Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Bach Excerpts(12 years, 8 months ago)
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Lord Bach
I rise to give my support, and that of my party, to Amendment 11, moved so brilliantly by the noble Baroness, Lady Doocey, now some time ago. My Amendment 88 is consequential on that amendment and deals with the other side of the coin. For me, Amendment 11 is the most important amendment in the entire Bill, and I shall try to explain shortly why I believe that. I want to speak also to my own Amendment 12, which is not an alternative in any sense to Amendment 11, but refers to the appeals process as opposed to the earlier process. Perhaps I may also briefly say how much we support the other amendments that have been spoken to in this debate, namely Amendments 21, 45 and 46.
We pride ourselves that our legal system is among the best in the world. We encourage rich foreign litigants to try their legal disputes in English courts and say that our system is fair, is not corrupt and has a very high class of judges and advocates. All that is true, but what underpins and guarantees our system is that there is access to justice for everyone. The law is there to help everyone, including the poor, the disabled and the marginalised, and we have a system of helping the poor that is both practical and principled—it is not perfect, but it works. If that system is decimated, as I fear the Bill as it is presently constituted will do, then as many as 650,000 people who have access to justice now will no longer have it. That fact alone should make us pause for thought. It is as serious, stark and uncomfortable, I am afraid, as that.
We all know that citizens with legal problems in the complex fields of welfare benefits, debt, employment and housing—which often involve the organs of the state, as the noble Lord, Lord Carlile, emphasised—can at present obtain expert legal advice, and “advice” is the key word here, so that those problems can be resolved. Legal advice of this kind helps people keep away from the courts and the tribunals; it does not urge them towards the courts. One of the myths that I am afraid has been rather put about by the Government in this Bill is that doing away with legal aid for social welfare law will reduce the number of cases going to the courts. However, the exact opposite is true. It is the availability of early advice that keeps the numbers down for our tribunals and courts. The people who use these services are not those whom the Daily Mail might choose to call scroungers or the work-shy; these are ordinary people who lead good lives and come up against the complexity of the modern state. They may have served in the Armed Forces; they may have been in all sorts of professions; they may not have led particularly successful professional lives. However, they are our fellow citizens, and if a system of law is to have any justice at all, it must look after them as much as it looks after us. The noble Lord, Lord Cormack, made this point a few minutes ago.
This is not an expensive type of law. My noble and learned friend Lord Goldsmith made it clear that no cat gets fat on welfare legal aid. Also, it works. If early advice is not available, we all know what the other side of the coin will be; things will get worse; a welfare problem will become a debt problem, then a housing problem; people will become homeless and unemployed; families will break down; and some people will fall into criminality. This should be a no-brainer. The changes will cost so much more than they will save. We have all seen studies that tell us that. Alas, the Government have not seen fit to contradict the statistics. They will not give us any figures—and I doubt that they could—to counter those arguments.
The consequences will not just be that many clients will not get access to justice; there will be a knock-on effect of making it impossible for CABs and law centres to continue to function in the way that they do now. They depend on legal aid money to attract other funds to do other work. If the legal aid money dries up, so may other sources—and then we will be deprived of them in our country.
Amendment 101—rather aptly named, if I may say so—is a brave attempt, but only an attempt, to try to move us away from what we as a House must come to grips with today. We must quite legitimately put pressure on the Government and say to them: “Look, you should not be withdrawing legal aid in this field. Just think again about this”. This is the attitude taken by Citizens Advice, for which the House has a huge feeling of respect. In its briefing, it states clearly:
“We therefore strongly support Baroness Doocey’s amendment that legal aid for casework advice on review and appeals should be retained within scope”.
It could not be clearer.
I will say a brief word about Amendment 12 because I will not have another opportunity to speak to it. It follows Amendment 11 and concerns appeals. The matter should be one of common sense. Very few of these cases—involving very little taxpayers’ money—get to the upper-tier tribunal, where at the moment there is no representation, only advice and assistance. Although I think that there should be representation, I am not asking for it in Amendment 12 because I do not want to add to existing costs. However, of course representation in the Court of Appeal and the Supreme Court should be granted through legal aid because it is quite ridiculous to suggest that claimants should get to that stage, in matters that are about law only, and have to argue their case. It would be impossible and would not help the court in any way. It is common sense that we should ask the Government to say that those matters should be legally aided. That is what Amendment 12 is about. It is quite separate from Amendment 11, which is about advice at a much earlier stage.
I have a quotation from the noble Lord, Lord Phillips of Sudbury. On the matter that Clause 12 deals with, he said:
“Seriously, however, it is not reasonable to demand a citizen even to decide whether he or she has a point of law which can be taken before a tribunal. It is simply unrealistic. One could almost say it is cruel to pretend that we are creating rights for those citizens most in need when they cannot even get advice and representation on points of law at appeals”.—[Official Report, 20/12/11; col. 1725.]
Precisely; that is exactly the point, and I hope that the House will support Amendment 12.
I return briefly to Amendment 11. The proposal to take legal aid out of scope is wrong in three ways. First, it is wrong because it picks on those least able to defend themselves, and not on others whose opposition would be much more powerful. Secondly, it verges on the unconstitutional because it directly attacks access to justice for a large number of people. Finally, and this is one of the crucial points, the cost of not providing advice will be outweighed by the cost down the line. That point has been made by many noble Lords on all sides. We have heard that the House has a tradition of protecting the interests of the poor and the powerless in our society. If we decline to do so on this occasion, we will be diminishing our legal system and making our country a less civilised place. I very much hope that the House will support the noble Baroness, Lady Doocey.
Lord McNally
My Lords, if we have a debate about how we help the poor then it is bound to be emotive and emotional. We have had such a debate, and it has been emotive and emotional. If we have a debate about the rule of law, and we had such a debate on Monday, then it will certainly be high minded—although even on Monday I thought that the line was blurred between access to justice as a basic right. a right with a long history in our country, and access to justice funded by the taxpayer, where there have always been limitations and where lines have always had to be drawn. By all means we can have the broad-based debate, and I understand the motives and emotion behind a lot of what we have heard.
The noble Lord, Lord Bach, said that this is the most important amendment in the Bill and he is right. I make no complaint—it is nothing to do with me anyway—but those who grouped these amendments together did so very sensibly, because these amendments, separately and collectively, tear out the heart of the rationale of the Bill. Be under no dubiety about it—that is what this collection of amendments does.
Let me, in making my case, go back to the beginning, as it were. One of the few advantages of being around a long time is that you remember things. I was a junior official in the Labour Party in 1976 when the then Labour Government had to devalue the pound. A great deal of pain and anguish followed as various departments had to undertake cuts. I was actually in Downing Street—in the Cabinet Room, with the Prime Minister and the Chancellor of the Exchequer—when the pound went from $1.95 to $1.47 in a single afternoon, and we sent for the Governor of the Bank of England and then for the IMF. Painful cuts followed. I can see sitting round this Chamber people who had ministerial responsibility or senior Civil Service responsibility. They know that even the most high-minded and principled Government sometimes have to face difficult decisions and make difficult choices and cannot simply rely on the emotion of the moment.
When we came into office we inherited an economy that was out of balance and faced a historically large public deficit. In more prosaic language, that meant that we were all a lot poorer than we thought we were. As a result, across government, we have had to take some very tough decisions on public expenditure. As I have said before, my department had to make cuts of £2 billion out of a total budget of £10 billion. It is easy to say—I have heard it today—that £1 million, £10 million or even £16 million is not so much. Of course, the House has got used to dealing in the rather larger sums of the Welfare Reform Bill. But for a smallish department with a small budget, and with a very restricted number of areas where cuts can be made, that involves taking tough decisions.
The noble Lord, Lord Bach, has indicated that he is going to divide the House. I hope that those who are going to go into the Lobby—many of whom have had to take responsibility for budgets, for making cuts and drawing lines—will not do so simply in the cavalier view that this will send a message to the Government.
“Social welfare law (No. 2)(1) Civil legal services provided in respect of a social welfare decision relating to a benefit, allowance, payment, credit or pension under—
(a) the Social Security Contributions and Benefits Act 1992;(b) the Jobseekers Act 1995;(c) the State Pension Credit Act 2002;(d) the Tax Credits Act 2002;(e) the Welfare Reform Act 2007;(f) the Welfare Reform Act 2012; or(g) any other enactment relating to social security.(2) For the purposes of sub-paragraph (1), “civil legal services” includes—
(a) independent advice or assistance for an appeal to a second-tier tribunal; and(b) independent advice, assistance and representation at a higher court of such a decision.”
Legal Aid: Social Welfare Law
Lord Bach Excerpts(12 years, 8 months ago)
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Lord Bach
My Lords, the Government’s impact assessment for the LASPO Bill accepts that legal aid cuts will lead to “reduced social cohesion” and “increased criminality”. Can the Minister remind the House how many Bills go forward when it is thought that their implementation will lead to “reduced social cohesion” and “increased criminality”, and why do the Government think that this measure will lead to “increased criminality”?
