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 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.
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
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the equality impact assessments lay out the best estimates of the likely costs and benefits of the reforms. The equality impact assessment considers the financial implications for not-for-profit providers, of which law centres are an example.
Lord Bach
My Lords, I thank the Minister for his reply. Everyone agrees what a vital and civilising role law centres perform around our country. Everyone agrees that early legal advice solves problems, helps people, changes lives and often saves costly and unnecessary cases going to court. The effect of taking social welfare law out of scope will be to reduce the funding for legal help by law centres by 85.8 per cent. Law centres will inevitably close and many thousands of people, often the poor and marginalised, will be left without access to justice. Even the TaxPayers’ Alliance chairman wrote:
“Almost everyone who has looked at these particular cuts thinks that too many of them will end up costing taxpayers more than they save”.
Does the Minister agree with that analysis, and would it not be an absurd and wrong result if we should end up spending more public money in order to make our country less just and less civilised?
Lord McNally
My Lords, the noble Lord will not expect me to agree with that analysis, which has been his constant theme during the passage of the LASPO Bill, and I suspect will continue to be, based on a worst-case scenario. We are restructuring legal aid and that will have an impact on the not-for-profit sector. We have never resiled from that. However, we also appreciate the benefits of the not-for-profit sector, which is why we provided £107 million in transitional funds and an additional £20 million to help the sector restructure for the new framework of legal aid and legal services that the reforms are intended to bring about. I do not accept the worst-case scenario that has been the basis of the noble Lord's arguments throughout the passage of the Bill.
Legal Aid, Sentencing and Punishment of Offenders Bill
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“( ) The amendments made by subsections (2) and (4) do not apply in relation to proceedings that include a claim for damages for loss resulting from any breach of duty to exercise professional care or skill.”
Lord Bach
My Lords, in opening this group of amendments, I shall do my best to be as brief as I can. The Committee is obviously in very tolerant mood this afternoon, as was shown to the noble Lord, Lord Thomas of Gresford, who made an excellent speech in favour of his amendments in the first group. His speech was almost as impressive as the report of Lord Justice Jackson in its completeness and, I was going to say, in its size. Both pieces of work are very much to be commended.
Before I discuss Amendment 123, I shall also speak to Amendments 124, 126, 132, 153, 154 and 156 in the group. It is worth pointing out to the Committee that for shorthand purposes we talk about the Government, as it were, accepting Lord Justice Jackson’s report. They have accepted part of it and rejected other parts. It is important to remember that at all times. Lord Justice Jackson himself, as all people in his position do, when putting forward his report before the previous general election, made it clear that it was to be seen as a package or not at all. Of course, the Government have decided to pick and mix—maybe all Governments, to be fair, would have decided to pick and mix, but this Government have certainly done that. What we meet in Part 2 of the Bill is not pure Jackson; it is very much a part of Jackson that the Government like but not the part that they do not like. In particular, that relates to legal aid and to clinical negligence. Other matters in Part 2 are not just not pure Jackson; they are anti-Jackson.
I shall set the scene for Amendment 123. An elderly pensioner places her life savings of, say, £40,000 with an investment adviser. That adviser assures her that he will keep it ticking over so she has some moderate income but will not be exposed to risk. Instead, the adviser, who has not his client’s but his own interests at heart, places the money in a high-risk instrument for which he gets a hefty broker fee. This otherwise impecunious pensioner loses all her money in the first year. Today, if she sued that investment adviser for professional negligence and won her case, he would have to give her back the £40,000—her own £40,000—pay her lawyers’ costs and a success fee which can range up to, as we have heard, 100 per cent of basic costs if he denies liability for as long as possible, and the insurance premium that the pensioner takes out to cover herself should she lose the case.
Under the proposed legislation, should it go through unamended, things would change dramatically. The pensioner would get her money back but then her lawyer’s success fee and the cost of insuring against losing would be deducted from her original capital. In short, the £40,000 might become £20,000, or even less. Surely the Committee would agree that that is an inequitable outcome, and not one that many in Parliament or outside could welcome. It is simply a by-product of legislation that purports to deal with tens of thousands of road traffic personal injury cases—largely whiplash—that drive up the cost of motor insurance, rather than the few hundred professional negligence cases which is what this amendment is about, that are heard each year.
It is only common sense that we should not seek to legislate for a system of litigation that allows professional people to prey on their impecunious and weak clients. The Committee today is full of professional people of one sort or another and the House is even more full of them when it is sitting. As we all know, being in a profession is a privilege. When a professional takes on contractual fiduciary and moral duties to do their best to help their clients, they take on an important responsibility. We have professions in our society because we need experts who specialise, whether it is expertise in finance, in my example, the law, engineering or medicine. They should know that society takes seriously if and when they act negligently, with malice, or breach their duty of care. Should we make it so difficult for the individual to take action and claim back their damages in full? Would that not have a corrosive impact on trust in the professions and their regulation, which is something that professions and the professionals themselves should not and do not welcome. We think that the answer to this dilemma is to listen to what Lord Justice Jackson said and extend one-way costs shifting to all litigation, not just keep it to personal injury. That in one fell swoop would deal with the problem that the Government talk about with regard to losing defendants’ paying the insurance premiums of winning claimants, which we are told simply inflate costs without adding a huge amount of value.
Secondly, perhaps we could limit the non-recoverability of success fees to 80 per cent of the litigation market—the side of the market that has more nuisance and abuses— which is low-value road traffic cases and public liability personal injury cases. Should we fail to do this, and leave the Bill unamended, the perpetrators of the PPI mis-selling scandal—the mortgage mis-selling scandal of the 1980s and 1990s which noble Lords will remember—and thousands of other instances when rogue professionals have abused their position of trust, will go unpunished and unheard. Their victims will multiply in a system where those who have been wronged are dissuaded from taking action against rogues, knowing that Parliament will have legislated to substantially limit their rights to redress. It would be something of a rogues’ charter.
I end what I have to say about this amendment by citing the views of the president of the Professional Negligence Lawyers Association who said that many litigants face the dilemma of having had their trust betrayed by one professional adviser and that their only redress by way of litigation is to risk remaining assets and perhaps insolvency by trusting another—meaning another professional adviser—to win their case. That is not a satisfactory position and we ask the Government to think again.
The subject of Amendment 124 is privacy and defamation. Both matters are—as always, but particularly at the moment—the subject of intense discussion. We are still living through a scandal that was as devastating to the reputation of the media industry as the expenses scandal was to the political world. Every Member of this Committee believes in both the freedom and the viability of the press; clearly that is something that unites us. At the moment we have the potential of major reform of the law of defamation being pursued through Parliament. The Minister who will respond to this group of amendments has responsibilities in that area. I commend what he has done up to now and I am delighted that the noble Lord, Lord Lester, is in his place, because he is in many ways the author of the reform of defamation that I hope we will see before long.
We welcome discussion and reform, which are important. The balance is wrong between the freedom of the press and the rights of the individual to be free of tortious defamation; we should look at that. However, the impact on the law of the legislation that we are discussing will be too grave for us to stand by while it passes. The impact of Part 2 of the Bill will be to make defamation and privacy proceedings in the main completely inaccessible to the average citizen. It is not just the Official Opposition who see this problem. The Liberal Democrats tabled amendments on Report in another place to exempt these cases from the reforms. The Joint Committee on the Draft Defamation Bill stated:
“Nonetheless we are sufficiently concerned about”,
the Government's proposals,
“to ask the Government to reconsider the implementation of the Jackson Report in respect of defamation actions, with a view to protecting further the interests of those without substantial financial means”.
I come to the Dowler case. As the Committee will know, Bob and Sally Dowler lost their daughter Milly. They wrote to the Prime Minister, asking for the reforms that we are debating to be withdrawn. They wrote:
“What we wanted to make clear to you is that we could not have done this without a “no win no fee” agreement ... What helped was the fact that we would be insured if we lost a case and a premium for the insurance would be taken from the other side if we won. Without that we would not have been able to start a case or even threaten it … We are sure that you do not want to go down in history as the Prime Minister who took rights away from ordinary people so that large companies could print whatever they like and break the law without being able to challenge them”.
That is perhaps the best example I can give the Committee this afternoon. It shows what is at stake here.
Let us imagine that, in the wake of a scandal as extraordinary as the hacking scandal—the hacking of the phones of hundreds of innocent people—our response in Parliament was to make it more difficult, or even impossible, for the victims to take action and expose further scandals. Without the powers of the court to compel disclosure as part of litigation, we would not have seen the mountain of evidence that we now know exists. There would have been no information, no investigation and no justice.
Why are privacy and defamation cases so problematic in this legislation? It comes down to the fact that in general the courts here do not award huge damages to victims of defamation or invasion of privacy. Damages are very low—an average of some £4,000. According to research analysis by Mr David Howarth, a Cambridge law professor better known to us as the shadow Justice Secretary in the previous Parliament and MP for Cambridge, average costs are around £11,000. According to Lord Justice Jackson, insurance fees are around £65 for cover of £100, and I am afraid that defendants sometimes rack up costs in denying liability for as long as they can. So the costs of the claimant and defendant dwarf the damages that are sometimes involved.
Lord Bach
I thank the Minister for his response, but he will not be surprised to hear me say that I found it deeply disappointing and unsatisfactory. I do not think that the arguments he has employed deal with the gravity of the issues raised in these amendments. I thank noble Lords who have spoken in this debate, in particular the noble Lord, Lord Lester of Herne Hill, with his expertise. In a moment I will respond to one or two things he said, which he will be able to see in Hansard because he is not in his place at the moment. I am particularly grateful for the contributions of my noble friend Lord Prescott and the noble Lord, Lord Martin of Springburn. They made this debate come alive with their powerful and passionate speeches which dealt with real-life situations as opposed to the theory that we so often talk about when we are dealing with this kind of legislation. If nothing else, I hope very much that the Government will read carefully what those noble Lords said before deciding their next step.
On the law of defamation, perhaps I may make my position absolutely clear. I believe that it should be changed and I look forward to the reforms. I have spoken on them before. We shall see what the Bill looks like but I am in favour of the reforms. Of course we want to see the right balance between claimant and defendant in defamation cases, as I hope we do in every part of our law. But we are not talking about that. You can have the best system in the world, but if only very few people can actually use it, it is not much good. That is the real criticism here. The system will be changed, it is hoped for the better, with a better balance for those who manage to get proceedings off the ground, but if it is only the rich and the powerful who can sue for defamation, then as I say, it is not much use and goes against the British system which should allow all people to have access to justice. If we leave it to the Defamation Bill itself, this Bill will already have passed in its present form. Is it really believable that the Government will then suddenly say, “Oh, we were wrong in the Legal Aid, Sentencing and Punishment of Offenders Bill and so we will change it now that we have the Defamation Bill”? I do not think so. That is why these issues have to be raised in this Bill.
