Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Turner of Camden Excerpts

Monday 21st November 2011 Lords Chamber

[Baroness Turner of Camden]

My Lords, this is a very complicated Bill but it is obviously being introduced as part of the Government’s plan to cut costs. The problem is that it involves the possible loss of rights of poor and vulnerable people—human rights to which they are entitled as members of a civilised society. It has been suggested to me that the proposals contained in the Bill represent the most seismic shift in civil litigation in living memory.

The Legal Services Commission, which is concerned with the provision of legal aid, is to be abolished. The Lord Chancellor will now have a duty to provide civil and criminal aid, and in order to do so he will have a director of legal aid casework, who will, of course, have staff. Why it should be necessary to do away with one body and its staff and replace it with another is by no means clear. What is clear, however, is that there will be a range of services for which legal aid will not be provided. Most of these deal with the type of problems that can cause stress, trauma and often damage to ordinary people during their normal working lives. The Government seem to believe media accusations that we have become a “compensation culture” even though the noble Lord, Lord Young, who originally provided advice to the Prime Minister in these areas, said that this was a myth.

Much of the Bill has been justified by the claim that means other than legal action can resolve many difficulties. This is disputed by many organisations that have made representations to Peers on the Bill. Some of the areas likely to be adversely affected by the provisions of the Bill are family courts and legal aid casework. This is a problem because often the future of children may be at stake. Children are often the victims of family break-up. Actual domestic violence may be eligible for assistance, but the degree to which assistance will be available is not clear. Again, there are many problems because much domestic violence takes place in a family environment. I understand that local authorities have some responsibility in such cases, but, again, it depends on regulations and what these will be is far from apparent. Many of the problems involved have been fully explained by my noble friend Lady Gould of Potternewton.

Cases involving housing will not be covered, except where homelessness is threatened. Welfare cases, particularly disputes about benefit entitlement, are also unlikely to be covered. Citizens advice bureaux have already expressed concern about the provisions of the Bill. They have often been complimented by Ministers for the work that they do, much of which is concerned with debt counselling and welfare counselling. The benefits system is complicated and individuals often do not know what their entitlement is, and so they do not claim it. Then complications arise, with the necessity for claims to be pursued. However, the CABs are facing cuts in provision, to the extent of £350 million in the first year. They say that these cuts will interfere with their ability to do the job which they are appointed to do.

An issue which causes much concern is the failure to cover clinical negligence. Almost all the organisations that have made representations to us have raised this. The Bar Council has protested. Removing legal aid for clinical negligence would remove access to justice for the most vulnerable people. Legal aid for clinical negligence cases costs £17 million out of a legal-aid budget of £2.2 billion, so it is a relatively small amount of money.

Another area of concern is that of personal injury. Many personal injury cases are funded by conditional fee agreements, which are commonly known as no-win, no-fee. These normally allow for a success fee to be claimed by the claimant lawyer in a successful case and that is usually paid for by the losing defendant or the defendant's insurance company. A clause in the Bill will prevent the success fee from being recovered from the losing defendant and the fee will instead be taken out of the damages awarded to the injured person. An injured person will not therefore receive the full compensation to which he or she is entitled. It really seems as though the Government are anxious to make it as difficult as possible for an injured person to secure compensation for his or her injuries. Moreover, the Government's plan is to make injured people pay for some of their legal costs when someone else has injured them in the first place. As many such people are elderly or infirm that seems very unfair.

As far as I can see, employment cases are not to be regarded as eligible for legal aid. The Government apparently take the view that means other than legal ones are available; no doubt they are referring to the arbitration system. However, recently a government statement about employment law indicated that charges would be made to the dismissed employee before his or her case could be heard by the tribunal. Reference has been made to a fee of £1,000. The tribunal will not consist of lay representatives from both sides of industry but there will now be a judge sitting alone; in other words, a more legal system, but of course no legal assistance.

I hope that the TUC is paying attention to all this. Ordinary workers need the trade union movement more than ever. Unions have a record of successfully representing members and they also now provide a fairly comprehensive legal-aid service to members. But this is an unfair Bill and, unless we succeed in amending it, many people will suffer undeserved stress and trauma in incidents for which they have not themselves been responsible. We must do what we can to prevent that.