Lord McNally
My Lords, one problem with treating Parliament as a group of grown-ups is that such exercises will be open to abuse. The Government have never said that this would happen. What the civil servants did, quite properly, in their impact assessment was put forward a range of possibilities. Throughout the Bill—and I presume now that we are moving to Report he will continue on his merry way—the noble Lord has been looking at worst-case scenarios, saying that worst-case scenarios are inevitable and therefore, “Woe is me”. That is not what the impact assessment is about. It is about trying to take an intelligent and rational view, but, as I have said before, a view that these are not inevitable. This impact assessment is not an almanac; it is a look at a range of options that could happen. As such, it was a reasonable way of approaching the task ahead.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Bach Excerpts(12 years, 8 months ago)
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Lord Bach
My Lords, there is very little left for me to say from the opposition Front Bench, except that we are, as we were in Committee, completely in favour of the amendment of the noble Lord, Lord Pannick. It adds considerably to the Bill and is a very important statement of principle that should be there.
I have to say that I was surprised by the speech of the noble Lord, Lord Thomas of Gresford. There was a change in his attitude between Committee and this stage. I remember very well—
Lord Thomas of Gresford
No, that is not the case. As the noble Lord will recall, I opposed this amendment in Committee in very much the same terms.
Lord Bach
Not quite in the same terms. As I understood it, the noble Lord and some others in Committee opposed it on the basis that it did not go far enough, not that it was unnecessary. I recall very well the noble Lord saying:
“I entirely agree. I think that the Government are making a mistake in welfare law and that cutting legal advice and assistance for people at the bottom end of society will cause more problems than it solves; it will not achieve the savings that the Government think it will”.—[Official Report, 20/12/11; col. 1708.]
I should be interested to see whether the noble Lord repeats those comments when we come to a later stage. All that I can say is that it is my feeling—
Lord Thomas of Gresford
The comments were not said in the context of Amendment 1, and we will deal with the other matters when we come to them.
Lord Bach
Indeed—I fully concede that; but I have to say that I do not concede the point that I am about to make, which is that if the noble Lord were in opposition and a Bill such as this was brought in by a Government whose party was not his party, he would oppose the Bill with all the great force and passion that he could and support the amendment 100 per cent.
Some noble Lords in Committee thought that the amendment did not go far enough and did not follow the words of the Constitution Committee. This is a very modest amendment that could have gone further. We think that it catches the right note, does not try to go further than it should and is very much in the context of Part 1. If it is the position of some noble Lords that the amendment does not go far enough, that is surely an argument in the context of this debate to vote for the amendment, because its position is closer to their position than if they were against it. If the view is that the Bill should reflect the Constitution Committee’s opinion and nothing else, this is certainly the amendment to vote for.
There is nothing wrong at all with this statement of principle occurring at the start of a major Bill that if passed in its present form will transform the legal aid system, particularly as it affects the very poorest, who rely on civil justice in order to get their rights. It is therefore important that we set off in the right way. The right reverend Prelate the Bishop of Exeter—if I may say so, with respect—caught the mood absolutely correctly when he talked about the function of the law, which is to look at worst-case scenarios. He is absolutely right; the Bill does not do that. It takes a very rosy view of what will happen when, for example, there is no legal aid for social welfare law. What will happen then? I know that we will debate that in the days ahead, but it is a matter that we should consider in relation to the amendment.
I have gone on for longer than I had intended. We support the amendment completely and we very much hope that the House will, too.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, let me begin with the comments of the right reverend Prelate the Bishop of Exeter. The worst-case scenario for me would be if this Government lost control of the economy and were forced by circumstances to come back with even more draconian cuts in public expenditure than those that we were forced to make when we came into office, and which the Labour Government in their last months were also planning. That is the reality, a reality that has been faced by every department of government. If we had not taken those tough decisions, we could indeed be facing that worst-case scenario in which control of the economy was lost and even more draconian cuts were asked of our citizens.
I recall saying that I would reflect on what was said in Committee. I have done so, and so has my right honourable friend the Secretary of State. I must say that the more I have reflected on it, the less convinced I have been by the amendment proposed by the noble Lord, Lord Pannick. Many speeches—although I do not accuse the noble Lord, Lord Hart, of this—have wandered very far in the direction of seeing access to justice as a concept of legal aid blank cheques signed by the taxpayer. I know that the noble Lord, Lord Pannick, will say, “Ah, but look at my amendment. See the limitations that I recognise”. Once you have said that there are limits to expenditure, some of the high-flown phrases used by the noble Lord, Lord Clinton-Davis, or the noble Baroness, Lady Mallalieu, have to be run up against that hard decision. You are drawing lines. You are not giving everyone access to justice financed by the taxpayer. We are trying today to see, as my noble friend Lord Thomas said, whether the amendment adds anything to our debate.
Amendment 1 relates to the supply of and demand for legal services. I accept that its purpose is very similar to the purpose for community legal services in Section 4(1) of the Access to Justice Act 1999. I also accept that the duty that the amendment would place on the Lord Chancellor would be qualified by the reference to the duty being subject both to the resources available and to the provisions of Part 1.
However, against the backdrop of the Bill, we believe that Amendment 1 is unnecessary and inappropriate in the context of Part 1. The provision in the Access to Justice Act relates to how civil legal aid operates on an exclusionary basis. By that I mean that it specifies what services cannot be funded under civil legal aid and leaves open the question of services that might be funded. In that context, a provision such as that in Section 4(1) of that Act, which provides a basis for determining which services might be funded, is a useful and appropriate addition where those services are undefined.
However, in the context of the Bill, the amendment is not appropriate. The provisions of Part 1 that relate to the general scope of civil legal aid are drafted on an inclusionary basis, where the services capable of being funded under civil legal aid are detailed explicitly in Schedule 1. As such, there is no question as to what services might be funded; they are in the Bill for all to see. Consequently, the amendment based on Section 4(1) of the Access to Justice Act is not appropriate.
That tension—some would say contradiction—is underlined by the amendment itself, the intention of which is to make the provision subject to the wider provisions of Part 1, which of course includes Schedule 1 and its description of the range of services to be funded under civil legal aid. We therefore believe that the amendment is not appropriate in the context of the Bill.
Outside those technical and definitional issues, the debate has raised questions about whether there should be a duty on the Lord Chancellor to secure access to justice. I shall briefly explain why we think that that is also unnecessary in the context of the Bill. The noble Lord, Lord Pannick, quoted the Guardian article of my right honourable friend. I repeat again that the Government consider that the rule of law and access to justice are a fundamental part of a properly functioning democracy and an important element in our constitutional balance.
It is true that the legal aid reforms are aimed in part at achieving savings. In our view, the current legal aid system is unaffordable, has expanded far beyond its original scope and is not sustainable in its present form—as I think was recognised by the Labour Party when it referred to cuts in legal aid in its election manifesto. However, the reforms are also aimed at encouraging people to use non-adversarial solutions to resolve their problems where appropriate and to speed up and simplify court processes where not. As such, we consider that our reforms should strengthen the rule of law by making the justice system more effective.
The Government believe that financial assistance from the state in accessing the courts is justified in certain areas, and that is why we have retained categories of cases within the scope of civil legal aid. I noticed that the noble Lord said that there was no social welfare spending on legal aid but that is simply not true, as he knows. We have also made provision for legal aid to be granted in the limited circumstances justifying exceptional funding under Clause 9. The exceptional funding scheme will ensure the protection of an individual’s rights to legal aid under the European Convention on Human Rights, as well as rights to legal aid that are directly enforceable under European Union law.
The Government do not dispute that it is a principle of law that every citizen has an unimpeded right of access to a court. However, they do not accept the proposition that there is a constitutional right to legal aid in all circumstances and at all times. Once that is conceded, the debate is about how and where we draw the line. The Government consider that the common law right, as mentioned by my noble friend Lord Thomas, of unimpeded access to a court of law means having the assistance of the court to assert legal rights and obtain remedies to which one is entitled, having the right to challenge a decision in the courts if one wishes to do so, and not being prevented from issuing court proceedings because of an inability to pay the court fee.
The noble Lord, Lord Alton, and others seemed to be moving very close to arguing for a legal aid scheme at the point of need—a kind of National Health Service for the legal profession. I think I have mentioned before that I talked to Jeremy Hutchison—Lord Hutchison—who is on leave of absence from this House and is now in his 90s. He was one of the lawyers who made up the legal aid scheme. He said, “Our ambition was a National Health Service for the legal system”. However, the truth is that successive Governments have backed far away from that ambitious concept. Although I know that the noble Lord, Lord Bach, would have made savings in other parts of legal aid, even the Opposition have said that there would be limits to legal aid. The noble Lord, Lord Clinton-Davis, said that he was brought into the legal profession by the idea of access to justice. However, even when he came into the legal profession, and every day that he was in the legal profession, the kind of access to justice that he was referring to was never available. Access to justice with legal aid has always been restricted. We have always had to draw lines and we always will, as he well knows.
