Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Butler-Sloss Excerpts

Monday 30th January 2012 Lords Chamber

[Lord Beecham]

I absolutely agree with everything that the noble Lord has just said. This is a fundamental change in the way in which litigation is to be conducted. It should not just be referred to a wholly unaccountable, although no doubt extremely worthy, group of people on the rules committee. Obviously, they are very eminent but they are not accountable, in the sense that the normal framework would be, to approve changes of this significance. Perhaps, as he develops his reply, he would deal with the point of restricting this significant change to personal injury cases when Lord Justice Jackson advocated it across the piece. Perhaps he would care also to reflect on a point made when colleagues and I met the Association of British Insurers no less, which, for example, said that it did not support means testing for qualified costs shifting at all. But, as I understand it, that is to be part of the scheme—if that is what presumably the rules committee, since it will not be part of the Bill, will say.

The noble Lord is absolutely right to raise these issues and I hope that the Minister will take this back and think again about how matters are to be progressed given the significance of the change.

[Baroness Butler-Sloss]

Perhaps the Minister will not mind if I add a very few words. I had not intended to intervene but, as a former chairman of a rules committee, I have to say that I have considerable faith in the good sense of the way in which it does its work. But the points that have been made are extremely relevant. It is not really the business of a rules committee to change something so dramatic. As the noble Lord, Lord Thomas of Gresford, has said, I would add that “unreasonable” is extremely difficult. The words used by the noble Lord are the standard words that have been used from time immemorial, as the lawyers say. “Unreasonable” is nothing like as serious as the other term but is liable to cause considerable difficulties of interpretation.

[Lord Wallace of Tankerness]

My Lords, it is very evident from the three interventions that this matter is clearly exercising the Committee. I certainly note from the experience of the noble and learned Baroness, Lady Butler-Sloss, having chaired a rules committee that perhaps we are going into territory which we may not have been in before. As to what my noble friend has said, I sometimes hesitate to put things on the face of the Bill because, as we all know, once there, they limit what a rules committee might be able to do if faced with an obvious set of circumstances where it does not believe there should be one-way costs shifting, and it can inhibit that. However, I take the point that unreasonableness could be going too far towards the other extreme in terms of its lack of clarity.

My noble friend asked: if it is not possible to put something in the Bill, what assurances could be given? That is something we shall certainly want to reflect on when considering these contributions. I am sure that we shall have an opportunity to address this again at the next stage of the Bill, and if there are assurances that can be given, I would hope that we would be able to do so. Perhaps I may leave it at that for the moment. We recognise the importance of the points that have been made.

I should restate that there already appears to be broad agreement that there should not be a primary financial threshold in personal injury cases for QOCS, although that would not necessarily apply were QOCS to be extended at some later date to other categories of personal injury. I hope that reassures my noble friend on that particular point.

Amendments 143 and 144 seek to replace the Lord Chancellor’s discretionary power under Clause 45(2) with a duty to make regulations in respect of the recovery of “after the event” insurance premiums relating to expert reports in clinical negligence cases. I can give the Committee the assurance that we intend to allow for this recoverability so that poor people can get expert reports in clinical negligence cases without having to pay for them upfront. However, we have deliberately kept a degree of flexibility around the drafting of the regulations.

The effect of Amendments 144A to 144D is to extend the recoverability of ATE insurance premiums to all civil cases. Unlike the current exception for clinical negligence, the proposed exception is intended to apply to ATE insurance which covers the risk of paying opponents’ costs as well as funding expert reports.

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[Lord Alton of Liverpool]

My Lords, I wish to intervene briefly to support the terms of the amendment spoken to by the noble Lord, Lord Bach, specifically on industrial-related injury such as mesothelioma—the issue to which the noble Lord, Lord Newton, has just alluded. We will debate that whole question later but it is worth reinforcing the point that 30,000 people have died of mesothelioma over the past 30 to 40 years and that 60,000 more people are predicted to die of this terrible disease in due course. From the time of prognosis to death, the period which elapses is usually about nine months. Whatever else, it is obvious that this is not a group of people who can bring in vexatious or frivolous cases. If the Government are minded to look for some exceptions—the rifle-shot approach that the noble Lord, Lord Newton of Braintree, has just advocated, not the blunderbuss approach—clearly this is one of those groups which I hope they will look to exempt. The measure does not even ask for legal aid; it simply asks for the status quo, which is that success fees can be paid in such cases.

[Baroness Butler-Sloss]

My Lords, the noble Lord, Lord Walton of Detchant, would have wanted to speak at this moment or, indeed, on the amendment of the noble Lord, Lord Alton. He reminded me of the appalling stories of the miners and the solicitors who eventually took virtually all their money. Whatever else is done, it is of enormous importance that one should be very strict about how much can be taken from the damages that may be received. However, more important than that is this special class of asbestos sufferers. They are not large in number, although the noble Lord, Lord Alton, gave extremely worrying figures that I did not know about. The life expectancy of these people is dependent on whether they are suffering from blue asbestos or white asbestos. They are a very special case. One entirely understands what lies behind the Government’s need to introduce this measure. However, whatever else they do, one hopes that they will recognise this particularly special case.

Domestic Violence, Crime and Victims (Amendment) Bill

Baroness Butler-Sloss Excerpts

Friday 27th January 2012 Lords Chamber

[Baroness Butler-Sloss]

My Lords, I hope to be equally, if not even more, brief on a matter which, I suspect, is not only of interest to but supported by the entire House. As a former Family Court judge who tried many child abuse cases, particularly very serious non-accidental injury cases, as they are called in the Family Court, I very much welcome this extension to the 2004 Act. Like those who have spoken before me, I warmly congratulate the noble Lord, Lord Laming, who has enormous experience of this area of the law—children and vulnerable adults—on his efforts in presenting the Bill. I sincerely hope they are successful.