Civil Legal Aid

Baroness Turner of Camden Excerpts

Thursday 19th May 2011 Lords Chamber

[Baroness Turner of Camden]

My Lords, I also am concerned about the proposed cuts in the provision of civil legal aid, to which a number of noble Lords have already referred. In his introduction to the consultation paper, the Justice Secretary claims that the proposals are justified because legal aid has expanded to cases that should not require legal expertise to be resolved. In some cases, the right to civil legal aid will be retained—for judicial review, homelessness and domestic violence, among others. On the down side, the largest casualty will be private family cases where there is no element of domestic violence or false marriage. Many women who currently get legal aid for ancillary relief will be directed to mandatory mediation, and that is all. Their former partners, if unco-operative, will simply wait out the inconvenience and continue their intransigence. But there is an even worse aspect.

Legal aid will be denied in cases of children who have been victims of medical negligence. It is really awful to think that a child, who could have been disabled perhaps for life as a result of medical negligence, would have no redress. I understand that the Government say that under no-win no-fee arrangements child victims will be able to sue for compensation. However, it seems that those arrangements are under review by the Government. Anyhow, I think that it is an entirely unsatisfactory response.

Those who lose out will be mainly women, their children, and the disabled. Those with disabilities will be disproportionately hit by cuts to areas such as clinical negligence and education, and children such as those fighting cerebral palsy, birth injuries and those requiring additional educational support will be cut out of entitlement.

In the words of a well known lawyer writing in Counsel, the journal of the Bar Council, the consultative paper destroys the coherent national system of legal advice and replaces it with a hideously complicated list of entitlements and restrictions. He concludes that it is outrageous that half a million people on benefit incomes, or just above, will lose entitlement to legal aid because of the excesses of bankers with staggering incomes and, maybe, the incompetence of those managing government finances. I agree. The Government really must think again, particularly about the likely effect upon the most vulnerable—children and the disabled.

A section of the consultative paper deals with employment, and here the Government seem rather confused. The paper refers to “user-friendly procedures” available via the tribunals, where individuals can in effect represent themselves so there is no need at all to provide legal aid in an employment context. The present arrangements are described in glowing terms. However, over at the Department for Business, Innovation and Skills an entirely different view is taken. The Business Secretary is now in favour of proposals that make it easier for employers to dismiss workers and more difficult for workers to make claims for unfair dismissal.

To get to a tribunal at all a worker will have to pay a fee, perhaps a large one, and it will not be the nice friendly tribunal envisaged in the Justice Secretary’s paper—oh no. The lay sidespersons currently on tribunals, who are representative of both sides of industry, are to be withdrawn. The unemployed worker must put his case to a judge sitting alone, so a so-called nice friendly set-up is to be transformed into an entirely legal one, with, of course, no assistance provided.

There is only one piece of advice that I could give to an employee: if you are not yet a member of a trade union, join one as soon as you can. Unions are skilled at representing their members, and the Government are introducing an environment in which you will need all the protection you can get.

Public Bodies Bill [HL]

Baroness Turner of Camden Excerpts

Monday 7th March 2011 Lords Chamber

As we all know, the tradition is that we do not vote against or amend secondary legislation. That convention would be stretched if we had not previously had the kind of debate that I am envisaging in these amendments. I am asking the Government at least to recognise that at some stage we need to have that debate and that parliamentary decision on the basis of a formal document from the Government. This would make the Government’s life easier; at least, I hope so. It would certainly help us to get the Bill through the primary stage rather faster, and I wish that the Government had come forward with such a measure earlier. For the moment, I beg to move.

[Baroness Turner of Camden]

My Lords, I support my noble friend. I spent part of my previous career sitting on various quangos, some of which are included in the Bill. I must say that I thought that the quango-sitting that I did was very useful, that our contribution was a good one and so on. I would like to think that they would not simply be closed down and consigned to what the noble Lord, Lord Elton, described as the “bonfire of the quangos” without adequate examination by Parliament. That is exactly what my noble friend is suggesting: before the quangos are dispensed with, there should be a thorough examination, Parliament should determine whether or not they were valuable or useful and should continue to operate and, unless that happened, the quangos should continue to operate. Perhaps they would do so in a different form but the functions would not be dropped; there would be some provision for the functions that they had carried out to be performed in future. I hope that my noble friend’s arguments will attract support from the Government. The amendment seems to be very reasonable, proposing that Parliament must have the final say. That is very important, and I hope that the Government will be prepared to accept it.

