Civil Legal Aid (Merits Criteria) Regulations 2012
Lord Bach Excerpts(11 years, 11 months ago)
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Lord Bach
My Lords, I rise to support the noble Lord, Lord Pannick, in the amendment that he has just moved, and also to speak to my Motion which I will move at the appropriate place. Before I speak to my amendment, perhaps I may say that I support unreservedly the amendment in the name of the noble Lord, Lord Pannick, to the Civil Legal Aid (Merits Criteria) Regulations. All noble Lords who have had the benefit of listening to his speech will have seen the logic and force of what he had to say. I suspect that there is no serious argument but that he is correct. I look forward, if it is necessary, to supporting him in the Lobby later on.
What I am doing with my Motion is to ask the Minister to withdraw the order that I have prayed against—namely the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2012—so that it can be reconsidered as a fresh order when it is laid again. I am not seeking to go behind the Act of Parliament. I still believe that many parts of it are entirely wrong and an enormous mistake, but whether I like it or not, Parliament has passed it. It will come into force on 1 April 2013 and we will have to see what the consequences are, but that is not the point today.
Lord Bach
With the greatest of diffidence, I rise to try to explain the situation as I see it. The respect I have for the noble and learned Lord is well known. My understanding is that what the Government propose comes at the end of the First-tier Tribunal hearing. Therefore, leading up to the First-tier Tribunal, whether or not on a point of law, there would be no advice at all to the appellant. During the tribunal hearing there would be no advice to the appellant. Only if the appellant after the event decides to ask for facts and reasons and, after that, puts in a notice of appeal, will there be the slightest chance that he might get legal aid at that stage.
Lord Mackay of Clashfern
With great respect, the noble Lord’s own explanation shows that what happens is that the First-tier Tribunal makes a decision and that is one in a very large number of decisions. If somebody wants to make a representation against that decision, asking for a review, the tribunal can invite representations at that stage; if it does, the applicant, as long as he was the original appellant, can get legal aid. If, on the other hand, the tribunal decides, “We do not want representations, we know that we are right”, it goes ahead with the review and comes back to the same decision; because an application has not been opened with right of representations at that stage, the second branch of the regulation gives legal aid. That is how I understood it but I may be wrong.
Lord Bach
I am sorry to come back, but it is only if the tribunal finds an error of law. An error of law has to be found by it first; then a review takes place. It is only in those circumstances, which are very rare indeed, that legal aid could be available at post First-tier Tribunal level. The other thing they might do is appeal to the Second-tier Tribunal, when other considerations would arise. However, it does not and cannot happen in every case. As I understand it, an error of law has to be found by the First-tier Tribunal after it has made its decision.
Baroness Doocey
My Lords, I support the amendment proposed by the noble Lord, Lord Bach, because I believe that the Government’s present proposals will be catastrophic for many thousands of people. During the passage of the Bill, provision for legal aid funding and advice for assistance in welfare benefit appeals made to the Upper Tribunal on a point of law was included in the legislation. The Government also conceded that the same point of principle should apply to the consideration of points of law by the First-tier Tribunal. The Lord Chancellor said, in reference to First-tier Tribunals:
“We are quite open to the argument for ensuring that we have legal representation when there is a legal issue that we cannot expect a lay person ordinarily to argue”.—[Official Report, Commons, 17/4/12; col. 226.]
However, the Government have honoured neither the spirit nor the letter of that commitment. The conditions they have laid down for legal aid to be available require so many planets to be in conjunction that, in practice, it is doubtful that the vast majority of claimants could ever meet them.
My prime concern is the needs of disabled people, who will be disproportionately affected by the removal of welfare benefits from the scope of legal aid. By not considering whether a point of law is involved other than when a further appeal is being pursued, the Government are effectively denying legal help to a significant proportion of disabled people whose appeal cases could nonetheless be considered to raise a point of law.
According to the Government’s own impact assessment figures, restricting legal aid to cases where the First-tier Tribunal itself identified that it erred in law would keep legal aid to just 696 welfare benefit cases in lower tribunals. That represents only a tiny proportion of the 135,000 welfare benefit cases each year. Of those 135,000 cases, 78,000—nearly 60%—involve disabled people who currently rely on legal aid for welfare benefit appeals.
What makes the situation worse is that the Government are in the middle of a major overhaul of the welfare benefits system. Millions of claimants will be reassessed and moved on to different benefits. During the transition period, disabled people will increasingly need expert legal advice to challenge inaccurate decisions about their benefits. The lack of legal aid to pursue an appeal in the first place will mean that disabled people are unlikely to reach the stage where they can get legal aid, as the vast majority of claimants are unlikely to recognise a point of law.
Legal aid for welfare benefit claimants costs an average of £150 a case. There can be significant consequences if disabled people do not receive the benefits to which they are entitled, causing considerable financial strain and pushing many of them into poverty. Their long-term costs in terms of demands on the health and welfare system are likely to be an awful lot higher than £150 per head.
As I have argued on previous occasions, the removal of legal aid from welfare claimants is fundamentally unjust. The paltry savings will prove to be a false economy. The Government’s latest proposal has made a bad policy worse. I urge the Minister to reconsider.
Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2012
Lord Bach Excerpts(11 years, 11 months ago)
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Lord Bach
As an amendment to the above Motion, leave out from “that” to the end and insert “this House declines to approve the draft Order laid before the House on 29 October as it does not fulfil the undertaking given by Her Majesty’s Government on 17 April; and will mean claimants, including a disproportionate number of disabled people, will not receive legal help on a point of law in first-tier tribunals relating to welfare benefits thus denying them a fair hearing on point of law cases”.
Lord Bach
My Lords, I spoke to my amendment earlier in the debate and the House will be relieved to hear that I have very few words to say at this stage. My case is this: how can it be right that there is automatic legal aid for any client who gets to the second-tier or upper tribunal—the Court of Appeal and the Supreme Court—on a welfare law case but no automatic right to legal aid for first-tier tribunals? You can get to the second-tier tribunal or the Court of Appeal or the Supreme Court only on a point of law. If that is the position, how can it be right that at a first-tier tribunal, when a client has a point of law, they should not be allowed some legal advice before the first-tier tribunal commences—in other words, before the first-tier tribunal or during it? It is no use being able to get it at the very end of the first-tier tribunal in very remarkable and odd circumstances.
The Government seem to believe that was appropriate logic because that is the concession they were generous enough to make in the House of Commons on 17 April 2012. But they have not kept to that concession. They have come up with something much more vague; something that will happen in very, very few cases.
I am very grateful to the Minister for the time he has taken with this and to all noble Lords who have spoken on my amendment. When the Minister answered a question from me the other day he said:
“I want to make sure that we maintain a legal aid system that will remain one of the most generous in the world and focus it on the most needy”.—[Official Report, 27/11/12; col. 90.]
Can noble Lords think of anyone who is more needy than the sort of person that the noble Baroness, Lady Doocey, was describing—a disabled person who has undergone some of these tests in order to get her or his benefits, who is not happy with the result, thinks something has gone wrong and wants to appeal? What the Government are intending is that that person should not have the ability to get legal aid in order to appeal to the first-tier tribunal even when the matter is a point of law which they cannot be expected to know or understand. It defies logic and fairness to suggest that kind of process should continue.
All we are asking is that the Government withdraw this Motion, which they are clearly not prepared to do tonight. If they will not withdraw it, I shall ask the House, in a completely non-partisan spirit, to decline to give approval to this Motion tonight and invite the Government to come back with a slightly more generous order that looks after the type of person the noble Baroness, Lady Doocey, was telling us about earlier in our debate.
Lord McNally
My Lords, we are almost on the verge of another financial Statement by the Chancellor. I have made it clear that the noble Lord must not lure the House into an idea that following him into the Division Lobby will produce a better offer because it will not.
Lord McNally
It is not a threat. I just do not want the House to make a decision on such an idea. This is not the Committee stage of a Bill. The order relates to what is already an Act of Parliament. If we do not bring forward another order in this area, the Act simply will go through. I want the House to be aware of that fact.
Lord Bach
There is a framework Act of Parliament, passed by Parliament, which I have never sought to go behind. These orders add flesh to those bones. This is a very important order. In any event, the Government would have to have some kind of order on these matters. On this occasion, the Government have, in effect, not kept with the intention that they certainly had in the House of Commons. By announcing what they did in the Commons, they managed not to lose a vote and to get the Bill through. As a consequence, it is a serious matter.
Lord Phillips of Sudbury
I am grateful to the noble Lord, Lord Bach—I almost said “my noble friend”, which he is. My noble friend Lord McNally has not commented on the noble Lord’s fundamental assertion on which, for me, the strength of the case rests; namely, that the former Lord Chancellor made a clear undertaking which is now not being kept. Would it not be helpful to the House for the noble Lord, Lord Bach, to ask my noble friend Lord McNally for his comment on that?
Lord McNally
I will answer it—I answered it in my remarks. The Lord Chancellor said that he would take the matter away and use his best endeavours. I have seen the exchange of papers with the DWP, the Legal Services Commission and the Administration on whether this could be done. We have come back with our best endeavours. This casual throwing around of betrayal fires the troops up for voting but it simply is not true.
Lord Bach
I would not dream of using the word betrayal as regards this matter. The noble Lord misunderstands me completely. It is not a betrayal. The governing party in the House of Commons said that it intended to do something and, in that way, managed to get an adverse amendment withdrawn. It has come up with a solution but the solution is not the concession that it made in the House of Commons. That is the fact of the matter. It is a much narrower solution and it is deeply unsatisfactory for those who are interested in how the poor, the disabled and the vulnerable are looked after in our society and their rights to access to justice.
For that reason, I ask the House to decline to approve this order, so that the Government can think again and come back with an order which we can all accept. I beg to move.
Justice: Legal Advice
Lord Bach Excerpts(11 years, 12 months ago)
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, it is important to realise that legal aid has been retained for the highest priority social welfare law cases and we will continue to spend approximately £50 million a year in this area. We are also putting in place a new robust referral process to support relevant clients to resolve their problems by signposting them to suitable alternatives.
Lord Bach
My Lords, I thank the Minister for his reply. Does he agree that a fundamental test of any legal aid system is whether it gives access to justice to the poor, the disabled and the marginalised? If it does not do that, what is its point? It is agreed by everyone that many hundreds of thousands of our fellow citizens will be deprived of legal help and legal advice from 1 April next year—rightly named All Fools’ Day. Does he further agree that for this to happen at all, let alone in the middle of radical changes to our welfare system, is a disgrace and is certain to lower the reputation of our whole legal system?
Lord McNally
My Lords, I recall some of those points being made during the course of the LASPO Bill. I rejected them then and I reject them now. We are continuing to spend a good deal on legal aid in this area, as I have pointed out, and we will be bringing in new measures to support advice services. Many of the areas covered are for advice rather than legal advice and we believe that if we can put in place proper advice services we can cover many of the fears that the noble Lord has raised.
Criminal Injuries Compensation Scheme 2012
Lord Bach Excerpts(12 years, 4 months ago)
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Lord McNally
We have had the whole gamut today of the Labour Party never supporting a cut and never facing up to a responsibility. I listened to what the party opposite has said, and we have taken the tough decisions. Not only have we done that; in this case we have also made the sensible decision to move victim support to where it is needed, at the sharp end. We are finding the resources by these reforms and I commend them to the House.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Bach Excerpts(12 years, 7 months ago)
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Lord Clinton-Davis
Before it is too late, perhaps I may pay tribute to the noble Lord, Lord Pannick, to whom this House owes a tremendous debt. Throughout, he has argued passionately in favour of something he really believes in: legal aid. It is important that the basic principles that were laid down so long ago are observed. Like him, I believe passionately in the purposes of legal aid. Many people outside this House are indebted to what has been achieved.
Lord Bach
My Lords, I can be very brief. The Official Opposition share the disappointment of the noble Lord, Lord Pannick, in the Government’s response to his amendment. The Government have approached that amendment—a modest and sensible one by any standards—in a most unsatisfactory and unconvincing manner. We certainly agree with what the noble Lord had to say about financial privilege in the context of his amendment. There will be many inside and outside Parliament who will wonder for some time to come why the Government were not able to accept his amendment. We had no satisfactory reason given at any stage, and people will fear the worst as far as concerns this Government’s intentions in relation to legal aid.
I, too, would like to pay a compliment to the noble Lord, Lord Pannick, as my noble friend Lord Clinton-Davis did. He is a model of the way in which a noble Lord can assist this House when dealing with difficult and complicated legislation, and he does it from a point of view that always has justice as its base. The noble Lord made some strong strictures on the Bill and I agreed with every word he said. I will be less polite than he was. There are parts of Part 1 of the Bill—the bits that destroy social welfare law—that are not just bad but actually wicked; and I choose that word with great care. They are wicked because they set this country back from the position it was in.
The noble and learned Lord, Lord Mackay of Clashfern, has a great reputation for making sure that the system of social welfare law worked well and to the benefit of the poorest in our society. I very much regret that the Government have changed all that for no savings at all. Even if the savings were great, they would not be worth it—but there will be no savings at all. Why do I say “wicked”? Because I think it makes this country more uncivilised and it diminishes something that is very precious to all Members of this House: our legal system. As such, it diminishes our country, too.
Lord McNally
We have heard that speech several times over the past few months. I repeat that the big betrayal of the poorest in our society would be to lose control of our economy. Sometimes noble Lords opposite take the biscuit in the way they put their arguments. The noble Lords, Lord Pannick and Lord Clinton-Davis, do not have a monopoly of passion in this area. The noble Lord, Lord Howarth, has used his argument before. We have consciously changed the direction of the 1949 and subsequent Bills that were open-ended in their commitment and now have one that is specific in its commitment. That is at the heart of our resistance to the Pannick amendment. It is to mislead the House to argue that the Government have not made clear from the start the purpose of the Bill and of the Lord Chancellor. I tremble to take on a former Lord Chief Justice or a most distinguished QC, but Part 2 states:
“The Lord Chancellor may make such arrangements as the Lord Chancellor considers appropriate for the purpose of carrying out the Lord Chancellor’s function under this Part”.
It is all laid out there in Part 2. To argue that it is not will mean that we will go round in circles.
I have never used the financial privilege argument. As is well known and as we have heard from some very experienced parliamentarians, if an amendment infringes privilege, that is the only reason that will be given. If noble Lords want a major reconstruction of our constitution going back 300 years, that is all very well; but, as I said, the financial privilege of the House of Commons is not something to be lightly dealt with. Our opposition to the Pannick amendment from the beginning was that it was flawed, providing as it does a duty that is unclear in both application and effect, as well as displacing a duty that is precise, unambiguous and inherently tied to the Bill and the legally aided services available under its auspices.
I therefore ask the House to support the House of Commons in rejecting the amendment—I understand that the noble Lord, Lord Pannick, is not going to press it. This is really the time to ask the House to agree with the House of Commons.
Lord Thomas of Gresford
The noble Lord will recall that on Report, I referred not only to cases of mesothelioma that Mr Tony Whitston drew to our attention from the Brymbo steelworks in Wrexham but to cases of pneumoconiosis that I have known. He is a slate quarry person; I come from a colliery area and I know of the long-term suffering of those victims. With mesothelioma, that could be done now and could be extended to other diseases in due course.
The support groups would be uniquely placed to monitor the service that such firms gave to mesothelioma sufferers, who could report back on their experiences to both the support groups and their successors. That is the answer to those who say that solicitors will not do this work at all unless they are cosseted by success fees. It spreads the work around the country to areas that are particularly concerned with this disease, where experience could be built up by firms of solicitors. It may discourage any idea of focusing litigation of this type in the City of London branch offices of firms that then claim to be paid at City of London rates. Anecdotal evidence suggests that that happens in some CFA cases.
As my noble friend Lord Faulks said on Monday, there are lawyers who are dedicated to achieving the best result for their clients and not so much for their fees. I have no doubt that they would flock to be placed on an approved list and forbear charging a success fee at all. I hope that such an approach will appeal to the Minister, the Lord Chancellor and the Ministry of Justice.
Lord Bach
My Lords, I begin by congratulating the Minister on being a member of the luckiest Government there can ever have been in the history of Parliament. The odds against drawing three votes on crucial amendments, two on Report and one at this stage of proceedings so that the Government win the vote, as it were, must be immense. He has managed to do that and I congratulate him on it. I just hope for his sake and the Government’s that their luck does not begin to run out.
On this issue, the Minister also deserves some congratulation if, as I suspect he did, he played a part in persuading his fellow Ministers, and the right honourable and learned gentleman the Lord Chancellor, that there had to be some give or concession. If he played a part in that, I congratulate him and think that he has served the House well in that regard.
I, too, want to compliment those outside the House. As the noble Lord, Lord Alton, stressed, the co-ordinator of the Greater Manchester Asbestos Victims Support Group, Mr Tony Whitston; Mr John Flanagan, the Merseyside equivalent of that organisation; and many others outside have worked incredibly hard to make sure that people who do not always have a very loud voice have had a say in Parliament—or rather in this House of Parliament. It is absolutely clear that when these matters were raised in the House of Commons when this Bill was first taken through, they were completely dismissed. It was only when the Bill came to the House of Lords that the noble Lord, Lord Alton, with his usual courage and zeal, managed to raise these matters, with the help of the noble Lords, Lord Avebury and Lord Wigley. Eventually, at the very last minute, he got a concession from the Government.
I pay tribute, too, not only to those I have mentioned but to the noble Baroness, Lady Doocey, the noble Lord, Lord Avebury, and the Conservatives who abstained in the vote on Monday night. Had they not played the part that they did, the amendment in the name of the noble Lord, Lord Alton, would not have gone through. I remind the House that it won by nine votes. If it had been lost there would have been no review or concession; there would have just been rejoicing in the Ministry of Justice. It was as close as that. It is because of the bravery of those who were prepared to abstain or vote against their own Government that we are here today congratulating the Government, quite rightly I am sure, on their concession.
Seriously, it is a good concession and we know, or trust, that the review will be genuine. We look forward to playing our part in making sure that the sufferers of this terrible disease get a fair deal when the Government have had their review. Not only the noble Lord, Lord Alton, but all of us will be watching very closely to see how developments move forward in this very vexed field. As for this House, for once it can congratulate itself.
Lord McNally
I think that if the noble Lord were to ask Señor Torres, he would find that a draw is also sometimes a victory. He is the Chelsea centre forward. I know that the noble Lord, Lord Bach, is a Leicester City supporter and does not mix in that kind of high-class company.
I was very grateful for the comments at the beginning of the speech of the noble Lord. I notice that he quickly tailed off towards the end to start initiating rebellions, and so on. I have continually made the point that I am well aware that any Minister is a bird of passage, but I have always been a lover of this place—I mean the whole Parliament building. I sometimes say when I show visitors around that I never come into this place without a sense of awe for what it stands for and what it does. Anyone who stands at this Dispatch Box takes the buffeting and advice and has to work through very much with the help of the awkward squad. The only problem with the awkward squad is that when one campaign is over it immediately starts on another. I noticed from the remarks of the noble Lords, Lord Avebury and Lord Wigley and, indeed, the noble Lord, Lord Alton, himself that further campaigns will be on the way.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Bach Excerpts(12 years, 7 months ago)
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Baroness Scotland of Asthal
Noble Lords are learned if they are in the Supreme Court or have been a Law Officer. Others, regrettably, may be learned in fact but are not learned in name.
Lord McNally
That helps me a great deal. I shall never refer to the noble Lord, Lord Bach, as learned again.
Lord McNally
My Lords, I have stated as clearly as I can why the Government and the Commons have put forward their reasons. The emotional span of this debate is sometimes extended to question whether we are in favour of victims and their children. The answer is that yes, we are in favour of them. As I said in my opening remarks, this debate is about how and whether and within which ambit we provide legal aid in private law cases. It is difficult to go beyond that into individual cases, which have been cited in debate at every stage. In many of these cases, the suspicion is that they would qualify either by application for an injunction or by a finding of fact by the court. The latter is extremely important in the additional list that we have put forward to qualify people for legal aid.
As I said in my opening remarks, when addressing an issue such as this one, and within the constraints under which the Government are operating, lines have to be drawn. It is legitimate for the Opposition to argue that that line has been drawn in the wrong place or that a time limit has been put in the wrong place. In the end, however, Governments have to make decisions—and we have made decisions. As I said, I hope that the House will look at the decisions we have made and see that we have listened and acted in a way that puts us on the side of victims and their children and that, in practice, those who face the problem of domestic violence and who want to obtain legal aid for decisions in private family law cases will find that the concessions we have made and the rules and the guidelines we have laid down will give the women and children—I accept that there may be others, but mainly women and children—who are affected by this scourge access to legal aid. I therefore ask the House to support Motion B.
Lord Low of Dalston
My Lords, I, too, have grave doubts as to whether a telephone helpline of the kind we are talking about can be regarded as fit for purpose if the purpose is to disentangle the client’s case with empathy and give appropriate advice on it. The matter is made worse if use of the telephone gateway is to be made mandatory. There may be a place for a telephone gateway—it can have a role in filtering cases, as the Minister said—but it is surely entirely inappropriate that it is made the sole route to discriminating and informed advice.
This is not a matter of speculation for we have been here before and we know what we are talking about. I am talking about the experience that we had with the student loans company when it took over the administration of the disabled students’ allowance. This was administered by a service staffed by the kind of people who will, presumably, be staffing the telephone gateway. They proved to have little understanding of or empathy with the kind of problems disabled students have and for which they were seeking the support provided by the disabled students’ allowance. In fact they were inclined to make light of them and even suggest that the students were somehow swinging the lead or making unmeritorious excuses for financial support from the state.