Lord McNally
The noble Lord will probably continue for the next five days to make his debating points, but we are not depriving them and he well knows it. As the Bill proceeds we will make further comments about help on advice.
The Government also consider that case law does not establish that in order to have access to a court, it is a necessary precondition that an individual has received legal advice. A common law right that requires access to legal advice and beyond that to state-funded legal advice and assistance, would also go beyond the approach laid down by the European Court of Human Rights in its case law on Article 6 of the ECHR.
The Government considered very carefully from first principles which cases should continue to attract publicly funded legal advice and representation in the light of the financial constraints that I have mentioned. As reflected in the Bill, the Government reached the view that exceptional funding under Clause 9 of the Bill should be limited to ensuring the protection of an individual’s rights to legal aid under the ECHR as well as those rights to legal aid that are directly enforceable under EU law.
In addition to this the Lord Chancellor would be required in carrying out his functions to protect and promote the public interest and to support the constitutional principle of the rule of law. These considerations are inherent in the Lord Chancellor’s functions as a Minister of the Crown and do not require specific reference here. In addition, the Lord Chancellor has some specific duties under the Constitutional Reform Act 2005.
We have also been clear in the response to consultation that we will work in conjunction with the Legal Services Commission and its successor executive agency to develop and put in place a procurement strategy that reflects the demands and requirements of the new legal aid market.
In light of the practical barriers in operating this amendment and the fact that the more principle-based concerns are addressed in the Bill, I would urge the noble Lord to withdraw the amendment. Many speeches today have gone far beyond what legal aid means in the scope of legal aid under successive Governments. The Bill is honest about what we can do and, as such, it deserves the support of this House.
“Pre-commencement impact assessment
(1) The Lord Chancellor must commission an independent review to assess and report on the following areas—
(a) the expected costs and impacts of Part 1 on—(i) children and young people;(ii) people with disabilities, including people with learning, physical, mental and psychological disabilities;(iii) women;(iv) victims of domestic violence;(v) black and ethnic minorities;(vi) government departments;(vii) courts and tribunals, including any changes in time and resources;(viii) local authorities;(b) any expected impact of Part 1 on—(i) the incidence of homelessness;(ii) the incidence of ill-health, or suicide;(iii) the commission of criminal or anti-social behaviour; and(iv) the future provision and availability of services including, but not limited to, law centres and citizens advice bureaux.(2) The Lord Chancellor must lay a copy of the final report commissioned under subsection (1) in both Houses of Parliament at the same time as laying a draft commencement order for any other section in this Part.”
Lord Bach
My Lords, we come back to a matter that we debated in Committee: the pre-commencement impact assessment proposal. I start by quoting something that has not been said for a few years now; indeed, at the time when it was said, although it may have contained quite a lot of sense, it was widely mocked, but I hope that it will not be today. It is a quotation from the then United States Secretary of Defense, Donald Rumsfeld of blessed memory, of whom many noble Lords will be either great supporters or perhaps the opposite. He said:
“There are known knowns. These are things we know that we know. There are known unknowns. That is to say, there are things that we know we don't know. But there are also unknown unknowns. There are things we don’t know we don’t know”.
As far as the Bill is concerned, the Government have been operating as though all that matters are the known knowns. Specifically, they claim that they will save some money by reducing the budget for legal aid. We have been told repeatedly that our legal aid system is the most expensive in the world. Just this very morning, the Lord Chancellor told Radio 4 listeners that what this was really about was clamping down on lawyers’ pay. In the context of this Bill, that is a remarkably inept statement; it just is not what is happening with regard to the Bill. Is it seriously being suggested that the fees that lawyers get for doing social welfare law work need to be clamped down on—the £150 fee per case of helping someone with a legal problem on welfare benefits? We are not talking about fat-cat lawyers in this case and it is about time that the Government stopped claiming that that was what the Bill was about. It is not; it is about clients who receive advice and occasionally representation on matters that affect their everyday lives.
There are also known unknowns, although the Government are less keen to talk about those. The impact assessment, about which the noble Lord, Lord McNally, and I had a brief friendly exchange across the Dispatch Box at Question Time today, states the potential impacts of the Bill:
“reduced social cohesion … increased criminality … reduced business and economic efficiency … increased costs for other Departments … increased transfer payments from other Departments”—
in particular, with regard to that last item, higher benefit payments for people who have spent their savings on legal action. These have been slightly brushed aside, not least by the Minister, when the Government have been asked what the implications of those impacts are. You do not put in an impact assessment things that you do not think are going to happen; you put in things that you think may or will happen. If it is believed that those things will happen as a consequence of the Bill being implemented, then that is a legitimate target for those of us who are unhappy about parts of the Bill.
The Public Accounts Committee in another place asked the Ministry of Justice to invite the National Audit Office to review the impact assessments, expressing great concern that they seemed rather sloppy and unfinished. I believe that more has happened on that in the past few days; a letter has been sent by the very distinguished Permanent Secretary of the Ministry of Justice to the Law Society explaining why Ministers do not feel it necessary or even right for the NAO to look at the impact assessment of the Bill. I would be most grateful if the Minister could tell Parliament what is going on regarding the impact assessment being looked at by the NAO.
I cannot help recalling that some months ago the Justice Committee in another place, following its report, asked the Government to set out in much more detail what their assessments were of the consequences of the Bill coming into force. The Government seem to have refused to respond to that request in the committee’s report, and I ask the Minister to tell us why that was so.
As the House will know, two independent economic analyses, one by Citizens Advice and one more recently by King’s College, have done a considerable amount of work on limited information, particularly in the case of King’s, about the costs and benefits of this legislation, and they quantify some of the knock-on impacts. The Government, without offering any evidence of their own, have repeatedly rejected them out of hand. This morning the Lord Chancellor argued that,
“we’re not taking legal aid from women and children … we’re taking legal aid away from lawyers”.
That is a statement of immense chutzpah by the Lord Chancellor but is not worthy of him or the Government. The reality is that if the Bill becomes law, the Government will start taking legally aided advice away from women, children, the disabled in particular and many other groups of people.
The impact of the Bill will be considerable, and we suggest that it is only rational to plan for its impacts. Unless you do the basic work—work that has been done elsewhere—you cannot possibly hope to plan for what may follow. We know that there will be an impact, perhaps a large one, on other departments, on the lives of vulnerable people and of course on the charitable advice sector, which needs to know where it is year on year and is afraid that, with legal aid disappearing, it too in its turn may disappear.
What we are proposing in the amendment would not stop the Bill going through; this is not an attempt to stop it becoming an Act of Parliament. Before the impact assessment that we are suggesting would be produced, the Bill will have received Royal Assent. However, we believe that it would help in planning by other departments, by the sector and by the ministry, and it would help all of us to understand what the impacts might be and respond collectively to mitigate them. We believe that the amendment is actually of assistance to good government and is plain common sense, and I am delighted that it is supported by noble Lords from the Cross Benches who, if they are in their places, I hope will be able to speak to it. I beg to move.
Lord Bach
My Lords, I thank the noble Lord for his reply and what assurances he was able to give—not satisfactory from our point of view, but he gave what assurances he could, particularly about another impact assessment later. I thank in particular the noble Lords, Lord Ramsbotham and Lord Pannick, and the noble Baroness, Lady Prashar, for their support for the amendment and all noble Lords who spoke during this important and interesting debate. Important issues have been raised both here and in Committee, and the House obviously believes that. I am delighted to have so much general support around the House for the amendment, although the Minister insisted that it was unnecessary and misguided.
Of course we accept that difficult decisions have to be taken by the Government. The Government think that they will save about £61 million a year, a rough figure, by abolishing legal aid for social welfare law. Our problem—I think it should be one for the House—is: how much are they actually going to save by what they intend to do about the scope of legal aid? We believe—reports suggest that we are right—that other departments will have to pick up the pieces of those cases that would otherwise have been solved or sorted but which will not be because people will not have anywhere to go to get the advice that they get now. The system that works pretty well—not perfectly, but pretty well—will have gone. We believe that the cost to the Government, whichever Government, will be much higher than any savings that the ministry will make. That is why we wanted to know more detail and hoped that the department could help us with more detail about what it believes the costs will be.
We believe that the cost to society will be very high indeed. It will not help the Government's deficit cuts plan; it may actually add to it in the end. I know that that is not what the Government intend, but we believe that that may be the consequence, which is why I have raised this issue again this evening.
I hope that the Government listened to the 5,000-odd responses to the consultation. As I understand it, 90 per cent of them were opposed to what the Government intended to do, so they may have listened, but not very carefully, I fear.
I end by saying that the cuts that the Government have decided to make cut 53 per cent of the social welfare law budget, 27 per cent of the family law budget and 8 per cent of the criminal legal aid budget. Those figures were given by the Government in a Parliamentary Answer in another place last week. They are staggering. Why has the criminal legal aid budget, which is already much the largest, been allowed to escape almost scot-free?
