Crime and Courts Bill [HL]
Lord Beecham Excerpts(12 years, 1 month ago)
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Lord Woolf
My Lords, I will say a few words in support of this amendment. In order to understand its importance, one has to take into account the matters that were so clearly outlined by the noble Lord, Lord Avebury, just before I rose to my feet. The history that he has described indicates that this is not an amendment that should be lightly accepted. Time has moved on since some of the matters to which he referred arose, and the experience so far of the quality of the tribunals, particularly the Upper Tribunal, has been particularly good.
The other important matter is the resource of High Court judges. The demands for the services of High Court judges are extensive. At present, there is the grave danger that judicial review will not be able to achieve one of its most necessary characteristics, which is to deal expeditiously with the urgent applications that come before it. This is critical because sometimes the very fact of the application for judicial review can and does delay matters of great importance—I hope am not overstepping the mark in saying matters, often, of national importance. The information that is available as to the pressure on High Court judges makes clear that they are overstrained. That is one side of the picture.
The other side of the picture is that the Upper Tribunal has huge expertise, which except in a very small number of cases is not available to High Court judges. Therefore, it is not apparent that they have the ability to deal with these cases as expeditiously and effectively as the tribunal. The danger in not accepting this amendment is that the desire for excellence could be the enemy of the good, and I urge the Committee to be sympathetic to it. It is my belief that justice can and should be ensured, as it always is in this country when these matters are dealt with by the tribunal as proposed here. I know that those who are responsible for arranging the proper dispatch of business in the different parts of the High Court attach the greatest importance to this amendment. They see it as a lifeline.
Lord Beecham
My Lords, I was not a Member of your Lordships’ House at the times when, as the noble Lord, Lord Avebury, reminded the Committee, similar matters were debated at some length. Therefore, I come to this amendment with an open mind, which creates something of a precedent in my case. I listened very carefully to the Minister’s explanation and justification of the amendment and, of course, to the critique of it from the noble Lord, Lord Avebury. Although many of us have received extensive briefings about various aspects of this Bill and other legislation, I have not received any particular briefing from any of the organisations referred to by the noble Lord, Lord Avebury, on this point.
I initially leant towards his line of argument, but am comforted in the first instance by the fact that the Lord Chief Justice’s role will be critical in initiating any further transfers, as well as by the wisdom and experience of the noble and learned Lord, Lord Woolf, of course, who commends the amendment to the Committee. Perhaps when he replies the Minister will indicate whether it is the Government’s intention to review progress at some stage, perhaps in conjunction with the Lord Chief Justice, to see whether the fears that the noble Lord, Lord Avebury, enunciated are grounded in relativity, and if they are to create an opportunity for a change in policy, either slowing down the additional transfers or possibly rethinking the policy.
As we have been reminded on previous occasions, it is the Government’s policy to conduct a post-legislative review within three to five years. Perhaps an indication that that will also be the case in relation to this matter might satisfy—for the time being, at any rate—some of the doubts that have been raised. If it is necessary to step back in the light of experience, that could then happen. For the moment, I am disposed to accept the Government’s amendment and rely very heavily on the support given to it by the noble and learned Lord, Lord Woolf.
Lord McNally
Not for the first time when I find myself out on the thin ice, my noble friend supplies a plank for me to walk back to dry land. I thank him for that intervention.
Lord Beecham
I am glad that the noble Lord is not emulating Rasputin in terms of his trips across the ice.
The Opposition do not take issue with the amendments but it is interesting that in a move to simplify the system we have a complex series of amendments. They add several pages to Schedule 13. By sheer chance today, a Mr Patrick O’Brien, a research associate of the Constitution Unit, has written a blog—I suppose that is what it is—about the issue of judicial appointments under the Bill. He makes the point:
“The new system in its entirety will, if anything, be even more complex than the present arrangements. It will be a hydra with three heads—the Lord Chancellor, Lord Chief Justice and the Senior President of Tribunals (and indeed five heads if you include the formal roles of the Prime Minister and the Queen), all of whom will have roles in approving appointments of various types—and at least five variants of appointment commissions/panels in addition to the JAC. There is the potential for further variations on these commissions/panels though the use of regulations. As things stand, the use of regulations in the Bill adds complexity and uncertainty to the CRA rather than removing it”.
Can the noble Lord give an indication of when, if at all, regulations will be introduced and what they might cover? Mr O’Brien goes on to say: “The CRA”—Constitutional Reform Act—
“is not just addressed to civil servants”—
or Members of your Lordships’ House or indeed the other place. He continues:
“It has constitutional significance and”,
should be,
“comprehensible to the general public”.
The noble Earl, Lord Attlee, referred to improvements in satnav technology when he was answering a Question on transport earlier. The implication of Mr O’Brien’s article is that we need the equivalent of satnav to navigate through this complex field of appointments. Having said that, we do not object in principle but it would be helpful if a guide were available to the public as well as to the practitioners so that they can see how the new system is supposed to work. Again, as with the previous amendment, I assume that the Government will be monitoring developments and will ensure that problems are dealt with in due course.
Lord McNally
My Lords, I am extremely grateful to the noble Lord, Lord Beecham, for his indication of support and for some sensible suggestions that I hope will assist the Committee. We will be publishing draft regulations before Report. The idea of a simplified guide on how these will impact is very sensible and I will take that back to my right honourable friend the Lord Chancellor. Amending existing legislation can be extremely complex when fitting in new proposals to existing legislation.
The noble and learned Lord, Lord Falconer—I was going to say my noble friend—along with the noble and learned Lord, Lord Woolf, showed a certain pride of authorship in the new disposition of our legal system after the reforms of the earlier part of this century. What we are trying to do, in our different ways, is build on reforms that have given us an effective system. These include promoting greater diversity in our judiciary. As we were discussing the other day, we are also conscious of the important nexus of the system, with the President of the Supreme Court, the Lord Chief Justice and the Lord Chancellor.
Crime and Courts Bill [HL]
Lord Beecham Excerpts(12 years, 2 months ago)
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Lord McNally
It is simply not true, and anyone who is looking at this sees that it is a move away from a politician being able to exercise a veto to a politician transparently taking part in a process. If the Members of this Committee cannot see that, we will presumably withdraw it or take it back.
Lord Beecham
What, in the experience of the past seven years, has revealed defects in the present system?
Lord McNally
It has been the feeling that the retention of a veto in this matter was keeping in the political process.
Crime and Courts Bill [HL]
Lord Beecham Excerpts(12 years, 2 months ago)
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Lord Beecham
“(7) There shall be no restriction on the number of days that a family magistrate may sit in the family proceedings court.”
Lord Beecham
I shall speak to Amendments 68A, 68B and 68C and, notionally, give an indication on the stand part question on Clause 17.
I begin by repeating a declaration of interest: I am an unpaid consultant in the firm of solicitors of which I was a senior partner. I will be saying something about the Court of Protection, with which the firm and I have had dealings which partly inform some of what I will say this afternoon. In addition, I should perhaps, through an abundance of caution, declare that my daughter sits as a part-time deputy judge; but whereas I have occasionally briefed her when I was at the office, she has not briefed me in connection with today’s proceedings.
I shall go from the very particular to the general in discussing these amendments, and deal first with Amendment 68A, which seeks to remove the limits on the numbers of sittings that magistrates may make when sitting in the family court. The noble and learned Baroness, Lady Butler-Sloss, raised this matter at Second Reading and I share her opinion that it is undesirable to impose such a limit, given the necessity of building up expertise and providing continuity on the part of that part of the magistracy which deals with these very sensitive family issues. That is not a view universally shared, but it is my view and it will be interesting to hear the Government’s response and their justification, if they see that there is one, for maintaining the limit. I believe that the Norgrove report advocated its abandonment and it has logic on its side.
The remaining substantive matters are Amendments 68B and 68C. I should say immediately that the indication that I would move that Clause 17 not stand part of the Bill was a procedural device to allow a general debate which has been superseded by the amendments that I have now tabled. I will not move that Clause 17 not stand part of the Bill. We accept that it is desirable to move to the structure of single courts. The question is how they will be administered and what steps can be taken to ensure that the whole system of justice is adequately reviewed, kept under review and improved from time to time.
Amendment 68B seeks to require a report on the creation of the single court and how it works. As I say, we accept the concept in principle. We would like the Government to undertake a review after a relatively short time to see how it works in practice. There are concerns—some of which I will touch on when I come to the next amendment—around access, the venue and the like, particularly in the civil courts. Also there is a question about how the new family court will work. We are reasonably confident that it will work provided that it is adequately resourced but it would be sensible to review the situation before much time passes.
Having said that, my main concerns are reflected in Amendment 68C, which seeks an annual review by the Lord Chancellor of the workings of the whole Courts and Tribunal Service to take into account the experience that will accumulate over time, particularly the experience of practitioners and parties, but also to reflect other changes which are now in train. The civil justice system is undergoing massive change, not only as a result of the proposals in the Bill but also as a consequence of Lord Justice Jackson’s comprehensive if—as we have debated at some length on a previous Bill—controversial review which paved the way for a radically different approach to the provision of legal aid and advice, and the financing of litigation.
In pages 428-34 of his report, Lord Justice Jackson called for improvements in courts administration in the light of a pervasive feeling of dissatisfaction on the part of many litigants and their advisers, occasioned in part by a high turnover of staff and an excessive time spent on processing documents unlikely to involve judicial input. His report called for the establishment of regional centres which could attract long-term staff. It was felt that if you had a small number of centres instead of having them dispersed across the whole country you would be able to find and retain staff with the necessary expertise. There seems to be some force in that intention. However, Lord Justice Jackson stressed that it would,
“be wrong to compel everyone to issue proceedings at regional centres. Litigants who wish to issue claims in person at their local county court and to pay fees at the counter should be free to do so”.
In the event, the Government, for ever waving the banner of localism—I remind your Lordships that “waving” can be spelt in two different ways—have established a system in which all money claims have to be issued not just in regional centres but exclusively in Salford. Salford not only hosts the BBC and Manchester United, it also—
Lord Beecham
Not Manchester United. I withdraw that disgraceful slur on Salford or Manchester United—whichever way you want to look at it. All right, we have the BBC and the Lowry gallery in Salford and we now have the courts’ business centre there, too. Unfortunately, the establishment of that centre has led to a torrent of complaints about delays and loss of documents reported on several occasions; for example, in the Law Society Gazette on 12 February, 8 March and 12 May, when the headline was “Civil Court System Faces ‘Meltdown’”. On 24 May—as recently as that—it reported on a work to rule by staff intended to last until 31 July which is,
“evidence of a civil courts service reaching breaking point”.
The same story describes district judges being put up in hotels when on duty in Salford, because that is where they have to go, with a deputy district judge—not my daughter—complaining:
“New cuts are announced daily, and yet HMCTS is now squandering taxpayers’ money on hotels”.
Lord McNally
My Lords, I am very grateful for the opportunity to discuss these proposals. I should put on the record that Manchester United is in the borough of Trafford. It is very dangerous for people such as the noble Lord, Lord Beecham, to wander west of the Pennines with football knowledge: they are just not up to it.
Lord Beecham
The noble Lord will acknowledge, and I am pleased to say, that sometimes it is very dangerous for Manchester United to venture to the north-east.
