Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Butler-Sloss Excerpts

Wednesday 14th March 2012 Lords Chamber

[Lord Walton of Detchant]

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.

[Baroness Butler-Sloss]

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.

[Lord Wigley]

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.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Butler-Sloss Excerpts

Monday 12th March 2012 Lords Chamber

[Lord Newton of Braintree]

My Lords, perhaps I may intervene briefly and almost reluctantly, because, having been rather rebellious last week on the Bill, I have been struggling to find good reasons for not being rebellious this week. I have to say that it is very uphill work. Certainly, when I read all the briefing on this debate from various quarters—the Immigration Law Practitioners’ Association, which in turn quoted the Administrative Justice and Tribunals Council, to which I shall return in a moment, and a variety of other bodies—the Government’s case got thinner and thinner with every word I read. My view has been reinforced by the points made this afternoon.

The mantra is that all this is necessary because we have such a big debt. I have said several times, as the noble Lord, Lord Pannick, said, that I entirely understand the need to tackle the country’s financial problems. It does not necessarily follow that this of area of legal aid has to bear an equal share. Certainly, my recollection of the rhetoric of the coalition agreement was that we would tackle the debt problem while seeking to protect the poor, the weak and the vulnerable from the worst effects of the country’s difficulties. I am bound to say that I found it very difficult to square that rhetoric with some of the stuff in the Bill.

I shall say something even more uncomfortable to my noble friends on the Front Bench. The conclusion to which I am being forced, given some amendments, particularly those on welfare benefits and on this matter, is that—and this is not the first time in history—a department, in this case the Ministry of Justice, has either acquiesced in or been coerced into a settlement that is bordering on inconsistency with the fulfilment of its objectives in terms of the promotion of justice in this country. I find that very sad, particularly when I look at some of the things for which the Government have managed to find money like a rabbit out of a hat on one or two occasions that it might be tendentious for me to quote. There is therefore a tension with the overall position of the coalition on what we are doing here.

I shall refer only briefly to some other matters, because they have all been touched on. I think that the House is well aware from earlier discussions that for a decade I was chair of the Administrative Justice and Tribunals Council and its predecessor, the Council on Tribunals, until I became time-expired. I had nothing to do with the council’s comments on this proposal, but it would not surprise anyone to know that I agree with it. Perhaps it is therefore even less surprising that the Government appear to be hell-bent on abolishing that council, because they do not really like anybody who—I am sorry, I should not say that. They are not very happy with people who make comments that they do not welcome. As the AJTC and the judges quoted by the noble Lord, Lord Bach, have said—two or three of whom are senior judges—the whole thing is so impenetrable that they cannot, in effect, understand it and could reach different conclusions on any given case, and that the whole thing needs to be clarified and sorted out. What is the answer to that?

We have heard references to how advice workers can help, but we have also heard—and it is the situation—that under the regime of the Office of the Immigration Services Commissioner, CAB people, for example, are largely prohibited from offering a good range of advice in this field. I think that I have got that right, and it is certainly what the briefing appears to say. Where do we stand on that? Again, if I have correctly read what I have been sent, there is a suggestion that social workers might advise people in certain circumstances. I doubt that they are qualified at the moment. I doubt that they feel qualified. Are they going to be trained as legal advisers in place of lawyers? A lot of further thought is needed before we go down this path. I will listen with interest to the Minister, but at the moment the case has not been made for the proposition that is opposed by the amendment.

[Baroness Butler-Sloss]

My Lords, I shall concentrate on the issue of trafficking, which noble Lords will have heard me mentioning from time to time. First, I congratulate the Government, as I have done on several occasions, on their strategy on human trafficking, but I remind the Minister that Article 12.1 of the Council of Europe trafficking convention, which I am delighted that the Government have signed, states that each party should provide assistance to trafficked persons that should include at least,

“counselling and information, in particular as regards their legal rights and the services available to them, in a language that they can understand”.

That is four square within what the noble Lord, Lord Bach, proposes. The Government will be allowing a dramatic gap in their strategy if they do not allow legal advice to trafficked victims.