The noble Lord, Lord Lester, was right to say that there are defendants in defamation cases who are not powerful, but I remind the Committee that defendants can and sometimes do use CFAs in cases of this kind. They, too—good, successful defendants—if they are not able to use CFAs because of the risks attached to the costs position, may find themselves not using them when they do already.
In theory, the Minister is absolutely right to say that the CFA system still exists and that people can still use CFAs, but in practice the question that arises from these amendments is this: will they, when they stand to lose their assets even if they win their case? That is the issue. We gently warn the Government now that it is no good looking at this four or five years down the line when it is discovered that the Government have been so inflexible in their approach to this part of the Bill that justice is denied to a large number of ordinary people because of the statute that will then be in place. The Minister said that there was coalition agreement about defamation reform. Indeed there was, but I remind him and the Committee that there was no coalition agreement at all about Part 2 of this Bill.
If the Minister accepts that damages are outstripped by costs, surely the Government must agree that success fees plus “after the event” insurance will dwarf the damages that are awarded; that is, victims will be left out of pocket. If they fear being left out of pocket, they are not going to sue, even if they have a good case. The original form of CFAs was also prayed in aid by the Minister. He should be reminded that the original form was only for PI and insolvency, certainly not for defamation cases. Here, of course, if the Government have their way, the changes will relate to defamation for privacy and professional negligence. If the Bill remains unamended, the effects will be very severe indeed.
We have had a good debate. I am grateful to the Minister for responding to it in the manner in which he has, even if his arguments are unconvincing. I beg leave to withdraw the amendment.
“( ) The amendments made by subsections (2) and (4) do not apply in relation to proceedings that include a claim for judicial review of a decision, or of a failure to decide, by a public body.”
Lord Bach
My Lords, judicial review proceedings offer a chance for the ordinary citizen to review decisions made by the state or by an emanation of the state, be it local government or powerful governmental bodies, if they have a justifiable interest in that decision. It is often the last chance for the law to review the decisions of lower courts and tribunals or state decisions that are not in themselves subject to appeals. The costs of bringing a judicial review claim are considerable, in the region of £10,000 to £20,000 for a straightforward case, and obviously higher for a more difficult one. If the claimant is unsuccessful, they are likely to be liable for the defendant’s costs as well as their own. They are therefore looking at legal bills of perhaps upwards of £30,000 if they lose and they must be prepared for this eventuality bearing in mind the unpredictability of judicial review proceedings by their very nature, and, of course, costs orders.
Conditional fee agreements are in theory available as a means of funding judicial review proceedings, although they are relatively rare. We are therefore not discussing the standard way of funding, but rather the minority of cases that are taken by CFA for judicial review. These are cases that are not being picked up by legal aid or other mechanisms of funding. In some instances, what is called a protective costs order may be the only way in which the claimant can bring the claim, or it may be necessary to consider applying for a protective costs order in combination with one of the options I have mentioned. However, protective costs orders are themselves available only in relatively limited circumstances based on the rules set out under the leading case of Corner House Research and subsequent decisions. We put this to the Minister in another place but felt that his answer was unsatisfactory. I ask the Committee also to find it so. I hope I may be forgiven for quoting him at length:
“Responses to our consultation indicated that CFAs are less commonly used outside the area of personal injury and are not frequently used in judicial review proceedings. In addition, ATE insurance is rare in judicial review In our view, therefore, the abolition of recoverability of CFA success fees would have relatively little impact on judicial review claims, and the key driver for the introduction of QOWCS to reduce the need for and costs of ATE insurance is not present. Although there is already some element of one-way cost shifting in judicial review cases where the claimant is legally aided—
the noble Lord, Lord Thomas of Gresford, explained to us the rule about QOCS in legal aid—
“or obtains a protective costs order, the introduction of QOWCS for all judicial review cases would be a significant change that could distort the market and significantly affect public authorities, which could face large numbers of unmeritorious claims that would have to be defended, at least until the permission stage”.
He went on:
“Under our reforms, people will still be able to bring cases on CFAs in areas where they are currently used, as we are returning the CFA arrangements to their original form. In judicial review proceedings, which raise issues of general public importance, claimants can, in appropriate cases, apply for a protective costs order to limit the amount of the defendant’s costs that they may be required to pay if they lose, and legal aid is also being retained for the vast majority of judicial review cases currently funded. Legal aid recipients will continue to benefit from cost protection”.—[Official Report, Commons, Legal Aid, Sentencing and Punishment of Offenders Bill Committee, 13/09/11; col. 555.]
On qualified one-way costs-shifting, this is plainly in contravention of what Lord Justice Jackson’s position appears to be. His recommendations were these:
“Qualified one way costs shifting should be introduced for judicial review claims … If the defendant settles a judicial review claim after issue and the claimant has complied with the protocol, the normal order should be that the defendant do pay the claimant’s costs”.
He pointed out that protective costs orders and legal aid did not pick up all cases and many meritorious cases.
Lord Justice Jackson wrote in his report, citing Michael Fordham QC and Jessica Boyd:
“A public law costs regime should promote access to justice. It should be workable and straightforward. It should facilitate the operation of public law scrutiny on the executive, in the public interest. This is the key point. For judicial review is a constitutional protection, which operates in the public interest, to hold public authorities to the rule of law. It is well-established that judicial review principles ‘give effect to the rule of law’…The facilitation of judicial review is a constitutional imperative”.
With regard to the success fee, we believe that Lord Justice Jackson may not be right. He said in his report:
“If qualified one way costs shifting is introduced, in my view that will strike the right balance as between claimant and defendant in judicial review proceedings. There is no justification for imposing upon defendants the additional burden of paying, potentially huge, success fees. Significantly, a number of respondents from both sides of the fence have recognised this principle during Phase 2. The success fee payable, if any, must be a matter between the claimant and the claimant’s solicitor”.
How, then, will the impecunious settle the success fee and from which non-existent bank account? Furthermore, if public law practitioners cannot retrieve their success fee, what will be the impact on their decision to take on 90 per cent to 10 per cent cases, let alone 50 per cent to 50 per cent cases? It is in the interests of justice that those cases are sometimes taken on, but many may not be in future. How will the Government protect the constitutional imperative, if they agree that it is one, that administrative law should be allowed to be pursued by the ordinary citizen in cases of judicial review when legal aid is not available? I beg to move.
Lord McNally
Yes, I would think that that was true. I understand that such cases are extremely rare. A success fee would not be the enticement to take the case.
Lord Bach
My Lords, I thank the Minister for his response. When I first accused the Government of not having accepted the Jackson package, I was very careful to say that whatever Government were in power would probably not have accepted every word of such a major report. However, it is interesting what this Government have accepted and what they have left out. In short, they have left out any defence of legal aid, whereas Lord Justice Jackson was very concerned that there should be no more cutting in civil legal aid. That is also very much the view around the Committee on Part 1 of the Bill as well as, in relation to Part 2, in the case of clinical negligence if nothing else. We think that the Government have picked the wrong bits of Jackson to support, and they have left the best bits out, which is rather careless of them.
Three senior costs judges, who deal with some of these issues daily, said in their submission on the Jackson report:
“we do not agree with the proposals set out in the Report ... The CFA regime has undergone many changes and improvements since implementation. Having taken a decade for these to have been achieved, now is not the time to made radical changes which give no guarantee that access to justice at reduced costs will be delivered under Jackson”—
they go on, perhaps rather unfairly, to say—
“where it failed under Woolf”.
That was their view. So there is a difference—a justifiable difference—of opinion, both in this Committee and outside this Committee among those who have to decide these cases.
The Government should be warned that they should not just stick so rigidly to their formula for changing without looking at individual areas of the law. Flexibility is important, as well as having rules. If the Government are just going to say no to every exception to Jackson, I fear that, certainly in some areas, the reforms that will then go through, if the Government get their way, will be disastrous for civil justice in this country because they will mean that so many people will not be able to get justice who are currently able to do so.
This is a probing amendment, but it also has some real feeling behind it. However, of course I beg leave to withdraw the amendment.
Lord Thomas of Gresford
My Lords, I must move this amendment, since it is in the names of the noble and learned Lord, Lord Mackay, of myself and of the noble Lord, Lord Bach. It is an alliance of all three parties.
Lord Bach
My Lords, we on this side very much support the amendment, in very much the same terms as the noble Lord, Lord Thomas of Gresford, has moved it. As he said, insolvency practitioners are appointed to help insolvent companies sue directors in order to recover money for creditors of the insolvent company. The companies are insolvent; they cannot pay for a lawyer—they have no assets. The practitioners’ job, which is sometimes a difficult one, is to recover as much money as possible. It is always in the public interest that they are able to do so, and I am sure that the Government would agree with that proposition. As both practitioners and regulators have warned, alongside HMRC and the Insolvency Service, these sorts of actions will be severely compromised in future. As the noble Lord has just told the Committee, HMRC is a major creditor, if not the major creditor, to many insolvent companies, so the public purse will itself be hit to the tune of £200 million. I remind the Minister that that is more than half of the total legal aid cuts and enough to pay for social welfare law at least twice over.
The Institute of Chartered Accountants for England and Wales, a very respected body, said:
“we are deeply concerned that the legislation in its current form could have a harmful impact on the insolvency process. Unless claims brought by insolvency practitioners are exempted, this legislation would prevent potential recovery from incompetent or fraudulent directors or bankrupts, which will result in greater losses being borne by innocent creditors when a business is made insolvent … Those creditors are usually small businesses or HMRC, who would lose potential tax receipts, a cost ultimately to the taxpayer. Furthermore, fraudulent directors and bankrupt sole traders would keep the gains they made from irresponsible management of their business”.
That is why Revenue and Customs and the Insolvency Service have lobbied the Ministry of Justice for an exemption, but to no avail.
Let me take noble Lords to the Guardian newspaper on 6 June last year, when it reported:
“A spokesman for the Ministry of Justice said: ‘We are considering the impact of abolishing CFA [conditional fee arrangements] recoverability in insolvency and related proceedings. These proceedings can bring substantial returns to creditors, including Her Majesty’s Revenue & Customs. We are therefore discussing the specific implications with a view to reaching a satisfactory conclusion.’ … A spokesman for Revenue & Customs said: ‘HMRC is in discussion with the Ministry of Justice about the implications of the Jackson Report but is unable at present to comment further on this matter’”.
The Minister can comment further on this matter in a few minutes’ time. What was the outcome of the negotiations between the Ministry and HMRC? We have heard why these cases need protection, but nothing on how this will be achieved. If the Minister is to support what is contained in the Bill, he should tell the Committee how he intends to protect against the arguments used by the noble Lord, Lord Thomas of Gresford, and myself in moving and speaking to the amendment. This is a good—if not the best—example of how wrongdoers will benefit at the expense of victims. In this case, it is even more serious, because the victims are us, potentially—the taxpayers and people of this country. That is why this particular amendment supports the proposition that a one-size-fits-all package is not right for the civil justice system and that a degree of flexibility needs to be built in. If the Government maintain their position on insolvency, the wrongdoers will gain and the creditors will lose. I look forward very much to hearing how the Minister defends this particular proposition.