Lord McNally
I agree. The noble Lord kindly gave me a plank on which to walk to firmer ground. His points about the operations of the Court of Protection are wider than the scope of this Bill and it would be better if I write to him and put a copy in the Library of the House. This has been mainly a debate about the fundamental overhaul of the civil and family court system in England and Wales, which has the aim of providing an effective, proportionate and efficient system for resolving disputes.
With these principles in mind, Clause 17, as has been said, establishes a new single county court and a single family court for England and Wales. In January 2008, the Judicial Executive Board commissioned the former Lord Justice of Appeal, Sir Henry Brooke, to conduct an inquiry into civil court unification, and the noble Lord, Lord Beecham, quoted from Sir Henry’s report. In that report, Sir Henry recommended that there should be consideration on the creation of a single national court.
Our proposals mean that a single court will provide a more efficient civil justice system where litigants can achieve a more efficient, proportionate and speedier resolution to their disputes. Access to justice will be increased as the single county court will enable Her Majesty’s Courts and Tribunals Service to introduce more modern means for citizens to engage with courts in a cost-effective way. Court users in general will see a more responsive and consistent service through more effective use of information and communication technology, and the ability to centralise and standardise back office functions.
The noble Lord, Lord Beecham, mentioned the record of the business centre in Salford, which processes 1,800 claims every day. It does that within two to three days of their receipt. Some concerns have been raised but they are mainly as a result of bedding in a new service. The service is on a par with that previously experienced in the individual county courts.
Turning to the new family court, members of the public bringing family proceedings before the court rarely do so as a matter of choice. In many cases it is preferable for the parties and any children involved to be helped to resolve their differences outside the court arena. However, there are cases that are properly and appropriately brought to court for a judicial decision. The Government consider it is vital that individuals, many of whom are under stress when bringing family proceedings to court, are confronted with a system that is easier to use and access, and which provides swifter resolution of issues than is possible under the current court structure.
As your Lordships will be aware, the proposal to establish a single family court came from the independent review of the family justice system by a panel chaired by David Norgrove. A single family court will provide clarity and simplicity for the court user. It will increase accessibility to the court and reduce confusion. In particular, it will help those involved in family proceedings without representation who currently may be unsure whether their particular application should be made to a magistrates’ court or a county court and, if so, which category of county court.
The creation of a single family court will allow cases to be allocated appropriately by a judicial gatekeeper on the issue of proceedings, as all judges and magistrates hearing family matters will be judges of the family court. That flexibility will benefit the court user as the early identification of the appropriate level of judiciary will minimise delay. As with the new county court, the creation of the single family court will also lead to greater efficiencies in the use of administrative and judicial resources.
Lord Beecham
I am grateful to the Minister for his reply. In particular I welcome his response to limits on the time magistrates might sit in the family court. I also take the point made by the noble and learned Baroness, Lady Butler-Sloss, that an annual review, as called for in the amendment, is perhaps too frequent. However, I do not agree that it is simply good enough to rely on the present system with the Lord Chancellor reporting and then the other courts reporting separately. We need a comprehensive periodic review—I accept that annually may be too frequent—to look at how the whole system is working particularly in the light of other legislative changes, notably the Legal Aid Act, which is clearly going to impinge very substantially on the way the courts work. I do not think a review after five years, or even three, is adequate to assess how things are going, given the scale of the changes and the potential implications for parties and indeed the system itself. However, a periodic review perhaps less frequently than one year but more frequently than currently occurs across the whole system is required so that we can look at the effect of change—these statutory changes and others outside the province of the legislature—on society itself and whether it is adequately dealt with by the different parts of what is, after all, supposed to be effectively a single system which ought not to be too difficult for people to navigate.
In the circumstances, I will not press these amendments today but I am likely to return at least to the question of a comprehensive review, albeit perhaps on a different time basis, when we come to Report. At this stage, I beg leave to withdraw.
Lord Beecham
“Provision of information service for court users
An adequate information service must be provided for court users at each county court, which may be provided in partnership with a voluntary organisation.”
Lord Beecham
My Lords, this is a relatively simple amendment. It arises from discussions with citizens advice bureaux nationally which have pointed out that the practice of there being reception staff at county courts has lapsed in many places. I understand that in many courts there is staffing available for only two hours a day. In some courts there is no staffing at all now. Given the changes in the legal aid and advice system increasingly people are going to be finding their own way, unsupported, to the courts and will find little or no help or advice available. The purpose of this amendment is simply to endeavour to require that there should be an information service accessible to people at the courts, not necessarily provided by the courts. Citizens advice bureaux and possibly other agencies might well be interested in undertaking this responsibility It is surely important, particularly for those who find the whole process of litigation difficult, as many do, to have accessible advice at the point where it is most needed—that is, at the court door, as it were. I hope that the Government will look at ways in which this might be achieved, particularly involving the voluntary sector. It would ultimately assist the efficiency of the courts because otherwise, I suspect, we are going to get increasing problems, as I have already indicated, from the number of litigants in person. At least if litigants in person can receive some advice at the outset, it might ultimately repay itself in financial and other terms quite profoundly with a reduced impact on more expensive court time, which is better deployed in determining cases. I beg to move.
Lord Woolf
My Lords, I hope that what the noble Lord, Lord Beecham, is proposing here is given most careful consideration. In order to obtain what we all want—access to justice for the citizen—information is critical. In Access to Justice, for which I was responsible many years ago, I hoped that we would one day reach the situation where the courts’ role changed from what it had been in the past. In the past, its purpose was to respond to the litigant’s activities and not to be proactive. I urged that the courts should become proactive and the citizen who come to the court shall receive not only the judgment, which sometimes they would be looking for, but also guidance as to the most economic and efficient way of resolving their dispute. Information provided as envisaged by the noble Lord, Lord Beecham, could play a critical role in this respect. Commendably, following Access to Justice, some courts provided very good services of this nature. It is very easy, when one is forced to make the economies that the Lord Chancellor is forced to make, perhaps not immediately recognise that although the service is a modest one it pays for itself over and again. It is important to the possible litigant seeking from the court general guidance on the resolution of their dispute. I hope what the noble Lord, Lord Beecham, has proposed will be taken away and considered very carefully and sympathetically.
Lord Beecham
It is certainly possible to underestimate the degree to which people access online services, but it is equally possible to overestimate the willingness and capacity of people to use such services or, for that matter, the adequacy of the services themselves. In endeavouring to prepare for today’s debate, for example, I went on to the MoJ website to track down documents referred to by the Minister, Mr Djanogly. I simply could not do that. It might well have been me, but it also might have been the MoJ. I cannot believe that it is universally the case that people, particularly people in sometimes difficult and distressing circumstances, which is why they are going to court in the first place, will necessarily be able to find information easily.
I know that the Minister is well intentioned in this, but it would be helpful if he could indicate whether, by the time we get to Report—after all, with the Summer Recess, it will be some months before we do that—he would endeavour to have these discussions with the third sector and indicate an outcome. At that point, it may not be necessary to press the matter further, but I would like something a little more concrete than good will before abandoning the proposal, for which I am very glad to have received the support of the noble and learned Lord, Lord Woolf.
Lord McNally
The noble Lord said that some in the voluntary sector had said to him that they had ideas. Short of committing money, I am very willing to talk to them about this issue, and we can look at it and report back at Report—perhaps not with an amendment from him. My good will is certainly there, but I believe that with understandable websites, the telephone and the use of the voluntary sector we can meet his concerns.
Lord Beecham
I am grateful for that assurance. I know that the Minister is sympathetic to the objective, if not necessarily the means. I hope that he can have some discussions with the sector and resolve matters, but I shall reserve my position until then. I beg leave to withdraw the amendment.
Lord McNally
My Lords, wearing another hat, I am a member of the public business committee that guides public business through both Houses. That business committee usually takes the strongest possible exception to any government department in any Bill where a large number of government drafting amendments appear on the order paper. So I am a little bit embarrassed to be moving this amendment, although I am assured by those who advise me that the amendments are entirely necessarily.
The amendments cover a number of pages in the Marshalled List, but they are technical in nature. They include a number of minor or consequential amendments to take account of the creation of the single county court and single family court. With the creation of the single county court, the 170 existing county courts will cease to exist as separate courts or jurisdictions but will remain as hearing centres with court offices attached to them. Perhaps I can use this opportunity to answer a point made in an earlier debate. No, there is no secret hit list behind this legislation in creating the two single courts. But what is left are numerous statutory references to “a county court”, which now need throughout the legislation to be amended to “the county court.”
However, some provisions require more than merely substituting one word for another. In some cases, the relevant provisions extend to other jurisdictions, most notably Scotland and Northern Ireland. Accordingly, although still consequential, some amendments require further work to ensure that they have effect only in England and Wales. In other cases, when certain proceedings are required to be undertaken in a county court in a particular district, it has been necessary to amend those provisions to reflect the fact that there will now be only one county court with a general jurisdiction. In future and where necessary, specialist jurisdiction will be conferred on particular hearing centres by secondary legislation.
Amendments 71 and 72 clarify the rules designed to prevent any conflict of interest by part-time judges in the county court. The amendments provide that a part-time judge in the county court may not act as a judge in relation to any proceedings in the court in which he or she, or anyone with whom the judge is in practice, is directly or indirectly engaged as a legal representative. The amendments are needed in light of the expanding number of business entities within which solicitors may now work following the enactment of the Legal Services Act 2007. Amendments 80 to 82 introduce parallel provisions for the family court. As with the single county court, the amendments to the family court provisions are also largely minor and consequential. These amendments take account of the creation of a single family court from the existing three levels of court which currently deal with family proceedings in England and Wales.
As I am sure your Lordships will appreciate, the process of creating a new court necessitates a plethora of consequential amendments to various enactments. The majority of the amendments in this group are intended to ensure that the family court has the same jurisdiction as the courts that currently deal with family proceedings. This process involves, among other things, substituting numerous references across many different Acts to the “magistrates’ court” for the “family court”.
I should draw to the Committee’s attention one particular amendment relating to the family court. Amendment 83 removes the provision in new Section 31D of the Matrimonial and Family Proceedings Act 1984, which, by applying Part 1 of Schedule 1 to the Constitutional Reform Act 2005, gave the Lord Chancellor the power to require the Lord Chief Justice to make rules on the composition of the family court and the distribution of business among the judges within the family court. On further consideration, we have accepted that this power is unnecessary as the Lord Chief Justice will, regardless of this power, need to make rules to ensure the practical and efficient implementation of the single family court. As a result, we accept that there will be no need for any direction from the Lord Chancellor for him to do so.
There is also one final set of amendments in this group to which I should draw the Committee’s attention. Amendments 69, 70, 78, 79, 134, 136, 141, 142, 143, 144 and 146 all make consequential amendments to various enactments as a consequence of the renaming of chairmen of employment tribunals as employment judges. These amendments simply ensure that the relevant legislation reflect the new nomenclature. As I indicated in my opening remarks, I appreciate that there are quite a few pages of amendments in this group. But as I have tried to explain, they are overwhelmingly of a technical nature. I would, of course, be happy to explain particular amendments in further detail if necessary, but for now I would simply move Amendment 69.
Lord Beecham
My Lords, I am grateful to the Minister for giving us a quick guide through this jungle of amendments, about which I have nothing to say except that I note that the inflation of nomenclature is even greater than RPI: everybody now ends up as a judge, which I am sure is a great consolation to the legal profession. Clearly, these are technical and useful amendments and they should certainly stand.