Lord McNally
My Lords, as the noble Lord knows well, shortly before leaving office, he introduced cuts to criminal legal aid which we agreed should be absorbed by that sector before any further examination of the criminal legal aid side. Criminal legal aid has not been free from cuts, but those cuts were his.
Lord Bach
They were, and they were opposed by the noble Lord, his party and other parties when we made them, but so be it. They were opposed during the general election campaign. I know; I was the Minister at the time. I can tell the noble Lord that, if we had been re-elected, which we were not, we would have looked further on the basis of the White Paper we produced in March 2010 for further cuts. They would have been controversial cuts, I do not dispute that. I very much hope that they would have had the support of the noble Lord if he had been in opposition at the time; somehow I doubt it.
There is much scope to have cut more from criminal legal aid. Still, 49 per cent of criminal legal aid is spent on 1 per cent of cases. The Government are taking 53 per cent away from social welfare law, which is not well resourced anyway; 27 per cent from family law; and 8 per cent from criminal law. We say that the Government are right to look for savings; they have just chosen completely the wrong savings. It is not too late for them to change their mind.
Do I ask the House for its opinion on my amendment? I have thought long and hard about whether I should do so this evening but, in all the circumstances, I beg leave to withdraw the amendment tonight.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Bach Excerpts(12 years, 8 months ago)
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Lord Howarth of Newport
That certainly increases the case that I am rather lamely seeking to put forward. My noble friend is deeply expert in this field. It is, therefore, the more regrettable that the Government have sought to save only 8 per cent on the much larger criminal legal aid budget while taking 53 per cent from the funds provided to support people in poverty seeking to establish their claims for social welfare benefits.
The noble Lord, Lord McNally, said in our earlier debate that there had been difficulties with the equality impact assessment. I think he argued that it was methodologically very difficult to pursue it to the point that we were arguing it should be taken to. However, we know from the evidence of that assessment, unsatisfactory as it was, that the effect of these cuts will be disproportionate on some of the most disadvantaged people—ethnic minorities and disabled people, for example. Although it was found to be intellectually too difficult to complete the investigation initiated in that assessment, it clearly established that the risks of social injury were very great, and I do not think that a more prudent Government would have wanted to go further down that avenue. I was pleased to hear from the Minister that there is going to be a revised equality impact assessment in the light of any amendments that may be made to the Bill and, moreover, that the Government intend that there should be another impact assessment—I think that that is what the noble Lord said—in due course. Therefore, the Government’s thinking is beginning to concur with thinking on this side of the House.
If a post-commencement review is to take place two years after the commencement of Part 1 of the Bill, when enacted, there will by that time have been an opportunity to assess progress that may have been made in other regards to reduce the costs of the legal system and the courts, and that may leave a little more margin to restore legal aid to the levels that I am sure we would all wish to see it at. There are all sorts of ways in which costs in the system could be reduced in principle: the law could be made clearer and procedures could be made simpler. Perhaps lawyers could be paid less, although I do not think that lawyers doing legal aid work ought to be subjected to those kinds of savings. However, we could hope that there would be more pro bono work and that charities would provide more support to people in need. We could hope that the tribunals might indeed become more user-friendly, although I noted that the noble and learned Baroness, Lady Hale, in her Sir Henry Hodge Memorial Lecture earlier this year, discussing the question of whether tribunals could really be user-friendly, as their authors have always hoped they would be, and looking at the system of law they administer and the procedures that they developed in employment law and immigration cases, said that such a concept was, frankly, laughable. We might hope for better decision-making by public agencies so that fewer people have a need to appeal. We might also hope that alternative dispute resolution makes more progress, and that mediation, as the Government hope, will indeed lead to more expeditious and economical ways of resolving disputes.
All those things may develop and there may be progress, but I think it is unlikely in the extreme that we are going to see such appreciable economies or a system made so much more attractive and beneficial to disadvantaged people in those ways that we can reconcile ourselves to the loss of legal aid for welfare benefits claimants. Lord Bingham wrote judiciously in his book, The Rule of Law, that,
“the goal of expeditious and affordable resolution of civil disputes is elusive, and likely to remain so”.
However, if we have the post-commencement review that my noble friend has asked for, we can look at the progress that has been made on all those fronts. As a corollary of having this review, I think that my noble friend Lord Beecham is right to propose that there should be a sunset clause and that Part 1 would need to be positively revived in the light of the evidence that would have become available by then. Therefore, I am very happy to support the amendments proposed by my noble friend.
Lord Thomas of Gresford
If the noble Lord does not move his amendment perhaps I may move my Amendment 10 in the same group.
Lord Bach
I was not sure whether the Government were minded to adjourn the House now, it being 10 o’clock. Clause 8 has always taken a considerable amount of attention from those inside and outside the legal profession. People are very struck by the fact that it was very much a one-way ticket; namely, that the Lord Chancellor would have the power to take extra matters out from legal aid by regulation but not have the power to put them back in. Many people felt that that was very unsatisfactory.
The solution was to do it the other way around; namely, that he could put things into legal aid but could not take them out by regulation. But we see the virtues of the amendments, which are not quite the same in wording but come to the same thing, in the names of the noble Lord, Lord Thomas, and my noble friend Lord Hart. Although I will move my amendment, I would be more than happy to accept either of their amendments. I very much hope that the Government will be happy to accept one of their amendments. I beg to move.
Lord McNally
My Lords, the principles underpinning this Bill include the need to establish very clearly the scope of civil legal aid services. We need to ensure that the funding of the scheme is sustainable in the light of the historic expansion of the scheme and the cost to the taxpayer. We have made difficult choices in order to focus legal aid in our priorities and therefore we will resist amendments that seek to expand the scope of the scheme. However, I accept that a case has been made by my noble friends Lord Thomas and Lord Phillips, and indeed by the noble Lord, Lord Bach. If they do not press their amendments this evening, I give a clear undertaking to the House to bring back our own amendment at Third Reading which I think will meet the concerns that have been expressed. I can reassure noble Lords that the Government accept the amendments in principle in so far as they would provide the Lord Chancellor with a power to add new civil legal services to Part 1 of Schedule 1. I hope that will allow the noble Lord to withdraw his amendment and await the government amendment at Third Reading.
Lord Thomas of Gresford
My noble friend will know that I have been urging this course upon him since the Bill was first drafted and I am delighted with the undertaking he has given.
Lord Bach
It is only a question for me to decide whether to put my amendment to a vote, but I do not intend to do so. I can see one or two faces opposite looking anxious—or perhaps they look confident. It is only graceful from this side to thank the Minister for arranging this concession by the Government. It is much appreciated and we look forward to seeing the draft amendment when it comes forward. In the mean time, I seek the leave of the House to withdraw my amendment.
Crime: Reoffending
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Lord McNally
I assure the noble Baroness that that is high on our list of priorities and that we intend to do so.
Lord Bach
My Lords, I think the House will be very pleased with the Minister’s comments in response to the Question today. I will ask him about Project Daedalus, which he will know about. It is an excellent scheme aimed at helping inmates at Feltham young offender institution not to reoffend after their release. It was set up under the previous Government and has the great support of the present Mayor of London, who said that it looked as though there had been a “substantial reduction in reoffending”. In these circumstances, why have the Government decided that this excellent scheme will not continue after May this year?
Health: Mesothelioma
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Lord McNally
My Lords, the noble Lord uses strong words. Of course I do not believe that victims of this dreadful disease are in any way part of a compensation culture. He is quite right to say that legal aid for these kinds of cases was removed by the previous Administration in 2000. However, his strictures on what we are trying to do on this are too harsh. First of all, there is no compulsion on solicitors to charge any success fee, let alone 25 per cent, which is the maximum they can charge. The reforms that we are proposing upgrade the costs awarded by 10 per cent and protect a large amount of that compensation for future care. It is therefore not fair to term our reforms in the way that the noble Lord described, but I am pleased to make the clarifications that he asked for.
Lord Bach
My Lords, will the Minister confirm that the Government’s civil justice proposals mean that mesothelioma sufferers may have to pay 25 per cent of their general damages, plus their special damages for past loss, which, because of the length of these cases, can be very significant? Given that these sufferers may die in a short period of time, why will the Government not back the principle that hard-working people who have done nothing wrong should receive their full damages and not a penny less?
Lord McNally
The noble Lord keeps on picking these cases to support. The fact is that the previous Government removed legal aid from these cases, as was pointed out—not many cheers for that. As to the package that we have put together, as I said before there is no compulsion on solicitors to demand a 25 per cent success fee from these people. Solicitors still get their full fee; we are talking about the maximum success fee that they can get. We are putting in place a system that deals with a real abuse in the costs of these cases that crept in after the reforms that the noble Lord’s party introduced in 1999. We are simply returning to the system as originally brought in by the previous Government. We think that that worked well and will work well again.
Legal Aid, Sentencing and Punishment of Offenders Bill
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Baroness Howe of Idlicote
My Lords, I want to add my very brief words in support of these two proposals. Indeed, I hope very much that the noble Baroness, Lady Gould, and my noble friend Lord Ramsbotham will get together and work out the best framework. A women’s justice board—I hope that that title will be retained—is without doubt something that has been called for, for a long time. Like the noble and learned Lord, Lord Woolf, I would like to say how pleased I am that the Youth Justice Board has been retained—very wisely, if I may say so.