Lord McNally
My Lords, I feel as any Minister would, who sees an amendment signed by the noble and learned Lord, Lord Mackay, and noble Lords, Lord Thomas and Lord Bach—the names sound like one of those formidable halfback lines from a 1950s soccer team. I know that it would be the wrong game for the noble Lord, Lord Thomas.
The amendments refer to both success fees and ATE insurance in insolvency. Just for information, Lord Justice Jackson recommended the abolition of recoverability of success fees and ATE insurance premiums in insolvency proceedings. However, we have already established that we do not simply use Lord Jackson as a defence in all matters. As the Government indicated in the other place, we are aware of the specific concerns around the impact of the CFA changes in insolvency cases. The use of CFAs in these cases, under the Insolvency Act 1986, can bring substantial revenue to creditors, including Her Majesty’s Revenue and Customs.
I cannot go a great deal further. The noble Lord, Lord Bach, has now introduced a new system whereby he makes my speech and his own speech and leaves not a lot for me to say. I am nevertheless grateful that on the record we had speeches from the noble Lord and from the noble Lord, Lord Thomas, setting out the problem in probing amendments, as they have acknowledged. As the noble Lord, Lord Bach, revealed in his speech, there are ongoing discussions between HMRC and MoJ, and the Government are considering the position in respect of insolvency proceedings. Until we have come to a conclusion—
Lord McNally
They are ongoing. I admit that sounds like that song “Reviewing the Situation” from “Oliver!” but I have no doubt that the good relations between the MoJ and Her Majesty's Revenue and Customs will produce a satisfactory result, which I will report to the House at the earliest possible moment. In the mean time, I request the noble Lord to withdraw his amendment.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Bach Excerpts(13 years, 5 months ago)
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Lord Thomas of Gresford
My Lords, I am glad to follow the noble Lord, Lord Martin, in what he has just said because I am concerned about the relatives of the victims of this terrible disease. We were addressed here in one of the committee rooms in the House by the Greater Manchester Asbestos Victims Support Group. One of the people who came with that group was Mrs Marie Hughes, who comes from my home town of Wrexham in north Wales. Her husband had worked as a youth in the Brymbo steel works, which is close to the town, but had gone into teaching and died of this disease at the age of 57 when he was head teacher. It had afflicted him a great deal later. I am very familiar with the Brymbo steel works, as was, because I worked there briefly during vacations as a young man.
What she told us about the effect of the disease upon her husband was that while attempting to come to terms with his diagnosis and his bleak prognosis he underwent gruelling, unrelenting and debilitating courses of chemotherapy, intensive radiotherapy and invasive surgery in the form of an extrapleural pneumonectomy, which involved the removal of a complete lung, half the pericardium and half the diaphragm in a desperate effort to delay the cancer’s ultimate grasp. He lived in constant pain and it was a vain attempt to improve the quality and extend his life. By the final three months, tumours had also developed on his spine, resulting in paralysis from the chest down, and all this while fighting to breathe. That is the effect of this disease on an individual who suffers it, years after he had been exposed to asbestos. Of course, from diagnosis to death is quite a limited period with mesothelioma: it is only about nine months, leaving behind a widow and a family who have to live with what has happened to their loved one.
I am very much in support of the amendment that the noble Lord, Lord Alton, has moved with such great force, and the supporting speeches, because I have seen the effect on a widow of this terrible disease.
Lord Bach
My Lords, I am proud to have been allowed to put my name, as an opposition Front-Bencher, on this amendment, which has been moved so well by the noble Lord, Lord Alton, and spoken to so well by all the other noble Lords.
Industrial disease and exposure to toxic substances; employers acting negligently, in breach of their duty to employees, and often causing them great harm; and then outlawing and ensuring redress for these violations speak to what I consider the historic mission of the party I belong to and of the trade union movement. I know they are subjects that are of huge interest and concern to many people beyond that.
Health and safety in the workplace is something that we in these Houses of Parliament should be as proud of as we were of banning slavery. Instead, this year the Prime Minister chose for his first speech a comment that hoped that this was the year that killed off the health and safety culture forever. He cited a case where a teacher made children wear safety glasses to play conkers—a myth that the Health and Safety Executive cites as a prime example of the kind of mischief played by some to denigrate health and safety.
Health and safety in the workplace has nothing to do with conkers. Lack of health and safety has led to tens of thousands of avoidable deaths in the workplace. These amendments would ensure that in these cases—they have been described in detail and I am not going to go into that detail—employers pay their full redress and employees who have been harmed get their full restitution.
These are serious cases. There is no compensation culture here. Whereas motor claims increased by 43 per cent between 2007 and 2011 to nearly 800,000—which is why we on this side back my right honourable friend Jack Straw’s campaign—employer liability claims were down by 6.6 per cent to one-tenth of that. No one is faking mesothelioma, or coal lung. This is as far from the problems of undiagnosable whiplash as we can possibly get.
Industrial disease provides the most emotive and powerful examples of how health and safety is something we have had—and still have—to fight for. Despite the fact that we know so much about the clinical aspects and the impact on individuals, communities, and families, asbestosis is still being fought over in the courts. Insurers, sometimes not to their credit, are still fighting liabilities. Why is there this difference between these highly contested, difficult-to-prove cases that we have been debating tonight, for which people have been fighting year after year and, on the other side, clinical negligence? Why is there no sympathy from the Government for what are pretty analogous cases?
Do they not deserve a deeper consideration of the economics of bringing these cases? If the argument is proportionality, of course there are problems with proportionality when you are fighting some of the entrenched vested interests, such as the insurance lobby, and companies for which it is difficult to prove ownership and liability years after the event. We are at risk of abandoning these cases and these victims, not because they cannot bring the cases any more, but because they will not find lawyers to bring them. These are families and widows of workers who were exposed through no fault of their own.
I have in front of me the comments of a lady, Mrs King, whose husband died of mesothelioma. She says, “My husband died of mesothelioma as a consequence of asbestos exposure during the course of his employment. David and I received considerable assistance from the Derbyshire asbestos support group”. She arranged to see her constituency Member of Parliament. She received letters from her Member of Parliament, and wrote to him as well. I have to say that that Member of Parliament showed real concern in those letters about the tragedy that she had undergone. I pay tribute to him for the sympathy which he genuinely showed.
However, the exchange of correspondence, in Mrs King’s view, raised a number of points. The first was that the Member of Parliament seemed to accept that, in certain aspects, we are going to an American-style system. Mrs King’s view is that is not a good thing. That relates to a successful claimant having to pay some of their damages in costs. Secondly, the Member of Parliament, according to Mrs King, said that if a claimant loses the claim he will pay no legal costs at all. She points out that that is wrong: the losing claimant would pay disbursements. Thirdly, the Member of Parliament says it is not about whether claims will be brought, but about what lawyers get paid, and who pays those costs. Mrs King’s comment is that there must surely be genuine borderline cases today that will not be brought tomorrow because lawyers will not take the risk of not being paid.
Fourthly, Mrs King comments that the Member of Parliament says that defendants with a very strong defence pay out because of the costs they may incur if they lose. Mrs King does not understand that. She asks why they would settle in a case where they have a strong defence: if they have a strong defence, they will not lose. Lastly, the MP says that he may be cynical, but lawyers will not bring cases because they will not be paid as much as they are now. Mrs King thinks that that misses the point, the point being that lawyers will not bring cases at all if they run the risk in difficult, but genuine, cases that, if they lose, they will not get paid at all.
The Member of Parliament is in fact the right honourable gentleman the Lord Chancellor. As I say, he showed great sympathy for Mrs King and her predicament, but those were his responses and I suggest, respectfully, to him and to the Minister, that they are out of touch and do not meet the seriousness of the situation that has been described in Committee tonight.
Mrs King finishes by saying, “The chances of people like me or my husband being able to get justice would all change under the Government’s proposals. Even if my case has reasonable chances of success, I will struggle to find a lawyer to take it on unless it is virtually certain to succeed. The lawyers think the risk of losing is too great for the amount they will get paid for taking that risk. They simply will not take the case on”. That is the nub of this particular argument: people who have suffered a great deal will find that they will not be able to have their cases argued because of changes that are made. What I think that everyone who has spoken in this debate so far wants to see from the Government is a bit of flexibility, because these cases really stand out on their own.
Lord McNally
I would have to take advice on that. On that and the point raised by the noble Lord, Lord Avebury, I shall write to the noble Lords, as well as those who have taken part in this debate, to update them on where discussions in DWP have reached.
It is very difficult to overestimate the personal damage suffered by the individuals who have been highlighted. The Government are trying to reform the civil legal system in a way that retains access to justice. It was said that litigants would be responsible for defendants’ costs if they lost; this is not true. QOCS will apply in this kind of case, so that litigants will not be susceptible to defendants’ costs.
It is a difficult area, but our overarching aim is to create an architecture which squeezes inflationary costs out of the civil justice system. Without our reforms, high and disproportionate costs in civil litigation will continue.
Lord Bach
I was not claiming that losing claimants would have to pay winning defendants’ costs—I accept that QOCS would come into consideration; I was saying that a losing claimant would have to pay their own disbursements in those circumstances, which is a different issue. That was the point that I was trying to make.
Lord McNally
I take that point.
I think that I have said all that I am going to say on this. It is a tough case, but it would be just another concession within the range of issues that we have discussed today. The noble Lord, Lord Bach, almost gave the game away in saying, “Well, you’ve made the clinical negligence concession; why can’t you make this concession?” It would then be another, and then another, and then another, and Jackson would disappear.
Lord McNally
My Lords, I do not think that it is analogous. The other actions that the Government are taking address some of the issues that have been raised tonight. We are exploring other initiatives that we can take. I do not think that it is necessary, therefore, to make the exception that is being argued for. It is admittedly being argued for very powerfully, but it is not enough to convince the Government.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Bach Excerpts(13 years, 5 months ago)
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Lord Phillips of Sudbury
My Lords, I have my name to this amendment. I confess that I have been impressed by the points made by the noble Baroness, Lady Mallalieu, and the noble and learned Lord, Lord Goldsmith.
It surely is beyond argument that with the cuts in scope to legal aid this Bill will bring about, the need for the citizens advice bureaux and the law centres will be infinitely greater than it already is. If we were to have this discussion in the other place, there would scarcely be an MP who would not automatically come to the aid of the citizens advice bureaux in particular, because they rely on them: they send people from their surgeries to their local citizens advice bureau to get the advice that the MP cannot give.