Lord McNally
I beg your Lordships’ pardon; I have lost my place. I apologise to the Committee for the delay in getting to my feet. I do not think that I have ever got so many amendments through at one go. I was overwhelmed by my success. However, I am slightly worried as the Chamber looks rather like a scene from the Alfred Hitchcock film “The Birds”, in which the birds start to appear rather menacingly. I am looking at the Cross Benches, where noble Lords are starting to come in and wait.
These amendments implement one of the recommendations of the Delegated Powers Committee’s report on the Bill. In line with that committee’s recommendation, the amendments provide that the first rules to be made specifying the functions of judges of the family court which can be performed by legal advisers or their assistants will be subject to the affirmative procedure. Any subsequent rules will, as the Bill currently provides, be subject to the negative procedure. I beg to move.
Lord Beecham
My Lords, I do not belong to the flock to which the noble Lord referred but I want to speak briefly to this amendment because I have some concerns about this matter, not so much as regards the procedure in terms of requiring resolutions but on the substance of the functions that are proposed to be conferred on legal advisers, as they appear to be very wide. Of course, justices clerks can take certain decisions now but it seems that that could be much extended under the provisions in Schedule 10, at page 124, which would allow the Lord Chancellor, with the agreement of the Lord Chief Justice, to,
“make provision enabling functions of the family court, or of a judge of the court, to be carried out by a legal adviser”.
It is a long time since I participated in a magistrates’ court, whether as regards the criminal law or a family court, but it is not clear to me what this is aimed at.
The concern has been expressed before in your Lordships’ House, and I have touched on it again today, about the potential to displace the lay magistracy with professionals. In that context I think of people who used to be called stipendiary magistrates but are now district judges. That is a displacement upwards in the qualification stakes, as it were, but this provision is not necessarily a measure of that kind. It would allow a legal adviser, a justices’ clerk or an assistant legal adviser to take decisions around family matters. I am not sure whether that is the intention but perhaps the Minister could indicate what sort of decisions are envisaged to be delegated to a legal adviser as opposed to a properly constituted family court judge or a bench of judges. I would be reluctant to see significant functions determined by the legal adviser to which this amendment refers. However, I may have got it wrong. I await the Minister’s enlightenment with interest, if there is such enlightenment.
Lord McNally
My Lords, I am happy to try to clarify the thinking behind this. The Delegated Powers Committee made this recommendation because it felt that the provision in the Bill represented an expansion of the existing power in Section 28 of the Courts Act 2003. Under this Act, functions of the magistrates’ court may be delegated in rules to justices’ clerks if a function is one which may be undertaken by a single justice.
As part of the creation of the family court, all judges, including magistrates, who deal with family proceedings will become judges of the family court. New Section 31O of the Matrimonial and Family Proceedings Act 1984 provides a power for the Lord Chancellor to make rules to enable functions of the family court, or of a judge of the court, to be carried out by a legal adviser. As is the case with rules made under Section 28 of the Courts Act 2003, this power will be exercised only with the agreement of the Lord Chief Justice and after consulting the Family Procedure Rule Committee.
This new measure provides scope for justices’ clerks and assistant justices’ clerks acting as legal advisers and assistant legal advisers to the family court to carry out a wider range of the court’s functions than they currently perform. This is because the functions of the family court will be wider than those of the magistrates’ courts currently dealing with family proceedings, since the family court will have jurisdiction to deal with a wider range of family proceedings.
We are discussing with the judiciary how the new powers may be used. As I say, as in the case with rules made under Section 28 of the Courts Act 2003, this power will be exercised only with the agreement of the Lord Chief Justice and after consulting the Family Procedure Rule Committee.
Lord Beecham
I am grateful to the Minister for that information as far as it goes but I am afraid that it does not help me to understand what kind of decisions might now fall to be made by a legal adviser or assistant legal adviser that are not currently being made. I appreciate that the Minister may not be able to give an answer to that at this point, but it would be very helpful to have that indication before Report. Presumably there is time for consultation. There must be some concept of what would be different under a new regime, if agreed by the courts. I understand, of course, the rules procedure and indeed the approval procedure that the amendment prescribes. However, I still do not understand the outcome, and I am aware that there is concern about it. My noble friend Lord Rosser has shown me a document from the London courts which expresses concern about this general issue of the movement of decision-making away from magistrates themselves, who will be judges of the family court.
It would be helpful to your Lordships’ House to understand exactly what difference is anticipated to emerge from these discussions and consultations in the actual operation of the courts—where decisions will be made, who will make them and what they would cover. Again, I repeat that I do not expect the Minister to deal with that tonight, but it would be helpful to have an assurance that we can have clarity about this when we get to Report.
Lord McNally
It is a very fair question and I will try to give the noble Lord a very full answer.
EU: Personal Data
Lord Beecham Excerpts(12 years, 2 months ago)
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Lord Beecham
My Lords, having yesterday disavowed the Minister’s generous description of me as a distinguished lawyer, it will come as no surprise to him to hear me say that I lay absolutely no claim to any expertise in matters of information technology, data protection or the work of the European Union and, indeed, European law. However, it is 50 years since I achieved some sort of qualification in Latin, when I managed a B grade in my A-levels. Having had reference to a corpus juris tonight in the debate, it is perhaps appropriate to congratulate the Minister on his ministerial mea culpa for the not uncharacteristic failure—not on his part but that of the Government’s business managers generally—to see that the proper procedures were followed. I have, to that extent, some sympathy with the critique of the noble Lord, Lord Pearson, which was echoed in part by the noble Lord, Lord Hannay. It is unfortunate that those matters occur.
As regards the report of the European Scrutiny Committee, will the Minister confirm that the Government have complied with the committee’s request to be kept informed of progress in negotiations on the points of concern for government, as outlined in the Explanatory Memorandum? Little progress may well have been made but it would be good to have that assurance on the record tonight. Will the Minister indicate whether, as requested by the scrutiny committee, the Government will in due course share with the committee the response to the call for evidence, and explain whether the responses change their approach to negotiations? That is a straightforward request which I would expect the Government to honour. I do not know whether the Justice Committee has yet given its opinion on the draft directive. Perhaps the Minister can enlighten me on that. That, of course, is not a matter for the Government but I assume that they would wish to take that issue into account.
The Opposition are broadly supportive of the Government although we share some of the reservations around the potential cost and bureaucracy, to which the Minister referred. However, on reading the debate on this matter in the House of Commons, it struck me that the event was rather like a works outing for Eurosceptics and concentrated on process rather than on substance.
The noble Lord, Lord Lester, has forcefully and clearly outlined the important issues which the directive addresses. I draw the House’s attention to elements of the scrutiny committee’s report, which make it very clear that many of the key changes which the directive introduces are supportive of the rights of individuals. That is as it should be. I wish to refer to some of them, such as,
“new rights of access and information for data subjects, such as the identity of the data controller, the purpose of the data processing and the period for which the data will be stored; an obligation for data controllers to implement ‘appropriate technical and organisational measures’ to ensure an appropriate level of security; a right for data subjects to directly demand”—
I note the split infinitive—
“the erasure of their personal data by the data controller; an obligation on data controllers to inform supervisory authorities and data subjects of data breaches, informing the former within 24 hours of discovery and the latter ‘without undue delay’”.
These are significant protections for the citizen and we should welcome them. I hope that they can be implemented. Frankly, it seems to me that that is more important than the perennial debate about where our sovereignty lies because, as the noble Lord, Lord Lester, indicated, and as the Minister made clear, we are dealing here with matters of considerable importance: namely, the safety and security of British citizens and the protection of citizens from criminal depredation. In these days of international crime, not least through the auspices of modern technology, it is essential that we co-operate fully with law enforcement agencies among our European allies and partners.
In these circumstances, I think that the Government are on the right lines. I very much hope that the procedural hiccups that we have seen in this case will not be repeated. We look forward to the Government negotiating successfully and, more importantly perhaps, reinforcing the rights of citizens which this directive will promote.
Leveson Inquiry
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Baroness Garden of Frognal
My noble friend is quite correct that in January the Cabinet Office announced that it was looking actively at a statutory register of lobbyists. It was interesting that we saw in the debate just before this one support for the positive power of lobbyists to make valuable changes to things going forward. On the actual dates, I am afraid that I do not have the answer, but I will write to him.
Lord Beecham
Will the Minister say whether the Government think it right that they should seek from the most interested party in an application of the kind that has precipitated this affair a comment on the submission of another interested party opposing that application?
Baroness Garden of Frognal
My Lords, there were many aspects of the matter that need more inquiry and further looking into. On the issue that the noble Lord raised, we need to look at exactly what happened and who was told what, and why. There may well come out of that lessons about what we could learn to do better in future. But he is right that that is certainly an area of concern.
Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord Phillips of Sudbury
My Lords, I went to the other place to hear our amendments debated. As I am not a former Member of the other place, perhaps my noble friend will take it from me that its consideration of some of our amendments was cursory—and that is putting it quite generously. I admit to being very disappointed that, on such an important Bill as this, the other place allowed so little time for consideration of these amendments that one cannot say that they scrutinised the amendments with the seriousness with which we try to scrutinise.
Having said all that, I am still mystified by this amendment. I agree with my noble friend Lord Faulks, and consequently with my noble friend—well, he is a friend but he is not a friend—Lord Pannick. It seems clear—indeed it was part of the case made by the noble Lord, Lord Pannick—that there is no prospect of judicial review, and he has designed this amendment to cut out that prospect. However, to the extent to which he has been successful—and I think he has been—it makes the clause ineffectual. It has absolutely no practical effect. I am afraid that it is admirable in sentiment but ineffectual in purpose and therefore should not be in the Bill.
Lord Beecham
My Lords, my noble friend Lord Hart inadvertently stole my opening line about the time we have spent debating this amendment. I could also point out that we will take little less time to vote on this amendment than the other place took to discuss, and allegedly debate, all four of the amendments about which we have heard.
The noble Lord, Lord Thomas, has entertained the House by conjuring up a vision of an army of devious lawyers mining the rich seams of the potential availability of legal aid for the purpose of pursuing claims for judicial review. Others of your Lordships have rather demolished the thrust of that argument, which in any case might be thought to be somewhat fanciful, especially in the light of the quite appropriate reference made by the noble Lord, Lord Faulks, to the fact that the amendment incorporates specific reference to the discretion of the Lord Chancellor. With respect to the noble Lord, Lord Thomas, there really is no substance in his objection to the amendment as it has been moved.
In relying once again on financial privilege—when it could have been waived and substantive arguments put in the form of a Motion asking this House to reconsider the amendment—the Government seem to be succumbing once again to the temptation of relying on this way out of a difficulty. They are becoming addicted to the use of financial privilege as a reason to reject amendments from your Lordships’ House, and that cannot be a satisfactory basis for dealing with significant matters of this kind. Therein lies the strength of an argument about financial privilege when, in dealing after a fashion with the amendment in the House of Commons, the Minister, Mr Djanogly, made one of his principle objections: that the Government,
“are concerned that the amendment replicates what is already in place”.—[Official Report, Commons, 17/4/12; col. 201.]
If it replicates what is already in place, how can it conceivably add to the Government’s expenditure? It is a ludicrous proposition in an attempt to have it both ways.