Those applying for disabled students’ allowance have much in common with the kind of vulnerable people we are talking about needing help with welfare benefits cases. I would not wish to place my confidence in a service of this kind as the mandatory gateway to legal advice and I do not think the House should either.
Lord Bach
My Lords, it is rather disappointing to have to speak on this subject again. One hoped that the other place might take note of our amendment and carry it through. However, the noble Baroness, Lady Grey-Thompson, has in her usual clear and well expressed way explained that our concern is not with telephone services per se. That is not the point at all. All of us here know the value of telephone services. I saw it at first hand as a Minister and I am delighted that the noble Baroness quoted me in her opening remarks. I hope that that excellent work continues and expands—of course I do.
However, the point is that in a limited range of cases, whether classified by the type of person, such as those with communication problems, or by the type of case, such as very complex cases or cases that require searching through reams of papers to identify the nature of the real issue—a point that was made very powerfully by the noble Lord, Lord Phillips of Sudbury—it is counterproductive to expect someone to go through a telephone gateway. In those cases there should be a provision for face-to-face advice from the outset. That is hardly an unreasonable request. Indeed, it is common sense.
I am not the first and I will not be the last to remind the House that today is St George’s day. Perhaps in rather a laboured way, I make the point that there is an English tradition of pragmatism, flexibility, seeing what actually works in the real world rather than what I fear is behind the Government’s stance: too much inflexibility, a kind of didacticism and, as I have described before using a French expression, a rather dirigiste approach towards this issue. It is an issue that cries out for flexibility and trying various ways to make sure that people who need this help can get it. The noble Baroness made her case very powerfully indeed and other speakers have supported her. I very much hope that we can ask the other House to think again on this.
I end by reminding the House of powerful words spoken by the deputy leader of the Liberal Democrat party in the other place just last Tuesday. He had listened carefully and he said this:
“I was grateful for the Minister’s reassurance, but I have to say that I am not persuaded. Like any MP with a constituency containing people from many different races and backgrounds, with many different first languages, and with all the disabilities that any mixed community has, I simply do not believe that a telephone route into deciding eligibility for legal aid is right for everybody. It may be right for many people, and I understand that it will be a good service, but if we ask constituents such as mine whether they have always been satisfied with the council response line—whether under Labour now, or with us running it, as previously—the answer is always no. That does not change, irrespective of who is running the show. I understand the Government’s position and I hear what they say about a review, although I add a request for the review to be regional as well as general, but I believe that the Lords who pressed for amendment 24 have a well-made case. I shall support the Lords in respect of amendment 24”.—[Official Report, Commons, 17/4/12; cols. 206-07.]
I do not always, or even often, agree with the right honourable Gentleman who I have just quoted at some length, but on this I do agree and I very much hope that the House will too.
Lord Wills
My Lords, the case for this amendment was powerfully made in this House last month and in the other place last week, and I rise now briefly to add another voice in urging Ministers to think again, even at this late stage, and to try to find a constructive solution to this issue.
Before coming to your Lordships’ House, I was an MP in Swindon. Because of that town’s industrial history and particularly because of the large railway works, which employed many thousands of people over many years, this illness was known locally as the Swindon cancer. I, too, thank the noble Lord, Lord Alton, for his sterling efforts on behalf of all my former constituents who have suffered from this terrible disease and, I am afraid, will suffer from it in years ahead.
Ministers have claimed that it would be wrong for various reasons—I understand and completely accept what the noble Lord, Lord McNally, has said about this—to make a special case for this one disease. The fact, however, of this disease’s particular virulence, that it is inevitably fatal, that it progresses with terrifying speed, that it is hard even to find palliative care for it once it has taken hold, all argue powerfully for it being just such a special case.
It is unconscionable to force sufferers from this terrible disease, and their families, at a time when every hour is precious to them, to go through the processes required by this Bill to secure the compensation to which they are entitled. Those are fundamental points for me—whether they can secure lawyers and whether success fees are to be secured for the lawyers. Every hour is precious. The people who are diagnosed with this illness have months and sometimes only weeks to live. We should not force them to go through the processes required by this Bill.
As my noble friend Lord Howarth has already said, accepting this amendment would do no damage to the fundamental principles behind the Government’s reforms of the legal aid system. It is the only decent thing to do.
Lord Bach
My Lords, it is the Opposition’s view that there should be no moneys taken from victims’ damages in these cases. That is the basis of our view. So we speak in favour of the amendment that has been so well moved.
There is a great feeling across this House that we have to protect victims of industrial disease and ensure that they and their families are not victims once again of reforms that are there to deal with dodgy whiplash claims and motor insurance premiums. In another place, as we heard this evening, there was a very powerful and intelligent debate on this subject. Those who often express the view that debates in this Chamber are always of a superior nature to those of another place should read Hansard carefully and look at what took place in that very short hour towards the end of Tuesday last week. It was a very good debate.
Honourable Members on all sides of the Chamber spoke with passion, knowledge and experience about this subject. Not least was Ms Crouch, a former insurance executive, who criticised both her Minister and the Association of British Insurers for their stance on these amendments. Indeed, as I understand it, she has spoken to the noble Lord, Lord Alton, today and has also put out a press release. I am delighted that a number of Members of Parliament on all sides who spoke in that debate are listening to our debate this evening.
I could also mention Mr Andrew Percy who represents Brigg and Goole, which noble Lords will know is famous for its historic shipbuilding past, and Mr Andrew Bingham, the MP for High Peak, an area that also has a high incidence of asbestosis. They spoke against the Minister’s proposals and, to their credit, voted in the Opposition’s Lobby. Their concern was perfectly understandable. Why on earth, with absolutely no savings to the state, are we reducing the amount of money that victims get from those who harm them, while handing that money to lawyers or insurers instead? Those Members on all sides who voted were not persuaded by the stupid assertions—if I may call them that—of the Minister in the other place that industrial disease sufferers should be treated in the same way as an organised gang faking whiplash injuries for payouts or someone lying about a slip or a trip on a pavement crack. Again and again, the other place heard stories of horrific suffering of victims—and the fact that you simply cannot fake cancer of the pleural linings, peritoneum or cardiac sheath.
The history of asbestos-induced diseases—and, indeed, general industrial diseases—is not a proud one for the insurance industry. It knew for decades that asbestos killed before it acted and only then at Parliament’s promptings. Insurers have fought cases—to the death—trying to get out of paying just awards to genuine victims. There is a long history of insurers fighting claims until after the death of the claimant. It is in part thanks to their tireless lobbying that compensation levels in England and Wales are not by any standard generous in cases of this kind. They are forensically calculated to reflect pain, suffering and loss of amenity and costs of past and future losses. They are far less than victims receive in comparable jurisdictions. For example, Mealey’s Litigation Report in 2007 maintained that the average jury award in the United States for mesothelioma was $7.5 million—the average award here is £65,000. Of course, the differences between jury and judge-calculated awards and our judicial systems apply, but there is a huge difference.
No one could argue that the damages victims of this disease receive are very great; they should certainly not be eaten into in the way that this Bill, if allowed, would permit. We start from a low baseline before we even consider docking damages to prevent these claimants coming forwards.
Lord Thomas of Gresford
Does the Minister not support my argument that it is better that there should be no success fees at all, rather than that success fees should be claimed against the insurers, which is what this amendment amounts to—in other words, a continuation of the current system? Does the Minister not agree that in these cases, which are easy to prove once you establish the insurer, success fees are really irrelevant?
Lord Bach
I am grateful to the noble Lord again for calling me the Minister—it is a couple of years, I think, since that was the case. I take his point though; it is a serious point. I am not convinced that lawyers who take up these cases, if this Bill in its present form becomes law, will not take success fees. In fact, I am pretty certain that they will. I cannot see why they would not. It may be a shame, but in the reality of the legal world, if they are entitled to take success fees, they will do so.
Lord Faulks
Does the noble Lord have any basis for saying that other than simply speculating?
Lord Bach
I certainly do not have the experience of the noble Lord in this area of the law, but with the greatest respect I ask whether his view is not as speculative as mine. We just do not know, but I would have thought that the history of legal proceedings of this kind is that where success fees are available they will be sought. Maybe not always up to 25 per cent, but they will be sought.
Lord Thomas of Gresford
Surely it would be for the Lord Chancellor to amend the regulations that he has to make to prevent success fees being charged in these circumstances.
Lord Bach
That may be what the noble Lord, Lord Thomas of Gresford, would suggest to the Lord Chancellor that he should do, but is there any indication that that is what will be done? Will regulations be put before Parliament that say it is forbidden to take a success fee in a case of this kind? If so, will not the Lord Chancellor run into exactly the same sort of problems that critics of this amendment raise here against the noble Lord, Lord Alton, and me? Will that not be the position?
Lord Thomas of Gresford
Not if there is an abuse, as the noble Lord suggests. If claimants’ solicitors in cases which are not difficult to prove start charging success fees, which the Lord Chancellor or public opinion decide is simply not acceptable, then the Lord Chancellor will have the power to stop it.
Lord Bach
It may not be difficult to prove, and I understand what noble Lords say about that. But there is a history, I have to say, of insurance companies taking an extremely long time to agree to settle cases of this kind. For whatever reasons—and I do not want to go though them tonight in this House—it may be that a case will take quite a considerable period of time, even if, at the end, liability is not denied. I want to stop soon and allow the Minister to respond.
Lord Higgins
Does the noble Lord agree that the crucial thing we have to decide this evening is whether we should send the amendment back to the Commons? I find that I now understand the issues put forward by the noble Lord, Lord Alton, much better than I did at earlier stages of our parliamentary proceedings. Given all the representations that we have received, that is probably true at the other end of the building as well. Therefore, there may be a strong case on those grounds for their reconsidering it. The argument is otherwise very simple, which is that they did not conclude the debate on this amendment in the previous exchanges in the House of Commons. Therefore, if we send it back, it will give them an opportunity to do that. Indeed, if the Minister sought the leave of the House at the end of the debate in the other place, he could actually reply to the debate, which he was prevented from doing by his own guillotine.
Lord Bach
I am very grateful to the noble Lord—I think the whole House will be grateful to him—for shutting me up. That is the first thing that he succeeded in doing, but he also made the point that this is about whether this House believes that the other place should have a closer look at this. What worries me slightly is that, as I understand the programme Motion in the other place, there may be only one hour in the programme for all the matters that they have to consider; but I am not sure that I understand the procedures of this House, let alone those of the other place.
The noble Lord has persuaded me to sit down now. I think that was his intention. I look forward to hearing what the Minister has to say in response to the points that have been made. Surely the other place should take up this matter again—it is of such huge importance.
Lord McNally
I think it was the line, “I want to stop soon” that provoked my noble friend Lord Higgins to get to his feet.
Again, this has been a very useful debate, with two parallel arguments. I go back to my opening remarks: nobody underestimates the horror of mesothelioma and the importance of getting speedy redress for sufferers. Parallel to that, however, are the attempts that we are trying to bring forward to bring some order to the costs of litigation. It simply is not true that the Jackson reforms are intended just to catch dodgy whiplash claims. There was a general feeling that the amendments to CFAs which the previous Administration introduced brought in an overall inflation of costs in our legal system. We all pay for that inflation.
I hear what the noble Lord, Lord Wills, said, but the truth is that the present system which the sufferers have to use is slow and expensive. I repeat that the intention of this Government is to move as speedily as possible to get to where we can through agreement with the industry, to get litigation out of the way. It is true, as has been said by a number of noble Lords, that there was callous treatment of sufferers. There was slow movement in addressing the issue, but that accusation does not lie at this Government’s door. We have moved very quickly in our attempts to get agreement with the industry.
Lord Bach
As far as that is concerned, the setting up of a body in order to get a move on with this was mentioned in a White Paper from the previous Government two years ago. We have seen absolutely nothing after two years to suggest that that body will be set up soon. Indeed, every comment made by the insurance industry as a whole has been opposed to any organisation that would stand in, as it were, when they cannot find who is responsible for these diseases being caused.
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 Wigley
My Lords, the House of Commons has rejected this amendment on the spurious grounds that it is inappropriate. That is a matter of opinion and judgment, no more and no less. Amendment 32 would exempt industrial disease claims from these changes. I supported the amendment that has just been passed by the House that relates specifically to exempting cases of respiratory disease from these changes. Amendment 32 goes wider to cover all diseases, conditions and illnesses that arise from a breach of duty owed by an employer to an employee, some of which may be much more complex than cases of mesothelioma, as we heard a moment ago. In the debate in the House of Commons, the argument was put that there should have been no specific amendment for one condition, such as mesothelioma, but a general approach. By passing this amendment, we give the House of Commons an opportunity to consider having that general approach.
I wish to draw to your Lordships’ attention to the meagre hour allowed in the Commons for debating Amendments 31 and 32. The Minister, Mr Djanogly, concentrated overwhelmingly, almost exclusively in fact, on Amendment 31. He said:
“the amendments are unnecessary. The legal climate in which mesothelioma cases can be brought has wholly changed in recent years”.—[Official Report, Commons, 17/4/12; col. 264.]
The whole tenor of the debate was in the context of mesothelioma, which we dealt with in our debate on the previous amendment. Of the 20 MPs who spoke, 15 spoke specifically about mesothelioma and 15 supported Amendment 32 when it came to a vote. The case against Amendment 32 was just not made in the Commons. We are supposed to respond to what the Commons has told us. It had not debated it at earlier stages, and it did not debate Amendment 32 in the hour that it had on 17 April.
At earlier stages during the passage of the Bill, the case has been made on the basis of road traffic claims and the savings that could be made in that context. Industrial disease cases are wholly different from road traffic accident claims; and, as many organisations, including the Association of Personal Injury Lawyers, have advised me, in road traffic accident claims liability is far simpler to prove than in industrial disease cases. That is why we need to have support for those cases, whatever the condition arising from industrial disease, not just mesothelioma. There is a range of other diseases. In the earlier debate, the Minister referred to further thought being given to mesothelioma by the Government and the DWP later this year. Presumably, on the basis of the argument that he put a moment ago, that further thought will also be given to the more complex cases that arise from other backgrounds in the industrial context. It is important to have the Minister’s response on the record on that.
We have been through these arguments many times, and I am not going to take up the time of the House in reiterating them. I beg to move.
Lord Bach
My Lords, I can be very brief on behalf of the Official Opposition. The Motion that was passed last time in this House was in my name, and it follows that we support the Motion in the name of the noble Lord, Lord Wigley, today. He has summed up the case extremely well, and in our view this amendment should be supported. It is quite wrong that any part of the damages awarded in industrial diseases should be taken from the successful claimant. In principle, it is wrong. Therefore we support the amendment.
Lord Phillips of Sudbury
My Lords, I can be very brief. There is a belief on this side that Amendment 32 would drive a coach and horses through the Jackson amendments, and we are broadly in support of the need to amend and reform conditional fee agreements and the like. I also draw the House’s attention to the fact that the wording of this amendment is extraordinarily wide. It will not apply just to cases of damages for industrial disease, as the heading would indicate; it will relate to any proceedings that include a claim for damages for a disease, condition or illness. That could be a minority part of the claim, and the rest, piggybacking on it, would also be outside the broad changes to these conditional fee agreements that have, in my view and in the view of the Government, had extremely unpropitious consequences for litigation generally, some of which we heard in discussion on the previous amendment. I am afraid that I oppose this amendment.
Lord Bach
My Lords, this House dislikes the Bill. I am referring not only to the 11 defeats and two draws that the Government sustained on Report or the defeats today but to a wider feeling that Part 1 in particular is mean-minded, picks on the poor, disabled and vulnerable and is not worthy of this country’s traditions and its legal system. This view is held virtually throughout the House. There were more than 50 speakers on Second Reading, but it is difficult to recall anyone who spoke up for Part 1.
I believe that many Conservatives are offended by the way in which the Government have picked on the poor and the vulnerable. It is against their traditions and they are unconvinced that there are any savings to be made by decimating social welfare law, particularly as the Government have consistently refused to give figures, in spite of committees asking them to do so.
I also believe that the Liberal Democrat Benches are offended by the taking out of scope debt, employment, immigration and, if the Government have their way, welfare benefit cases. If they had been in opposition now, I venture to suggest that they would have opposed Part 1 of the Bill with all their might, yet somehow, with some brave exceptions, which I will not name, they have been cajoled into voting for exactly the things with which they disagree most. The Minister is a liberal and humane man and I occasionally feel sorry for him, too. He has been obliged to put forward, particularly in relation to Part 1, nonsense after nonsense in support of his arguments.
Of course we welcome the Government’s amendment concerning upper court appeals. It was always ridiculous that claimants at an Upper-tier Tribunal—the Court of Appeal or the Supreme Court—should not automatically get legal aid to argue their case, which, as the Minister has just reminded us, can be only on a point of law. The Government knew all along that it was ridiculous and the Minister, to his great credit, never tried to argue seriously against it. We were always going to get this concession at some stage. I do not want to be difficult about the concession; we are grateful for it and for any part that the Minister may have had in getting it.
However, the position is still deeply unsatisfactory with regard to First-tier Tribunal appeals. Last Tuesday, in the other place, an extraordinarily unconvincing pantomime took place between the right honourable and learned gentleman the Lord Chancellor and the honourable Member Mr Tom Brake. I should explain to any noble Lords who do not know who Tom Brake is that he is the Commons equivalent of the noble Lord, Lord Thomas of Gresford. That is meant as a compliment to him.
The Lord Chancellor hinted tantalisingly—using expressions such as “if we can solve the problems”, “if we can find” and so on—that an arrangement might be reached whereby a lower-tier judge could certify a point of law and give legal aid to a claimant. I do not think it unfair to describe that arrangement as vague, unthought-out, superficial, strictly back-of-an-envelope stuff and, as we know, arranged very much at the last minute. Amazingly, however, it resulted in the said honourable Mr Brake immediately withdrawing an amendment that he and others had moved—not unlike my amendment today, as it happens. I am afraid that no one was fooled by this last-minute arranged minuet of an agreement. In a boxing match, it was a clear fixed fight, with Mr Brake going down to a knockout by arrangement in the second round.
Lord Thomas of Gresford
That is absolute rubbish. I say now—I would say it in a speech later—that it is not worthy of the noble Lord, Lord Bach, to attack Tom Brake in that way when he is not here to answer for himself. I am proud to be an associate of Tom Brake, who leads on legal matters in the House of Commons from the Back Benches, as I do here. He very bravely put forward that amendment and achieved a great success in getting the concession that he did, which I will develop at a later stage.
Lord Bach
If that was the concession that was sought, it was very poor fare indeed. The reasons why the deal is so unsatisfactory are numerous. Let me be brief about them. First, it is utterly impractical. What happens in real life is that, following an adverse review by the DWP, a claimant will decide whether to appeal to the lower tribunal. At present the claimant will be able to see a specialist adviser who will tell him whether there is a case or not. This prevents hopeless cases from clogging up the First-tier Tribunal but ensures that good cases go ahead to the First-tier Tribunal, which is a tribunal of fact and law.
None of this will happen under the proposed arrangement. How can a judge decide whether a case has a real point of law until it comes before him or her? Without sensible legal advice, it may never come before the First-tier Tribunal. This will mean that in practice many good cases, when mistakes have been made, are never taken up and may well mean that rubbish, hopeless cases clog up our already overburdened tribunals.
Secondly, this distinction between pure law and pure fact is a chimera. It is a nonsense at this stage. The First-tier Tribunal is not just a tribunal of law in the way that the second-tier tribunal is. It deals with the whole position and makes decisions on fact and law as they apply. Indeed, no one made that clearer than the Conservative Member of Parliament Mr Robert Buckland, who said in an intervention:
“I am listening to my right hon. and learned Friend’s arguments with great care, but I am still puzzled about the unavoidable problem of the ability to work out what is a legal issue as opposed to a merely factual one. Fact management and legal issues often come hand in hand, and they are often best handled by a lawyer. I worry that we are making an artificial distinction”.—[Official Report, Commons, 17/04/12; col. 227.]
Later, in his speech, he said:
“A person does not come through the door of the citizens advice bureau, the law centre or the local practitioner saying, ‘I am a problem of fact’ or, ‘I am a problem of law.’ They come as individuals with a particular issue that needs untangling by somebody with expertise. That somebody will, I am afraid to say, often be a lawyer. That is a fact and we should not shy away from it. Often a lawyer can quickly, in the provision of advice—I am not talking about representation in the tribunal at this stage—”
I should say that nor are we, in the course of this amendment—
“sort out the problem effectively”.—[Official Report, Commons 17/4/12; col. 248.]
He could not have put the case better for the amendment and against the very vague arrangement that was mentioned in the other place last Tuesday.
Let us look at a real-life impact of the measure that the Government propose. According to official figures last year, 173,880 people appealed a benefits decision in the First-tier Tribunals. Of those, 161,400 related to disability benefits—that is, 80 per cent—including incapacity benefit, employment support allowance, and DLA or industrial injuries disablement benefit. About 60 per cent of all appellants who received advice from a front-line agency won their case but only 39 per cent of those who did not receive advice won their case. That is clear evidence of what can be called the advice premium.
In short, meritorious claimants are more likely to win their case if they have been advised in advance. Overall, 45 per cent of those before the tribunals won their case. I hope that that puts paid to any notion that the majority of appeals lack merit or involve chancers having a go. Clearly there is a substantial need for a mechanism to correct errors. We all know that the department makes errors all the time—and that will happen as long as life goes on.