I am extremely grateful to the noble and learned Lord, Lord Wallace, for supporting, at least in principle, an amendment which I tabled on domestic servitude and women claiming in the employment tribunal legal advice until the door of the court. Of course, to know that they have a claim, they need to be able to stay in this country to make it, so they will need a residence permit. Unless they are seeking asylum—and a large number of domestic workers will not—they will not be able to claim a residence permit. They may or may not go through the national referral mechanism; but they will be deported and they will lose their legal rights and claims.

What I have had from the Government is only the second part. What is needed is the first part, to enable those people who are victims of trafficking, the most vulnerable, deprived and traumatised of all people, who have the misfortune to be brought to this country for reasons over which they have no control. They will need help. The only way that they can get that help is to seek help from NGOs or whoever. As the noble Lord, Lord Newton of Braintree, said, and as I am informed, immigration advice is regulated. Consequently, NGOs and other organisations will not be able to give immigration advice to trafficked people, so they will be completely stuck. They will not be allowed to get legal aid and they will not be allowed to have immigration advice, which would lead to being able to deal with their immigration problems. That means either that NGOs will break the law or that those vulnerable people will be stranded without any ability to cope and, almost certainly, not having much grasp of the English language.

Many domestic workers, in particular, but also other workers, have legitimate claims, such as an application to the employment tribunal, for which they require a residence permit at least for a certain period. I believe that residence permits last for up to about one year. I understand that the police are prepared to seek residence permits, but only if the trafficked victims are prepared to give evidence in the criminal court. There is a gap here which the Government must fill, or they will be in breach of the convention obligations which they have signed.

[Baroness Hamwee]

My Lords, like others, I have been aware of the paradox that some senior lawyers have commented on the complexity of immigration law, but that if those extraordinarily senior lawyers had attempted to give advice they would be committing a criminal offence.

I do not want to repeat all the powerful points made in this debate, but an obvious point to me is that so many of the not-for-profit organisations which are not approved to give advice in this field work on something less than a shoestring. We have seen some of them folding not so long ago. Those which are approved are very stretched. They may not survive if legal aid in this area does not remain available. I do not suppose that the financial criteria for being granted legal aid under any part of the scope will be that generous—one's means must be very low to qualify. Like the noble and learned Baroness, I very much welcome the announcement that victims of trafficking will be eligible to receive legal aid. I wait to see the detail on that.

I just wanted to make two points. First, not everyone who wants to stay either wants to or can apply for asylum—I recognise that that will remain in scope. Secondly, their very difficulty with immigration status restricts many trafficked victims from seeking help to escape from their traffickers. Their passports will have been taken away. To many of them, that amounts to their identity being taken away. That leaves such control with their traffickers that I find it a difficult notion that they will not be able to get advice under a legal aid scheme.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Butler-Sloss Excerpts

Wednesday 7th March 2012 Lords Chamber

Much though I commend the spirit behind the amendment, for the reasons I have given the House should not be seduced into thinking that it is a safe way to deal with the hardship, injustice and unfairness that so many noble Lords have said that the Bill will otherwise produce.

[Baroness Butler-Sloss]

My Lords, I invite the House's attention to Amendment 45, which is rather oddly placed in this group and which, I suggest, stands separate. It relates to family proceedings in which, I remind the House, the welfare of children is paramount under Section 1 of the Children Act. I have identified a very limited and specific issue, where the child has suffered or is at risk of suffering significant harm. The purpose of the phrase “significant harm” is that it relates to that part of legislation covering children which deals with care proceedings. There are circumstances where the serious risk to a child does not emerge with the social worker but in private law proceedings.