For that matter, those who argue that judicial review is something to be avoided seem to have forgotten that when we were discussing the position of the director of legal aid casework—the DOLAC amendment; we will come later to a welcome acceptance of an amendment in that respect—it was argued that judicial review would be available to those who sought to make a case for legal aid in exceptional circumstances. At that point, it was to come to the rescue of people who were being denied legal aid and was something to be embraced. Today, however, for the purposes of this amendment it is an issue that could be deployed against the amendment of the noble Lord, Lord Pannick.
There is no question that the purpose of this amendment is clear. It is declaratory, but it is important to be declaratory about important principles, and for that reason the Opposition wholly support the amendment.
Lord Lester of Herne Hill
My Lords, I will explain briefly why I do not agree with the amendment. I quite agree with those who have said that it is inconceivable that it will give rise to effective judicial review because it imposes no legally enforceable duty and it is therefore inconceivable that anyone could threaten the Government by way of judicial review. However, my problem with it is that it imposes no legal duty and then does nothing else.
The amendment begins:
“The Lord Chancellor shall exercise his powers under this Part with a view to securing that individuals have access to legal services—”.
Pausing there, it is of course already the Lord Chancellor’s duty to do so under the Human Rights Act, as I pointed out in a brief question to my noble friend and colleague Lord Pannick. Under that Act, the Lord Chancellor has to act in a way that is compatible with Article 6 of the convention, which secures a right of access to justice. Existing law and Section 3 of the Human Rights Act require that all legislation, including this Bill, must be read and given effect in so far as it is possible to do so compatibly with the Human Rights Act. That first part of the amendment is already fully taken care of by that Act. In so far as the rule of law is in play, it is also taken care of by the Constitutional Reform Act.
The amendment goes on:
“that effectively meet their needs, subject to the resources which the Lord Chancellor decides, in his discretion, to make available, and subject to the provisions of this Part”.
That completely swallows up any suggestion that this is some new, important principle. I am afraid it is written in water and I do not approve of putting anything in the statute that is simply an unenforceable duty written in water.
Lord Pannick
My Lords, together with the noble and learned Lord, Lord Woolf, and the noble Lords, Lord Hart of Chilton and Lord Faulks, I tabled the amendment on the independence of the director that was approved in this House. I thank the Minister and the Government for listening on this important subject and for including in the Bill, as the Minister explained, a reference to the independence of the director, which will give great comfort to all those who will be involved in the administration of this legislation.
Although these are matters of constitutional principle, they can be addressed by compromise, I am happy to say. I very much hope that the Government will be able to adopt a similarly conciliatory approach to the amendments that your Lordships’ House approved earlier this afternoon. I thank the Minister.
Lord Beecham
My Lords, tempting though it is to regard the notion of an entirely independent civil servant as somewhat oxymoronic, I echo the remarks of the noble Lord, Lord Pannick, and welcome the fact that the Government have moved sufficiently to meet the considerations that were advanced on Report. We are glad to be able to conclude these matters, and look forward very much to seeing precisely how the system works in practice.
Lord Thomas of Gresford
My Lords, there is something ironic in the desire of the noble Lord, Lord Cormack, to maintain legal aid for children as a child might be very much better off pursuing a claim by means of a conditional fee agreement as things stand at the moment. I shall explain.
My noble friend Lord McNally has on two separate occasions during the Bill’s passage outlined fully the Government’s intention to introduce a supplementary legal aid scheme, which was part of the Access to Justice Act 1999, passed by the party opposite, whereby there would be an automatic 25 per cent deduction from the damages recovered by a claimant who is legally aided. As things stand, if a child succeeds under legal aid in obtaining damages, 25 per cent of those damages will be taken by the state under the proposed supplementary legal aid scheme, which will be used to fund other applicants for legal aid automatically. Under a conditional fee agreement, the solicitor who acts on behalf of the child claimant will be entitled to recover his fees, if he can establish the case, from the other side. But when it comes to the success fee, under these proposals, it will be recoverable from the damages of the child and limited to 25 per cent of those damages.
A success fee cannot exceed 100 per cent of the lawyer’s normal fees that he recovers from the other side, so it may never come anywhere near the 25 per cent of the damages that the child recovers. Under a conditional fee agreement, the success fee is related to the amount of the fees, not the amount of the damages. There is not a 25 per cent deduction from the child’s damages automatically. That is just a cap to prevent a success fee from going to an extreme amount. Consequently, it may be that the legally aided child, who will have an automatic 25 per cent reduction of his damages, will be in a worse position than one under a conditional fee agreement. I do not think that that point has properly sunk in. It is for that reason that I look to the Government, perhaps not tonight but at some time if regulations come forward for the supplementary legal aid scheme, to exempt children from the 25 per cent reduction proposed under that scheme. As things stand, 25 per cent will be taken off. For those reasons, I do not think that the amendment proposed by the noble Lord, Lord Cormack, assists the children that he wishes to help.
Lord Beecham
If I understand the noble Lord, Lord Thomas, correctly—he is obviously more conversant with the Access to Justice Act 1999 than I am—provision is contained within that Act for regulations to be made—
Lord Beecham
I was about to say precisely that. It was never implemented so it is open to the Government to lay regulations that would require that 25 per cent deduction. It is equally open to them to do what their predecessors did and not lay such regulations or make that deduction. I am entirely at one with the noble Lord in saying that that deduction should not be made, but that is the situation at the moment.
With respect to the noble Lord, I do not think that his argument takes us very far at all. The Opposition support the amendment proposed by the noble Lord, Lord Cormack, despite the fact that it appears to contain a grammatical error. It refers to,
“clinical services which took place at a time when the individual was child”.
There is an indefinite article missing somewhere. However, that is a trivial point. The substantive point is one that was made effectively by the noble Baroness, Lady Eaton, when we debated this on Report. In the debate on the amendment that was discussed on that occasion, she talked of the figures involved in legal aid expenditure for children. She pointed out that legal aid for clinical negligence claims involving children cost the Legal Aid Fund some £4.6 million, of which £3 million was spent on precisely the cases of neonatal injury to which the Minister referred and to which the Government have responded by restoring them within scope. Therefore, as the noble Baroness pointed out, the net saving would amount to £1.6 million for the Legal Aid Fund.
It is time to dispose of some of the shibboleths about tough decisions and the like. Apparently it is not a particularly tough decision for the Department for Communities and Local Government to spend £250 million on weekly bin collections. It seems to me and to the noble Baroness, Lady Eaton, and presumably the noble Lord, Lord Cormack, a very tough decision to deny legal aid at a cost of £1.6 million to children under the age of 16 who suffer clinical negligence other than through the limited but welcome concession that the Government have made in respect of the injuries to which we have referred.
I also remind your Lordships of the view of the National Health Service Litigation Authority, which I quoted last time and will quote again. It stated:
“We have serious concerns over the proposal to withdraw legal aid from clinical negligence claims. Whilst we have seen an upsurge of claims brought under Conditional Fee Agreements … in recent years, we question whether CFAs are likely to be readily available to fund many of the more serious claims currently brought via legal aid”.
That view was about clinical negligence claims at large. Therefore, one might think that those concerns would surely apply to claims for children under the age of 16.
This does not remotely impinge on the huge problems that the Minister constantly reminds us of in relation to deficit reduction and the like. It is an almost trivial sum of money. By no conceivable stretch of the imagination could it be justified by financial privilege, which is the cover under which the Government approach this amendment. Let us be clear about financial privilege because it has been bandied around today and on previous occasions. Of course the Commons has the right to assert financial privilege, which is an objective process as far as the Clerks and the Speaker are concerned. However, it does not stop there. The Commons can waive financial privilege. If the Government wished for financial privilege to be waived, it would pass almost without opposition and frequently does. It is often waived. The Government choose not to waive it in connection with this and the other matters to which we have referred. It is a fig leaf behind which Ministers hide. I hesitate to convey an image of Ministers brandishing fig leaves; that would be an unwelcome variation on a theme. However, it is a pretty feeble and diminutive fig leaf for any Minister to hide behind. It is not an adequate defence for what they are doing.
I repeat: the figures show that the potential savings are minimal. Undoubtedly, justice will not be accessible for too many young people except in an expensive form potentially through a conditional fee agreement—even allowing for how the noble Lord, Lord Thomas, described it. I very much hope that the House will build on the Government’s welcome concession with this small additional financial burden and extend justice to those who need it.
Lord McNally
My Lords, the noble Lord, Lord Higgins, quoted the Reason, which states that the amendment,
“would alter the financial arrangements made by the Commons”,
and goes on to state that,
“the Commons do not offer any further Reason”.
As an old parliamentarian, he knows that if an amendment infringes privilege, that is the only reason that will be given. Obviously, when taken against the national economic crisis that we are dealing with, these various precise sums will always be able to be argued away as almost too trivial to worry about.
Perhaps I may relate to the House some other thoughts that have also motivated our approach in trying to reform legal aid in this area. Clinical negligence claimant lawyers’ bills, which the National Health Service Litigation Authority has to pay, have more than doubled from £83 million in 2006-07 to £195 million in 2010-11. As part of this, CFA success fees to claimant lawyers have more than doubled in the past four years from £28 million to £66 million, and the NHSLA pays out an estimated £33 million in claimant insurance premiums. However, damages paid to claimants have risen more slowly—from £579.4 million to £863.4 million over the same period—and the NHSLA has controlled its own defence legal costs much more carefully, rising only 26 per cent during the same period.
One motivation behind our approach in this whole area has been the impact that the system brought in by the previous Government in 2000 has had on the National Health Service, with an extraordinary rise in payments to lawyers. We are trying to address that. In doing so, early on we listened carefully to concerns about the specific issues faced by the most vulnerable children at the most vulnerable point in their lives, and we brought forward amendments to deal with that. Of course, in these areas there will always be disputes about where you draw the line and what happens to those on the other side of that line. However, in bringing forward our amendments our intention was to meet that initial lobbying, and we responded to it most positively. However, that was immediately followed by further lobbying that this should cover all children, but we do not believe that that is necessary.
The amendment purposely captures clinical negligence before, during and shortly after birth. We believe that that is a proportionate means of meeting the policy objective of targeting legal aid on the most serious and complex cases that would otherwise struggle to obtain a CFA. The eight-week period is an appropriate period of time at which to draw the line, because most of the serious and complex clinical negligence cases involving neurological injuries to infants are likely to arise from treatment or care administered during this period, when the infant can be considered to be most vulnerable. We have drawn the post-birth line at this point because of that. We also recognise that some children will be born prematurely and will need fairly intensive medical supervision in the first weeks of life. Any cases in which negligence occurs beyond this point will need to be considered under exceptional funding on a case-by-case basis. It is difficult—
The Earl of Listowel
My Lords, I support the noble Baroness in her amendment. I should like to talk about young people leaving care at the age of 16 or 17 and how this affects them. I was very grateful for the opportunity to meet the Minister this morning and for his reassurance in this area. Following that, I spoke to a personal adviser—when children leave care they are appointed such an adviser to support them during their transition from care—who said, “It is so helpful to be able to go on certain occasions to a professional, a solicitor, to get a letter to get access to welfare and the right housing for these children”.