It is clearly a fact that women need rather different treatment, which is increasingly being recognised. There is a parallel with the kind of treatment and systems for young people, because they are a special group. Women above all have care for their young, and it is crucial that we stop the business of separating children from their parents by the systems that we have within the criminal justice system. We have been told by the noble Baroness, Lady Gould, that it costs something like £15,000 to treat a woman within the community compared with £56,000 within the prison system. Far more important, even than that cost, is to keep the family together. One of the really good things that this Government are concentrating on, I am glad to say, is community sentences. It is with an increase of confidence in community sentences that we are likely to see these sorts of programmes for women really develop.
I also want to support my noble friend Lord Ramsbotham’s demand—and it must be a demand—for someone to be in charge. He has made this point again and again. Someone must be responsible for what is happening and reporting back to Parliament on the progress made. Programmes for treatment—not just for youngsters and/or women but for many people, whatever their age, within the criminal justice system—will emerge from this, and we can learn from the report back.
That is more than enough from me, but I support this hugely important initiative and hope that it will get off the ground as soon as possible.
Lord Bach
My Lords, this has been a short but very important debate, and I commend all those who have spoken so far, showing great expertise. We have heard their voices before on this subject, much to our advantage.
The previous Government commissioned the report from my noble friend Lady Corston after the tragic and avoidable deaths of six women in a short period who were detained in the secure estate. Her report of 2007 was a watershed moment in our understanding of women's experience in the criminal justice system. The recommendations were not limited to the secure estate but extended more widely to the entire criminal justice system, including the aim of preventing offending by women as well as dealing with women who had already offended. I am proud that we as a Government took forward the majority of those recommendations. Within just over two years, several were implemented in full; others were piloted.
We are concerned that some of the recommendations are no longer getting the necessary resources. Everyone knows that we all want the same end, but it is a question of what means are employed to get it. We invested £15.6 million in the provision of additional services for women at risk of offending in the community, creating one-stop-shop support services and developing bail support to meet the needs of women. I understand that that has now been lowered to £3 million and that three of the one-stop-shop support services are no longer being financed. One close to where I come from is in Derby. Can the Minister find out and tell us the position? Is much less money being put in than was planned and are three of the one-stop shops not to receive any funding in the next financial year?
We set up a central ministerial responsibility. Two powerful women Ministers, Maria Eagle and Vera Baird, were put in charge of ensuring that the Corston recommendations were fulfilled. I believe that Mr Crispin Blunt is now in charge, but no longer is there that successful joint ministerial responsibility. Why has the women's justice policy unit, set up in the Ministry of Justice but including civil servants from many departments, being disbanded? I hope that those are fair questions, and if the Minister cannot answer them tonight, of course he can tell us by letter in due course.
I support the two sets of amendments. It is good to hear that both noble Lords will get together so that another amendment can be put at Report, which we very much hope will be accepted by the Government or, if not, by this House. Far too many women go to prison each year. The system is clearly still out of kilter. We should be grateful to my noble friend Lady Corston for starting us on a route to fixing a system that has been described so graphically this evening, not least by the noble Baroness, Lady Stern. Of course, the system is not fixed, as my noble friend Lady Gould said in moving her amendment. We want a system that works for the public, victims and offenders.
A powerful statutory voice at the centre of the system, whatever it is called, would be of huge benefit. As has been said around the Committee this evening, it worked very well with the Youth Justice Board. We are delighted that the Youth Justice Board is to survive. That would not have happened had it not been for this House. Its very existence hung in the balance for almost a year. It survived, and we are grateful to the Government, and particularly the Minister, who I am pretty sure played an important part in that decision. However, I hope that that does not indicate a certain state of mind towards the institution or organisation recommended in the amendments. As the Opposition, we certainly support the amendments and very much look forward to hearing what the Minister has to say in response to them.
Lord Bach
My Lords, knife crime has been a scourge on communities throughout Britain. I think my party, when in government, did quite a lot to tackle this appalling problem and yet it persists. Of course, some would say that the answer is to deal with the causes of such crime, particularly where young people are concerned. Yet the Government say that the answer is to create a new crime that is entirely covered, as the noble and learned Lord has just made abundantly clear, by existing crimes. For my part, I cannot see any logic behind it at all. Frankly, someone who uses a bladed weapon to threaten another person is guilty of a very serious criminal act, but that act is covered by existing statute law. More than that, there is guidance on sentencing and, of course, there is case law.
For our part, we will not be drawn tonight into the game that we fear the Government are playing with this legislation. It is legislative public relations, no more and no less. I look forward to hearing the Minister's response to the points that have been made so well by the two previous speakers. I wonder whether he is as proud of this piece of legislation as he was of the last piece of legislation concerning rehabilitation of offenders. I rather feel that he is not.
Lord McNally
My Lords, we believe that currently there is no offence that specifically targets the behaviour covered by this clause; namely, the most serious of threatening behaviour where people carrying a knife or an offensive weapon use it to threaten and cause,
“immediate risk of serious physical harm to that other person”.
We believe that we are sending a clear message to those who behave in that way that they cannot expect leniency.
I understand, and very much respect, where my noble friend Lady Linklater is coming from. I want to make two points, one of which I have made before to the noble Lord—I am always tempted to say “my noble friend”—Lord Judd, who I am glad to see in his place. I make them to the noble Baroness as well. I understand that these under 18 year-olds, these children, may have various and complex difficulties in their personal lives. I did not. I was brought up on an ICI estate, where there were children who had difficult and complex lives but they did not adopt crime or violence. My simple point is that even children have choices and many do not adopt a path of violence.
I speak as the parent of three young children who have just come through their late teens. I know the fear in the hearts of parents of teenagers who go out on a Friday or Saturday night. The fear is always there that one piece of bad luck, one act of disrespect, will end up in their child being severely injured or perhaps even killed by someone carrying a knife. We are addressing that fear. All speakers have acknowledged that knife crime is a serious problem. I am as pleased as anyone that there has been some decrease in knife crime, but I do not think that it does any harm, particularly in the 16 to 17 year-old age group, to do a little bit of public relations and to send out a message that it is not fashionable—it might even be plain stupid—to carry a knife, to brandish it and to threaten people with it. I do not belittle any of the examples that have been given of people who deal with the problems of violence in our society but, in putting forward this law, we are addressing a real issue and making it clear that knife crime is unacceptable. It is not the first example of a minimum sentence. Nor is it the first example of a minimum sentence for 16 and 17 year-olds. There is a minimum sentence of three years for certain firearms offences committed by 16 and 17 year-olds. That measure was brought in by the previous Labour Government in the Criminal Justice Act 2003.
The Government believe that it is right to have minimum sentences specified in law where a certain offence warrants a strong and clear message that a certain type of behaviour will not be tolerated in a decent and law-abiding society. That is why we are legislating for the courts to be able to apply a minimum custodial sentence of four months' detention and training for 16 and 17 year-olds. However, as was pointed out, the legislation builds in discretion concerning the welfare of the offender, which is sensible. The amendments tabled by my noble friends would remove the minimum sentence not only for 16 and 17 year-olds but for adults. The Government cannot accept them. They would undermine our firm intention to stamp out these crimes. Therefore, I hope that the noble Baroness will withdraw her amendment and the noble and learned Lord will not oppose the Question that the clause should stand part of the Bill.
Lord Judd
My Lords, I congratulate the noble Baroness on having put this issue before the Committee. I am not sure that I see some of the points she made as quite as clear-cut as she suggests they are. There can be tremendous complexities and very real, painful stories behind houses that stand empty for longer than six months. There may indeed be social issues that in themselves need to be addressed. But what I think she is absolutely right about is that if a high percentage of the people who are squatting in the way described are particularly vulnerable with a disproportionate number of problems, for the life of me I cannot see how adding criminalisation to all the other complexities that they face so inadequately will help them to sort out their lives. It seems to be a cynical and cold-blooded approach. I have moments, when listening to the Minister, when I fear that he has got embarrassed about liberal principles and feels he must distance himself over and over again. I certainly do not recognise any liberal principles in this piece of legislation.
Lord Bach
My Lords, the Committee owes a debt of thanks to the noble Baroness, Lady Miller, for having brought this difficult subject to our attention. It is not her fault that we are discussing it in the watches of the night and she has no need to apologise for taking the time of the Committee in explaining her point of view. As she said, the provision on squatting was introduced in another place with very little opportunity for scrutiny even on Report. The debate was pretty short. So this represents the first chance, and I hope not the last, for Parliament to get its teeth into these proposals.
Prima facie, the new criminal offence will demonise the absolute poorest, those with mental health issues and those who, frankly, have no other option than to shelter in properties that are, for the most part, unfit for habitation. Of course, we take the view, as does everyone else of sensible mind, that lifestyle squatting is quite beyond the pale and absolutely unacceptable—we oppose it as a principle as much as anyone else.