I regret that I must note that 45 per cent represents a marked increase over the previous year, in which 38 per cent won their cases, itself the culmination of years of improvement. So last year represents a sudden and significant degradation in the quality of decision-making in state agencies, which is quite the opposite to the claims made by the Government that the DWP is working to make the system more effective. The worst degradation in decision-making was for employment support allowance, on which overall half the appellants won their case. To put that in numbers terms, more than 40,000 disabled people a year have their employment support allowance reinstated after a First-tier Tribunal ruling that overturns erroneous decisions from the DWP. Again, there are marked disparities in the percentage of appellants who succeed, based on whether they receive advice or not, with some 70 per cent of advised ESA appellants winning and only 43 per cent of unadvised appellants winning. We are talking about advice, not representation. The conclusion is that advice really matters.
We argue—and I hope that the House is with us—that the present system works all right. It is true that tribunals are already overburdened, but we are now in an age of austerity and we have coming up the road radical welfare benefit reform about to commence. There will be mistake after mistake made by the authorities, so how can this be the right time to take away or remove our fellow citizens’ rights to have wrong decisions corrected—decisions that for some actually make the difference between a decent life and one wrecked by poverty and insecurity?
If our amendment were passed, it would cost the Government at most £15 million. All commentators agree that the Government’s proposals will cost the state much more in the end because, if people do not get that expert early advice, their lives go wrong. The problems that they have can be dealt with, and have been dealt with for years, by not-for-profit organisations such as law centres and CABs, in which advice on social welfare law and the law for everyday life is given for free under legal aid. If that advice is no longer available, those problems get worse and multiply and in the end the state has to pay out much more in picking up the pieces.
We do not believe that, for £15 million, which is what the Government claim would be saved by changing this system—that is, by not allowing advice at the early stage—that can possibly be sensible. This Government have, for example, found £250 million in order that we might all have weekly bin collections, but they cannot afford £15 million per year in order that people can get advice. A system that was set up by a Conservative Government, under the noble and learned Lord, Lord Mackay of Clashfern, and supported by previous Conservative Governments, as well as by the Liberal Democrats over the years, and by us, is to be completely overthrown in order, in fact, not to save any money at all.
Our amendment would allow early advice to see whether a case was one that was suitable for First-tier Tribunal or not. That is all that we are asking the House to agree to tonight. This is basically the same amendment that the noble Baroness, Lady Doocey, moved on Report, but because there is financial privilege we have lessened it. It is not for the review period—the review to the DWP. It comes into play only when there is consideration of whether to go to the First-tier Tribunal. I beg to move.
Lord McNally
On the contrary. I am sure that the noble Lord, Lord Bach, is ready to leap to his feet to draw attention to the fact that we have carried through the savings in criminal legal aid that the previous Administration put in train.
Lord Bach
Yes, I am pleased that the Government have done that, but that figure is included in the 8 per cent that they have taken off criminal legal aid. They have taken 29 per cent off family legal aid, as well as 53 per cent off social welfare law. Why that distinction? Why take 8 per cent from a large amount on criminal legal aid, 29 per cent on family law but 53 per cent of a pretty small budget on social welfare law? That is deliberate, is it not?
Lord McNally
The point is that it is still an appointed House and is an advisory and revisory Chamber. As such, where this House decides to draw stumps on a particular issue is a matter for its judgment. Although financial primacy may occasionally irritate this House, again, as a House of Commons man and as I said earlier, this is not something recently drawn up by the coalition agreement or even by the 1911 Act. It is 300 years of our much-valued history during which kings have lost their heads and their throne in the primacy of the House of Commons on financial matters. Much as I should like to flatter the House on this matter, I still believe that it is important.
I understand the desire to see more legal advice in these cases. As I said in my opening remarks, we believe that in most cases individuals will be able to appeal to the First-tier Tribunal without formal legal assistance. I quoted the president of the tribunal in highlighting that in many cases eliciting additional information from the appellant was the most useful exercise that the tribunal carried out.
I also think that we are not being idle while welfare benefit reforms are being brought forward. A number of proposals currently are being considered across government that should make it easier for people to receive the right provision of entitlement in areas such as welfare, benefits and education. The most notable of these is the universal credit which will help to reduce the scope of error significantly as it makes the whole benefit system simpler and easier to understand. We are working closely with DWP as part of its wider welfare reform programme to improve the quality and effectiveness of its initial decision-making.
As I have said, we have gone into this matter fully and it is not something that we have ducked. From the very beginning, from the first consultation paper, we took a decision that social welfare would be taken out of scope. I know how passionately the noble Lord, Lord Bach, feels about this matter. If he was in my position, it is not the road he would have taken to fulfil his party’s commitment to cut legal aid. That is the nature of things. This is the judgment of the Government.
We are not looking at complex points of law in other areas at the moment. As the noble Lord, Lord Wigley, said, the problem is that if you make a concession somebody immediately stands up and says, “Why not look at it in other areas?”. We can build on what the Lord Chancellor promised about talks with the DWP. The noble Lord, Lord Thomas, in explaining what he was proposing, illustrated why we have been careful in putting this matter forward. We will look at it carefully and I will draw to the attention of my right honourable friend the Lord Chancellor the specific proposals he made in his speech.
As I have said before, we have had a very thorough debate on this. It has certainly been very thoroughly debated in this place over the past year. I believe that it would be better now if the House were to accept the Commons amendments and the noble Lord were to withdraw his.
Lord Bach
I am very grateful to all noble Lords who have spoken in this debate. We have had the expertise of the noble Baroness, Lady Doocey, and the noble Lord, Lord Low, both of whom are experts on the disabled and the problems that they face. I am also very grateful to my noble friend Lord Howarth and the noble Lord, Lord Martin of Springburn, for their very knowledgeable contributions on this matter, and not least to the Minister for what he has had to say.
This is one of the central and most important debates of this whole Bill. It goes to the very heart of what the Government are seeking to do, which is effectively to ask whether social welfare law will survive in our jurisdiction. We currently have a system of social welfare law that we can be proud of. It is not perfect; it makes mistakes and it probably does not have enough money spent on it but it is not a bad system, where not-for-profit organisations around the country—CABs, law centres, other advice centres and some Law Society solicitors—do wonderful work at very low rates, giving advice to the most vulnerable, the disabled and the poorest in our country.
The issue is whether claimants will continue to get the advice that they have been entitled to in the past—because there has been a consensus of the political classes of all the parties that that is the proper way for a mature legal system to behave—which helps them decide whether or not they have a case when they are dealing with the state. Without that advice, how will these people get to the tribunal in the first place? The Minister quoted the president of the Social Entitlement Chamber of the First-tier Tribunal. Is that the same president who has publicly said that he is appalled at the prospect of more and more claimants coming before his tribunals who have not had the benefit of any legal advice?
Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord Thomas of Gresford
My Lords, I am grateful to my noble friend for the amendment. He knows that we on these Benches raised this issue before Second Reading. It is necessary to have flexibility brought into the Bill for two reasons: first, because economic conditions may improve and it may be possible to revert to a more generous legal aid scheme; and, secondly, because those of us with experience of litigants in person know they can clog up the courts and that, consequently, it may be necessary for urgent amendments to Schedule 1 to introduce legal aid to enable people to be legally represented. It is not fully appreciated by the public that legal representation shortens cases and leads to justice, rather than litigants in person trying to fight their own cause.
Lord Bach
I thank the Minister for the concession that the Government have made today. The clause as it stands before we pass the Government’s amendments should never have been in that form when the Bill was published and was always crying out for amendment. Indeed, members of my party in the Commons did their best to ensure that that happened. I am grateful to the noble Lord, Lord Thomas, and other noble Lords for persuading the Government that the clause needed changing. I shall not, of course, press my amendment; I will not move it.
I know the Minister and all other noble Lords will agree that the House seems somewhat empty today because our noble friend Lord Newton of Braintree is not with us in our deliberations. He took an active part in all the debates on the Bill for many months and, even though we could all see that he was not in good health, insisted on coming here, speaking his mind and voting in the way his conscience told him to vote. He took a real interest in the Bill and—I know all noble Lords will agree—it was a delight and privilege to work with him. It does not seem right or just that he is not here listening and speaking his mind. Having said that, I thank the noble Lord for the concession.
Baroness Butler-Sloss
My Lords, as a Cross-Bencher, I add to what the noble Lord, Lord Bach, has just said about the death of a man who was a great friend to many of us. Lord Newton was an adornment to this House, who stood, as the noble Lord, Lord Bach, has already said, for his conscience rather than for what his party, or any party, might wish. It is easy for me as a Cross-Bencher to examine my conscience, and I am well aware it is not so easy for members of political parties. He will be enormously missed. His name is on a number of today’s amendments, and I hope that noble Lords will forgive me for saying something about this before I move to Amendment 1.
I congratulate the Government. I do not do it terribly often but am going to do it three times today. This amendment, as the noble Lords, Lord Thomas of Gresford and Lord Bach, have said, is overdue. It is splendid that the Government have recognised the importance of having the ability to increase legal aid. I also very much support the fact that they are putting in “vary or omit”. All of us who have had anything to do with legislation know that from time to time it becomes redundant and has to be got rid of or needs a tweak here and there, and therefore needs a variation. I support this amendment as it is.
However, if the Minister will forgive me, I will make one or two points about what has happened as a result of this Bill so far as family cases are concerned. The noble Lord, Lord Thomas of Gresford, has already mentioned this but I will add to it. I strongly urge the Government to review the impact of the legal aid changes no later than a year from now, to see what happens to the family courts in the light of the removal of nearly all private law cases from legal aid. I am not sure the Government really quite accept what a number of us have been saying, to the Ministers in this House and the other place, about the impact on the courts. There will be longer lists. I know the Ministry of Justice is already aware that the lists in the courts are too long, and they will be increased substantially.
There will be longer hearings. As the noble Lord, Lord Thomas of Gresford, said—entirely accurately—without lawyers to keep a case under control, two litigants in person will spend an absolute age. The sort of case that takes a day, or possibly a day and a half to two, will take not less than a week. I have a vivid recollection of one litigant in person who took a week to give evidence and cross-examine. Every time I asked him to hurry up, it added another hour or two to the case. I am afraid I sat scribbling nonsense, because nothing he said was of any value to the conduct of the case.
It is going to be very difficult for district judges and magistrates to manage people totally caught up in the emotions of a failed relationship and fighting over money, a house or particularly children. They will have to do it but it will clog up the courts to an even more significant degree.
It will have an impact in children’s cases. One example in child protection issues is the fact that drink or drug abuse is sometimes detected only during the hearing of a private law case. It is crucial that the person who is drinking or taking drugs to excess is tested to see what should be done as to whether that parent is fit to have care of the child, or even to see the child. The Minister will be aware that in the Norgrove report that point was made about the very thin line between the private law cases and those that tip over into child protection issues. On Report, we discussed whether the mediator would identify cases where there might be abuse. There is a hard core of 5 per cent of cases that cannot be settled between the parties—and, of course, that 5 per cent of cases will carry on regardless and may not ever come to the attention of the mediator.
I ask the Minister, in congratulating him on proposing the amendment, to have a real look at the impact on the family courts within no later than a year to see what is actually happening.
Baroness Masham of Ilton
My Lords, in supporting these amendments I give an example concerning Amendment 4. Recently, I had a letter about a tragic case. A baby had a boil on his behind. When his mother took him to have his polio vaccine, she queried the fact that he had a boil with the nurse. The nurse queried it with the doctor who said, “Go ahead and give him the vaccine”. The baby developed polio through the urine in his nappy. Now, years later, the boy is paralysed but the family have had no help and are still trying. Many cases need to be sorted out early to save years of anguish.
Lord Bach
From the opposition Front Bench I can be extremely brief, as I should be because this is Third Reading. These are very important amendments which the House will have to decide on shortly. JustRights has done some number-crunching on the issue of children. It points out that, while 95 per cent of funding may be protected, only 74 per cent of children are protected likewise. Therefore, the 6,000 mentioned by the noble Baroness who moved Amendment 3 will be left to navigate the legal system alone. These children will have no adult to help them—no litigation friend, in parlance.
It is absurd to think that in social welfare law cases, a conditional fee agreement is any substitute whatever for basic legal aid for getting legal advice for the kind of problems that affect these children. In effect, we are being asked to abandon some of these children— 16 year-olds perhaps—to a legal system that is far from understandable. They will be mainly children in care who have fractured relationships with their parents. The House knows so well that these are exactly the kind of children who, if they do not get early legal help, may end up in young offender institutions or secure children’s homes at enormous cost to the state, which would be much more than the small amount that the Government claim will be saved by not giving them legal aid. How much wiser would it be to spend that money early? Surely, for children, legal aid is greatly preferable to a CFA right across the board. We support the amendments.
Lord McNally
My Lords, in debates like this, I am always a little worried that noble Lords not in the Chamber when the Division Bells ring will come along and say, “What is this about?”. They may be told, “Oh, we are voting on legal aid for children”. Let us be clear, these amendments and this debate are not about whether we provide legal aid for children and vulnerable people; nor is it about not being willing to help those least able to help themselves; and nor is it about denying help to the most vulnerable in our society.
As my noble friend Lord Thomas of Gresford pointed out, the core principle of our reforms is to ensure that civil legal services will continue to be available in the highest priority cases; for example, where a person’s life or liberty is at stake or where children may be taken into care. The application of this principle has led us to protect the vast majority of funding and cases involving children. They include child protection cases, civil cases concerning the abuse of a child, special educational needs cases and cases involving children who are made parties to private family proceedings. Noble Lords will also recall that we have moved to make funding available for clinical negligence cases concerning brain-damaged infants. It is simply not true therefore to suggest that there will be no funding or very substantially reduced funding for the cases involving children and young people.
In addition, as indicated earlier, we have moved the amendment ratchet to “regulator” which will enable us to test whether some of the more dramatic warnings that have been issued about our reforms can be looked at. We are committed to undertake a post-implementation review of the specific policies set out in Bill. We believe that these safeguards are sufficient to ensure that children do not fall through the net. Our approach will mean that 97 per cent of current spend on cases involving child claimants will continue, and that is the overwhelming majority of current support. Spending reductions are never welcome, but I hope these figures put it beyond doubt that we have made a genuine endeavour to ensure that children are protected, even as we push on with the wider objective of our reforms, which is to focus scarce resources on the most serious cases, to contribute to savings and to reform the system.
Lord McNally
It is always a pleasure to see the most reverend Primate the Archbishop of York in his place. I shall give him a definitive answer as I sum up and come to my peroration, as there are a number of other matters that I wish to cover.
Amendment 4 seeks to bring into scope children for all clinical negligence cases. I have already set out my arguments on how we have protected children in the Bill. On clinical negligence, in particular, we recognised the concerns that serious and complex cases involving brain-damaged babies may not be able to secure a conditional fee agreement, and we therefore brought forward an amendment on Report that will provide certainty for families and make the application process straightforward.
The amendments we have made will allow funding for cases where the negligence occurs in a period of time beginning with the point of the mother’s pregnancy until eight weeks after birth. This does not mean that the symptoms have to become apparent during this period. They could become apparent beyond this period and still be in scope providing that the relevant negligent act or omission took place during that period. We also moved to include an additional safeguard in respect of babies who are born prematurely. We recognised that these children are particularly vulnerable in the post-natal period and have therefore provided that where a baby is born before the 37th week of pregnancy, the period of eight weeks will not run from birth but will be taken to start from the first day of what would have been the 37th week of pregnancy. I hope noble Lords will recognise that the Government have listened and acted to introduce back into scope the most serious clinical negligence cases involving children.
Amendment 5 seeks to bring into scope civil legal services in relation to advice and proceedings for any person who is 24 years old or under and has a disability, is a former care leaver or is a vulnerable person as specified by regulations. We have provided for those who are most vulnerable, as I have said, under Amendment 3, which covers those under the age of 18. However, we have also been clear that there must be flexibility in this complex area. The exceptional funding scheme therefore provides a mechanism whereby the director of legal aid casework can grant legal aid in areas that would normally be out of scope, where necessary, to ensure the protection of an individual’s rights to legal aid under the ECHR and EU law. In cases engaging Article 6 of the ECHR, the director of legal aid casework must take into account a person’s ability to represent themselves, the complexity of proceedings, the importance of the issues at stake and all other relevant circumstances. An individual’s age as well as their capacity will be key considerations in determining a person’s ability to represent themselves. The exceptional funding scheme will clearly be an important safeguard for children or vulnerable young people who would otherwise be unable to present their case.
I am told that we have lost the vote about retaining legal aid for appeals to the Supreme Court.
Lord McNally
The most reverend Primate the Archbishop of York may be disappointed to know that he may have been absent to defeat us on that point at an earlier stage. As the noble Lord, Lord Bach, has indicated, the Government will look at these matters between now and consideration in the other place.
The only outstanding point that I wanted to cover was that made by the noble Lords, Lord Thomas and Lord Avebury, about the balance between CFAs and legal aid in injury cases. Although I am not a lawyer, I would say that, on balance, CFAs are the most effective way of taking these cases. It is worth remembering that 82 per cent of cases are already covered by CFAs. People are not left abandoned on a lonely sea—the process works.
It is always difficult to draw lines and easy to say that the lines have been drawn in the wrong place. As I said in opening, the amount of coverage for young people in this area is completely different from what was suggested in some speeches today. We believe that between the coverage of scope that we put into this Bill, the workings of exceptional funding and the availability of wider advice, there will not be the kind of consequences that have been suggested. I also make it clear that we do not think that Amendments 3, 4 and 5 are consequential, so if noble Lords do press them, we would want to test the opinion of the House on each. However, I hope that the noble Baroness will agree to withdraw her amendment.
Lord Woolf
My Lords, in the courts, many cases have three judges involved in determining what should be the outcome. If one judge gives a judgment on the provision which the other two judges think is totally convincing and where they have nothing useful to add, they just say, “I agree”. I agree with the speeches that have been made in support of the amendment.
Lord Wallace of Tankerness
My Lords, the House had the opportunity to debate issues similar to those raised in the amendment during detailed discussions in Committee and on Report. As the noble Lord, Lord Pannick, indicated, my noble and learned friend Lord Mackay of Clashfern came up with the phrase “in the interests of justice to prevent injustice”, which I said at the time had a certain seductive charm and that I would think about it. The noble Lord, Lord Pannick, moved the amendment and argued his case with seductive charm, as did the noble Lord, Lord Hart. The noble and learned Lord, Lord Woolf, was very much to the point, as was, very briefly, the noble Lord, Lord Bach.
I can assure the House that we have thought about these points. The Government believe it is right that there should be an exceptional funding scheme to provide an essential safety net for the protection of an individual’s fundamental rights of access to justice, and Clause 10 achieves this important end. It will be necessary to provide services to an individual under Clause 10(3)(a), where a failure to provide some measure of legal aid would, for example, clearly amount to a breach of Article 6 of the European Convention on Human Rights, which guarantees an individual’s right to a fair trial and access to the courts.
As has been said on a number of occasions when we have debated exceptional funding determinations under what was Clause 9 but is now Clause 10(3), they will be made in accordance with the factors that the domestic courts and the European Court of Human Rights have held to be relevant in determining whether publicly funded legal assistance must be provided in an individual case.
In considering whether legal aid should be provided in an individual case engaging Article 6, the director will need to take into account, for example, the importance of the issues to the individual concerned and the nature of the rights at stake; the complexity of the case; the capacity of the individuals to represent themselves effectively; and the alternative means of securing access to justice.
It is not lost on me that the noble and noble and learned Lords who tabled the amendment have carefully mirrored the existing formulation of the clause in their proposed addition. I thank, particularly, the noble and learned Lord, Lord Mackay of Clashfern, for triggering this discussion and this line of thought in Committee. I again assure the House that I have considered the alternative formulation carefully. However, as I said on Report, we are satisfied that the provision that the Bill currently makes in respect of excluded cases is both appropriate and sufficient.
Baroness O'Neill of Bengarve
My Lords, I know that it is Third Reading and at this point I shall speak to process and not to substance. We already have in the Bill two exemptions from certain provisions relating to success fees and cost recovery via insurance—Clauses 44 and 45. The existing exemptions for those two clauses relate to respiratory disease and industrial disease, particularly when there has been a breach of a duty of care.
Amendments 25 and 28, to which the noble Lord, Lord Prescott, has just spoken, and to which I am speaking, seek to establish parallel exemptions for proceedings that include a claim for damages or other relief that relate either to personal information or breach of privacy or defamation. This is simply not the moment to try to alter the costs regime in actions pertaining either to privacy or defamation. The tectonic plates are shifting in this area. We have around us many cases that relate to criminal breaches of existing legal protections of privacy as, after all, not all have been settled. We also have a report by the Joint Committee on Privacy and Injunctions from only a fortnight ago to which nobody has yet been able to give much attention, but it deserves some attention. We have notably Lord Justice Leveson’s ongoing inquiry and we have a number of parallel inquiries going on into other aspects of the phone-hacking scandals that came to light last summer.
In some quarters, it is an expectation that defamation legislation will have a place in the Queen’s Speech. Is that a rumour? I do not know, but in some cases I think that it is a firm assumption. I know that nothing can be said about that, but in short, this is simply not the time to alter the costs and fees regime relating to cases in this area. If defamation legislation is coming forward in the Queen’s Speech, then will be the time to think about that. If not, there will be time to think about these other things that are ongoing.
I believe that there would be one other way that might seem to offer the Government a route for dealing with this difficulty of timing, which I accept is not something that could have been anticipated, but it is a severe difficulty. That would be to take advantage of Clause 152, which permits different parts of the Bill for different purposes—that is an unusual way of putting it—to be commenced at different points. It would be open to the Government to delay commencement on those issues. I accept that that is a way of avoiding making commitments now that might have to be reversed if there were a Defamation Bill. However, that is simply not satisfactory from the point of view of litigants—both claimants and defendants—in privacy and in defamation where the stakes are too high and the uncertainty is too great. At this stage, an exemption parallel to the exemption in Clauses 44 and 45 would be the appropriate way forward.