About one-quarter of children leaving care do so at the age of 16. Therefore, we often have very vulnerable young people who really can benefit from expert advocacy. While I welcome what the Minister has said in terms of reassurance, this matter in particular needs to be looked at. He highlighted the use of the exceptional funding avenue. The personal adviser said that often it is not a question of going to court but of getting in early and getting a good letter to make the local authority or other agencies aware of the legal situation and then things would be done correctly. It would be helpful if the Minister in his response could give an assurance that the exceptional funding avenue is easily accessible in those circumstances. I strongly support my noble friend’s amendment.
Lord Beecham
My Lords, the noble Baroness, Lady Hamwee, referred to her regret that immigration is not included in the amendment. In fairness to the noble Baroness, Lady Grey-Thompson, this amendment is in lieu and something has to be different from the original amendment. An invidious choice had to be made and one could regret that any one of the categories was to be omitted but one had to be in order for the amendment to be in order.
I am indebted to JustRights for its briefing, which no doubt many noble Lords will have seen. JustRights is made up of some 18 voluntary sector organisations. When the Minister refers to extra support for citizens advice bureaux—which I think she identified in particular although she may have been referring to the whole sector—of £20 million a year for three years, one should know that Citizens Advice sustained a loss of £80 million. That sum is for everything and not just for children. Such investment has to be seen in that context.
However, as regards these amendments, by my calculation, taking out the immigration cases, the cost of accepting the noble Baroness’s amendment would be of the order of £2.8 million. JustRights estimated about £5 million to £6 million according to the Ministry’s estimates but that included something like £1 million for immigration. I beg the pardon of noble Lords but that figure should be more: the net saving should be about £4 million. It points out that the Local Government Association—I declare an interest as a vice-president of that organisation—estimates that the removal of legal aid for unaccompanied child asylum seekers in immigration cases, which this amendment does not seek to restore, would cost local authorities £10 million. In other words, the cost to one element of the public purse will go substantially to exceed the savings which would accrue from the Government’s package. It is estimated by Youth Access and the Legal Services Research Centre that greater costs will fall on other elements of the public sector, including the welfare system and the National Health Service.
Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord McNally
Citizens advice bureaux operate in a country that is 10 per cent poorer than the last Government gave the country to understand. It is absurd to pretend that citizens advice bureaux or any other sector—local government and national government —should not face this reality.
In civil cases, it is already a requirement of the rules of civil litigation that a child or other protected party who lacks capacity must have a litigation friend to conduct a case on their behalf. In the case of a child, this is usually a parent unless the court specifically orders otherwise. It will only be in exceptional circumstances that the court will make an order permitting the child or protected party to conduct proceedings on their own behalf. Any step taken before a child or protected party has a litigation friend is of no effect unless the court makes such an order. There is no requirement that a litigation friend must act through a solicitor. It is therefore open to a child’s parent or other person caring for the child, for example, to act as the child’s litigation friend in proceedings where the child is a party. We believe that this provides a clear safeguard for children and vulnerable young people who lack capacity to conduct proceedings on their own behalf.
We recognise that Amendment 5 also covers the 18 to 24 year-old category. As I said earlier, we have provided for those who are most vulnerable. However, we have also been clear that, in what is a complex area, there must be flexibility. The exceptional funding scheme therefore provides a mechanism whereby the director of legal aid casework can grant legal aid in areas of scope which would normally be out of scope, where necessary, to ensure the protection of the individual’s right to legal aid under ECHR and EU law. In cases engaging Article 6 of the ECHR, the director of legal aid casework must take into account a person’s ability to represent themselves, the complexity of the proceedings, the importance of the issues at stake and all other relevant circumstances. An individual’s age as well as their capacity will be a key consideration in determining a person’s ability to represent themselves. The exceptional funding scheme will clearly be an important safeguard for children and vulnerable young people who would otherwise be unable to present their case.
Amendment 3, in particular, seeks to bring all cases back into the scope of legal aid where a child is a party, but the Bill already provides for child parties to be within scope of legal aid in family proceedings. The amendment is therefore in part unnecessary and seeks to replicate what is already in scope. The rest of the amendment seeks to keep funding across the board for children in all civil disputes without regard to the relative priority or alternative methods of resolving them. The majority of children will already fall within the scope of legal aid as provided for by the Bill. However, there are additional safeguards to provide further protection through exceptional funding powers and, should it prove necessary, the power to add to civil legal services.
Baroness Butler-Sloss
My Lords, I should like to congratulate the Government and also to express my very deep gratitude to the Ministers in this House and in the other House for achieving a very sensible solution. I am also particularly grateful to the government lawyers who have done an enormous amount of work both for me and for those behind me, and who took the trouble to deal directly with the former chairman of the Family Law Bar Association and the chairman of the ILPA in relation to a later amendment. I really am very grateful.
However, I have a wish list—I might refer to it when the first government amendment that was accepted today enables a little more money to be provided—for two groups of left-behind parents. They are generally fathers, but sometimes they are mothers. The first situation concerns preventing a threatened abduction in a family where both parents are still living together because neither parent has yet applied for a court order. The left-behind parent may be warned by another member of the family that the mother, generally, will take off with the child and that the father will never see the child again. That would require a prohibited steps order. I understand the thinking of the Government on why they will not deal with the matter now. However, I would like them to put it on the waiting list because it needs to be done at some stage.
The second is where the mother—it is generally the mother, but sometimes the father—removes a child in a situation where there is not yet a residence or other order. That internal parental abduction case is not covered, either. I would like to put both those matters on the wish list and I hope that one of these days the Government will be sympathetic to them. However, the work that has been done, and the recognition by the Government that this should be dealt with, is splendid news, and we are all extremely grateful.
Lord Beecham
My Lords, it is only a few weeks since the noble Lord, Lord McNally, described Lord Newton as a national treasure except when he voted against the Government. I intervened somewhat mischievously to say that that was what made him a national treasure. In fact, of course, he was a national treasure for a long time before that. I have good memories of working with him when he was a very approachable Minister and I was the leader of my local authority. I also had the pleasure of serving under him as a member of the Local Services Honours Committee, which he chaired with great care, always exhibiting great thoughtfulness and fairness. He was a man of great conviction and great courage, as he demonstrated fully in your Lordships' House for so many months. We will all miss him, as other noble Lords rightly said.
I turn to the amendments in this group and join the noble and learned Baroness, Lady Butler-Sloss, in acknowledging that the Government have made significant improvements to the Bill and in congratulating the noble and learned Lord on doing that. I also congratulate the noble and learned Baroness on initiating these very welcome changes. I endorse what she said about further developments. Now, of course, the Government have the capacity to bring them about without primary legislation. The Opposition look forward to that in due course and certainly support the amendments in this group.
Lord Wallace of Tankerness
My Lords, I start by associating myself with the comments made by the noble Lord, Lord Beecham, about Lord Newton. I first encountered him in 1983 when I was a newly elected Member of Parliament and he was the Social Security Minister. I had a particular constituency issue and he could not have been more helpful or understanding. That was my experience of him as a Minister throughout my time in the other place.
The noble and learned Baroness, Lady Butler-Sloss, outlined her wish list. I think that she understands why the Government are unable to accept at the moment that legal aid should be available for these prevention matters. We find it difficult to see how the orders covered would be used in practice for prevention of removals in situations of urgency for which a case for funding is made, rather than for securing return after removal. If a child was in the process of being abducted and the situation was an emergency, legal aid would be available for the purpose of securing their return. It is more difficult to see why legal aid should be available to fund applications that are more contingent in nature, where there is no imminent danger of abduction or associated emergency but the measure is being sought on a precautionary basis. Very often those cases will be the stuff of general private family law proceedings, and we see the risk of such orders being sought for the benefit of funding in what are general disputes over where a child is to live and with whom—which, as we made clear in other areas, we will not fund.
Having said that, I welcome the co-operation that there has been, and very much appreciate the comments made by the noble and learned Baroness about the officials who worked on this and productively engaged with her and with those who advised her. I hope that what we brought forward meets the concerns raised. I have no doubt that we will be reminded of the wish list when we have had a bit more experience of the Act in operation. Again, I thank all those, both inside and outside the House, who worked toward a constructive solution on this matter.
Baroness Hollis of Heigham
My Lords, I support the noble Lord, Lord Best, in his Amendment 16. Like him, I am a refugee from the Welfare Reform Act and, like him, I am deeply concerned that the new system of universal credit, which I strongly support, is coming together with huge cuts in housing benefit. This will produce uncertainty and complexity at the same time as withdrawing legal aid—unless the Commons supports the amendment previously passed by your Lordships’ House and unless the House supports the noble Lord, Lord Best, today.
To introduce a new system, with the implications for the tenants of my housing association of losing up to £1 million a year, means that some will face homelessness, eviction and bed and breakfast accommodation, or alternatively will flood the tribunals and the courts system. To withdraw legal aid at the time of introducing these cuts and changes to housing benefit, as well as universal credit, creates a perfect storm that no Government should wish to whirl up. I hope very much that the noble Lord, Lord McNally, will respond positively to the amendment moved by the noble Lord, Lord Best.
Lord Beecham
My Lords, I support my noble friend Lady Hollis and, of course, the noble Lord, Lord Best, in moving this amendment. They have made a very powerful case, which was rehearsed on Report. At that time, I quoted Shelter and the Nottingham Law Centre, two separate organisations from the not-for-profit sector, which strongly urged the Government to change their position on this. They are the organisations that provide legal help and advice, not necessarily extending to court proceedings, on the benefits side as well as the remainder of the housing issue—some of which, in fairness, the Government are including within scope.
This is a classic case, as my noble friend has implied, where there is a potential modest saving to the Ministry of Justice budget but a potential extra cost to other departments. If homelessness ensues, particularly where children are involved, very substantial costs are imposed on the budgets of the local authority, and maybe also on the Department for Work and Pensions, which in certain circumstances may be devolved; for example, special needs payments or crisis loans, which a family on the streets may clearly require.
In this context, cost is a consideration which, if anything, tells against the Government’s proposals rather than the other way round. I hope that the Government will recognise the strength of arguments from those dealing with this directly—not from the legal profession in this case, but from the advice sector—and provide for the possibility of timely advice being given to avoid worse consequences for the individuals and their families and, for that matter, the public purse. I hope that the Minister will reconsider the position the Government have hitherto adopted.
Lord McNally
My Lords, the noble Lords, Lord Beecham and Lord Best, acknowledge that this is one more time on which we have discussed these matters. We had detailed discussions in Committee and on Report. Amendment 16 is intended to bring into the scope of legal aid advice and assistance in relation to an individual’s financial situation, such as debt and housing-related welfare benefits issues, where they are linked to the loss or threatened loss of the individual’s home under paragraph 34 of Part 1 of Schedule 1. The House will be well aware that our proposals ensure that legal aid continues to be available to an individual in relation to the immediate risk of losing their home, through possession or eviction. This includes cases where the underlying cause is a debt or welfare benefits issue.
It may reassure noble Lords if I reiterate a few brief examples of where legal aid will be available under the loss-of-home provisions in paragraph 34 of Part 1 of Schedule 1. First, legal aid will continue to be available before a case is brought to court. It will be available where possession or eviction action is contemplated. Where an individual receives a letter which threatens possession action, legal aid will be available at that point. For example, legal aid will remain available to a person threatened with possession action for mortgage arrears to negotiate with their mortgage lender.