However, there is a big difference, as the noble Baroness demonstrated, between those few who jump carelessly into properties owned by others with the intent of abusing—severely abusing in some cases—the rights of ownership and those who have no other option unless they want to live on the streets. Anyone who lives in central London, for example, knows that the number of people living on the streets is going up as we speak. A large number of those people have no doubt, from time to time, “squatted” in the terms of what will become this legislation.
Our media, of course, are quite happy to remind us of the instances of outrageous behaviour by lifestyle squatters, but they are curiously quiet when it comes to telling us about, for example, a veteran with severe post-traumatic stress disorder who is addicted to drugs and alcohol and shelters in a property riddled with asbestos. Is he the sort of squatter whom the Government are out to get?
Squatting for the main part is already illegal and, in most instances, criminal, too. The Criminal Law Act 1977 makes it a criminal offence for any person to leave premises when required to do so by “a displaced residential occupier” or “protected intended occupier” of the premises. Parts 55.1 and 55.3 of the Civil Procedure Rules allow for owners to evict someone in a residence they do not occupy. Moreover, an interim possession order, backed up by powers in Section 76 of the Criminal Justice and Public Order Act, means that a criminal offence is committed if an individual does not leave within 24 hours of such an expedited order being granted. So given that all homeowners are protected by the criminal law, unless their property has lain empty for a substantial period and no one is imminently moving in, where does this need for reform of the law lie?
Perhaps a hint came in the signature leaks to the media. A series of reports leading up to the unveiling of this government policy focused on the very sad case of Dr Oliver Cockerell and his pregnant wife who, the ministry briefed, were thrown out of their house by squatters. However, in that case, it emerged that the police, for once, had wrongly stated that the case of the doctor and his wife was a civil issue and not one for them. In fact, as Mr Cockerell and his wife were protected intended occupiers, it is more than arguable that the police should have intervened under the current law. Their failure to do so was not atypical and the position does not require the kind of legislative, heavy-boots intervention that the Government intend.
The Welfare Reform Bill and the legal aid Bill that we are debating tonight both deal in parts with impecunious and very vulnerable people. The two Bills together will increase the number of people who have to resort to living in condemned housing out of desperation. We know, thanks to social welfare researchers, that there is a significant prevalence of mental health problems, learning difficulties and substance addiction among those who are homeless. In fact, the Government’s own impact assessment, referred to in passing by the noble Baroness, tells us who is forced to squat. It said:
“Local authorities and homelessness … charities may face increased pressure on their services if more squatters are arrested/convicted and/or deterred from squatting. Local authorities may be required to provide alternative accommodation for these individuals and could also face costs related to increases in rough sleeping in their areas. An increase in demand for charities’ services”—
food or shelter—
“may negatively impact current charity service users”.
It goes on:
“There may also be a cost to society if this option is perceived to be unfair and/or leads to increases in rough sleeping”.
When the costs are identified, as the noble Baroness said, they are reasonably substantial.
We do not believe that the Government have a clue how many people actually squat. The reason for bringing in this new piece of criminal legislation is pure populism. It is demonisation of the poor by another method. We had concerns and said so on Report in another place. Those have been reinforced, frankly, by the way in which the Welfare Reform Bill and the legal aid Bill have been carried through by the Government. We have heard much more about opposition to the plans as they now stand.
I am not saying that we agree precisely with the amendment of the noble Baroness. It may be that six months is too little. I hope that when she withdraws her amendment tonight and there is time between now and Report there will be some discussion as to what the right amount of time should be and whether the wording is appropriate.
However, if the noble Baroness were to bring back her amendment in a different form, perhaps with a longer period of time, we would be sorely tempted to support it on Report. I take the point made by the noble Baroness, Lady Stern, in her brief intervention. We were criticised incredibly strongly and sometimes with justification for bringing in too many new criminal offences by just those people who are bringing them in now. This debate and the previous one introduced two new criminal offences that are frankly not needed. What is the explanation for that?
It is very telling that the Metropolitan Police, the Bar Council and the Law Society, none of which are natural friends of the squatting community, all think that bringing this particular legislation is completely unnecessary. We look forward to hearing the noble Lord's justification for it.
Lord McNally
My Lords, beware the caveat about being sorely tempted to support the amendment. We will wait until Report to see how sorely tempted the noble Lord is. The noble Baroness, Lady Miller, said that this is a knotty and difficult problem, and so it is, but let me put it simply; the Government believe that the criminal law can and should go further to protect homeowners and occupiers. There should be a specific criminal offence that protects people from those who squat in their residential buildings.
Many residential property owners have described the anguish that they experience when discovering that squatters have occupied their properties. I say to my noble friend that local authorities too have expressed concern about this problem. The huge expense and incredible hassle of getting squatters evicted has been described.
The Government believe the harm that can be caused by squatters is unacceptable and must be stopped. The new offence would be committed where a person is in a residential building as a trespasser, having entered it as such, knows or ought to know that he or she is a trespasser and is living in the building or intends to live there for any period.
The whole point of creating this offence is that the Government want to send a clear message to existing and would-be squatters that occupying someone else's house without permission is unacceptable, whatever the circumstances of the rightful owner or the state of the building. It does not suddenly become acceptable to squat if the owner of a property happens to go away for six and a half months. Amendment 188 is designed to protect people who squat in residential buildings that have been empty for more than six months, where no significant steps are being taken to refurbish, sell or let the property.
Lord McNally
It was decided that this was more descriptive of what the Bill was intended to do. I also draw the attention of the House to the fact that, late yesterday, I tabled Amendment 198, which added to the Long Title,
“to make provision about the rehabilitation of offenders”.
It is probably the only criticism that I would make of the noble Lord, Lord Ramsbotham, but I sometimes think that—rather like his desire for committees in the structures we were talking about yesterday—he gets obsessed with form rather than substance. The rehabilitation of offenders is in the Bill. What is more important, it is in the daily action of the Ministry of Justice. Ever since I became the Minister, every day I have emphasised the importance of rehabilitation, for exactly the same reasons as the noble Lord, Lord Judd, gave. It is a win-win. If you can rehabilitate, you save the public purse from having to put someone in prison again at a cost of £40,000 or £50,000 a year. You save future victims from the crimes that that person would have committed. Actually, it is a triple whammy, because if you can really rehabilitate, you get a taxpaying, constructive member of society. Everything that we have been doing, especially in Part 3 and the piloting programmes, is aimed to get effective rehabilitation.
I am very much impressed at the attention paid to my speeches at Liberal Democrat conferences. I shall take even more care over them in future. As for the rest, you will have to wait for my memoirs. I do not think that changing the Short Title at this stage of the process is helpful or will have an effect.
On what the noble Baroness, Lady Howe, said right at the end, this is an extra half day in Committee for the Bill. Perhaps if we all made a resolution to make shorter speeches, we would not find ourselves debating these issues at 23.33. In the mean time, I hope that the noble Lord will withdraw his amendment.
Prisoners: Transport
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Lord McNally
Yes, the inquiry will go far wider. As I said, the wider review which is under way will look at both the public and the private sectors. The review’s aim is not just to hold an inquest into what happened but to learn lessons that will be helpful in the future.
Lord Bach
My Lords, the House will be grateful to the Minister for his answers to this Question. Are the Government satisfied that all those with the responsibility—and it is a difficult responsibility—for transferring prisoners are trained to a high enough standard in all cases to perform their difficult task? Prison officers certainly are. Are the Government content that everyone else who has this responsibility is trained to a high enough standard, too?
Lord McNally
Yes, I think that I can give the noble Lord that assurance. Again, standards of training is one of the things that the inquiry will be looking at. This will of course vary because we are talking about a large number of movements throughout a year and many of them are a very low category indeed. Under successive Governments over the last 15 years, the actual number of successful break-outs or escapes in transit has made this very much an exception rather than the rule. That is a sign of the improvements in transportation facilities and the training of staff. The wider review will look at this. As I said, if lessons are to be learnt, we will learn them. There is also the prospect that, with a greater use of television to allow distance interviewing of prisoners, there will be less need to transport them.
Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord Goldsmith
I am sorry, the Supreme Court—how outdated I am. To fill that gap would be very valuable. My understanding, like that of the noble Lord, is that the Supreme Court would welcome this. That is not surprising because the president of the Supreme Court is the noble and learned Lord, Lord Phillips of Worth Matravers, who, when he was Master of the Rolls in the Court of Appeal, was instrumental in passing the earlier Bill, but no doubt the Minister can confirm that. If not, his unsleeping department will be able check it instantly. I strongly support the amendment and hope that the Government will be able to accept it.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I am grateful to the noble Lord, Lord Bach, for his intervention, and to the two noble Lords who contributed to the debate. The role of the Ministry of Justice in pro bono work is undertaken in partnership with the Attorney-General to endorse, support and facilitate pro bono initiatives. The Attorney-General carries policy responsibility for pro bono work within the Government, presumably following the initiative of the noble and learned Lord, Lord Goldsmith. I certainly pay tribute to the work that he has done for the Access to Justice Foundation. I understand that the foundation runs an awareness-raising campaign, Unlock Funds for Justice, while on the other side the MoJ is providing funds for LawWorks over the next 18 months to fund two specific projects. LawWorks is the primary referral agency for legal help provided pro bono by solicitors. Although he is not in his place at the moment, I know that my noble friend Lord Phillips of Sudbury has played a big part in promoting the agency.