It is important to recognise that this is an issue of protection of children and vulnerable adults and holding to account the perpetrators of their abuse. Where a child is badly injured in a household where several adults are living—generally mother and father or mother and her partner—it is often impossible to say which of the adults inflicted the appalling injuries from which so many children suffer. In the Family Court, we can protect the child by taking it away from the family, but it is very difficult—in many cases, impossible—to be certain who actually committed the offence.

As the noble Baroness, Lady Seccombe, said, not only are there mothers who protect their children, many mothers prefer the man to the child. She may or may not have committed the offence; much more likely is that she is covering up because the man is her support—financially and in every other way—and, when faced with the choice between a man and a child, again and again, in my experience, the woman has chosen the man. Children are not necessarily safe in the care of their mothers. That is a tragedy, but in the Family Court we can protect them. If the case goes to the criminal courts and it cannot be ascertained which of them did it, unless the child remains in care, the terribly difficult problem for the judge is to decide whether the child can go back to one of those adults. That is often the reason why the child does not go back to any adult and has to go into permanent care—to be fostered or, occasionally, adopted.

The child can be protected but at the moment the perpetrators are not brought to justice, as we heard from the figures given by the noble Lord, Lord Laming, of those who could not be successfully prosecuted. That is contrary to justice. It is not an issue of morals; it is an issue of justice, which may not be quite the same thing—but this is not the appropriate forum to discuss that. Most of us have a gut feeling that if people have committed offences or know about it and do nothing whatever to protect the vulnerable, they should be up before the criminal court and dealt with. That is what the Bill does. As the noble Lord, Lord Laming, said, it is purely an extension of the 2004 Act. The standard of proof will be exactly the same and the prosecution will be dealt with in exactly the same way, as the noble Lord set out in his speech.

It is a splendid Bill. It is exactly what is needed. It is overdue and I hope that it will be passed with acclaim by all Members of the House.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Butler-Sloss Excerpts

Monday 16th January 2012 Lords Chamber

[Baroness Butler-Sloss]

My Lords, I support Amendments 33 and 34. I have been asked by the noble Lord, Lord Low of Dalston, to present his apologies as he is unable to be here to take part in this debate. I will also speak to other specific amendments that are in my name.

Of course I recognise the need to save money, but equally we must remember the importance of the paramountcy of the welfare of the child in family cases, as set out in Section 1(1) of the Children Act 1989, which is still good law. My amendments are all practical and based on practical and personal experience of how family cases work. In this part of the Bill there is a real danger that the welfare of the child may be downgraded and even overlooked if these amendments and subsequent amendments that affect children are ignored by the Government.

Amendments 33 and 34 show how children are affected by civil and family law proceedings, either indirectly or directly, and recognise that children have separate interests to their parents—it hardly needs to be said that they are obviously far less well equipped to represent themselves and their interests. There is a serious gap that will, from time to time, need to be plugged.

Amendments 33 and 34 refer to one group in particular: children who are involved in immigration proceedings. There are five possible situations that may affect children on immigration issues: they may be facing separation from their parents because of a decision to remove a parent where the child has British citizenship; they may be facing separation because of a decision to remove the child from the United Kingdom although the parents may be here; children who are refugees or whose parents are refugees may be unable to join or be joined by their parents; or they may be unaccompanied asylum seeker children applying for an extension of discretionary leave to remain. I shall deal with victims of trafficking who are also covered by immigration issues under Amendment 61A.

I will move on to Amendments 39, 40 and 41, to speak about child abduction both internationally and in England—or in the United Kingdom. I am sure that the Minister will know that children who are abducted from one part of the United Kingdom to another country outside the United Kingdom will almost always come under the international Hague convention, because some 90 countries support it. However, internal child abduction also arises on a regular basis and is an equally important risk in parental disputes. To my dismay, there appears to be no provision to support the children and the parent who has lost the child through child abduction. Ninety-one per cent of the members of Resolution, the family law solicitors, say that abduction is a real risk in the cases which they and their clients are dealing with.

I shall cite a case which was referred to earlier this evening by the noble Baroness, Lady O’Loan—she dealt with Belfast and Barnstaple, while I have Cornwall and Cumbria, but it is all exactly the same story. If a child is taken from Basildon to Belfast—which is in fact under a different legal system, but within the United Kingdom—or indeed from Cornwall to Cumbria, where it is the same legal system, there is a very real danger that that child may never see the left-behind parent again, and the left-behind parent will not have the chance to look after and take an interest in that child.

It is absolutely crucial that the left-behind parent gets to the court quickly, to get the relevant orders to know where the child and the parent—usually the mother—are living, and to get orders for the child to be returned to its home. It is necessary to make immediate and urgent applications to a judge. However, there is no provision for this, although there is provision, as there has to be, under the Hague convention. Amendment 41 deals with the various orders that are required to be made for the left-behind parent to get to the court. I hope that this is inadvertent on the part of the Government. I hope that they have simply overlooked this particular specialist form of family law, where the child is seriously at risk in most cases if she or he does not have a chance to retain a relationship with the father.

Amendment 42 is rather specialised; it refers to cases where a vulnerable adult—often a woman who has been badly treated by her partner—goes to court for a protection order, and has to face the man who she says has been abusing her, and who will be cross-examining her. It is an extremely unsatisfactory situation, and for the woman—or occasionally the man—who is the victim to have to be cross-examined by the alleged perpetrator, is a form of extra abuse.

I move to Amendment 51, which is, if I may respectfully say to the Minister, particularly important. It deals with the issue of mediation. I am totally in support of mediation. It is the most sensible arrangement you can possibly have as far as it goes. However, the Master of the Rolls, the noble and learned Lord, Lord Neuberger, gave an interesting lecture some time ago in which he criticised the Government for treating mediation as the panacea for all ills, pointing out that it only went so far. Indeed, it does only go so far. I am totally supportive of the good intentions of the Government on mediation. However, Resolution—I come to it again—assess that 41 per cent of its cases are incapable of mediation. There are occasions when the mediator throws up his or hands in horror and says, “I cannot possibly mediate in this case”. It is perfectly obvious that forced mediation is no mediation at all.

