all clinical negligence cases. The model adopted in this Bill is too crude and needs refinement. I have searched for a solution that would cover not just mesothelioma but pneumoconiosis and other industrial diseases, such as skin diseases in certain other employments, as well as the catastrophic and multiple injury cases. The model that I propose is not the status quo. As I said earlier, I have listened to so many people from all sorts and all sides, who have bombarded all of us with their briefs and submissions. The model that I argue for is this.
First, there is no rationale for paying claimants’ lawyers success fees in cases where liability is admitted, either by way of settlement before proceedings are commenced or by formal admission in the defence that is filed initially to the claim. In those circumstances, where liability is admitted at an early stage, the lawyers conducting the case for the claimant are not at risk at all. They know that they are going to win and that their fees will be paid. My Amendment 132C deals with that situation.
Secondly, if liability is an issue and is denied in the defence, at that point lawyers are at some risk and claimants’ lawyers may lose the case, but there comes a point in proceedings that is very important. Under part 26 of the rules of procedure, which deals with case management, a district judge allocates a case to a track; it is a formal stage in the proceedings. There is a small claims track for personal injuries of less than £5,000 and other cases less than £1,000, and some housing cases. Then there is a fast track, which is for claims up to £25,000—soon to be put up to a limit of £50,000, with no more than a day’s hearing—and a multi-track. The multi-track cases, which include judicial review and all serious personal injury cases, involve mesothelioma, industrial diseases and multiple and catastrophic injuries, fatal accidents and environmental and civil liberties cases.
Thirdly, for small claims and fast-track cases, the Government’s proposal is that the claimant should pay the success fee subject to a cap set at 25 per cent of the damages to date of trial, and he should be responsible. Of those cases—the small, whiplash cases that have bedevilled us, the RTA cases—70 per cent will come under that track. With damages at the top end of the scale of £50,000 in fast-track cases, the success fee could not exceed £12,500. That is all right; it means that the claimant’s damages are less, but he would not have been able to bring the case if he had not had a conditional fee agreement. The argument that the noble and learned Lord, Lord Mackay, put way back in 1990 was whether litigation should be completely risk free.
In multi-track cases, where there is so much more at stake, I consider that the success fee should be split 50:50 between the successful claimant and the losing defendant. It should be stressed that the success fee is a percentage uplift of the standard fees; the cap beyond which the uplift cannot go is a percentage of the damages that are awarded. The Government’s model is that the success fee uplift should be capped at 25 per cent of the general damages and losses to the date of trial. In a large case, that award of damages to the date of trial can be a small fraction of the total damages, future care and loss being by far the greater proportion. Yet we have to recognise reality. There is a need to ensure that such potentially difficult and risky cases remain commercially viable and attractive to experienced litigation solicitors. Some solicitors on the high street will take a case on a one-off basis. Is that the best way? Do we not want to have some speciality and experience? Commercially viable litigation will keep the solicitors who currently do those cases taking those cases on.
My argument is, further, that the cap should be placed on the whole award of damages, and not damages to the date of trial where it is multi-tracked—with a serious award of damages—as the noble and learned Lord, Lord Mackay, originally proposed in his scheme. From the claimant’s point of view, his share of the success fee cannot extend beyond 12.5 per cent of the damages, and that would be assisted by the proposed 10 per cent increase in the level of damages that we discussed in the course of the last amendment. To try to illustrate this, in a catastrophic case where the damages award might be £10 million, taking into account future loss, the claimant’s solicitors and barristers will get their standard fees but they will also get a success fee. Such a fee, which is a percentage uplift of the standard fees, is never going to reach £2.5 million. It is going to be a lesser sum.
In a lesser case where the damages are £600,000, to illustrate a different proposition, a success fee might reach £150,000 but it could not go any higher. Under my proposed model, that would lead to the claimant losing £75,000 of their £600,000 award and the defendants paying £75,000 themselves. What are the consequences of this? It is complicated and we have heard so much about it. It would mean that the claimant has an interest in the amount of the success fee and that lawyers would compete for his business. It is not too much in cloud-cuckoo-land to suppose that a solicitor would advertise, “My success fee will be nil”, or, “My success fee will be 5 per cent”, in order to attract business.
As for the “after the event” insurance premiums, we have already agreed that one-way costs-shifting will be introduced where there are conditional fee agreements to remove the burden of heavy defendants’ costs. One-way costs-shifting has operated in practice in legal aid cases since the inception of legal aid. I have tabled amendments which follow the amendments that we discussed last time. If one-way costs-shifting is introduced, the exorbitant “after the event” premiums to cover the risk of paying heavy defendants’ costs are removed at a stroke. You do not have to insure against the defendant’s costs because one-way costs-shifting means that the defendant will pay his own, even if he wins, as has happened in legal aid cases. It may be necessary to obtain “after the event” cover for disbursements which might cost in a typical case £3,000 to £5,000.
I must be under a misapprehension. I thought that this group was about the amendments that the noble Lord, Lord Alton, had so succinctly moved and about my own amendments to which I also hope to speak, perhaps even more succinctly in due course. I am listening carefully to the noble Lord, as I always do, but it seems that his amendments are part of the group that begins with his Amendment 132B. I am surprised that the noble Lord has not waited to speak to his group as it appears on the Marshalled List. Perhaps he can explain to the House why he is doing this.
I am very happy to do that. I will speak to it further in due course. Frankly, I am anxious not to make the 31-minute speech that I made when we last discussed this particular issue and to relieve your Lordships of that burden. I am splitting what I intend to say, which I think is necessary to cover the whole field, so that it becomes a little more understandable. I take the noble Lord’s rebuke in good part, but let me repeat that asking for the status quo in mesothelioma cases only is not the way to go forward.
My Lords, I would draw the noble Lord’s attention to the actual words in the amendment and indeed in the amendment of the noble Lord, Lord Bach, which is in this group. We have corresponded about this and he has been good enough to share with me prior to the debate some of the points that he has made eloquently this afternoon. I am grateful for that. However, this amendment goes slightly wider than he is suggesting in his remarks today and would cover, for instance, pneumoconiosis as well.
My Lords, I support the amendments tabled by my noble friend Lord Alton. I do so as a doctor. I was brought up in a mining village in Durham County where as a youth I saw some of the ravages of industrial injury and the effects of pneumoconiosis on those who worked in the mines. Later, when I moved to industrial Tyneside, I had considerable acquaintance with industrial injuries of all kinds and industrial diseases caused by a variety of different agents. At an earlier stage of this Bill, I commented that I was asked not infrequently to make reports on people who had suffered neurological damage as a result of these agents. The noble Lord, Lord Beecham, responded by saying that when instructing me to give such reports he had been grateful for their nature and extent and also for the modest fees. Had I known that he took that view the fees might have not been quite so modest.
There is no doubt, as the noble Lord, Lord Thomas, has said, that industrial injuries of all kinds are prevalent in our society. Is there anything special about mesothelioma? There is indeed. It is a disease caused by exposure to asbestos. The cause is known. The clinical course is known. In this condition, the result of particles lodging in the lungs means that the pleura or membrane which covers the lungs becomes progressively thickened, causing compression of the lungs and respiratory failure. Unlike many other diseases, such as pneumoconiosis, this disease is inevitably fatal. It is a very special condition. It deserves special legal attention and for that reason I strongly support these amendments which I believe should be accepted by your Lordships’ House.
My Lords, I apologise for not being present at the beginning of this debate. My name is on the letter and I want to underline my support for it. As a judge, I was involved with a number of these extremely sad cases, particularly at the Court of Appeal. The letter has been very helpful in setting out what is needed. I apologise to the noble Lords, Lord Alton and Lord Avebury, for not having heard most of what they said, but I have a shrewd idea that it was said extremely well.