Let me say first that the Government recognise the valuable contribution made by the legal profession in providing advice through pro bono work. The pro bono contribution made by the legal profession is made alongside publicly funded legal assistance. It is an adjunct to, not a substitute for, such assistance. I think that these speaking notes must have been left over from one of the briefs of the noble and learned Lord, Lord Goldsmith.
Lord Goldsmith
My Lords, this group of amendments touches on a number of important issues. I have great sympathy with what my noble friend Lady Quin and the noble Lords, Lord Ramsbotham and Lord Wigley, said on those issues. I shall not touch on those matters as the noble Lords have greater experience. I was slightly alarmed to hear what the noble Lord, Lord Ramsbotham, said about the intention to take away prosecutors from conditional cautions. We will consider that issue later in the Bill and I look forward to hearing just what the proposal is and the justification for it.
I want to spend a moment or two on the amendment moved by the noble Lord, Lord Ponsonby of Shulbrede, which does a great service to the Committee by focusing attention on the need for the victim to know in appropriate ways what the outcome of the case has been. The victim, although not like a plaintiff in a civil action, is after all still the person to whom the offence happened, and it is right that the victim should therefore be told what happened, and told appropriately. I also very much agree with the noble Lord that generally that duty should be on the prosecution.
It is important that the public and victims see that prosecutors are there to some extent as an interface between them and the court and justice system, and that prosecutors focus on the needs of victims—as well, obviously, as on the professional requirements of their job to bring and prosecute cases fairly.
My question about the amendment, while fully supporting the spirit and intent behind it, is whether it is necessary for that to be dealt with by way of imposition of a duty and a new form of order. I say that because I would have hoped that, by now, prosecutors would know that they have that responsibility. I will be interested to hear in due course from the Minister and the noble Lord, Lord Ponsonby, who has promoted the amendment, whether it is believed that prosecutors are not doing that.
There are one or two reasons why a duty may give rise to difficulties. The prosecution may not always be a professional prosecutor. Sometimes the prosecutor may be a private prosecutor. It may be inappropriate for a number of reasons to impose the same duty on a private prosecutor—a neighbour in a neighbour dispute, for example—as on a professional prosecutor. There may also be victims who need particular care in explaining to them the outcome of the case, and that may need professional skills.
I am also concerned that, by imposing a particular duty of information on prosecutors, we do not take away the need for them to provide other information. Reference has already been made in this short debate to the need for prosecutors to keep victims informed of the progress of cases. In my day, we attempted to deal with that and provide flexibility by creating a victims’ charter, which was intended for prosecutors to sign up to under the guidance—or, indeed, direction—of the Attorney-General, which would cover progress of the case and, as the noble Lord, Lord Ponsonby, said, its outcome. That may be a better system to achieve what he wants.
As I said, I look forward to hearing what the Minister has to say. I entirely agree with the fundamental point that the victim should be informed of the outcome appropriately and that the prosecution should have a duty to do so.
Lord Bach
My Lords, this is the first debate of many, I suspect, on Part 3. Part 3 is entitled “Sentencing and Punishment of Offenders”, and Chapter 1 is entitled “Sentencing”. Luckily, there does not seem to be a part entitled “Punishment of Offenders”, but we know that that was a late introduction to the Title of the Bill many months ago.
I shall be very brief indeed. The Committee has been lucky enough to hear speeches from many noble Lords, all of whom have great experience of the criminal justice system in the best possible way—by being either magistrates or experts for many years in the work of the system. We are very lucky in the Committee and the House to have them to give us the benefit of their wisdom on it.
Part 3 is very important. The Opposition certainly do not intend to be difficult in any way about this part. If we think the reforms are wrong, we will say so; if we think they are right, we will happily agree with the Government. We know from our experience of government that this is not an easy area to deal with. Sometimes Governments have to be tough in the face of what seem overwhelming arguments from Parliament; and sometimes Governments can be too tough and not take note of sensible recommendations made.
From listening to what has been said on the various amendments tonight, some sensible suggestions have been made—none of them revolutionary or radical—to change the system. Clause 61 is liked; the noble Lord, Lord Dholakia, said that he approved of it, and I suspect that that is true of others around the Committee.
The only point that I will make concerns victims. I think that the Statement made by the right honourable gentleman the Lord Chancellor in another place on Monday regarding the Criminal Injuries Compensation Authority, as it is now known, and the change of policy on some of the tariffs may have been quite disappointing for some victims and victim groups. I am sure that does not mean that this Government are in any way less committed to looking after victims’ interests than were the Government of whom I was a member. I know that all those who talk about fair play for offenders—making sure that the system includes rehabilitation for them and a chance to do better—have exactly the same feeling about victims as the rest of us.
I do not want to go into any of these amendments tonight, and I am quite sure that the Committee is with me on that. However, I do want to hear the Minister’s response to the points that have been made. I hope that he is sympathetic to these amendments. I am sure that none of them will be pushed tonight but some important points have been made and we look forward to his reply.
Lord McNally
My Lords, I thank the noble Lord, Lord Bach, for the constructive way in which he has responded. I hope that Part 3 of the Bill can draw on the experience and expertise around this House. I see a number of old friends and familiar faces in this area of policy. I am also grateful to a number of noble Lords for having the chance to discuss these issues in advance of them reaching the Committee. That has been of great help in understanding where they are coming from with their amendments.
Before I turn to the amendments, it may assist the Committee if I explain what Clause 61 intends to do. It replaces the current Section 174 of the Criminal Justice Act 2003 with a revised section that simplifies the existing duty to give reasons for, and explain, the sentence.
In response to the consultation paper Breaking the Cycle, the judiciary, among others, said that the current statutory requirements are overly prescriptive and have become increasingly complex as additional requirements have been added. As a result, the current legislation is difficult to find and difficult to understand, and in the day-to-day operation of the court can simply become impractical. The Government wanted to address these problems, which is why we created in Clause 61 a replacement Section 174. It has been simplified and shortened and consolidates the various changes made to the section since 2003. In doing so, however, we have retained the important statutory requirement placed on courts to explain the effectiveness of the sentence and, crucially, the duty to state in open court and in ordinary language, in general terms, the court’s reasons for deciding on the sentence. This means that not only the offender but victims, witnesses and the public can see that justice is being done.
A balancing act is required here. On the one hand, we need to ensure that courts make very clear why a sentence is being imposed and what the effect of the sentence is. On the other hand, we need to avoid burdening courts with unnecessary and prescriptive provisions that are very often irrelevant in particular cases and which, rather than clarifying the position, simply confuse victims, witnesses and offenders.
I turn to the details of the amendments and begin with Amendment 172A in the name of the noble Lord, Lord Ponsonby. I start by saying that I take the point made by the noble and learned Lord, Lord Goldsmith, about greater transparency. He will remember that when he was Attorney-General there was an obligation on victim care units jointly run by the CPS and the police to explain sentences, regardless of whether the case was brought by the CPS or was a private prosecution. The Ministry of Justice has also embarked on a transparency programme, publishing data about the outcomes of court cases. We hope that being able to see the progress and outcome of cases will give people confidence.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Bach Excerpts(12 years, 9 months ago)
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Lord Thomas of Gresford
My Lords, it is a relief to know that the Ministry of Justice, like New York, never sleeps. No doubt the opinion will be pored over and there will be further discussions before we get to Report.
I invite my noble friend to do this now. He says that the proper way to proceed is for one-way cost-shifting to be introduced by tailored Civil Procedure Rules. Your Lordships will recall that on Monday the noble and learned Baroness, Lady Butler-Sloss, and I made the point that there should be guidance from Parliament, not simply a discussion between the Executive and the Civil Procedure Rule Committee, about the parameters of those rules and what the boundaries and structure are to be. I would be grateful to know from the Minister the position on this particular point. He is shifting the burden of the success fee and the ATE premium over to the successful claimant. Is that going to be co-ordinated and timed to come into effect at the same time as one-way cost-shifting? That is the key issue. If you do not have one-way cost-shifting, you are shifting to the claimant the liability for the defendant’s entire costs, if he should lose, and consequently an enormous premium. We heard of premiums of £900,000. I am familiar with a premium of £80,000. I think that the standard is in thousands for any sort of claim. If, on the other hand, one-way cost-shifting comes in and the defendants’ costs are paid by the defendants win or lose, we will be concerned with a premium for a much smaller thing, which is the disbursements of the claimant, should he lose. The risk is that much smaller.