The numbers of cases dealt with by the CABs in a year are measured not in tens of thousands or hundreds of thousands but in millions. I urge my noble friend to have regard to this simple reality. To put it in scale, I think there are 500 full-time CABs, with something like a further 3,000 CABs sharing premises in libraries and council offices and so on; so 3,500 of them, and probably 60 or 70 law centres now, a declining number; but they are on the front line of citizen advice. They are indispensable in the truest sense of the word.
The fact that so much of what they do is done by voluntary assistance—and very many local solicitors are volunteer CAB workers—only multiplies the value of what they do financially. The £20 million that the Government gave a couple of months ago to tide over the CABs in a funding crunch must be the best value £20 million the Government have spent on anything in the last year. I repeat, the multiplier effect of the voluntary effort put in to CABs makes every pound of support given of much greater value.
I do not think it needs labouring, it is just that I feel so passionately about this. I declare an interest that I was for 20 years legal adviser to the National Association of Citizens Advice Bureaux, and my firm still does work for them. I have seen for myself from the inside and as an occasional volunteer the absolutely essential front-line work that they do. Frankly, to think of this country without the CABs is to contemplate a nightmare. My noble friend the Minister may say, “That is an exaggeration; there is no chance of that”. Well, put us at ease by allowing this amendment. Indeed, take it away and contemplate putting some obligation alongside the discretion.
I also know that Citizens Advice has to plan its finances on a solid future framework. It cannot hope each year that somehow the money will tip up. It needs certainty of supply, as do the independent law centres. We all understand the financial rigours under which the coalition Government are having to work but I cannot urge more strongly the fact that the task of the CABs and the law centres, in the straitened circumstances which will prevail after the cuts in legal aid brought in by this Bill, will be ever more urgent in an ever complicating society.
Lord Bach
My Lords, until now, I have been happy to support every amendment moved by the noble Lord, Lord Thomas of Gresford, but I have to say that on this one I find that I cannot give my support. I agree with the noble Lord, Lord Phillips of Sudbury, that we are incredibly lucky in this jurisdiction to have a not-for-profit sector, as well as those solicitors who still do this work, which provides at very little cost a terrific service for people who otherwise would not get access to justice. They do so largely due to the good works of a lot of Lord Chancellors in the past but not least the noble and learned Lord, Lord Mackay of Clashfern, who is not in his place now but was here earlier, who, in 1995 I believe, made it possible for law centres and CABs to receive legal aid and thus give the kind of advice that changes lives. I agree absolutely with what the noble Lord, Lord Phillips, has said. If that should disappear, it would be one of the scandals of the first few years of this century.
If this amendment is intended somehow as an acceptable substitute for taking whole areas of legal aid, particularly social welfare law, out of scope, it has the potential be dangerous and short-sighted. I do not doubt for one second the good intentions and good faith of those who have put forward this amendment. But why do I say that? It seems to me to play entirely into the hands of a Government. It could be this Government or a future Government. I agree absolutely with my noble and learned friend Lord Goldsmith on this. Most likely the Lord Chancellor would be at liberty to pay whatever grant he wanted or no grant at all because the power is entirely discretionary as the amendment is drafted.
We know that there are a multitude of not-for-profit advice centres. Well over 500 CABs, 60 law centres, and hundreds of small, sometimes specialist, centres deal with the type of issues with which Part 1 is concerned. Some receive legal aid and some do not. I agree with the noble Lord, Lord Shipley, that it is not a perfect system by a long way. Given his background, what he has to say about localism is of huge interest, which I know from being the Minister some time ago. But at least under the present system, the Legal Services Commission grants contracts for legal aid for a length of time and it is not the Lord Chancellor’s job to grant those contracts. It is not perfect by a very long way but the contracts are intended to cover the country. At present, those contracts are one step removed from a politician’s stroke of the pen. In my view, that is an important consideration.
Who will the Lord Chancellor fund? Of course, I am talking about a Lord Chancellor in the future. I am not talking about now. Will it be those he likes? Will it be those that are in his part of the country? The Lord Chancellor may be a Member of Parliament, as he is now. Will it be those who do not often sue the state or do not offend him or the Government? He could turn the tap off at any moment and the organisations would have no way of planning their present and their future. There would be no certainty.
One of the criticisms made by the not-for-profit organisations I certainly remember hearing as a Minister was, “Look, there is not enough continuity. We do not know about the future. How can we plan and become efficient organisations without knowing how long we will get contracts for?”. There may be not be enough continuity in the present system, but necessarily there would be no continuity under the system being mooted in this amendment. Frankly, it is an open invitation to a new Lord Chancellor, under pressure from the Chancellor of the Exchequer—and every Lord Chancellor I have ever heard of or spoken to has been under that pressure from the day he gets into office—just not to make the grants, and that will be it. The not-for-profit sector will collapse. I ask this question: if grants are the solution, where is the money coming from? If the money is there, why take social welfare law out of scope in the first place? Why not provide the rather limited, perhaps too limited, resources for social welfare law that are available at present?
Of course we are open to discussion and further debate about this, but what we want to happen is that those areas of the law—in particular, social welfare law, which it is suggested should be taken out of scope by the Bill—should not be taken out of scope; they should remain in scope. The system does not work badly; in fact, I would go so far as to say that it is working well. There is no need for this. If I was the Minister tonight, I would bite off the arm of the noble Lord, Lord Thomas, and accept this amendment saying, “Yes, I agree”. That is because, as it is presently drafted, I am afraid that it plays much too much into the Government’s hands.
Lord McNally
I will have to promise to write to the noble and learned Lord.
Lord Bach
The Government may not have done that analysis, but the Law Centres Federation and the CABs have. I do not have the precise figure in my head, but law centres would do about 70 per cent less work because of the matters that are taken out of scope. It would not be quite as much, of course, in the case of the CABs, but they would have a much reduced caseload which would make their existence in some cases doubtful. That work has been done by the agencies, but I agree with my noble and learned friend that the department should perhaps confirm those figures or come up with some new ones. The agencies are going to lose work.
Lord McNally
Of course they are going to lose work in the areas that are being taken out of scope. That is self-evident. I make no complaint about it, but we continually have brandished at us reports from organisations with, to put it bluntly, an interest in the issue. It can at least be examined thoroughly. Organisations which have been involved mainly in areas which are being taken out of scope will find that that work is no longer there, which will have an impact on some of them. However, they will still be free to bid for work which is within scope. We can go round that time and again.
Lord Carlile of Berriew
I hesitate to interrupt my noble friend, but we are curtailing the debate and what he has said is very helpful. Can he assure the Committee that, in preparing an amendment, the Government have in mind the importance of the duty solicitor scheme and of there being a process of integrity in the police station, so that suspects do not choose to refuse to answer questions in interview because they are not properly represented? Can he also assure us that the Government will bear in mind the risks of evidence obtained in police stations being rejected by courts because of a failed and unfair procedure in those police stations? Those of us who started practice at the Bar would say to my noble friend that there were long periods in our early practice when we cross-examined police officers about what used to be called “verballing”. I am sure that my noble friend understands the expression. I hope that whatever amendment is introduced will ensure that we do not have to return to the bad old days before the enactment of the Police and Criminal Evidence Act 1984.
Lord Bach
The Committee will be relived to hear that I will not be making the speech that I intended to make. I absolutely agree with what the noble Lord, Lord Carlile, has just said. I, too, started practising in those days. What happened, in effect, was that guilty men got off—that is the truth of the matter—because, after a while and some notorious cases, juries were not inclined to believe on the basis of confessions alone. The Conservative Government of the time deserve enormous credit for passing one of the greatest Acts of Parliament in criminal justice, the Police and Criminal Evidence Act, which has worked pretty well, as the noble Lord, Lord Macdonald, was about to say before he was so rudely interrupted by the Minister.
Lord Macdonald of River Glaven
How did the Minister know what I was going to say? He is quite right. I said this at Second Reading. I agree with everything that has been said. The Minister has given a clear indication that the Government will withdraw the proposal that there should be some future means-testing. In those circumstances, the Government’s response is appropriate. Let us see what the amendment will be and, if necessary, come back on Report if it does not meet our objections. I hope it will.
Lord Bach
Of course I agree with that. The only phrase that worries me slightly is Clause 12(2):
“The Director must make a determination under this section having regard, in particular, to the interests of justice”.
I am not sure what that adds to what happens at present. That is the only point that I wanted to make. I thank the Minister for his attitude towards this clause.
“( ) individuals who are involved in investigations which may lead to a caution or warning,”
Lord Bach
My Lords, this concerns a very simple point, or rather a short one—I am not entirely clear whether it is simple. I would be grateful for the Minister’s response to this.
Clause 14 is headed “Advice and assistance for criminal proceedings”. Subsection (1) refers to regulations providing,
“that prescribed advice and assistance is to be available under this Part to an individual described in subsection (2) if … prescribed conditions are met, and … the Director has determined that the individual qualifies for such advice and assistance”.
That is fine. Subsection (2) sets out in paragraphs (a), (b) and (c) three classes of individuals who will be entitled to this advice and assistance. My amendment would add a fourth class of,
“individuals who are involved in investigations which may lead to a caution or warning”,
as opposed to,
“individuals who are involved in investigations which may lead to criminal proceedings”.
I admit that it is a long time since I practised, but I understand that people who are cautioned are liable to have that caution recorded and for it to be on their record for a period of time. In those circumstances, would it be better for that class of person to be granted advice and assistance, as are the persons covered by paragraphs (a), (b) and (c)? I will not argue with the Government if there is a good reason for not including that class of person. I just want to hear why there is not a fourth class of person covering,
“individuals who are involved in investigations which may lead to a caution or warning”.
I beg to move.
Lord McNally
My Lords, as the noble Lord has said, Amendment 103 would allow the Lord Chancellor to provide specifically for criminal legal aid under Clause 14 to be available for individuals who are involved in investigations that may lead to a caution or warning.
Clause 14 creates a power to make regulations that prescribe what advice and assistance must be made available to individuals in connection with criminal proceedings if prescribed conditions are met and the director has determined that a person qualifies for such advice and assistance in accordance with the regulations. This largely reflects the provisions in Section 13 of the Access to Justice Act 1999. Advice and assistance for criminal proceedings is distinct from criminal legal aid provided under Clause 12 for individuals in custody.
Under the Access to Justice Act 1999, the Legal Services Commission has the discretion to decide what advice and assistance it considers it is appropriate to fund. Under the Bill, this discretion rests with the Lord Chancellor. In making a decision, the Lord Chancellor will take account of any legal obligations including the requirements of Article 6 of the European Convention on Human Rights. Both sets of provisions leave the criteria for making a determination to secondary legislation.
The proposed amendment would allow the Lord Chancellor to make provisions that legal aid may be available for individuals who are involved in investigations that may lead to a caution or warning. We believe that it is unnecessary to add the suggested amendment as provision could already be made under Clause 14(2)(a). If an individual is involved in an investigation that may lead to a caution or warning, that individual must be involved in an investigation that may lead to criminal proceedings. Cautions and warnings are used, where it is appropriate to do so, to divert certain offenders from the criminal justice system as an alternative to instigating criminal proceedings. For an individual in custody at a police station, or other premises, legal aid will be provided under Clause 12. I therefore invite the noble Lord to withdraw the amendment.