Lord Bach
My Lords, we have heard two powerful speeches on this matter. I say from the Front Bench that we support the amendment in the name of my noble friend. Legal aid has never been available for redress in this field, so no-win no-fee has become an essential bulwark for the impecunious citizen of moderate means against for the main part much more powerful media corporations. Such actions, as the House knows, recently led to the exposure of systematic wrongdoing at News International that saw innocent people’s lives just taken apart. We have heard reference already to the Dowlers and the McCanns, and to Mr Jeffries, too. But even politicians, such as the right honourable Simon Hughes, has been a victim, and have relied on no-win no-fee to get justice.
The Jackson reforms on road traffic accident personal injury cases, which we welcome very much on this side, comprising 75 per cent of all claims, are recognised as having a potentially devastating effect on this area of law. The Liberal Democrats in the other place agreed with us when they tabled amendments exempting privacy and defamation actions. I very much hope that they will be consistent if the matter is taken to a vote tonight. That is what they proposed in the other place, so will they really vote against it tonight? The Joint Committee is looking at the draft Defamation Bill. Everyone owes a huge debt to the noble Lord, Lord Lester of Herne Hill, who I am delighted to see in his place. He is unusually silent on this matter tonight but perhaps I can understand why.
Lord Bach
That is a first. I am delighted to hear it. The Joint Committee looking at the draft Defamation Bill agreed with the point that I am attempting to make now. It said of the Government’s proposals that,
“we are sufficiently concerned about them to ask the Government to reconsider the implementation of the Jackson Report in respect of defamation actions, with a view to protecting further the interests of those without substantial financial means”.
The Government are trying to stay the House’s hand—many Members of this House are concerned about the impact on these cases—by saying that they will deal with the issue in the Defamation Bill. That is not good enough. In some ways, we will break the civil justice system in this Bill and the Government are saying, “Don’t worry; we’ll fix it later”. That is not good enough. Even if the Government change the definition of defamation, what will they do to make litigation viable for those of limited means? The fundamental problem, as the House knows, is that damages are low in these cases. Indeed, Lord Justice Jackson recommended increasing them substantially in a part of his report, but not the only part, which has been ignored by the Government. The costs of bringing them in are quite a lot higher.
The Government are doing everything they can to make these cases impossible to bring in the future. They are even refusing to put qualified one-way cost shifting in the Bill, which is an essential protection against adverse costs should a litigant lose in this kind of case. The House should not think that it is good enough for the Government to say, “Trust us; we’ll fix it all later”. The amendment should be supported because, as the noble Baroness said in her thoughtful and impressive speech, it is not good enough just to rely on some Bill that may or may not appear in the next Queen’s Speech whose contents we know not.
Lord Lester of Herne Hill
My Lords, I listened with great interest to the speech of noble Lord, Lord Bach. He will remember that when he was a Minister in the previous Government, his master, the right honourable Jack Straw, decided that the present regime of costs was oppressive and unfair because it imposed a chilling effect on the publishers of newspapers and other media. Mr Straw decided that it was an abusive system because of the effect that it had on free speech. The effect arose from the fact that unscrupulous, greedy or perhaps simply normal lawyers acting for claimants were taking advantage of success fees and running up enormous legal costs that dwarfed any claim for damages, leaving a publisher defendant, for example, with a damages claim for £20,000 accompanied by a costs claim for £250,000.
In the Naomi Campbell v Mirror Group Newspapers case, the European Court of Human Rights found that the circumstances breached the right to free speech enshrined in Article 10 of the European convention. In that case, exactly what I described happened in a gross and abusive way. Mr Straw and the previous Government recognised that the system was an abuse and proposed a rather crude mechanism to cut down success fees to an arbitrary figure. Although this House passed the measure, the other place refused to do so and it fell.
As I shall explain in a moment, I have great sympathy with the problem. However, at the moment I am dealing with the existing abuse. I begin by dealing with it because the amendments in this group, which refer to defamation, privacy and breach of confidence, would leave in place precisely the scheme that has been held to be contrary to the European Convention on Human Rights, on free-speech grounds. They would leave in place the exact conditional fee agreement and success fee scheme, with all its capacity for abuse. For that reason, the amendments should be resisted.
Of course, I agree with the noble Lord, Lord Prescott, and others who spoke, that there is a problem in defamation and privacy cases. It is that the normal costs regime does not work very well in those cases, where often what are sought are not massive damages but other forms of remedy that cannot be dealt with under the scheme in the Bill. That is why at a previous stage I tabled an amendment to introduce what I hoped would be a proportionate way of dealing with the problem. The noble Lord, Lord Prescott, put his name to the amendment. I am entirely at one with him in saying that there needs to be a special and proportionate regime that applies to defamation and privacy cases. We are entirely at one in our aim, and that is exactly what our colleagues in the other place indicated in the view that they took on the matter.
The question is: what is the best way of meeting this legitimate aim? A means must be found of dealing with the David and Goliath problem—both ways. In one case there may be an extremely rich and powerful claimant and an impoverished defendant—let us say a citizen critic, or a little NGO, who cannot afford to pay the costs of the claimant. In another case the claimant may be a weak or impoverished individual who is up against a powerful newspaper or other big corporation, and the same problem will arise. We need to find a scheme that ensures equality of arms—a level playing field—between the strong and the weak in these cases such as privacy and defamation claims where the remedy in the Bill is not suitable.
Lord McNally
My Lords, my noble friend is catching something that perhaps I should not call Pannick disease. The noble Lord, Lord Pannick, has a habit of asking questions and then giving the answers. We will have to see whether I will be able to satisfy my noble friend on the questions that he raised.
As I explained, the basic rationale for the proposed reforms to no-win no-fee conditional fee agreements is to squeeze the inflation out of our legal system. It is to rebalance the system to make it fairer as between claimants and defendants. They do this by correcting the anomaly whereby those who bring cases have no incentive to keep an eye on the legal costs. Right now, the recoverability of success fees and insurance premiums from the losing side can have the perverse effect of preventing defendants fighting cases, even when they know they are in the right, for fear of the disproportionate legal costs involved if they were to lose.
High and disproportionate costs have a negative impact not just because they can deny access to justice but more broadly because they can lead people to change their behaviour in damaging ways because of the fear of claims. Nowhere is that more true than in relation to responsible journalism, as well as to academic and scientific debate. The judgment of the European Court of Human Rights, to which my noble friend Lord Lester referred, in January 2011 in Mirror Group Newspapers v the UK—the so-called Naomi Campbell case—found the existing CFA arrangements with recoverability in that instance to be contrary to freedom of expression under Article 10 of the convention. Editors and journalists have long warned of the chilling effect of the current libel regime and argued that part of the problem is the huge costs that no-win no-fee cases impose. However, defendants are not always rich and powerful newspapers; they are also scientists, NGOs, campaigners and academics.
I have already made the general argument that any exception to reforms intended by Lord Justice Jackson to apply across the board is invidious and likely to lead to unfair anomalies with special treatment for some areas of law but not others. In the case of defamation, I additionally argue that these amendments are premature because, as the noble Lord, Lord Lester, explained, these issues need to be considered in the context of the defamation Bill, which we aim to introduce as soon as a legislative opportunity arises.
Lord McNally
The noble Lord will have to wait and see. One thing is certainly true: I have made every effort to make sure that defamation is not engulfed in a tsunami from Leveson. If we really want to reform defamation and not get caught up in a much wider privacy law, what I am trying to do is the way forward. Stunts like dividing the House tonight will show that, on this Bill, the noble Lord is still more interested in short-term political gain than in making progress.
Lord McNally
We are talking about a Bill that does not come into effect until 2013. Given that defamation legislation is in process, I do not think the fact that there is a slight lacuna is a major problem in terms of the issues that the Bill will deal with. If it takes a little longer, that is a problem, and I will return to that.
That Bill and associated measures seek to reduce the costs of litigation and discourage unnecessary litigation in the area of defamation. We seek to do so, very broadly, by introducing a range of substantive and procedural changes and also by focusing on alternative dispute resolution, which is quicker, at lower cost, and offers more meaningful redress.
Any exceptions for defamation or privacy cases from the changes in Part 2 are unnecessary because our CFA reforms should not prevent strong cases being brought. I share the concern that individuals who are not wealthy or powerful sometimes need to bring defamation or privacy cases. Nothing in our proposals should prevent that where a case is a good one.
The noble Lord, Lord Bach, sometimes makes me gasp when he starts lecturing our Benches on consistency. The noble Lord, Lord Prescott, asked why this was happening now. Perhaps I may quote an expert on these matters:
“CFAs will remain available for defamation cases; thereby, lawyers will still be able to use them in deserving cases”.—[Official Report, 25/3/10; col. 1157.]
Those were the words of the noble Lord, Lord Bach, as Justice Minister, when he rushed attempts to reduce success fees before this House just before the election. We have already heard what happened in the grand coalition that was the Labour Government when the proposal went down the other end. Nevertheless, the noble Lord, Lord Bach, told this House:
“There is a substantial body of opinion that 100 per cent recoverable success fees should not continue in defamation cases”.—[Official Report, 25/3/10; col. 1156.]
He was backed up by a consultation which said,
“immediate steps are needed in respect of defamation proceedings”.
Lord Bach
My Lords, I stand by those remarks. If the Minister thinks that there is something wrong—for example, the difficulty in relation to damages where, under his Government’s scheme, claimants will have to pay up to 25 per cent of the damages they get—what is he going to do to change that? He is in government now.
Lord McNally
We are doing what they did not do. We are bringing forward a Defamation Bill that will address many of these problems. The noble Lord says that he does not know what is in the Defamation Bill. A Defamation Bill was brought into this House by my noble friend Lord Lester two years ago, when this Government first came in. In reply to that, I said from this Dispatch Box that we would take up this Bill. We went into a consultation, which has been published. We produced a draft Bill, which the noble Lord may have noticed. We also had pre-legislative scrutiny under the chairmanship of the noble Lord, Lord Mawhinney, and we have responded to that.
We have played this by the book. We have not tried to rush through legislation, as the noble Lord did in the dying days of his Government. We have carried out a sensible look at defamation. The noble Lord knows the conventions. I am very hopeful that we will find parliamentary time in the very near future.
As I have already said, the legislation in this Bill does not come into effect until 2013. The Defamation Bill and the procedural reforms that we intend to take forward with it are of course about reducing the complexity and therefore the expense involved. In order for those aims to be achieved, we will look at the rules on costs protection for defamation and privacy proceedings for when the defamation reforms come into effect. I can give the House the assurance that we will do so. Bearing that in mind, I hope that the noble Lord will withdraw these amendments. We are on course for a reform of our defamation laws.
Lord Strasburger
My Lords, I should start by declaring an interest, or at least a former interest. In a previous life, I was a shareholder in and director of a company that made its money—in fact, quite a lot of money—from keeping squatters and others out of empty properties. You might conclude, when I have finished my short speech, that I am a bit of a gamekeeper turned poacher.
This clause was added late to the Bill, which might explain why it is a rather clumsy and blunt instrument. I am not sure who this new offence is aimed at. Is it aimed at squatters in vacant properties, who are not currently committing a criminal offence, or is it aimed at squatters in occupied properties that might be temporarily empty while the occupiers are on holiday, or even shopping? As we have heard, squatting such as that is already a criminal offence. I am not sure which situation this clause is intended to address. Perhaps the Minister will enlighten me.
This clause is a blunt instrument because its unintended consequence—and I sincerely hope that it is an unintended consequence—is to protect unscrupulous property owners who keep properties vacant for years for purely speculative reasons and, in the process, prevent homeless people having somewhere to live. The amendment deals with that by limiting the period of that protection. This clause is a cuckoo in the nest because such a provision has no place in the Bill and has no connection with any other part of it. Squatting should not be considered in isolation, as we have heard, but should be considered in the context of housing and homelessness.
Lord Bach
My Lords, the House will be delighted to hear that I intend to be brief. It owes a huge debt of thanks to the noble Baroness, Lady Miller, for having persistently come back with her amendments on this absurd clause, which, as the noble Lord who has just spoken said, does not fit in. “Cuckoo in the nest” is a polite way of putting it. The clause does not fit into the Bill at all and makes one wonder why on earth the Government ever included it.
If the noble Baroness were to test the opinion of the House, we, the official Opposition, would support her because she is clearly right. Everyone who has spoken on the substance of these amendments has said that the current clause is unsatisfactory, wrong and completely unnecessary. Why is it there? There is no need for it to be there in terms of criminal offence. We have heard from the noble Lord, Lord Elystan-Morgan, and others that legislation already exists that covers the point completely. The clause is there to placate the right-wing press and right-wing prejudice. That is something that the House should bear very much in mind when considering this issue.
The Law Society, the Bar Council, ACPO and the Metropolitan Police—all those groups who have had the courage to speak out, as has the noble Baroness against the clause—are not exactly groups associated with squatters. They are independent, able groups that have come to a view about a brand-new criminal offence that is planned. Unless we do something about it this evening, it will almost certainly become law comparatively shortly.
The irony of our proceedings is that if the noble Baroness were to test the opinion of the House this evening, it would very likely be her own side who made sure that she did not win.
Baroness Northover
My Lords, at Report, I explained the role of the new squatting offence in giving greater protection to owners and occupiers of residential property who encounter squatters living in their properties. Various noble Lords have asked whether that is needed. Interestingly, only yesterday I received a letter from the deputy leader of the London Borough of Redbridge. He states:
“In one recent case in Ilford, a house owned by someone who had died became a squat during the eighteen months it was taking for lawyers to resolve her estate. In a second case a homeowner was no longer able to manage their own affairs and had been taken into care. In neither case was there an ‘owner’ able … to address the problem”.
The noble Lord is quite right to say that there is protection for a level of squatting, but, as I explained at Report and put in a letter, so I will not go into it again, the provision covers a number of additional areas where it is difficult to deal with squatters.
I know that many noble Lords, especially my noble friend Lady Miller, are concerned about the impact that a new offence might have on vulnerable people who squat. I thank my noble friend for meeting me last week, and my noble friend and my noble friend Lady Hamwee for meeting my honourable friend Crispin Blunt, my noble friend Lord McNally and me earlier today. Then and at the earlier meeting, my noble friend Lady Miller expressed concern about the possibility of a rise in demand for local authority homelessness services when the new offence comes into force.
We have already given assurances on the Floor of the House that we will work closely with the Department for Communities and Local Government to liaise with local authorities and the enforcement agencies prior to commencement to ensure that they are aware of the new offence. That is extremely important. We take very seriously mitigating any problems and we share my noble friend’s concern about the welfare of vulnerable people. However, allowing squatting to continue, sometimes in dangerous and unhealthy premises, cannot be the answer. Instead, we intend to continue to work with other departments, local authorities and homelessness services to ensure that vulnerable people are given the help and support they need to find alternative forms of accommodation.
Of course, as the noble Baroness, Lady Lister, emphasised, a number of those in that situation are suffering from mental or other problems. We have an obligation to them, as vulnerable members of society, to be properly housed. In squats, they have no protection. That cannot be right. The Government have already demonstrated our commitment to preventing homelessness by maintaining investment, with £400 million available over the next four years. We recognise the issues that single homeless people, in particular, face, and we are prioritising improvements in the help that they receive. The ministerial working group on homelessness has for the first time pledged that no one should spend more than one night out on our streets, supported by the new £20 million homelessness transition fund. The working group will publish its second report on preventing homelessness more broadly later in the spring.
(1A) An order under this section bringing into force sections 46 and 48 may not be made until the Lord Chancellor has laid before both Houses of Parliament a statement outlining the proposed arrangements for insolvency proceedings in the light of the changes made by Part 2”
Lord Bach
My Lords, I will be as brief as I can with this amendment. This is the third time that the issue has come before the House. The names put to the amendment on the first occasion were those of the noble and learned Lord, Lord Mackay of Clashfern—who made a very powerful speech—the noble Lord, Lord Thomas of Gresford, and mine. On Report it was just my name and that of the noble Lord, Lord Thomas of Gresford, and he made a very powerful speech. Now it is down to one, and I intend simply to ask the Minister some questions.
The Minister will recall that, on Report, he stated that the Government accepted that “insolvency proceedings are untypical” and—stand apart as they are—that they are,
“one of the few areas where CFAs sometimes work to the advantage of government departments”,
and creditors generally. Despite that, and despite what I would argue are clear arguments in favour of it, the Government have decided against “a carve-out” for insolvency. The Minister announced that there has been,
“agreement across government, in respect of insolvency proceedings”,
and,
“that new ways will be implemented to deal with these cases without recoverable success fees and insurance premiums”.—[Official Report, 14/3/12; col. 358.]
The insolvency profession has apparently not been involved in any discussions with the Government about this new way of approaching insolvency proceedings and is concerned that the Ministry of Justice and HMRC may have decided that a contingency legal aid fund could be set up for insolvency cases.
My questions to the Minister are as follows. First, what are the Government planning with regard to insolvency proceedings and—to ask the same question as the noble Lord, Lord Thomas, asked on Report—when will this be implemented? Is it indeed a contingency legal aid fund, or is it not? Secondly, if the Government are not going to exempt insolvency proceedings, will they agree to carry out a proper impact assessment to determine the impact that this will have on the taxpayer and business community? Thirdly, have the Government consulted the insolvency profession on how this might work in practice? Fourthly, will this measure help safeguard returns not just for HMRC but for private businesses as well? Fifthly, will this measure act as a fraud deterrent, as the current system does? Sixthly, if this new way does not work, what protections will the Government put in place to safeguard returns to HMRC and businesses? Could there be an exemption, for example, further down the line? Lastly, can the Minister assure the House that the Government will consult the insolvency profession on the details of these proposals? Those are the questions that I would like answered. I beg to move.
Lord McNally
My Lords, as I indicated on Report, we have reached agreement across government in respect of insolvency proceedings. In future these cases will need to proceed without recoverable success fees and insurance premiums. Alternative ways will be developed in time to deal with these important cases. We are working on a programme for implementing Part 2 of the Bill, and the details relating to insolvency proceedings will be set out in due course, before implementation. Insolvency cases will need to proceed without recoverable success fees and insurance premiums in the future. The impact of the Government’s CFA changes on those affected will depend on a number of unknown factors, including the volume of cases pursued in future, the number of cases which win, the levels of success fees and ATE insurance premiums negotiated, and the recoveries made in those cases. The Government will work with HMRC and others to further assess the impact of our changes. Policy discussions within government continue all the time, and remain confidential until the policy is agreed and announced. I urge the noble Lord to withdraw his amendment.
Lord Bach
Of course I am going to withdraw my amendment this evening, and I understand that the Minister could not answer all the detailed questions that I put to him just a few minutes ago. I would be grateful if he would be good enough to get his officials to write to me, through him, with the replies that he was not able to give tonight.
Lord McNally
To clarify, my Lords, we will engage as well with insolvency practitioners.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Bach Excerpts(12 years, 8 months ago)
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Lord Phillips of Sudbury
My Lords, briefly, I support every word of the introduction by the noble Lord, Lord Pannick, of this amendment. On behalf of the Solicitors Pro Bono Group, which is sometimes called LawWorks, of which I am founder and president, I wholeheartedly applaud this amendment to Section 194, which can only be beneficial to pro bono.
Lord Bach
My Lords, we congratulate the noble Lord, Lord Pannick, from these Benches. I thank him very much for his well deserved tribute to my noble and learned friend Lord Goldsmith. I have to say that I felt a slight tremor of envy when I saw this amendment on the Marshalled List. I have tried throughout the Bill to put forward an amendment that might have the name of the noble Lord, Lord McNally, attached to it, but have failed miserably. The noble Lord, Lord Pannick, makes one attempt and it succeeds.
Lord McNally
My Lords, I will explain. The original amendment by the noble Lord, Lord Pannick, did not cut the muster as legal statute. As the noble Lord knows, I have qualifications in this area, so I tweaked it a little, on the basis of my knowledge of part 1 of the relevant material on English legal institutions, to make it fit for purpose. I was glad to do so.
I am also glad to associate myself with the intervention of my noble friend Lord Phillips, who is on a roll today. I commend LawWorks and its encouragement of pro bono work on the part of solicitors, the Access to Justice Foundation and the work of the noble and learned Lord, Lord Goldsmith, in this area. We hope that it will increase the stream of funding available for pro bono work. I have great pleasure in saying that the Government accept this amendment.
Lord Bach
My Lords, I will comment briefly. My noble friend Lord Ponsonby made a good point. The question is whether the Bail Act 1976, which as he said has worked pretty well in a practical way at various levels—although no one would claim that it is perfect—needs to be changed by what appears at first blush to be a rather superficial alteration.
I am concerned about the matters raised by my noble friend, to which I hope the Minister will respond tonight, and about the prospect of a custody test and the expectation that a defendant will be given if he is granted bail on the basis that he will not receive a custodial sentence, because it may become absolutely apparent at the time of sentence, for whatever reason—and anyone who has been in a court knows that the facts sometimes do not emerge until very late on—that although the defendant’s expectation is that he will not get a custodial sentence, the court would not be doing its duty unless it gave him one.
The expectation that someone will have once they have been given bail is that they will not—to use common parlance—go down. In my view that is the wrong way around. Magistrates’ courts or Crown Courts should have the discretion that they enjoyed under the Bail Act 1976 to do what they consider to be right in the circumstances, subject to the terms of the Act. Therefore, my view is that the case for change has not been made, and that what is proposed is very superficial.
