Assisted Suicide

Lord Alton of Liverpool Excerpts

Wednesday 5th March 2014 Lords Chamber

[Lord Alton of Liverpool (CB)]

My Lords, in listening to the anger that the noble Baroness, Lady Murphy, has just expressed, I cannot help reflecting that this is not a new debate that we are having this evening. After all, we have had two Select Committees of your Lordships’ House, as well as numerous debates and indeed votes in your Lordships’ House, and we have heard the arguments of the British Medical Association—after a vote among its members—and the royal colleges, the disability rights organisations, the palliative care movements and many of the organisations that have been referred to. Once all the arguments were put for grounds of public safety alone, your Lordships decided that it was not safe to change the law.

The noble Baroness, Lady Jay, who introduced the debate quite properly this evening, reminded us that it is only four years since these guidelines were put in place, but we have even debated those on three successive occasions. The criticism of the guidelines largely has come from those who are, reasonably enough—it is legitimate—pressing for a change in law. Instead of shadow-boxing around the guidelines, it would, as the noble and learned Lord, and my noble friend Lady Boothroyd, said, be better for us to be debating whether we want to set aside the Select Committees that we have had and the decisions that we have taken previously, and change our own laws.

We are told that the guidelines have de facto changed the law because it implies that assistance with suicide will not be prosecuted if it has been given from wholly compassionate motives. However, almost in the same breath, we hear the contradictory complaint that the policy is inadequate because it does not give immunity from prosecution. Of course, neither of these contradictory charges has any foundation: the policy has not changed the law and its purpose is not to give certainty to potential law-breakers. To do so would indeed amount to changing the law.

The noble Baroness, Lady Jay, also told us that the policy places decisions in the hands of one person, the DPP, and that when the DPP changes so too could the policy. I think that I need record here only what the Solicitor-General said about this in another place just two years ago. He said:

“If a future DPP overturned the guidelines, he would be judicially reviewed for behaving in a rather whimsical way”.—[Official Report, Commons, 27/3/12; col. 1380.]

As your Lordships are aware, there is nothing odd or unique about these arrangements. Prosecutorial discretion is a feature of the criminal law as a whole and there are published prosecution policies on a range of criminal offences other than encouraging or assisting suicide. We should keep the law as it stands for reasons of public safety.

Criminal Defence Service (Very High Cost Cases) (Funding) Order 2013

Lord Alton of Liverpool Excerpts

Wednesday 11th December 2013 Lords Chamber

[Lord Alton of Liverpool (CB)]

My Lords, perhaps a non-lawyer might be permitted to detain your Lordships’ House for just a few moments. Although I am not a lawyer, I have a daughter who has this year qualified as a barrister and should declare that. I was particularly struck by what my noble friend Lady Deech said in her remarks earlier on, when she reminded us of the deleterious effect that the Government’s policies may well have on this rising generation of young lawyers. Taken together with what the noble and learned Lord, Lord Woolf, said in his remarks about the high ideals that so many lawyers have when entering the legal profession, in pursuing this vocation, I think that the Government need to listen extremely carefully to the very distinguished contributions that have been made this evening and with such force.

I support the noble Lord, Lord Carlile, for two principal reasons. The first is that I think that the Government’s policies will significantly impede the possibility of younger people from more disadvantaged backgrounds from entering the law—the point that the noble and learned Baroness, Lady Scotland, has just made. Secondly, having represented and been associated with inner-city areas of Liverpool since I was first elected to the city council there as a student some 40 years ago—at about the time when the noble Lord, Lord Carlile, began to practice at the Bar—I am acutely aware that social justice does not just require access to health, welfare and decent housing: it also requires access to law. That was a point that I made several times during the course of the LASPO legislation and return to again tonight.

Over the past few decades, much has been done to improve the diversity of those working at the criminal Bar. However, the further reduction of barristers’ remuneration proposed by the Government has alarming social mobility implications. Criminal banisters have already sustained a disproportionate reduction in remuneration over the last decade. The noble and leaned Lord, Lord Mayhew, and others have rightly emphasised the dramatic effect that a devastating 30% reduction will have on those who are now working in the profession. In return, they are expected to work long, unsociable hours and tackle difficult and, as we have heard, complicated issues of public importance.

These further swingeing cuts are simply unsustainable and the reality is that they will deter talented individuals from middle and low income backgrounds from entering or staying within the profession. Instead, the criminal Bar will once again become the preserve of the independently wealthy. Those without independent wealth to sustain them will turn to more financially rewarding areas of practice or to another profession altogether; we heard about the alluring effect of commercial law. They will do so not out of greed but simply out of a desire to receive an income comparable to the earnings of other equivalent professionals.

Yet instead of treating criminal barristers like other professionals, the Government have asked them to bear wholly disproportionate cuts to their incomes. As the Criminal Bar Association has pointed out in its correspondence with Members of your Lordships’ House, no other public service professionals have been asked to shoulder cuts on the scale proposed by the Ministry of Justice. I think that the noble Lord, Lord Carlile, was quite right to say to us at the very outset that this is simply crude.

As a consequence of these measures, the criminal Bar will see an exodus of talent. The results will be far reaching and the consequences borne by society as a whole. That is my second point. People accused of serious crimes face the prospect of not having anyone of sufficient quality to represent them; and there will also be a lack of experience to prosecute the more serious cases in due course. As we have heard, it will also influence the make-up of the Bench as well as the years pass.

It is all too easy to forget the important part that criminal legal aid has played in ensuring a fair and just society because the criminal law is not something that impinges on the everyday life of most of us. Yet when liberty and the protection of the public are at stake, it is paramount that both the defendant and the state have quality of representation. If we accept the fundamental principle that all defendants are innocent until proven guilty, and may not have actually done what they are accused of, we should ask ourselves this simple question: “If I found myself in court accused of a serious crime and was trying to defend my innocence, who would I want defending me?”. If the answer is a highly qualified, independent and dedicated advocate, it has to be understood by us all that the price of these measures is that we will forfeit that, and justice will be the loser. It is for those reasons that the arguments of the noble Lord, Lord Carlile, deserve our support tonight.

[Lord Thomas of Gresford (LD)]

My Lords, it is a privilege to follow the noble Lord and the comments that were made in particular by the noble and learned Baroness, Lady Scotland. Referring back to my own beginnings, I was one of those who, having left university, was not in a position to go to the Bar as I had wished. I became a solicitor, and as a young articled clerk I instructed Lord Elwyn-Jones, leading Emlyn Hooson, in a number of cases. I was attracted by the lustre that surrounded the Bar at that time. Elwyn-Jones was a Nuremberg prosecutor, as was David Maxwell Fyfe, which my noble friend has recently had brought to his attention. Maxwell Fyfe really wrote the European Convention on Human Rights. It was the attraction of this profession that drew me, after serving as a solicitor for five years, to pay my 100 guineas to my pupil master and to enter on a different track as a barrister.

I played my part thereafter in civil cases, but more often in criminal cases, prosecuting, defending and later sitting on the Bench as a recorder. I was proud of the system in which I played such different roles. I was proud of the way in which justice could be achieved under the system that we had inherited over so many centuries. I am really sad today—a word that has been used by a number of people—that we seem to be coming to the end of that great tradition at the Bar. I know that my noble friend says no, but that is not how I see it. I agree with the noble Baroness, Lady Deech, who talked about the suffocation of the criminal Bar by these proposals. That is what I think it is.

I do not wish to repeat everything that has been said so well and ably, and with his usual eloquence, by my noble friend Lord Carlile. He has been an opponent on many occasions but I have also worked with him on a number of cases. We have worked together on some serious matters. I want to focus on the way in which entry to the Bar will be so curtailed by these provisions. When I go to see young people being called to the Bar at the various Inns of Court, particularly Gray’s Inn, it saddens me to look at them and their parents, who are so proud of them for what they have achieved and how they have worked to get their degrees to become qualified. Finally, there they are in their fresh wigs and gowns, all ready to start on a career which has been so fulfilling in my own life—they are ready for it but there are no openings.

Today, if you wish to get a pupillage, you will struggle. Very properly, you receive a minimum level of payment, £12,000 a year, as a pupil in the common law field and criminal field. Last year, a commercial set advertised that it was prepared to pay £65,000 per year to a pupil. That, I think, illustrates the huge gap between the commercial Bar and the Bar with which I am familiar. I accept so much of what the noble and learned Lord, Lord Brown, said—that we deal with people’s lives, and not just with money and contractual obligations and so on, as the commercial Bar does. We make a difference to people’s lives in the profession that we follow. These young people who have come so far will not get the pupilages—and if they do, will they ever get the tenancies?

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Alton of Liverpool Excerpts

Wednesday 25th April 2012 Lords Chamber

[Lord McNally]

My Lords, I would like to start by paying a sincere tribute to the noble Lord, Lord Alton of Liverpool, for his vital role in pursuing his cause conscientiously and relentlessly. I know how conscientious and relentless he can be when he gets hold of a campaign, this time in the cause of mesothelioma victims and their families. I know others have followed his lead, but, as he pointed out, when this Bill first came before the House, there was no mention of this cause and he has, quite literally, put it on the front pages. He can take great personal credit for helping us achieve the position we have reached today and on which I hope all sides can agree.

In the past few days, we have had the opportunity to debate at some length issues in relation to the plight of sufferers of this terrible disease. I and ministerial colleagues have also held a number of meetings with the noble Lord, Lord Alton, and others, including my noble friend Lord Freud, which have been extremely productive. I am grateful for the general recognition of the value of what the Government now propose in respect of a pause in commencement of the reforms in Part 2 in relation to mesothelioma.

Let me be clear about what we are doing. The Jackson reforms in Part 2 of the Bill are due to come into effect in April next year. They will continue to come into effect then, except in so far as they affect mesothelioma claims. Mesothelioma claims will therefore continue for the time being with the current arrangements of recoverable success fees and insurance premiums. As I informed your Lordships on Monday, we are working hard to agree an acceptable scheme to help victims who are unable to trace their employer’s insurers; as I said, I hope that we will be in a position to make an announcement before the Summer Recess. The arrangements for any new process will obviously take some time to bring forward. We will review the position in due course and publish the findings of that review. Only after we have done so, and we are satisfied that the time is right to implement the provisions in Part 2 in relation to mesothelioma, will we do so.