Perhaps I may respectfully say that the Government have failed to take on board that there is a group of parents who for a variety of reasons—including drink, drugs, mental health issues or, if I can use the phrase, sheer bloody-mindedness—will not agree to anything. Over the years I tried those cases again and again. The only way that we ever got the chance of a settlement or a proper, sensible outcome, as the noble and learned Baroness, Lady Scotland, will also say, was by two lawyers banging the heads of the parents together. For some of those intractable cases, they got a result. Collaborative law is another way of getting such a result.

I will not go through Amendment 51 at this hour, but I would ask the Minister to look at each paragraph of the amendment for the circumstances in which it would be the mediator and not the parties who would say, “This case is not fit for mediation. It needs to go to court and it needs lawyers”. I make no apology for reminding the Minister that the welfare of the child is paramount. In these cases, it is the child who suffers.

I am sure that the Minister is aware of the Norgrove report on family law. In that report emphasis was placed on that very narrow line between public and private law where risk to the child overlapped the two. How on earth will the judge deal with the really serious risk factors where two parents are unfit to make sensible decisions about what should happen to their child; where social workers cannot be brought into the case if they do not agree and judges do not have the power to make social workers start care proceedings; and where guardians are not all that easy to find? CAFCASS is doing an excellent job these days but it is at the limit of its ability to cope. If judges feel that the lawyers are not there to try to settle the case and deal with the worries and needs of the children, he will have to bring in a guardian, which will cause an enormous delay and the child will suffer.

I should like the Minister to take on board the fact that parents are creating the problems. They are not solving the problems, and they are not able to solve them without a combination of the judge, the lawyers and, often, the guardian. In the absence of lawyers, I do not know how this group of private law cases will manage.

As to Amendment 51, there are also situations where one parent—very often the mother, often for no good reason—refuses to have contact with the other parent and absolutely refuses to turn up to mediation. The mediation would not get off the ground and the case would have to go to court. The child is being deprived of a parent and, without lawyers, the judge would have great difficulties. That is quite apart from the point made by the noble Lord, Lord Howarth, on the clogging-up of the courts. I know from my experience that a case involving two litigants absolutely intending to fight would not take less than a week. Absolutely rightly, the Government are keen to speed up public law cases. They are very keen to get adoptions dealt with quickly. Private law cases will clog the courts to the exclusion of public law and adoption cases.

Finally, Amendment 52 deals with the potential cross-examination of the child by a parent. Where the child is making allegations about the way in which the parent has behaved and there is no legal aid, the parent against whom the allegations are made may find himself cross-examining his own child, which is another form of abuse of the child. It would be extremely serious if that took place. I ask the Minister to reflect on these situations—which are not intended to open the floodgates, but intended to deal with specific problems that are very real and cannot just be ridden over as if they do not matter.

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[Lord McNally]

That is always the problem. If you say that one thing is more difficult it is implied that the others are easier. No, I was not implying that. I take the noble and learned Baroness’s point. One of the more difficult areas is where there is a break-up of a family and a loss of contact. I shall read what has been said and take it back.

[Baroness Butler-Sloss]

Perhaps I may add to what the noble and learned Baroness, Lady Scotland, has said. I have listened with interest to what the Minister is saying to us, but he suggested that the police would intervene even without going to court. Will he check as to whether the police are prepared to act in the absence of a court order? My experience, which is now six years out of date, was that the police were not prepared to act unless there was a court order. It would be very helpful if the Minister could find out about that very practical and basic point because it adds a great deal of force to what the noble and learned Baroness, Lady Scotland, has said.

[Lord McNally]

I promise the noble and learned Baroness that I shall go into the Lord Chancellor’s room tomorrow and say, “Baroness Butler-Sloss has asked me to ask you to clarify what you told me”. It is a very serious point. My briefing states that the police would help. She has made a relevant point about whether they would do so without a court order. I have never pretended that my knowledge on these matters was only six years out of date. In fact, my expertise is right up to date because I am learning all the time. I take on board what both noble and learned Baronesses have said, and I will try to explain to the Lord Chancellor that when I stand at the Dispatch Box I am facing a considerable amendment of experience and expertise which, dare I say it, he does not always face in the other place.

Amendment 41 is also open to the argument that it would extend to applications to prevent the child being moved by the parent with whom he or she resides and so put back into the scope of legal aid a very common type of family dispute. It is hard to estimate what effect this would have on our savings, but it would inevitably run into many millions of pounds. However, I will go back. As we know from other aspects of this thing about the rights of fathers—the noble and learned Baroness gave some of the horrific statistics about family break-up—we are touching a very sensitive area and I will raise these matters with my right honourable colleague.

Amendment 51 seeks to guarantee the availability of legal aid, subject to the means and merits test, for every family dispute that is not resolved by mediation. In considering the effect of this amendment, it is important to remember that both privately paying and publicly funded clients are already required to consider mediation before bringing proceedings. Given those existing requirements, it is difficult to see how this amendment would do anything other than maintain the status quo, retaining legal aid for all or most family cases. That would completely undermine our targeted approach to legal aid reform. We have to reduce expenditure on legal aid, but we also want less reliance on litigation as a means of solving problems. This amendment would do the opposite. If the fact that mediation had not resolved the parties’ differences were to become a route to legal aid, it would have the unintended consequence of discouraging people from paying more than lip service to the mediation process and reducing genuine engagement with it.

The Government’s position is clear. We believe that it is right to encourage families, where appropriate, to resolve their disputes without going to court. Accordingly, for most divorces, child contact applications or ancillary applications to divide up the family assets, legal aid will no longer be available. We want to prioritise mediation, which can be cheaper, quicker and less acrimonious than contested court proceedings. Legal aid will therefore remain available for mediation in private law family cases. We estimate that we will spend an extra £10 million on mediation, taking the total to £25 million a year.