Lord McNally
I wonder whether one reason why the Magistrates’ Association found itself alone on this is that most other penal reform organisations welcomed a proposal that will prevent people being sent to jail. One of the big arguments that we have had about the inexorable rise in our prison population over recent decades is over whether as a society we are too quick to send people to jail. The no real prospect of custody test simply asks, “If you are not going to imprison a defendant if he is convicted, why should you be able to do so before he has been tried?”.
The noble Lord, Lord Ponsonby, tabled amendments that would remove the no real prospect of custody test from some, although not all, of the places in Schedule 11 where it appears. Amendment 152JA would remove the amendment to Section 7 of the Bail Act, which applies to the test to bailed defendants who have been arrested for absconding or breaking their bail conditions. Amendment 152JD would remove the amendment that applies the test to defendants who have committed offences that merit summary imprisonment. However, for some reason the paragraph in Schedule 11 that introduces the no real prospect test for indictable offences is left undisturbed. Amendment 152DA removes the definition of custodial sentences that is relevant to the no real prospect test, but Amendment 152JB appears to remove a consequential amendment that is not directly related to the test.
The noble Lord spoke of the risks to the safety of the public, but how much of a risk is a defendant for whom it can be said that there is no real prospect of custody? We also heard about intimidation. However, as we mentioned, intimidating witnesses is an offence in its own right that is not only imprisonable but likely to result in a custodial sentence. A defendant who is not facing custody for their original offence would be foolish to put themselves at risk of receiving a far more serious sentence by trying to interfere with a witness.
We recognise that special considerations may apply where the circumstances of the offence suggest that there may be a risk of domestic violence. That is why we have included an exception designed to protect those who might be vulnerable in this way. This exception in new paragraph 15 of Schedule 11 would in fact be removed by Amendment 152JC. I do not understand why.
The noble Lord asked me a number of specific questions about the August riots, curfews and the need for sufficient information to be given. It would be fun for me to try to reel off answers from the Dispatch Box, but it would be better, and certainly safer for me, if I wrote to the noble Lord and made that reply available in the Library of the House. He can then contemplate what he will do at Third Reading.
I am not sure that the Magistrates’ Association is on the right path here. We think this is a sensible proposal for keeping people out of prison when it is not strictly necessary for them to be there. I will try to give the noble Lord answers to his questions, but in the mean time I ask him to withdraw his amendments.
Lord Judd
My Lords, it takes a good deal of cheek for me, as a lay man, to come in after three speeches like that. All I can say is that in the society in which I want to live, no matter how heinous or terrible the crime that has been committed—clearly, these crimes are about terrible things that have happened—that society should be based on the principle of hope of redemption and hope that even the worst offender can become a better and decent person, otherwise it has a very negative culture that undermines a lot more than simply the issue of the prisoner himself. It is about the values and self-confidence of society as a whole. It is high time that this situation was put right. I am very privileged as a lay man to support these well qualified views that we have just heard. I hope that the Minister will take them seriously.
Lord Bach
My Lords, I can be very brief because the speeches that have been made set out the case very well indeed. Proper caution has been taken in the way in which the amendment has been worded. We all know that the people whom we are talking about have committed the most terrible offences and in many cases—in practically every case, I suggest—it may well be, given the caution included in the wording of the proposed new clause, that these people will stay in prison for the rest of their lives. All that the noble and learned Lord is asking, as a matter of principle, is that for anyone after they have served—this is the caution— 30 years of a sentence,
“it shall be the duty of the Secretary of State, after consulting the Lord Chief Justice”—
of the day, presumably—
“and the trial judge if available, to refer the case to the Parole Board”.
Surely we have trust and faith in the Parole Board. The Parole Board has to be satisfied that,
“it is no longer necessary for the protection of the public that the prisoner should be confined, and … that in all the circumstances the release of the prisoner on licence would be in the interests of justice”.
My argument is that the Parole Board has to make hard findings in any case, particularly in cases of this kind. Even if the Parole Board is satisfied on these matters, the amendment says only that it “may direct his release under this section”.
The amendment is extremely cautious, but it is humane, in the way that has been described, for people who sometimes may seem not to deserve the protection of a humane state. However, we live in one, and surely the point of the penal policy is for it to be humane when it can be.
I listened carefully to what the Minister said in response to this matter in Committee and it seemed to me then that the Government’s real case is—I put it crudely—that the Daily Mail would not like it. If that is really the level of the argument that the Minister is going to put again today, it is quite unsatisfactory for a matter of principle of this kind. I hope that, if the Minister opposes the amendment, he will find a better argument than that.
Lord McNally
My Lords, the better argument is that if I accepted the amendment, the Labour Party would, as it has done on most law and order issues over the past 20 years, try to outbid the hard right to the right. If the noble Lord is announcing a new Labour Party policy on this issue, I shall give way. No, he is not, so let us not go too far down that road.
I acknowledge that this is a cautious amendment. We have heard from some very distinguished and learned Members of the House and I shall not try to match them in legal skills. However, I have been around politics for quite a few years and, in many ways, one has to make political judgments. If we had been debating this in the 1960s along with Sydney Silverman or in the 1970s with Roy Jenkins, we might have found a political atmosphere in which to discuss these issues. Sadly, things have moved on since then and if you are a legal reformer like me you try to make progress where you can.
Part 3 of the Bill carries us forward significantly in two areas of legal reform: reform of IPPs, which we will be discussing later, and the Rehabilitation of Offenders Act. I believe that those are worthwhile measures. I do not think that we are in a position at the moment to move as far as this amendment suggests, cautious though that may be in rational terms. Just as there are passionate arguments about the possibility of ultimate rehabilitation for even the most dangerous offenders, there are equally passionate arguments that there are some prisoners who should never be released under any circumstances. Both views were reflected in the debate in Committee. I do not think that we are in a position—never mind the opinion of the other place—to carry public opinion with us on this matter.
Lord Sharkey
My Lords, I will speak briefly to this amendment. As your Lordships will recall, there is a provision in the Protection of Freedoms Bill which will, when it is enacted, allow all those convicted of homosexual acts subsequently decriminalised to apply to the Secretary of State to have their convictions disregarded. This provision was widely welcomed in all parts of your Lordships’ House. According to an estimate provided by the House of Commons Library, since the relevant laws came into force in 1885, 75,000 men have been convicted of such now-decriminalised offences. Of those 75,000 men, it is estimated that 16,000 are still living. The Protection of Freedoms Bill will allow these men to apply to have their convictions disregarded; this will provide real help and comfort to them and their families, relatives, friends and loved ones. It will help to put right a serious historical injustice.
As things stand, however, this comfort and rehabilitation will not be available to families, relatives, friends and loved ones of those convicted under these repealed statutes and who have since died. Our amendment simply proposes equal rehabilitation and straightforward equality of treatment for all those convicted under the repealed laws. Under the provisions of the amendment, the relatives of those now convicted under the repealed laws but now deceased would be able to apply to have the convictions disregarded in exactly the same way as those who are still living.
We believe that this very simple extension is fair and right in principle. It would provide some comfort and closure for the families, relatives, friends and loved ones of those who have been convicted but are not able to apply for a disregard for themselves. We believe that all those convicted under these repealed and cruel laws should have an equal opportunity for rehabilitation. The amendment would go a small way towards making amends to the many thousands of men who were cruelly and unjustly persecuted simply for being gay.
One of the men who falls into this category is Alan Turing. This is the year of the centenary of his birth, and the Royal Mail is to issue a commemorative stamp in his honour. I think that everyone would acknowledge that Turing’s work at Bletchley Park on cracking the Enigma code contributed greatly to our efforts in the last world war and that Turing is, of course, the father of modern computer science. I know that my noble friend the Minister is well aware of the injustice of Turing’s treatment and, by extension, is well aware of the injustice in the treatment of all gay men similarly convicted and punished.
In answer to my Question for Written Answer in February, the noble Lord, Lord McNally, said:
“It is tragic that Alan Turing was convicted of an offence which now seems both cruel and absurd—particularly poignant given his outstanding contribution to the war effort”.—[Official Report, 2/2/12; col. WA 342.]
Those sentiments echo those of the then Prime Minister, Gordon Brown, who, in writing in the Daily Telegraph in September 2009, said of Turing:
“The debt of gratitude he is owed makes it all the more horrifying, therefore, that he was treated so inhumanely. He was in effect tried for being gay”.
He continued by saying:
“I am pleased to have the chance to say how deeply sorry I and we all are for what happened to him”.
Alan and the many thousands of other gay men who were convicted as he was convicted, under homophobic laws, were treated terribly. These many thousands of gay men were treated terribly, and our amendment would help to put some of that right. I hope that my noble friend will be able to give this amendment sympathetic consideration and I beg to move.
Lord Bach
My Lords, from the opposition Front Bench I thank the noble Lord for the impressive way in which he moved the amendment, and an impressive amendment it is too. He could not have put the case better. We look forward to hearing what the Minister has to say in reply, and we would be very surprised if it is not sympathetic.
Baroness Northover
My Lords, I, too, thank my noble friend Lord Sharkey for putting his case, and indeed I have deep sympathy for it. The amendment appears to extend the provisions contained in the Protection of Freedoms Bill so that they are also available to those who are no longer alive. The provisions in that Bill allow a person to apply to have his historic convictions for consensual gay sex with over-16 year-olds deleted from official records, the effect of which is that those convictions will no longer affect that person’s life or career. This was a commitment made in our programme for government. However, the objective is not to rewrite history. The provision in the Protection of Freedoms Bill does not state that the person was wrongfully convicted, nor does it pardon them. It is just that they can now be treated for all purposes in law as someone who was not convicted of those offences.
The position in relation to those who have been convicted of this type of offence and have since died is different. I understand the strength of feeling about such convictions, and the cruelty of the laws under which they were imposed, and I know that this is particularly true in relation to the conviction of Dr Alan Turing. As Gordon Brown said in 2009, while we cannot put the clock back, we recognise that his treatment was utterly unfair and we are all deeply sorry for what happened to him. He deserved so much better. That said, I do not believe that the provisions for disregarding convictions, which are concerned with the practical consequences of conviction, are an appropriate means of putting right the wrongs done to people who are no longer alive to suffer those consequences. As my noble friend himself points out, the numbers involved are potentially very large. I understand his aim, but I am afraid that we cannot agree to his amendment. I realise that he will be disappointed, but I am afraid that I must invite him to withdraw his amendment.
Lord Bach
My Lords, I congratulate the noble Baroness, Lady Miller, on raising yet again this completely unnecessary clause towards the end of this long Bill. It is well described as unjust, unnecessary and, indeed, unaffordable. I shall come to those in a moment. We all know that homelessness is on the rise. Since we last debated the issue in Committee, figures show that in London the rise in the number of those who are sleeping on the streets is higher than it was 12 months ago and 24 months ago. That surely must be of concern to us. Of course we must make a distinction between those who are lifestyle squatters and those who are forced into squatting. Some 40 per cent of homeless people live in squats because they prefer that to living on the street. This is about housing, as the noble Baroness said in moving the amendment. It should be treated as a housing issue, not a criminal justice issue.
The reason it does not have to be treated as a criminal justice issue is because it is quite clear that the current law is comprehensive and effective. According to the Law Society:
“The proposals in this consultation are based on misunderstandings by the media of the scale of the problem and a misunderstanding of the current law”.
The noble Baroness, Lady Hamwee, mentioned the Criminal Law Act 1977 and its powers to deal with this menace when it really is a menace. I ask the noble Baroness, Lady Northover: what is the need for a new criminal offence as far as this is concerned?
One of the justifiable criticisms of the last Government is that they too easily brought in new criminal offences—
Lord Bach
I am very glad to have the support of the noble Lord, Lord Oakeshott. But one of the principles of this Government, as I understood, was that it would not bring in this kind of new criminal legislation unless it was really necessary to do so. What, apart from a hostile media, makes it necessary for the Government to bring in this piece of new criminal legislation?
As far as unaffordability is concerned—and this is a matter I would like the noble Baroness to deal with—a methodology and use of government data endorsed, as I understand it, by a range of academics and legal practitioners has been used to calculate that this clause could cost £790 million to the taxpayer over the next five years. This is far in excess of the £350 million that the whole Bill is supposed to save, although some of us think that is a completely false figure, particularly as far as Part 1 is concerned.
The Government’s impact assessment estimates the costs as £25 million over five years. No attempt, it seems, has been made to account for the costs of rehousing and rehabilitating those who currently squat, and estimates of the costs to the criminal justice system are far too low. The organisation ALTER, which is Action for Land Taxation and Economic Reform, says:
“This change is contrary to the interests of UK taxpayers. It would provide a valuable state funded benefit to wealthy tax avoiders”.
One of the vice-presidents of ALTER is the present Deputy Prime Minister.
I am very grateful to the noble Baroness, Lady Miller, for her Amendment 157A, and if she were to ask to vote on it, even at this late hour, we would be happy to support it. We like it particularly because she has kindly taken notice of what was said in debate in Committee last time, and the six months is now 12 months, which seems to me, personally, to be a better timescale for the building being empty. However if, as may happen, she does not press this amendment to a vote, I hope she does not drop this issue. In fact, I am sure she will not, and will do her very best to make sure that it comes back before the Bill moves on and this ridiculous, silly clause becomes the law, and we start to criminalise the vulnerable and homeless, who should not be criminalised.
Baroness Northover
My Lords, my noble friend Lord McNally has explained in previous debates why Clause 136 is important to the Government. If somebody stole a car, a handbag or a phone, most people would expect there to be criminal consequences if the offender were caught. Yet, where squatters deprive a person of their residential property, some do not regard this as a crime. We do not accept that logic. The occupation of other people’s homes causes misery, and squatting in residential property should be a criminal offence.
Baroness Northover
I will come to that in a minute. As I say, occupation of other people’s homes causes misery, and squatting in residential property should be a criminal offence just as the theft of a car would be.
Nor do we agree that squatting is a reasonable answer to homelessness, which is the key point here. In fact it is often dangerous and bad for health, and ideally people should be in mainstream services. We share my noble friend’s concern about homelessness, but squatting is not the answer.
We are therefore proposing a balanced approach: clamping down on the squatting in residential buildings on the one hand, while ensuring that genuinely vulnerable people who might be at risk of squatting or rough sleeping are given the support that they need to find alternative forms of accommodation. We are investing £400 million in homelessness prevention over the next four years, with the homelessness grant being maintained at 2010-11 levels. We also announced in December the first ever £20 million fund to prevent single homelessness. That will help to ensure that single homeless people get the help and advice that they need, and do not have to resort to sleeping on the streets or in squats.
We have also brought together eight government departments through the Ministerial Working Group on Homelessness to tackle the complex causes of homelessness. The group published its first report, Vision to End Rough Sleeping, in July 2011, which sets out joint commitments to tackle homelessness. The working group will publish its second report on preventing homelessness later this spring.
We are also tackling the number of empty homes that often attract anti-social behaviour, vandalism and squatting. We recently announced £70 million of funding to bring more than 5,600 homes back into use as affordable housing. We will announce a further £30 million shortly, including funding for community and voluntary groups.
My noble friend’s Amendment 157A would exempt squatters who occupied buildings that had been empty for a year or more. We believe that that is wrong in principle. We would not accept that after a year of non-use it would be defensible to deprive owners of their other assets such as cars or phones. Moreover, there are many legitimate reasons why a residential building might be left empty for a year or more—for example, when a property is inherited following a death and probate takes some time to be sorted out.
The amendment would also make the offence more difficult to enforce as it would enable squatters facing a charge to argue that the property had been empty for years even if they had no idea whether that was true. Instead of legal arguments turning on the true issue at stake—the criminal occupation of somebody else’s residence—this would muddy the water and put the focus back on the police or the home owner to show how long it had been empty for.
Amendment 157B would remove the definition of “building”, leaving it unclear what “building” in the offence covers and leading to legal arguments on this matter. Amendment 157C would delete the definition of “residential” in Clause 136 and replace it with a new definition. The only residential buildings which would be covered by the offence as a result of the new definition would be those which are used for the purposes set out in class categories C3 and C4 of the Town and Country Planning (Use Classes) Order 1987.
The amendments would introduce confusion and complexity. The advantage of the existing clause is that any structure—permanent or temporary, moveable or immoveable—is covered by the offence if it has been designed or adapted for use as a place to live.
My noble friend’s Amendment 157D would further weaken the offence by exempting squatters who entered a building prior to commencement of the offence. This would clearly not be in the interests of home owners. It would not make sense if an offender who entered a property the day before commencement, for example, could not be convicted if they continued to live in the premises against the wishes of the property owner after the offence commenced.
Amendment 160B suggests that the Secretary of State should report to Parliament prior to commencement on likely costs of the new offence to the criminal justice system and local authorities. We published an impact assessment which included costs to the criminal justice system. The impact assessment also recognised that there might be an impact on local authorities if squatters approached them for support. Requiring the Secretary of State to report further on these issues prior to commencement is therefore not necessary.
I know that when my noble friend met the Parliamentary Under-Secretary of State, Crispin Blunt, one of her main fears was that there would be a surge in applications for social housing in the days following commencement. We have taken my noble friend’s point on board. I can assure her that through the Ministerial Working Group on Homelessness, the Department for Communities and Local Government, the Ministry of Justice and the Home Office will work together to ensure that any local enforcement against squatting is carried out in partnership with local homelessness services to mitigate against an associated increase in rough sleeping.
We will also liaise with local authorities in advance of commencement to ensure that they are aware of the new offence if squatters approach them for help and to remind them of their duties towards homeless people. We will encourage authorities to make use of the good practice advice letter and an additional £20 million of funding to prevent single homelessness, both of which have been developed recently with input from Crisis.
My noble friend Lady Hamwee and the noble Lord, Lord Bach, asked about the current law and why this was not sustained by what was already there. Why the need for a new offence? The current law can be improved so that it does more to deter squatters from entering and occupying a residential building without permission in the first place. We believe that there should be a specific criminal offence that protects people from those who squat in their residential buildings and that this offence should not be limited to cases where a squatter refuses to leave when required to do so. In addition, the offence under Section 7 of the Criminal Law Act 1977 does not protect residential property owners who are not displaced occupiers or protected intending occupiers. Currently, they may need to seek repossession of their properties in the civil courts, which can be time-consuming and expensive. That is why we feel that the law needs to be changed.
Baroness Miller of Chilthorne Domer
I am grateful to the Minister for clarifying the fact that it is still open. Therefore, it is free for me to bring the matter back before your Lordships at Third Reading.
Baroness Miller of Chilthorne Domer
I would be pleased to ask her again, because it is very important before I make a decision on what to do with this amendment.
Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord Campbell of Alloway
My Lords, I will take very little time. I am very concerned about the situation, for all the reasons that were given—and that were put better than I could have put them. I ask only that consideration be given, and an assurance of further consideration, so that this proposal will not simply be cast away in some form of dismissal. That is all I ask for: an assurance that consideration will be given.
Lord Bach
My Lords, I am proud to be associated with the amendment in the names of the noble Baroness, Lady Grey-Thompson, and the noble Lords, Lord Newton and Lord Pannick. The amendment is of the greatest importance, and many people outside the House are following it with exceptional interest.
It is perhaps important to remind the House that the mandatory gateway will apply only to those elements of social welfare law that are still in scope—including, of course, for the moment, welfare benefits because of a decision that the House took last week on an amendment moved by the noble Baroness, Lady Doocey. That is a statement of the obvious, because those areas of social welfare law that the Government intend to take out of scope will be quite irrelevant for these purposes. There is no possibility of legal aid in those cases. In effect, the Government are saying that people with those legal problems will have to fend for themselves if they have no money. That is a pretty shocking state of affairs.
We have had a short but powerful debate in this House today—and we had a very powerful one almost three months ago at the end of the first day of Committee, on 20 December 2011. Very powerful speeches were made. I have in mind that of the noble Lord, Lord Shipley, whose final words were:
“There are real dangers that some of those most in need of help will fail to secure it through a mandatory telephone gateway”.—[Official Report, 20/12/11; col. 1764.]
The noble Lord, Lord Phillips of Sudbury, made yet another powerful speech today. The one he made on that occasion was powerful, too. He said:
“If it is mandatory for those seeking assistance to go through a telephone gateway, we will cast adrift a significant minority of our fellow citizens who will never use a telephone gateway for the sorts of problems with which they are confronted”.—[Official Report, 20/12/11; col. 1766.]
The Minister says from a sedentary position that there is no evidence of that. What an unbelievable response. One only has to know from human nature—from living in the real world rather than the world of Whitehall—that that is how people are. It is about time that the Government started taking people as they are rather than as they want them to be. There were powerful speeches also from the Liberal Democrat Benches on that occasion.
I made the point that it was nearly three months ago because we have had no hint of a concession in all that time. We know from a letter that a telephone call will not be free, as was suggested at the time. There will be a cost to the client who has to make the call. It will not be huge, but it will be there—and that is another factor that will apply. It is simply common sense that to have a mandatory gateway for all clients seeking legal advice is absolutely inflexible and will almost certainly lead to a number of people who clearly should be helped receiving no help at all. It will lead to injustice after injustice.