[Lord Newton of Braintree]

My Lords, I am not sure I have any brownie points left in the bank after various earlier exchanges but I hope I have a few. I express my sympathy with the general thrust of the point that was made very well by the noble Lord, Lord Whitty, and which has just been supported. I imagine it will be further supported by the noble Baroness, Lady Hayter.

There is, as I have said on several occasions in the House, a complete lack of intellectual coherence in the approach that is being adopted towards different bodies, particularly in respect of those parts of the Bill relating to the Ministry of Justice. I will not go on again now—although I will later—about the Administrative Justice and Tribunals Council, which I formerly chaired. However, we have a curious situation in which the AJTC is in—and for the moment stays in—Schedule 1 but the other two justice councils, which were in Schedule 7, have been cast out. The Civil Justice Council’s terms of reference were those on which those of the Administrative Justice and Tribunals Council were modelled. Nobody has explained why what is right for the Civil Justice Council is wrong for the Administrative Justice and Tribunals Council, with which it overlaps. Picking up the fundamental thrust of what the noble Lord, Lord Whitty, said, there is a case for a coherent explanation, across the board, of what the Government are doing. I hope we may get at least some assurance on that in the course of my noble friend’s response.

Public Bodies Bill [HL]

Baroness Turner of Camden Excerpts

Tuesday 11th January 2011 Lords Chamber

[Lord McKenzie of Luton]

My Lords, I shall also speak to Amendment 34. These two amendments start life as probing amendments. They in effect seek further information about the proposed demise of the Disabled Persons Transport Advisory Committee and the Disability Living Allowance Advisory Board. For the former, the October 2010 announcement merely recorded that the Government are exploring options for continuing to gain the disability advice that is needed through a more flexible, accountable structure. For the latter, it is proposed that the functions can be carried out between the DWP, external specialist advice and Equality 2025. It seems that in respect of these two particular organisations, the decision has already been taken that they will be terminated. What is to go in their place is as yet unclear.

We are promised consultation on the successor to DPTAC. Perhaps the Minister will advise us on the exploration of the options and on what precisely is so inflexible about the current arrangements. One complaint about the current structure that seems to drive the proposed change is that DPTAC has a degree of independence and takes forward areas of work that reflect its own priorities and not necessarily those of the Government. This seems a particularly perverse reason to close it down. Surely this is a case where independence should be welcomed. DPTAC can rightly claim that much of the improvement over the past 20 years in the mobility of disabled people can be traced to the work that it has undertaken.

The Minister will be aware that DPTAC started life as an informal group and, because of its success, was placed on a statutory basis in 1985 by a Conservative Government. The Transport Act of that year requires the organisation to consider any matter referred to it by Transport Ministers, and to give advice on any issue that is relevant to the transport needs of disabled people.

I am advised that DPTAC also has statutory functions through other legislation. For example, the Equality Act requires the Secretary of State for Transport to consult it before making rail vehicle accessibility regulations. Who will be consulted in future when such regulations are made? Has the Minister given equivalent consideration to other duties that are currently imposed by statute? I thought that we had common cause with the Government in recognising that disabled people were experts in their own lives. How will the Government ensure that their voices are not drowned out by those of transport providers?

The Minister will be aware that DPTAC publishes guidance and statements, carries out research into disabled people's experiences, promotes accessible transport and solutions, and develops training. Who will do this in future and where will the funding come from? I will give one example. The DPTAC Olympic working group has been working closely with the delivery authorities on an accessible transport system for the Olympic and Paralympic Games in 2012. Why is it imperative that this should be changed now? Big strides have been made over the past decade towards more accessible public transport. Rights of access to public transport are in place, along with end dates for the accessibility of all buses, coaches and trains, and a new EU directive on access to air travel for disabled people.

However, the Royal Association for Disability and Rehabilitation contends that a major investment in accessible transport has not yet been matched by a major increase in disabled people's confidence in getting out and about. It states that there remains a huge amount of awareness-raising to be done and some gaps in the regulatory framework to be plugged, for example around taxes. It states that, despite considerable progress, the building blocks are not fully in place to deliver a truly integrated system that guarantees independent, safe mobility. Such a system is vital for ensuring that disabled people have proper access to services and jobs. RADAR acknowledges that DPTAC has greatly influenced progress to date and that there is a great need for its role in future. The loss of an independent voice will need considerable justification by the Minister if we are not to return to this on Report.