Amid general approval in the House of Commons yesterday, one issue was raised which related to the terms of the review that we have committed to undertake. I hope that your Lordships will understand that I cannot say much more at this early stage about the precise terms of that review, but it will be a proper and appropriate one. My right honourable friend the Lord Chancellor will publish the results, and we will not commence our reforms as far as mesothelioma is concerned until we are satisfied that a structure exists which enables swift and fair compensation for victims and their families.

The strength of feeling in this debate has been palpable and genuine. I am glad that we have been able to meet some of the concerns expressed by tabling the amendment that we have. I beg to move.

[Lord Alton of Liverpool]

My Lords, I first thank the Minister for the kind remarks at the outset of his speech. I suspected that he might have meant that I have been a bit of a pain in the neck on this subject.

[Lord McNally]

Precisely.

[Lord Alton of Liverpool]

He put it rather more elegantly. The Minister having had a tough time during proceedings on Part 1 this afternoon, he will be glad to know that I can be very warm in what I am about to say to him, and also to the noble Lord, Lord Bach, and my good friend, the noble Lord, Lord Avebury, for the encouragement and support that they have given me as I have taken this amendment forward at every stage of the Bill.

It puts me in mind of a passage from EM Forster’s book, Two Cheers for Democracy. He said that only “love, the beloved republic” deserved three cheers, but that sometimes the cantankerous, difficult, awkward Member of Parliament who sees some minor injustice and is able to get it right is the justification for our system. I suspect that that is something that unites us on all sides of this House and, indeed, in another place as well. On that note, the noble Lord, Lord Cormack, is about to intervene.

[Lord Cormack]

I was going to draw the House’s attention to the fact that our dear friend Tam Dalyell from another place recently published his autobiography and entitled it The Importance of Being Awkward.

[Lord Alton of Liverpool]

I am happy to be in the company of another member of the awkward squad on this occasion; I was happy to be in the Division Lobby with the noble Lord, Lord Cormack, during earlier proceedings on this Bill. Although it has not been possible for us to achieve all of the things that we would have wished to achieve during the proceedings, it speaks well of your Lordships’ House that we were willing to send back to the House of Commons for the second time, on Monday, the provisions in the Bill which relate to men and women who have been exposed to asbestos and, as a result, have developed the fatal illness of mesothelioma.

Yesterday in another place, Mr Jonathan Djanogly, the Parliamentary Under-Secretary of State, moved an amendment in lieu of Amendment 31, which was agreed in the other place, as the noble Lord has told us, without Division. The amendment specifies that the mesothelioma provisions may not be brought into force until the Lord Chancellor has carried out a full review of their potential impact and has published a report on the conclusions of the review. The practical effect of this is that terminally ill victims will not have to surrender up to 25 per cent of the compensation which they have been awarded in success fees over and above the base fees which lawyers will already have received. There is now an opportunity to recast what many of us believe is, in any event—and the noble Lord, Lord Thomas, alluded to this during our proceedings earlier in the week—an immoral use of success fees in cases where causation is not in issue, as well as to devise a new scheme which the noble Lord, Lord Freud, told us on Monday is now being worked on by the Department for Work and Pensions.

Therefore, before we leave this matter I would like to ask the Minister—and during a conversation yesterday I was able to give him some notice of my intention to do this—if he would clarify one or two questions which arise from the Government’s announcement and the amendment in lieu. First, is the Minister able to assure us that there will be absolute synchronisation between the Ministry of Justice and the Department for Work and Pensions to ensure that the mesothelioma provisions in the Bill will not be implemented in advance of the new regime coming into force? Secondly, Mr Jonathan Djanogly told the House of Commons yesterday that the new proposals,

“could well require DWP legislation, in which case we would look to roll the ending of the provisions into the commencement of the DWP provisions”.—[Official Report, Commons, 24/4/12; col. 839.]

That would certainly be the best way to proceed; can the Minister tell us when he expects his noble friend Lord Freud to be able to make a statement on the shape of the new scheme and whether there will be formal consultation with victims’ groups and other interested parties before a Bill is introduced? Also, do we have any idea of a timetable for the proposed legislation?

Let us assume for a moment that such a scheme—which has proved elusive in the past—were not brought forward, and that the insurance industry simply decided to play fast and loose with the Government: what would the Government do in those circumstances? Would they simply rely on the outcome of the review which they have instigated, and if the internal Ministry of Justice review concluded that it wanted to proceed with the mesothelioma provisions which have now been suspended, can the Minister assure us that there would be robust parliamentary scrutiny and opportunities to contest such an outcome? Will formal commencement orders be required, for instance, before the now dormant mesothelioma provisions in the LASPO Bill can be put into effect? Would such orders be introduced by statutory instrument, and, if so, is it the case that they would not be subject to parliamentary debate? In those circumstances, can the Minister assure the House that the Government would find a way for both Houses to be able to return to this question? It would be a pretty unsatisfactory situation if we were unable to do that.

With regard to the review itself, will it be conducted entirely by Ministry of Justice officials? Will the Minister at least reflect upon the desirability of involving some independent voices—perhaps, at least, a representative of one of the asbestos victims’ groups? Will those conducting the review call witnesses, take evidence and have a record of proceedings—will it be transparent?

I will end by making two short observations. First, as I have said, I am extremely grateful to all noble Lords, and indeed honourable Members of another place, who have supported this amendment at every stage. In particular, I want to put on the record that the right honourable Member for Wythenshawe and Sale East, Mr Paul Goggins, and Tracey Crouch, Member of Parliament for Chatham and Aylesford, gave considerable help, across the political divide, to ensuring that the case there did not go by default. The cross-party concerns which were raised in this House and in another place, and which were followed through by votes in the Lobby, were crucial in persuading the Government to think again.

I also pay tribute to the indefatigable efforts of Mr Tony Whitston of the Greater Manchester Asbestos Victims Support Group, whom I met with the noble Lord, Lord Avebury, and Mr John Flanagan of the Merseyside Asbestos Victims Support Group, for keeping these issues before us. The information and case histories which they have provided have been focused, understandable and rooted in their own day-to-day experience of working with the victims of this killer disease. Their resolve and dignified approach do them, and those who they represent, great credit. I know how grateful they are to your Lordships for insisting that their case be heard.

Secondly, and rather topically, this outcome says something about the particular strength of your Lordships’ House. Like the Minister, I served in another place for 18 years before I stood down. When the Bill came to us, I was staggered to find—as the noble Lord mentioned at the beginning of his remarks—that the issue of mesothelioma, which has after all claimed the lives of 30,000 British people, had not been debated or scrutinised at any stage. I repeat the observation I made on Monday last, that that is a vivid example of the vicious use of guillotines and programme Motions. The revising role of this Chamber—carefully scrutinising legislation and assessing its impact—is a strength that should not be lightly dismissed.

Finally, in three days’ time it will be Workers’ Memorial Day, which commemorates those killed, injured or made ill through work—a day that is meant to highlight the importance of good health and safety in the workplace. Asbestos disease is often called “the widowmaker”. In 2010, asbestos-related diseases accounted for 93 per cent of all industrial injuries disablement benefit payments for respiratory disease. It is a wretched disease—a death sentence with fatal consequences. All over this country, men and women were exposed for decade after decade to toxic substances, mainly at work, which ruined their lives and cost many their lives. As well as those 30,000 who have already died in the United Kingdom from mesothelioma, an estimated 60,000 more are yet to lose their lives due to past exposure—the vast majority of which, of course, occurred at work. The victims of this disease sacrificed their health and often their lives while working to support their families and contributing to the wealth of this country.

Throughout our debates, I have argued that it is iniquitous that such people should have to surrender up to 25 per cent of the damages they have been awarded. Happily, the Government have been persuaded that there is no racket involved in these cases, no ambulance chasing, and no compensation culture. They are right to have thought again, and I welcome that. We all now wish them well in coming forward with a far better approach to dealing with such cases. Linked to that is a promise that we remain diligent in monitoring the progress that has been made.

Once again, I am appreciative to the House for the support and encouragement that it has given in pursuance of this important matter.

[Lord Avebury]

My Lords, I want to add only a few words about the outstanding role of the noble Lord, Lord Alton, in leading this campaign during the proceedings on the Bill over many weeks and months. I do not think that anybody else could have had the success that he has achieved, because he is one of the most assiduous Members of this place. If he likes the label given him by the noble Lord, Lord McNally, it is a title that he well deserves and which we would all be proud to wear.

I want to add only one question to those that have already been posed. In the review of the potential impact, will it be possible for asbestos victims and their relatives to make representations and be heard orally by those conducting the review? This is important, if I may say so, because some of the material provided to us by Tony Whitston was of great importance in deciding certain questions—in particular, whether or not people would be deterred from taking proceedings if the Bill had come into effect in its previous form. There was abundant written evidence from victims that if they knew that 25 per cent was going to be deducted from their damages, they or their bereaved relatives would not have bothered to go into the fray. It is important that that evidence is presented to the review.

Perhaps I may say, finally, how grateful we are to my noble friend Lord McNally, because he has listened carefully all the way through. In particular, as he mentioned earlier, he was willing to meet the noble Lord, Lord Alton, myself and others, and take carefully back to his department the arguments that we put. That meeting and the further meetings that the noble Lord, Lord Alton, had with him have been instrumental in enabling the Government to arrive at this welcome conclusion.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Alton of Liverpool Excerpts

Monday 23rd April 2012 Lords Chamber

[The Chancellor of the Duchy of Lancaster (Lord Strathclyde)]

The Motion before the House is that we should deal with amendments that have come back from the House of Commons. If noble Lords wish to have a debate about process and procedure in the House of Commons, they can table questions and debate the issues. This is not the time for that; this is a time to deal with the amendments that we have before us.

[Lord Alton of Liverpool]

My Lords, before leaving that point, it was the Minister who raised the question of procedure and who said that these matters had been thoroughly dealt with in another place. The fact remains that the issue of mesothelioma, which was quite properly raised by the Minister’s noble friend Lord Higgins, was not debated on Second Reading, in Committee or on Report at all in another place. Had it not been for the amendment that your Lordships passed, it would not have been debated at all in another place. To give it only one hour at that stage and for it again to be timetabled is indicative of the need to reform not this place but, in light of what we heard earlier, the other place.

