Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Avebury Excerpts

Tuesday 20th March 2012 Lords Chamber

[Baroness Northover]

My Lords, Amendment 151B, moved by my noble friend Lady Linklater, relates to the imposition of short custodial sentences. It would place a duty on a court to consider all alternatives before imposing a short custodial term. The amendment would also require the court, when imposing a short custodial sentence, to explain why alternative sentences were not considered appropriate.

As my noble friend Lord McNally said when the amendment was debated in Committee, we completely understand the argument of the noble Baroness, Lady Linklater. We agree that short custodial sentences can be less effective than community sentences in tackling reoffending. The Government looked closely at community sentences and intend to consult very soon on ways to build greater confidence in their use. Our payment by results pilots are also looking to support offenders who are released from short custodial sentences.

As the Minister also said, a duty already exists in current law. I urge my noble friend to look at Section 152 of the Criminal Justice Act 2003, which was passed by the previous Government and places restrictions on courts imposing discretionary custodial sentences. It states:

“The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence”.

That provision applies to all courts that are considering a custodial sentence of any length—not just a sentence of less than six months, to which the amendment is limited. The issue of short custodial sentences has been discussed in Scotland. My noble friend made reference to Scottish legislation. The new Scottish provisions are less onerous on judges than the existing law in England and Wales that I have just explained.

The current requirement on courts considering a custodial sentence is more wide-ranging and onerous than that contained in the amendment. I understand the intention behind it, but I hope that I can reassure my noble friend on this point. I hope that she will feed into the consultation on how to make sure that what is already in law is used as widely as possible. The law is as she wishes it; we need to ensure that it is fully understood and delivered. On this basis, I hope that she will withdraw her amendment.

[Lord Avebury]

My Lords, what alternatives to imprisonment are being considered to punish the persistent non-payment of fines, which is a very common reason why people are sent to prison for short periods? Is there no other way of recovering the amount of the fine that could be considered by the courts, and is the matter being looked at by the Government?

[Baroness Northover]

I thank my noble friend for those points, and will write to him with details on them. He may wish to feed in to the consultation on the matter.

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[Baroness Newlove]

My Lords, I will not go on for too long because others have covered the issue. I welcome the Government’s take on this, and obviously I want to congratulate the noble Baroness, Lady Finlay, on her hard work. Her foot has been flat down on the pedal. As someone who has suffered and who is passionate about making a change in our society, I am really grateful for these pilots. As we have just heard from the noble Baroness, after 10 o’clock at night 80 per cent of all crime is alcohol-related. My husband was attacked at 10 o’clock, so I reiterate that this is very important.

I welcome these pilots, but as we have just heard, they are only pilots. However, we have to think outside the box. They are risky, but risks can be turned around. It is important that we do not wait for more victims and families to lose loved ones. We must do what we say on the tin and make communities feel safe and be happier places to live in. I receive many letters from people who hide behind their doors because they are scared of what they are going to face outside. I live with that every day and I want to make sure that we tackle this problem. I am very interested in these pilots and I wait with bated breath to see what they do.

Even the magistrates welcome this development; I have spoken to magistrates in two areas. Also, offenders will be helped to turn their lives around. Even so, their lifestyles are no justification. Drugs and alcohol are no defence for murder, but when it comes to sentencing they are seen as mitigating circumstances along the lines of, “Oh but for the alcohol”. We have to stop justifying alcohol abuse and make changes for the better. I really welcome these amendments from the Government.

[Lord Avebury]

My Lords, I also want to echo the warm congratulations which have been expressed to the noble Baroness, Lady Finlay, on achieving some nine-tenths of what she set out to do in her original amendment. She is quite right to suggest to your Lordships that we should accept the Government’s solution, which omits the “offender pays” part of her original scheme. However, ultimately we will need to consider whether offenders should be made to pay some of the costs that they impose on the community—not specifically in the context of alcohol-related offences, but perhaps over a broader area. I see no reason why “offender pays” schemes should not be considered in a more general way, if not in the context of these particular amendments.

It is excellent news that London is to be one of the pilot areas, considering the huge burden that alcohol-related crime imposes on the capital’s health and criminal justice systems. According to the London health improvement board, the capital suffers a higher rate of alcohol-related violence—particularly sexual violence—than the rest of England, and the total annual cost of the health and social impacts of alcohol misuse to the capital is a staggering £2.46 billion. The more robust the measures for tackling this appalling waste of financial and human resources, the better it will be.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Avebury Excerpts

Wednesday 14th March 2012 Lords Chamber

Whatever else now divides the House on how the increased costs of litigation should be resolved, surely we can see the force of the practical and the moral case to exempt people who are dying of mesothelioma from the strictures and provisions of the Bill. Once again, I am indebted to your Lordships for the widespread support for these amendments and to the Minister for the courtesy he extended yesterday in listening to the arguments. I hope that the amendments will commend themselves to a majority in your Lordships’ House and I beg to move.

[Lord Avebury]

My Lords, I congratulate the noble Lord, Lord Alton, on the effectiveness and the tenacity with which he has pursued the issue of mesothelioma victims, and I am also grateful to him for his kind reference to my 50th anniversary, which falls today. I also join him in the thanks he has expressed to my friend Lord McNally for the sympathetic and careful hearing he gave us yesterday to discuss these issues.

The horrors associated with these diseases go back four decades and more, when it first became known that the ingestion of tiny amounts of asbestos could lead to painful and invariably fatal diseases. Even then, it was in the teeth of opposition from the manufacturers of asbestos products that health and safety measures were finally enacted to remove the use of this deadly product from the workplace and pave the way for the existing health and safety at work legislation.

When we discussed these amendments in Committee, the first reaction of my noble friend the Minister was to classify them as yet another in the series of amendments calling for an exception to some aspects of the Bill’s architecture. As my noble friend Lord Thomas of Gresford pointed out, Lord Justice Jackson was not looking for an architecture that involved everything but for what was right in particular categories of case, which must be the right way to proceed.

As we know, this is not an area of the Bill where there is public money to be saved, other than in cases where public authorities are defendants. What we are arguing about is whether some of the costs of this very special group of victims of mesothelioma disease in CFA cases should be borne by the claimant rather than the defendant or the insurers. Nor is this one of the areas of the Bill on which there has been lobbying by lawyers or insurance companies, as the noble Lord, Lord Alton, said.

Furthermore, it is not an area in which, as my noble friend the Minister put it, we are trying to create a structure that squeezes out an inflationary element of the process. Between 2007 and 2011, there was a 6.6 per cent reduction in employer liability cases, of which most respiratory claims are a subset, and it is expected that mesothelioma claims will peak in 2015, or perhaps a little later, because of the elimination years ago of asbestos from the working environment. During that same period, 2007 to 2011, road traffic accidents increased by 43 per cent to nearly 800,000 cases. That is where there may well be the abuse referred to by my noble friend. Unscrupulous claimants may be able to fake road traffic injuries, but not mesothelioma or asbestosis. It is impossible for the victims of these horrible diseases to launch a frivolous or fraudulent claim, and it is unconscionable that people on their deathbeds should be mulcted of thousands of pounds out of the damages that they are awarded by the courts.

As matters stand, the claimant pays nothing if he loses. He takes out “after the event” insurance which will pay the defendant’s costs as well as the ATE premium if the case is lost, and the claimant’s solicitor bears his own costs if he loses under the no-win, no-fee arrangement. If the claimant wins the case, the defendant pays the claimant’s solicitor’s base costs plus disbursements, including medical reports, court fees et cetera, plus the success fee and the ATE insurance premium; that is, all the costs. So, with ATE insurance, the claimant pays no costs, win or lose.

Under QOCS, which is not in the Bill, as we have heard, but is due to be implemented by order—we are glad to hear that it will be coterminous with the introduction of this part of the Bill—the defendant again pays the claimant’s solicitor’s base costs whether the claimant wins or loses. ATE insurance will not have to be taken out to cover the contingent liability. Whether a market will develop in this area remains to be seen, as the noble Lord, Lord Alton, said, but assuming that it does, we are advised that the premium could amount to at least two-thirds of the current ATE premium in a similar case.