The Disability Living Allowance Advisory Board was set up in 1991—again by a Conservative Government. Its statutory role is to give advice on request to the Secretary of State for Work and Pensions, to advise medical professionals working for the DWP on cases as and when requested, and to produce annual reports. The board draws members from across the health and social care field and must include at least six disabled people. The Government's justification for its demise is that they now have available to them a number of sources of advice, including medical practitioners and experts in the disability field such as Equality 2025. We acknowledge that. They suggest that the board has not been commissioned to provide any advice since November 2008 and that this position is likely to continue. One presumes on this basis that the board is not being consulted on reform of the DLA.

As we know, the Government propose to introduce the replacement to the DLA—the personal independence payment—in 2013-14, and will start with a reassessment of the working age case load. It is proposed that there will be no automatic entitlement to the PIP, and each case will be looked at individually to consider the impact of the impairment or health condition. Key to the benefit will be an objective assessment of individual need, which is being developed in collaboration with a group of independent specialists in health, social care and disability, including disabled people. Does not this description fit the Disability Living Allowance Advisory Board? Are you not in danger of removing it from the scene at the very point when its expertise might be brought to bear in aid of government policy?

It is accepted that the Government have sought to involve a wide range of individuals and organisations in the consultation, and that is how it should be, although the Minister might explain why the consultation period is shorter than the recommended 12 weeks and included the Christmas and new year breaks. Although we hold no particular brief for the board—it might perhaps be refreshed rather than terminated—we are entitled to ask the Government what mechanisms they will put in place to ensure that disabled people and experts working in health and social care can monitor the implementation of the new arrangements and provide independent advice to ensure that the descriptors are accurate and relevant, that the process will be fair for disabled people, and that assessments are carried out by appropriately qualified individuals with capable and confident decision-makers—in other words, learning the lessons of the ESA.

Now is not the time for a detailed debate on the proposals to reform the DLA other than to say that we will examine the detail of the final proposals specifically to see that they maintain the principles of a universal benefit that recognises the additional cost of living for someone with a disability and supports those who can work as well as those who cannot, and that disabled people are fully involved in the design of the gateway. We accept that the Government have made clear that they accept their obligations under the UN Convention on the Rights of Persons with Disabilities to consult disabled people in the design and monitoring of decisions and policies affecting disabled people.

However, the removal of the mobility component of the DLA for people living in residential care has increased apprehension in the disabled community that the thrust of policy has more to do with budget cuts than with the modernisation of support for disabled people. Removing this disability component will have a huge and regressive impact on the independence of thousands of disabled people, with many left unable to afford to leave their homes and denied the independence that most people take for granted.

Appropriate advice from the advisory board on this proposal would have made it abundantly clear up front the damage that it would inflict. Promise of a full consultation after the announcement and before implementation will not do much to allay the fears of some 80,000 people whose lives will be impaired if this proceeds. If the advisory board is to go, what will replace it? How will the independent knowledge and expertise of disabled people and others be systematically brought to bear in shaping and monitoring government policy. I beg to move.

[Baroness Turner of Camden]

My Lords, I support my noble friend’s amendments and speak as someone with recent experience of the situation. I was disabled for six months and realised in that time how difficult life can be if you do not have mobility. It is often difficult to move outside your own front door, to do your shopping, or to come to this place, which I like to do. You rely entirely on the services available to enable you to go outside your front door. Unless there is a body to see that the facilities you need are available, many disabled people will simply be prisoners in their own homes.

This is an increasing problem, because, as we get older, more of us become disabled. I hope that I am not permanently disabled, but I do not know whether I will be. It is certainly a difficult life. It is no longer possible to pop round to the shops or to post a letter. You are entirely dependent on the support provided by other people. I am fortunate in that I have some very good neighbours and some very good friends, but not everyone is in that situation. There is no doubt that an increasing number of people can find themselves simply unable to move outside their front door.

We need to maintain bodies of the kind that is referred to here to ensure that the facilities that are available are maintained, because a lot of them are provided by local authorities and, as we all know if we have read some of the material issued by the Government, local authorities will have their financial resources cut. Will they be able to maintain some of the excellent services that exist in many places? We want to ensure that the services that we have are available and are improved so that many people are not simply unable to utilise services that ought to be available because the finance is not there. What will be done if those two bodies disappear? They should not disappear. It is evident that they have done a lot of work already to maintain services. We want the services to be improved. Please keep them and ensure that they are available to us.