Lord Carlile of Berriew
My Lords, I shall start by making a few comments about my professional experience and then look at the broader picture. In recent years, the bulk of the publicly funded work I have done at the Bar has been in very high-cost cases, as they are called—very large fraud cases. I have seen a procession of those cases in which substantial funds have been restrained and not used for the costs of the case. Confiscation proceedings have followed in those cases where there have been convictions. In some cases, they have been long drawn-out. The funds have rarely been confiscated in full.
In one case I can think of, the confiscation proceedings lasted two or three years and, in the end, the defendant was returned £30 million, I believe, because the wrong procedures had been used by the prosecution. In another case from my experience in recent years, a defendant who was later sentenced to nine and a half years’ imprisonment and made the subject of a confiscation order in excess of £130 million remained, throughout the period leading up to and during the trial and for a considerable time after—as far as his family was concerned—living in one of the finest apartments in central London, worth many millions of pounds. Nobody was able to lay a hand on any of it. By the time the confiscation proceedings were over, such a miasma of transactions existed that that substantial property was immune from any confiscation. There are current cases, about which colleagues have told me—and without referring to any of my own current cases—in which a similar picture may emerge. This is an issue on which the Bar Council, of which I am an elected member, as I said in an earlier sitting, has given a great deal of attention. I should say that on this subject at least it might be worth listening to the Bar Council. Senior members of the Bar act for the prosecution and defence in every one of these cases, bar a very few.
The intention of the Bar Council in proposing amendments, believe it or not, was to save legal aid funding and to create a situation in which people’s own money, subject, of course, to proper controls, was used to pay for their own defences. It would create a situation in which a defendant, who at present may be able to relax while public money is expended on abuse of process hearings, dismissal hearings, disclosure hearings, and all kinds of satellite proceedings, costing him nothing, may have to control the spending on his defence. It seems a very sound principle that the defendant who has resources should have some control over the spending on his or her defence.
Furthermore, restraint orders are on the increase, as the General Council of the Bar has pointed out to the Government. In 2009-10 the CPS made 1,549 restraint orders. That had increased to 1,641 by 2010-11. The estimated value of assets under restraint in 2010-11 was as much as £744 million, every penny of it being money available to be spent on criminal defence but not so spent. Any legal advice and representation in those cases is charged to the legal aid fund. These are cases which, on the latest available figures—from 2005—caused the expenditure of more than 50 per cent of Crown Court legal aid, although the cases amounted to only 1 per cent of the cases. The average cost per case for those cases in 2003-04 was £2.6 million, with the average trial lasting 67 working days. These are very big cases, which are being unnecessarily funded from public funds.
A defendant accused of serious fraud may, for example, have £1 million on deposit in a bank account, frozen under a restraint order. An order may be made for the funds to be unfrozen to pay his children’s private school fees. I was involved in a case recently in which exactly that happened. The defendant was unable to fund his own defence but he was able to fund his son’s school fees at one of the best public schools. My noble friend Lord Thomas of Gresford has contrasted the criminal situation with the civil courts. He described the reaction of the noble and learned Baroness, Lady Butler-Sloss, to what he had told her and she certainly represented the civil court position correctly.
The Government’s response to the Bar Council’s proposal, and that of some of your Lordships, has been to argue, at least so far, that the sums restrained need to be preserved in the hope that, at some point further down the line, a confiscation order may be obtained on conviction. In November 2011 several national newspapers ran stories on revelations that at the end of March 2011, the sum of money outstanding in purported confiscation orders was £1.26—wait for it—billion. That made the front page of the Sun. I suggest to my noble friend that the hope that some money might be recovered is no substitute for meeting the up-front costs of the defence via the legal aid bill.
When confiscation orders are made, they are not used to fund legal aid but are channelled to other government departments; they go into the general Exchequer pot. This does not reflect the strain placed on the legal aid budget by high-cost fraud cases. Therefore, this seems to be—if I may be forgiven a vernacular phrase—a complete no-brainer. It is a way of saving the legal aid fund—to use another such phrase—shedloads of money. I say to my noble friend: let us wake up and do it.
Lord Bach
My Lords, I must say, having heard those two speeches, that I would not want to be the Minister tonight. Having heard what was said and having read about this from the Bar Council and the Law Society, which both put in effective papers, I will say at once that I regret that in my time as Minister we did not spot this, because there is no question that we should have acted on it. The noble Lord can make as much fun of me as he likes, but it is no answer to the points that have been made. There are times during the passage of Bills when a Government behave totally irrationally. I speak from experience. There are all kinds of examples—not that many in my case, but some. I know that the noble Lord, Lord McNally—
Lord Carlile of Berriew
Perhaps I could ask the noble Lord not to be so modest.
Baroness O'Cathain
Perhaps I could say to the Minister that all my life I have lived by the statement that a man or woman who does not make a mistake does not make anything.
Lord Bach
That is absolutely right. I am just asking the Minister not to make a mistake on this issue; he should learn from my experience. Perhaps things were not quite as bad as I made out, but we should have spotted this as it shines out. It is not as though very high-cost cases did not come across my desk; my goodness, they did all the time.
The Minister will know that the majority of legal aid is spent on criminal cases. Over the years—although it shifted a bit as we made an effort at least to maintain what was spent on certain types of civil legal aid—the balance has been wrong. Criminal legal aid has taken more than 50 per cent of the budget and civil legal aid has been allowed to decline over a number of years. However, enough is enough as far as that is concerned. I point out to the Minister that the amount of social welfare law that has been taken out of the scope of legal aid equates to around £60 million. I do not need to repeat the figures that were mentioned by both noble Lords who spoke in this debate. The £60 million is dwarfed by the amount that it would be possible for the Government to get if they made wealthy defendants pay their legal fees.
When faced with an obstacle such as this, Governments sometimes become totally irrational and stick to their line, which can be completely hopeless and can sometimes not make sense at all. Common sense loses out completely. “No-brainer” is exactly the right word. The Government are faced with having to find money; there is a lot of heartfelt opposition to the idea that social welfare law, for example, should be taken out of scope; and there is a great deal of doubt about whether doing so will save any money at all—which in my view is the clinching argument. Here is a chance for the Government to take advantage of a sensible step. They have the power to do it and will have our support if they do. I very much hope that the noble Lord will at least consider carefully the very powerful representations made tonight in Committee.
Lord McNally
My Lords, at this late hour this debate is taking on a confessional nature. There has also been a little bit of topsy-turvy. For a time, I was just sitting back while the noble Lord, Lord Bach, and his colleagues were rubbishing the amendments tabled by my noble friend Lord Thomas and his colleagues, and now I am going to defend the activities of the previous Government.
As has been explained, the amendment is intended to allow the restrained assets of those accused of criminal offences to be taken into account when granting legal aid and to allow legal expenses to be paid from a defendant’s restrained assets. Before the next debate, I must check on the noble Lord’s distinguished career in government as I am not sure whether he was responsible for the Proceeds of Crime Act 2002. Was it on his watch?
Lord McNally
Nevertheless, the previous Government passed the Proceeds of Crime Act 2002, which prevents restrained funds being released to a defendant for legal expenses in relation to the offences to which the restraint order relates. The Committee will be aware that assets recovered from the proceeds of crime are already applied to offset the overall costs to the public purse, although I note the points made by the noble Lord, Lord Carlile, about the success of confiscation orders. The noble Lord, Lord Thomas, will know that when he put this idea to me, it seemed very attractive with a little Robin Hood stuff about it. However, the reason that the previous Government took action through the Proceeds of Crime Act was that in their judgment there was a risk that individuals might recklessly dissipate assets through lavish spending on their defence in order to try to secure an acquittal at any cost. In 2002, the then Government decided that it was better to allow access to legal aid than to allow an individual to draw down restrained funds to pay for their defence. Restrained assets in these cases are suspected to be the proceeds of crime. They are not therefore legitimate money, and they should not be used to fund the costs of a person’s defence lawyers. First and foremost, the victims of crime ought to be compensated for their loss.
Baroness Buscombe
My Lords, I was the shadow Minister on the Proceeds of Crime Bill. I have rather a good memory, and I can say that the Minister is absolutely accurate in his comments about why the Government chose not to use the Proceeds of Crime Act as an opportunity for dealing with this issue.
Lord Bach
It is very good to have the noble Baroness, Lady Buscombe, joining the debate, but if that was the best defence that the previous Government could put up for that, it was really not satisfactory. I remind the Minister that that argument has been described as,
“fallacious, and easily remedied by the simple implementation of a cap on defence fees, careful supervision by the court and/or an assessment by the court taxing officers, who are familiar with assessing what constitutes ‘reasonable’ costs in such cases”.
If that was the argument put forward by my Government at that time, I say here and now that it was a fallacious argument and not one that the present Government should fall into the trap of adopting.
Lord McNally
As I said, we are in confessional mood tonight. The Government are currently considering a related proposition under which the value of restrained assets might be taken into consideration in the Crown Court means test. Until that proposition has been considered fully, we believe it premature to suggest an amendment to the Proceeds of Crime Act.
This has been an interesting debate. We have heard what the noble Lord, Lord Bach, said in apology for previous omissions by his own Government. As I say, we are looking at the value of restrained assets in the Crown Court, but at the moment we believe it premature to suggest an amendment to the Proceeds of Crime Act and I therefore ask my noble friend to withdraw his amendment.
Lord Thomas of Gresford
The problem is that my noble friend the Minister has not explained why people are allowed recklessly to dissipate criminal assets in civil cases. Why do you have one rule for civil cases, when you can use what are described as criminal assets although they are not necessarily so, and another rule in criminal cases? What is happening at the moment is that defendants are recklessly dissipating legal aid. That is the point and that is why legal aid is so high in criminal cases—it is being recklessly dissipated. My noble friend Lord Carlile explained how it can be done: you can have application after application; you can have little trials within trials; you can have satellite litigation; and the case can run on and on for months.
In the old Stafford Assize Court, which possibly the noble Lord, Lord Bach, has visited—
Lord Thomas of Gresford
Good. I have appeared there on a number of occasions too—not against the noble Lord, Lord Bach, I have to say. There is a plaque on the wall that commemorated what was then the longest jury trial in Britain. It was 23 days and they put a plaque up because it had lasted so long. Now 23 days is peanuts as far as any serious case is concerned. They go on for months and months: application after application; disclosure of this, disclosure of that, and so on; recklessly dissipating legal aid funding that could be available for social welfare law or for all the other things that have been excluded—
Lord Thomas of Gresford
I will read what my noble friend said with great care. For 12 years, this power that he said was in the 1999 Act—introduced by a previous Government but never mind—was never used. My mind immediately flicked back to a case that I once had. I use legal language that lawyers will understand: I once had a case in which a young girl lost the skin from her leg in a motorcycle accident. All the skin was stripped off. Now the Government want her to pay for somebody else. She presumably gets general damages of £30,000. The Government would take a fair portion of that because she had the temerity to apply for whatever it is—legal aid. They then want to keep the extra for somebody else. That seems quite wrong in principle. I am not surprised that it is in the 1999 Act, though with the coalition Government in power I would expect an entirely different approach.