My noble and learned friend Lord Wallace wrote to me and the noble Lord, Lord Wigley, on 7 February, partly explaining how QOCS would operate. Yes, it removes the need to fund an ATE premium to cover the risk of having to pay the defendant’s solicitor’s costs if the case is lost, but that is not the full story, as the noble Lord, Lord Alton, has reminded us. Given the high costs of disbursements in mesothelioma cases it would be right to extend the recovery of the ATE premium to mesothelioma claims as it is already in clinical negligence claims.

My noble and learned friend omitted to say also in the letter that the claimant is now going to forfeit not only the ATE premium, which is no longer recoverable, but the far higher amount of the success fee, for which the defendant is no longer liable. The claimant is effectively to be fined 25 per cent of the general damages he has been awarded, losing perhaps £15,000 or more from the amount that has been awarded by the court. It is certain that when this and the ATE liability is explained to mortally ill claimants, many of them will decide that it is not worth the hassle of pursuing the case.

My noble friend Lord Thomas suggests that the claimant should pay only half the success fee, but our case is that victims of mesothelioma should receive the whole of the amount they are awarded by the courts, as hitherto. My noble and learned friend Lord Wallace says that solicitors will compete on maximising the damages that claimants can keep, an expectation which is unlikely to materialise in some of the very complex cases to which we are referring. However, if our amendments are accepted, the right way to reduce the legal costs would be to regulate them further, such as by providing that a success fee is payable only in cases that come to court.

My noble friend says that he cannot believe that lawyers will be unwilling to take cases after the Bill becomes law, and of course they will, but, in the opinion of those advising us, they will take far fewer of these cases. We are also told, not as a matter of opinion but as a fact, that fewer claimants will decide to pursue their cases under this regime. As matters stand now, the victims of these painful diseases are often reluctant to bear the mental stress of dealing with solicitors and court proceedings. Almost unanimously they have said to Tony Whitston, the expert who advises us, that the prospect of losing thousands of pounds out of the award that they may receive would mean that many of them will not go ahead with their claims.

We are not talking only about another concession in the range of issues discussed in Committee, as the Minister put it, but one that engaged the support of every one of your Lordships, of all three parties and the Cross-Benches, who spoke in that debate. The Minister, who has personal experience through his family of the dreadful fate of the victims of mesothelioma, as we have heard, recognises that we are dealing with cases that are sui generis. They have at least as great a claim to be dealt with in a different way from the run-of-the-mill CFA claims as clinical negligence cases, and conceding this amendment would involve no costs to public funds.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Avebury Excerpts

Monday 12th March 2012 Lords Chamber

[Lord Avebury]

My Lords, perhaps I may mention one point which has not been raised so far. I refer to the effect of this provision on the workload of Members of Parliament in another place and of some of your Lordships in this House. Many of us already get letters, e-mails and personal approaches from immigrants asking for advice. Obviously, we are exempt from the provisions that apply to other not-for-profit agencies. Under the rules that determine who is legally able to do so, we cannot say that we are not qualified to give advice, but people will no longer be able to go to, for example, citizens advice bureaux. I know from personal contact with the citizens advice bureau in Southwark that it has one person who is trained to give advice at level 3 on immigration cases and it has very few lower down who are even able to advance advice to their clients on level 1 cases.

Do your Lordships not think that the consequence of the Bill, when enacted, will be that, as people will not be able to get advice elsewhere, they will come in their droves to the doors of Members of Parliament, they will clog up the advice bureaux and they will turn to your Lordships? We will be completely overwhelmed by the volume of cases, as well as being unable to deal with the complex cases to which the noble Lord, Lord Bach, referred in his introduction. We all know that some immigration cases are simple and can be dealt with very easily by a person acting on his own behalf, but that does not apply to the vast majority of cases, as we have heard today. I think that there is enormous merit in the amendment proposed by the noble Lord, Lord Bach, and I certainly hope that my noble and learned friend on the Front Bench will have been thinking carefully about how he is going to reply at the end of this debate.

[Lord Boswell of Aynho]

My Lords, I have listened with interest to this debate as a lay person who has not been much engaged on the Bill in the past. However, like my noble friend Lord Avebury, I had constituency experience and was always impressed by the complexity of the cases brought to me. I am also impressed by the volume of evidence and comment made, not least because I currently happen to be one of the officers of the All-Party Parliamentary Group on Migration. I am not in any sense taking its brief but I feel that this matter needs very careful and continuing consideration.

I well understand that there have been cases of abuse in the past. These may have involved overt or self-styled professionals, and they may have involved bad practices by others, including third parties, who run the immigration cases. I also well understand the point about the cost that the Minister has already made to us in correspondence. I would go beyond that to comment that we really cannot meet all the objectives which his department needs to meet in order to balance its budget if we make wholesale concessions on every single aspect of concern where pressure is developed.

These are complex cases. My difficulty in saying that we need to keep them within scope is—thinking aloud—in determining how one would find a basis for doing so without, as it were, pre-hearing the merits of the cases and without necessarily being able to predetermine the degree of legal complexity in those cases unless and until they had been examined. I know that those are difficulties and I know that the cost is a difficulty, but I say to my noble and learned friend that I do not spend my life rebelling and I do not intend to do so tonight for some of the general reasons that I have given about the need for rigour as we take this Bill through. However, I think that these cases are particularly difficult. If he takes them out of scope now, I think that he will need to keep the whole area under review. In future, he may need to consider at least some residual discretionary fund which can be applied to cases of particular interest or importance or where justice is most engaged. It is on that qualified basis, but in anticipation also of his response, that I may be prepared to tender my vote in his Lobby tonight.

--- Later in debate ---

Moved by

[Lord Avebury]

77A: Schedule 1, page 141, line 44, leave out “subject to sub-paragraph (10)”

[Lord Avebury]

My Lords, I shall speak also to Amendments 77B to 77D, and after that my noble friend will probably deal with Amendment 77E, which covers a different matter.

We are grateful to my noble and learned friend Lord Wallace of Tankerness for his Pepper v Hart statement in our previous debate on the effect of the Bill on Gypsies and Travellers that cases under Sections 187B, 288 and 289 of the Town and Country Planning Act 1990 will remain within the scope of legal aid. We are also very grateful to him for giving us the time to explain these amendments to him personally last week.

The main amendment in this grouping—Amendment 77B—would remove paragraph 28(10) of Schedule 1, to which I now turn. As the Minister is aware, we are still deeply concerned about the Bill’s impact on people living on unauthorised encampments on council-owned land. At present, if a local authority takes action to evict Gypsies and Travellers using a procedure other than a county court possession action—for instance, by using Section 77 of the Criminal Justice and Public Order Act 1994—then any public law challenge based, for example, on the fact that the local authority has failed to conduct welfare inquiries would have to be by way of judicial review. No doubt the Minister will confirm that such a challenge will continue to be available under the Bill as presently drafted.

If, on the other hand, the local authority decides to evict Gypsies and Travellers from its land by seeking possession in the county court, then the decision of the House of Lords in Doherty v Birmingham City Council makes it clear that any public law challenge to such action should be pursued in the county court and not by way of a separate judicial review application. However, paragraph 28(10) of Part 1, Schedule 1, provides that trespassers living in caravans facing repossession actions in the county court will no longer be entitled to legal aid to defend such proceedings. The effect of it would be that Gypsies and Travellers, having public law grounds to challenge a local authority's decision to seek possession, will be forced to make an application in the High Court for judicial review.

Perhaps I may give an example of the sort of case in which this would apply. Government guidance states that local authorities should carry out welfare inquiries before deciding whether to evict an unauthorised encampment. If a Traveller family, whose members are in very poor health and are pursuing a homeless application with the council by asking it to find them a pitch where they can lawfully place their caravan, is camped on the land of a local authority without authorisation, but is not causing any obstruction, and the local authority then decides to commence eviction action without making any welfare inquiries, the family would like to ask the court not to make the possession order because of ill health and the pending homelessness application. However, the family would not be able to do so if sub-paragraph (10) is retained. It would have to go for judicial review of the council’s decision to seek possession in the High Court on the basis of the local authority’s failure to take into account relevant considerations and rationality. If the Minister will confirm that this would be within scope, does he also agree that there is no merit in removing legal aid for the defence of possession proceedings in the county court on public law grounds, leaving the option only to go to the High Court?