However, we accept that mediation might not be suitable in every case, such as those involving domestic violence. Legal aid will remain available for private family cases where there is evidence of domestic violence and cases where a child is at risk of abuse. We will be turning to the matter of domestic violence on Wednesday. I want to make clear that funding for victims of domestic violence seeking a protective order will remain available as at present; that is, we will continue to provide civil legal aid where a person is applying for an order for protection against domestic violence, such as a non-molestation order or an occupation order. We will also continue to waive the financial eligibility limits in these cases. Again, the exceptional funding scheme will ensure the protection of an individual’s right to legal aid under the European Convention on Human Rights, as well as the rights to legal aid that are directly enforceable under European law.

Amendment 52 is aimed at providing legal aid for any adult party in family proceedings where a child party may give oral evidence, presumably to prevent cross-examination of the child by the alleged perpetrator. I understand the concerns which the noble Baroness who moved the amendment is trying to address here, but we are seeking to ensure funding for the most vulnerable in society. We do not think that to automatically extend funding to an alleged perpetrator fits well with this. It would be a mistake to assume that the only means of protection for the prospective witness is funding representation for the prospective questioner.

The situation which the noble and learned Baroness seeks to address can already occur in the courts. Should a victim of abuse face questioning from their abuser, judges have powers and training to manage the situation, to make sure that the court’s process is not abused and that hearings at which oral evidence is given are handled sensitively. In family proceedings, for example, the court is specifically empowered to limit cross-examination—it can have questions relayed to the witness rather than asked directly—and can use video links and intervene to prevent inappropriate questioning.

That brings me to the end of that list. I am not waving a white handkerchief and making specific concessions, but I take the point made by the noble and learned Baroness in closing that this has been an array of experience and expertise that we would do well to consider, and this we will do before we bring these matters back on Report. I ask the noble Baroness, Lady O’Loan, who started this debate, whether she will now withdraw her amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Butler-Sloss Excerpts

Monday 16th January 2012 Lords Chamber

[The Lord Speaker (Baroness D'Souza)]

My Lords, I should remind the Committee that, if this amendment is agreed to, I cannot call Amendments 23 to 27 for reasons of pre-emption.

[Baroness Butler-Sloss]

My Lords, I have put my name to Amendments 23 and 27, which are very much on the same lines as the amendment by the noble Lord, Lord Faulks. I find it absolutely astonishing that the Government should, in Clause 8, have an arrangement whereby they can delete legal aid but they cannot bring it back. It is particularly astonishing because a number of judges who know what they are talking about—two Supreme Court judges who have been judges in the Family Division and the present president of the Family Division—all say that this is a false economy. I very well understand that it is absolutely necessary to cut the legal aid bill. However, if the Government cut it in the wrong way, as I suggest they are doing and as I shall say in the debate on later amendments, they cannot put it back if it requires primary legislation.

As the noble Lord, Lord Faulks, has already said, the whole purpose of these amendments is not to destroy the Bill but to allow the Government, or indeed a subsequent Government, a degree of flexibility so that they do not have to use primary legislation to achieve their purpose. Therefore, I very much support all the amendments in this group.

[Lord Goodhart]

My Lords, I entirely agree with what has been said by the noble Lord, Lord Faulks, and the noble and learned Baroness, Lady Butler-Sloss. At present, as has already been pointed out, the Bill authorises the Lord Chancellor to omit the services under Schedule 1 but it does not permit him to extend his powers by adding to the services in Schedule 1. Any extension of the power would therefore require primary legislation. By contrast, the deletion of existing services would, under Clause 132(5), require only the affirmative procedure, which is quicker, simpler and cheaper than primary legislation.

From long service on the Delegated Powers Committee, I am satisfied that it would be acceptable to use the affirmative procedure to use Clause 8(2) to delete services that now exist under Schedule 1. We should recognise that as desirable. From that, it follows that we should make it as easy as possible to reconstruct the provisions that have been cut and that ought to be restored when the financial situation permits. That would be done most swiftly by including in the Bill the ability to introduce powers to add new services by the affirmative procedure, as well as a power to remove existing services. That will cost nothing today but it will help to satisfy those of us who accept that some reduction is needed now but who do not want it to continue when the reduction is needed no longer. In some years to come, that will be the case.

Therefore, if we are to go ahead with the Government’s proposal, it is essential to add to it the requirement that the Government accept that in the future, when it is possible on economic grounds to do so, existing provisions can be added and not just deleted by the affirmative procedure in both Houses.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Butler-Sloss Excerpts

Tuesday 10th January 2012 Lords Chamber

[Lord McNally]

One of the joys of this job is answering questions on the law posed by learned QCs. I honestly do not know whether that situation would be judicially reviewable. However, we do not think that it is necessary to include “must”. We have made it very clear that a sensible Lord Chancellor would consult these bodies and perhaps if some future—

[Baroness Butler-Sloss]

I am very grateful to the Minister but, speaking as another lawyer, the problem with “may” is that something may not take place. That is the point that the noble Lord, Lord Carlile, is making. If the Lord Chancellor has to do something, it is straightforward. However, if he may do something, he does not have to do it. The words used by the Minister may not actually meet the point.

[Lord McNally]

But if he “may” and he does not do it, again from my layman’s view and from what I gather my noble friend Lord Carlile was saying, that “may” would be tested by judicial review.

[Baroness Butler-Sloss]

How is that acceptable?

[Lord McNally]

The noble and learned Baroness asks that from a sedentary position. That is the position that the Government have come to. Again, my right honourable and learned friend at the other end of the Corridor will see this exchange. Whether or not this is a matter on which one should go to the wall, I do not know. I am not sure how many consultations went on with the previous Administration.