Lord Beecham
The Minister expects us to be grateful for this activation of a pretty redundant provision. I cannot say that we are and clearly the noble Lord, Lord Thomas, is not either. Of course, the noble Lord’s example would no longer apply because civil legal aid would not be available for the personal injury case to which he referred, but it would occur in other cases. In one of these exceptional cases or if, for example, there is a move on clinical negligence, a huge slice of not only general damages but also—as I understand the Minister—special damages accrued to the date of the hearing might be taken. In a clinical negligence claim, that is potentially a very substantial sum. The noble Lord, Lord Thomas, is absolutely right. Successful claimants are being asked here to substantially help underwrite the costs of the system. That is not something that successful claimants should be asked to do.
We will revert to this when we come to Part 2. It seems that the burden has shifted from losing parties, and in particular losing defendants, to successful defendants. The Minister refers to the fact as if it were common knowledge that this would be moved. Maybe I have missed something—and so has the noble Lord, Lord Thomas. Neither of us seems able to recall this proposal being ventilated in debates—not in this House or Committee, or generally as part of this process. I am certainly not happy with this. We may well revert to it on Report. If it activates a provision that was laid down in 1999, it should not be done. As my noble friend will confirm, I was critical from time to time of the previous Government’s policy, particularly in relation to criminal justice and criminal legal aid. Had I known about this aspect, I might have been critical at an earlier date—presumably with no effect, either. This is not something we can let pass.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Bach Excerpts(13 years, 5 months ago)
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Lord Clinton-Davis
As a former Member of the other place and as a Member of this House, I am deeply suspicious of secondary legislation. The onus of proof that secondary legislation is absolutely essential must rest on the Government. There are too many instances where people do not vote on the issues which arise because they happen perhaps late at night or in circumstances where it is not regarded as absolutely essential that Members should attend. Whether that is right or wrong does not matter. What is important is that the Government should resist the temptation to indulge in secondary legislation wherever possible.
The onus of proof rests fairly and squarely on the Government. In my view, they have not begun to do that. They disregard entirely the essential nature of that duty. In other words, they are saying that it is not important. I think that it is vital that Parliament conducts itself properly and scrutinises legislation where possible. I do not think that we should resort to secondary legislation, except where it is proven to be absolutely essential.
Lord Bach
My Lords, first, I thank my noble friend Lord Howarth in particular for supporting our Amendment 24. Of the alternatives set out so clearly by the noble Lord, Lord Phillips of Sudbury, Amendment 24 is the preferred amendment. But I want to make it absolutely clear from our Front Bench that our real quarrel is with the Bill as drafted. In the mild words of the noble and learned Baroness, Lady Butler-Sloss, it is astonishing to find Clause 8(2) in modern legislation. It goes without saying that we believe that this is a non-party issue. Right around the Committee, it has been suggested that on this the Government have got it seriously wrong. If I am a little harsher on the Government than noble Lords have been so far, it is because this is an essential and very important part of this Bill. It is crucial that the Government move on it, if not at this stage, then later. I very much hope that on this group, the Minister can help us by implying that the Government are thinking of changing their position.
The Bill represents an attack on a number of crucial areas of civil legal aid. If the Government get their way, the whole edifice of social welfare law will be severely damaged, perhaps to destruction. The restrictions on private family law are poorly thought through and the proposed taking out of scope of clinical negligence, which we are to debate shortly, seems more ridiculous as every day passes.
We all agree—we certainly do—that there must be some cuts to legal aid. But there should not be these cuts, and any cuts should not be so fast or so far. I pose again to the Minister a question to which I have had no response up till now: why on earth is all criminal law seemingly off limits? Is there no waste, nothing that could be rationalised, in that area of law which, I remind the Committee, takes well over 50 per cent of the whole legal aid budget? The answer is apparently not, because the Government have announced that there will be no moves on criminal legal aid until 2015 at the earliest. I pose the question again: why?
The present position, as I understand it, is that a government can, to a limited extent—I shall be frank in saying that I am not sure to what extent—alter by order what is in and out of scope; for example, by amending the funding code as felt appropriate. But what the Bill asks us to accept is a quite new proposition; namely, that the Government should have the power to omit services from Schedule 1 by order. However, there is no suggestion, of course, that they should have the power to add services by order. Again, the question that all noble Lords have been asking the Minister is: why not? Why this imbalance, this tilt, against legal aid? My own view is that the answer is a bit depressing. It is that, to put it mildly, the ministry has a rather small-minded, extraordinarily partial view of legal aid; it does not much like it and would rather be rid of it than defend it. It does not see it as central to access to justice, let alone the rule of law, and is rather looking forward to cutting more. What other impression can one possibly get from the way in which this clause is drafted?
It is often said, particularly in this House, that the real argument against allowing a provision like this is not for now but for a future government who may not be troubled by the same principles as are supposed to exist in all modern governments of whatever complexion. However—and I hope that this does not sound too harsh—my own reason for not allowing this crude power to omit legal aid to the Government is just as much to do with what I fear is the present Government’s careless attitude towards legal aid as with some rogue government in the future.
Right across this Bill, or right across Part 1 at any rate, the cavalier manner in which it is proposed to decimate social welfare law, to remove clinical negligence from scope and to restrict the definition of domestic violence on the one hand and have too wide evidential criteria for it on the other all tend to suggest that, on the importance in our society of the availability of civil legal aid for ordinary citizens to access justice, the Government really do not have the enthusiasm that they should have. I believe that this view is shared by many inside and outside this Committee. How then can it be right to entrust the Government with the new extensive powers that they propose? Legal aid could be further diminished by order, but nothing could be added to it except by primary legislation. Just to state that proposition shows how wrong it is.
No one apart from the noble Lord, Lord Goodhart, has referred to the two important reports that have been published for our benefit. One was from the Delegated Powers and Regulatory Reform Committee, which discussed this issue and came to the following conclusion:
“The Committee has concerns about clause 8(2), and those concerns were not allayed by the explanation in the memorandum that this was merely an updating provision. However, there is precedent for a power of this type to be delegated and subject to affirmative procedure (whether the power is to add or to remove from the Schedule), and on that basis, we do not find it inherently inappropriate. But we draw it to the attention of the House because it is not limited to routine updating and may legitimately be used to make substantial omissions from Schedule 1.”
The Select Committee on the Constitution said this about Clause 8(2):
“Under the Bill the Lord Chancellor will have a power to modify Schedule 1 by omitting further services from the scope of civil legal aid (clause 8(2)). Orders made under clause 8(2) will be subject to the affirmative resolution procedure. This provision should be amended to enable the Lord Chancellor not only to omit services from the scope of civil legal aid but also to add services to the scope of civil legal aid.”
I do not want to quote from the Government’s response to both those committees’ reports. Perhaps the only advantage was that of consistency, because the two paragraphs were the same in each case. If noble Lords look at those paragraphs they do not make a convincing case, or indeed any case at all, against the amendments that have been raised in Committee today.
This is another part of the Bill where the Government must move. I very much hope that the Minister will show signs that the Government have listened to the unanimous view of these committees on this matter today.
Lord McNally
My Lords, I thank all noble Lords who have contributed to this debate, and particularly my noble friend Lord Faulks for introducing it. There is a little bit of the political bruiser in me that always wants to take the noble Lord, Lord Bach, full on, particularly when he is in piety mode. He was part of a Government who carried out six reviews of legal aid in its last five years, brought in real cuts, and had an actual manifesto commitment to cut legal aid.
Lord McNally
As I said at the very beginning, we were faced with circumstances where we had to make hard choices. The noble Lord sticks to the mantra, “Not these cuts, not this place, not now”.
A number of telling points have been made by the contributions today. To clarify a point that my noble friend Lord Faulks asked for, the regulations under Clause 8(2) would be subject to the affirmative procedure in terms of parliamentary scrutiny. However I take full note of the point that the noble and learned Baroness, Lady Butler-Sloss, made, that strong and experienced legal opinion has advised against this one-way street which is built into the Bill. I also take on board—which is why I want to come back to this at the end—the question of primary legislation as against secondary legislation.
I also take note of the advice of the noble Baroness, Lady Mallalieu, about the need for flexibility and future-proofing, which my noble friend Lord Thomas also referred to. The importance, as the noble and learned Lord, Lord Scott, pointed out of the adequacy of the civil justice system, is something that is constantly in our minds in trying to determine our priority, and I take on board the warnings that we have had about the dangers of litigants in person.
The noble Baroness, Lady Kennedy, asked whether the aim was to see legal aid wither on the vine. That is certainly not our intention. Like previous speakers, the noble Baroness argued again the case for having some guard against what she termed the “law of unintended consequences”, although the term “sucking on the sweetie” must be some aspect of Scottish law rather than English law. As a non-lawyer, I would not know. However I agree that “sucking on the sweetie” may well be the test of all legislation.
My noble friend Lord Carlile called for us to keep the door open. He was right to say that all Ministers must be ready to take lobbying; that is not in doubt.
Lord Phillips of Sudbury
My Lords, I am in entire agreement with what has been said by my noble friends Lady Doocey and Lord Newton and the noble Baroness, Lady Lister of Burtersett. I should be very grateful if, in responding on these amendments, my noble friend Lord McNally would tell the Committee whether in respect of later amendments that seek to ensure proper funding for CABs and advice agencies there is going to be a positive answer, because that will have a major effect on my whole approach to this part of the Bill.
It does not need repeating that cutting legal advice in relation to social welfare claimants is, on the face of it, utterly bonkers. First, the people seeking that advice are the most vulnerable in our society. I wonder how many people who are now in this Chamber have ever sought assistance under the Social Security Contributions and Benefits Act 1992 or the Welfare Reform Act and so on. There is a whole forest or jungle of social security law, and I ask anyone in this Committee who thinks that, because it is for the common man it is simple, to have a look at any of the legislation. It is a nightmare. I have given a bit of legal advice in law centres in my time. It was a nightmare when I did it as a young solicitor but it is a treble nightmare now. Someone said recently that the CAB advice manual for social security law ran to a couple of hundred pages, but it now goes well into the thousands.