We had an actual example of this only this morning in an e-mail from a lady whose brother and sister-in-law are in precisely this position. They are encamped on the borders of a local authority highway. They are both 57 and are in poor health. The lady’s brother has recently seen a doctor and has been diagnosed as having lesions in his lungs and her sister-in-law has emphysema. They stopped at this place because they wanted to consult a general practitioner, which they have been able to do, and to seek treatment for these conditions. They have been fortunate in having remained on this site for the past four months without being noticed, but at any moment the local authority could seek possession and they would be removed from the site and would be unable to continue to obtain medical advice and treatment, which clearly they desperately need.

Satellite judicial review proceedings in the High Court can be expensive and can result in delaying the resolution of the possession proceedings. The House of Lords in Doherty considered that public law arguments relating to possession proceedings should be determined by county court judges and we respectfully agree. Is it not far more sensible, I ask my noble and learned friend, to encourage local authorities to deal with these matters in their local county court where, self-evidently, they can be settled far more cheaply and more effectively? If this local authority commences action under the Criminal Justice and Public Order Act 1994, the Traveller family, assuming that it is financially eligible, of course, will be able to obtain legal aid judicially to review the council's decision but if the council issues possession proceedings in the county court, the family will not be able to seek legal aid for representation so that they can defend these proceedings on public law grounds. I suggest that this is an arbitrary and perverse distinction. I am absolutely sure that the Government did not intend to undermine the Doherty ruling and make it inevitable that cases that ought to be dealt with in the county court have to be heard in the High Court at far greater cost to public funds, a point which I hope that my noble and learned friend has been able to consider, since we brought it to his attention when he kindly received us to discuss these amendments last week.

I would be grateful if my noble and learned friend could confirm that the trespasser exception to the loss of home being within scope was originally intended to deal with the problem of squatters in buildings. At some point it was decided—wrongly, in my opinion—to make this a criminal offence, as provided elsewhere in the Bill. This means that the vast majority, if not all, of the cases that will remain within the trespasser exception will involve Gypsies and Travellers on unauthorised encampments. The reason why they are there is because of the admitted failure by successive Governments to ensure adequate site provision, for which the UK is the target of trenchant criticism by the Council of Europe’s High Commissioner for Human Rights.

We must assume that the Government have not intentionally set out to discriminate against two ethnic minority groups, although that is the unlawful result of paragraph 28(10) following the decision about squatting in buildings. Given this unintended consequence, we invite the Government to reconsider their position on the amendment and on the others in this group, which are consequential. The noble Baroness, Lady Whitaker, will deal with Amendment 77E. This concerns the separate issue of actions under the Mobile Homes Act 1983, which will also be taken out of scope. I beg to move.

[Baroness Whitaker]

My Lords, I apologise for the fact that my voice has not kept up with the strength of my convictions. For that reason, I will say no more about the earlier amendments that the noble Lord, Lord Avebury, spoke to so clearly. Amendment 77E will make a big difference to the security of place for many Gypsies and Travellers. The Bill proposes that all aspects of the Mobile Homes Act 1983, apart from those that concern possession, will go out of scope. The result will be that Gypsies and Travellers living on rented sites will be deprived of legal aid and legal advice of any sort to deal with cases that involve breach of a covenant of quiet enjoyment, succession, resiting of a mobile home, rent increases and repairs. Both the law and the facts relating to these issues can be complex. The consequences of failing to deal properly with them can be serious. They can result in homelessness—even though the intended effect is not to create homelessness—because the tenants are effectively driven out.

The further complication in the situation of many Gypsies and Travellers is that they have not always been educated to read and write, and to be able to follow the complexities of the law. Therefore, because of the situation in which they will find themselves, they will be discriminated against in all these matters. We are talking only about the continuation of the legal aid initial advice scheme for these cases. The provision of this kind of advice is quite cheap and extremely cost-effective.

These actions are not technically called “harassment”, but they amount to it when the person who is on the receiving end cannot deal with them and is cast out of their home. The noble and learned Lord, Lord Wallace, said in Committee that he could reassure us that legal aid would be available for harassment injunctions in relation to the Mobile Homes Act. I was very glad to hear that. It showed that he understood the injustice that can so easily befall people who are marginalised by society, and that it is incumbent on society to reduce this marginalisation. Given his helpful response, I ask him to consider whether cases of breach of a covenant of quiet enjoyment—that is to say, Article 8 rights under the Human Rights Act—should also be included in the scope of legal aid. If he prefers, he could confirm that the Government intend that such breaches should be included under the term “harassment”. It would be a small step conceptually, but it would make a big difference.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, as my noble friend Lord Avebury explained in moving this amendment, Amendments 77A, 77B, 77C and 77D are aimed at ensuring that legal aid remains available for possession proceedings for persons who are clearly trespassers on the property or land where they are residing, in particular for people living on unauthorised encampments. Under the Bill, legal aid would no longer be available in such cases.

I valued the opportunity to meet my noble friend Lord Avebury, the noble Baroness, Lady Whitaker, and their colleagues from the Community Law Partnership. It was an opportunity for them to set out in more detail what underlies their amendments and for me to indicate where the Government are coming from on this. My noble friend raised a particular point about the judicial review vis-à-vis the county courts, to which I will return.

Let me say clearly that as a matter of principle the Government believe that they should not be funding individuals to resist eviction where they have unarguably entered and remained on the property or site as a trespasser. The whole rationale of this Bill is to focus scarce resources on the cases that are the highest priority.

I remind noble Lords that the Government amended the Bill in Committee to make it crystal clear that legal aid will continue to be available for possession and eviction matters where there are grounds to argue that the client has not entered the property or site as a trespasser and where there are any grounds to argue that the client has not remained on the property or site as a trespasser. I believe that, with this safeguard in place, it is not an appropriate use of resources to retain funding more widely.

I readily acknowledge that the legal aid position in relation to judicial review is different from the position in relation to possession proceedings concerning those who are clearly trespassers. However, as my noble friend Lord Avebury indicated, we are generally retaining legal aid for judicial review. In any major reform such as this, it is reasonable and necessary to draw relatively broad lines in order to achieve an effective system. We believe that our approach is a reasonable one in the circumstances.

It has been argued that our approach in the Bill cuts across case law that permits public law arguments to be raised in possession proceedings themselves, a point made by my noble friend. As we discussed when we met, along with colleagues from the Community Law Partnership, the Government do not necessarily accept that argument. It is correct that case law has developed so as to allow public law arguments to be raised directly in possession proceedings. Our proposals in relation to legal aid do not affect that. However, there is no legal bar on seeking a judicial review of a public authority’s decision to bring possession proceedings.

We recognise that, as with all judicial reviews, the decision on whether to grant permission for such a judicial review to be brought will be entirely at the discretion of the court. The court will consider a number of factors, such as the availability of alternative remedies, including any grounds that could be raised by way of defence to the possession proceedings.

It has also been argued that retaining the trespasser exclusion in relation to possession proceedings while retaining legal aid for judicial reviews will be much more costly for the legal aid fund. I indicated that I wanted to reflect on this issue. Regrettably there are no detailed data, as the Legal Services Commission does not record whether a recipient of legal aid is a trespasser. Nevertheless, we believe that the number of possession cases involving trespassers that are funded under the current legal aid scheme is likely to be relatively small. Of those cases, fewer still are likely to involve seriously arguable points of public law. Accordingly, we do not consider that the current approach in the Bill will have significant cost implications.

In any event, the amendments would restore legal aid under paragraph 28 of Part 1 of Schedule 1 for trespassers generally, including cases involving trespass to private property or cases involving public authorities where no public law issues in fact arise. In these circumstances, we do not believe that the width of the amendment proposed by my noble friend would be a proper and wise use of the limited funds available.

I appreciate that my noble friend and the noble Baroness are particularly concerned about the Gypsy and Traveller communities. As I stated in Committee, the Government certainly understand the potential impact of the Bill’s provisions on these communities. Nevertheless, we consider that the proposed changes to the scope of legal aid set out in the Bill are both proportionate and necessary to our objective of targeting legal aid to those who need it most while achieving a more affordable system.