In the context of welfare benefits, it is important to recognise that, where a landlord threatens their tenant with possession proceedings, legal aid would be available to the tenant to reach agreement with a landlord to delay the possession action pending the resolution of the welfare benefits issue. If possession proceedings are issued, legal aid will be available to an individual to argue for an adjournment—for example, if they are likely to be able to make the necessary payments if an underlying benefits dispute is resolved in their favour. Where an individual loses a welfare benefits appeal and subsequently faces possession action for rent or mortgage arrears, legal aid will be available in relation to that action. We will also retain legal aid provision for judicial reviews about welfare benefits decisions and for welfare benefits matters which relate to a contravention of the Equality Act 2010.
This amendment would go much wider and would generally provide for legally aided advice and assistance on the financial circumstances of an individual—such as for underlying debt or welfare benefits issues—where these are linked to loss of home. This would run contrary to our approach. At a time when the country is recovering from a genuine fiscal crisis we need to focus limited resources on the highest-priority matters. As I have said before, we cannot agree that legally aided advice and assistance should be generally available in relation to a person’s financial circumstances—such as for debt or welfare benefits issues—in the situations covered by the amendment.
There is no doubt that people, including those in potential loss-of-home situations, find advice useful in areas such as debt and welfare benefits. But we are firmly of the view that what those affected often need is practical advice rather than legal advice funded by legal aid. Individuals who have debt problems often need advice on managing their finances better and on practical measures to resolve their situation, and can access that advice through a range of specialist organisations. It will come as no surprise to the House to hear me repeat that the Government greatly value the not-for-profit sector and the good-quality free advice which it provides to people in their communities on these sorts of matters.
My department is working closely with the DWP to improve the quality and effectiveness of initial decision-making in applications for social security, reconsideration within the DWP and the system of subsequent tribunal appeals. This work should make it easier for claimants to receive the right benefit provision. Moreover, welfare benefits appeals matters are resolved through a tribunal which is designed to be accessible without legal assistance, and general advice on welfare benefits is available from a number of sources.
I know that this issue has been raised at every stage. After these debates, we do not just close the book and not take any notice. We go back to the department and the Ministers and advisers have a discussion. There is also a discussion about the issues raised with other departments. This is not a decision taken lightly but we believe that the loss-of-home proposals in the Bill get the balance right in terms of focusing limited public funds for legal advice and assistance in the most appropriate circumstances. We have listened to the appeals made by the noble Lord and considered them. At this point, we cannot agree with them. I ask him to withdraw his amendment.
Lord Alton of Liverpool
My Lords, I shall be brief. I support the amendment in the name of my noble friend Lord Pannick. Just over a week ago, your Lordships were reminded by no less a person than Her Majesty the Queen that during her time as monarch she had signed more than 3,000 pieces of legislation enacted by Parliament. All of us who have been Members of this House and the other place know that we have a penchant for passing vast swathes of legislation that we never revisit subsequently. We all know that we sometimes legislate in haste and repent at leisure. I have had the feeling during the passage of this legislation that we will later regret some of the measures we have passed.
The problem then is what we are able to do about it. Although we sometimes add sunset clauses, and Select Committees can revisit legislation and make recommendations, we often do not put in the kind of belt-and-braces provision that my noble friend Lord Pannick has placed before your Lordships’ House this evening. It is eminently reasonable. It is perfectly good for Parliament to say that if things were to work out in the worst-case scenarios in the way that your Lordships at various stages in Committee and on Report have suggested may happen, and if the Minister is proved not to be correct in what I am sure he sincerely believes regarding the way in which this legislation will be interpreted in due course, there ought to be some way of doing something about it if it is to be found wanting.
Giving this discretionary power to the Lord Chancellor and making it consistent with Part 1, as my noble friend has just described, seems to be the perfect way of dealing with the problem. It is eminently reasonable and, like my noble friend, I cannot see any good reason why the Government would want to resist something that requires no expenditure and does not place on them any duty but simply gives them a discretionary power. I hope that the amendment will commend itself to your Lordships.
Lord Beecham
My Lords, the Opposition certainly support the amendment moved by the noble Lord, Lord Pannick, in his customary and eminently reasonable way. He clearly draws the analogy between the changes that the Government, to their credit, accepted in relation to legal aid and what is being advocated here. It adopts the precautionary principle whereby if things went wrong—they may not of course—there would be a fairly simple way of correcting them if the amendment were to be accepted. If it is not accepted, we would presumably be in for a long delay while primary legislation was enacted, as both noble Lords have made clear.
In this case, discretion is the better part of legislative valour, and I hope that the Government will accept the amendment. It does not bind them to anything but provides an opportunity for corrective measures to be taken, if that should prove necessary, in precisely the same way that they have accepted in relation to legal aid.
Lord McNally
My Lords, the noble Lord, Lord Pannick, has tabled his amendment along the lines he suggested on Report. He suggested then that it might be sensible to have a power to disapply the effects of Part 2 in relation to the abolition of recoverability of success fees and insurance premiums in respect of particular categories of case. The amendment now seeks to achieve that.
I have referred on several occasions during the passage of the Bill to its central architecture. The Government’s view, quite simply, is that the current recoverability regime is wrong in principle. It is wrong in principle to impose substantial additional costs on losing parties, whether in relation to success fees or insurance premiums. Those costs add to the already significant costs of civil litigation and allow for risk-free litigation by claimants and what I earlier described as inflation in our legal system.
I have explained the rationale for our proposals and why we consider that they should apply across the board without exception, and I do not propose to repeat those arguments now. The amendment seeks to allow different recoverability in different classes of case. We are implementing a package of reforms, not all of which are contained in the Bill. This package has been carefully put together to be fair between claimants and defendants.
I understand the noble Lord’s intentions. I understand that he thinks it sensible to allow for exceptions to be made at a later date. However, we are legislating now on what we consider to be a fair and overdue basis. Funding arrangements need a degree of certainty. Claimants and defendants need to be able to plan and adapt to the new regime. The amendment would only create uncertainty. Will an exception be created? For what and when? Rather than settling the issue of CFAs, as this Bill seeks to do, the amendment would open the door to constant campaigning and calls for individual exceptions. The amendment may be well intentioned but it is fraught with difficulty. It would provide uncertainty and confusion where we are seeking to introduce clarity. It would provide increased costs where we are seeking to reduce costs. It is wrong in principle and unnecessary. I urge the noble Lord to withdraw it.
Lord Beecham
My Lords, it is with some relief that I return to the question of referral fees for positively the last time in the course of the Bill. The Opposition have no objection to these amendments in the circumstances and we congratulate the noble Lord, Lord Hunt, on having suggested them to the Government.
I do not know whether the noble Lord read the Daily Telegraph last Monday— which I think informed the speech of the noble Baroness, Lady Deech, with its suggestions about the Labour Party’s alleged scheme for referral fees, about which I spoke at our previous meeting—but there is a certain irony in the amendment. He may not know—I did not know until after the event—that no less a body than the Daily Telegraph runs a referral scheme, including for personal injuries. It is interesting that that newspaper should have run a story criticising the Labour Party for something that does not exist when it has precisely the same scheme. Apparently it has a scheme with a firm called Irwin Mitchell, of which the noble Lord will have no doubt heard, which levies referral fees. Oddly enough, the Daily Telegraph did not disclose that in the piece that it ran.
However, the Opposition are quite content with the amendment.
Lord Hodgson of Astley Abbotts
My Lords, briefly, I support the amendment of the noble and learned Lord, Lord Woolf. I have been involved in restorative justice through a charity called Why Me? for some years. I became involved because it offered a victim-oriented strategy, as mentioned by the noble Lord, Lord Ramsbotham. Restorative justice offers an opportunity for the person who has been offended against to address the trauma that they have suffered, to see how and why it came about and, in that way, to achieve some sort of closure. On the other side, it has had significant effects on reoffending. As the noble and learned Baroness has pointed out, offenders will say, “There was just a name on a charge sheet but when I see that it belongs to a person with a home and a family, which I have broken into or broken up, I begin to see some of the dreadful things that my actions have done”. Therefore, I am anxious that the Government should accept this amendment.
There are only two reasons why they might not accept it that I can see. First, there might be a need to restrain public spending. I accept that there is a need for this sort of activity to be carried out by well trained people to be effective. However, there will be a net benefit. If we can continue to achieve the reduction in reoffending rates that has been achieved in the past, there will be a reduction in costs as we avoid some of the costs of reoffending. Secondly, the Government have said that this amendment is overly prescriptive but I have some difficulty in understanding why. As the noble and learned Lord pointed out in his opening remarks, this just adds to the menu of options available. Therefore, it is not prescriptive in my reading of how the amendment has been drafted.
In conclusion, my concern is that if we are not careful, the idea of RJ will fall victim to what I call the Daily Mail effect. Restorative justice is not an easy thing to defend. It can appear a bit touchy-feely. One or two cases that led to difficult headlines in the newspapers could lead to the Ministry of Justice saying, “This is a bit difficult. We had better back off from this one”. Therefore, my reason for strongly supporting the noble and learned Lord’s amendment is that if we get it into the Bill, we will then have something that can be used in the future and cannot be brushed away by some unfortunate event that might lead to public opinion turning against it and putting temporary political pressure on the Government of the day.
Lord Beecham
My Lords, from the opposition Front Bench I strongly support the amendment moved by the noble and learned Lord. I do so not just because he was a distinguished judge and a most eminent Lord Chief Justice, whose words should be weighed very carefully by all sides of this House; not even because he is a fellow Novocastrian and a fellow honorary freeman of Newcastle-upon-Tyne; but because what he proposes makes such eminent sense, as several of your Lordships have pointed out. The record of restorative justice is one of success. It is not universally successful but, as we have heard, it has made a significant impact on reoffending rates, is cost-effective and, as the noble Lord, Lord Ramsbotham, pointed out, is an alternative to other forms of punishment that are generally more expensive and often less efficacious.
I cannot think of any reason why the Government should resist an amendment phrased in the way that this is. There is an analogous process called “justice reinvestment”, which is a rather more collective way of making reparation, whereby offenders put something back into the community through a community payback scheme or something of that kind. Justice reinvestment is not part of this amendment, although it is a valuable process. If the Government reject the amendment, we will not see justice reinvestment but, in effect, justice disinvestment. That would be a mistake, from which only the victims of crime—and the taxpayer, for that matter—would suffer.
I hope that the Minister, when she replies, will see the enormous persuasive logic of the case made by the noble and learned Lord, supported as it has been on all sides of the House. I hope that the Government will recognise that to incorporate an amendment of the kind that the noble and learned Lord has moved will strengthen, not weaken, the Bill. I hope that they are prepared on this occasion, as they have been on other occasions, to listen to the sense of the House and accept the amendment.
Baroness Northover
My Lords, Amendment 31, tabled by the noble and learned Lord, Lord Woolf, returns to restorative justice. I thank him for bringing this important issue before the House and for his tenacious support for its principle.
The amendment is very timely as this morning we published our consultation on community sentences, Punishment and Reform: Effective Community Sentences, which includes a chapter on reparation and restoration. I am very pleased that the noble and learned Lord has welcomed this publication. The consultation offers us an important opportunity to seek the views of practitioners, sentencers, magistrates, probation officials, victims and victims’ groups about the use of restorative justice as part of our response to tackling more serious offending through the use of community sentences. It asks questions about the use of pre-sentence and post-sentence restorative justice, what more we can do to strengthen and support the role of victims in RJ and, crucially, what might be the right approaches to building capacity and capability and boosting a cultural change for RJ. We want to gather all views on how to do this, and through what means, so that we can develop the most effective approach. Noble Lords have emphasised their experiences of how restorative justice works and have cited research to back up those experiences.