Under the Bill, all private law cases, other than domestic violence, are expected to go before a mediator to try to settle a very large number of them, as I sincerely hope will happen, but not all cases are susceptible of mediation. Among those not susceptible of mediation are cases where the mediator finds there is a serious risk to the child. That may be because issues have arisen more than 12 months ago, so that legal aid will not be available. Trained mediators may pick up a situation where one of the parents has a major personality problem or suffers from mental health issues. Unless there is a decision by a court, there will almost certainly not be legal aid. The amendment asks that the mediator can alert the appropriate authorities to grant legal aid where the child is at significant risk. Otherwise, there may be no opportunity for legal aid to be granted. The two parents will battle their way, floundering in the Family Court, while the child remains at significant risk until a judge or magistrates are able to pick up the case at a very much later stage. I must warn your Lordships that the courts will be utterly clogged by litigants in person. It will probably be many months before this sort of case is heard by a judge or magistrates as a private law case. It will not have been picked up by social workers at all, and the child will remain at risk.

I have had discussions with the Lord Chancellor about this matter and I know that his people have been looking at it. They do not see it as a serious a risk as I am afraid I do, and I very much hope that in due time your Lordships will support the amendment.

[Lord Cormack]

My Lords, I shall not detain your Lordships for long. I do not suppose that a single Member of this House would dissent from the proposition that the hallmark and guarantor of a free society is the rule of law. The theme that has run through this debate in many powerful and some exceptionally moving speeches has been simply that you cannot have the rule of law if access to the law is denied to some of the weakest in our society. That is the theme of this debate and it has come out time and time again. I was deeply moved by the very brave—I use that word deliberately—speech of my noble friend Lord Newton, but others have emphasised the point and added further to it.

If, when the Minister replies, he cannot give us a totally satisfactory answer, I very much hope that he will at least say that he will return to this matter at Third Reading, having had conversations with some of those who have made such valid and pertinent points. I do not include myself among them; I do not begin to compare in expertise with the noble and learned Baroness, Lady Butler-Sloss, or others. I hope that when it comes to Third Reading we shall have a measure that shows that the weakest have not been neglected or denied that access to the law which is their right as much as it is ours.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Butler-Sloss Excerpts

Monday 5th March 2012 Lords Chamber

[Baroness Howarth of Breckland]

My Lords, I encourage the Minister to accept the amendment. I do not think for one moment that it cuts across the Government’s own policies or—as the noble Lord, Lord McNally, continually tells us—deficit issues. Looking at this might improve those deficit issues. If we do not have good expert witnesses, the consequences could be very high costs in some cases.

I have to declare an interest as the vice-chair of the Lucy Faithfull Foundation. Lady Faithfull was of course an eminent Conservative in the House of Lords. She developed the foundation to work with abusers, and the foundation continues that work. One of the things that we do is make assessments in very complex cases so as to make recommendations to the courts on whether some individuals are safe to remain with their families. It is absolutely crucial that these experts are maintained. However, at £63 an hour, the foundation has to subsidise that work at the moment. We cannot do that for long. I use that as an example of one of many organisations that find themselves unable to produce these experts.

I also declare an interest as having been the chair and vice-chair of CAFCASS for some eight years. I absolutely agree that there are too many expert witnesses. Children’s cases have been held up in court over the years because reports have been commissioned by judges and have had numbers of witnesses. Many of these have been commissioned by people who, as the noble Lord, Lord Beecham, said, can afford to commission the reports themselves. That is a difficulty. We have a serious administrative muddle. The amendment of the noble Lord, Lord Beecham, gives the Government the opportunity to review and sort this out.

No one is saying that we want to maintain the high level of expert witnesses in the court. We want to ensure that, where expert witnesses are needed, they are available. If they are not available, that would be a really serious miscarriage of justice for children. Mistakes will be made and children will be put in danger. It is quality not quantity that really matters on this issue. If you talk to judges, social workers who work in the courts, or expert lawyers, they will always tell you that this will be the consequence.

My only other point is that the assessments being made by the Legal Services Commission are usually based on some sort of broad criteria that have little to do with expertise but have to do with qualification. If you are a poor social worker, you come very much at the bottom of the pile in terms of what you are worth, whatever your extra qualification might be. Lucy Faithfull Foundation social workers are experts in their field—psychologists and psychiatrists do not come near them, as anyone will tell you. Yet, in making their assessments, they are still paid at this sort of level. I encourage the Government to accept the amendment, not because it will mean that every expert is preserved but because it gives an opportunity to put the system on to a safe footing.