My Lords, I support Amendment 132AA and wish to speak to the group which is associated with it, standing in the names of the noble Lords, Lord Alton and Lord Bach. I do so enthusiastically as I indicated in Committee. Whereas the noble Lord, Lord Thomas, may well have arguments in certain cases in relation to the legal processes that he outlined, I come to this from the point of view that compensation should be available in full to people, reflecting their suffering and the condition they have had, and that any legal fees should be other than the sum allocated as a response to that suffering. If this group of amendments is not accepted, the House will no doubt hear the noble Lord’s proposals in a later group of amendments. The scope not only of Amendment 132AA but also Amendment 132AB, which goes wider and covers a number of other equally distressing and deserving conditions, means that they can be supported when it comes to a vote if it does indeed come to a vote.
These amendments would have the effect of exempting cases involving claims for damages for respiratory illnesses following exposure to harmful substances from the range of changes proposed in Clauses 43, 45 and 46 of the Bill. The case for doing so was covered extensively in Committee but, unfortunately, the Minister has not so far moved towards accepting the changes that we hoped he might accept at that stage. A couple of weeks ago, at a St David’s Day dinner, I found myself sitting opposite a widow from my home area of Caernarfon. She had lost her husband to asbestosis six years ago. She described what he and they, as a family, had suffered. She received a modest sum of compensation. However, she told me that she had been following our debates in Committee and doubted that she would have got that compensation under the changes that are coming through. My goodness, if that is the effect that they will have on people who have suffered in that way, we have to make sure that the Bill is watertight and looks after people who have suffered as a result of the work that they have undertaken.
If Clause 43 is agreed unchecked, success fees under a conditional fee arrangement will no longer be recoverable from the losing party in all proceedings. Instead, in cases where claims are made against an organisation as a result of illness due to negligence, the fee will be recovered from damages awarded to the injured person, sometimes substantially eroding those damages. Likewise, if Clause 45 is agreed as it now stands, “after the event” insurance premiums will no longer be recoverable from the losing defendant and will also be taken out of the damages awarded to the injured party. Similar changes are proposed in Clause 46, which prevents organisations recovering their insurance premiums from a losing party. Unsuccessful cases involving more than one claimant can be highly expensive if there are multiple defendants whose costs need to be covered in the event of the case being lost. Without recoverable insurance premiums, these cases simply will not, in practice, be able to proceed.
Many organisations, including the Association of Personal Injury Lawyers, have been at pains to make it clear that damages are awarded for the pain and suffering caused by prolonged and debilitating illnesses. As I said earlier, damages were never intended to pay towards legal costs. Making an insured person or their family suffer an erosion of the financial compensation to which they are entitled on top of the physical distress they have endured is neither just nor dignified. It is wrong that the Government are intent on ploughing ahead with these changes without making exceptions where they are due.
In Committee, the Minister spoke of the Government’s overarching aim as being,
“to create an architecture which squeezes inflationary costs out of the civil justice system”.—[Official Report, 30/1/12; col. 1433.]
Those are grand words indeed but they cover a multitude of sins. As the noble Lord, Lord Alton, remarked, the only people who will be squeezed as a result of these changes are those who are already suffering from fatal diseases and their families. That does not sound like justice to me.
In Committee, the Minister also assured me that a number of possible routes of redress would be made available for individuals who had contracted diseases such as mesothelioma and asbestosis through schemes operated by the Department for Work and Pensions. We have heard reference to this but, as yet, I have seen no further detail on how these schemes may work. In the mean time, we should proceed on the basis that they are not there yet. However, I would welcome any clarification that the Minister might give and will listen carefully to what he has to say.
I support not only the group of amendments spoken to by the noble Lord, Lord Alton, but support very strongly Amendment 132AB in the name of the noble Lord, Lord Bach. It is relevant to a group of industrial diseases such as pneumoconiosis, silicosis and associated lung diseases, which are certainly of considerable importance to me and the community from which I come.
If these clauses are agreed unchecked, individuals who have suffered harm and distress will be dealt a further blow and access to justice will be severely undermined. It is perhaps futile to press the Government to agree to changes that they have already so utterly dismissed out of hand. However, I urge noble colleagues to support these amendments and to argue the case that individuals already suffering due to negligence should not face further hardship.
My Lords, may I briefly split up the Cross-Benchers, albeit in support of everything that they and most others have said? I have a couple of prefatory remarks. I cannot quite share the enthusiasm of the Liberal Democrat and former Liberal Democrat Benches for the anniversary of my noble friend Lord Avebury, although not because I do not have the highest regard for him. However, I was in the Conservative research department at the time and it was a major culture shock, which did not tempt me to join the Liberal Party. It could yet happen of course, but not today.
The Minister may be glad to hear my other prefatory remark. This will probably be my last foray on the Bill because, in general, I regard Part 2 as being above my pay grade. I have been reinforced in that view by the speech of the noble Lord, Lord Thomas of Gresford, which left me feeling—I hope he will not find this too rude—as though I had been enveloped in fog.
I spoke on this matter at an earlier stage and I do not intend to repeat myself. I simply endorse some points that have been made. In an earlier incarnation, when I was Minister for Disabled People, I was also the Minister for the Industrial Injuries Advisory Committee, so I know a bit about industrial diseases, including respiratory diseases such as this one. While they all have their problems and the scheme has its offerings, this disease is pretty unique for reasons that the noble Lord, Lord Alton, has outlined so clearly with his medical knowledge. This was reinforced by what the noble and learned Baroness, Lady Butler-Sloss, said about her experience of seeing and being involved in such cases. We cannot dismiss that.
I said earlier that we need to recognise that this disease is not only terrible but moves very fast. Someone gave the figure of nine months. To repeat something that I said earlier, we also need to acknowledge that this is one of those cancers—it is effectively a cancer—that is still growing. It is not diminishing. There is a long time fuse on exposure to asbestos. We have known about it for a long time and action has been taken; when asbestos is found, there is great expenditure on getting rid of it. However, there are still more cases to come than there have been because of that long fuse. One way or another, it is a pretty special case. I just do not like the idea that it can be dealt with only under CFAs, with the consequences that were so eloquently outlined by the noble Lord, Lord Alton.
This is not part of the mischief of exploiting whiplash injuries. It is very much sui generis and needs to be treated as such. The notion that someone who has just been told that they have nine months or less to live will engage in a lot of frivolous legal activity is far fetched in the extreme.
The noble Lord, Lord Thomas of Gresford, referred to all sorts of other ways of getting compensation, including schemes that the Government have and the possibility of a rival to the Motor Insurers’ Bureau. We are talking about people with nine months to live. It will probably take nine months for them to find out where to start under some of those arrangements, let alone to get some compensation. In any event, what we are offered here are not the alternatives that the noble Lord, Lord Thomas, outlined. They are not here and would have to be worked up. What we have is what is in the Bill. We need to look at that with care and, once more, we need to ask the House of Commons to think again.
My Lords, I agree with every speaker that this is a dreadful disease for which the sufferers deserve compensation. Just as importantly, they deserve compensation speedily. I am glad to say, as a practising barrister with some experience of cases of this sort, that the mechanisms and systems by which compensation can be achieved have greatly improved so that this can be done.
I agree that all these claims are thoroughly deserving. There can be no dispute about diagnosis. They are not the sort of cases that are covered by the much described “compensation culture”. The real question, though, is simply this: will these cases still proceed if the Bill becomes law? There is no doubt that they will become less profitable for lawyers, but will they become so much less profitable that these very deserving cases will be denied justice? That is the real question, I suggest.