Lord Phillips of Sudbury
I am most grateful to the noble Lord, Lord Bach. There are 7,500 pages, and the devil of it is that a lot of these statutes interrelate. In many cases, finding a way through this stuff is, believe me, a job for a lawyer and not a job for the harassed citizen. Do not let us be carried away by the telephone helpline. It will help in all sorts of cases but in very many it will not. That is because, first, the complexity will outrun the knowledge of the person on the phone. Of course, the answer is that they should then refer the person to someone else, but I have to tell your Lordships that these advice lines—and I have experience of them too—are very powerful instruments. The second reason is that it is a commonplace that people find it very difficult to explain the facts and so on in relation to these social security measures face to face, let alone down a telephone line.
Therefore, I hope that we will be honest with ourselves and that the excellent civil servants, the excellent Bill team and the excellent Front Bench spokesmen will recognise that this is not territory with which we are familiar. I suggest that we need to be a little humble before we say categorically that the status quo after the Bill comes into force will be sufficient to enable hard-pressed, often bemused and sometimes desperate people to access the benefits that we have legislated for them.
Baroness O'Loan
My Lords, I support Amendment 32, tabled by the noble Baroness, Lady Doocey. It is generally acknowledged that attempts by government to simplify the welfare system are to be welcomed because the systems are complex and difficult. Despite the fact that legal aid has been available for appeals against decisions on entitlement, we have seen a very significant lack of take-up of the benefits to which people are entitled. Under the Government’s proposals, that legal aid will no longer be available. It is accepted by the Legal Services Board that dispute resolution and advice in social welfare law requires legal and technical competence. We know from Scope that 39 per cent of appeals against work capability assessments are upheld. Without legal assistance, people simply will not be able to meet the challenges that will enable them to retain the benefits to which they are entitled.
There will be 3.2 million people affected by the change to DLA alone, and 1.8 million will migrate from incapacity benefit to DSA or jobseeker’s allowance. People in those cases may be ill, seriously stressed, living in profoundly difficult circumstances, illiterate or incapable of dealing with correspondence. They may not recognise the importance of attending various assessments or may lose out simply because of their vulnerability. If a family loses the benefits to which it is entitled and cannot access professional help, inevitably there will be very serious consequences such as more children going hungry, not having enough warm clothes for the winter and not having heat in their homes. Parents will have to make appalling choices.
The consequence may be situations in which individuals go to tribunals in cases in which, had they received legal advice, they would have known that they did not have a valid case. A tribunal costs approximately £293. The cost of legal advice to help people in this situation is of the order of £150 to £200. As noble Lords said, there are serious concerns about the consequential increases in the number of cases going to tribunal. Put simply, there are very good financial reasons to continue to provide the current, low-cost legal help.
Lord Bach
My Lords, client A was a single mother aged 20 with two young children. She had no permanent home and was living with her mother. She had no income other than a crisis loan and suffered from mental health problems. She had been awarded employment and support allowance, but this was suspended when she was admitted to hospital and missed a medical assessment. She was then informed that she was not entitled to employment and support allowance. The Leicester community advice and law service lodged an appeal on her behalf. The DWP agreed to reinstate her claim while the advice and law service explained her medical problems to the department.
Client B was also a single mother. She suffered from bipolar disorder and received employment and support allowance and other benefits. She had debts totalling £2,500, including overpayments of benefits and arrears owed to utility companies. The advice and law service assisted her in making successful claims for disability living allowance and associated benefits, thus increasing her income by more than £100 per week. Her housing benefit had been suspended. The service challenged the decision and housing benefit was reinstated and backdated, thus avoiding an escalation of rent arrears that ultimately would have led to the loss of her home.
Both cases took place in my home city of Leicester, but there will be examples from every city, town, village and hamlet in the country. What do the two stories have in common? First, both clients were helped by the same advice agency. The crucial point is that they were helped using legal aid. Advice was given and lives were changed. If this Bill goes through in its present form, this sort of life-changing advice would probably never have been given. Those two clients who had real legal problems would not have been legally helped.
It does not take much imagination or knowledge of the world to know that events in both cases would have gone downhill fast if advice had not been given. Not just the mothers themselves but, one suspects, their children would have suffered. The state would have had to pick up the pieces at a much later stage when much more damage would have been done. If the Bill goes through, welfare benefit advice will be out of scope, not just at the beginning but at the end, too. The costs of the Leicester law service organisation that took up this case are negligible. We have heard about the small costs of each case of this type. They are tiny compared with the social and real financial costs if there had been no early intervention.
How can the Government be so stupid to think that what they are proposing can do anything but harm? I speak with all the strength that I have in support of the amendment moved so passionately by the noble Baroness, Lady Doocey, who has given a lifetime’s service to disabled people. I agree with other noble Lords who have said that her amendment is central to what we have to debate and decide on in this Bill. Her amendment would return to the scope of legal aid: advice and assistance on eligibility for welfare benefits, applications for welfare benefits, and appeals against the decisions of granting authorities. Although the expertise of the noble Baroness, as has been said around the House, is in helping disabled people, her amendments, as she would be the first to say, cover a much wider group in society than merely those who are disabled; they cover all citizens who find themselves in that position.
The amendment is identical to that tabled in another place in Committee and on Report by my party. The first time—in the Public Bill Committee—the amendment was defeated on Division by the government parties, but on Report the Liberal Democrat Members of the Public Bill Committee tabled an amendment to the same effect. Unfortunately, because of a heavily guillotined timetable, and, I am sad to say, filibustering by those who should have known better, no debate and thus no vote was held. It is possible that had the vote been taken in another place, we might not have this question quite in the form it is in today.
There is rightly great strength of feeling from all sides of the Committee about the removal of advice on welfare benefits. There is a real fear that it will lead quickly to a downgrading in the efficiency of a system that, while not perfect, has worked pretty well over 40 or 50 years, and which, crucially, has been supported by all Governments of whatever complexion and by all major political parties in this country. There is consensus that the state has an obligation to provide this sort of help for the poor, for disabled people and for those who need help—it could be any one of us in certain parts of our lives—because it is both practical and humane.
There is great concern that if the Bill goes through as it stands we will lose that and, as my noble friend said, be diminished as a country in how we conduct ourselves. That is why this issue is so central. It will drive tens of thousands of litigants-in-person to try to deal with complex issues that they might not fully understand or be able to communicate. Thousands of people will be left without a lifeline. Those who have real cases will have to join a queue because tribunals will take so long to reach their cases. Then people might find themselves completely destitute: their homes at threat, relationships breaking down, and their children helpless. There will be that drive downwards that we see so often.
Lord Newton of Braintree
There is something that the noble Lord has not mentioned, which could be an important factor, bearing in mind his reference just now to children left helpless and some of his earlier case studies relating to single-parent families. I cannot remember the figure but there is a huge cost for every child taken into care. I would like the Minister to tell us the cost of each child taken into care as a result of the knock-on effects that could arise from these proposals. It costs tens of thousands of pounds every time, and I do not believe that all that has been taken into account.
Lord Bach
I am grateful to the noble Lord as he is absolutely right about the social and financial costs of abolishing this sort of legal aid. It is impossible to say what they will be, but they will be huge, which I should have thought was fairly obvious.
The outcomes that we have talked about in this debate are not beyond the realms of probability, nor can anyone say that they would be unexpected. It is up to us in this Committee, and in the House perhaps on a future date, to decide whether the outcomes that have been described would cross the basic line of British decency that it is our obligation to defend. As part of that decision-making, we must look at whether these particular cuts are economic in the first place. Would they achieve even the Executive’s highly limited narrow goals of saving money?
The ministry plans to remove entirely funding for welfare benefits from scope. It claims that that will save £25 million a year. That sum normally goes to dealing with 135,000 cases per year. The advice is delivered, not altogether but pretty much through third-sector not-for-profit agencies such as Citizens Advice, law centres and many other advice centres. Advice goes to those seeking reconsiderations of decisions by the DWP and related agencies and to those appealing decisions before the First-tier Tribunals and then the Upper Tribunals. We have heard who receives the advice. Women are disproportionately users of this advice, as are ethnic minorities. As the noble Baroness indicated, 69 per cent—a very high percentage indeed—of those receiving advice are ill or disabled in some way.
As for who gets more complex advice—that relating to grounds for appeal—the published data for First-tier Tribunals show that of the 50,000 or so benefits-related cases heard a year, 90 per cent relate to disability-related benefits. That is hardly a surprise. For all its sins, jobseeker’s allowance is a simple entitlement for which to calculate eligibility. When there is a degree of subjectivity in deciding on the impairment caused by disability, agencies are more likely to make mistakes and thus require decisions to be appealed.
What does the advice funded by legal aid deliver? Colleagues in another place tabled a series of Parliamentary Questions to establish the percentage of people who win their appeals before tribunal with and without advice. The figures provided by the ministry show that in 2009-10 in welfare benefits-related cases, people were 78 per cent more likely to win if they had advice than if they did not have advice. For ESA the figure was even higher. People appealing employment support allowance decisions were more than twice as likely to win with advice than if they did not have advice. I point out what is obvious: those winning appellants are all legitimate claimants. They are not scroungers; they are not feckless—for the main part they have probably suffered some form of disability. They have been denied their rights by an emanation of the state, by the Executive, and they are legitimately challenging that decision.
Lord Thomas of Gresford
Would the Minister agree that the statistics he has just—
Lord Thomas of Gresford
It is just habit. Would the noble Lord agree that his statistics suggest that where there is advice, meritorious claims are brought forward and money and time are not wasted by tribunals in hearing litigants in person?
Lord Bach
I agree absolutely. It seems to follow because the people who practise this kind of law—and we know that they are not particularly well-paid lawyers—are very careful, on the whole, to give advice on the position in law and not necessarily what the claimant wants to hear. It is right that people with hopeless claims do not go forward and those with meritorious claims do go forward—as they should do.
These are legal problems—let us make no mistake about that. The truth is that the welfare benefits field, as we have heard all round the House from great experts, is very complex in many cases and people need help with these matters before they can decide the right thing to do.
Judge Robert Martin, the head of the Social Entitlement Chamber of the First-tier Tribunal, gave evidence to the Justice Committee inquiry some time last year. The 7,500 pages I referred to in an intervention are the reference material that was issued to the tribunals and which is now spread over six volumes. He made that point to the Justice Committee. He was asked by the chair, the right honourable gentleman Sir Alan Beith:
“Will it bring more people into the tribunal because they have not been advised that their case has no chance of success in the tribunal”?,
which I think is the question the noble Lord, Lord Thomas of Gresford, asked me. Judge Robert Martin said:
“Yes, because a general public awareness of tribunals is very low. Very little is put into public education of the law and how to seek redress for grievances. There is this risk that we will see many people who have been drawn to the tribunal believing it is the most appropriate forum to solve things, whereas it may be just a mistaken conception about the tribunal”.
He continued:
“Legal help is so important in that triage function of sifting out cases which can be redressed but not through the tribunal or the court, and assisting those cases where the tribunal or the court can assist to have the case prepared in a way that maximises the chance of success”.