The Bolton CAB is a large CAB which covers all these fields and has a legal aid contract. It runs an advice surgery from time to time. Yesterday it tried an experiment. Every client who came in had their tale told in general terms by way of a tweet, in other words on Twitter, so that one could read each one of these cases during the course of the morning and afternoon while this surgery lasted. One could see from reading these how the world of a busy CAB or law centre or advice centre actually worked in practice. There were 126 clients who sought legal advice on social welfare issues and they covered practically everything that you could think of. I have no doubt that some of those clients were well able to make a telephone call and start proceedings in that particular way, and I am an undisguised fan of telephone advice when it is appropriate. But are the Government really saying, as I suspect they are, that all 126 of those clients would have been able to do this? Are they saying it is not highly advantageous to have face-to-face contact in some cases? And are they really saying that someone who turned up to a CAB should be turned away and told to call a hotline, as will happen unless this amendment is passed? Can you think of a more bureaucratic, fussy and less efficient system and one that is less reflective of the way people actually live their daily lives? I would argue that it is an absurd proposition which is un-British in the sense that it is one-size-fits-all and too dirigiste and inflexible an approach.
Sometimes Governments just get things completely wrong and Parliament has some sort of duty to say so. It actually helps Governments in the long run if they do not charge off in the wrong direction. Here is a short story. I remember when I was a Minister sitting where the Minister is, in the same department, putting forward some foolish, to put it mildly, proposition and then seeing, when the vote was called, many of my own supporters walking past in order to vote in the Opposition’s Lobby and losing the vote for the Government by a large amount. It was the right thing for them to do. Actually, there was so many of them that none of them could be picked out and dealt with later. There is an advantage in numbers sometimes. And they need not even be afraid on this occasion of the noble Lord, the Deputy Chief Whip of the House. Frankly, I would argue that this is one of those instances. If the Government are defeated on this issue and if the Liberal Democrats could just bring themselves for once to vote against the Government, the world would not stop, the Government would not fall, but an enormous mistake might be averted and Parliament would have done the right thing.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, in case my colleagues on the Liberal Democrat Benches missed it, that was a subtle attempt by the noble Lord, Lord Bach, to woo them into the Aye Lobby. All that I can say in this technological age is, just think what the noble Lord, Lord Bassam, will be tweeting about them if they do not do as he suggests.
Throughout this Bill it has been very difficult to reply to a debate, trying to deal with very narrow, specific terms, when the noble Lord, Lord Bach, constantly makes his case in the broadest terms. We are not forcing everybody through a telephone gateway; we are doing a specific and very narrowly drawn test. I ask noble Lords to make their decision on the facts.
We make jokes about this House and its otherworldliness, but we are living in the most communications-savvy generation in our history. I do not just mean teenagers and young people; I mean silver surfers and people right through. They buy on eBay; they use telephones and new technology in a very broad way. It is patronising to assume that people cannot make use of it. Of course, we are aware that there may be exceptions. That is why, when noble Lords come to vote, it would be worth listening carefully to what we actually propose to do and what safeguards we are putting in place, rather than what I would call the broad-brush approach adopted by the noble Lord, Lord Bach.
There will be safeguards. Face-to-face advice will remain an option in the exceptional circumstances when there are callers for whom adaptations cannot be made to ensure that there is an appropriate level of service. Our starting point is that telephone advice is effective and efficient. The Community Legal Advice helpline figures for 2010-11 show that more than half a million calls were made to the service. The 2010 survey of clients who subsequently received advice from the specialist service showed that 90 per cent of clients found the advice given helpful.
The benefits of electronic services generally and the Community Legal Advice helpline service in particular are twofold. The first benefit is access. These services particularly help people with specific needs who find it difficult to get to face-to-face services; for example, those living in remote areas or who have a physical disability. Callers can access the Community Legal Advice helpline service at a time and place convenient to them. The second benefit is quality. Contrary to the assumption that face-to-face advice is always better, specialist telephone advice providers are currently required to meet higher quality standards than their face-to-face counterparts. For both these reasons, the Government believe that the Community Legal Advice helpline should be the mandatory gateway for applying for legal aid.
However, I can confirm today that the Government have listened to concerns and will not proceed with the proposal to include community care as one of the initial areas of law for which clients will be required to use the mandatory single gateway. We acknowledge particular challenges in delivering a quality service to community care clients. The Government have always recognised that this is a complex area of law and said in the impact assessment that around half of clients in this area would require face-to-face meetings with legal representatives even where only legal help is being provided.
We have heard since from stakeholders that individuals’ circumstances can be so unique that face-to-face meetings are frequently required to deal with problems in this area even where only legal help is being provided. We have accepted that the numbers of community care clients requiring face-to-face advice is in fact likely to be more than our original estimates, and we are therefore not proceeding with the proposal to include community care as one of the initial areas of law for which clients will be required to use the mandatory single gateway.
Lord Bach
I must be under a misapprehension. I thought that this group was about the amendments that the noble Lord, Lord Alton, had so succinctly moved and about my own amendments to which I also hope to speak, perhaps even more succinctly in due course. I am listening carefully to the noble Lord, as I always do, but it seems that his amendments are part of the group that begins with his Amendment 132B. I am surprised that the noble Lord has not waited to speak to his group as it appears on the Marshalled List. Perhaps he can explain to the House why he is doing this.
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 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.
Lord Bach
My Lords, we have had a powerful and emotive debate and I want to be very brief because the House wants to hear from the Minister, who is obviously sympathetic, as was demonstrated by what has been said about his visits made and meetings with noble Lords on this issue. I am proud to support the amendment in the name of the noble Lord, Lord Alton of Liverpool, also supported by the noble Lord, Lord Avebury. I am delighted that the noble Lord, Lord Alton, supports my amendments in this group that deal with other industrial diseases—Amendments 132AB, 132D and 141ZB. In response to the noble Lord, Lord Thomas of Gresford, I say that if he thinks that other diseases are also important to deal with, he should look carefully at the amendments I may move in due course.
I shall cut down appreciably on what I wanted to say. We know that asbestosis is not the only problem, but speeches have been made in this debate by experts who suggest that it is a problem out on its own that should be considered separately, as it will be this evening. It is because asbestosis is not the only problem that I tabled my amendment that deals with other serious industrial diseases. I do not need to go through the types of diseases that I am talking about, but they are the by-products of hard work. All these are inflicted on hard-working people who have spent their lives contributing to our society and economy, often in industries that no longer exist, and in heavy industry, manufacturing and public services. As has been said by many noble Lords, many of these diseases do not manifest themselves for years and are the legacy of coal mining, our proud tradition of manufacturing, steel making and other professions.
“Exception for industrial disease 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 a disease, condition or illness (whether or not resulting in death) resulting from any breach of duty owed by an employer to an employee.”
Lord Bach
I am happy to put my name to this amendment with the noble Lord, Lord Thomas of Gresford. I cannot think of anything he said that is not right on this. It seems an open-and-shut case—as it did in Committee, I have to say, when the noble and learned Lord, Lord Mackay of Clashfern, made the first speech in the debate on this subject. I have nothing to add to what the noble Lord, Lord Thomas of Gresford, said: he made the case. If the Government are to reject this, I very much hope that it will come back for final decision at Third Reading.
Lord McNally
My Lords, the Government accept that insolvency proceedings are untypical of our reforms to CFAs in an important respect. Across many areas of law—for example, in clinical negligence cases against the NHS—the Government are on the sharp end of our dysfunctional CFA regime as it is the defendants bringing cases against claimants, sometimes speculatively. However, as the noble Lord, Lord Thomas, has said, insolvency stands apart because it is one of the few areas where CFAs sometimes work to the advantage of government departments; for example where an insolvency practitioner recovers moneys for the taxpayer and other creditors. So if these amendments were to be accepted, they would effectively constitute a carve-out for the key place where CFAs can be useful to the Government—this at a time when we are asking everyone else to adjust to a new, more sensible regime.
We debated insolvency proceedings in Committee and I said then that we were considering this issue within government. I can report that we have thought about it carefully, but we do not agree that an amendment along these lines is the right way forward. I do not believe it is acceptable to say that CFA reform is good for everyone else, but is not good for the Government.
Lord Bach
I am sorry to interrupt, but it is not so much that this is good for the Government—it is good for the taxpayer. Surely that should be one of the main considerations. If it is good for the Government, that is fine; but if it is the taxpayer who will benefit, because creditors get their money, as it were—the HMRC gets its money by taking advantage of the amendment—I cannot see why the Government are resisting this.
Lord McNally
As the noble Lord will know, the interests of the taxpayer and the Government are synonymous, because one is working for the other.
Lord McNally
It is far too late in the evening for such repartee. As I say, we have reached agreement across government, in respect of insolvency proceedings, that new ways will be implemented to deal with these cases without recoverable success fees and insurance premiums. We are working on a programme of implementation and we will set out the details in due course.
As with other areas now subject to a new CFA regime, the effect will be that claims occur at more proportionate cost, as claimants will have a stake in the legal costs being incurred on their behalf. We believe that the exemption proposed by the amendments in respect of insolvency proceedings is unnecessary and would breach the basic rationale of our reform policy. I therefore urge my noble friend to withdraw his amendment.
Lord McNally
My Lords, the government amendments in this group are minor and technical and will ensure that changes to the recoverability of success fees and the insurance element will apply consistently to all conditional fee agreements, including collective CFAs. I wrote to all Peers last week about the amendment. A copy of the letter was placed in the Library of the House. I beg to move.
Lord Bach
My Lords, I am not getting to my feet just to be difficult. When the Minister moves government amendments and describes them as technical, usually I sit absolutely still in my place. However, on this occasion I have a couple of questions. If he does not know the answers tonight, he is welcome to write to me and to other noble Lords. Will he confirm that the effect of Amendment 135A will be that a success fee as part of a CFA under which work for the claimant commenced before the Bill’s commencement day will still be recoverable from the defendant on exactly the same basis as it is now?
The second question is similar but concerns collective CFAs. Will the Minister confirm that the effect of the amendment will be that a success fee as part of a collective CFA under which work for an individual claimant commenced before the Bill’s commencement day will still be recoverable from the defendant on the same basis as it is now? I will not object to the amendment being agreed, but I would be grateful if in due course I could have answers to those questions.
Lord McNally
My Lords, I am sorely tempted to show that after months of total immersion in the Bill I can leap to the Dispatch Box and give the noble Lord a detailed response. However, as he knows, I did only one paper on English legal institutions in part 1 of my degree. Therefore, I will not pretend that I can give him a definitive answer. However, I firmly promise that a letter will go to him and into the Library of the House in response to those questions.
Lord McNally
My Lords, we have reached the stage of the evening when the noble Lord, Lord Pannick, not only asks the questions but gives the answers as well—cutting out the middleman, which is me.
I take note of his suggestion. As I do with all our deliberations, I will report back to the Lord Chancellor on this. I would have thought that his experience of the willingness of your Lordships to make exceptions, one after another after another, will make him think that giving such flexibility in the Bill will only encourage a constant stream of exceptions coming to his door.
We have thought very hard about this. We think that the architecture is right. We think that by going back to the system as it broadly was under the noble and learned Lord, Lord Mackay, repairs the damage that was done by the previous Administration—with the best of good will. I will report, and I will even tell the Lord Chancellor that it was an idea of the noble Lord, Lord Pannick, which I am sure will produce the appropriate response from the Lord Chancellor.
Lord McNally
Amendment 139C, in the name of the noble Lord, Lord Beecham, seeks to amend Clause 45 to require the Lord Chancellor to make regulations to allow the recovery of ATE insurance premiums taken out to cover the risk of paying one’s own disbursements within the relevant pre-action protocol period. As I have already made clear, the Government’s position on ATE insurance is that it should no longer be recoverable from the losing party. Amendment 139C goes against the Government’s reform and we will strongly resist it.
In the same vein, I cannot accept Amendments 136A to 136D, which would retain recoverability of success fees for judicial review, employers’ liability claims, professional negligence and clinical negligence. I have touched on some of these issues before and I do not intend to detain noble Lords further by going into the details of each particular area or trying to assess which litigants should be classed as more deserving than others. As I have said, it would be invidious and unfair to set out exceptions for some claimants and not for others, and we do not intend to do so.
I urge the noble Lord not to press the amendments.
Lord Thomas of Gresford
My Lords, the amendment raises the issue of third party litigation funding. I made a lengthy contribution in Committee which I do not propose to repeat. The basis of the amendment is to bring under government control third party litigation funding. Your Lordships may recall that a voluntary code has been entered into by those who are concerned in third party litigation funding and I suggested in Committee, and I repeat, that it is far better that the Lord Chancellor should take a look at this and bring in something along the lines of what I have suggested in my amendment. I beg to move.
Lord McNally
My Lords, I have said before that we are grateful to my noble friend for raising this issue. It is a possible problem and a number of noble and learned Lords and lawyers outside have given warning signals. At the moment we are looking at how voluntary regulation is working in the area. However, my right honourable friend the Lord Chancellor is very aware of the situation and is keeping it under review. We do not think that statutory regulation through this Bill is either the right place or the right time but we welcome the fact that my noble friend has put this issue on the political radar. Both lawyers and legislators will have to follow the matter closely to see whether we will need to return to it at some future date. In the mean time, I ask my noble friend to withdraw the amendment.
Lord Thomas of Gresford
This amendment concerns the third party insurance company, which approaches a prospective claimant and offers to settle without there being adequate medical evidence, without the claimant being informed that he has a right to legal advice and without the offer being in full and final settlement of the cause of action. In Committee, I hesitated to suggest that it should be a criminal offence, and suggested that the best way of dealing with the matter should be that such settlements would be void, which would enable a claimant who subsequently discovered that he was in a far worse condition than he had thought to reopen the matter and to claim damages for the injuries that he received. That is a practice that has crept in. It means that people accept settlements without proper advice or evidence of what is wrong with them and without a proper calculation of their losses. It seems to me that a lot of people are vulnerable to that type of approach. That is one side of the problem. The other side is that it encourages people with no basis for a claim at all to make one and accept a sum of money that means that, over a large range of cases, the insurance company benefits. That is just as bad as that people should be incited to put forward fraudulent claims.
My noble friend’s answer in Committee was that the FSA rules are sufficient to cover the matters of which I complain. That immediately makes me ask who enforces the FSA rules. What control is there over the employee of a third-party insurance company who, quite clandestinely, makes offers of this sort to settle cases that are perfectly valid and which he knows to be valid? So at this stage I put forward the suggestion that it should be a criminal offence for people to engage in this type of behaviour. That may be going a step further. Perhaps my original concept that the alleged settlement obtained should be void was the right way to go. But certainly there is an abuse going on and I expect the Government to do more than to refer to FSA rules when there is no one to enforce them. I beg to move.
Lord Bach
The Minister would be well advised to give serious consideration to the amendment proposed by the noble Lord, Lord Thomas of Gresford. This is not one that he moved in Committee—he has moved it for the first time today. The House knows that he has become an expert in this field of litigation over the months that he has spoken to me about it. He may well be right that it is no good the Government taking a position that looks like it may take some time to develop. It is something that needs to be done and thought about pretty promptly. Therefore, as far as we can, we support the amendment.
Lord McNally
My Lords, I think it was the noble Lord, Lord Martin, who talked about the proper role of the House of Lords. Although the hour is late, my noble friend Lord Thomas has demonstrated one of the benefits of this House in bringing to the Government’s attention an area where there already is or could be a malpractice that will have to be dealt with. As he explained, this is a practice where an insurer approaches a claimant directly, usually immediately after a road traffic accident, with a view to settling the claim, where an insurer’s own policyholder is at fault in a car accident. As I understand it, claimant representatives refer to this practice as third party capture, whereas defendant representatives call it third party assistance. As I indicated in Committee, I shall continue to refer to this practice as third party contact.
Amendment 142D would make it an offence for an insurer to make such an unsolicited approach to a potential claimant in a personal injury case. The amendment also specifies those requirements which must be met before an insurer may make an offer to settle such a claim. This includes a requirement to obtain adequate medical evidence of injury and to advise the claimant of their right to obtain full legal advice before accepting the offer and making it clear to the claimant that the offer to settle is full and final.
It is unclear what my noble friend means when he says that this practice should be an offence. If he refers to this as being a criminal offence, I do not believe that a criminal sanction is appropriate or proportionate. You would have to prove beyond reasonable doubt that something amounted to an unsolicited approach. As I explained in Committee, the Financial Services Authority regulates the insurance industry and requires insurers to treat their customers fairly at all times and that this covers third party claimants.
Third-party contact does not in itself cause detriment to the consumer and may be to their advantage, as a claim can often be resolved quickly. In addition, this practice can allow insurers to reduce the legal costs associated with handling a claim and this in turn reduces costs for all policyholders. However, I am aware of the concerns around the potential risk of conflict of interest and the need for the claimant to have independent legal advice before any settlement is agreed. This matter was looked at by the FSA in its review of third-party contact during 2009-10 and it did not find conclusive evidence that unrepresented third parties could have achieved higher compensation had they obtained independent legal representation.
Following the FSA’s review, the Association of British Insurers published a code of practice in June 2010. The code contains specific guidance for insurers on contacting claimants. This limits unsolicited contact. For example, and I quote:
“Insurers will not make unsolicited visits to an unrepresented claimant at their current address, including hospitals”.
The code also requires that claimants are informed of their right to seek independent legal advice and other options available for them to resolve their claim.
Most of the issues which this amendment seeks to address in respect of the handling of third-party contact claims are already covered by existing regulation. The FSA rules require that insurers fully inform third party claimants of their legal rights, including to independent legal advice and alternatives to settling directly with the insurer. The Government do not believe it is right or appropriate to introduce further sanctions or regulation in this area, especially when a scheme already exists to monitor insurers’ activities. That said, I can reassure my noble friend that if a serious concern arises in the future in this area—and we will keep it under review—we will not hesitate to take this up with the Treasury and with the FSA.
I am therefore grateful to my noble friend for raising this issue with us, but for the reasons that I have mentioned I hope that he will agree to withdraw the amendment.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Bach Excerpts(12 years, 8 months ago)
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Lord Bach
My Lords, at 29 minutes to seven of the evening, I move my Amendment 74, and it is a great pleasure to do so.
Immigration law is a very complex area of the law, is highly regulated and immigration practitioners need, of course, to be qualified. The giving of general advice by non-legal professionals—for example, by not-for-profit organisations—is prohibited and, indeed, can be a criminal offence unless it comes within the Immigration Service’s Commissioner’s scheme. The point of providing legal aid for immigration matters is not to help fat-cat lawyers and it is not necessarily always to help immigrants themselves, although, of course, it ensures that those fleeing persecution and those wishing to be reunited with their loved ones—their wives and children—are able to do so. The main point of providing legal aid for immigration matters is to ensure that this complex, sensitive and highly regulated system functions. A radically deprofessionalised immigration system would collapse quickly under its own weight within a short period.
Last week in the case of Lamichhane, in the lead judgment in the Court of Appeal, Lord Justice Stanley Burnton referred to an observation of Lord Justice Jackson in the Sapkota case. Lord Justice Jackson’s name has occasionally been heard in this House and will no doubt be heard again in the next few days. Lord Justice Jackson observed that,
“this area of immigration law has now become an impenetrable jungle of intertwined statutory provisions and judicial decisions, with the result that reasonable differences of opinion … are now perfectly possible. There is an acute need for simplification so that both immigrants and immigration officers may have a clearer understanding of their responsibilities and rights.
Lord Justice Stanley Burnton said:
“In my judgment, if anything Lord Justice Jackson understated the problems. I could easily have reached contrary conclusions in this case, and given respectable reasons for doing so. There is an urgent need for a simply-stated and clear codification of statute law on immigration rights, restrictions, administrative procedures and appeals”.
Therefore, legal aid is necessary to ensure justice in an overly complex system.
The Administrative Justice and Tribunals Council responded to the consultation put out by the Ministry of Justice with regard to the forerunner of this Bill, citing this very complexity. The council cannot be attacked in the way that lawyers and others have been attacked as simply being concerned to protect its own self-interest. The AJTC also notes the extraordinary complexity of immigration law and takes issue with the assertion that,
“individuals will generally be able to represent themselves”.
As the consultation document acknowledges, these are cases where important issues arise, including the right to family life. The AJTC says:
“It is essential that appellants are properly advised and prepared before facing a highly complex process with potentially life-changing consequences. As with other areas of administrative justice, immigration raises matters of fundamental concern. The issues faced by appellants may be more important to them than anything else. At the same time, the system is flawed and mistakes are often made by initial decision-makers. Legal aid in immigration is a cost-effective means of correcting systemic injustice. … Removal of legal aid will leave vulnerable people even more prey to unregulated and illegal advisers than they are already”.
I submit that this is pretty powerful stuff which any Government should not easily and comfortably reject.
Another point worth making is that the Government envisage a system in which immigration law is not covered but asylum cases are. Can anyone see the possible end result of such a system? Spurious asylum case after spurious asylum case will flood into the immigration and tribunal system. In my experience immigrants do not simply choose to come to the UK in the same way as one makes a consumer choice. Refugees come here for various reasons; for example, to escape tyranny and oppression. They come to this country as it represents a beacon of freedom, tolerance and justice. They miss their homes and their families, whether the latter are in India, Australia, the United States, Nigeria or anywhere else in the world. This House accepts that immigrants to the United Kingdom are not a drain on the United Kingdom, despite what some would have us believe. Every economic study shows the net benefit they bring to our country. Indeed, they and their descendants are now part of the fabric, and a very valued part.
Anyone who watched the television coverage of Her Majesty the Queen’s visit to Leicester last week may have seen the same scene that I did, which showed an Asian woman being interviewed while waving a small Union Jack. She was asked why she was waving the Union Jack and had come to see the Queen. She said quite simply, “Because this is my country and she is my Queen”. I do not think one could get a better example of the way in which immigration has benefited this country rather than the opposite.