[Lord McNally]

The four interventions, interestingly, have all come from ex-Members of the other place.

Motion A and Amendment 1 in the name of the noble Lord, Lord Pannick, described by him on Report as a purpose clause, reflect that which features in the Access to Justice Act 1999. Amendment 1 would place a duty on the Lord Chancellor to secure within the resources made available and in accordance with Part 1 of the Bill that individuals have access to legal services that effectively meet their needs.

Despite what was said in the House of Commons by the shadow Justice Secretary, the basis for the Government’s opposition to this amendment has been clearly explained in this House. While I am grateful to the noble Lord for this new amendment, I am afraid that it has not addressed the issues with the original Amendment 1, and the Government oppose the new amendment on the same substantive grounds as we opposed the original construction. In addition to those issues which I will turn to in a moment, Amendment 1B would remove the duty in Clause 1(1) for the Lord Chancellor to secure that legal aid is made available in accordance with Part 1 of the Bill.

On Report I spoke at length about the technical issues with incorporating provisions of the Access to Justice Bill, where only excluded services are specified, to this Bill, where included services are specified. The Bill before us today, if enacted, will represent Parliament’s clear intention as to which services are to be capable of being made available to people by way of publicly funded legal aid services, and therefore to meet their needs in that regard. Any benefit of such a provision akin to that in Section 4(1) of the Access to Justice Act is simply not present in the context of this Bill. Further, both amendments conflate access to justice as a constitutional principle with the provision of legal aid. Access to justice means access to the courts, and does not mean access to a publicly funded lawyer whenever one is sought.

A further duty to provide unspecified legal services must also, in part, serve to muddy the waters and create uncertainty in respect of the services which might be funded under the Bill. It was said by the noble Lord when moving his original amendment that, as a result of the qualifications in it, the amendment,

“does not impose an independent duty which trumps the specific contents of Part 1”,

and that it,

“does not require any further expenditure by the Government”.—[Official Report, 5/3/12; col. 1559.]

I am afraid that we cannot agree with this analysis. By virtue of introducing a new duty on the Lord Chancellor, a potential cause of action must be created where such a duty is said to have not been met. Therefore, by definition, the Lord Chancellor must be at risk of being compelled to provide additional, and as yet unidentified, services to meet that duty or the duty would be a redundant one. This risk is heightened by the fact that both amendments refer to legal services, which are far broader than the legally aided services that the Bill is intended to provide. I acknowledge that this is the first time for the House to hear that observation. Such a scenario would entirely frustrate the Government’s intention of bringing certainty and clarity to the range of services that can be funded under legal aid. The amendment also has the potential to create a great deal of unhelpful and unnecessary litigation as the boundaries of that duty are tested in the administrative court.

The Bill’s purpose is clear, as are the Lord Chancellor’s duties under it. Therefore, I ask that this House does not insist on its Amendment 1. The Commons has decided against it and in my opinion the amendment in lieu from the noble Lord, Lord Pannick, will elicit the same response. Therefore, I urge the noble Lord to withdraw his Motion.

Motion A1 (as an amendment to Motion A)

--- Later in debate ---

Moved by

[Lord Alton of Liverpool]

Leave out from “House” to end and insert “do insist on its Amendment 31”.

[Lord Alton of Liverpool]

My Lords, before the vote on 15 March on Report, a cross-party group of 18 Members of your Lordships’ House signed a letter urging us to defend the rights of mesothelioma victims. The House subsequently voted by a majority of 31 in favour of that amendment, which enables victims of asbestos to keep 100 per cent of their much-needed compensation. The amendment adds nothing to the public purse—that is why there is no financial privilege claim against it—but it seeks to support terminally ill victims of mesothelioma and their families.

All sides of your Lordships’ House have agreed that such cases are, as the Minister has just reiterated, not part of a compensation culture. No one has been able to give any examples of fraudulent or frivolous claims, and nothing that the noble Lord has said today would dispute that. Indeed, at no stage during our proceedings has he ever either asserted or implied that. However, I was concerned to see that the Minister in another place, Mr Jonathan Djanogly, in disputing this amendment, said that the current regime,

“was meant to promote access to justice but has frequently ended up as something of a racket allowing risk-free litigation for claimants, inflated profits for legal firms, and punitive additional costs for defendants”.—[Official Report, Commons, 17/4/12; col. 265.]

I wonder what the noble Lord has to say in contradicting that assertion made in another place. The Minister there was challenged to name one case where a mesothelioma victim had taken an unreasonable or vexatious case to court. He chose not to do so. On reflection, I am sure that he would want to reconsider linking bogus claims to the issue of mesothelioma.

The Minister then said two other things which I ask the noble Lord, Lord McNally, to ask his right honourable friend the Justice Secretary, Mr Kenneth Clarke, to ponder. One was the suggestion that people dying of mesothelioma should be “watching the clock”, which is a phrase that was used in the other place—in other words, policing what lawyers are charging. He said that,

“it is quite right that someone who employs a lawyer has some idea of what is on that lawyer’s clock and what they are charging. That is very important. If someone is sick, they will have family who can help them through their sickness”.—[Official Report, Commons, 17/4/12; col. 268.]

I suspect that when you are dying, especially from a debilitating and excruciatingly painful disease, you may have other things on your mind than watching the lawyer’s clock. As one widow put it:

“Mesothelioma sufferers are in constant pain and always fighting to breathe, they suffer horrendously and they and their families are traumatised at what the future holds”.

She also said:

“Whilst you are trying to cope with the physical and emotional trauma that comes with the words, terminal illness you cannot contemplate the extra worry and anxiety that claiming compensation would bring”.

It is also erroneous to suggest that everyone has relatives to fight their corner for them. Even if they do, should that be their primary concern when a loved one is in the last few months of their life? It is not the job of someone dying of mesothelioma to become the Government’s regulator or watchdog, watching the clock or challenging exorbitant legal fees. That is the job of regulators, not victims of a lethal industrial injury.

The Member for Wythenshawe and Sale East, Mr Paul Goggins, who kindly shepherded this amendment in the Commons, asked with great clarity:

“How can the Minister expect such victims and their families—people who have received the diagnosis and know that they are going to die—to shop around for the cheapest possible lawyer when they need every ounce of their energy to fight their disease?”.—[Official Report, Commons, 17/4/12; col. 278.]

Although our amendment was rejected in the Commons, it once again enjoyed all-party support and the government majority was one of the smallest since coming to office. That underlines the crucial role of your Lordships’ House in scrutinising legislation, especially on a day when the House is once again being told that it must be reformed. It is worth noting, as I did earlier in an intervention following the remarks of the noble Lord, Lord Higgins, that this issue was not even debated in earlier Commons stages. Our Lords amendment gave the Commons its first opportunity to consider an exception for those who had no chance of surviving their illness and little hope of seeing justice done in their lifetime. It is not a bad illustration of what one national newspaper described as “the conscience role” frequently played by this House and how it scrutinises and examines details of legislation and its effects. When an issue of this importance, affecting thousands of terminally ill people can be overlooked at Second Reading and then caught by a guillotine at Committee and Report stages, leaving it completely undebated, that raises some serious questions about which House is most in need of reform.

By sending this amendment back to the Commons, it finally allowed a one-hour debate to occur last Tuesday, although the Member for Scunthorpe, Mr Dakin, was at the very beginning of his remarks when the guillotine fell and we never got to hear what he wanted to say on behalf of his constituents. Other honourable Members of the House of Commons also hoped to speak but were unable to do so.

In the Division which followed, Conservative and Liberal Democrat Members of Parliament were among those who voted for the amendment. The speech by Tracey Crouch, the Member of Parliament for Chatham and Aylesford, who previously worked in the insurance industry, is especially noteworthy. She said:

“It is not my insurance background that drives my real interest in this issue; it is on a constituency basis that I care most. Medway has been highlighted as a hot spot for mesothelioma, which is unsurprising given that the towns have historically provided the industrial hub for Kent, and that the Chatham dockyard was one of the biggest employers for many decades”.

Supporting her, Andrew Bingham, Conservative Member of Parliament for High Peak commented on the all-pervasive nature of this pernicious disease. He said:

“My constituency, like that of my hon. Friend, has a higher than average incidence of mesothelioma. We have no shipbuilding, but there has been significant employment in other asbestos-related industries across the High Peak.—[Official Report, Commons, 17/4/12; col. 271.]

Unsurprisingly, with 30,000 deaths thus far, and many thousands more to come, many honourable Members talked about their own experiences in dealing with asbestos-related cases, and there was a series of very well made speeches. Mr Andy Slaughter, the Member of Parliament for Hammersmith, reminded the House of Commons that it is misleading to suggest that victims would be better off as a consequence of a 10 per cent uplift if some victims were to lose up to 25 per cent of their damages. He said:

“The Government have refused to reduce base costs for lawyers, which would be the obvious way to stop inflated costs. Instead, they are going after victims’ damages. The beneficiaries of all this will be the defendants and their insurers. They will have significantly reduced liabilities if they lose”.—[Official Report, Commons, 17/4/12; cols. 269-70.]

Tracey Crouch said:

“I note the Association of British Insurers is warning that mesothelioma sufferers might not benefit from those reforms if the amendment goes through. I do not believe that, and I want to issue the counter-warning that, on fatal industrial diseases such as mesothelioma, the Government will be judged on what they do to help victims, whether through financial or other types of support.—[Official Report, Commons, 17/4/12; col. 272.]

I spoke to Tracey Crouch earlier today and she told me that if we send this amendment back to the House of Commons she will persist in championing it. The reason why Members feel so strongly was summed up very well by Mr Ian Lucas, the Member of Parliament for Wrexham. He is a lawyer and said:

“I am a solicitor, and I did not go into the law to take damages away from a dying person, pending the outcome of a claim”.—[Official Report, Commons, 17/4/12; col. 275.]

Finally, in resisting the amendment in the Commons, Mr Djanogly said that if it were passed,

“claimants in mesothelioma cases would have an advantage over others”.—[Official Report, Commons, 17/4/12; col. 268.]