That gives the answer from someone who is, as it were, at the coal face. He went on to say:
“With the removal of legal help, we will have to spend a lot more time explaining simply what the tribunal is about rather than getting to the heart of the matter”.
This Bill is at its worst in this particular part. I argued at Second Reading—and I argue again today—that it is unconstitutional in that it removes access to justice for a large number of citizens, it is immoral because the state should not try to save a fairly small amount of money by targeting the poor and the disabled by removing their legal rights, and it is financially crazy because the savings will be non-existent. As benefits mistakes are not remedied, the problems will grow and the cost to the state will explode.
We are very proud of our legal system in this country and we encourage, quite rightly, foreign citizens to litigate their cases in British courts. They do so because of the extreme fairness and expertise of the British legal system from top to bottom. It is ironic, is it not, that we should be asking foreigners to litigate their serious cases in our courts because of the greatness of our system, while at the same time we seek to reduce some basic rights in law for our own citizens who are the least able to look after themselves?
Lord McNally
My Lords, Amendments 32 and 89 seek to bring welfare benefit matters into the scope of legal aid funding, first, by deleting the exclusion for welfare benefits in Part 2 of Schedule 1 and, secondly, by adding social welfare as an in-scope category in Part 1 of Schedule 1.
The amendments are contrary to our reform programme in which we are focusing our resources on the highest priority cases. Currently legal aid is available for legal advice but not representation in relation to decisions on welfare benefits at the First-tier and Upper Tribunals. While we recognise that many people rely on welfare benefits, these cases are primarily about financial entitlement. In our reforms we have concentrated on the fundamental issues of liberty or safety. Given the need to prioritise funding, we have decided to remove legal advice for welfare benefits from the scope of the legal aid scheme.
Lord McNally
It still seems barmy to me. Likewise, with regard to the 7,500-page volume mentioned by the noble Lord, Lord Bach, and the noble Baroness, Lady Lister, in 13 years of Labour Government, did nobody think, “What kind of system are we producing that requires that kind of detailed explanation and advice?”? It seems to me that the approach is not reform, as the noble Lord, Lord Phillips, said, but forever putting another layer of wallpaper on an already dirty room. We are about reform and one of the things that we are reforming—again, it would be interesting in wider debates to hear where the Opposition is on this—
Lord Bach
If the Minister’s best point is that the volumes on welfare benefits increased in the years of the Labour Government—as no doubt they did in the years of the Conservative Government before, and have done for 30 or 40 years as the system has got more complicated—that is a pretty poor argument for taking out of scope social welfare law, frankly.
Lord McNally
That is not my best point. The best point is that we are having, supposedly, a national debate about welfare dependency and welfare reform. It may be a bit unsettling that a number of reforms are taking place at the same time, but my understanding is that the welfare reforms before this House are attempting to simplify a much overcomplicated process and that that had the broad support of the Opposition. I do not think we are going to win this argument, some of which we will return to.
Amendment 35 seeks to bring into scope legal aid for advice and assistance for appeals to the First-tier Social Entitlement Chamber in respect of welfare benefits that are payable under social security legislation as a result of disability. The intention of the amendment appears to be for legal help and representation to be provided for welfare benefit appeals in the First-tier Tribunal for those with disabilities. Currently, legal aid is available for legal advice only in relation to decisions on welfare benefits in the First-tier Tribunal. Legally aided representation is not available for tribunal hearings because they are designed, as has been said, to be user-friendly without the need for legal representation. Therefore, we believe that this amendment would increase the cost of legal aid by expanding it into areas where it is not currently available.
We recognise that this amendment is concerned about the impact on those with disabilities who are appealing to the tribunal. While we recognise that those with disabilities may face additional obstacles, the tribunal is a relatively informal venue. The tribunal itself will comprise a medical practitioner and a disability expert as well as a tribunal judge when considering disability living allowance appeals. Given this and the need to prioritise funding, we have decided to remove legal advice for welfare benefits from the scope of the legal aid scheme. I hope that my noble friend will withdraw her amendment.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Bach Excerpts(13 years, 5 months ago)
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Lord McNally
My Lords, even at this late stage of the night, the mere appearance of the noble and learned Baroness at the Dispatch Box brings a smile to my face. I hope that the noble Lord, Lord Bach, does not feel any jealousy.
Lord McNally
Of course, having listened to a debate dominated by what I acknowledge is a great deal of expertise and experience in this area, I will go away to ponder and think about what has been said, and discuss it with my right honourable friend the Lord Chancellor. At this time of night, like the noble Baroness I think it is better if I put on the record our approach and we can then resume on Wednesday.
Amendments 33, 34, 39, 40, 41, 51, 52, 79B, 80, 80A, 82A, 82B and 82C all concern legal aid for children and young people, or people with dependent children. Others refer to the use of mediation in family cases. While—as I have said—I acknowledge the expertise and experience on display today, and while I understand what motivates these amendments, I ask the House in turn to acknowledge the economic realities behind the difficult decisions that we have been forced to take.
As the House is well aware, the Government’s approach has been to look at every area of law where legal aid is provided, and to consider whether it should continue, and in what form. In developing our proposals, we have considered carefully a number of factors, including: the importance and complexity of the issue; the litigant’s ability to present their own case; the availability of alternative sources of funding; and the availability of other routes to resolution. We have used these factors to prioritise funding so that civil legal services will be available in the highest priority cases; for example, where people’s life or liberty is at stake, where they are at risk of serious physical harm or immediate loss of their home, or for domestic violence remedies, or where children may be taken into care.
A number of noble Lords have drawn inferences that this is a cruel and uncaring Government; as the noble Lord, Lord Alton, said, a government for the sharp elbowed. Let me just put on record at this stage and remind noble Lords that even after our reforms are in place we will still be spending £120 million of funding per year for private family law, including domestic violence; an extra £10 million per year on mediation; £50 million on categories of social welfare law; £6 million on clinical negligence; and £2 million on education. That is why I sometimes bridle at suggestions that we are destroying the legal aid system. We are trying to manage an overall cut in legal aid that will still leave us with—as I have said before—one of the most generous legal aid systems in the world.
Amendment 33 applies to all civil and family proceedings, and seeks to bring into scope civil legal services for many areas of law that are excluded where the individual has a child who is dependent on them. The intention appears to be that this group of people should receive civil legal services because of the potential impact on their children of the withdrawal of legal aid. The amendment would retain funding across the board for people with dependent children, without regard to the relative priority and alternative methods of resolving disputes, and would lose the bulk of the £170 million of annual savings, as most family law cases involve a respondent or applicant who has dependent children. It would also significantly impact on the £110 million saving in other areas of civil law. We have not sought simply to retain legal aid for any case where the individual has a child. Doing so would mean expending limited funds on a range of cases: some important, some not as important and some where alternative ways of resolving the dispute would be preferable. Therefore, I hope that noble Lords will not press the amendment.
Amendment 79B would bring all civil non-family matters within scope for children, with the exception of work relating to breach of a statutory duty, the making of wills, trust law and business cases. Amendment 82C seeks to bring into scope civil legal services covering welfare benefits, debt, housing and employment for those aged 24 or under or who are represented by a legal guardian. Amendment 82B seeks to bring into scope civil legal services in relation to advice and proceedings where the person is a care leaver under the age of 21 in wide-ranging civil and family areas specified in the amendment. Amendment 79B would mean that nearly all civil cases would be brought into scope if the applicant were a child. It is worth making it absolutely clear that in civil cases, claims brought in the name of a child are usually conducted by their parents acting as the child’s litigation friend rather than by the child themselves. This accords with the normal rules of civil litigation. The civil justice system as a whole does not generally require children to act on their own behalf.
I turn now to the rest of the amendments in the group. Providing blanket funding for all cases where the child or young person is the applicant would be costly, unnecessary and might create perverse incentives for parents to attempt to bring civil litigation in their children's name purely to secure funding in otherwise out-of-scope areas of law. The Government recognise the importance of funding in a range of cases where children's interests are paramount. This is reflected in the decisions that we have reached. As a result we have protected funding in areas that specifically involve children. We have retained legal aid for child protection cases, civil cases concerning the abuse of a child, and for cases concerning special educational needs assistance. We have also made special provision so that legal aid will be available for children who are made parties to private family proceedings.
There will also be an exceptional funding scheme that will ensure the protection of an individual's rights to legal aid under the European Convention on Human Rights, as well as those rights to legal aid that are directly enforceable under European Union law. Each case will be decided on its own facts, but in cases where Article 6 of the European Convention on Human Rights is engaged, the ability of the client to present their own case, the complexity of the issues and the importance of the issues at stake will be relevant factors when a decision is taken on whether to grant exceptional funding. Therefore, where a child brings an action without a litigation friend, this will be an important factor in deciding whether they have the ability to present their case.
Amendments 80 and 80A seek to bring into scope civil legal services for any person who is under 24 and has a disability. They include but do not limit themselves to particular areas of scope that are excluded. Amendment 82A seeks to bring into scope civil legal services in relation to advice and proceedings for any person who is 24 or under and has a disability or lacks mental capacity. We have considered the point that the amendment makes about legal aid for those with disabilities. The equality impact assessment published alongside the Government’s response to consultation sets out our analysis of the potential effects that the reforms may have on people sharing protected characteristics in accordance with the public sector equality duty set out in the Equality Act 2010. We have acted consistently with that duty, one requirement of which is to have due regard to the impact on groups of different ages and those with different needs, such as disabilities. While we have identified the potential for the reforms to have greater impacts on some groups, we believe that those impacts are proportionate and justified by the need to meet our objectives, including the pressing need to make savings from legal aid.
Prisons: Population
Lord Bach Excerpts(13 years, 6 months ago)
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Lord McNally
My Lords, there are about 4,000 women in our prisons at the moment, and anyone who takes a moment to study these matters will say that that is far too large a number. We are taking forward a range of measures to look at how women who have committed crimes outside the prison regime can be treated. I pay tribute here to the landmark Corston report from the previous Administration. We are pursuing most of the recommendations, as did the previous Administration, but, like them, we have found the key recommendation specific to small units too costly to pursue. It is widely said that women need a different kind of treatment and I believe that to be the case. This is a serious problem and one that we are taking seriously in terms of initiatives on drugs, debt and treatment outside. Those are the facts.
Lord Bach
My Lords, when the Government were in their first flush of enthusiasm, they were full of claims as to how much smaller the prison population would be by the time of the next general election. Who was playing the numbers game then? How times have changed. Particularly bearing in mind the increase in crime that is now being reported, what is the current forecast of what the prison population will be at the next election in May 2015? What a contrast all this is with the days of the previous Labour Government, when crime was being reduced by 43 per cent.
Lord McNally
The commitment that we have made is to try to bring in a raft of policies that address specific problems about reoffending which are key to the size of our prison population. I am not going to play a numbers game; indeed, we never have. I look across at some of the heads shaking and nodding opposite, but I personally find this matter far too serious to play a numbers game.