By making the system less fair and by making it nearly impossible to reunite families and allow people the right to stay, we will probably create a chaotic system. The wrong people will end up staying here for years waiting for their hearings; the right people will end up in limbo, when they might be contributing to our nation’s success. Worse still, the impact on women and girls will be severe. They will face an immigration system without receiving any advice or assistance. In the measure’s current form there will be no provision for legal aid for trafficked victims to resolve an immigration problem other than to make an asylum application. They will not be able to obtain advice on the implications of being referred to the national referral mechanism. As such, their informed consent for referral would be questionable. Nor will they be able to challenge decisions on whether or not they are victims of trafficking.
Last week, to their credit, the Government pledged that they would sign up to the Council of Europe convention on preventing and combating violence against women and domestic violence. However, this sits slightly askew from the Government’s position on this Bill, despite their recognising that without legal aid women are at much greater risk of being trapped in an abusive relationship when their immigration status is dependent on their abuser, or when a woman’s insecure immigration status is used as a means of control by an abuser. These matters were brought up by noble Lords on all sides of the House in Committee, but the Government have not responded satisfactorily to the points that were then made.
This policy is the worst of both worlds. It will disadvantage all applicants, force communities in Britain to house desperate people who are unable to work for longer and longer periods as the tribunal system creaks further, and will mean that many people with considerable merit cannot stay and contribute to Britain. If we do not rectify this change now, it will lead to chaos, greater expense and negative consequences for all of us.
I conclude as follows: with immigration advice and representation regulated—and quite rightly regulated because of the scandal of advisers in the past—I ask the Minister, from where are people going to get advice when legal aid is gone? There just will not be the availability of advice, let alone representation. A commonsense forecast would be that people will be forced to revert to second-rate, greedy and corrupt advisers keen to extend for as long as they can the existence of the case, and who will often fleece what money they can out of the client and then leave them high and dry. That is not an appealing scenario, and it is certainly a step backwards from the situation today, which is hardly satisfactory. We ask the Government in the amendment to think again about taking immigration out of scope. I beg to move.
Lord Pannick
My Lords, I support the amendment. I am concerned that in the Minister’s letter dated 1 March to all noble Lords he said that the Government were removing legal aid for what he called “routine” immigration matters. I have to say to him that there is nothing routine about many of the cases for which legal aid would be denied.
Many of these cases have two important characteristics. First, they concern issues of fundamental importance to the individuals concerned, as well as to society. There are few issues as vital to an individual as whether they should be deported from this country, or whether members of their family should be able to join them in this country. The second characteristic is that many of these cases are of extreme legal complexity. The noble Lord, Lord Bach, has already quoted what the Court of Appeal said last week; and those words would be equally true of very many areas of immigration law. Yet legal aid would not be available for appeals to the immigration judge, or on points of law to the Upper Tribunal, the Court of Appeal and the Supreme Court. The UK Border Agency will of course have the benefit of lawyers to argue its case on such appeals.
I understand the need for cuts in public expenditure, but this proposal to remove legal aid in immigration matters is proceeding on the fundamental misapprehension that these cases are somehow routine—they are not.
Lord Wallace of Tankerness
My Lords, we are not proposing to abandon the regime. As the noble Lord, Lord Bach, pointed out, immigration advice is tightly regulated by the OISC, to which complaints can be made.
Substantial savings are required. The change that we propose will save an estimated £20 million a year out of a total of £90 million spent in this sphere of law. It is important to show a balance; it is not just a case of taking immigration cases out of scope. Cases affecting some of the most vulnerable people will remain in scope. I do not for a moment doubt the motivations behind the amendment. However, I assure noble Lords that the matter has been given careful consideration. My noble friend Lord Boswell asked about complex law being kept under review. He will be aware that the power to add, within scope, that has been proposed for Clause 8 is a safety net that could be used if, in the light of experience, the somewhat apocalyptic scenario described by the noble Lord, Lord Bach, came to pass. Of course, there will be a post-implementation review after five years.
I hope that noble Lords will recognise that in a very difficult area we have sought to strike the right balance in cases that are particularly demanding and that particularly affect asylum seekers, such as cases of domestic violence and where people are being held in detention, and that we are addressing some of the most difficult cases in the immigration field. However, we had to draw the line somewhere. It could never be in the right place for all noble Lords. I can only assure them that it was done with some care and thought, and ask the noble Lord to withdraw his amendment.
Lord Bach
My Lords, I am very grateful to all noble Lords who spoke in this important debate, and not least to the Minister, who in his usual reasonable way explained the Government’s position. I am afraid that I cannot accept the explanation. To save £20 million in order potentially to set back the system by many years and to cause difficulties for so many people is not a sensible saving of money.
The noble Lord, Lord Newton, talked about other expenditure the Government had found. He was too polite to say what I will say. My example is the £250 million the Government found to make fortnightly bin collections weekly. It is absurd to save £20 million here but spend £250 million there—such an absolutely wrong sense of priorities—that any satirist would have enormous fun writing a story about it. Jonathan Swift should be living at this hour.
I will simply ask the House to recall the comments of two of our most distinguished judges: the noble and learned Lord, Lord Woolf, and the noble and learned Baroness, Lady Butler-Sloss. Their words a few minutes ago gave the lie to the argument that this was a sensible move by the Government. Almost all other noble Lords who spoke said that the measures were not worth taking and were wrong in themselves. I ask the House to ask the Government to think again. I beg to test the opinion of the House.
“Unfair dismissal1 (1) Civil legal services provided in respect of employment cases where a person has been unfairly dismissed.
(2) For the purposes of sub-paragraph (1), civil legal services includes advice and assistance at all stages.”
Lord Bach
My Lords, the House will remember that we had a robust debate on this issue in Committee and some valuable contributions were made, particularly by the noble Lord, Lord Pannick. I shall refer to some of the points he made in a moment. Legal advice for employment law matters is used by around 15,000 people a year, and at current levels we spend £4 million on it, which works out at around £300 per advised person. This advice deals with issues such as unfair and wrongful dismissal, redundancy, contract disputes, discrimination, strike action, data protection and employee confidentiality, and wage issues such as when people are paid below the minimum wage. It goes without saying that these issues are of considerable importance to the individual and to the state.
Someone who is dismissed and is unable to get fair recompense or their job back becomes a burden on all taxpayers. It is one that most of us are willing to bear. Jobseeker’s allowance is a safety net for precisely these kinds of people, but it is one that we should not bear unduly. Legal advice is valuable when attending a tribunal because the other side, that of the employer, is nearly always represented, certainly by a lawyer and often by counsel. The inequality of arms between a cleaner who is being paid below the minimum wage and their employer’s counsel is substantial. There is an alternative to legal aid, of course—that of damages-based agreements. But those agreements are not yet widely available and they are not available at all for certain classes of case. Worse, they leave the most impecunious sometimes at the mercy of predatory claims managers.
In Committee, the noble Lord, Lord Pannick, outlined four particular concerns. First, he highlighted the importance of employment rights. He contrasted these with environmental pollution rights, which remain in scope. The second was the point about equality of arms and the injustices that flow from that. The third point was the illusory nature of the savings in that through state benefits we will essentially subsidise bad employers, who will not be brought to justice. His fourth point highlighted a perverse consequence of the Bill as it is now drafted. Given that discrimination remains in scope, we are going to see an awful lot of people tacking discrimination claims on to their dismissal claims. The noble Lord may remember that such a problem arose when defamation was not within the scope of legal aid but malicious falsehood was. That led to many legal aid cases being brought under the Trojan horse of malicious falsehood, where the most appropriate tort for that was defamation. That loophole was closed in 1999, but this Bill as drafted intends to reintroduce a number of what we would call perverse incentives, of which this is perhaps the most obvious.
As I have said, employment legal aid costs £4 million a year, but accepting this amendment will not cost £4 million a year. The amendment does not change the Government’s ability to set their own budgets—rather, it is a statement of principle that employment law is important and complex, and that victims of abuse need redress and advice on how to seek that redress. EJ Cohen was cited the other day in aid of legal aid; he said:
“The State is not responsible for the outbreak of epidemics, for old age or economic crisis. But the state is responsible for the law. That law again is made for the protection of all citizens, rich and poor alike. It is therefore the duty of the State to make its machinery work alike for the rich and the poor”.
Employment law exists to protect citizens—hard-working ones, often—from unfair and unlawful practice by employers. At its best, it evens up the natural imbalance between the rights of employers and those of employees. We did not create those laws out of folly, but because there was abuse after abuse which forced us to act. Many good employers are grateful for the fact that good, fair employment laws exist. However, despite these laws and the access to justice that was promised when legal aid was introduced for employment law, there remain—and the Government have to take this into account—some bad employers out there.
Lord McNally
On the point that the noble Baroness has just made, I for one would certainly not be worried if the provision increased trade union membership. That seemed to me to answer the question of whether certain kinds of advice should be made because people take the precaution of joining a trade union rather than expecting the taxpayer to pay for their advice. As I explained in Committee, we have thought very carefully about which areas should be removed from scope. We also considered whether there were procedures that would allow people to resolve their problems without legal assistance, such as tribunals or alternative dispute resolution, and we have looked carefully at whether all the matters currently funded through the legal aid scheme are strictly legal work.
Employment tribunals are designed to be simple to enable parties to make or respond to a claim without the need for representation. The rules of the employment tribunal place a duty on the tribunal and its chairmen to deal with cases justly and fairly, including, so far as possible, ensuring that parties are on an equal footing. While we recognise that clients find advice useful in the preparation of their case, we have had to prioritise funding on cases that involve fundamental issues such as liberty or safety, and proceedings in which litigants are generally unlikely to be able to represent themselves effectively. We do not accept that the employment tribunal cannot be accessed or that justice cannot be obtained without access to legal aid for advice—a point made by my noble friend Lord Faulks.
I should also mention that the Government are looking at referring all employment cases to the Advisory, Conciliation and Arbitration Service, ACAS, before the employment tribunal to try to resolve problems early on. Indeed, ACAS itself offers advice through a free helpline and help is usually available from trade unions. The noble Baroness, Lady Turner, made that point. BIS is still considering with ACAS the route forward on this issue. My honourable friend Jonathan Djanogly is in discussions with BIS and ACAS to take this forward. ACAS also offers a free arbitration service for some disputes concerning unfair dismissal or flexible working. As noble Lords will be aware, we propose that legal aid should continue to be available for claims relating to a contravention of the Equality Act 2010 in employment cases that are currently within the scope of the legal aid scheme.
As with other things, we do not believe that the changes will have the impact that noble Lords opposite have suggested. The answer to many employment and other issues is economic recovery, which will provide the jobs. That is why those issues continue to be our priority. I hope that the noble Lord will withdraw his amendment.
Lord Bach
My Lords, once again I thank noble Lords who have spoken with a lot of knowledge in this debate. It is a bit rich for the Minister to say that all these people should join trade unions. It is not easy for many employees these days to join trade unions, particularly those who work for private companies. I am not saying that it is impossible, but it is not easy. To throw that line as an excuse for taking away from those who are not members of trade unions their ordinary legal rights seems extraordinarily superficial.
The Minister talked about not strictly legal work. I would have thought that a claim for unfair dismissal was almost certainly a legal issue that has to be decided by a tribunal. It may be that the noble Lord, Lord Faulks, acted for the employer only in cases that were legal. I cannot think why the employer would employ a barrister as good as the noble Lord, Lord Faulks, must undoubtedly have been even then—the noble Lord tells me that it was not much, and of course I believe him completely—and bothered to pay him at all if these were not legal matters. Unfair dismissal is a legal matter, as are other matters that come before the employment tribunal, so let us please not use the excuse in this case that these somehow are not legal matters. They clearly are, and they mean a huge amount to the lives of the individuals concerned.
Lord Martin of Springburn
On that point, does the noble Lord agree that government departments and health services all turn up with lawyers when they are defending an unfair dismissal? The Government will use lawyers, but they are saying that those who are seeking to fight their case do not need lawyers.
Lord Bach
The noble Lord is absolutely right; that is the thinking behind it. The same Government who say that this is not legal advice will of course have lawyers there to represent their interests at industrial tribunals. That will continue whether this legislation goes through or not, so let us have no more of that.
We have already heard mention of the unanimous resolution that was passed, I think only yesterday, at the Liberal Democrat party conference in Gateshead to support legal aid. I shall read three parts of that quite long resolution. First:
“A properly funded system whereby access to legal advice and representation before the courts is not denied to those otherwise unable to bear the costs”.
Secondly:
“The continued provision of legal aid”—
yes, legal aid—
“for those who cannot afford to pay for legal services, in serious cases where a failure to provide legal services may lead to injustice”.
That seems to me like an employment tribunal. Lastly:
“The implementation of the party’s policy on Access to Justice debated at Conference in 2011”.
Of course, the leadership of a party does not always take complete note of what the conference passes, even if it passes it unanimously. Yet it might have been better if the Government, who obviously did not agree with what was said in that unanimous resolution, had had the courage to say so during the course of whatever debate took place. It is very depressing.
Lord McNally
I actually spoke in favour of that resolution because, as we have been debating for some months now, ever since legal aid was started, people in successive Governments have had to draw lines and make difficult and tough decisions. As this point has often been made, the noble Lord has gone to some extreme extent to suggest that we are cancelling legal aid in any particular sector. As we then find out, whether it be with immigration, where we are retaining £70 million in legal aid, or welfare, where we are spending £50 million, that suggestion just does not add up. It is hyperbole and the facts are a long way apart. I had no difficulty in accepting that resolution because it shows that my party continues to give high priority to this issue but a high priority based in the reality of the economic situation that we face.
Lord Bach
I am much obliged to the Minister. He supported, then:
“A properly funded system whereby access to legal advice and representation before the courts is not denied to those otherwise unable to bear the costs”,
did he? He supported, to repeat:
“The continued provision of legal aid, for those who cannot afford to pay for legal services, in serious cases where a failure to provide legal services may lead to injustice”.
I admire him very much for being able to support those provisions and then argue today what I would argue is the precise opposite. If there is an example of a serious case in which legal aid is available now—for advice in many cases, and sometimes for representation—but will not be available if this Bill goes through in this form, that is it.
Lord Clinton-Davis
Is it not quite usual for the Minister to stand on his head?
Lord Bach
A few months ago I would have said no; now I am not quite sure. I just find it incredible that the Government seem to have taken no notice at all of this wonderful resolution, which was passed unanimously. It is extremely depressing that we find ourselves in a position where people who may have lost their job completely wrongly or suffered other wrongs in their employment are now not able to get that advice because they do not have the resources. The cost to the Exchequer is £4 million a year. Is there nothing else that the Government could have found in order to save employment law as we know it?
It is always tempting to have a vote but, because of matters beyond my or indeed the Minister’s control, we have started this series of important debates at a ridiculous hour, 6.30 pm, and it becomes really stupid to have a vote at this stage. With considerable reluctance, I beg leave to withdraw the amendment.
Baroness Turner of Camden
My Lords, I support these amendments. I do not want to add anything to the very detailed case already made by the noble Lord, Lord Avebury, in introducing the amendment. It seems to me that local authorities have an obligation in law to provide sites for Travellers and their failure to do so is responsible for the need to provide legal assistance to Travellers. Otherwise, Traveller families, which include numbers of children, are rendered homeless, and that, in my view, is quite unacceptable. I hope that the detailed amendments before the House tonight meet a sympathetic response from the Government.
Lord Bach
My Lords, we agree with the amendments in this group. In Committee, the noble Lord, Lord Avebury, said:
“Ministers say that Travellers must obey planning laws like everyone else; but they demolished the system created by the previous Government under which an obligation was imposed on local authorities to provide planning permission for Travellers’ sites that would accommodate the number of Travellers in each area, as determined by an independent assessment of needs, buttressed by public inquiries. Since the Secretary of State gave local authorities carte blanche to rip up those plans and decide in their unaided wisdom”—
that was the phrase he used—
“whether to allocate any land at all in their development plans to Travellers’ sites, the number of sites for which it was intended that planning permission should be granted has plummeted by half, according to research conducted”.—[Official Report, 24/1/12; col. 928.]
In his reply, will the Minister explain to the House why the Government took that decision and changed the policy that had been set up under the previous Government?
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 Bach
My Lords, it is absurd that we are debating such a crucial set of amendments as this at 10.15 in the evening. This is a crucial part of the Bill and the House should be much fuller. However, we have heard some very impressive speeches from around the House on Clause 9, which is a key clause in the Bill and, I imagine, a key clause in the Government’s thinking on the structure of Part1 of the Bill.
We had a substantial debate at an earlier hour in Committee on these amendments, with the exception of Amendment 93A in the name of the noble Lord, Lord Avebury. However, the amendment of the noble Lord, Lord Thomas, and my amendments were debated. There was a widespread feeling around the House on that occasion, as there is tonight in a much emptier House, that Clause 9 is much too narrow in scope. It does not allow for the flexibility that is crucial if exceptional cases are to have any real meaning. In our view, this is such a narrow clause and it will be so difficult to put into practice that a great deal will be left to the director to decide. At the moment, we do not know under what rules the director will have to make his decisions, and it is a shame that we do not.
We still greatly support the amendment in the names of the noble Lords, Lord Thomas of Gresford and Lord Carlile of Berriew. It seems to us a very sensible amendment and one that, if the Government do not intend what my noble friend Lord Judd was implying, they should accept. However, they do not accept it in those terms. The noble and learned Lord the Minister listened carefully when the noble and learned Lord, Lord Mackay of Clashfern, said in Committee:
“My second point is that, although ‘the interests of justice’ is a rather general and vague subject, on the other hand if you turn it round and say that the director, before he allowed this ground to prevail, had to be satisfied that there was a real risk of injustice unless legal aid was granted in a particular case, that would focus on the issue in the case in a more distinct and direct way than the phrase ‘the interests of justice’”.
In response, the noble and learned Lord said:
“I am certainly interested in what my noble and learned friend said about turning the phrase around, which has a certain seductive charm.”
That is the phrase that the noble and learned Lord, Lord Wallace, used. He continued, with his usual careful caution:
“I would not want to immediately agree to that but, without commitment, it is certainly something that I would want to think about”.—[Official Report, 24/1/12; col. 989.]
This is the perfect opportunity for the noble and learned Lord, Lord Wallace of Tankerness, to tell us whether he did think about it and what his conclusion was. It is an attractive offer. It is based on the original amendment of the noble Lord, Lord Thomas, and on what the noble and learned Lord, Lord Mackay of Clashfern, had to say about it. I shall be interested to know his view on that. Amendment 93A fits in very well with the debate that we had earlier this evening, in which the Government found few friends around the House as regards their argument. I suspect that there are very few friends in the House at present as regards what the noble and learned Lord may say about Amendment 93A. We back it.
The first of my amendments is exactly the same as the one that I moved last time. It is based on a draft amendment by the Law Centres Federation. It is not necessary for me to praise the law centres movement yet again in the House; the House has a very strong feeling that it has done a fantastic job over the past 40 or 50 years. When it puts forward a draft amendment to a Bill like this, the very least that we can expect is that the Government take it seriously. It would have different criteria, having regard to the previous circumstances of the case, including: the client’s vulnerability; the client's capacity to represent himself or herself; the client's health, including mental health issues; the actual availability of alternative sources of advice and assistance; the fact that the client is under the age of 18; or it is otherwise in the interests of justice. So we come back to the phrase in Amendment 93 in the name of the noble Lord, Lord Thomas of Gresford.
The noble and learned Lord, Lord Wallace of Tankerness, rejected that amendment last time. I dare say he will do so again in a few minutes. I still wonder why, when it seems to cover so many of the crucial things that are of importance for any clause that deals with exceptional cases.
My Amendments 95 and 96 deal with the position of chief coroner, who barely survived, but survived eventually, even though it was the Government’s intention to get rid of him before he started his job. It was good that the Government were persuaded to keep him. On Clause 9(4)(b), where the director has made a wider public interest determination in relation to the individual and the inquest, it would be helpful, rather than harmful or delaying, for the director to consult with the chief coroner. We still think that is a good idea and we cannot see why the Government reject it. These are important amendments and I know that they will be treated seriously by the noble and learned Lord, but to keep Clause 9 as narrowly based as it is on the ECHR and the European Court of Justice rulings is, in our view, much too restrictive and will in the end cause a great deal of concern for clients who really ought to get some legal aid under any exceptional provision but who will be barred from doing so because of the narrowness of the definition of Clause 9.
Lord Wallace of Tankerness
My Lords, notwithstanding the hour—a point made by the noble Lord, Lord Bach—I agree with him that this is an important group of amendments. Clearly, there is concern about the parameters of the exceptional funding scheme that will be created by Clause 9. It is very clear that many of your Lordships would prefer a very broad discretionary power, perhaps akin to that proposed in Amendment 94, on the face of the Bill. However, I ask that we reflect on the fundamental purposes of the changes that we are making to the general legal aid scheme. We need these reforms in order to create a fair, balanced and sustainable legal aid scheme. We have taken into account the importance of the issue; the litigant’s ability to present their case, including their vulnerability; the availability of alternative sources of funding; and the availability of other routes to resolution. It is also right that there should be an exceptional funding scheme to provide an essential safety net for the protection of an individual’s fundamental rights of access to justice. Clause 9 achieves this important end.
I acknowledge that we have limited the exceptional funding power in such a way as to ensure the protection of an individual’s rights to legal aid under the European Convention on Human Rights and European Union law. I acknowledge that this is a high threshold. However, it is right to limit exceptional funding to those important cases in which an individual’s fundamental rights of access to justice are challenged. I do not agree with the initial comments of the noble Lord, Lord Bach, which suggested that this would be impossible to operate. Certainly it is our anticipation that there will be several thousand applications to the fund. As I stated in Committee, there will not be a fixed budget for exceptional funding. It will also be available—we will come on to this later—where there is a wider public interest in an individual being represented at inquest proceedings into the death of a family member.