I emphasise that the provisions to which these amendments relate apply to trespassers generally, whoever they are. They are not specifically targeted at the Gypsy and Traveller communities. My noble friend asked whether, given the criminal offence of squatting created elsewhere in this Bill, the trespasser exclusion in paragraph 28 now specifically targets Gypsies and Travellers only. The exclusion in paragraph 28(1) of Part 1 of Schedule 1 applies to trespassers generally and not just to Gypsies and Travellers on unauthorised encampments; for example, an individual who squats in a non-residential building would not be committing a criminal offence under the provisions of the Bill and would be subject to the trespasser exclusion for legal aid if the owner of the building brought possession proceedings to evict them. Therefore, we do not accept the argument that the Bill’s trespass exclusion now targets Gypsies and Travellers in particular.

Before I move on to the mobile homes amendment moved by the noble Baroness, Lady Whitaker, the noble Lord, Lord Bach, asked whether the abolition of the regional strategy pitch targets would lead to fewer traveller sites. The Government’s draft planning policy makes it clear that local authorities should set pitch targets based on robust evidence, and the Government are currently considering the responses to the consultation on the draft policy. Rather than imposing top-down targets which fuelled opposition to development, the Government believe that we are offering councils real incentives to develop additional traveller sites in their areas. The previous model of top-down pitch targets under regional strategies did not deliver, not least because between 2000 and 2010 the number of caravans on unauthorised developments increased from 728 to 2,395.

As I mentioned in Committee, the Homes and Communities Agency is responsible for administering the Traveller pitch funding programme and monitoring the use of the funding awarded to local authorities and registered providers. In January this year the Government announced the allocation of £47 million of Traveller pitch funding, which will help provide more than 600 new pitches and refurbish more than 160 existing pitches between now and 2015. This funding is based on payment by results at completion—a question was raised as to why nothing has actually been paid out yet—but £47 million has been allocated and the delivery of the funding allocations will be monitored through the Homes and Communities Agency’s established programme management framework, with quarterly contract review meetings forming part of the process.

The noble Baroness, Lady Whitaker, spoke to Amendment 77E, which seeks to bring into scope legally aided advice for any matter arising under the Mobile Homes Act 1983. That Act gives rights to residents who have agreements with site owners to live in their own mobile homes on site. We do not believe that this amendment is consequential to Amendments 77A to 77D.

As I have already argued and as we have already said many times in debates, we are facing a serious financial position. If the justice system is to contribute the necessary savings, it is necessary to focus legal aid on the highest priority cases. Accepting this amendment would mean funding low-priority cases, such as disputes about the sale or inheritance of mobile homes. Once again, I cannot see how this is a good revision of our proposals or an affordable one, not least given that legal help and representation will in any case continue to be made available where the individual is at immediate risk of losing their home, including possession and eviction from a mobile home site.

The noble Baroness asked about harassment, to which I think I made reference in Committee. I confirm that paragraph 32 of Part 1 of Schedule 1 to this Bill brings into scope harassment injunctions under Sections 3 or 3A of the Protection from Harassment Act 1997, which would cover issues where there is harassment.

If we were to accept this amendment it would amount to a strange anomaly whereby exceptions would be made for people who live in mobile homes so that they received legal aid for lower-priority matters whereas people living in other homes would not. We find it difficult to justify that it would be coherent to create such differences between the level of legal aid available to different kinds of home owner. I recognise the commitment which my noble friend and the noble Baroness have to the Gypsy and Traveller community. I appreciate the opportunities we had at our meeting and in this debate to set out our respective positions, but, for the reasons given, I hope that my noble friend will withdraw his amendment.

[Lord Avebury]

My Lords, I am most grateful to the noble Baronesses, Lady Whitaker and Lady Turner, for their contributions to this debate. I should like to begin by pointing out that the noble and learned Lord did not cover the case of the family camped on the roadside for reasons of absolute desperation. There was nowhere else for them to go. They needed to consult a doctor and stopped temporarily in order to receive medical advice and treatment. That was the sort of case we had in mind when framing these amendments in consultation with the Community Law Partnership. It still seems to me that they should have the right to be able to contest an action for possession on public law grounds and that they should be able to do this in the county court. With respect, my noble and learned friend did not refute the allegation that it would be far more expensive to deal with these cases by way of judicial review in the High Court. All he said was that there would not be very many of them but that does not seem to be a very valid argument against the amendment.

The noble Baroness, Lady Turner, said that local authorities had an obligation to provide sites, which they manifestly have failed to honour. The noble Lord, Lord Bach, was good enough to quote what I said at an earlier stage about the contrast between regional spatial strategies under which definite plans were in hand to grant planning permission for sites. That was scrapped and we were left with the unfettered decisions of the local authorities, which I am afraid will not result in the delivery of the sites. My noble and learned friend mentioned the £47 million allocated by the Homes and Communities Agency to local authorities and social housing agencies to provide some 700 pitches. But the agencies in question have not even begun to identify the land on which this money will be spent, let alone apply for planning permission.

Figures provided by the Irish Traveller Movement in Britain in its survey of local authorities show that the number of sites for which planning permission is intended has plummeted by 50 per cent from the figures that were given in the regional spatial strategy. I consulted Essex County Council to see what was happening there. As noble Lords will recall, there was a high profile eviction case at Dale Farm in Basildon. The figures from the council show that under the regional spatial strategies, the minimum number of pitches that were to be provided by 2021 was 965, whereas the planned Gypsy and Traveller pitches in the individual local authority plans that have so far been developed under the present system total 93. So in the county of Essex the situation is worse even than the ITMB survey revealed. Only 10 per cent of the pitches that were intended under the regional spatial strategy are going to be granted planning permission in these particular local authorities. I hope to provide figures for the rest of the east of England, where the regional spatial strategy was fully developed under the previous Government, to show that the intentions of my noble friends of £47 million to provide pitches are pie in the sky. I will offer them 10 to one against the delivery of 700-odd pitches by 2015 for any level of bet they would like to take.

I am very disappointed that we have not been able to make more headway on this minor amendment, but as with the noble Lord, Lord Bach, on the previous amendment, I am afraid that we have come to it late at night, and I do not propose to press it to a Division. I shall withdraw the amendment with the utmost regret.

Amendment 77A withdrawn.

--- Later in debate ---

[Lord Thomas of Gresford]

My Lords, we have finally clawed our way out of Schedule 1 and back into the body of the Bill to meet immediately a difficulty—what is meant by an exceptional case determination under Clause 9. The problem that lawyers see immediately on seeing the word “exceptional” is that when it is normally used in proceedings it means that out of a cohort of cases one stands out because of some exceptional peculiarity. However, that cannot be the meaning of what we see in Clause 9, because an exceptional case determination is defined in subsection (3), which says:

“For the purposes of subsection (2), an exceptional case determination is a determination”,

and then describes what type of determination it is: first,

“that it is necessary to make the services available … because failure to do so would be a breach of … the individual’s Convention rights … or … enforceable EU rights, or”,

secondly,

“that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach”.

That is it; that is what exceptional case determination is.

My mind immediately goes to the sort of issues that we discussed earlier in relation to appeals, from the First-tier Tribunal to the Upper Tribunal and beyond, where a litigant in person is seeking to cope with a government legal team that appears on the other side to argue what must necessarily be issues of law, otherwise it would not be up in that area. That immediately rings the bell of equality of arms in a very serious way, and I cannot imagine that any of these cases would not fall within the definition of an exceptional case determination as set out in Clause 9(3), which I have already read out. In one sense it is a very narrow definition, but in another it introduces all the rights that are available under the European convention. Yet there must be other cases where the European convention is not engaged.

The purpose of my amendment, and I note amendments in the name of other noble Lords, is to widen the ambit of an exceptional case determination to the point where the director of legal aid services considers,

“that it is in the interest of justice generally”.

I appreciate that is a very wide definition, but unless the director of legal aid services has a wide discretion, how can he cope with the multifarious applications that will be made to him on the basis of their being exceptional cases? I am not going to spell out any, because these things come out of the woodwork. All of a sudden a case will obviously require, in the interests of justice, to be supported by legal aid because of the wider interest that is involved or because of the public points that have been made, and so on. One can envisage all sorts of circumstances. Although the words here seem modest, they are asking for a wide discretion, and that is the purpose of my amendment. I beg to move.