An advantage over others? It is hard to think of many advantages enjoyed by victims of mesothelioma. That was an ill-judged and insensitive remark.

The Minister argued that it would be unjust to single out one class of claimants for exemption. Of course it is never possible to do what we would like for everyone—I fully accept that—but does that mean that we can never see the difference between one category of victims and another? Is there not a difference between someone lodging a claim for whiplash and someone who has contracted a terminal illness? Are we really incapable of prioritising or seeing grounds for exceptions, as we have now, for instance, in medical negligence cases—and rightly so?

Noble Lords should recall that mesothelioma has attracted more legal challenges to limit liability for compensation than any other disease. Exceptionally, mesothelioma has a latency period of up to 60 years. It is a fatal disease; there is no cure. No industrial disease places claimants in such difficult circumstances when facing the stress of taking legal action.

It is moving to reflect on the comments of the late Lord Newton of Braintree, who was one of the key supporters of this amendment. Lord Newton, a former Secretary of State, Minister for disabled people and Leader of the House of Commons, referring to victims of asbestos exposure, said:

“I have some experience of claims relating to that disease—or rather to mesothelioma … I think there is a real case for wondering whether we should not maintain assistance to that group of people … this condition is what you might call very slow burn. Exposure to asbestos that occurred very many years ago may give rise much later to mesothelioma, one of the nastiest forms of cancer”.

He concluded by saying:

“I hope my noble friends on the Front Bench will not consider that this amendment would have a scattergun effect but that it is well targeted and deserves careful consideration”.—[Official Report, 30/1/12; col. 1359.]

In a letter to the Times from my noble and learned friend Lady Butler-Sloss, the noble Baroness, Lady Finlay, the noble Lords, Lord Beecham and Lord Avebury, and myself and others, we remarked on the creation of an exceptional injustice if this amendment is not supported. We said:

“Asbestos victims should not, and financially cannot, subsidise other claimants’ access to justice, nor can they afford to defend test cases run by rich insurers”.

The letter urged Parliament,

“to protect asbestos victims from a gross injustice”.

Following the Commons debate, I am glad to say that the noble Lords, Lord McNally and Lord Freud, held talks last week with the right honourable Member for Wythenshawe and Sale East, Mr Goggins, and me. They are actively trying to find ways forward and I welcome that. As one can imagine, we were treated with characteristic respect and understanding. The movers of the amendment made it clear to Ministers that we are looking for a constructive outcome. If it comes to a Division, I hope that the House will continue to support the amendment while we continue to seek an agreed way forward. Society owes a huge debt to those who are now losing their lives to this terrible disease. Thousands of people will lose their lives in decades to come as a result of criminally negligent exposure to asbestos long after the dangers were known to government, industry and health and safety enforcement agencies. I hope that noble Lords will join me in keeping this issue in contention until a just solution is achieved. I beg to move.

--- Later in debate ---

[Lord McNally]

As I made clear in my opening remarks, my noble friend Lord Freud hopes to be able to make a Statement on this by the summer. The House, the insurance industry and sufferers from this disease should understand that we mean business on this. We are addressing this with a real sense of urgency. Whatever happens regarding this amendment, given the plight of sufferers from this disease, they deserve fairness and speed in settlement for the many reasons that have been put forward.

The noble Lord, Lord Howarth, said that there is no virtue in dogmatic consistency and he even had the strong support of my noble friend Lord Carlile in that. Certainly, there is no virtue in dogmatic consistency, but we need to consider the integrity of the legal system as a whole and fairness between different claimants. There are two parallel debates. There are the necessary Jackson reforms of legal costs, which will apply across the board, and the need to move with speed to get a system that deals with the problems of mesothelioma victims as quickly as possible. We can only make our impact assessments.

My noble friend Lord Carlile asked whether we thought that the Jackson reforms will prevent sufferers’ access to justice. We do not believe that. We would not have brought this forward if we had thought it. The point was made about success fees. I repeat that they are not compulsory. As my noble friend Lord Faulks has pointed out, there may be some proper, healthy competition among lawyers that will address the question of success fees.

It is not the responsibility of somebody suffering from a terminal illness to watch the clock as far as costs are concerned. It is the responsibility of government. The Jackson reforms take that responsibility away from claimants. Not just in this particular case but in the broad there was no responsibility on litigants or their lawyers to watch costs. That was the weakness of the whole system. The Jackson reforms put some emphasis back on to the responsibility to watch costs—not on somebody suffering from a terminal illness but through the reforms that we are putting through across the board in this area. For a claimant who does not have to pay a success fee, the 10 per cent uplift could mean more compensation than he or she would otherwise have got. I make no firm claim on that. It is not a question of being callous towards the sufferers. On the contrary, the Government are taking very speedy action to try to get in place an agreement which I am sure we all agree should have been in place many years before.

Sadly, this is not a problem that will go away. That is one of the reasons why I believe that we need a sense of urgency in our approach to this. Although we are now fully aware of the dangers of asbestos, this insidious disease can strike 20, 30 or 40 years after exposure. Therefore, there is a need not for a complicated, expensive, lawyer-based system of compensation, but for a system that will address the needs of sufferers. I am sorry that I cannot help more in relation to making it an exception. Horrific as the disease is, it is not an exception to the way in which the justice system should work. We should have a system in which lawyers get a proper return for the job that they do and in which those deserving compensation receive proper compensation. It is not a case of grabbing 25 per cent of that compensation. Competition and even some morality might drive that out of the system. Even bigger than that is the prize that the Government are seeking: a system that is not lawyer-based but one that is based on need, clearly agreed with the industry. As I have assured the House, we hope to make a Statement by the summer and we hope to have a system in place that brings speed and fairness to the sufferers of this disease. I ask the House to reject the amendment and to support the House of Commons resolution.

[Lord Alton of Liverpool]

My Lords, I am grateful to all noble Lords who have participated in this debate and in the earlier debates. The Minister has, with his usual courtesy, dealt with the arguments that have been put forward today. I reiterate my thanks to him for the time that he has spent with me, with Mr Paul Goggins last week and with the noble Lord, Lord Freud. He has said a number of things this evening on which the House should reflect, one of which was about the new scheme that it is hoped will be brought in in future and which will be a lot less reliant on lawyers. If we can achieve that, I think that there will be consensus in your Lordships’ House that it will be a very significant and purposeful step forward and it is certainly one that I will wholeheartedly support. The noble Lord, Lord McNally, has told us that that announcement will be made in the summer. However, it will require primary legislation, which is not before us, so there will be at least another 18 months from the time of the announcement before anything is on the statute book.

In the course of this evening’s proceedings, there has been dispute between different lawyers and different Members of your Lordships’ House about the practical effects of the law as now drafted on victims of mesothelioma. Pending the announcement in the summer and the new legislation that might come, I beg your Lordships not to play Russian roulette with the lives of people who have a terminal illness. I beg you not to be drawn into either side’s arguments about how this might work out and not to take chances but to preserve, as the noble Lord, Lord McNally, said the amendment would do, the status quo and keep things as they are at the moment until such time as we have something better to put in its place.

Success fees have been mentioned a great deal during the proceedings. The noble Lord, Lord Faulks, said that many lawyers would not want them, the noble Lord, Lord Thomas, said that they should not take them, and the Minister said that they would not be compulsory. However, the Bill provides for lawyers to take, if they wish, up to 25 per cent in compensation. They can take that as their payment, not for the base fee—they will get that anyway—but in addition to the base fee if they are successful in pursuing a case.

I agree with what the noble Lord, Lord Thomas, said earlier that it would be better if such a system were entirely swept away, but it has not been. If we are to wait for regulation, how do we know whether those regulations will be put forward by the Government or whether they will be successful? I do not think that we should do this on a wing and a prayer.

The noble Lord, Lord Avebury, thanked me for my persistence but, 40 years ago, in 1972, the noble Lord issued a pamphlet championing people who were suffering from mesothelioma. Thirty thousand people have died from the disease over the years. As the noble Lord, Lord McNally, has just intimated, probably the same sort of number will die before this is all over.

We are often accused of being preoccupied with fringe issues, but in a week or so, we shall have Workers’ Memorial Day. Surely, this evening, it would be fitting for us to recognise the sacrifice that workers have made in the service of their companies and this country in many heavy industries. This does not affect just those who have worked in heavy industries as even those who washed the clothes of people working in those industries have contracted this awful disease. Surely this is something on which we can raise our voices tonight, knowing that there are Members in another place who wish to pursue this further in the House of Commons and who were denied the opportunity to do so at earlier stages. Many of the issues that we have been debating this evening, which are new, should have been debated in Committee in another place much earlier on. We have been reassured that there are no financial questions. This is not about austerity; it is not about fraud; it is not about ambulance chasing; and it is not about a compensation culture. However, it is about elementary justice. I hope that your Lordships will agree with my Motion. I wish to test the opinion of the House.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Alton of Liverpool Excerpts

Tuesday 27th March 2012 Lords Chamber

[Lord Pannick]

My Lords, this amendment is in my name and that of the noble Lord, Lord Alton of Liverpool. It seeks to confer on the Lord Chancellor a power to disapply provisions of Part 2 in particular categories of case. Noble Lords will know that Part 2 removes the power of the court to make unsuccessful defendants pay success fees and “after the event” insurance. Successful claimants would need to make these payments out of their damages. Concern has been expressed in your Lordships’ House that this may deter or prevent claimants bringing meritorious claims and may operate unfairly by effectively reducing the damages which they obtain. This concern has been expressed in a wide variety of legal contexts from industrial injuries to insolvency claims.

The Minister’s response to these criticisms has been to express the hope, and sometimes the belief, that Part 2 will not have the adverse consequences for access to justice which critics of these provisions fear. The reality is that neither the Government nor the critics of Part 2 can be sure what effect it will have on access to justice in practice. The Minister will, I hope, accept that it is possible that after the Bill is enacted and comes into effect, experience may show that in specific contexts the concerns expressed by those of us who are worried about the implications of Part 2 are justified, and that access to justice is being impeded.