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[Lord Howarth of Newport]

When the Minister replies, will he assist the House by telling us what will be the manifestations of the independence of the director of legal aid casework? For example, will the director produce an annual report to be laid before Parliament or in some other way made accessible to the public? Will he be free to make public comments, publish articles or take part in discussions on the radio or television? How will we know that he is independent? What will be the safeguards against him being dismissed by the Lord Chancellor for reasons of political convenience? We all remember the unhappy circumstances in the mid-1990s when the Home Secretary of the day dismissed the director-general of the Prison Service. This relationship may not be analogous; on the other hand, it would be helpful to be reassured that it could not be analogous.

[Baroness Butler-Sloss]

My Lords, there is a very real difficulty about the whole of Clause 4 because there is nothing in it that suggests that there is any degree of independence in the director, other than in subsection (4). I respectfully agree with all noble Lords who have spoken so far about the absolute necessity of having the word “independence” in a clause of this sort. Without it, the clause does not show that the director would be independent on general issues as opposed to specific cases.

[Baroness Prashar]

My Lords, I, too, support the amendments, particularly Amendment 15 in my name. I concur with all the comments that have been made so far because I am particularly concerned about the independence of the director of legal aid casework. Institutional pressure can work in very subtle ways. The director will be a civil servant and the new executive agency will be much more closely integrated into the machinery of government and subject to supervision by the Ministry of Justice. We know that the pressure to save resources can bear on individuals and therefore it is very important that there is a constant reminder that this person not only is independent but acts independently. Therefore, we need to build in some safeguards. While I am on my feet, I would like also to say that the other safeguard is the one in Amendment 18, which is about showing that the decisions made by the casework director are actually reviewed. I strongly support both these amendments. They are very sensible and I hope that the Minister will give concessions on them.

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There you have the difficult issues on the break-up of a marriage or a relationship sorted out without the need to go to court and with the lawyers having no incentive to make it go to court because if there is no agreement, they drop out and do not continue to act. This process is spreading across the country. To my mind, it is much more positive than mediation, and I think that it deserves a specific mention in the Bill. It can of course be called another form of dispute resolution, but I do not think that all our focus should simply be on mediation in front of a mediator, which frequently does not work. This is a system that is working and which should be funded and should be part of the civil legal services envisaged in Clause 7. I beg to move.

[Baroness Butler-Sloss]

I am an honorary member of Resolution. I would like the Committee to know that Resolution has extremely high standards in ensuring, if possible, that its clients settle every case which the lawyers deal with. It has a very impressive protocol on how each member of Resolution should behave in family law cases. I entirely agree with the noble Lord, Lord Thomas of Gresford, about the importance of collaborative law. As I understand it, it is the brainchild of Resolution, and Resolution is doing it with a view not to making a lot of money from it but to doing something to help families who otherwise will come before the courts. It is an admirable scheme run by an admirable organisation.

[Lord Beecham]

My Lords, like the noble Lord, Lord Thomas, I was unaware of collaborative law until I read the briefing from Resolution, but I congratulate the organisation and the noble Lord on bringing these amendments to the Committee today. In the run-up to the Bill, the Government laid great emphasis on the need to find alternative methods of resolving disputes, and particularly on mediation. Mediation can undoubtedly play a role but it is not a straightforward matter. As I said on Second Reading, particularly where there is no equilibrium between the parties—or, to use the other phrase which has been bandied around your Lordships' House for some time, no equality of arms between the parties—mediation is not particularly suitable.

Certainly, those of us who have practised family law have often found in these cases that one party or the other—usually the husband—plays a dominant role in the relationship, particularly when it comes to litigation. All too often in my experience the other party—usually the wife—gives way. Mediation is not an adjudication and it is not a question of reaching an agreement between equals. Even if it were more balanced, it is interesting that the Government’s own projection was that out of 230,000 family cases only an additional 10,000 would be referred for mediation once the system changed as the Bill envisages. In any event, it was clearly not going to extend very much further than it does at the moment.

As the noble Lord has indicated, this proposal is of an entirely different character. In particular, there will be legal advice available—there will be somebody with the parties—and that should redress the balance that is so often missing in mediation and should lead to agreement. In fact, this was something that the previous Government had encouraged. Certainly there was the intention—I am not sure if it was realised—for legal aid to be made available for this on the basis of modest fixed fees being paid to the lawyers involved. As the noble Lord has pointed out, there was no incentive for those lawyers to prolong the case or see that it went further.

I understand from the briefing from Resolution that there has been some discussion—or at least correspondence—with the ministry, which seemed to warm to the idea and indicated that while it was recognised that Schedule 1 to the Bill only refers to family mediation,

“we think that should we wish in future to fund, for example, collaborative law, this could still be achieved. This might, for example, be through the issuing of guidance about what we wish to cover under the term ‘mediation’”.

It is not mediation, as Resolution itself points out, it is something distinct and different and, I suspect from the perspective of many of us, rather better and more useful than mediation.

The amendment deals only with family law. In principle, this process could be taken further—for example to things like employment or perhaps even debt cases, where a less elaborate process than the full litigation which is currently available but which will no longer be available to be supported by legal aid can give way to a process analogous to that which the noble Lord has outlined in the case of family law. There is great potential in this, and it is a better way of reducing the burden on the courts and the costs of public—or indeed private—funding than mediation in many cases.

I hope that the Minister will acknowledge that there is merit, both in the principle and in the amendment that the noble Lord has moved. Perhaps he will consider whether that same principle might be extended to other areas which it is the Government’s intention to remove from scope—not all areas, obviously, but there may well be some—even if it is not possible to identify those at the moment because there would have to be further consultation, and to perhaps bring back an amendment that would allow for additions to what might be brought within the framework of collaborative law, in the same way as subsequent amendments will allow for the addition as opposed to the deletion of items from scope. In that way, we would have a more flexible system that was able to adapt to changing circumstances and a changing ethos within the legal profession and advice services, and build on what appears to be a very successful initiative.