[Lord Avebury]

My Lords, when we were discussing the first amendment this afternoon it was said that some immigration cases are determined on straightforward questions of fact. However, what we did after that Division, unfortunately, was to lump them all together so that the routine immigration matters that were referred to in the Minister’s letter, which was quoted by the noble Lord, Lord Pannick, are being integrated with issues of extreme legal complexity which, as we have heard, go all the way up to the Supreme Court. We heard the noble and learned Lord, Lord Woolf, say that a sizeable proportion of the Supreme Court’s diet was immigration cases. It will be interesting to hear from my noble and learned friend how the person who starts off as a litigant in person and gets part way up the ladder towards the Supreme Court would be able to gain representation when it became appreciated that the case was one of extreme legal complexity; or is this litigant supposed to go all the way up to the Supreme Court dealing with the case himself?

The intention of the amendment is to provide scope for exceptional funding to be made available in these complex immigration cases. In such cases, the individual will be without legal representation by reason of the restriction on non-legal professional provision of immigration advice and services, the individual being unable to afford legal representation and the general exclusion of immigration from the scope of legal aid. The Bill removes most non-asylum immigration matters from the scope of legal aid. One of the main arguments used by the Government is that legal advice is not needed in a whole variety of cases, of which immigration cases are one example, and that instead those currently receiving advice and representation under legal aid will be able to look to general advice agencies, particularly the non-for-profit sector, for assistance, as we have heard. This rationale fails to address the provisions dealing with immigration advice and services in Part 5 of the Immigration and Asylum Act 1999, which say that only a person who is registered under the regulatory scheme run by the office of the Immigration Services Commissioner can provide those services. That scheme includes some not-for-profit organisations but very few of them are permitted to undertake work in key areas of immigration law. None is permitted to do judicial review work. Only those at the higher levels of the scheme, levels 2 and 3, are permitted to work on family reunions, appeals—representation at which is restricted to the highest level, level 3—removals and deportations, applications outside the rules, and illegal entrants and overstayers.

Level 1 advisers, who constitute the vast majority of the not-for-profit organisations, are excluded altogether from these key areas for which legal aid is currently provided but will not be provided in future, save where an asylum claim is being pursued. Therefore, the suggestion that general advisers can fill the gap left by the withdrawal of legal aid simply does not work in immigration cases because of the regulatory scheme. Yet the scheme is an important safeguard against the exploitation of migrants by unqualified persons who offer themselves as immigration advisers, of which there used to be hundreds. The scheme was introduced with support across the political parties in response to serious concerns about such exploitation.

I shall give a couple of examples of the sort of immigration cases that I envisage being far too complex for the individual to cope with. First, there is the case of a British overseas citizen of Malaysian origin, about whose plight my right honourable friend Simon Hughes and I had an interview, along with representatives of the Malaysian BOC community, with the Minister, Damian Green, a couple of weeks ago. It would not be necessary to trouble the Minister with cases that did not warrant representation by legal professionals.

My second example is of a Kuwaiti Bidoon who has indefinite leave to remain in this country but whose wife and children, having left Kuwait clandestinely, found themselves in Damascus, where there was no provision for them to establish their identity as relatives of the head of the family in England. They have been stranded there for months, separated from him, because of the difficulty in getting permission to come here. Do they not need legal aid? Is it really the case that a family reunion of this sort can be dealt with by non-professionals, or even with the assistance of Members of Parliament? As I said, we expect Members of Parliament to be deluged with requests for advice and help in such cases.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Avebury Excerpts

Wednesday 7th March 2012 Lords Chamber

[Lord Avebury]

Will my noble friend allow me—

[Lord McNally]

No. I have been here for two hours—

[Lord Avebury]

So have I.

[Lord McNally]

And I have heard a lot. The House has to move on. We want to get through Schedule 1.

This is not a debate about who cares most; it is about whether this House is willing to take the tough decisions that our economic situation requires, or whether it is simply going to push the problem down the corridor for the other place to take those decisions. That is it, because the other place will have to take those decisions whether we do so or not.

I believe that these amendments dismantle the central architecture of the Bill and our reform programme. As a result, as I have said many times, it will come as no surprise to the House that we have had to make these difficult choices about legal aid, as we have done with every aspect of MoJ expenditure. I know that we are debating issues about which noble Lords care deeply; I do not think there is any monopoly on that. There will be noble Lords who will follow me into the Lobby tonight who have just the same—if I may use the words of the noble Lord, Lord Carlile—“determinations of principle and conscience” as those who will not.

I remind noble Lords that the reform programme is specifically aimed at protecting the most vulnerable. The noble Lord, Lord Bach, talked about the social welfare programme being “decimated”. We will still be spending an estimated £120 million a year on funding for private family law; £50 million on categories of social welfare law; an extra £10 million a year on mediation; £6 million on clinical negligence; and £2 million on education.

We are keeping legal aid for child parties in family proceedings. We have retained legal aid for child protection cases, civil cases concerning the abuse of a child, and for cases concerning special educational needs assistance. We are keeping legal aid for people with mental health problems or who lack capacity for cases that determine their vital interests, and for advocacy in front of mental health tribunals. Legal aid will be retained for judicial review of welfare benefit decisions, and for claims about welfare benefits relating to contraventions of the Equality Act 2010. We will agree to extend funding to victims of human trafficking and domestic child abduction—something I know that the noble and learned Baroness, Lady Butler-Sloss, is interested in.

Our reforms have been deliberately designed with these cases in mind. Crucially, as I said in the House on Monday, we will amend the Bill to enable the Lord Chancellor to bring areas of law back into the scope of legal aid. When the noble Lord, Lord Phillips, rose, everyone groaned that there was nothing more that could be said. But I congratulate him on being the first to mention what was a very significant concession by the Government, in that what was a ratchet in the Bill is now a regulator. If some of the doom and gloom is proved to be true, the scope is there to respond to those facts.

While we are clear that our reforms are the right ones, we believe that this is an important amendment. As has also been said, the Treasury has announced that additional funding in this spending period will be available for the not-for-profit sector. As noble Lords know, we believe that in many social welfare cases it is not legal advice that people want; it is simply advice. We will support the advice sector to do just that. While we appreciate that many people rely on welfare benefits, these decisions are made in a tribunal, which is a court especially designed to ensure that claimants do not require legal representation. They are also primarily about financial entitlement and do not raise such fundamental issues as cases concerning liberty or safety.

As I have mentioned, the Government are committed to ensuring that not-for-profit advice, as well as other forms of welfare benefit advice, remains to ensure that claimants are clear about what they are entitled to claim and how they can seek redress. However, as those colleagues who have sat in another place and have advised constituents in these areas can testify, legal advice is not required in all these cases. That said, legal aid will be retained for the judicial review of welfare benefit decisions and for claims about welfare benefits relating to a contravention of the Equality Act 2010.

Amendments 21 and 46 concern legal aid for children and vulnerable young people but, as I have already said, it is simply not true to suggest that there will be no funding for cases involving children and young people. These amendments seek to bring into scope certain civil legal services for any person aged 24 or under who has a disability, is a former care leaver or a victim of trafficking, or has other vulnerabilities as prescribed in regulation. I should at this point tell the House that the Government intend to table an amendment at Third Reading on legal aid for victims of trafficking and claims for compensation.

The Bill also has important safeguards for children and adults who lack capacity or require treatment for mental health issues. Paragraph 5 provides for advocacy before the Court of Protection where there is to be an oral hearing and the case will determine the vital interests of the individual: that is, medical treatment including psychological treatment, life, liberty, physical safety, the capacity to marry or enter into a civil partnership, the capacity to enter into sexual relations or the right to family life.

Paragraph 5 of Part 1 of Schedule 1 provides that legal aid may be made available for cases arising under the Mental Health Act 1983 and the Mental Capacity Act 2005, including cases concerning the medical treatment of patients or those who lack capacity. Paragraphs 9 and 15 of Part 3 of Schedule 1 provide for legal aid for advocacy for mental health cases before the mental health tribunal. Paragraphs 1 and 2 of Part 3 of Schedule 1 provide legal aid for advocacy for any onward appeals to the Court of Appeal or Supreme Court on a mental health or capacity issue that is within scope. The exceptional funding scheme will ensure the protection of an individual’s rights to legal aid under the European Convention on Human Rights as well as rights to legal aid that are directly enforceable under European Union law.