This amendment would confer a discretion on the Lord Chancellor to respond to any problems that are seen to occur after enactment by excluding defined categories of case from the statutory provisions if he thinks it appropriate to do so. The new provision would confer a power in Part 2 equivalent to the Lord Chancellor’s power in Part 1 under Clause 9(2) to modify Schedule 1 in relation to the scope of legal aid—a power for the Lord Chancellor which the Government accepted was appropriate in Part 1. I cannot see why the Lord Chancellor would not wish to have such a discretion in Part 2 equivalent to that which is given by the Bill in Part 1. In neither context does the discretion impose any duty on him.

Parliament is unlikely for some time to have another opportunity to look at these important matters. Given the importance of the changes that we are making in Part 2, given the concerns that have been expressed about their impact on access to justice, and given that these matters may look very different indeed in some legal contexts in the light of experience after these changes are made, it is surely wise to add to the Bill a power for the Lord Chancellor whereby it would be entirely within his discretion to modify the effect by excluding categories of cases. I beg to move.

[Lord Alton of Liverpool]

My Lords, I shall be brief. I support the amendment in the name of my noble friend Lord Pannick. Just over a week ago, your Lordships were reminded by no less a person than Her Majesty the Queen that during her time as monarch she had signed more than 3,000 pieces of legislation enacted by Parliament. All of us who have been Members of this House and the other place know that we have a penchant for passing vast swathes of legislation that we never revisit subsequently. We all know that we sometimes legislate in haste and repent at leisure. I have had the feeling during the passage of this legislation that we will later regret some of the measures we have passed.

The problem then is what we are able to do about it. Although we sometimes add sunset clauses, and Select Committees can revisit legislation and make recommendations, we often do not put in the kind of belt-and-braces provision that my noble friend Lord Pannick has placed before your Lordships’ House this evening. It is eminently reasonable. It is perfectly good for Parliament to say that if things were to work out in the worst-case scenarios in the way that your Lordships at various stages in Committee and on Report have suggested may happen, and if the Minister is proved not to be correct in what I am sure he sincerely believes regarding the way in which this legislation will be interpreted in due course, there ought to be some way of doing something about it if it is to be found wanting.

Giving this discretionary power to the Lord Chancellor and making it consistent with Part 1, as my noble friend has just described, seems to be the perfect way of dealing with the problem. It is eminently reasonable and, like my noble friend, I cannot see any good reason why the Government would want to resist something that requires no expenditure and does not place on them any duty but simply gives them a discretionary power. I hope that the amendment will commend itself to your Lordships.

[Lord Beecham]

My Lords, the Opposition certainly support the amendment moved by the noble Lord, Lord Pannick, in his customary and eminently reasonable way. He clearly draws the analogy between the changes that the Government, to their credit, accepted in relation to legal aid and what is being advocated here. It adopts the precautionary principle whereby if things went wrong—they may not of course—there would be a fairly simple way of correcting them if the amendment were to be accepted. If it is not accepted, we would presumably be in for a long delay while primary legislation was enacted, as both noble Lords have made clear.

In this case, discretion is the better part of legislative valour, and I hope that the Government will accept the amendment. It does not bind them to anything but provides an opportunity for corrective measures to be taken, if that should prove necessary, in precisely the same way that they have accepted in relation to legal aid.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Alton of Liverpool Excerpts

Wednesday 14th March 2012 Lords Chamber

Moved by

[Lord Alton of Liverpool]

132AA: Before Clause 43, insert the following new Clause—
“Exception in respiratory (industrial disease or illness) cases
The changes made by sections 43, 45 and 46 of this Act do not apply in relation to proceedings which include a claim for damages for respiratory disease or illness (whether or not resulting in death) arising from industrial exposure to harmful substance.”

[Lord Alton of Liverpool]

My Lords, in speaking to Amendment 132AA, I shall speak also to Amendments 136, 141 and 142, which relate to Clauses 43, 45 and 46. In speaking to them I return to the issue of mesothelioma and its victims, the question that I raised on 22 November at Second Reading, at some length in Committee on 30 January, and during Oral Questions on 29 February. At the outset, may I thank the Minister for his courtesy in meeting the noble Lord, Lord Avebury, and myself yesterday, and for listening so carefully to the arguments that we advanced to him?

Anyone who has ever contested a parliamentary by-election knows that it is the most special way of entering Parliament. It is something that I share with the noble Lord, Lord Avebury, and it is 50 years to the day since the noble Lord, Lord Avebury, entered the political lexicon as Orpington Man. Over the many years that have passed since then I have always found myself wanting to be on the same side of the argument as the noble Lord, Lord Avebury, and nothing gives me greater pleasure than the fact that he is one of the signatories to this amendment.

Some 18 Members of your Lordships’ House are signatories to a letter supporting this amendment. They include the noble Lords, Lord Bach, Lord Beecham, Lord Brennan, Lord Elystan-Morgan, Lord McColl, Lord McFall, Lord Monks, Lord Newton, and Lord Wigley, the right reverend Prelate the Bishop of Blackburn, my noble and learned friend Lady Butler-Sloss, and my noble friends Lady Finlay, Lord Martin, Lord Patel and Lord Walton of Detchant. I give those names to your Lordships’ House to demonstrate the breadth of support for this amendment from all sides and they include distinguished lawyers, distinguished medics and representatives of working people’s interests.

Noble Lords may also have seen a letter which appeared in the Times on 3 March signed by several Members of this House. In conclusion, it states that,

“asbestos victims should not, and financially cannot, subsidise other claimants’ access to justice, nor can they afford to defend test cases run by rich insurers”.

In a nutshell, that is the principle we are debating today. We must decide whether it can be right that asbestos victims should be required to surrender as much as 25 per cent of their damages for pain and suffering to pay for legal costs. Let me repeat, the clauses we are now debating required terminally ill asbestos victims who succeed in a claim for compensation against negligent, guilty employers to pay up to 25 per cent of their damages for pain and suffering in legal costs associated with the conditional fee agreement system, the CFA.

Let us also be clear about what we are not debating. This is the Legal Aid, Sentencing and Punishment of Offenders Bill. Into which of those categories contained in the Title do people suffering from mesothelioma fall? As the Bill aims to restrict legal aid and to curtail what has been described as a compensation culture, it is worth nailing two myths at the outset. First, these mesothelioma cases have not been legally aided and are not legally aided now. They have not been legally aided for some 12 years. Secondly, they are not part of the compensation culture. I know that the Minister concurs with those propositions.

Mesothelioma cases receive no legal aid. They are not fraudulent cases and do not involve fakery. On that much we can be agreed. As one victim put it to me, “I can understand the need for legislation to prevent the trivial and no-win fee claims but how can the claim of a mesothelioma sufferer be ‘lumped in’ with ‘ambulance chasers’? Mesothelioma has only one outcome and that is loss of life. It is not trivial, and patients need help not hindrance”.

Currently, solicitors are paid a success fee by the losing defendant to fund very difficult but meritorious cases. This replaces the funding which was available under legal aid. One claimant will have to pay for another claimant’s chance to gain access to justice if we agree the provisions in the Bill. Important test cases which determine the right of mesothelioma sufferers to claim would never have been run under the new prescription. Those who tabled this amendment argue that asbestos victims should not, and financially cannot, subsidise other claimants’ access to justice, nor can they afford to defend test cases run by rich insurers.

What else do we agree about? We are all agreed that this is a terrible disease. The Minister movingly described to us in Committee how a member of his own family had their life cruelly ended by this fatal disease. We are all agreed that once diagnosed the victim’s life is drastically curtailed. Many doctors say that the average lifespan from diagnosis to death is likely to be around nine months to one year. Some 30,000 people have died to date and as many as 60,000, according to official figures, could die in the future.

What have been the lines of disagreement? The Government have argued that conditional fee agreements, as currently constructed, mean that win or lose a claimant risks nothing but that has encouraged frivolous and fraudulent claims to flourish. Yet those who tabled this amendment argue—as I have said, the Government have said that they agree—that the claims of dying asbestos victims can never be frivolous or fraudulent. So who is responsible for exploiting CFAs? The Government and the insurance industry are quite clear: road traffic accident claims, which make up over 70 per cent of all personal injury claims, particularly whiplash claims, are to blame. In total, whiplash claims add up to a staggering £2 billion annually. We argue that RTA problems will not be solved by punishing asbestos victims. As one victim explained to me:

“My life has been turned upside down, and I really didn’t want to think about anything except spending my last days with my family. I worked all my life and paid all my N.I. and taxes, so this seems unfair”.

That is expressing it with commendable understatement.

--- Later in debate ---

[Lord Thomas of Gresford]

I am very happy to do that. I will speak to it further in due course. Frankly, I am anxious not to make the 31-minute speech that I made when we last discussed this particular issue and to relieve your Lordships of that burden. I am splitting what I intend to say, which I think is necessary to cover the whole field, so that it becomes a little more understandable. I take the noble Lord’s rebuke in good part, but let me repeat that asking for the status quo in mesothelioma cases only is not the way to go forward.

[Lord Alton of Liverpool]

My Lords, I would draw the noble Lord’s attention to the actual words in the amendment and indeed in the amendment of the noble Lord, Lord Bach, which is in this group. We have corresponded about this and he has been good enough to share with me prior to the debate some of the points that he has made eloquently this afternoon. I am grateful for that. However, this amendment goes slightly wider than he is suggesting in his remarks today and would cover, for instance, pneumoconiosis as well.

--- Later in debate ---

[Lord Mackay of Clashfern]

My Lords, obviously, the people who fall into this category should have our sincere sympathy. I certainly feel strongly that they deserve that. However, I want to mention one or two matters. First, when this system of contingency fees—or whatever name you want to call it—was introduced, there was no special rule for such cases. I do not know to what extent the noble Lord, Lord Alton, or the noble Lord, Lord Avebury, have looked into the situation as it was when the system as I introduced it was working.

Secondly, it will not have escaped your Lordships that the next amendment of the noble Lord, Lord Alton, concerns industrial disease cases generally. The amendment we are discussing deals with respiratory cases; the next amendment deals with industrial disease cases. I particularly draw to your Lordships’ attention the question of justice as between different claimants. I entirely accept what has been said by those highly medically qualified noble Lords who have spoken about the disease we are discussing. However, other troubles that are the subject of personal injury actions involve lifelong deprivation of practically all one’s faculties. That kind of long-lasting trouble comprises another type of personal injury action. If your Lordships wish to support this amendment, they have to think how they would justify treating the cases we are discussing differently from other terrible cases which those of us who have experience of personal injury actions know exist.