I hope that the Government will agree to take this back and look at it in principle from a supportive standpoint, and that we can end up with something very much along the lines of the noble Lord’s amendment, possibly with the additional factors to which I have referred.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Butler-Sloss Excerpts

Tuesday 20th December 2011 Lords Chamber

[Lord Howarth of Newport]

It was a very good idea of my noble friend Lord Bach to table this amendment, and I do not want to introduce a jarring note because I am sure that we want to be consensual on this matter, as on others, but I make the point that if more people are going to have to represent themselves in tribunals and courts, they are going to need better opportunities to inform themselves about the law and it is not quite clear how that is to happen, not least against the background of reductions in funding from the Department for Business, Innovation and Skills, the Ministry of Justice and local government for CABs, a matter we touched on earlier this afternoon.

The need is going to be acute, and I fear that it will be the greater because with the reductions in legal aid there is a risk that more of our people will feel alienated from our society. They will no longer have confidence that the legal system will sustain all their legal rights when they find themselves in baffling situations of conflict in which they feel that they may suffer injustice and that there is no one there to champion them. That is dangerous and risks disaffection from the state and the justice system, and would develop cynicism about the law. That is a cultural trend that we may need to anticipate and the Government will need to think deeply about how they might mitigate and counter it.

When the Minister replies to this debate, it would be helpful if he would tell the House a little about how the Government envisage general information about the law and the legal system may be provided. It is not a duty on the Government, as expressed in the Bill, but presumably they are contemplating this at least as a possibility. I certainly think that they should do so.

The noble Lord, Lord Phillips of Sudbury, mentioned with legitimate pride the Citizenship Foundation. But we have learnt, I think this week, that citizenship is to be removed from the national curriculum. Once again, that underscores the importance of finding ways to help a new generation of young people to be aware of their responsibilities and rights as citizens. It may well be that there are excellent members of the legal profession who already visit schools and do pro bono work in helping to advance the legal education of our young people. I hope that that is so. Again, I do not know whether the Government have plans to encourage more of such activity.

I think that we can all remember the days when the law reports in the newspapers were very much fuller and the serious newspapers felt that it was their responsibility to communicate the important cases and decisions in the law. I may be wrong but I have the impression that law reports in the broadsheet newspapers are now more perfunctory than they were. Of course, the tabloid treatment of legal issues is almost entirely sensational. There is a challenge as to how more responsible, more thoughtful, more informative and more effective education through the media can be achieved. Information technology must offer new and better possibilities. I do not know whether the Ministry of Justice is thinking of developing its own website or of encouraging others to develop websites that may help to supply the present deficiency.

If we had less law and clearer law, and if we had more law codified in relatively succinct and simple terms, it would be easier for the people of this country to understand it. Finally, I therefore ask the Minister to say something about the Government’s plans to support the Law Commission in pursuing its perennial task of bringing the law up to date and making it relatively accessible and comprehensible for lay people.

[Baroness Butler-Sloss]

My Lords, I share with the noble Lord, Lord Phillips of Sudbury, the commendation of the Government for putting in the extraordinarily interesting and, I think, very valuable subsection (3) in Clause 1. It is excellent. The only thing that I do not understand is why the word is “may” and not “must”. One starts by knowing that whatever happens in the latter part of this Bill, we are bound to have a situation where the Government will have less money to put into legal aid. As the noble Lord, Lord Howarth, has pointed out, consequently, more people will have to deal with their own cases.

It is very important that there should be an obligation, rather than just the opportunity, for the Lord Chancellor or the Ministry of Justice to have some imaginative ideas to help people who are going to have to do their own cases. The word “must” should be in the Bill. I am somewhat surprised that the Government, having gone so far with this imaginative idea, did not think that it was necessary to make it compulsory.

[Lord Elystan-Morgan]

My Lords, I support the amendment and congratulate the Government on their imaginative development in relation to this matter, but I too accept that it should be mandatory rather than discretionary. As the noble Lord, Lord Howarth of Newport, mentioned, there is the problem of the unrepresented defendant—the bane of every judge’s life, particularly, if I may say so, that of the circuit judge. Often one found in a perhaps not uncomplicated situation two unrepresented defendants. One would have to spell out to them with bullet points essentially what the civil law is. One would then have to explain that if the claimant could on a balance of probability establish the case, he or she would succeed. If not, the other side, the defendant, would triumph.

However, it is not really the unrepresented defendant, complicated though the situation is, that this matter deals with, but the person who has not made a claim at all and will possibly never make a claim. I think it must have been around 10 years ago that I saw a memorandum from the Law Society. It had conducted a comprehensive survey across the country and found that around 30 per cent of straightforward industrial claims which had every prospect of success were, for some reason or another, never pursued. That is the essential community that this piece of legislation is aimed at. Therefore I commend the Government on their imagination, but to my mind there is no earthly reason why it should not be mandatory rather than discretionary.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Butler-Sloss Excerpts

Tuesday 20th December 2011 Lords Chamber

[Lord Howarth of Newport]

I hope to be able to do that. I hope that I have not been unduly partisan, but we all feel strongly on this issue and I very much hope that noble Lords on the Liberal Democrat Benches, who I understand feel strongly on the issue, will explain their case to us and, when it comes to voting in the Division Lobby, will act according to their professions. Perhaps in that remark I am becoming a little too party political—for which I apologise to the Committee.

If the Government say that a national debate is taking place, I would reply that the 5,000 responses to the Green Paper demonstrate that there is a very strong consensus against what they propose and that they would be wrong to defy that consensus.

[Baroness Butler-Sloss]

Perhaps I could ask the noble Lord a question. I listened with great care to what he said. It would be extremely helpful to know where his argument is directed. Is it intended to support or oppose Amendment 1?

[Lord Howarth of Newport]

I will come to that in a second. The noble and learned Baroness will be pleased to know that I am about to wind up. We should all be grateful to the noble Lord, Lord Pannick, for tabling an amendment that challenges us to debate the principles against which the detailed amendments should be judged.