On Amendment 46, about children, we are already keeping legal aid for child parties in family proceedings. Therefore, part of this amendment is superfluous. The rest of the amendment seeks to keep funding across the board for children in all civil disputes without regard to their relative priority or alternative methods of resolving them. I have already mentioned that the Government recognise the importance of funding in a range of cases where children’s interests are key. That is evidenced in how we have proposed to allocate legal aid funding by protecting funding in those areas that specifically involve children.

I am very willing to meet my noble friends and others who have asked to meet me between now and Third Reading, but I cannot make promises or give guarantees. We have retained legal aid for child protection cases and civil cases concerning the abuse of a child, as well as for cases concerning special educational needs assistance. We have also made special provision so that legal aid is available for children who are made parties to private family proceedings. In civil cases, claims brought in the name of a child are usually conducted by their parents acting as the child’s “litigation friend” rather than the child themselves. This is a normal part of the rules on civil litigation; the civil justice system as a whole does not generally require children to act on their own behalf.

We have also made it clear that one of the key criteria for the exceptional funding scheme is the ability to represent yourself. This will obviously be relevant where a child is bringing an action without a litigation friend. We must also ensure that we do not create a loophole in the system through which lawyers might encourage parents to attempt to bring civil litigation in their children’s name purely to secure funding that is otherwise outside the scope of this area of the law.

Amendment 45 seeks to make legal aid available for private family law cases where, in the course of mediation, the mediator has identified issues pointing to potential child abuse, a point addressed by the noble and learned Baroness, Lady Butler-Sloss. Legal aid will remain available on a means and merits free basis for public family law proceedings where a local authority seeks to take a child into care, at a cost of around £300 million a year. Legal aid would also be available in private family law proceedings where a child was at risk if those proceedings were an alternative to public law proceedings. An example of this would be legal aid for a special guardianship order for grandparents where the local authority had decided that this would be a preferable solution to taking a child into care. We have also expanded our original proposals on providing legal aid for private family cases where domestic violence is present to include evidence of child abuse.

The child-specific evidence here is the fact of a child protection plan as put in place by a local authority, although other types of evidence relevant in domestic violence cases would also apply. This is particularly relevant in respect of Amendment 45, which would use the evidence of a mediator to qualify someone for legal aid. It is of course important that a mediator reports any suspected child abuse to the local authority, and mediators are obliged to do so under their code of conduct. The local authority would then investigate, and if the mediator’s suspicions were confirmed, where relevant it would put a child protection plan in place. Alternatively, the authority may start immediate public law proceedings. Either way, legal aid would then be available either for private or public proceedings. Such a system ensures the well-being of the child, which must be the priority, but it would seem slightly strange to pre-empt the results of a local authority investigation by granting legal aid for a private family matter. Of course, if there was an emergency and the local authority for whatever reason was not taking action, legal aid would be available, with the benefit of a financial eligibility limit waiver, for someone to take out a protective injunction. Legal aid would also be available where a subsequent local authority investigation found that the issues were substantiated and a child protection plan put in place. The safeguards in the Bill are sufficient to secure the safety of children, and legal aid where it is needed.

Amendment 101—I see the humour in the number—seeks to include a power in the Bill to fund the not-for -profit sector to do work that is outside the proposed scope of the civil legal aid scheme. I can assure the House that we have been listening to the concerns raised about the sustainability of the not-for-profit sector, and we agree with many of them. As I listened to the noble Lord, Lord Newton, I recalled one of the advantages of a long life. One of the few successful things I did when I was in the House of Commons was something that I think cost the then Tory Minister, Gerard Vaughan, his job. He tried to cut CAB funding. I do not know whether the noble Lord, Lord Newton, was a member of the Government who sought to cut CAB funding at the time, but it just goes to show that what goes around, comes around. The Ministry of Justice already has the power to provide grants to not-for-profit organisations. For example, we are already funding the Money Advice Trust, a not-for-profit sector organisation that is responsible for running National Debtline.

Legal Aid: Social Welfare Law

Lord Avebury Excerpts

Monday 5th March 2012 Lords Chamber

[Lord McNally]

That is why we have to take a holistic view of these matters. Much of what is being talked about here will be impacted by the reform and simplification of the welfare system that is being carried out, as well as a whole range of other measures, many of which we will be discussing in the next few hours, that will prevent the worst-case scenario from coming to pass.

[Lord Avebury]

My Lords, has my noble friend read The Spirit Level, which demonstrates that there is a close correlation between levels of serious criminality and inequalities in society? If so, will the Government put into practice the recommendations of the Equality Trust to secure greater equality in society and thereby diminish not only levels of criminality but many other social evils that follow from high levels of inequality?

[Lord McNally]

My Lords, the Government get a wide range of advice, and The Spirit Level does make a strong case for the linkage between inequalities, poverty and criminality. Nevertheless, as I have said quite often from the Dispatch Box, poverty and criminality are not inevitable—people do have a choice. The range of measures that the Government are taking is aimed at dealing with some of the unfairnesses in our society and giving people a proper and rational choice in how they lead their lives.

Health: Mesothelioma

Lord Avebury Excerpts

Wednesday 29th February 2012 Lords Chamber

[Lord McNally]

The noble Lord keeps on picking these cases to support. The fact is that the previous Government removed legal aid from these cases, as was pointed out—not many cheers for that. As to the package that we have put together, as I said before there is no compulsion on solicitors to demand a 25 per cent success fee from these people. Solicitors still get their full fee; we are talking about the maximum success fee that they can get. We are putting in place a system that deals with a real abuse in the costs of these cases that crept in after the reforms that the noble Lord’s party introduced in 1999. We are simply returning to the system as originally brought in by the previous Government. We think that that worked well and will work well again.

[Lord Avebury]

My Lords, it is clear from their response to the Jackson committee report on civil litigation that the Government’s main objective is to save money. Does my noble friend acknowledge that in the case of mesothelioma sufferers, they do that by deterring people from making genuine claims? Does he also accept the estimate in the London Economics report on the fiscal impact of the Jackson proposals in the area of employers’ liability that the net loss to the Exchequer of the proposals is £70.2 million a year? If not, can he place a note in the Library of the figures that the Government would substitute for those in the Jackson committee report?

[Lord McNally]

My Lords, we are in no way deterring people from making claims for this terrible disease. We fully acknowledge that a large number of people have been diagnosed as sufferers. Even more tragically, the estimate is that many more will be diagnosed over the next 30 years. That is the terrible nature of this affliction. We have been trying to lower the bar to litigation. As I said, most cases, certainly against government bodies, are settled before they get to court. The Department for Work and Pensions has undertaken various initiatives to make it easier for claimants to trace their employer's insurers. Discussions are being held with stakeholders to determine what more can be done for sufferers. The High Court is introducing a fast-track procedure so that these cases can be dealt with more easily.

I understand why noble Lords are campaigning on this, but I do not think that the charge that we are trying to victimise the sufferers in some way really sticks.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Avebury Excerpts

Wednesday 1st February 2012 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, I must choose my words carefully because I do not wish what I say to be taken to be outright opposition to my noble friend’s amendments, although I have a certain degree of agnosticism, if not scepticism. I suggest that those who are interested in this area might read the New Yorker article of a couple of weeks ago, which described the abuse of power by the claimant lawyers in the Exxon South American environmental litigation case. That indicates the need for very careful safeguards, even in an environmental setting.

The only reason I speak at all is because it occurs to me that there is a less radical solution to some of the problems that has been fashioned by the courts themselves without any legislative intervention: namely, the protective costs order. I see that the noble Lord, Lord Beecham, shakes his head. I shall explain what I am talking about. The problem with English cost rules is, of course, the winner-takes-all rule, which can, as my noble friend has indicated, have a seriously chilling effect on the ability to bring public interest litigation. It is the fear of claimants and their advisers of having to pay the legal costs of the defendant that has a chilling effect.