[Baroness Butler-Sloss]

My Lords, this amendment is a timely reminder of a potential major problem which already exists but which will be much exacerbated in future. I have considerable, sometimes very uncomfortable, personal experience of large numbers of experts in the courts before me, so I should like to make three specific points. The first is on quality.

Quality, as the Norgrove report said, is variable, and I can tell you that it is variable. There are experts who are over-enthusiasts. There were two extreme examples, of brittle bones and salt, which reverberated about the medical consultant profession. The trouble is that they were not the only two. Other experts are giving evidence because they happen to have a line.

When I was president of the Family Division, I had very useful discussions with the Chief Medical Officer about how we could identify appropriate people who one might call middle of the road. They were not at one or the other end of the continuum; they were not people who said, “Nobody ever injures a baby”. I once had 13 doctors giving evidence in a shaken baby case, of which there probably needed to be about five. This was absolutely unnecessary. Half of those experts were giving evidence from a preconceived notion rather than from the evidence that they actually had, and it was extremely difficult to get them to do something sensible. It was an appalling case. It was not the only one—it was just the worst that I remember.

Quality is a real point. It is not the numbers but the people who can do it that matter. The Chief Medical Officer, Sir Liam Donaldson, and I really struggled to see how we could identify for the benefit of the judiciary and the lawyers the doctors who would be middle of the road. It is unfinished business and, particularly in a time of financial stringency, it becomes all the more important. So quality is really very important.

Secondly, it is a problem of numbers—there are far too many. That ought to be dealt with in directions hearings, but they quite often get appointed before the case ever gets to the judge or the justices. Something must be done about numbers.

The third point is fees. There is no shortage of very distinguished doctors, particularly in the London area but right round the country, who will not put their heads above the parapet because they do not want to expend the time and trouble on going to court. On the fees that are now suggested—and I heard the noble Lord, Lord Beecham, talking about £90—I have heard the figure of £63 mentioned in the endless e-mails that I have had, as the noble Baroness, Lady Howarth, was saying. Quite simply, if you cannot get the best experts now, what on earth is going to happen to the welfare of these very high-risk children if they do not have the doctors to help the judge or magistrates to decide whether they can safely go home or will for the rest of their lives be denied the real natural family? It is the most appalling decision. Shaken babies are an example. There is still no agreement on whether having hematomas on the outskirts of the brain within the skull or problems behind the retina is or is not an indication of a child having been shaken rather than suffering a natural trauma. How on earth does a judge try that—and these are High Court judges—if they do not have some help? What they need is good help; they need other people who will turn up and give sensible advice to the courts.

Social workers need more support. They are not having their evidence taken sufficiently seriously, and there is no shortage of cases where it would not be necessary to have several doctors if the sensible social workers’ advice was taken by the courts. Too many local authorities are pulling their social workers out of a case after six months. In a case that takes two years, there may be four social workers in charge, and the result is that no social worker is really on top of a case. If something could be done about that, you would need fewer doctors.

The amendment deals with the review and is a timely reminder of the real need to have a look at this and involve the Chief Medical Officer—if I may respectfully suggest it—to see what could be done to get the right doctors in the right place, and not too many of them.

[Lord Faulks]

We have heard a great deal, and very helpfully, about the role of experts in family proceedings. I defer to those with much greater knowledge than I have about the various inadequacies in the arrangements that exist there. But this amendment is not, in fact, peculiar to family experts but covers the whole range of experts that assist the court.

Although all is not perfect in the litigation system, it is worth recording that considerable steps have been taken by the courts in the approach to expert evidence, particularly the various changes brought about by the noble and learned Lord, Lord Woolf, that have resulted in the timely exchange of reports, experts’ meetings and even the exciting developments known as “hot-tubbing”, which your Lordships may not be familiar with, involving experts in court at the same time and exchanging views in order to provide a synthesis for the judge in an effective way.

So, the courts themselves are providing a great deal of control over the way that expert evidence is given. The judges and the consumers of experts are in a position to judge the quality of the product, which itself provides a certain discipline that is relevant in deciding which experts are retained and how much use they are. Those of us who practise in the courts are familiar with judges expressing the view that there is no need for expert evidence on this or that case, which helps considerably.