I conclude by saying that I believe that the Government have no mandate for what they seek to do. They have no political or moral authority and no permission from the people to take away their right of access to justice and to dismantle that part of the justice system. It would be a dereliction of our constitution if the Government and Parliament were not to resolve to spend the money that is genuinely necessary to secure access to justice for all. I do not know whether the noble Lord, Lord Pannick, will press his amendment to a vote. If he does I will certainly support it. If he does not, I hope that when we come back to the issue on Report, he or others will table an amendment that fairly and squarely insists on the fundamental principle. If they were to table the amendment proposed by the Constitution Committee in all its principled directness and simplicity, that would be preferable.

--- Later in debate ---

[Baroness Kennedy of The Shaws]

My Lords, my starting point was the same as that of my noble and learned friend Lord Goldsmith, in that I, too, felt very alarmed that this amendment seems to be too concessionary because it was acknowledging too much on the resource front. However, I acknowledge now that it pins down the question of whether there is a constitutional issue here. If there is, it has to cut across all the areas of law.

I was always battling the previous Government over their cuts to legal aid because of what they meant to quality. What concerns me about the Bill is that it takes whole sections of law out of the purview of legal aid so that medical negligence is not included, and nor are family matters unless there is domestic violence. It is the business of creating whole areas that are not covered by legal aid that is a source of alarm to me, and that is met by the amendment. If you are committed constitutionally to access to justice, you cannot create whole areas that are excised from legal aid. That is how I would read it now.

There are two things I want to say pre-emptively before the Minister stands up to reply. First, one of the things that is always said by the Minister responding on issues like this about legal aid is, “Look how many lawyers have spoken”, as though somehow or other we are the beneficiaries, we are all in this great trade union and we are basically protecting a closed shop. I say to the noble Lord, Lord McNally, known to us all as a decent and fair man, that it is not surprising that lawyers will by and large be the people who speak on this. We know from our work in the courts that it is the poor who will be disadvantaged. It has been my experience while acting in the courts that the disadvantaged will always be those with few resources. We have to make provision for them. That is what access to justice is all about; we know that from our experience. This is nothing to do with protecting the interests of lawyers.

Secondly, on looking for cuts, I have always said to the Government, and I said it to the previous one, that there are other areas where we can make savings. It has always been a source of amazement to me that when the Government need lawyers—for example, when Treasury Counsel sought representation for different government departments—they are not paid at legal aid rates; they are paid at commercial rates. They are paid the sort of money that the corporate sector pays its lawyers. If we want to save money, we should be making serious savings in what government departments pay lawyers for representation. It was always a source of amusement to me that when the Hutton inquiry took place and the Prime Minister at the time, Mr Blair, needed representation, it was to Mr Sumption that he turned—one of the most expensive barristers around. I do not think that it was Mr Blair’s own purse that paid the bill; it was the taxpayer. I would like to see the Government making cuts with regard to the lawyers that they choose to represent them and that pocket of money distributed to those who really need representation—the poorest in our society.

We are concerned that there is a constitutional issue here. Whole areas of law should not be taken out of the purview of legal aid.

[Baroness Butler-Sloss]

My Lords, I wonder whether I might make some brief comments, bearing in mind the time. I would like to add to what has been said. It has largely been lawyers who have spoken, and I very much hope that noble Lords will not give less weight to the names on this first amendment or to the lawyers who have supported it. That is, as the noble Baroness, Lady Kennedy, has just said, inevitable because we know what goes on on the ground. As a former judge, hearing mostly legal aid cases, I have clear knowledge of what happens on the ground.

The lawyers who have spoken are all very distinguished. They have done a great deal in the past and indeed are still doing it. What they have to say should resonate with all Members of this House because these are not party political issues. I very much hope that no noble Lord will make them party political issues. Seeing as people have spoken from all sides of the House, it would be good if no one spoke any longer in a party political way. This issue is too important for us to do so.

To recognise and accept the amendment would not drive a coach and horses through the Bill. On the contrary, it recognises financial restraints and in my view is very shrewdly phrased. I do not believe that it has the effect that the noble Lord, Lord Phillips of Sudbury, was suggesting. There is nothing to stop us dealing with other areas where we would say it is necessary to have legal aid and it would not be possible for the Government to say that such legal aid should not be forthcoming. However, one has to recognise reality. We have to recognise that not every aspect of the current legal aid bill can continue to be paid. There are areas highlighted by amendments—some of them my own and some from other noble Lords—which we have to look at and say that there should not be cuts. One example of that is private law.

This amendment sets out in simple language the right of citizens to have access to justice in general terms. It is an amendment that would be extremely difficult to oppose and I strongly support it.

[Lord Lester of Herne Hill]

My Lords—

Crime: Youth Justice

Baroness Butler-Sloss Excerpts

Monday 24th October 2011 Lords Chamber

[Baroness Butler-Sloss]

My Lords, will the Minister ensure that the new youth justice division will work collaboratively and regularly with the Department of Health and the Department for Education?

[Lord McNally]

I can give that assurance absolutely. One of our key approaches across the criminal justice system is to make sure that we have an holistic approach to offending, which particularly applies in the youth justice system.

Legal Services Act 2007 (Approved Regulators) Order 2011

Baroness Butler-Sloss Excerpts

Tuesday 5th April 2011 Lords Chamber

[Lord Thomas of Gresford]

It is a pleasure to follow the noble Baroness, Lady Hayter, in her recommendation of ILEX. We were talking earlier about social mobility. It is exactly as she says, ILEX has provided a route to professional qualifications for many people who did not have the background, and sometimes not the university background, which would enable them to qualify any other way.

In my youth, managing clerks were a very important part of the solicitors’ branch of the profession. They were highly experienced people but in those days they could not appear in court. It was always very useful to follow the advice and the instructions that they gave and to enjoy the personal connection that they had with clients. We have moved on since those days and we now give members of ILEX the opportunity to acquire audience rights, which they have exercised very competently. Associate prosecutors under the CPS have done a great deal of work that would otherwise occupy a great deal of time and money and involve qualified lawyers, which is unnecessary. I very much support this measure.