I was involved in the Corner House case for a small NGO that was seeking to challenge the lack of proper consultation by the Secretary of State in relation to anti-corruption provisions in the export guarantee area. This was not an environmental matter but it did concern public law. The problem was that the little NGO had absolutely no funds to pay for me but, more importantly, the department. The department would not give an assurance in advance that if it succeeded, it would not ask for the whole of its costs against the NGO. Therefore, the puzzle was how the NGO could bring the public interest proceedings not simply by dealing with the claimant’s position but dealing with the other side.

Sir Henry Brooke, to whom I pay tribute and who throughout has led thinking on this issue within the judiciary, advocated the use of a protective costs order, which enabled us to go before the court and say, “Even if we lose, can we please have a protective order that protects us against the risk of having to pay the other side’s legal costs in advance, so that we know that the worst thing that could happen to the Corner House NGO would be if it had to pay its own costs?”. I am glad to say that that was what was eventually decided and the result was that the Corner House was able to litigate.

I am embarrassed to say that I signed a 100 per cent success fee agreement without realising the consequence, which was that I actually profited from what I had thought to be a public-spirited case. I did not return the money, since it was being paid by the Government. I am against 100 per cent success fees and I would never do it again—ever.

However, the point I am making is not about success fees, but that if one develops through the courts, on a case-by-case and flexible basis, a way of softening the winner-takes-all rule in appropriate cases—not just environmental but all cases—that would enable the weak and impecunious to avoid the effect of that rule. The Constitutional Court of South Africa has decided that the winner-takes-all rule should never apply in important constitutional cases, and that in a proper public-interest case each side should at least bear its own costs and, in some circumstances, the Government should be required to pay the claimant’s costs, or give an undertaking in advance to give that protection.

This is a slightly long-winded way of saying that there are other means that perhaps are to be encouraged by the legislature, or perhaps not. There are other means that the courts themselves have been developing that can deal with some of the points made by my noble friend without something quite as radical as the proposals suggested in his amendments.

[Lord Avebury]

My Lords, does my noble friend agree that the protective costs order that he was successful in obtaining in the case he mentioned was a one-off, that it was not a general rule of law but a matter of luck that his clients were indemnified against the likelihood that they would have to pay the other side’s costs, and that in the amendment that would be a general rule of law that would apply to all such cases?

[Lord Lester of Herne Hill]

Actually, I cannot agree, because the Court of Appeal’s decision was a kind of precedent and it has been followed. There have been arguments about what limits there should be on claimants—whether they should be like an NGO or otherwise—but it would be perfectly possible for a rule to be made by the Lord Chancellor expressly empowering the courts to apply protective costs orders on a more general basis. This was not just a one-off decision; it applied in a line of cases and has been developed since.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Avebury Excerpts

Monday 30th January 2012 Lords Chamber

[Lord Avebury]

My Lords, the noble Lord, Lord Alton, referred to the curtain-raiser debate we had a few hours ago in which, among others, the noble Lord, Lord Newton, spoke. He told your Lordships that the nature and problems of mesothelioma called for special treatment. It took us a very long time to recognise the immense dangers to public health caused by mesothelioma. It took us even longer after that to take steps to ban the use of asbestos and, finally, to get under way with proper means of compensation for the victims of this frightful disease.

In the 1970s I was privileged to have a lot to do with the late Nancy Tait, who was described in her Guardian obituary two years ago as a,

“tenacious campaigner for the victims of asbestos diseases”.

Nancy was the founder of the Society for the Prevention of Asbestosis and Industrial Diseases, which lobbied hard for tighter controls on asbestos, and she fought for the rights of victims to adequate compensation. In 1976, the Silbury Fund published a booklet entitled “Asbestos Kills”, written by Nancy, exposing the failure of Governments to act against the risks, even though the Department of Health had known, at least from 1968 onwards, that,

“mesothelioma can be produced by slight exposures, and … We must assume that no amount of exposure is completely free from risk”.

Water pipes were still being made of asbestos cement; electric toasters were still being made with the element wound around a piece of asbestos, and in people’s homes, sheet asbestos was being cut for partitions, to block fireplaces or to line doors. Thirty-six years later, people are still being diagnosed with mesothelioma, which is, as we have heard, an extremely unpleasant disease which kills the sufferer within an average of something like 12 months from the date of diagnosis, as the noble Lord, Lord Alton, has said.

Now the Government have decided, according to yesterday’s Independent on Sunday, that in a major survey to be undertaken of England’s 23,000 schools to plan a huge refurbishment programme, asbestos is to be ignored because of cost implications. The system-built schools of the 1960s were riddled with amosite brown asbestos sheeting, which is one of the reasons why we have the highest incidence of deaths from mesothelioma in the world. As a result of this possibly illegal exclusion from the survey, compounded by the stripping of funding needed by local authorities to carry out their survey responsibilities under the Control of Asbestos Regulations, instead of the decline in mesothelioma deaths—the noble Lord, Lord Alton, said that that decline was expected to occur from 2012 onwards—as they tail off over the next 40 years, they may continue for the rest of the century.

I urge your Lordships to look at the website of Mesothelioma UK, the resource centre that provides information and support to patients and carers, allowing them to exchange their experiences and thus to cope better with the situation they face. The practice nurse in that organisation, Liz Darlason, told me that in 2004, when she started work at Mesothelioma UK, there were 1,850 new cases, and in 2010 there were 2,500. The idea that all these people sentenced to a lingering death should have to pay towards the legal costs of making a claim for compensation is intolerable, and some 400 hostile comments from patients and their families on this provision have been received by the Asbestos Victims Support Groups Forum UK, chaired by the eminent Tony Whitston, who has been mentioned by the noble Lord, Lord Alton, and has briefed many of your Lordships for this debate.

Industrial injury disease benefit payments numbered 3,940 in 2010, of which 3,680 were for asbestos-related illness. More than half of these were mesothelioma cases, and the figure has increased, year on year, for decades. As the noble Lord explained, the reason for this is that mesothelioma can take 40 or 50 years or more to develop after exposure to asbestos, and patients are still succumbing to the disease long after its use was first prohibited in 1985. This disease is fatal on average within 12 months of diagnosis, and only one in four survive for two years or more.

Due to the time that it takes for the disease to emerge, it is sometimes difficult to trace the employer against which a claim is to be lodged; and before 1972, when employers’ liability insurance became compulsory, some 10 per cent of such employers were not insured. Urged on by the All-Party Parliamentary Group on Occupational Safety and Health, the Government at last agreed to set up an employers’ liability insurance bureau, ELIB, analogous to the Motor Insurers’ Bureau that compensates victims of road accidents involving uninsured drivers. The consultation on the proposal closed in May 2010 but the DWP has sat on it since, even though all respondents were in favour of the ELIB. The asbestos victims forum had a meeting with my noble friend Lord Freud to press him to act, and I should be grateful if the Minister could tell your Lordships what needs to be done to get the ELIB under way.

I gather that the Government may be waiting to see what happens in the so-called trigger case in the Supreme Court before deciding on whether the liability of an employer’s insurer to indemnify the insured dates from a sufferer’s exposure to asbestos or from the onset of mesothelioma. The case is likely to be heard in May, and if the next step is primary legislation, it would not be ready for the next Session of Parliament. We could be talking about some time in 2013 before these forgotten victims are able to claim compensation, and those who have already been diagnosed by that time will no doubt be excluded by reason of retrospection.

The typical mesothelioma patient will have been exposed to asbestos in their early adult life. Thirty or 40 years later, they experience shortness of breath and chest pain, and visit their GP. Painkillers or antibiotics may mask the problems, until the GP finally calls for an X-ray, which then confirms a pleural effusion—a build-up of fluid between the layers of tissue that line the lungs and chest cavity. However, this is not an easy disease to diagnose, and several further investigations involving procedures such as thoracentesis—the extraction of fluid from the pleural cavity using a cannula—may be needed before the disease can be confirmed. From then on, chemotherapy is the only treatment that has proven to be effective in ensuring some degree of survival in randomised and controlled trials, although claims are made for surgery combined with chemotherapy and radiation, which is referred to as trimodality therapy, among patients with favourable prognostic factors. As the disease takes hold, the patient has to cope with extreme shortness of breath, intractable pain and debility.