Early directions, timely interventions by judges and the proper application of expertise by the lawyers can result in the provision of expert evidence being satisfactory. The only caveat that I would give from my experience with experts’ evidence, which relates essentially to professional negligence, is that in legal aid cases there is a continuing concern, just as there is in the context of family proceedings, that the rates for expert witnesses is so low that the best experts may not be available.

Subject to that, I am slightly concerned that this is rather outside the province of the Lord Chancellor in terms of accessibility and the quality of expert advice. The courts are making progress and will continue to do so. Nevertheless, I defer to what has been said about the family courts by the noble and learned Baroness, Lady Butler-Sloss.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Butler-Sloss Excerpts

Monday 5th March 2012 Lords Chamber

[Lord Clinton-Davis]

The amendment sums up precisely why so many of us entered the law in the first place. I will not take up much time—only a few seconds. Essentially, why the Minister is resisting this amendment is beyond me. It goes to the very heart of why we join the legal profession as solicitors and barristers in the first place. I see him shaking his head but I do not know why. The amendment summarises precisely why we join the legal profession and, for that reason, I support it.

[Baroness Butler-Sloss]

My Lords, I am sorry that yet another lawyer is speaking, but I want to make a very brief point. In 1215, King John was persuaded to put his name to the Magna Carta, which had a very clear definition of access to justice. We have now, in 2012, nearly reached another centenary of Magna Carta. It would be helpful if current legislation made the definition equally clear. The provision, as it stands in Clause 1, lacks the clarity of the amendment in the name of the noble Lord, Lord Pannick. I cannot understand why, in these straitened times, the Government think that this measure will cost them any more money. It would act as a beacon and a pointer to what should be done in less straitened times when money is available to make this provision. I support the amendment.

[Lord Thomas of Gresford]

My Lords, I am surprised to hear the noble and learned Baroness, Lady Butler-Sloss, suggest that the Bill should abolish Magna Carta.

[Baroness Butler-Sloss]

I did not say that.

[Lord Thomas of Gresford]

Perhaps that is putting it a little too high. However, ever since Magna Carta, access to justice has been a fundamental constitutional principle, and the Bill has nothing to do with changing that principle. My objection to the amendment is simply that it is completely otiose and unnecessary to have statements of principle that have been with us since 1215 restated in this way. The noble Lord, Lord Pannick, said that he does not intend to trump Part 1 and asked whether a statement of legislative purpose was necessary. The noble Baroness, Lady Mallalieu, said that she was against vague statements of principle at the beginning of a Bill, but seemed to suggest that this Bill was a different case. The Bill is not about abolishing access to justice but about rebalancing it in certain ways.

I have been involved in the legal profession for nearly 50 years and in my experience the greatest change to legal aid occurred when the previous Government abolished it for personal injury cases, and against the principles of maintenance and champerty, about which I have bored your Lordships many times, decided to introduce conditional fee agreements with associated insurance. The Bill follows that line by emphasising the ability of litigants to take what is now a well used way—I accept that—of obtaining access to justice. Nothing in the Bill stops people bringing actions. Legal aid may not be available but the Bill makes it clear that there are other ways of approaching the court.

The success fees introduced in 1999, which have no relation whatever to the risk solicitors run in taking on no-win no-fee cases, have increased, along with the dreadful increase in the size of ATE premiums. When the noble and learned Lord, Lord Irvine of Lairg, who I am pleased to see in his place, introduced the concept in 1999, he was talking about ATE insurance premiums of £100 or £300—I have seen that in Hansard—as opposed to today’s £50,000, £80,000 or £100,000 premiums. The cost of litigation in this country has escalated to a disgraceful level. The Bill increases access to justice by squeezing out of the system unnecessary costs and expense, which have gone to lawyers and insurance companies. We will debate in detail the respective provisions and where we can do better. However, it must be recognised that even at this stage the Government have made significant and substantial concessions to improve various aspects of the Bill. I am sure that they will continue to do so in responding to some of the amendments for which we on these Benches will argue. Therefore, I regard this amendment as a statement not of principle but of unnecessary verbosity that should not enter the statute.