Lord Bach
We on this Front Bench agree absolutely with the question that the noble Lord, Lord Thomas of Gresford, has asked the Minister. It is crucial. To broaden the point slightly, the great danger in the Bill is that we are changing the current arrangements, but the way that they will work in practice is subject to regulations of which there is no sight at present. We need from the Government a statement about how they intend to implement this part of the Bill if they get it through. We have no idea at all. The example that the noble Lord gave is the best one of all. It is critical, but there are other examples where a great deal relies on regulations that are to be made at a later stage, sometimes to be passed by affirmative resolution, sometimes by negative resolution. It is not really a satisfactory way of changing the civil law in such a fundamental way. I would be grateful if the Minister, in his reply to the noble Lord, Lord Thomas of Gresford, would deal with the general point as well.
Lord McNally
The noble Lord is absolutely right. I have given my reply. That was the reply of the noble Lord, Lord Thomas, to my reply. But I am very happy to take the point. We are considering a consultation. We have said that our judgment is that it is better in rules rather than in the Bill.
Lord Bach
Should all that not have been done before the legislation comes before one House, let alone a second House of Parliament? The result of the consultation, or the Minister’s consideration of it, will probably not be known until this Bill has become law. Is that not much too late and entirely the wrong way round?
Lord McNally
The pained look with which the noble Lord, Lord Bach, comes to the Dispatch Box and implies that the Government is the first Government in the world to bring forward legislation with further consultations needed about specific regulation is a bit rich. The implications of this Bill will come into force in April 2013. We have a period of time for such consultations. As I said before, I take the point that there has to be a synchronisation in these matters. I do not think we are doing anything unusual by legislating in this way, but we take on board the points made in this debate.
Lord McNally
My Lords, in 1962—which is now, sadly, 50 years ago—part one of my degree course contained a subsidiary paper on English legal institutions. About the only thing I can remember from that course is the concept of champerty and maintenance. It therefore came as something of a shock to be told that it no longer applied, and indeed had not applied for some time.
Lord McNally
I have been trying to keep that quiet. The paper I mentioned was one of nine papers that I took in 1962 for my economics degree. The other day I found the statistics paper, which evidently I had passed. However, not only did I not know the answers to the questions, I could not understand the questions.
Lord Neill of Bladen
I support this amendment. The practice that it outlaws seems to be absolutely disgraceful, with an insurance company being paid by its own side—by the defendant—and then approaching the plaintiff to try to do a cheap deal with him for the benefit of the defendant. It seems to me that the conflict of interest is so gross that it ought not to be permitted at all. I am a little surprised by the words in the amendment, which mention knowing that the plaintiff is represented, because I am not quite sure how the amendment would cover a situation where the plaintiff had no representation. When thinking about how one would refine the language, I think one might consider taking out that qualification, because, with a general ban on this practice, your Lordships would simply agree with the amendment.
Lord Bach
My Lords, we welcome Amendment 164 in the name of the noble Lord, Lord Thomas of Gresford, and Amendment 164ZA in the name of my noble friend Lord Dubs. I also welcome the remarks of the noble Lord, Lord Neill of Bladen.
Amendment 164 is really about motor insurance and motor accidents. All Members of the Committee will agree that motor insurance is a social good. It is unique among financial service products in that it is not just necessary but carries with it the coercive powers of the law. As we all know, failure to insure a motor vehicle is a criminal offence with a fixed penalty of having the vehicle wheel-clamped, impounded or destroyed or facing a court prosecution and the imposition of a maximum fine.
That is all well and good and we all agree with that philosophy, but the private industry that delivers this social good is, as has already been said in this short debate, frankly deeply dysfunctional at present. That is perhaps an understatement. Its protagonist, the road traffic personal injuries sector, which comprises 75 per cent of all litigation, has developed deeply dysfunctional behaviours too. The arms race between road traffic personal injury lawyers and the insurance industry is completely dysfunctional.
The Transport Select Committee in another place has studied this twice in the past year. My right honourable friend Jack Straw has led a campaign to fix these structural issues in a market that is very flawed. We have seen the rise of an industrialised road traffic accident personal injury market, aggressively marketed as though it were a consumer good and operated a bit like a sweatshop, with non-lawyers hired at cheap rates to process hundreds of thousands of claims a year. This number is still growing at a startling rate.
Lord Carlile of Berriew
There is certainly that possibility.
I wanted to add something else about hospitals. When I was a Member of another place, I often visited a celebrated orthopaedic hospital in the next county. At that time—I cannot say whether it is the case now—at the end of a long corridor in that hospital there was a solicitor’s office. That was an unusual arrangement but one that no doubt brought some rent to the hospital. I have real reservations about that kind of arrangement. I am all in favour of general advertising and it is right that solicitors’ firms should be able to advertise in local and national newspapers so that people are aware of the kinds of specialist services that they provide. But we must take this opportunity to reject anything that smacks of ambulance-chasing.
Lord Bach
My Lords, the Committee seems to be at one in its attitude towards the amendments, and I include those of the noble Lord, Lord Hunt, as well as those in the name of the noble Lord, Lord Clement-Jones, who has spoken so persuasively. I hope that we are as one and that that includes the Minister. The amendments really cannot be argued against.
I intend to be pretty short in what I have to say as there is other business waiting to get on and we have had a long session today, but I have to say to the noble Lord, Lord Hunt, who talked about the Jackson report, that it is wrong to ally the Jackson conclusions with the conclusion that the Government have reached on his report. Lord Justice Jackson’s balance obviously appeals to the noble Lord and no doubt to many others, but it did not appeal to the Government, who have picked and mixed from Lord Justice Jackson’s findings.
In particular—I am afraid that I have used this example before and no doubt I will use it again—Lord Justice Jackson could not have been clearer that he did not believe that civil aid should be cut further, particularly with regard to clinical negligence. Indeed, when the Government decided that that was exactly what they were going to do, Lord Justice Jackson made his now quite famous Cambridge speech, which attacked—if that is the right word; a better word might be “criticised”—the Government for the stance that they have taken. So there is a difference between what Lord Justice Jackson said in his report and how the Government have responded. I am not saying that any other Government would have taken everything that Lord Justice Jackson said, although of course he saw it as a package. But I am saying that in this instance there is a difference.
On the question of claims management cases, I shall briefly mention that my right honourable friend Jack Straw, whose name has come up already in discussions today, gave the example in another place of a friend of his who, just like the noble Lord, Lord Carlile, was bombarded with texts and personal calls from claims management firms following a minor accident in which he suffered no injury. In that case, apparently, the details had been sold to the claims management firms by his own insurance company. I just wonder whether that might have been a possibility in the noble Lord’s case, although it may be that his insurance company did not know about the accident. Actually, there is no reason why it should have known as he suffered no injury and he was a back-seat passenger. It is interesting to consider exactly how the company found out in the time that it took for him to get back to Heathrow, but the point that he makes is clear.
Unsolicited spam, which we are talking about here too, is incredibly intrusive. Worse than that, it must be appalling to have a minor prang and find people trying to prey on you for, effectively, a quick buck. This is a real problem.
It is not as though whiplash does not exist; it does. There are genuine cases and it can cause real pain, discomfort and disruption in people’s lives. However, when ordinary people are encouraged or persuaded to exaggerate their symptoms, knowing that it is difficult for a doctor to diagnose the degree of impairment in a particular case, that is when the problem really shows itself. We support the amendments and hope that the Government can indicate today their intention to bring forward amendments on Report in these or similar terms.
Once again, I put to the Minister a question that—inadvertently, I am sure—he failed to answer on an earlier amendment but which is relevant now. Do the Government intend to move on Report the contents of the Private Member’s Bill that my right honourable friend Jack Straw moved in another place?
Lord Clement-Jones
My Lords, I thank the Minister for that reply. Apart from the metaphorical slap on the wrist at the end of his response, it was generally helpful. I thank those who have spoken to the amendments. The noble Lord, Lord Hunt, made some interesting contributions and it is good to hear that the Minister is looking favourably on those amendments. The phrase about removing the excess from the system is very powerful. My noble friend talked about commoditisation and the possibility of litigation futures. The lawyers are probably salivating at that prospect. A number of noble Lords have recounted their experiences in this area. I will not add to the list of those who have spoken on that. However, I have even received a text message when I have not had an accident, which just shows the assiduity with which these characters operate.
I enjoyed hearing the noble Lord, Lord Bach, going well off piste when discussing the Jackson report in responding to my humble reference to a single aspect of that report, which was then inflated into a general reference to the whole of the Jackson report.
Lord Clement-Jones
It is very useful to explain it in that way.
I thank the Minister particularly for his sympathy for Amendment 165. I very much hope that he will carry that forward to Report. Having looked at the existing legislation, I think it would be extremely useful to signpost that measure explicitly in this legislation. I also thank him for his assurance about pooled marketing and legitimate activities on the part of those pooled marketing schemes. They perform a very useful service and it would be a retrograde step if they were not able to continue. I will read with great care what the Minister said about Clause 55(9). I beg leave to withdraw the amendment.