Long ago I was professionally involved in cases that concerned the National Coal Board. Pneumoconiosis cases were brought but other cases were brought involving people who had been injured while working underground. People who suffered those injuries were in terrible distress and eventually died. However, before they died they were in a very distressing situation. Therefore, one has to be careful about how one distinguishes between the different cases. Justice requires that similar cases be similarly dealt with.

If I understood him correctly, the noble Lord, Lord Alton, said that the cases in the group he was asking for should not be required to subsidise other cases. My understanding of this system is that you do not subsidise other cases: the success fee is dependent on the chances of success in your case. It is a factor which is dependent on a probability of success that works into the success fee. It is not dependent on other cases; it is dependent on the precise potential for winning that exists in the case that you have in hand. Therefore, I do not accept that this system in any way subsidises other cases across the board except in the sense that the probability of success in a particular case is what determines the success fee.

If the noble Lord, Lord Alton, wishes to press this amendment, I assume that he will not have the benefit of the 10 per cent uplift for his amendments in this group, which is on the way as a result of the undertakings given by the Government. There is also the question of the one-way shift. That would probably apply if it were done generally in respect of these cases, but the other may not.

This is a very difficult area. The sympathy of the whole House is with these people, and that is very much the case with me and my noble friend in particular, given his experience of this issue. However, justice requires us to do justice as between different claimants. Other claimants also have very difficult conditions. How do we say to X, “Your claim and the conditions to which you have been exposed are so bad, as distinct from the others, that we can justify treating you differently”?

I should perhaps have said that I of course associate myself with the congratulations offered to the noble Lord, Lord Avebury. I did not suffer from the difficulties that my noble friend Lord Newton of Braintree had.

[Lord Alton of Liverpool]

Perhaps I may put two points to the noble and learned Lord before he sits down. The system as it operated under his stewardship did not take funds away from the claimant when they were successful in litigation. That is surely the difference from the matter before your Lordships’ House. When the noble and learned Lord oversaw the system, it was fair and just, and did not raid any of the funds that the claimant was able to receive in compensation. We are merely seeking to maintain the status quo in the way that it operated during his time.

As to exceptional circumstances, surely, if someone is terminally ill, they are exceptional or sui generis, as described by the noble Lord, Lord Newton, and my noble friend Lady Finlay in their interventions. If people in this group are terminally ill, that is surely what makes their cases exceptional.

[Lord Mackay of Clashfern]

My Lords, it is possible to describe other types of illness and the basis for claims in very much the same language as that used by the noble Lord, Lord Walton of Detchant, and the noble Baroness. So far as the first point is concerned, in the system as I introduced it the success fee would be payable by the claimant out of his or her damages.

--- Later in debate ---

As I say, I do not believe that this is a debate between those who want to help here and those who do not. It is about keeping the Jackson reforms in Part 2 in their place without producing a whole range of anomalies, and at the same time the Government taking forward with a sense of real urgency ways of giving practical help to those who suffer from this dreadful disease. I hope that the noble Lord, Lord Alton, in the light of that reply, will withdraw his amendment.

[Lord Alton of Liverpool]

My Lords, I am grateful to the Minister for the way in which he has addressed this issue this evening and, indeed, I reiterate my thanks to him for meeting the noble Lord, Lord Avebury, and me yesterday to discuss what more could be done to help this unique group of people—a point I shall return to in a moment. I am conscious that your Lordships want to come to a decision on this matter, so I promise that I will be brief.

There was no debate about this issue when it was before the House of Commons; there was no Division in the House of Commons. Your Lordships will be doing your job in scrutinising legislation by supporting these amendments this evening, because Members of the House of Commons will now, I think, welcome the opportunity to return to this question. I am told by my noble friend Lady Finlay of Llandaff, whom I spoke to earlier about this, that very small numbers of people other than mesothelioma victims would actually be caught by this amendment. However, if it should be that this is slightly extended from this exceptional group of people who are terminally ill and dying to one or two other groups, let us make this more generic and extend it to people who are terminally ill. That is the difference; that is why I disagree with the noble Lord, Lord McNally, when he says that this would be giving this category of people an advantage over others. This is a group of people who are entitled to an advantage. If you are diagnosed as terminally ill—if you are told that you only have nine months to a year to live—then you are not in the same category as others, and we have to do all we can to help.

The Minister said that his noble friend—in fact, it was the noble Lord, Lord De Mauley, yesterday, speaking on behalf of the noble Lord, Lord Freud, who was unwell—gave an assurance that there would be an increase in lump sum payments. That is extremely welcome but it has no bearing whatsoever, of course, on the litigation that we are talking about this evening, which people might embark upon to seek compensation. It is also welcome that there should be an uplift and I hope that no one is suggesting that that should not also be available to people who are terminally ill and dying as a result of mesothelioma.

The Jackson proposals have been referred to a great deal during the debates in your Lordships’ House, but we all know that they are a curate’s egg—they are there in part. They have been chosen where it suits those who are proposing these new arrangements and, where it does not, they are set to one side: this is a very good example of where that has happened.

Let me reiterate: this is not about public money. Legal aid, as the Minister himself has said, has not been available for the past 12 years, so this is not about public money. Nor is it about the compensation culture; we are all agreed about that. It is about an exceptional group of people, but it is also more than that. The noble and learned Lord, Lord Mackay of Clashfern, said that it is about justice. I simply ask your Lordships how it can ever be just to raid the compensation that someone has been awarded because they have proven their case in court—to take up to 25 per cent of what they have been awarded to help them through the last days of their life. How can it ever be a matter of justice to do that? It is for that reason that I would like to seek the opinion of your Lordships’ House.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Alton of Liverpool Excerpts

Wednesday 7th March 2012 Lords Chamber

[Lord Howarth of Newport]

My Lords, we have heard admirable and powerful speeches. The noble Lord, Lord Newton, said that he was not going to get emotional, but his speech was moving as well as entirely persuasive.

Aside from the constitutional case, the moral and practical cases for keeping welfare benefits within scope of legal aid are overwhelming. We are moving into a period of major change in the social security system. A situation in which errors in the administration of the benefits system are likely to increase and, at the same time, the possibility of redress is to be reduced cannot be one that we can look forward to with any satisfaction or confidence. It is liable to create confusion, misery, damage, alienation and additional cost. There are going to be severe reductions in benefits and at the same time there will be the move towards the introduction and implementation of universal credit, which Ministers have been pleased to tell us represents the greatest transformation in the welfare system since Beveridge. I have seen very varying estimates of the number of people who may be affected by this between 2013 and 2017 but it could, I am told, be up 19 million.

The CPAG handbook, which sets out the regulations and the case law, consists of 1,620 pages and is going to have to be almost entirely rewritten. It will be a period in which there will be immense pressures on people in need and on decision-takers. Those decision-takers will typically be junior officials, and it is no particular criticism of them to anticipate that the error rate in their decision-taking will rise. It always has risen with significant changes in the benefits system. Therefore, the need for advice, assistance and representation is going to be acute. It will be a period of turmoil in which the rules will be almost continuously changing. For example, in the case of housing benefit, there are the present rules but there is to be a new set of rules that will come in in March 2013, and then there may very well be revisions to follow in 2014 or 2015 following the review that the Government have agreed to undertake.

Very sensitive and very controversial decisions are going to be taken as a new body of case law is developed. Let us consider the situation of disabled children. A child who is categorised as disabled will see their weekly benefit fall from £56 to £27 a week. On the other hand, a child who is categorised as severely disabled will see a modest increase in their benefit from £74 to £76 a week. Depending on which side of that definitional line the child falls, there will be a difference of £49 a week in household income, and that is an enormously important difference. There are going to be numerous households and families who are bitterly disappointed and, indeed, desperate in consequence of decisions that are taken in this regard. The tribunals will make these decisions, but surely it is wrong for parents not to have legal advice to enable them to decide whether they ought to challenge such decisions.

Alternatively, let us take the case of jobseekers. A new rule is to be introduced that if a jobseeker fails “for no good reason” to apply for or accept a particular placement, he or she may be sanctioned by the loss of universal credit for up to three years. That is a draconian sanction. In such a circumstance, the decision-maker and the claimant may have very different views about whether the reason the placement was declined was good or not. Can it be right to deny people three years-worth of benefit and, at the same time, deny them legal advice to enable them to judge whether they should contest that decision? There are other instances that I could give arising out of the prospective changes but I want to be brief.

I think that withdrawing legal aid from people in such situations is excessively harsh; indeed, it is reckless. A better thrust of reform would be to improve the quality of decision-taking. I just point out that the availability of legal aid enables well founded challenges to be made where there may be systemic flaws in the system, and it is for the benefit of the Government and of the administration of the system that people should be able to make these claims.

The amendment moved by the noble Baroness, Lady Doocey, is a good one, I think, but I prefer the amendment that I look forward to my noble friend Lord Bach moving, which would take things rather further. I do not know whether Amendment 101 in the name of the noble Lord, Lord Shipley, will be moved, but I do not support it. It would allow the Ministry of Justice to provide discretionary funding here and there. I think that amendment is unnecessary because, as I understand it, the department already has such discretion, and, secondly, it is insufficient because we simply cannot rely on the use of such discretionary funding to ensure that people have the help that they should have.

I very much look forward to the speech of my noble friend Lord Bach and I hope that the House will approve Amendment 12. I also hope that it will approve Amendment 11.

[Lord Alton of Liverpool]

My Lords, I am a signatory to Amendment 12. I am very happy to support the sentiments expressed by the noble Lord, Lord Howarth, and I support what the amendment says about extending this to the Second-tier Tribunals as well as the First-tier Tribunals, which are mentioned in the amendment by the noble Baroness, Lady Doocey. We have known each other longer than either of us would care to recall. I know that this is not some passing fancy on her part. She has had a lifelong devotion to the cause of disabled people. She spoke with great eloquence and conviction in Committee and she has been courageously persistent in our proceedings to raise this matter today. In the long and distant past, I worked for five years with children with special needs. Many of us in the House—the noble Lord, Lord Howarth, is one—have had personal experience of people with disability and know, as one noble Lord said earlier, some of the most vulnerable people in society. Surely how we protect and treat them is a test of how civilised we are as people.