--- Later in debate ---

[Lord Thomas of Gresford]

My Lords—

[Baroness Butler-Sloss]

My name is on this amendment so perhaps the noble Lord, Lord Thomas of Gresford, will permit me to speak after the noble and learned Baroness. I will speak briefly to underline the points because she made them so well that it is not necessary for me to speak at any length.

I know very well that the Government recognise the seriousness of the impact of domestic violence, which as we all know is a serious scourge in family life. It is worth remembering that it is not only a serious scourge for the victims, because so many of these women and men—and there certainly are some men—have children. It is the children who probably suffer most, not only short term but long term, in their ability to cope with life. Consequently, if the women—it is mainly women—are unable to get to court with the appropriate help, they are not the only ones who suffer, because their children suffer also. I find it difficult to understand why the Minister cannot accept the ACPO definition. There is not much wrong with the Government’s definition but it is not quite as broad as the ACPO one. I have never understood the police to be unduly generous or overenthusiastic in their approach to these issues.

I underline what the noble and learned Baroness said on Amendment 43. If Amendment 43 is not accepted, either by the Minister or this House, a large number of victims will fall through the net. I find it hard to understand why that would be in circumstances where a doctor identifies domestic abuse or a judge or magistrate have found it by, for instance, the perpetrator admitting it and giving an undertaking that he will not do it again, so there is not a court order. I have professional experience of endless cases of domestic violence where it was much easier to get the man—usually the man—to promise not to do it again and to leave the house rather than having a battle over the individual events which he was not prepared to accept. It was absolutely understood in the court that he had done it, yet that will not now be acceptable for receiving legal aid.

There is also no shortage of credible witnesses suggested under new sub-paragraph (k), proposed in Amendment 43,

“from a counsellor, midwife, school or witness”.

That credible, documentary evidence from a responsible person would be acceptable to a court but will not initiate that particular victim getting the help that he or she deserves. I ask the Minister to look again at this absolutely effective group of circumstances in which victims tell their story. It should get to court with the appropriate help.

My last point, briefly, is on the 12 months. Again, as the noble and learned Baroness said, a lot of women take a very long time—some men take even longer—to get to the point of disclosing what happened. Sometimes they get away and do not disclose it until after 12 months. That does not mean that it does not exist or that they are not at risk. To have this arbitrary period of 12 months is, for those who do not get there before then, another real obstruction to the Government’s declared objective to try to stamp out domestic violence. For those reasons, I strongly support the noble and learned Baroness.

[Lord Thomas of Gresford]

My Lords, Amendment 39 is in the names of my noble friend Lord Macdonald of River Glaven and me. I am very sorry that he is not able to be with us at this particular point because he made a thoughtful and memorable speech in Committee that those who were present will recall. It was based upon his experience. As I recall it, the thrust of his speech was that we need to get up to date on the issues of domestic violence and not deal with them as we did 10 years ago.

I very much welcome Amendment 42 in the name of my noble friend Lord McNally. It has been criticised as being a narrower definition than that in the name of the noble and learned Baroness, Lady Scotland. I do not see it that way. What is omitted is,

“any incident or repeated incidents of threatening behaviour”.

The simpler and more concise words “threatening behaviour” are there instead. Anybody knows that just one incident of threatening behaviour could, for example, land someone in court. The other words that are omitted are,

“and including acts of neglect, maltreatment, exploitation or acts of omission”,

which must surely come within the definition of abuse of an emotional kind.

I turn to our Amendment 39, as opposed to Amendment 43 tabled by the noble and learned Baroness, Lady Scotland. There are certain differences between the two; for example, my noble friend Lord Macdonald and I suggest that domestic violence,

“will be presumed on an application for civil legal services”.

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[Lord McNally]

The forms of evidence that will be accepted for this purpose are not set out in the Bill. Instead, our intention is that they will be set out in regulations under Clause 10. We believe that it is appropriate to set out these detailed provisions in secondary, rather than primary, legislation, which can be amended to respond to particular issues which may arise in the practical operation of the scheme.