The reason why lawyers do not take cases on CFAs—this is perhaps particularly so in clinical negligence cases—is because there are real difficulties and they might lose the case. In a series of cases on mesothelioma and other cases deriving from exposure to asbestos, the courts have done a great deal to help in terms of the law on causation. Not just through the 2006 Act but in a series of cases in the Court of Appeal and in the House of Lords, they have circumvented the difficulties in proving liability, particularly the so-called “single fibre” theory, where it was difficult to establish which of a number of employers was responsible. That difficulty is largely overcome. As I say, the noble Lord, Lord Walton, has confirmed that diagnosis is rarely controversial, so we do not have the situation of doctors disagreeing. So what is the real difficulty about these cases? There is a great deal of experience out there, both on the claimants’ and the defendants’ side, in taking these cases forward. One of the problems is not being able to identify the appropriate defendant or the policy. We have heard from the noble Lord, Lord Thomas, that steps have been taken through the ABI and other bodies to keep proper records of these matters.
However, where I have real difficulties, in agreement with all noble Lords who have spoken, is on the question of damages. A recent decision of the High Court has dealt with the quantum of damages in these cases. They are very modest. That is not because judges are not profoundly sympathetic to the claims, but simply because they are claims for pain and suffering and loss of amenity and do not involve long-term care claims or loss of earnings claims. Thus they are modest. However, I find it unattractive in the extreme that there should be 25 per cent taken off these damages, albeit that will be increased by 10 per cent. I very much hope that the Minister’s words are justified and that solicitors will not see fit—how could they?—to take a percentage of damages in these circumstances. I share with the noble Lord, Lord Alton, a revulsion of the expression “skin in the game” in the context of these desperately sad cases.
I suggest that Part 2 of the Bill is a very real and positive attempt by the Government to cope with what I have encountered as a disfiguring feature of the litigation world when inflated costs are involved and when cases become too much about lawyers’ fees and interests and insurers’ interests rather than the underlying dispute. This is a desperately sad series of cases. I share all noble Lords’ concern that damages should be recovered as quickly as possible. However, I venture caution lest, in the wake of these cases, we lose the structure and the architecture that Lord Justice Jackson put forward.
I support the comments made by my noble friend Lord Walton of Detchant. As a doctor, I look after these patients and have found repeatedly that they do not even want to seek compensation but are persuaded to do so. They do not seek it for themselves as they know that their lives are over, but because they want to leave something behind for their bereaved families who will have to live on after their death, facing a loss in pension.
As has been said, a common feature of mesothelioma and the other respiratory diseases mentioned in other amendments in this group is that diagnosis is clear. Histological diagnosis under the microscope shows the fibres and fragments of substance to which these people have been exposed, such as asbestos fibres and small amounts of substances such as beryllium and silica. Another feature of these respiratory diseases is that they form a discrete group. Protection of the respiratory tract has been around for a long time but workers have not always been adequately protected. Sadly, there was a time lag in that regard. Indeed, as regards these diseases, blue asbestos was thought to be the culprit. It took some time before all forms of asbestos were identified as being fundamental pathogens. We must put the interests of the people suffering from these diseases before any other interests. For those reasons, I strongly support these amendments.
My Lords, obviously, the people who fall into this category should have our sincere sympathy. I certainly feel strongly that they deserve that. However, I want to mention one or two matters. First, when this system of contingency fees—or whatever name you want to call it—was introduced, there was no special rule for such cases. I do not know to what extent the noble Lord, Lord Alton, or the noble Lord, Lord Avebury, have looked into the situation as it was when the system as I introduced it was working.
Secondly, it will not have escaped your Lordships that the next amendment of the noble Lord, Lord Alton, concerns industrial disease cases generally. The amendment we are discussing deals with respiratory cases; the next amendment deals with industrial disease cases. I particularly draw to your Lordships’ attention the question of justice as between different claimants. I entirely accept what has been said by those highly medically qualified noble Lords who have spoken about the disease we are discussing. However, other troubles that are the subject of personal injury actions involve lifelong deprivation of practically all one’s faculties. That kind of long-lasting trouble comprises another type of personal injury action. If your Lordships wish to support this amendment, they have to think how they would justify treating the cases we are discussing differently from other terrible cases which those of us who have experience of personal injury actions know exist.
Long ago I was professionally involved in cases that concerned the National Coal Board. Pneumoconiosis cases were brought but other cases were brought involving people who had been injured while working underground. People who suffered those injuries were in terrible distress and eventually died. However, before they died they were in a very distressing situation. Therefore, one has to be careful about how one distinguishes between the different cases. Justice requires that similar cases should be similarly dealt with.
If I understood him correctly, the noble Lord, Lord Alton, said that the cases in the group he was asking for should not be required to subsidise other cases. My understanding of this system is that you do not subsidise other cases: the success fee is dependent on the chances of success in your case. It is a factor which is dependent on a probability of success that works into the success fee. It is not dependent on other cases; it is dependent on the precise potential for winning that exists in the case that you have in hand. Therefore, I do not accept that this system in any way subsidises other cases across the board except in the sense that the probability of success in a particular case is what determines the success fee.
If the noble Lord, Lord Alton, wishes to press this amendment, I assume that he will not have the benefit of the 10 per cent uplift for his amendments in this group, which is on the way as a result of the undertakings given by the Government. There is also the question of the one-way shift. That would probably apply if it were done generally in respect of these cases, but the other may not.
This is a very difficult area. The sympathy of the whole House is with these people, and that is very much the case with me and my noble friend in particular, given his experience of this issue. However, justice requires us to do justice as between different claimants. Other claimants also have very difficult conditions. How do we say to X, “Your claim and the conditions to which you have been exposed are so bad, as distinct from the others, that we can justify treating you differently”?
I should perhaps have said that I of course associate myself with the congratulations to the noble Lord, Lord Avebury. I did not suffer from the difficulties that my noble friend Lord Newton of Braintree had.
Perhaps I may put two points to the noble and learned Lord before he sits down. The system as it operated under his stewardship did not take funds away from the claimant when they were successful in litigation. That is surely the difference from the matter before your Lordships’ House. When the noble and learned Lord oversaw the system, it was fair and just, and did not raid any of the funds that the claimant was able to receive in compensation. We are merely seeking to maintain the status quo in the way that it operated during his time.
As to exceptional circumstances, surely, if someone is terminally ill, they are exceptional or sui generis, as described by the noble Lord, Lord Newton, and my noble friend Lady Finlay in their interventions. If people in this group are terminally ill, that is surely what makes their cases exceptional.
My Lords, it is possible to describe other types of illness and the basis for claims in very much the same language as that used by the noble Lord, Lord Walton of Detchant, and the noble Baroness. So far as the first point is concerned, in the system as I introduced it the success fee would be payable by the claimant out of his or her damages.
My Lords, we have had a powerful and emotive debate and I want to be very brief because the House wants to hear from the Minister, who is obviously sympathetic, as was demonstrated by what has been said about his visits made and meetings with noble Lords on this issue. I am proud to support the amendment in the name of the noble Lord, Lord Alton of Liverpool, also supported by the noble Lord, Lord Avebury. I am delighted that the noble Lord, Lord Alton, supports my amendments in this group that deal with other industrial diseases—Amendments 132AB, 132D and 141ZB. In response to the noble Lord, Lord Thomas of Gresford, I say that if he thinks that other diseases are also important to deal with, he should look carefully at the amendments I may move in due course.