We are anxious to ensure that innovative and effective restorative practices continue to be developed and are driven by local areas and tailored to local need. We certainly want to support initiatives by building capacity in the criminal justice system so that we can deliver the restorative process that this amendment champions. I believe, therefore, that we need to undertake the important consultation exercise that we have initiated today before we can give consideration to whether further specific legislation is necessary for restorative justice, taking into account all the options for how we intend to widen its application.
Noble Lords have made a very powerful case for the use of RJ. My honourable friend in the other place Crispin Blunt, my noble friend Lord McNally and I very much welcomed the meeting that took place earlier today, to which the noble and learned Lord has referred. I hope that it reassured him that we are making progress in this area to increase the use of restorative justice across the criminal justice system. We hope that he will contribute his enormous wisdom and experience to the consultation that we launched today. I assure noble Lords that everything that they have said will be fed into that consultation process and what emerges from it.
Lord Ramsbotham
My Lords, I support the intent of the amendment moved by the noble Baroness, Lady Linklater. I will admit to some subversion. When I was Chief Inspector of Prisons, the Magistrates’ Association one day brought me a large blue book containing the guidance issued by the Prison Service for visits paid to prisons by magistrates. The association asked me whether I would support it. I read it and advised the association to put it in the bin immediately, because it advised that when magistrates went to prisons, they should accept the programmes laid on by the governor that would show them all the things in the prison that they did not need to use or see.
I advised the magistrates instead that when they went to prisons, they should say: “I want you to do three things. First, show me what would happen if I was a prisoner arriving for the first time, so that I can see the reception arrangements. Secondly, I want to discuss the arrangements that might be made for sentence planning and conduct during the time I am in prison. Thirdly, I want to see what arrangements will be made as I come up to release from prison”. Within a month, I had the Magistrates’ Association back saying, “Thank you so much. That has given us a purpose when we go on a visit”. Then, when I went into prisons, I had a response from the staff who said how refreshing it was to have magistrates coming in who were interested in what they were doing with and for prisoners.
What I like about the amendment proposed by the noble Baroness, Lady Linklater, is that this process should be followed by magistrates showing an interest in what probation is trying to do in the community with and for prisoners. If there is that interactive relationship between the organisations involved, you will get a much more cost-effective and proactive organisation. Everyone will feel that they are working together rather than feeling that they are being shown something for the sake of being shown it because that is an exercise that they go through. Therefore, I entirely support the spirit of the amendment.
Lord Beecham
My Lords, the noble Baroness makes a persuasive case to encourage the Government to invest not money but a modest degree of guidance to assist the process of magistrates effectively learning more about sentencing options, about what happens when they institute different forms of punishment and about what happens, in particular, in relation to community sentencing. This is not a huge burden. When one thinks of some of the legislation that has passed through your Lordships’ House in recent months —a Localism Act that with its impact analysis weighed in at something over 8 pounds, as I recall, and contained 225 clauses, a health Bill that had 1,000 amendments en route to your Lordships’ House and all the rest of it—one cannot imagine that it would take very much effort on the part of those responsible to produce fairly simple guidelines on a very narrow topic, which is the subject of this amendment, that could facilitate greater awareness of what is available to magistrates in terms of sentencing options. It seems to me an overwhelmingly simple matter and one that the Government could graciously concede without any damage to the Bill. On the contrary, it would enhance the intentions of the Bill and the intentions of government policy, to which we have referred and which, no doubt, we will shortly hear again from the Minister. Along with the noble Baroness and the noble Lord, Lord Ramsbotham, I would be at a loss to understand what could possibly persuade the Government that this is not a simple and desirable course to follow. I hope that the Minister will not feel that she is constrained to remain rigid on the position that has hitherto been adopted, which produces nothing to assist magistrates or, indeed, anybody else.
Baroness Northover
My Lords, this amendment returns to the issue raised by my noble friend Lady Linklater throughout the passage of the Bill. As I said on Report, my noble friend Lady Linklater has considerable experience of bringing together magistrates and those working in probation and of building trust in alternatives to custodial sentences. That is the key area here. That is exceedingly important. We agree with my noble friend about the merits of what she is trying to achieve. However, we do not feel that there is need for legislation to reach that goal. It is interesting that the noble Lord, Lord Beecham, talks about guidance.
As I said on Report, we will look to promote best practice on liaison and information sharing and to make clear that there are already arrangements available for magistrates to claim expenses from probation trusts to encourage such close liaison. We have already begun that process. The national sentencer probation forum has agreed to look at this issue. That forum brings sentencers, including magistrates, together with probation trusts and Ministry of Justice officials to discuss national issues of common interests, including liaison arrangements. We want to gather from sentencers and probation trusts any issues of which they are aware in relation to local liaison arrangements, along with examples of good practice in information sharing. I am pleased to say that the forum has agreed to consider these issues at a forthcoming meeting. I hope that my noble friend is reassured by that. It may be that as a result of that examination of the issues, it emerges that there is indeed a need for guidance in the way that the noble Lord, Lord Beecham, indicated, or some other clarification of existing procedures. However, I stress again that there is no need for new primary legislation to enable that to happen.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Beecham Excerpts(12 years, 5 months ago)
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Lord Beecham
Lord Beecham
My Lords, there has been widespread condemnation outside the House, and unanimous condemnation inside it, of the activities of parasitic claims farmers and claims management companies that engage in the process of securing referral fees simply to generate profit. A major objection to the activities of those concerns is that they foster the myth of the compensation culture. People who see advertisements on the streets or in newspapers which invite claims may get the impression that hordes of people are succumbing to the temptation to make wholly bogus claims. In the field of whiplash claims, it is acknowledged that there is some truth in that perception. However, in general terms, as the noble Lord, Lord Young of Graffham, pointed out in his report, there is no substance to the suggestion that there is a widespread compensation culture.
The amendment deals with the position of not-for-profit organisations. We are entirely at one with the Government in seeking to ban referral fees made to commercial organisations simply for the purpose of making profits. However, some organisations—be they charities or membership organisations—receive referral fees from firms of solicitors and perhaps from others whom they appoint to panels on the basis of their expertise and record of service, and whose contributions help those organisations carry out their main purpose. That might be service to members or, in the case of charities, the furtherance of the charitable objectives of the organisation. For example, among the charitable organisations are the Spinal Injuries Association, Headway and Action against Medical Accidents. There are others, too, which receive referral fees and use the proceeds to benefit those whom their organisation was set up to help. Other membership organisations and trade unions do likewise.
When we debated amendments of a similar nature last week, the Minister referred to the main—and understandable—objective of the Government, which is to restrict the cost of litigation. We share that objective. In the case of referral fees, it is perfectly achievable. It does not constitute a cost to the system. If a referral fee is effectively charged to the client, of course that is a cost to the client, and that ought to be avoided. On general costs, costs payable by a losing party to another are either agreed or assessed by the court. Obviously, the court can base its assessment of costs on what the normal tariff would be. I have appeared before the courts many times in 35 years of practice as a solicitor—endeavouring to justify the very modest costs that my firm sought—to explain and justify those fees. In fact, a kind of tariff is applied locally by the courts. In any event, if this were thought to be a danger in the system, it would be possible to allow the courts to deal with any such referral fee, to require it to be disclosed and to make it an irrecoverable disbursement from the paying party. So the question of additional costs can be satisfactorily dealt with.
In last week’s debate, the noble Baroness, Lady Deech, made some interesting points, one of which was incorrect. She said that the referral fees received by some trade unions find their way into the coffers of the political party with which I and others in this House are associated. That is not the case. Payments by trade unions to political parties of any colour come out of the political fund, not the general fund. The noble Lord, Lord McNally, who was once more closely involved with these matters than he is now, confirmed that.
However, the noble Baroness also referred, understandably, to the situation that arose in respect of compensation claims by miners regarding pneumoconiosis —a whole raft of cases over many years. Many law firms and others spent considerable time and money researching these cases and it was a very long time before they were settled and a scheme developed. The abuse in that case was actually rather different from what we are now debating. It was not so much the question of referral fees; it was the fact that some firms of solicitors—happily, not many—not only were paid by the Government under the compensation scheme but had the effrontery to deduct some payments from their clients. That was absolutely outrageous and many of the firms involved were severely disciplined, and rightly so, by the Law Society. But that is a separate issue from that which this amendment and the whole topic of referral fees address.
There is a world of difference between the use of referral fees by claims management companies and the like—simply to generate profit and at the same time perhaps to promote invalid claims on the off-chance that some of them may succeed—and that by other organisations genuinely endeavouring to assist their members and receiving funds which in turn are used for the benefit of the members or the non-commercial purposes, charitable or otherwise, of the organisation. I beg to move.
Baroness Deech
My Lords, I will try not to repeat myself, because I spoke about referral fees last week.
Briefly, in response to the noble Lord, Lord Beecham, the evil of referral fees is threefold. First, if the law firm can afford to pay a couple of hundred pounds for each case, then it stands to reason that the case could have been handled more cheaply. Secondly, when work goes to a particular firm of solicitors, it encourages that firm not to compete and not to do its job properly because, no matter what, the work will come to it. The case of the miners to which the noble Lord, Lord Beecham, referred and which I described last week did not arise directly from referral fees, but one can see the risk. If a firm knows that 23,000 cases will come its way willy-nilly, why should it try very hard? Why should it not take short cuts?
Thirdly, referral fees arrangements deprive the consumer of choice. The argument for referring consumers to a particular firm is that they would not otherwise know where to go. These charitable organisations, to which the noble Lord referred, could do the job just as well by listing a few firms and helping their clients to go to those firms without expecting money to come their way. As far as I can make out from research on the web—I stand to be corrected—on its web page on legal services the Labour Party says that clients who are members of the Labour Party will be referred to a particular firm of solicitors if they have a problem. If one continues to click through the pages, the firm says in very small print, buried deep in the internet, that for every case that comes to it from the Labour Party website several hundred pounds will be paid to the political party.
To make things even worse, referral fees, some of which may well come from legal aid, could be channelled inter alia to a political party. There is no case for referral fees. I encourage the House not to be wooed into any set of exemptions, even where worthwhile charities are concerned, because the bad nature of referral fees spreads throughout the system, regardless of who uses them. I hope that your Lordships will reject this amendment and any similar ones. Now is the time to end the practice of referral fees.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, this proposal is not in any way union bashing and I am sorry that it has been caught up like that. I was pleased that when the noble Lord, Lord Beecham, opened the debate he joined with the Government in our general desire to ban referral fees. It is of course right that injured people should be able to pursue claims and under our reforms they will be able to do so. Costs will be more proportionate and the damages they receive will be increased.
However, it is wrong for third parties to be able to profit from referral fees for personal injury cases in this way. I found the intervention of the noble Baroness, Lady Deech, last Wednesday extremely powerful and I recommend noble Lords to reread it. The noble Lord, Lord Beecham, is right: it is not four-square with referral fees but it illustrates the danger of sweetheart relationships in this area. The Law Society was quite right—but rather belatedly so—to deal with a great injustice to miners who had already suffered much in their industry.