It is also important to note that the individual must qualify for such services in accordance with Clause 10, which will mean that decisions on exceptional funding will be subject to the means and merits criteria. The director of legal aid casework will make all exceptional funding decisions. This is a departure from the current position where the Lord Chancellor makes individual funding decisions on excluded cases. Clause 4(3) provides that the Lord Chancellor may issue guidance or directions about the exercise of the director's functions, including functions exercised under Clause 9. Through this guidance, the Lord Chancellor will set out the legal criteria that the director must take into account in determining an exceptional case application.
I confirm that the guidance will be based largely on the factors that domestic courts and the European Court of Human Rights have held to be relevant in determining whether publicly funded legal assistance must be provided in an individual case. It will be published in a clear and accessible format so that applicants and their solicitors can see whether their case will be likely to meet the necessary tests. Certainly it is our intention to publish more details of the operation of the proposed exceptional funding scheme, with associated guidance.
My noble friend Lady Hamwee asked a question about excluded cases that she had put to my noble friend Lord McNally. I have not had a conversation with my noble friend in which he imparted the question to me. In another context, she suggested that there might be a discussion outwith the debate. I am sure that my noble friend will be happy to answer her question in that context.
Amendment 93 would allow the director to fund excluded cases where he or she determines that it is in the interests of justice generally to do so. As the noble Lord, Lord Bach, said, Amendment 94 would allow the director to make an exceptional case determination where it is appropriate to do so in the circumstances of the case, taking into account certain prescribed criteria. In moving his amendment, my noble friend Lord Thomas of Gresford referred to Amendment 22, which we debated—I think—on Monday of last week. I indicated that I would take the matter away and think about it. His diary has now caught up with mine and I understand that we will meet tomorrow to discuss it further. He indicated that many issues that he believes will be covered under that amendment will go up to the director for a similar determination under Clause 9. Clearly that is something that we can pursue when we meet.
The phrase “interests of justice”—and the more seductive turnaround of the words proposed by my noble and learned friend Lord Mackay of Clashfern—is capable in this context of wide interpretation. The amendment would create a power that is considerably broader than the one we currently propose under Clause 9. As I acknowledged, Clause 9 is limited and we have already set out why it has to be so.
Our concern with Amendment 94 is again that it could be open to wide interpretation. Nevertheless, I will repeat an assurance that I gave before to the noble Lord, Lord Bach. Many factors listed in his amendment, such as the client’s capacity to represent themselves, their vulnerability, and alternative sources of funding, are to be found in the jurisprudence on Article 6 of the European Convention on Human Rights. As such, they would form part of the test for exceptional funding to be taken into account by the director in those cases where Article 6 is engaged.
In considering whether legal aid should be provided in an individual case, the director will need to take into account, for example, the importance of the issues to the individual concerned and the nature of the rights at stake; the complexity of the case; the capacity of the individual to represent himself or herself effectively; and alternative means of securing access to justice.
Importantly, Clause 4(4) explicitly prohibits the Lord Chancellor giving directions or guidance to the director in relation to an individual case. We believe that this change will guarantee the objectivity of the decision-making process for both in-scope and excluded cases and serve as a safeguard against political interference in the making of any individual exceptional funding decisions in future.
My noble friend Lord Avebury tabled Amendment 93A, which is concerned with immigration cases in which an individual risks being unable to obtain qualified and affordable representation and where there may be a risk of injustice if the appellant is not represented. As we have made clear, and as we debated earlier this evening, the Government believe that asylum cases and immigration detention cases must be treated as a priority for funding. I am sure it will readily be agreed that the consequences of these cases are of much higher seriousness, involving threats to life and limb or to the liberty of the person.
Clause 9 indicates that civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this part if subsection (2) or (4) is satisfied. Paragraphs 1 to 27 of Part 1 of Schedule 1, if we include the Special Immigration Appeals Commission, all deal with aspects of immigration, including asylum, protection for legal aid for immigration detention and cases where there is domestic violence. In addition, we are also keeping legal aid for most immigration judicial review cases. Many cases will already be within scope and have a right to legal aid.
Protecting funding in these areas, which I hope your Lordships will agree are of fundamental importance, means that we have had to make difficult choices about other immigration cases, which have not been considered to be as high a priority. At the same time, we have been clear that funding for cases falling outside the scope of the civil legal aid scheme should be focused on those cases in which the failure to provide legal aid would amount to a breach of an individual’s rights under the ECHR or directly enforceable European Union law.
As my noble friend Lord Avebury noted, the case law of the European Court of Human Rights is currently clear that decisions concerning issues of immigration, nationality and residence do not engage Article 6 because they do not involve the determination of civil rights or obligations. My noble friend asked whether lack of immigration legal aid would breach Article 8 or Article 14. Exceptional funding would cover whatever legal aid is required by the European Convention on Human Rights or is enforceable under European Union law. As I have indicated, case law as it currently stands generally means what Article 6 requires, but if the case law were to change, the exceptional funding scheme would have to respond to that. As such, the Government’s position is that immigration cases will not generally qualify for exceptional funding, other than a few cases that may arise under other aspects of EU law. However, the fact that immigration cases would currently be unlikely to qualify for exceptional funding does not mean that injustice must inevitably arise from a lack of legally aided representation.
The noble Baroness, Lady Lister, asked about children and social workers. Children will rarely be applicants in non-asylum immigration cases and will normally be considered as part of their parents’ application. Child applicants are much more likely in asylum cases for which legal aid will remain available. The noble Baroness also referred to unaccompanied children. Unaccompanied children with an asylum or immigration issue would have a social worker assigned to them. Their role includes helping the child access the same advice and support as a child permanently settled in the United Kingdom, and they could also offer assistance in filling in forms, explaining terms and providing emotional support. I was asked particularly about training in immigration law. The proposal is not for social workers to give detailed legal immigration advice but to help with form filling. As I indicated in an earlier debate, we intend to work with the Office of the Immigration Services Commissioner to exempt local authorities from regulation so that they can offer low-level advice and assistance.
I do not wish to repeat everything that was said in the earlier debate, other than to remind the House that in trying to get the balance in immigration cases we have sought to focus legal aid on those areas that are of much greater seriousness to the individual; for example, where the individual is subject to domestic violence. More generally, we have gone as far as we can on exceptional funding, but we have made it clear that there is a narrow determination with regard to the European Convention on Human Rights.
Amendment 95 would make it a requirement for the director to consult with the chief coroner and have regard to his views before making a “significant wider public interest” determination about whether to fund advocacy at an inquest. Inquest cases can currently be funded if there is a “significant wider public interest” in the applicant being represented. This is a term with a clear definition under the present funding code: benefits to the wider public must be tangible, must be likely to accrue to a substantial number of people and must arise as a consequence of the representation. It is not enough for there to be a general public interest in the case itself.
The Government believe it is important to retain the ability to fund inquest representation on the basis of wider public interest, because the provision of such representation may lead to findings that help prevent future deaths. That is why Clause 9(4) gives the director the power to provide funding on the basis of a wider public interest determination.
The onus has never been on the decision-maker to consult coroners, many of whom will not wish to give a view at all. Indeed, some coroners are not prepared to give a view about substantive elements of the case until the inquest is being held. However, under the current guidance on the existing exceptional funding system, the views of coroners are material, though not determinative, to decisions concerning the requirement for funding to be provided in order to fulfil the state’s obligations under Article 2 of the European convention. Consequently, coroners are far more likely to give a view about potential ECHR engagement in inquests than on whether the case has “significant wider public interest”.
We envisage that, under the new exceptional funding system, the director will continue to consider the views of individual coroners when taking decisions on whether legal aid is required to fulfil the state’s obligations under Article 2 of the European Convention on Human Rights. It would therefore seem somewhat incongruous to make it a statutory requirement for the chief coroner to be asked for his or her views on the “significant wider public interest” aspect of the case.
We believe that compelling the director to consult with the chief coroner in all cases is likely to add an unnecessary bureaucratic element to the assessment process, which could lead to unfortunate delays. It would represent a significant burden on the chief coroner, who would be unfamiliar with the circumstances of each case, unlike the individual coroner holding the inquest. The chief coroner would be required to acquaint him or herself with information pertaining to a number of cases. We do not believe that there would be any obvious benefit for bereaved families, individual coroners or indeed the chief coroner in mandating this additional process in law.
I am not sure whether the noble Lord mentioned Amendment 96 in this group, which would compel the director to pay,
“reasonable costs incurred by any person making a successful funding application under this section”.
Perhaps it would be helpful to say that the concept of “reasonable costs” is open to broad interpretation and could be seen to authorise payments at commercial rather than prescribed legal aid rates. However, I can reassure the noble Lord that although discussions about the arrangements for exceptional funding applications are ongoing, we expect to propose that a payment may be made towards the costs associated with the making of an application where that application is successful.
I trust that my response indicates that the exceptional funding scheme is intended to provide an important safety net where an inequality of arms would lead to an obvious—and possibly unlawful—unfairness in proceedings. I accept that many people would like to see this cast much more widely and more cases brought within the ambit of exceptional funding. However, I have explained the architecture of the Bill and why it is cast in the way it is, with particular reference to the European Convention on Human Rights and the other specific issues with regard to coroners’ inquests.
Lord Phillips of Sudbury
My Lords, I am supported in this amendment by the noble and learned Lord, Lord Woolf, and my noble friend Lord Faulks, who is a QC. Both noble Lords apologise for not being in the Chamber at this hour.
The general point of the amendment is to allow the Government at some future time, but I would hope earlier rather than later, to institute an independent review of clinical negligence claims, given that within the legal profession they are generally accepted as being uniquely difficult, complex, expensive and long-winded. Very briefly, the fulcrum of any decision in these cases revolves around medical experts’ reports, often not one, two or three, but a series of such reports depending on the seriousness of the injuries or defects. They are extremely complex when one comes to try to assess the course that an injury may take over the rest of a person’s life. There are huge problems of what lawyers call causation. There are particular problems in relation to the very young and the very old, who are disproportionately affected by cases of clinical negligence, and those who are mentally impaired, whether prior to the alleged negligence or as a result of it. There are particular complexities around the funding and expenses related to clinical negligence claims and around insurance, particularly what is called “after the event” insurance. I should declare that I was a non-executive director of a company providing such insurance for a number of years. There are problems in relation to the cost of the medical reports, which can be extraordinarily high, and of the insurance itself. One has after the event policies known as qualified one-way cost-shifting insurance. In fact, there is no aspect of these wretched claims that is straightforward and simple. I suppose that that is why one sees the sort of extraordinary cases of which I gave an example in Committee, given to me by the Welsh NHS legal department, where the award of damages was £4,500. The cost of the insurance, of the medical reports and of the lawyers came, believe it or not, to £98,000. That may not be typical, but this is an area of notorious expense, complexity and long-windedness.
The noble Lord, Lord Faulks, who is an expert practitioner in this field, dropped me a note earlier in the day in which he said:
“Clinical negligence has always been an area of particular complexity calling for both experience and expertise, in that it involves the evaluation of expert evidence … When legal aid was removed from personal injuries generally”—
that was, I think, 10 or more years ago; it might even have been in the Access to Justice Act 1999—
“it remained for clinical negligence—in recognition of its especial challenges”.
That is absolutely the point.
I shall not repeat the short account that I gave in Committee of the various attempts made in this country and in Wales to grapple effectively with the problems of clinical negligence claims. If anybody is interested, that was in relation to Amendment 99A, which was debated on 24 January at col. 1016 of Hansard. As long ago as 2003, there was a report by the Chief Medical Officer for England, called Making Amends, which related specifically to the slowness, complexity and cost of these claims. That does not seem to have been actioned. Similarly, Wales has had two pieces of legislation directed specifically at this area, the outcome of which is the Speedy Resolution Scheme. Wales is still in the process of evaluating that. One has to conclude that, because of the difficulties of getting to grips with the various aspects of this type of litigation, it is a sore that runs, unhealed, year to year. That is why we have proposed this power—we propose a power and not a duty. Out of deference to what the noble Lord, Lord McNally, said in Committee, we have made it an option for any future Administration.
I shall quickly deal with a couple of arguments against the amendment which were produced last time. One argument was that there is already a post-legislative scrutiny regime which is the subject of Cabinet Office guidance. There is also a post-implementation review plan. The trouble with this is that it is very general and entirely discretionary. With a Bill of this scale and breadth—there are 270 pages of primary legislation with probably as much again to come in secondary legislation—we are into a massive reform right across the face of legal aid and it is expecting too much to think that there will be a review of this particularly difficult area of litigation in order to arrive at the best conclusion for all concerned.
This issue affects not only the people who claim to have been clinically damaged but the National Health Service itself, which currently spends a great deal of time, effort, energy and funds in dealing with it. That is why we feel that the present informal Cabinet Office guidance does not go far enough. We want something that is nearer the Charities Act 2006 which provided for specific post-legislative review, which is now going on.
That is the bones of what I want to say. The Government have nothing to lose and everything to gain in agreeing to this amendment. It will lead to better justice in a field where the present injustice is felt keenly. People who are unluckily damaged in the course of medical treatment feel further damaged by the byzantine system we are currently left with. The amendment, which has been redrafted since the Committee stage, takes note of the points made by the noble Lord, Lord Beecham, from the Labour Benches. We hope, therefore, that Amendment 101A will introduce a provision that can do nothing but good for an area of litigation that desperately needs reform. I beg to move.
Lord Wallace of Tankerness
My Lords, Amendment 101A seeks to provide for the possibility of a wholesale independent review of clinical negligence claims by an independent person, and this would appear to provide for a review of both the civil procedure and legal aid funding. Having sat through the speeches at Second Reading and having responded to the debate on clinical negligence in Committee and again last week to other amendments moved on Report, like any other Member of the House I am under no illusion as to both the importance and sensitivity of this area. My noble friend Lord Phillips said something about the exceptional challenge that these issues give rise to and, when we debated amendments on Report last week, my noble friend Lord Faulks spoke to this amendment even though it was degrouped at that time.
The amendment has the somewhat novel effect of permitting the Lord Chancellor to introduce an exceptionally detailed and costly review function for an entire area of civil litigation. Albeit that it is now couched in terms of a power rather than a statutory requirement, there would certainly be an expectation raised if Parliament were to pass it. There are, therefore, fundamental problems.
I have alluded to the costs issue, and this cannot be overstated. One assumes that it is straightforward for the Government to set up a review, but a research, monitoring and evaluation framework of the magnitude proposed here does not give sufficient weight to the financial constraints under which the Government are operating. I recognise that the Government have in recent times committed resources to previous reviews, but the resources are somewhat more strained. At a time when we have had successive groups of amendments in which cases have been advanced for legal aid in particular areas to bring them within scope, which we have had to resist on the grounds of cost and because it was not part of the scheme, it is difficult to commit or even give the possibility of committing to a significant expenditure that would follow on from a review of this nature.
Lord Bach
I can be fairly brief here, as the Minister made an important concession in Committee by saying that there would be no means test on advice for individuals in custody. I was grateful for his concession, as was the Committee. However, I am still concerned—and I referred to this in passing in Committee—by the expression to be found in Clause 12(2):
“The Director must make a determination under this section having regard, in particular, to the interests of justice”.
I do not know what that phrase, which we debated a few minutes ago in a different context, means in the context of Clause 12. The really important part of the clause is the first sentence, which states:
“Initial advice and initial assistance are to be available under this Part to an individual who is arrested and held in custody at a police station or other premises”.
After that most of this clause is, to coin a phrase, otiose. It does not really matter; what matters is that there is the right to initial advice and initial assistance. What do the words “the interests of justice” add to the debate? In my view, they add absolutely nothing but they put me rather on edge. Do they mean that there may be some cases where the director thinks it is not in the interests of justice for there to be advice and assistance for someone in custody?
The Minister wrote us all a reassuring letter a few weeks ago. I am afraid that I do not have my copy in front of me as I address the House tonight, but I think it basically said, “Don’t worry about it. It doesn’t actually mean anything in this context”. I put down my amendment so that the Minister can explain why the phrase “the interests of justice” has to appear in this clause at all. Perhaps it is necessary for all the rest of the clause to be there, with regard to what the regulations may include and what initial advice and initial assistance mean. However, that phrase rather concerns me, lest some future director were to decide that “the interests of justice” meant that it was not necessary for advice and assistance to be given.
Without any doubt it is the view of the House—and, I suspect, that of many outside—that the change that the Police and Criminal Evidence Act effected, so that there was advice and assistance for those in custody, has been nothing but a good thing. It has meant that guilty men and women cannot get off their responsibilities because they can blame something on some alleged false admission. It also means that those who are innocent and have been arrested have the protection of some initial advice and assistance, so perhaps the Minister will explain to us why that phrase needs to stay in this clause at all. I beg to move.
Lord McNally
My Lords, I will try to help the noble Lord. I do not think there is anything sinister in this, and I hope that once I have finished speaking he will be happy to withdraw his amendment and leave my two amendments to go through. Perhaps I should start by saying that the scope of provision under Clause 12 is intended to reflect the existing provision in the Access to Justice Act 1999. The Government have no plans—I repeat, no plans—to change the existing provision of advice and assistance to those held in police custody. I indicated in Committee, after an extremely persuasive speech by my noble friend Lord Macdonald, that the Government intended to table an amendment to Clause 12 to remove the power to introduce means-testing for initial advice and assistance—
Lord McNally
I think that it lasted under 30 seconds, and what I was trying to draw to the attention of the House for future reference is that interventions do not have to be for 17, 20 or 25 minutes to convince me. It is to encourage the others that I make the point. As I say, the Government intended to table an amendment to Clause 12—
Lord Bach
My Lords, given the time of night, I will obviously withdraw the amendment. I thank the Minister for his response but I cannot say that I am totally satisfied. My ears started to prick up when he said that in general it was considered that it would be in the interests of justice. My question to the Government is: when will it not be in the interests of justice for someone in custody at a police station or other premises to have initial advice or assistance? Are there any examples? I do not ask the noble Lord to answer now but it would help the House if he could write with some examples of the kind of situation in which it would not be in the interests of justice for someone in custody to receive this assistance and advice. It is the fact that there may be occasions when it is not considered by the director to be in the interests of justice that worries me. I would be grateful if the noble Lord could find the time to write to me with some examples. I think other Members of the House would be grateful for them as well.
Lord McNally
My Lords, I think it would worry me as well. I will reflect on what the noble Lord has said and write to him on the specific point that seems to be worrying him.
Lord Bach
My Lords, we give our total support to the amendment moved by the noble Lord, Lord Thomas of Gresford. The principle behind it was set out clearly in Committee. That principle remains. It has not been answered satisfactorily. The Government are rightly looking for ways of saving legal aid funds. This is an area of criminal legal aid where considerable savings could be made. The Government should take advantage of this amendment and make sure something like it happens very soon.
Lord McNally
I cannot remember whether the noble Lord was a Minister in the department responsible in 2002, because it was the then Government who decided that it was better to allow access to legal aid than to allow an individual to draw down restrained funds to pay for their defence.
Lord McNally
Yes, but there is some kind of responsibility for past acts. It is all right for the noble Lord to get to the Dispatch Box and say what a wonderful idea this is, which he has been doing throughout the Bill as regards £20 million here, £18 million there and £4 million there. He now of course wants to change something that the previous Government did.
Lord Bach
Again, I have déjà vu. I think I ate enough sackcloth and ashes, or whatever the expression is, on the previous occasion about what my role may or may not have been towards the end of the previous Government. We do not need to go through that again, unless the noble Lord insists. I should like to know why he does not accept the amendment.
Lord McNally
Excellent; that was good for the record. Amendment 105A would amend the Proceeds of Crime Act 2002 to allow courts to release restrained assets to fund legal expenses in criminal proceedings. POCA currently prevents restrained funds from being released to a defendant for legal expenses in relation to the offences to which the restraint order relates.
The Government recognise that there is a public perception that rich people are being given free legal aid because their assets are restrained. There are good policy reasons behind the current regime, but I can assure noble Lords that my department is currently working with the Home Office and the Attorney-General’s Office to explore options that might allow the Government to recover legal aid costs wherever possible.
My noble friend—and this I welcome—has stimulated activity and cross-departmental examination of this issue in a constructive way. I cannot accept the amendment tonight, and I am not likely to within the context of the Bill. However, he can claim credit for stimulating active working with my department, the Home Office and the Attorney-General’s Office, and we will see where this initiative takes us. In the mean time, I hope that my noble friend will withdraw his amendment.
Lord Bach
Not at all. It is late at night, so I think we can forgive the Minister what he considers to be his bit of fun. However, Governments do make mistakes from time to time and people do change their minds. Even the noble Lord—never mind his party—has been known to change his mind on a few occasions.
Lord McNally
Very good. On the specific issue at hand, we hope to bring in the scheme with the rest of the Bill in 2013 and it will be subject to the affirmative order, so my noble friend will have other opportunities to discuss this matter. As he has now acknowledged, the Explanatory Notes to the Bill make it clear that we intend to use the power in subsection (3) to establish a supplementary legal aid scheme. The scheme will apply to damages cases where the successful party has been legally aided.
As we also said in our response to the consultation on legal aid reform, under the regulations that we will make, 25 per cent of certain damages successfully claimed by legally aided parties will be recovered by the Legal Aid Fund. The relevant damages are all those other than damages for future care and loss. I had better stop there and say that I have just had a message that the procedure will be negative, not affirmative.