I shall cut down appreciably on what I wanted to say. We know that asbestosis is not the only problem, but speeches have been made in this debate by experts who suggest that it is a problem out on its own that should be considered separately, as it will be this evening. It is because asbestosis is not the only problem that I tabled my amendment that deals with other serious industrial diseases. I do not need to go through the types of diseases that I am talking about, but they are the by-products of hard work. All these are inflicted on hard-working people who have spent their lives contributing to our society and economy, often in industries that no longer exist, and in heavy industry, manufacturing and public services. As has been said by many noble Lords, many of these diseases do not manifest themselves for years and are the legacy of coal mining, our proud tradition of manufacturing, steel making and other professions.
I have here a letter received from the wife of a man who suffered from mesothelioma, to which the noble and learned Lord, Lord Davidson, referred in his Second Reading speech many months ago. The man was between 16 and 24 years old when he was exposed to asbestos as an apprentice lift engineer, erecting lifts on building sites. He stayed in that industry throughout his working life. He loved his job and most of his customers became his friends. His wife said:
“This disease has affected our lives in every possible way and stress levels have been extremely high for both of us”.
She went on to say many things that will move the House, and added that the stress and worry that go with what she described were unbelievable. Yet, she claimed, the Government were trying to make victims face additional stress and worry by making them decide whether they can afford to take out a civil action. She added:
“Compensation would be eroded by having to pay legal costs plus insurance to cover defendants’ legal costs, plus the worry of having to pay some fees upfront. This is an insult and will discourage people from making a claim to which they are entitled. This Bill should be designed to stop the ‘ambulance chaser’ brigade who contact prospective clients and advertise constantly, not workplace victims whose lives were put at risk by exposure to asbestos”.
Of course we are right to control the cost of litigation, but road traffic accidents and slip-and-trip accidents are quite separate and distinct. It is incongruous to somehow link them with what we have been talking about in this debate. It is unnecessary and rather cruel. It is with pleasure that I invite the Minister to accept the amendments in the name of the noble Lord, Lord Alton, and myself.
My Lords, I should first say to the noble Lord, Lord Newton, that if he is thinking of joining the Liberal Democrats he would fit in very well.
This is not a debate about those who care about mesothelioma sufferers and those who do not. We all care, and many of us have been trying to address the problems associated with that dreadful disease. Indeed, the Department for Work and Pensions is working closely with all stakeholders to see what can be done to compensate people with mesothelioma and similar conditions who are unable to claim civil damages because their employer no longer exists and their insurer cannot be found.
It is true, as has been mentioned, that Governments of all parties have taken action to aid sufferers of industrial injuries and illnesses, and the legacies of our industrial past. However, it is also fair to put on record that legal aid was removed from this area of litigation by the previous Administration in 2000.
Before turning to the detail of these amendments, I wanted to say a few words about the importance of the changes we are introducing in Part 2. As we heard in the earlier debate, the changes we are proposing to no-win no-fee agreements were recommended by Lord Justice Jackson after his year-long review, and supported by the senior judiciary. The Lord Chief Justice said that the report addressed civil costs as a comprehensive, coherent whole. Our proposals were welcomed by the previous Lord Chancellor, Mr Straw, and by the opposition Front Bench in the other place when the current Lord Chancellor announced them on 29 March last year. The shadow Justice Minister said at Committee stage:
“the intention of part 2 is perfectly sound, and it is one with which we have a great deal of sympathy”.—[Official Report, 13/9/11; Commons, Legal Aid, Sentencing and Punishment of Offenders Bill Committee, col. 501.]
So there is broad agreement on the principles of our reform.
Part 2 addresses the way that the present system is—as I think that the noble Lord, Lord Faulks, described it—distorted. The agreement is perhaps not surprising given the high costs that have arisen under the current regime and the unfairness that has resulted between claimants and defendants.
I remind the House of that, because I am concerned that in making the position fairer between claimants and defendants, as we seek to do, we should not make the position less fair between different classes of claimants, as some of the amendments would, as the noble and learned Lord, Lord Mackay, just reminded us. The current regime of recoverable success fees and insurance premiums allows for risk-free litigation from claimants and substantial additional costs for defendants.
Allowing exceptions, so that the regime continues in relation to certain cases only, would introduce unfairness for those claimants in an otherwise similar position where the exception does not apply. Allowing an exception for defamation claims, for victims of industrial diseases or for claims of corporate harm by multinational companies, for example, would introduce an advantage to claimants in those specific categories which would be unfair to those in otherwise similar positions whose claims fell into a slightly different category. Clauses 43 and 45 are a fundamental element of the Government’s reform in ensuring proportionality and fairness across the board. That is why we resist any substantive amendments to them.
I will take Amendments 132AA, 132AB, 132D, 136, 141, 141ZB and 142 together, as they are intended to retain recoverable elements in claims dealing with respiratory diseases or industrial diseases caused by an employer’s breach of duty to an employee. Amendments 132AA, 136, 141 and 142 would retain recoverability of success fees after the event, or ATE insurance payments and membership organisations’ self-insurance costs for respiratory disease cases. Amendments 132AB, 132D and 141ZB would do the same for employers’ liability claims relating to industrial diseases.
Although I will address all industrial disease claims in my response, I am aware of the keen interest of the noble Lords, Lord Alton and Lord Avebury, in mesothelioma in particular. They have been tireless and dedicated campaigners on behalf of sufferers of that fatal and tragic disease, and I commend them on that. Although we can agree on the tragic nature of the disease and its impact, I cannot agree that those cases should be exempted from our reforms. Noble Lords have argued that industrial diseases, including mesothelioma and other less serious conditions, are not part of the compensation culture. The Government accept that—I did so in Committee. There is no suggestion that those claims are brought improperly. Our reforms are intended to address high cost throughout civil litigation. This is not just about driving out fraudulent or exaggerated claims but about ensuring that legal costs are proportionate to the sums at issue. For that, wholesale reform is needed. To be effective, it must apply across the board.
Specifically on mesothelioma, I said in reply to an Oral Question from the noble Lord, Lord Alton, on 29 February that I am not aware of anything associated with those cases which makes them particularly expensive to bring. I have not heard anything since which persuades me that there is anything particular about the nature of those cases—the cases, not the disease—which makes them any harder to bring in legal terms than any other case. Indeed, it is quite the reverse. As my noble friend Lord Thomas of Gresford and the noble Lord, Lord Faulks, pointed out, significant steps have been taken in recent years to lower the barriers to bringing compensation claims for those diseases. Senior Master Whitaker, who oversees these cases in the High Court, has helped to introduce a fast-track procedure for mesothelioma cases. That has been incorporated into a practice direction ensuring that those claims are dealt with as quickly as possible—again a point brought up by my noble and learned friend Lord Mackay.
Various legal changes over the past few years, including primary legislation such as the Compensation Act 2006, and judgments of the Supreme Court, have removed some of the hurdles for sufferers of respiratory diseases to bringing claims. The Department for Work and Pensions has undertaken various initiatives to make it easier for claimants to trace their employers’ insurers. I understand that it can be difficult and expensive for those with what the noble Lord, Lord Wigley, I think, referred to as long-tail diseases, such as mesothelioma, to track down the liable insurer. In April 2011, the insurance industry set up the Employers’ Liability Trading Office, or ELTO. Supported by the Government, the ELTO provides an online resource through which claimants and their representatives can search for the relevant policy, reducing time and costs for those involved in such searches.