[Baroness Butler-Sloss]

I am very interested in what the Minister is saying, but perhaps I might ask him to explain whether the points in Amendment 43 will be covered in regulations. If they are, then this amendment is not necessary, but if the intention is not to cover all of those, then the amendment would remain necessary.

[Lord McNally]

If I go on, all will become clear.

We indicated the intended forms of evidence in consultation and listened to views expressed in response. As a result, we widened the range of forms of evidence to include evidence from a multi-agency risk assessment conference, a finding of fact by the courts and the fact of a child protection plan being in place. This last point is particularly important because we moved from an intention just to protect adult victims of domestic abuse to include victims of child abuse by this means.

The allegation that we heard again today was that the Government’s criteria will still miss a great number of genuine victims, and various pieces of evidence were adduced to support this. However, the evidence referred to domestic violence victims as a whole—highlighting their difficulties in dealing with the civil or criminal justice systems, for example. We are dealing with a subset of that group: those who seek private family law legal aid. They will have slightly different characteristics from domestic violence victims as a whole. By definition, they will be engaged in the civil justice system. A significant number—there were nearly 10,000 in 2009-10—will seek civil legal aid for a protective order or injunction at the same time as they seek it for their private family law matter. They will all meet the evidential criteria.

We know that in total there were 70,000 legal aid family cases in 2009-10. I will compare that figure to the prevalence of the types of evidence that we are requesting. Around 24,100 domestic violence orders were made in 2010—the great majority with the benefit of civil legal aid. Around 74,000 domestic violence crimes were prosecuted in 2009-10, and there were 53,000 domestic violence convictions. Around 43,000 victims of domestic violence were referred to multi-agency risk assessment conferences in the 12 months to June 2010. In future there will also be those with ongoing criminal proceedings for domestic violence, and those in whose cases a finding of fact in the courts has occurred. Clearly the figures will overlap. However, what this points to is that a significant proportion of the 70,000 private family law cases that we currently fund will continue to be funded. We think that the proportion will be around one-quarter, which matches our rough estimate of the prevalence of domestic violence.

With this in mind, the Government consider that we have got the balance on evidence requirements about right. The forms of evidence we intend to accept will meet a high standard of objectivity. However, I have heard what has been said during the debate, and of course respect the wisdom and experience of those relaying their views to me. We are therefore prepared to go further and accept undertakings as evidence. We are satisfied that undertakings are sufficiently objective and fit with what we consider the right approach. We remain of the view that these forms of evidence are better left to regulations rather than placed into primary legislation. They are points of admittedly important detail, but ones that may be subject to change as the scheme settles in.

I hope that my noble friend Lord Thomas will be reassured by what I said and will not press his amendment, so that we can deal in regulations with the matters covered by it. I also hope that, now she has seen how far we have gone on that matter, the noble and learned Baroness, Lady Scotland, will be persuaded to withdraw her amendment.

As I said, it was extremely useful in the debate to put on record the Government’s determination to combat domestic violence with the entire panoply of services and funding at our disposal. Here we are dealing with a subset of those affected by the issue—a fact that not all speeches today covered. We have tried in our amendments and in the concessions that we made to re-emphasise that we understand the importance of the issue and are determined to make sure that we get the balance right. I hope that neither my noble friend nor the noble and learned Baroness will press their amendment, on the understanding and assurances that I gave of using my noble friend’s amendment as the template for what we will do in regulations.

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[Lord Wallace of Tankerness]

For example, guidance will be given under Clause 9 on exceptional funding, which could relate to classes of cases, but the criteria that are set and are there in regulations will be there by secondary legislation. That can in no way be trumped. Secondary legislation will have to be approved by your Lordships' House by the affirmative procedure. That cannot be undermined or circumvented by guidance. When the regulations are eventually brought forward, we will have an opportunity to look at that. That will be the primary source and it would not be possible for the Lord Chancellor by some other means to undermine what was in the regulations. If you wish to change them, you have to come back to Parliament with further regulations and Parliament would have a further opportunity for debate.