Advocacy is a skill that cannot really be taught: either you can do it or you cannot. Much of the ability to be an advocate is acquired through experience. I am sure that ILEX, in performing its training and regulatory function, will ensure that those who go into court are fully conversant not just with the law that they have to apply, and that they have the ability to stand on their feet and speak, but that they will have a knowledge of ethics because, so far as prosecution is concerned, legal ethics is a very important part of the responsibilities of the advocate. I think, for example, of the necessity to disclose fully any evidence that may be in the hands of the prosecutor which could assist the defence. These matters do not necessarily come to the mind of an untrained person. I look to ILEX to continue its excellent training function and to ensure that these associate prosecutors have the full competencies to enable them to fulfil their role. I very much support the order.

[Baroness Butler-Sloss]

My Lords, I also support this statutory instrument. ILEX has well demonstrated that associate prosecutors can play a part in the criminal justice system. I endorse the important points that the noble Lord, Lord Thomas of Gresford, has made about advocacy and, very importantly, about ethics.

The noble Baroness, Lady Hayter, talked about this measure being a step and a progression. I mention a word of caution in this regard. ILEX has had enormous experience with managing clerks. Like the noble Lord, Lord Thomas of Gresford, when I was a young barrister I benefited enormously from the advice of the managing clerks, who often kept me straight in court. However, if they choose to move into another field outside crime such as the civil or family field, that ought to be viewed with appropriate caution. I note that the Explanatory Memorandum to the statutory instrument states:

“The Lord Chief Justice raised a concern that any potential future extension of APs’ rights must be subject to full consultation with the judiciary and other interested parties”.

Associate prosecutors have undoubtedly gained expertise in the field of prosecution but they have not gained it in either civil or family work, with which I am much more familiar. It is important that that matter should be considered by the Legal Services Board and, indeed, by the Lord Chancellor to ensure that associate prosecutors have the necessary expertise to take that next step, which should be taken with caution. However, in saying all that, I endorse entirely the suitability of the statutory instrument.

Public Bodies Bill [HL]

Baroness Butler-Sloss Excerpts

Monday 7th March 2011 Lords Chamber

[Baroness Butler-Sloss]

I support many of the coalition Government’s initiatives on criminal justice, which makes it absolutely surprising to me that, among all the good initiatives, they should go in for the idea of abolishing the Youth Justice Board. I strongly support the noble Lords who have spoken to the amendment.

It seems extraordinary to me that a government department, the Ministry of Justice, which has a huge remit and numerous issues that it needs to resolve, would want to take in-house dealing with youth justice. If it chooses to do that, there will be an inevitable loss of expertise and specialisation in relation to child and youth offenders, who are, as the noble Lord, Lord Ramsbotham, said, wholly different from adults and need to be looked after separately.

There is a huge importance in continuing the good work of reducing reoffending—and there has been a substantial reduction in reoffending—but it needs to go much further. To achieve this, we need a separate body from government to monitor and support that important initiative of reducing reoffending. Could the Government think again and consider that if it works, why break it?

[Lord Dholakia]

My Lords, I am delighted to speak to this amendment in the names of the noble Lords, Lord Warner and Lord Ramsbotham. During my time on the Front Bench for the Liberal Democrats, I have been a firm advocate of the work of the Youth Justice Board. Even now, I continue to be so, despite the fact that it may affect my promotional prospects in the coalition Government. I would go even further. Despite my criticism of the plethora of criminal justice legislation in the life of the previous Government, I have held out YJB as a success. Credit must be given to the noble Lord, Lord Warner, followed by Professor Rod Morgan and now Frances Done. Each of these individuals, as chair of the Youth Justice Board, has provided sound leadership and positive outcomes. Their contribution to the work of the YJB should be recognised and applauded.

My interest has not been limited to the YJB; in fact, the noble Lord, Lord Ramsbotham, will recollect that he advocated a debate on a women’s justice board, and I was delighted to support him in that initiative. It is hardly appropriate for me to opt out of my support for the Youth Justice Board.

I am delighted that my noble friend Lord McNally has written to noble Lords in advance of this debate. I thank him for that, as it helps to clarify the Government’s stance on this matter. I commend my noble friend for maintaining a dedicated focus on the needs of children and young people—precisely the objective of the Youth Justice Board. I am delighted that he intends to retain the youth offending teams which deliver youth justice on the ground—precisely the objective of the Youth Justice Board—and that those are not going to be abolished. Again, that is very much a sound judgment.

I am also assured that the department does not intend to dilute in any way the commissioning of a secure estate that is driven by the needs of young people and that the YJB’s oversight and commissioning role will be preserved. As the noble and learned Baroness has just mentioned, the question therefore arises: why mend the system if it is not broken? Would it not be better to retain the YJB and to amend those aspects of its role that the coalition Government want to change, in line with their commitment to localism?

The YJB has a positive story to tell. It has diverted young people from the criminal justice process, which is remarkable when we think that 74 to 75 per cent of young people offend within two years of leaving a penal institution in this country. It has also helped to reduce the reoffending rate, the effect of which can be seen in the reduced numbers in our penal institutions. I suspect that its success depends, to a great extent, on the fact that it is an arm’s-length body. That factor may be compromised if the main functions are to be delivered within the Ministry of Justice policy group.

I suggest to my noble friend the Minister that the best way to proceed is perhaps to allow the YJB to continue its present functions but at the same time to introduce pilot schemes in some areas, to see which of the two systems is better able to meet the needs of young offenders. Perhaps my noble friend could look at this suggestion and come back on Report so that we can be satisfied on the most appropriate way to tackle this problem. It is right that we devise a system that is effective. Public confidence will be shaped by the quality of the service that we provide rather than by looking at a simple argument of reducing the resources.