The Department for Work and Pensions continues to work with stakeholders to see what can be done to compensate people with mesothelioma and similar conditions who are unable to claim civil damages because their employer no longer exists and their employer’s liability insurer cannot be found. A response to the government consultation, Accessing Compensation—Supporting People Who Need to Trace Employers’ Liability Insurance, which reflects further on possible solutions, will be published in due course. I recently met the insurance industry to discuss ongoing work. I can tell the House that, as a result of this issue being raised in discussion on the Bill, I will be taking the matter up with my noble friend Lord Freud at the Department for Work and Pensions to discuss what progress is being made and how it can be advanced. As noble Lords will be aware, my noble friend told the Grand Committee yesterday that we will be increasing the mesothelioma lump-sum payments by 3.1 per cent from 1 April this year. I welcome my noble friend’s statement and his commitment to working with interested parties to offer further help to sufferers who have difficulty in tracing their insurer.
Noble Lords have spoken of the prohibitive costs of bringing industrial disease claims against well resourced defendants. There is concern that claims will not be brought if claimants risk being liable for high defendant costs should they lose. In response, I remind noble Lords that in personal injury claims, including industrial disease, qualified one-way costs-shifting will apply—that is, a losing claimant will usually not be at risk of paying a defendant’s costs. We discussed QOCS earlier in the debate.
We turn, then, to the claimant’s own disbursements, which noble Lords have argued will be unaffordable should “after the event” insurance premiums no longer be recoverable. On respiratory disease claims, my understanding is that only one medical report is required by rules of court in order to issue a claim. This report will cover the diagnosis, basic causation, prognosis and what the life expectancy might have been without mesothelioma. In exceptional circumstances, a forensic engineering report may also be necessary to show causation. However, the majority of mesothelioma sufferers will not need reams of expert evidence to bring their claim and consequently are unlikely to face high up-front costs for expert reports.
Claims for industrial diseases are not unique in requiring expert evidence to show the nature and extent of the illness. The same is true of many personal injury cases, where there may be disputes, if not of the causation or liability, of the extent of the damage caused. It is not true to say that such reports will be unobtainable without a recoverable ATE premium, particularly as a claim may be brought on the basis of one report. A claimant may pay for reports through their own means; solicitors may decide to bear up-front costs themselves; or a claimant may take out ATE insurance and pay the premium themselves. In any of those instances, either the claimant or the solicitor will have a direct interest in the costs that are being incurred—which is one of the main principles underlying our reforms.
It should also be noted that general damages for non-pecuniary loss, such as pain, suffering and loss of amenity, will be increased by 10 per cent—a point emphasised by the noble and learned Lord, Lord Mackay, but not mentioned in other speeches when there was talk about a raid on damages. That will help claimants to pay any success fee that may be due once their claim has ended. I also point out that the proposed cap on success fees of 25 per cent of damages awarded is not compulsory. It is a negotiated amount and excludes those for future care and loss. We expect solicitors to compete for business by offering lower fees. We also expect those who specialise in this area to offer fair and realistic terms for their clients that take into account not only the risk of the case, but also the needs of the individual claimants and their families at what, of course, will be a particularly traumatic time in their lives.
I have previously explained the concerns of the Government around the current regime and the significant disadvantages it has for defendants, with no incentive for claimants to control costs. I must underline that those reforms in Part 2 are not about saving money for the public purse. Making savings is a benefit, of course, but that is not what Lord Justice Jackson was considering when he wrote his comprehensive report. The Government are determined to see more proportionate costs in civil litigation, with greater fairness in the risk borne by parties. Without our reforms, high and disproportionate costs in civil litigation will continue. Access to justice would not become more meaningful for all parties. If these amendments were accepted, claimants in these particular cases would have an advantage over others who may be suffering from equally debilitating conditions. This cannot be justified, but I am grateful to all noble Lords. I am grateful to my noble friend Lord Thomas for what was obviously deep thinking about alternatives and I will study his remarks and the issues he raised carefully. As I say, I will be taking these matters further with my noble friend Lord Freud and other ministerial colleagues with all due urgency, and, as I have indicated, I hope that we can make some progress.
As I say, I do not believe that this is a debate between those who want to help here and those who do not. It is about keeping the Jackson reforms in Part 2 in their place without producing a whole range of anomalies, and at the same time the Government taking forward with a sense of real urgency ways of giving practical help to those who suffer from this dreadful disease. I hope that the noble Lord, Lord Alton, in the light of that reply, will withdraw his amendment.
My Lords, I am grateful to the Minister for the way in which he has addressed this issue this evening and, indeed, I reiterate my thanks to him for meeting the noble Lord, Lord Avebury, and me yesterday to discuss what more could be done to help this unique group of people—a point I shall return to in a moment. I am conscious that your Lordships want to come to a decision on this matter, so I promise that I will be brief.
There was no debate about this issue when it was before the House of Commons; there was no Division in the House of Commons. Your Lordships will be doing your job in scrutinising legislation by supporting these amendments this evening, because Members of the House of Commons will now, I think, welcome the opportunity to return to this question. I am told by my noble friend Lady Finlay of Llandaff, whom I spoke to earlier about this, that very small numbers of people other than mesothelioma victims would actually be caught by this amendment. However, if it should be that this is slightly extended from this exceptional group of people who are terminally ill and dying to one or two other groups, let us make this more generic and extend it to people who are terminally ill. That is the difference; that is why I disagree with the noble Lord, Lord McNally, when he says that this would be giving this category of people an advantage over others. This is a group of people who are entitled to an advantage. If you are diagnosed as terminally ill—if you are told that you only have nine months to a year to live—then you are not in the same category as others, and we have to do all we can to help.
The Minister said that his noble friend—in fact, it was the noble Lord, Lord De Mauley, yesterday, speaking on behalf of the noble Lord, Lord Freud, who was unwell—gave an assurance that there would be an increase in lump sum payments. That is extremely welcome but it has no bearing whatsoever, of course, on the litigation that we are taking about this evening, which people might embark upon to seek compensation. It is also welcome that there should be an uplift and I hope that no one is suggesting that that should not also be available to people who are terminally ill and dying as a result of mesothelioma.
The Jackson proposals have been referred to a great deal during the debates in your Lordships’ House, but we all know that they are a curate’s egg—they are there in part. They have been chosen where it suits those who are proposing these new arrangements and, where it does not, they are set to one side: this is a very good example of where that has happened.
Let me reiterate: this is not about public money. Legal aid, as the Minister himself has said, has not been available for the past 12 years, so this is not about public money. Nor is it about the compensation culture; we are all agreed about that. It is about an exceptional group of people, but it is also more than that. The noble and learned Lord, Lord Mackay of Clashfern, said that it is about justice. I simply ask your Lordships how it can ever be just to raid the compensation that someone has been awarded because they have proven their case in court—to take up to 25 per cent of what they have been awarded to help them through the last days of their life. How can it ever be a matter of justice to do that? It is for that reason that I would like to seek the opinion of your Lordships’ House.
Division on Amendment 132AA
Contents 189; Not-Contents 158.
Amendment 132AA agreed.
Division No. 3
- Aberdare, L.
- Adams of Craigielea, B.
- Adebowale, L.
- Ahmed, L.
- Alton of Liverpool, L. [Teller]
- Anderson of Swansea, L.
- Andrews, B.
- Armstrong of Hill Top, B.
- Avebury, L.
- Bach, L.
- Bakewell, B.
- Bassam of Brighton, L.
- Beecham, L.
- Berkeley, L.
- Best, L.
- Bilston, L.
- Blackstone, B.
- Blood, B.
- Boothroyd, B.
- Borrie, L.
- Bradley, L.