Four out of five cases heard in the First-tier Tribunals relate to people who are disabled. Despite what the noble Lord, Lord Carlile, said, he is right to say that disabled people are as capable as anyone else in dealing with their own affairs, but 78 per cent of those receiving advice before going to a tribunal were more likely to win their appeal than those who did not. Clearly, having professional, legal advice pays off. Who would we take that advice away from; who would we take this professional care and help away from? Disabled people will be left to their own devices. Inevitably, that will lead to more social exclusion and innumerable negative results.

Secondly, we have been told again and again that we have to do these things for economic reasons, but I hope that, when the Minister replies, he will respond to the points made by the noble Lord, Lord Carlile, about the so-called economic savings that might be brought about by these measures. As the noble Lord, Lord Newton, has told us in his remarks, it is highly questionable. There is empirical research—an academic study—by King’s College. In its report, United Consequences, it flatly repudiates and rejects the idea that savings will be made. Citizens Advice says that every pound spent on welfare benefits potentially saves the state £8.80. I certainly would want to hear from the Minister that he repudiates those findings before the House reaches a conclusion on these questions; what analysis he has made of those reports; and how, therefore, we can justify doing this on purely economic, austerity measure-based arguments of the kind that we have heard so much about during our proceedings.

The third point, which was touched on by the noble Lord, Lord Newton, and to which others have referred, is about who will pick up the pieces subsequently. Many of us have received a copy of the Citizens Advice report, Out of Scope, Out of Mind—Who Really Loses from Legal Aid Reform. That states:

“When Government consulted on the proposed changes to the scope of civil legal aid, 95 per cent of respondents did not agree with the proposals”.

It goes on to say:

“Official data shows that 80 per cent of social welfare cases achieve positive outcomes for clients, which can involve savings for other services”.

That backs up the point I made a moment ago. The report concludes:

“However, it is also clear that they would not have achieved these positive outcomes on their own. If they could be empowered to help themselves without specialist advice, casework and support from legal aid, then every CAB would rejoice, but that is not the reality. It will be a massive failure in the justice system if they are abandoned”.

It will be a massive failure in the justice system if they are abandoned. That is what we are being asked to vote on today and I hope that the House will support the noble Baroness, Lady Doocey, and the noble Lord, Lord Bach, when we decide on these matters.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Alton of Liverpool Excerpts

Monday 5th March 2012 Lords Chamber

It appears that the Minister is going to refer, as he did at Question Time, to some of the government amendments that have been put down in the field of clinical negligence in relation to obstetrics cases, and there are one or two other things on which there are some good concessions. I welcome that, but those concessions themselves call into question how far the fairness and justice of these proposals had been thought through when they came forward. We need some more concessions that reflect the full merits of the principle reflected in this amendment and of the rhetoric of the coalition, and I hope that we shall see some move in that direction when my noble friend replies in a few minutes’ time.

[Lord Alton of Liverpool]

My Lords, it is always a pleasure to follow the noble Lord, Lord Newton of Braintree. The House will know, of course, that he has held high ministerial office, having been a Cabinet Minister and a Secretary of State, but also as a former Leader of the House of Commons he brings distinguished experience to your Lordships’ House. The Minister should reflect on the wisdom of what the noble Lord has just said.

While we all accept that legislation is not like semaphore—it is not just about sending signals—there is grave public anxiety. The right reverend Prelate the Bishop of Exeter expressed the concern of groups such as Citizens Advice about the load that will be placed on their shoulders. The noble Lord, Lord Carlile of Berriew, expressed the concerns of groups such as claimants. He and I were privileged at the very outset of the proceedings of the Bill to meet a lady who is bringing up a brain-damaged child and who told us in no uncertain terms about the problems that would have beset her if she had not had access to justice via legal aid.

It is for that reason that I support my noble friend’s amendment today. As he has rightly said, it will not cost the Exchequer money but it sends a signal and lays down an important principle. It invites us to consider again the purpose of legal aid, which, when Hartley Shawcross introduced it in 1948, was one of the principles of the founding of the welfare state. It also invites us, especially those of us who are not lawyers, to consider the importance of access to justice for many people throughout this country. As the noble Lord, Lord Hart of Chilton, said, it is moderate and realistic. Access to justice is not a service or a product but an intrinsic right for every citizen. Dr EJ Cohn made the case best when he said:

“Just as the modern State tries to protect the poorer classes against the common dangers of life … so it should protect them when legal difficulties arise. Indeed, the case for … protection is stronger than the case for any other form of protection. The State is not responsible for … old age or economic crises. But the State is responsible for the law”.

This is not simply a moral duty but a legal one. As the European Court of Human Rights has held, an overly restrictive legal aid system can be a violation of Article 6 if it means that there is a significant inequality of arms and the individual is unable to mount an effective defence or claim. It is in this light that the first line of the Bill should be construed—namely, in the light of the important moral and legal duty under which the Lord Chancellor would be placed.

The beginning of any piece of legislation will often articulate the principles driving it. This Bill is no different. The noble Baroness, Lady Mallalieu, was right to remind us of that. It is the overriding duty of the Lord Chancellor to provide effective legal assistance to those in need, which should be the backdrop against which all other clauses of the Bill are construed. It is therefore crucial that the first clause should provide clarity as to what that duty is, as well as on its more general nature. As presently construed, Clause 1 lacks any clarity of principle. It does not focus on the needs of the citizen or on the fact that such assistance must be effective. Instead, it presents the Lord Chancellor’s duty as being extremely narrow, focusing simply on enacting the Bill, rather than on ensuring any greater principles.

In contrast, my noble friend’s amendment seeks to remedy that fault by focusing the nature of the Lord Chancellor’s duty on being, first, effective and, secondly, according to one’s needs. The principles of effectiveness and provision according to need go to the heart of what is meant by providing proper legal assistance. It is critical that all assistance provided must be effective—what is the point otherwise? For it to be otherwise would be likely to hinder an individual’s access to the courts as well as likely resulting in a waste of money. As to need, it is important that legal aid goes to those who need it and those people only. Indeed, that is the whole point of the scheme. It is therefore important to state that unequivocally and clearly at the beginning of the Bill. Should the Lord Chancellor wish to demonstrate that he is effecting his duty properly, that duty is then stated in the Bill.

However, it is also important to note that the amendment does not place an undue burden on the Lord Chancellor. Nor does it curtail much of what the Bill strives to achieve. The Minister might be right to worry that the Lord Chancellor would be placed under too heavy a burden—a herculean task that would need a huge amount of both time and resources. However, he need not harbour such concerns unduly. My noble friend’s amendment clearly states that such a duty would be restricted to the provisions in the Bill. The amendment would simply recognise that the duty of a Lord Chancellor is to provide legal assistance, as provided in the later clauses of the Bill, but that he must do so in a manner that is both effective and according to need. This is entirely reasonable. If the Government resist the amendment, alarm bells should ring about their apparent covert intentions, and many suspicions about the potential ramifications of the Bill for access to justice will be confirmed. The amendment might go some way to assuage those misgivings. For those reasons, I am very happy to support my noble friend’s amendment.

[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.

Health: Mesothelioma

Lord Alton of Liverpool Excerpts

Wednesday 29th February 2012 Lords Chamber

Asked by

[Lord Alton of Liverpool]

To ask Her Majesty’s Government what has been the cost to the Exchequer of mesothelioma cases heard in British courts in the past five years.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, based on the data available to us, it appears that the vast majority of mesothelioma claims against the state settle rather than proceed to the courts. While we do not collect centrally data relating to costs in individual categories of cases, there is no evidence to indicate that these cases differ markedly from other personal injury cases, either in cost to the Exchequer or in the costs of bringing them.

[Lord Alton of Liverpool]

I am grateful to the Minister. Will he demolish two myths? The first is that these cases are legally aided, which they are not, and, secondly, that they are part of a compensation culture, which they are not—given that there have been 30,000 deaths from mesothelioma. Would it be possible in any circumstances to fake such a disease? Instead of confiscating, as the Government intend to do, some 25 per cent of the modest compensation awarded to a terminally ill victim, why not consider other ways, such as fixing success fees—as has been done for industrial disease claims—without using asbestos victims as a rod to discipline solicitors or to aid and support the insurance industry?

[Lord McNally]

My Lords, the noble Lord uses strong words. Of course I do not believe that victims of this dreadful disease are in any way part of a compensation culture. He is quite right to say that legal aid for these kinds of cases was removed by the previous Administration in 2000. However, his strictures on what we are trying to do on this are too harsh. First of all, there is no compulsion on solicitors to charge any success fee, let alone 25 per cent, which is the maximum they can charge. The reforms that we are proposing upgrade the costs awarded by 10 per cent and protect a large amount of that compensation for future care. It is therefore not fair to term our reforms in the way that the noble Lord described, but I am pleased to make the clarifications that he asked for.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Alton of Liverpool Excerpts

Wednesday 1st February 2012 Lords Chamber

[Lord Alton of Liverpool]

My Lords, claims management companies are sometimes described in more popular language as “claims farmers”, and they are a real pest. Inasmuch as the Government are seeking to do something about the claims farmers, I am totally in support of them. However, I have added my name to Amendment 166 to which the noble Lord, Lord Beecham, has just spoken. As the noble Lord, Lord Collins, has rightly said, in these provisions are all the seeds of the law of unintended consequences. Just as the trade union organisations which do a superb job for some of their members will be caught by some of these provisions, so too will the campaigning charities, to which the noble Lord referred in his remarks. Amendment 166 suggests that a regulated person would not be in breach of the rules set out in Clause 54 if,

“(b) the body to which the payment is made for the prescribed legal business is a registered charity that has been granted an exemption by the claims management regulation unit”.

As my noble friend Lord Pannick said a few moments ago, they have been doing a pretty good job up until now, so why do we not have confidence in the work they undertake?