Those are the dramatically unpleasant experiences of mesothelioma patients, who know that inevitably they face death within a few months anyway. They are trying to cope with the physical and emotional phenomena of a terminal illness, vividly described in the literature of Macmillan Cancer Support, and your Lordships can imagine the likely frame of mind of such a person trying to put in a claim for compensation. Many have said they would not have incurred the extra worry and anxiety of claiming if the payment of costs had been required at the time, and it is surely unconscionable to dock someone who is terminally ill of up to a quarter of the damages he may be awarded.

Unless these amendments are accepted, the victim will have to pay two separate fees. Initially, there is the after the event insurance, amounting, as the noble Lord said, to an average of £2,300, to indemnify the claimant against having to pay the defendant's costs if the claim is lost, which up to now has been recoverable from the losing defendant but is now to be deducted from the claimant's award. Then there is the success fee, the amount of which is to be specified in regulations, understood to be 27.5 per cent of base costs—the cost actually incurred by the solicitor in conducting the claim. This has also been paid by the defendant in the past, but is now to be borne by the claimant. Assuming that the case is a simple one, with base costs of £10,000, the claimant would pay the solicitor £2,750 out of the total sum agreed. The knowledge that he is liable to pay that sum on top of the ATE insurance fee will be enough to deter many terminally ill patients from bothering to pursue their claim.

Suppose the defendant makes an offer that is manifestly inadequate or there are complex issues that can be determined only by the court, one of which happens in just 2 per cent of cases—only one in 50 cases goes to trial? The base costs rise steeply, with counsel's fees and court costs, and a further payment of ATE insurance, many times larger than the original £2,300, which the claimant now has to pay. The premium for one of the claimants in the Sienkiewicz case, decided in the Supreme Court in March 2011, was £219,000, and it is obvious that now the claimant is responsible for ATE, no test case of that kind will ever be taken again.

Another factor comes into play at that point. The defence solicitor is entitled to 100 per cent of base costs as success fee whichever way the case goes, but the downside from their point of view is that if they lose, they probably get nothing. In the Sienkiewicz case, the solicitors for one of the two parties involved incurred base costs of £300,000 and there was a success fee of the same amount. The success fee is capped under these proposals at 25 per cent of general damages, providing the solicitor with a substantial disincentive to pursue cases in which success is less than certain. There will be a strong temptation for the solicitor to recommend settling for what may be a totally inadequate sum, and the victim, in the last few months of his life and probably enduring severe pain, will not have the strength or the will for a long and traumatic court case.

None of that is revealed by the Explanatory Memorandum, and I deplore the Government's failure to spell it out. That means that solicitors will be deterred from pursuing cases where the defendant has even a small chance of winning, and there will be temptation to settle for what may be a totally inadequate offer.

Let us think again about this mean-spirited, callous fine imposed on the victims of mesothelioma, asbestos cancer and other very nasty respiratory diseases. It is wrong to deter people from pursuing claims they have every chance of winning, and immoral to take thousands of pounds from the amounts they win. I shall be very surprised if, now that the facts are out in the open, the Government do not beat a hasty retreat before they suffer a defeat on Report.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Avebury Excerpts

Monday 30th January 2012 Lords Chamber

[Lord Alton of Liverpool]

My Lords, I wish briefly to raise my voice to support my noble friend Lady Coussins in moving this amendment, and in so doing mention that I am treasurer of the All-Party Parliamentary Friends of CAFOD group, one of the groups that has made representations about the amendments before the Committee.

Some 6 million people have died in the fighting in the Democratic Republic of the Congo over the past 30 years. A lot of the conflict and the human rights abuses, which continue to this day in places such as Goma and the Kivus, where rape is used daily as a weapon of war—a Question on that subject was raised on the Floor of your Lordships' House as recently as last week by the noble Baroness, Lady Kinnock—have been driven on by a culture of appropriation whereby mineral assets have been taken, particularly in the past by companies based in Belgium but also by some British companies, and in a culture of impunity.

Unless it is possible to test such cases in western courts, those violations will go on in the future. That is why it is so important to maintain at least this small opportunity—the opening that exists in domestic law at present—for such cases to be brought before our courts. I hope that when the Minister replies to this amendment, he will be able to tell us precisely how often this provision has been used, whether there has been any cost to the public purse and how much that has amounted to, and whether he thinks that in any event that is a price worth paying to uphold the rights to which my noble friend referred in her admirable speech in moving the amendment.

[Lord Avebury]

My Lords, I do not believe that any cost whatever has fallen on public funds but I shall be as interested as the noble Lord, Lord Alton, to hear from the Minister about that aspect of the amendment. Both the noble Baroness, Lady Coussins, in moving the amendment, and my noble friend Lady Hooper, underlined the fact that we are talking about a very small number of cases that would not encourage the development of a litigation culture; quite the contrary. In the few cases that we are talking about, there would be a significant impact not only on the lives of many thousands of people who are directly affected but, as has also been emphasised, on corporate practices and international norms in business and human rights.

I declare an interest as president of the Peru Support Group, which was particularly concerned in the Monterrico Metals case described by the noble Lord, Lord Judd. This is a paradigm case because there is no doubt whatever that the poor indigenous inhabitants of Peru would have been totally unable to mount this action if the proposals in the Bill had come into effect. Is that really what your Lordships want—to say that people in the third world who are victims of appalling human rights abuses by United Kingdom or United Kingdom-based companies are not going to be able to bring proceedings in the courts of law? I do not believe that that is what your Lordships would like to happen. Therefore, I beg my noble friend to listen very carefully and come forward with proposals that, if they are not word for word on the lines of these amendments, at least convey their sense, as the noble Baroness, Lady Coussins, said.

[Lord Elystan-Morgan]

My Lords, I, too, support this amendment, which was presented with such lucidity and articulation by my noble friend Lady Coussins. The exact motivation behind the changes that are being incorporated into the Bill is not clear to me. Is it to save the public purse some money, or is there some other purpose? If it is a case of saving the public purse some money, what aspects of the possible results have been examined? Exactly what evidence has been collected? How satisfied are the Government that a net saving in that regard will be brought about? It is obviously not the Government’s intention to deprive worthy people of a redress that they have at the moment, albeit in an imperfect state, as my noble friend Lord Pannick suggested. That cannot be the motivation, but undoubtedly that would be the result.

It is true that the number of cases is not immense, but justice is one and indivisible. The stain on the name of justice in these matters is considerable indeed. I remember in the early 1970s being a member of Lord Elwyn-Jones’s chambers. He was briefed by some South Sea Islanders whose island had been abused by the rapacious acts of mining companies that were registered in the United Kingdom. Out he went for a conference. As the launch was drawing into harbour, hundreds of people were drawn up on the quay—a very high percentage of the islanders—all singing, “Oh God our help in ages past, our hope for years to come”. Elwyn-Jones, being the man he was, was greatly inspired by that and, indeed, the islanders won a redoubtable victory. It is in defence of such situations that I greatly welcome the initiative brought about by the noble Baroness.

Legal System: Translation and Interpreting Services

Lord Avebury Excerpts

Tuesday 1st November 2011 Lords Chamber

[Lord McNally]

No, we will not review the framework or the agreement that we have made. We have looked at the report—which, in any lobbying exercise, is quite legitimate—and examined the figures in it, but we do not believe that they stand up. We have always been clear that translation and interpretation services of the appropriate quality should be available, where they are required, for all those who come into contact with the justice system, while obtaining value for money for the public. Let us see how it settles. There are many threats and ideas that people are not going to sign up or that it will not work out. Obviously the noble Baroness is far more expert than me on this issue, but there is no doubt that the present system was not working, which is why the previous Administration initiated the inquiry, which has now culminated in this decision, as far back as 2009.

[Lord Avebury]

My Lords, in designing the new system, why was it decided to ignore existing professional qualifications and to sideline the National Register of Public Service Interpreters, with its established system of registration that requires not only an appropriate degree-level qualification but 400 hours of proven public service interpreting? Does my noble friend think that it is fair to make experienced and qualified interpreters and translators go through the hoops and pay for a new accreditation procedure that assumes that they have just come out of the sixth form?

[Lord McNally]

My Lords, we are not doing this for fun. We are doing it because the present accreditation system was not working and there was a lot wrong with it. That is why we set up a new register. There were faults in the old register in the quality of assessment and we believe that, starting as we are with a new system, a new register is the most effective way of guaranteeing quality.