- Brennan, L.
- Brooke of Alverthorpe, L.
- Brookman, L.
- Brooks of Tremorfa, L.
- Browne of Belmont, L.
- Browne of Ladyton, L.
- Butler-Sloss, B.
- Cameron of Dillington, L.
- Campbell-Savours, L.
- Carter of Coles, L.
- Clancarty, E.
- Clarke of Hampstead, L.
- Clinton-Davis, L.
- Collins of Highbury, L.
- Colville of Culross, V.
- Corston, B.
- Coussins, B.
- Cox, B.
- Davidson of Glen Clova, L.
- Davies of Coity, L.
- Davies of Oldham, L.
- Donaghy, B.
- Donoughue, L.
- Doocey, B.
- Dubs, L.
- Elder, L.
- Elystan-Morgan, L.
- Evans of Parkside, L.
- Evans of Watford, L.
- Exeter, Bp.
- Falconer of Thoroton, L.
- Farrington of Ribbleton, B.
- Faulkner of Worcester, L.
- Fellowes, L.
- Finlay of Llandaff, B.
- Ford, B.
- Foster of Bishop Auckland, L.
- Foulkes of Cumnock, L.
- Freyberg, L.
- Gale, B.
- Gibson of Market Rasen, B.
- Giddens, L.
- Gilbert, L.
- Golding, B.
- Gould of Potternewton, B.
- Grantchester, L.
- Greenway, L.
- Grenfell, L.
- Grey-Thompson, B.
- Grocott, L.
- Hall of Birkenhead, L.
- Hanworth, V.
- Harris of Haringey, L.
- Harrison, L.
- Hart of Chilton, L.
- Haskel, L.
- Haworth, L.
- Hayter of Kentish Town, B.
- Healy of Primrose Hill, B.
- Hilton of Eggardon, B.
- Hollis of Heigham, B.
- Howarth of Breckland, B.
- Howarth of Newport, L.
- Howe of Idlicote, B.
- Howells of St Davids, B.
- Hoyle, L.
- Hughes of Stretford, B.
- Hughes of Woodside, L.
- Irvine of Lairg, L.
- Janner of Braunstone, L.
- Jones, L.
- Jones of Whitchurch, B.
- Judd, L.
- Kennedy of Southwark, L.
- Kilclooney, L.
- King of Bow, B.
- King of West Bromwich, L.
- Kingsmill, B.
- Kinnock, L.
- Kinnock of Holyhead, B.
- Kirkhill, L.
- Knight of Weymouth, L.
- Layard, L.
- Lea of Crondall, L.
- Liddle, L.
- Lister of Burtersett, B.
- Lytton, E.
- McAvoy, L.
- McConnell of Glenscorrodale, L.
- McDonagh, B.
- Macdonald of Tradeston, L.
- McFall of Alcluith, L.
- McIntosh of Hudnall, B.
- MacKenzie of Culkein, L.
- Mackenzie of Framwellgate, L.
- McKenzie of Luton, L.
- Maginnis of Drumglass, L.
- Martin of Springburn, L.
- Massey of Darwen, B.
- Maxton, L.
- Meacher, B.
- Mitchell, L.
- Monks, L.
- Morgan, L.
- Morgan of Huyton, B.
- Morris of Aberavon, L.
- Morris of Handsworth, L.
- Myners, L.
- Newcastle, Bp.
- Newton of Braintree, L.
- Nye, B.
- O’Neill of Clackmannan, L.
- Palmer, L.
- Pannick, L.
- Patel of Blackburn, L.
- Pendry, L.
- Plant of Highfield, L.
- Prescott, L.
- Prosser, B.
- Radice, L.
- Ramsay of Cartvale, B.
- Rea, L.
- Richard, L.
- Rogan, L.
- Rooker, L.
- Rosser, L.
- Rowe-Beddoe, L.
- Rowlands, L.
- Royall of Blaisdon, B.
- Saltoun of Abernethy, Ly.
- Sandwich, E.
- Sawyer, L.
- Scotland of Asthal, B.
- Sewel, L.
- Sherlock, B.
- Simon, V.
- Smith of Basildon, B.
- Smith of Finsbury, L.
- Soley, L.
- Stevenson of Balmacara, L.
- Stoddart of Swindon, L.
- Stone of Blackheath, L.
- Symons of Vernham Dean, B.
- Taylor of Blackburn, L.
- Taylor of Bolton, B.
- Temple-Morris, L.
- Thornton, B.
- Tomlinson, L.
- Touhig, L.
- Triesman, L.
- Tunnicliffe, L. [Teller]
- Turner of Camden, B.
- Wall of New Barnet, B.
- Walton of Detchant, L.
- Warner, L.
- Warnock, B.
- Warwick of Undercliffe, B.
- Watson of Invergowrie, L.
- West of Spithead, L.
- Wheeler, B.
- Whitaker, B.
- Whitty, L.
- Wigley, L.
- Williamson of Horton, L.
- Wills, L.
- Wood of Anfield, L.
- Worthington, B.
- Young of Old Scone, B.
- Addington, L.
- Ahmad of Wimbledon, L.
- Alderdice, L.
- Allan of Hallam, L.
- Anelay of St Johns, B. [Teller]
- Arran, E.
- Ashton of Hyde, L.
- Astor, V.
- Astor of Hever, L.
- Attlee, E.
- Barker, B.
- Bates, L.
- Benjamin, B.
- Berridge, B.
- Bew, L.
- Blencathra, L.
- Bowness, L.
- Bradshaw, L.
- Bridgeman, V.
- Brinton, B.
- Brooke of Sutton Mandeville, L.
- Brougham and Vaux, L.
- Browning, B.
- Burnett, L.
- Buscombe, B.
- Byford, B.
- Caithness, E.
- Cathcart, E.
- Chalker of Wallasey, B.
- Chidgey, L.
- Clement-Jones, L.
- Colwyn, L.
- Cope of Berkeley, L.
- Courtown, E.
- Craigavon, V.
- Crathorne, L.
- Dannatt, L.
- De Mauley, L.
- Deben, L.
- Dholakia, L.
- Dixon-Smith, L.
- Dobbs, L.
- Eccles, V.
- Eccles of Moulton, B.
- Eden of Winton, L.
- Elton, L.
- Faulks, L.
- Feldman of Elstree, L.
- Fink, L.
- Fookes, B.
- Forsyth of Drumlean, L.
- Fowler, L.
- Framlingham, L.
- Fraser of Carmyllie, L.
- Freeman, L.
- Garden of Frognal, B.
- Gardiner of Kimble, L.
- Gardner of Parkes, B.
- Geddes, L.
- German, L.
- Glasgow, E.
- Glenarthur, L.
- Glentoran, L.
- Goodlad, L.
- Goschen, V.
- Grade of Yarmouth, L.
- Hanham, B.
- Harris of Peckham, L.
- Henley, L.
- Heyhoe Flint, B.
- Higgins, L.
- Hill of Oareford, L.
- Hodgson of Astley Abbotts, L.
- Howard of Rising, L.
- Howe, E.
- Hunt of Wirral, L.
- Hussein-Ece, B.
- Inglewood, L.
- James of Blackheath, L.
- Jenkin of Kennington, B.
- Jenkin of Roding, L.
- Jolly, B.
- Jopling, L.
- Kirkham, L.
- Kirkwood of Kirkhope, L.
- Knight of Collingtree, B.
- Kramer, B.
- Lee of Trafford, L.
- Lester of Herne Hill, L.
- Lindsay, E.
- Lingfield, L.
- Linklater of Butterstone, B.