I want to return to an issue that I raised at an earlier sitting of the Committee: mesothelioma and asbestos victims. The example I want to give your Lordships is that of a charity that works specifically with the victims of asbestos exposure. I shall quote Mr John Flanagan, on behalf of the trustees of the Merseyside Asbestos Victim Support Group, who wrote to me to say that if the Bill goes through in its present form,

“it will have catastrophic results for us if it goes through without amendment”.

For that reason, I hope that noble Lords and the Government will look favourably on the amendment tabled by the noble Lord, Lord Beecham. The Merseyside Asbestos Victim Support Group was formed in 1992 and became a registered charity in 1993. The founding members were ordinary working people who had been struck down with asbestos-related diseases of the sort I have described. They and their families felt that there was a lack of help and assistance for those suffering from asbestos-related diseases and that the only way to solve this was by creating their own support unit for people in the same situation as themselves. Given the emphasis the Government rightly place on voluntary endeavour, encouraging people to get engaged in the big society, I would have thought that they would thoroughly approve of a group like this, which is made up of people who are trying to help themselves.

The work of the group is primarily that of visiting victims who have been diagnosed with an asbestos-related disease, including the terminal condition of mesothelioma. As I said during our last proceedings, the prognosis once the disease has been diagnosed normally means that the victim has nine months to live. Victims of asbestos in almost all cases have not contributed in any way to their condition and they were not informed of the associated dangers or presence of asbestos in their workplace by their former employers. The idea that such people could be vexatious litigants or that these are frivolous claims is patently absurd and I do not think that anyone would advance that in your Lordships’ House.

MAVS is supported by and works closely in association with local clinicians on Merseyside to provide a holistic support framework. It is an impressive community. Services are based locally and work is carried out with other voluntary organisations—at no cost to the patient or to the community. Clinicians give out leaflets to patients on diagnosis with the recommendation that they should contact the support group. Again, this is highly compatible with the plea that voluntary organisations should take up more of the burden. This is something that they are doing already, and yet they are going to be hit by the provisions in the Bill. A full range of advice and support is provided to patients and their families, including help with welfare benefits such as industrial injuries disablement benefit, pension credit, attendance allowance, disability living allowance and carer’s allowance. They assist with the completion of complex application forms and offer practical help and support, providing assistance wherever it is needed. Sometimes victims and their families just need the support of a friend at the end of the telephone who understands what they are going through when times are really hard or challenging. They also provide details of legal advice experts, thereby preventing victims from falling into the hands of the claims management companies that the Government say quite properly that they want to deal with. Other asbestos victim support groups around the United Kingdom work tirelessly to provide the same services.

The majority of the people who run MAVS are volunteers, just like those described by the noble Lord, Lord Collins, in the trade union movement. I might add that the volunteers include those who themselves have been diagnosed with asbestos-related diseases. The management body, the trustees, also includes patients diagnosed with an asbestos-related disease and family members whose loved ones have been lost through asbestos-related illnesses. The Merseyside group co-ordinates with the Cheshire Asbestos Victim Support Group to hold an annual Action Mesothelioma Day, which helps to bring about awareness among the general public of asbestos disease and serves as a memorial day to commemorate those who have died from this insidious disease. I gave the figures during our last proceedings, but I remind noble Lords that some 30,000 people have already died of this horrible malignant disease, and it is predicted that before the terrible legacy of industrial disinterest in the past ends, there will be another 60,000 fatalities. The day is also used to raise much-needed funds for the Mick Knighton Mesothelioma Research Fund and the June Hancock Mesothelioma Research Fund; both organisations are working to try to find a cure for the disease.

The majority of the individual asbestos victims’ groups’ charities within the United Kingdom attend the All-Party Parliamentary Group on Occupational Safety and Health’s sub-group on asbestos, thus providing invaluable expertise and insight on this disease and the situation of those who have been affected. The Merseyside group also gives talks to the local community, including the Liverpool Community College’s building and construction section, to warn and educate upcoming apprentices of the dangers of asbestos and how to deal with it when it is discovered in their workplace. The charity works on a global scale with organisations such as the International Ban Asbestos Secretariat, which works towards a global ban on the use of asbestos. This collaboration has already produced a ban on asbestos in many countries which took the lead from the European Union ban back in 1999.

The charity was successful in obtaining lottery funding in 1997 for three years. It made a further bid for continued funding but was unsuccessful, being told that it was in the envious position of being able to attract donations from the legal sector for the work that it undertook. It set up financial arrangements under the solicitors’ code of conduct with several asbestos-related disease specialist solicitors to ensure its continued funding and existence. It considered the term “referral fee” objectionable, as this funding from solicitors is in recognition of continuing work for and on behalf of victims and certainly not in the same context as payments made to claims farmers. This essential funding, together with donations from victims, is vital to its continuing existence.

Inasmuch as the Bill will scrap referral fees, particularly those payments to claims farmers, it is to be commended. However, there is an irony in that CMCs will set up alternative business structures—so-called ABSs—to avoid their demise and that the hounding of the public will continue unabated. They will find a lacuna; they will find a way around, as those groups who are about just making money invariably do. The people whom the Government want to catch will escape, while those who have been performing this extraordinary public service out of an altruistic spirit will be caught. Genuine charities such as MAVS will have their funding from expert lawyers specialising in asbestos-related diseases cut altogether. If ever there was a case of throwing out the baby with the bathwater, this is surely it.

The Government do not seem to realise the impact that the Bill will have if the amendment is not accepted. Terminally ill people do not have the energy to fight their own corner and are often beaten into psychological submission, especially when their mind is on what will happen to their family when they are no longer there. Surely it is the Government’s responsibility to ensure that those least able to defend themselves are not treated as collateral damage in this Bill. That is why the amendment of the noble Lord, Lord Beecham, is so important. Let us remember those words from John Flanagan, who said that, if the Bill is enacted,

“it will have catastrophic results for us if it goes through without amendment”.

That is an intolerable, unconscionable situation which I hope the Minister will take very seriously.

[Lord Monks]

My Lords, I support the amendments. I declare an interest as a non-executive director of Thompsons Solicitors, the largest company of trade union-related solicitors in the country. I am very pleased that noble Lords who have spoken before me have recognised the value and extent of trade union legal work—the noble Lord, Lord Collins, gave the figures. Looking at the government Benches just in the course of this debate, I have spotted distinguished barristers who have worked for trade union legal services and solicitors over the years. They include the noble and learned Lord, Lord Howe, the noble Lords, Lord Carlile, Lord Lester and Lord Hunt, who is with us at the moment, and the noble Lord, Lord Thomas. All of them have earned a few quid from the trade union movement in their time, looking after the interests of people who have hit hard times and need help.

The Minister referred movingly on Monday to a family illness that developed from one of the old ICI works. In a way, unions’ role in litigation is only a relatively small part of their work on health and safety; the majority of their work is preventive. If you go to anyone in the chemical industry in Britain today, where conditions have improved immeasurably since the days of ICI in the 1960s, they will pay full tribute to the role of the trade union movement.

As others have said previously, the number of personal injury cases generally is falling, with the huge exception of road traffic accidents, where we know that something is going on that needs to be stopped, as my noble friend Lord Bach said earlier. Unions are getting a dirty name because some in the media, and perhaps in the Government, too, believe that unions should somehow be lumped together with the shroud-waving, ambulance-chasing, daytime TV-advertising groups of lawyers who go around inciting claims all over the place.

The need to differentiate is clear. At the moment, we are not being differentiated in any way. We are losing on conditional fee agreements, on “after the event” insurance, on legal aid in tribunals and now on referral fees, which is the subject of this debate. These are all ways in which we are able to fund a substantial legal service and which will be much restricted if and when the Bill goes through in its present form. The different provisions impose major limitations on unions’ ability to run effective legal services. At a time when legal aid is being cut, a double whammy is being inflicted on many working people and a great victory is being enjoyed by the insurance industry.

Will the Minister and others in the Government give some recognition on Report to this imbalance? Not all aspects of trade union work are uncontroversial, but their legal services are widely appreciated and widely respected. They should be supported by the Government, not hit and curbed as they are in the Bill.

--- Later in debate ---

[Lord McNally]

My Lords, we have heard some powerful speeches about the good work of trade unions and charities, but that is not what this debate is about; it is about the ban on referral fees. In their reports, both Lord Justice Jackson and the noble Lord, Lord Young of Graffham, supported the ban on referral fees. The Government believe that the current arrangements under which lawyers and others are able to pay and receive fees for referring personal injury claims have led to higher costs and the growth of an industry that pursues claims for profit.

Lord Justice Jackson recommended that referral fees should be banned as part of his comprehensive package of recommendations to make the costs of civil litigation more proportionate. The prohibition will be enforced by the appropriate regulators, for example the Solicitors Regulation Authority for the Law Society, the Bar Council, the Financial Services Authority or the claims management regulator. The regulators will also be responsible for taking appropriate action against “regulated persons” for any breaches. The Government believe that requiring regulators to enforce the ban is the most effective and proportionate response.

The noble Lord, Lord Alton, made a powerful case, as he did the other night, for help for those suffering from exposure to asbestos, but I do not believe that he should then link that deep concern to one form of fundraising for charity. Indeed, it is debatable whether it is any healthier for a charity than any other body to have such a dependency relationship with lawyers who are supposed to be providing a professional service, so we are not convinced that any exemption should be made for charities.

[Lord Alton of Liverpool]

My Lords, if there is a depletion of funds of charities such as the one that I described today, are the Government saying that if those charities cannot raise that through voluntary endeavour and voluntary giving, the Government themselves will fill their coffers?

[Lord McNally]

No, of course the Government cannot do that. There was one thing that I was interested in. I do not know this because it is always dangerous to think aloud at the Dispatch Box, but on the powerful case for aid for charity I do not see why wealthy solicitors’ firms or wealthy solicitors could not make donations to that charity as long as there was no link with the search for work. It is worrying to have a charity that is dependent on making referral fees to certain solicitors. I am more comfortable with our banning referral fees.

In a way, the same applies to what has been said about trade unions. I fully accept the point made by the noble Lords, Lord Collins and Lord Martin, about the services that trade unions offer working people in this country. My father worked for 47 years for ICI and was a lifetime member of the National Union of General and Municipal Workers. When I hear attacks on health and safety, I know the importance of health and safety in industry, but that should not be linked to a relationship with a professional service organisation.