[Baroness Butler-Sloss]

The Minister may have noticed that I have kept quiet on this amendment until now, but I am genuinely in difficulty in understanding the point made by the noble Lord, Lord Newton, about a civil servant working to a Minister. If, as the Bill requires, the director is a civil servant, is it not his duty to work to a Minister? In which case, how will he run an independent organisation within a government department? I am sorry, I do not understand.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

The noble and learned Baroness puts her finger on it, as she often does. Yes, it is to be a civil servant. I indicated earlier that in such a crucial area of individual cases, that individual will be a civil servant appointed on merit, who will not be subject to ministerial interference. There is common ground that that is quite proper.

As the noble and learned Baroness rightly said, there are other aspects of a civil servant’s work where that relationship with the Minister is different. I hasten to add—I think the House has got the message—that there is no question of interference in the individual cases. I sought to make the point that incorporating the words “independent” or “independence” into the clause could upset the balance that would apply in other parts of the director’s work. I think the House would generally accept that there ought to be that relationship between the Lord Chancellor and the director. We do not wish inadvertently to skewer the whole architecture of this when the Government share what is at the heart of everyone’s perfectly legitimate concerns. We have enough clear provisions in the Bill to secure the independence of the director in making these individual decisions.

I ask noble Lords to reflect on that. We do not wish inadvertently to change the whole structure of the Bill, given that the point of concern is properly addressed by the prohibition on interference, buttressed by the many ways in which Parliament and others will be able to look at the way the powers are exercised. That is transparent. On that basis, I invite the noble Lord to withdraw his amendment.

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[Lord Judd]

My Lords, frankly, it beggars belief that in an area which involves so much social distress and suffering the Government should rush into this legislation without having considered its impact and consequences. In terms of social irresponsibility, it is difficult to speak too strongly about that. Moreover, such a course of action makes absolute nonsense in terms of public expenditure. If we insist on cuts of this kind in a front line where we hope that things can be put right in time, expenditure on the cases concerned may considerably increase future pressure on the public purse, and more widely because of the contaminating effect of the cases concerned. This is short-sighted, counterproductive government of the worst order.

I have spent a great deal of my life working in the voluntary sector and I know that it is not just the voluntary organisations in the legal sector which will be affected, given that they will have tremendous additional burdens in the aftermath of the introduction of this measure, but that all the other voluntary organisations working in the front line of social action will have to pick up the pieces and the consequences of it. This is happening at the very time that the resources available to such organisations are diminishing and they are becoming frantic about how they will continue their work. This amendment is crucial. I cannot say how strongly I support my noble friend in having put it forward.

[Baroness Butler-Sloss]

My Lords, I hope that I may add a brief word about law centres and other advice centres. Taking legal aid away from a huge number of areas, particularly private family law, which concerns me, but also social welfare, will result in a great many people wondering what to do. Those are the people who currently go to law centres and other advice centres. I was talking to another Member of this House, who is not present in the Chamber, who told me that she used to work in a law centre as a non-lawyer and that the staff in that law centre spent their time dividing the wheat from the chaff and persuading people that they did not have a chance in court. I hope that the Minister, and particularly the Justice Secretary, understand the impact on courts and tribunals of people who do not have legal advice appearing before the various tribunals and clogging up the works. In 12 months’ or two years’ time there may be no assessment of whether the absence of law centres and other advice centres has exacerbated this problem to an enormous degree. However, I hope that the Government may realise at that stage that they need to provide more help. Good points have been made about areas in which I have experience.

[Lord Ramsbotham]

My Lords, I put my name to the amendment for one simple reason: it drew attention to impact assessments, which are a very important part of legislation. I have mentioned in connection with other legislation that has come before the House that impact assessments in general are not well done. What has been said from around the House during this debate proves the point that in this Bill it does not appear that the impact assessments on all these aspects have been carried out sufficiently well to satisfy Members of the House that we are launching in a direction in which we ought to go.

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.

--- Later in debate ---

[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.

--- Later in debate ---

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.