- Lloyd of Berwick, L.
- Loomba, L.
- Luke, L.
- Lyell, L.
- McColl of Dulwich, L.
- MacGregor of Pulham Market, L.
- Mackay of Clashfern, L.
- McNally, L.
- Maddock, B.
- Mancroft, L.
- Maples, L.
- Mar and Kellie, E.
- Marks of Henley-on-Thames, L.
- Mayhew of Twysden, L.
- Montrose, D.
- Morris of Bolton, B.
- Neville-Jones, B.
- Newlove, B.
- Northover, B.
- Norton of Louth, L.
- Oppenheim-Barnes, B.
- Palmer of Childs Hill, L.
- Palumbo, L.
- Phillips of Sudbury, L.
- Popat, L.
- Randerson, B.
- Redesdale, L.
- Risby, L.
- Roberts of Conwy, L.
- Roberts of Llandudno, L.
- Sassoon, L.
- Scott of Needham Market, B.
- Seccombe, B.
- Selkirk of Douglas, L.
- Selsdon, L.
- Shackleton of Belgravia, B.
- Sharkey, L.
- Sharp of Guildford, B.
- Sharples, B.
- Shaw of Northstead, L.
- Sheikh, L.
- Shipley, L.
- Shutt of Greetland, L. [Teller]
- Skelmersdale, L.
- Spicer, L.
- Stedman-Scott, B.
- Stewartby, L.
- Stoneham of Droxford, L.
- Storey, L.
- Stowell of Beeston, B.
- Strasburger, L.
- Strathclyde, L.
- Taverne, L.
- Taylor of Holbeach, L.
- Teverson, L.
- Thomas of Gresford, L.
- Tope, L.
- True, L.
- Tyler, L.
- Verma, B.
- Wakeham, L.
- Wallace of Saltaire, L.
- Wallace of Tankerness, L.
- Walmsley, B.
- Wasserman, L.
- Wilcox, B.
My Lords, it is always a pleasure to follow the noble Lord, Lord Newton of Braintree. The House will know, of course, that he has held high ministerial office, having been a Cabinet Minister and a Secretary of State, but also as a former Leader of the House of Commons he brings distinguished experience to your Lordships’ House. The Minister should reflect on the wisdom of what the noble Lord has just said.
While we all accept that legislation is not like semaphore—it is not just about sending signals—there is grave public anxiety about many of the provisions in this Bill and support for this amendment can show that we have read the signals and responded. The right reverend Prelate the Bishop of Exeter expressed the concern of groups such as Citizens Advice about the load that will be placed on their shoulders. The noble Lord, Lord Carlile of Berriew, expressed the concerns of groups such as claimants. He and I were privileged at the very outset of the proceedings of the Bill to meet a lady who is bringing up a brain-damaged child and who told us in no uncertain terms about the problems that would have beset her if she had not had access to justice via legal aid.
It is for that reason that I support my noble friend’s amendment today. As he has rightly said, it will not cost the Exchequer money but it sends a signal and lays down an important principle. It invites us to consider again the purpose of legal aid, which, when Hartley Shawcross introduced it in 1948, was one of the principles of the founding of the welfare state. It also invites us, especially those of us who are not lawyers, to consider the importance of access to justice for many people throughout this country. As the noble Lord, Lord Hart of Chilton, said, it is moderate and realistic. Access to justice is not a service or a product but an intrinsic right for every citizen. Dr E.J. Cohn made the case best when he said:
“Just as the modern State tries to protect the poorer classes against the common dangers of life … so it should protect them when legal difficulties arise. Indeed, the case for … protection is stronger than the case for any other form of protection. The State is not responsible for … old age or economic crises. But the State is responsible for the law”.
This is not simply a moral duty but a legal one. As the European Court of Human Rights has held, an overly restrictive legal aid system can be a violation of Article 6 if it means that there is a significant inequality of arms and the individual is unable to mount an effective defective defence or claim. It is in this light that the first line of the Bill should be construed—namely, in the light of the important moral and legal duty under which the Lord Chancellor would be placed.
The beginning of any piece of legislation will often articulate the principles driving it. This Bill is no different. The noble Baroness, Lady Mallalieu, was right to remind us of that. It is the overriding duty of the Lord Chancellor to provide effective legal assistance to those in need, which should be the backdrop against which all other clauses of the Bill are construed. It is therefore crucial that the first clause should provide clarity as to what that duty is, as well as on its more general nature. As presently construed, Clause 1 lacks any clarity of principle. It does not focus on the needs of the citizen or on the fact that such assistance must be effective. Instead, it presents the Lord Chancellor’s duty as being extremely narrow, focusing simply on enacting the Bill, rather than on ensuring any greater principles.
In contrast, my noble friend’s amendment seeks to remedy that fault by focusing the nature of the Lord Chancellor’s duty on being, first, effective and, secondly, according to one’s needs. The principles of effectiveness and provision according to need go to the heart of what is meant by providing proper legal assistance. It is critical that all assistance provided must be effective—what is the point otherwise? For it to be otherwise would be likely to hinder an individual’s access to the courts as well as likely resulting in a waste of money. As to need, it is important that legal aid goes to those who need it and those people only. Indeed, that is the whole point of the scheme. It is therefore important to state that unequivocally and clearly at the beginning of the Bill. Should the Lord Chancellor wish to demonstrate that he is effecting his duty properly, that duty is then stated in the Bill.
However, it is also important to note that the amendment does not place an undue burden on the Lord Chancellor. Nor does it curtail much of what the Bill strives to achieve. The Minister might be right to worry that the Lord Chancellor would be placed under too heavy a burden—a herculean task that would need a huge amount of both time and resources. However, he need not harbour such concerns unduly. My noble friend’s amendment clearly states that such a duty would be restricted to the provisions in the Bill. The amendment would simply recognise that the duty of a Lord Chancellor is to provide legal assistance, as provided in the later clauses of the Bill, but that he must do so in a manner that is both effective and according to need. This is entirely reasonable. If the Government resist the amendment, alarm bells should ring about their apparent covert intentions, and many suspicions will be confirmed about the potential ramifications of the Bill for access to justice. The amendment might go some way to assuage those misgivings. For those reasons, I am very happy to support my noble friend’s amendment.
The amendment was carried———————————————————————————————————
An amendment to continue access to legal aid by disabled people seeking representation at tribunals to determine the support which they receive:7 Mar 2012 : Column 1789
Lord Alton of Liverpool: My Lords, I am a signatory to Amendment 12. I am very happy to support the sentiments expressed by the noble Lord, Lord Howarth, and I support what the amendment says about extending this to the Second-tier Tribunals as well as the First-tier Tribunals, which are mentioned in the amendment by the noble Baroness, Lady Doocey. The noble Baroness and I have known each other longer than either of us would care to recall. I know that this is not some passing fancy on her part. She has had a lifelong devotion to the cause of disabled people. She spoke with great eloquence and conviction in Committee and she has been courageously persistent in our proceedings to raise this matter today. In the long and distant past, I worked for five years with children with special needs. Many of us in the House-the noble Lord, Lord Howarth, is one-have had personal experience of people with disability and know, as one noble Lord said earlier, some of the most vulnerable people in society. Surely how we protect and treat them is a test of how civilised we are as people.
Four out of five cases heard in the First-tier Tribunals relate to people who are disabled. Despite what the noble Lord, Lord Carlile, said, and he is right to say that disabled people are as capable as anyone else in dealing with their own affairs, but 78 per cent of those receiving advice before going to a tribunal were more likely to win their appeal than those who did not. Clearly, having professional, legal advice pays off. Who would we take that advice away from; who would we take this professional care and help away from? Disabled people will be left to their own devices. Inevitably, that will lead to more social exclusion and innumerable negative results.
Secondly, we have been told again and again that we have to do these things for economic reasons, but I hope that, when the Minister replies, he will respond to the points made by the noble Lord, Lord Carlile, about the so-called economic savings that might be brought about by these measures. As the noble Lord, Lord Newton, has told us in his remarks, it is highly questionable. There is empirical research-an academic study-by King’s College. In its report, United Consequences, it flatly repudiates and rejects the idea that savings will be made. Citizens Advice says that every pound spent on welfare benefits potentially saves the state £8.80. I certainly would want to hear from the Minister that he repudiates those findings before the House reaches a conclusion on these questions; what analysis he has made of those reports; and how, therefore, we can justify doing this on purely economic, austerity measure-based arguments of the kind that we have heard so much about during our proceedings.
The third point, which was touched on by the noble Lord, Lord Newton, and to which others have referred, is about who will pick up the pieces subsequently. Many of us have received a copy of the Citizens Advice report, Out of Scope, Out of Mind-Who Really Loses from Legal Aid Reform. That states:
7 Mar 2012 : Column 1790
“When Government consulted on the proposed changes to the scope of civil legal aid, 95 per cent of respondents did not agree with the proposals”.
It goes on to say:
“Official data shows that 80 per cent of social welfare cases achieve positive outcomes for clients, which can involve savings for other services”.
That backs up the point I made a moment ago. The report concludes:
“However, it is also clear that they would not have achieved these positive outcomes on their own. If they could be empowered to help themselves without specialist advice, casework and support from legal aid, then every CAB would rejoice, but that is not the reality. It will be a massive failure in the justice system if they are abandoned”.
It will be a massive failure in the justice system if they are abandoned. That is what we are being asked to vote on today and I hope that the House will support the noble Baroness, Lady Doocey, and the noble Lord, Lord Bach, when we decide on these matters.
The amendment was carried
Legal aid Bill blow to asbestos victims: Letter to The Times, March 3rd 2012.
Asbestos victims should not, and financially cannot, subsidise other claimants’ access to justice
Sir, There have rightly been many reports on the damaging effects of the Legal Aid, Sentencing and Prosecution of Offenders Bill on legal aid. But nothing has been reported on the grossly unjust effect of Part 2 of the Bill on victims of asbestos dying from the cancer mesothelioma.
Provisions in the Bill require terminally ill asbestos victims who succeed in a claim for compensation against negligent, guilty employers to pay 25 per cent of their damages for pain and suffering in legal costs associated with the conditional fee agreement system (CFA). The Government’s argument that this will deter frivolous and fraudulent claims is, frankly, risible as far as dying asbestos victims are concerned. The Government has identified increasing road traffic accident claims and alleged whiplash claims as the real problem (in total, whiplash claims add up to a staggering £2 billion annually), especially as road traffic claims amount to more than 70 per cent of all personal injury claims.
The Government’s additional argument that making mesothelioma sufferers pay legal costs will drive costs down as they shop around for the best “deal” is untenable as many sufferers are so defeated by their illness they never make a claim as things stand now.
Legal aid provided public money for test cases and difficult and meritorious cases to be run, until the present CFA system required losing, guilty defendants to pay. It is now proposed that one claimant must pay for another claimant’s chance to gain access to justice. Important test cases which have determined the right of mesothelioma sufferers to claim would never have been run under the new prescription.
Asbestos victims should not, and financially cannot, subsidise other claimants’ access to justice, nor can they afford to defend test cases run by rich insurers. Eighteen peers have signed a letter calling on colleagues to support all-party amendments at the Report Stage in the Lords to protect asbestos victims from a gross injustice.
Professor Lord Alton of Liverpool
Professor Baroness Finlay of Llandaff
Lord McFall of Alcluith
House of Lords
A note from Lords ALTON, AVEBURY, BACH, BEECHAM, + NICHOLAS BLACKBURN, BRENNAN, BUTLER-SLOSS, ELYSTAN-MORGAN, FINLAY OF LLANDAFF, HOWARTH, McCOLL, MCFALL, MONKS, NEWTON, PATEL, WALTON OF DETCHANT, WIGLEY
At Report Stage of the Legal Aid, Sentencing and Punishment of Offenders Bill consideration will be given to all-party amendments which protect the legal remedies open to victims of mesothelioma.
Mesothelioma is a terrible disease, contracted as a result of exposure to asbestos, and from diagnosis a victim’s life is drastically curtailed. Not qualifying for legal aid, they rely on Conditional Fee Agreements (CFAs) to fund their cases. Currently, they do not pay legal costs out of their compensation.
We set out briefly why the Government’s arguments for making asbestos victims pay 25% of their damages for pain and suffering to pay for legal costs are deeply flawed.
The Government argue that CFAs, as currently constructed, mean that win or lose, a claimant risks nothing and this has encouraged frivolous and fraudulent claims to flourish. We argue that dying asbestos victims’ claims can never be frivolous or fraudulent.
Who then is responsible for exploiting CFAs? The Government is quite clear: road traffic accident (RTA) claims, which make up over 70% of all personal injury claims, particularly whiplash claims, are to blame (in total, whiplash claims add up to a staggering £2 billion annually). We argue that RTA problems will not be resolved by punishing asbestos victims.
Additionally, the Government argues that legal costs are too high because claimants have no investment in controlling costs. Making claimants pay costs will, apparently, mean that they will shop around for the best deal. We argue that dying asbestos victims have already ‘invested’ enough, and given their pitiable condition it is risible to suggest that they will ‘shop around’.
Currently, solicitors are paid a ‘success fee’ by the losing defendant to fund very difficult but meritorious cases. This replaces funding which was available under Legal Aid. Now, one claimant must pay for another claimant’s chance to gain access to justice. Important test cases which have determined the right of mesothelioma sufferers to claim would never have been run under the new prescription. We argue that asbestos victims should not, and financially cannot, subsidise other claimants’ access to justice, nor can they afford to defend test cases run by rich insurers.
The vast majority of all work-related respiratory diseases are work-related asbestos diseases. To date, over 30,000 people in the United Kingdom have died from mesothelioma, and over 60,000 more are yet to lose their lives due to past exposure to asbestos. We argue that they suffer enough. It is iniquitous that they should lose their modest compensation to reduce solicitors’ costs. Solicitors’ costs can be reduced directly, and access to justice preserved, but not by scapegoating asbestos victims.
We very much hope you will consider supporting these amendments.
ALTON, AVEBURY, BACH, BEECHAM, + NICHOLAS BLACKBURN, BRENNAN, BUTLER-SLOSS, ELYSTAN-MORGAN, FINLAY OF LLANDAFF, HOWARTH, McCOLL, MCFALL, MONKS, NEWTON, PATEL, WALTON OF DETCHANT, WIGLEY
Page 30, line 32, at end insert—
“( ) The amendments made by this section do not apply in relation to proceedings which include a claim for damages for respiratory disease or illness (whether or not resulting in death) arising from industrial exposure to harmful substance.”
Page 32, line 39, at end insert—
“( ) The amendment made by this section does not apply in relation to proceedings which include a claim for damages for respiratory disease or illness (whether or not resulting in death) arising from industrial exposure to a harmful substance.”
Page 32, line 46, at end insert—
“( ) The repeal made by subsection (1) does not apply in relation to proceedings which include a claim for damages for respiratory disease or illness (whether or not resulting in death) arising from industrial exposure to a harmful substance