On the question of political funding, yes, I understand the difference between union general funds and the political fund and that it is the political fund that goes to the Labour Party. However, again, the noble Baroness, Lady Deech, explained that she was referring to the party itself acting as a referee. Even as I speak, I wonder whether this merry thought has occurred to any other political party. I know political parties look for ways to earn funds and, if this has been thought up by the Labour Party, it is, at the moment, within the law. However, we do not think it is right.
I also welcome the intervention of my noble friend Lord Phillips. I do not always welcome his interventions but this time he has put his finger on it: we are not preventing solicitors taking on a case at reduced rates or for free; nor are we preventing solicitors from making donations to charities or other not-for-profit organisations. Charities representing injured people will still be able to offer advice and recommend the best law firms. However, they should do that in the claimant’s best interest, not on the basis of what fee they can get for that claim. The amendment would not only allow an exception for charities and unions but for all not-for-profit organisations. I fully appreciate that trade-union, charity and political-party referral fees can be nice little earners, but that kind of relationship is not in the best interests of the consumer.
I say to the noble Lords, Lord Monks, Lord Brooke of Alverthorpe and Lord Martin, that I am well aware of the record of trade unions in legal advice and the help that they give to their members. I have no doubt of the accuracy of the figure of 50,000 a year given by the noble Lord, Lord Monks. However, I also take the point—which I did not know—that only two trade unions use referral fees. This suggests to me that this is not the universal attack on trade unions that anybody has suggested. We simply say that whether it be political parties, trade unions or charities, it is not healthy or in the consumer’s interest to have sweetheart deals between unions, charities or political parties and individual law firms.
The amendment goes further than earlier proposals. Some claims management companies are currently not-for-profit organisations and others could become not-for-profit bodies in order to get around the ban. In Committee, the noble Lord, Lord Bach, tabled an amendment that would have made an exception for charities only. This amendment now makes a wider exception which would exempt unions, political parties and not-for-profit claims management companies as well.
We believe that referral fee arrangements are wrong in principle. Under the cloak of support for charities, the amendment would allow payments for the referral of personal injury cases by a wide range of organisations. This amendment would make a mockery of the ban on referral fees, which the Opposition have claimed to support in principle—and I believe they do support it in principle. I really think—and the more I listen to this debate the more I think it—that for the Opposition to press this amendment is simply wrong-headed. I hope that the noble Lord will withdraw the amendment.
Lord Beecham
My Lords, let me make it clear that I do not for a moment charge the Minister—or indeed the Government—with conceiving of this as in any sense aimed at trade unions. It is a by-product of policy. Let me also remind your Lordships that referral fees are only banned—certainly at the moment, under the terms of this Bill—in respect of personal injury claims. For any other kind of arrangement, referral fees are apparently acceptable—not, however, in the context of personal injury claims.
That really illustrates whence this proposal comes from. It comes from the unacceptable activities of those who have perhaps been promoting spurious claims—and we will come at the next amendment to the kind of techniques that some of these firms and outfits adopt to encourage claims in a way that fosters this myth of the compensation culture. That is the genuine motivation of the Government; what they are doing to deal with it goes too far.
I do not recall having jousted in legal terms with the noble Baroness, Lady Deech, 50 years or so ago when we shared adjoining desks at the Honour School of Jurisprudence, but I will joust a little with her, if I may, this afternoon. She first of all asserts that it would be an incentive for firms not to do the job properly. I do not know what possible basis she can have for saying that. A solicitor’s job is to do his best for his client. In a sense, there are two clients when one is acting for somebody referred by an organisation. Far from it being the case that there is no incentive to do the job properly, there is a greater incentive to do the job properly when one has a connection with a potential source of work—whether there is a referral fee or not —because, of course, one does not just lose and upset one client: one potentially loses a whole stream of work. In fact, therefore, the converse of her proposition is actually true.
The second of the noble Baroness’s points which I seek to rebut is that this deprives people of choice. A union member or a member of a charitable or other organisation does not have to use the organisation that is recommended or go to one that pays a referral fee. They have the same choice as anyone else. But they may choose to rely on their own organisation, trade union or otherwise, having established from its experience that a particular firm or firms are capable of carrying out the work. The choice, however, remains with them. The noble Baroness has been on the website and discovered the Labour Party’s scheme. Let me tell her and the House how much that scheme has raised: nil, nothing, not a penny. It is about as vibrant as Monty Python’s parrot. It is redundant. It is a dead scheme. It has never been activated, so that issue need not distract your Lordships’ House.
Before I conclude, I should make one other point in relation to charitable organisations. The ones I have mentioned operate on a referral-fee basis. There are three of them and I think there may be others, although perhaps that is a little beside the point. I liken the process to another aspect which is certainly something that political parties and many charities operate, and that is an affinity card with a bank, where a percentage of one’s expenditure when using the card goes to the organisation. In precisely the same way that it could be alleged—I think wrongly—that as referral fees increase costs in the legal system, so by definition an affinity card must push up the costs in relation to financial services. It is an analogous situation.
I feel strongly about this—
Lord Thomas of Gresford
My Lords, drawing on his long experience, can the noble Lord tell us when referral fees first reared their head? I do not recollect them 20 or 30 years ago. Does he know when they began?
Lord Beecham
To the best of my recollection, they have appeared in the past 10 to 12 years. I have not myself been heavily involved in the practice in which I was a senior partner for the past nine years, much to its relief and mine. Having had our debate and despite the pleas of the Minister, I wish to test the opinion of the House.
Lord Clement-Jones
My Lords, first, I declare my membership of the Law Society. As we have discussed both in Committee and on Report, referral fees are one of the major causes of the public’s perception that a compensation culture exists in this country. We have heard some powerful speeches across the Benches on the subject of referral fees. My noble friend Lord Thomas called them insidious and I agree. For that reason I strongly support Clauses 54 and 55.
Although there has been some difference of views on the provisions for referral fees set out in Clauses 54 and 55 as they impact on charities and trade unions, generally there seems to be a common view that although these clauses are useful, if they are to catch all the abuses they need to go further—perhaps not as far as the right honourable Jack Straw would want to go in terms of making it a criminal offence, but covering the full range of malpractices. For instance, there is nuisance marketing in personal injury—specifically, advertising in hospitals, cold calling and spam texts; financial incentives to claim; selling contact and case details of personal injury victims without their consents; and auctioning claims to the highest bidder. Mr Simon Burns the Health Minister recently told English NHS hospitals that it was not acceptable to display advertisements for law firms encouraging no-win no-fee compensation claims. That was a firm and wise action, and I commend it.
In our debate in Committee, my noble friend Lord Carlile of Berriew, on the subject of text messaging immediately after an accident without injury even taking place, made a powerful speech in support of extending Clause 54. My noble friend Lord McNally expressed sympathy with the intention behind the amendment and said that the Government would consider it further. I hope that he will tell us today where the Government have got to. Can we expect white smoke on Report or Third Reading or, indeed, a text message? I beg to move.
Lord Beecham
My Lords, I entirely support the amendment. The noble Lord, Lord Clement-Jones, is right that this practice is a nuisance. I was half expecting a text message after I told the House about my fall the other day. I thought that eager readers of Hansard in these companies would have solicited my attention or that of the noble and learned Lord, Lord Wallace of Tankerness, but so far nothing has happened. However, like many of your Lordships, I receive periodic texts and e-mails from organisations saying that I may not have made a claim in respect of my recent accident or, latterly, about payment protection insurance problems, and the like. As the noble Lord, Lord Thomas, said, it is an insidious practice and certainly ought to be banned.
I hope that the Minister accepts the amendment and that, if he does not, the noble Lord, Lord Clement-Jones, tests the opinion of the House.
Lord McNally
My Lords, this amendment looks to deal with the serious problem of unsolicited marketing, including text messages or telephone calls about personal injury claims. I congratulate my noble friend on raising an issue which, as the noble Lord, Lord Beecham, indicated, annoys and irritates millions of our fellow citizens. I assure the House that the Government have given careful consideration to this issue since my noble friend raised it in Committee. Legislation, which is primarily enforced by the Information Commissioner’s Office, already exists to protect individuals in this area. Recent action by that office has resulted in the confiscation of more than 20,000 mobile phone SIM cards that were being used to send unsolicited text messages.
Following this issue being raised in Committee, my honourable friend Jonathan Djanogly, the Justice Minister, will meet the Information Commissioner to discuss further how the problem can be addressed. Additionally, the ICO, the Ministry of Justice Claims Management Regulation Unit and other regulators continue to work closely with the telecommunications industry on this problem. Across government, an industry working group has been set up and is due to publish a joint guidance note for consumers explaining the functions of the relevant regulators along with advice on how to make a complaint.
On the particular point about advertising in hospitals, the Government do not support the marketing of such services on NHS premises. There is already an absolute ban on unauthorised marketing by claims management companies. We believe that it is more appropriate that authorised marketing should be dealt with through guidance rather than through regulation. In support of this approach, the National Health Service chief executive has recently written to NHS managers to make clear the position on marketing in hospitals and primary health centres.
I am grateful to my noble friend for raising this issue. The Government take it very seriously and are taking positive action. We believe that the answer lies in greater enforcement and robust action, along the lines of regulations and guidance that already exist. We will continue to monitor the situation and take it seriously, and I hope that in the light of that response my noble friend will agree to withdraw this amendment.
Baroness Howe of Idlicote
My Lords, I support the amendment. The noble Baroness, Lady Linklater, knows so much about the probation service and the magistracy. She draws attention to very little of which we should not take a great deal of notice. What my noble friend Lord Ramsbotham has just said about what is happening in the probation service is alarming. I hope that someone will be able to explain what has happened in a way that makes sense. I go back a long way within the areas of the magistracy and probation and the tremendous work that they do with offenders over very many years. I was a juvenile court chairman. I was horrified when I read the report by the noble Lord, Lord Carter of Coles. At that moment, I said to myself that if I were a probation officer, I would leave the service because I knew it had no future. It is, therefore, even more worrying to me that the whole of the very effective work that it still carries out is under this kind of threat. I hope that the Minister will be able to reassure us that this is not the way forward.
Lord Beecham
My Lords, as a signatory to the amendment, I am pleased to say that the Opposition is more than happy to support it and should the noble Baroness not receive a satisfactory answer from the Minister—we live in hope—and wish to press the amendment, we will certainly endorse it. I was particularly impressed by the remarks of my noble friend Lord Ponsonby, who speaks from direct and daily experience of these matters in a busy court in the capital. We are already 25 minutes into this debate and there is much more to come, so I am content to rest the Opposition’s case at this point.
Baroness Northover
My Lords, this amendment returns to issues raised by my noble friend Lady Linklater in Committee. I very much welcome the contribution that she has made on this issue during the passage of the Bill. My noble friend has considerable experience, to which other noble Lords have referred, in bringing magistrates and probation together and building trust in alternatives to custodial sentences. She is very much to be applauded for that. Like her, I pay tribute to the work that magistrates and probation trusts do.
We agree with the noble Baroness that it is important that probation trusts provide information to sentencers about the services they provide in delivering community sentences. We encourage that sharing of information. We agree that such liaison is beneficial both to magistrates and probation. We also agree that it is important that magistrates see for themselves the work of probation trusts. We agree with the intention behind the amendment, but we would point out that the current provisions in legislation already allow for this kind of liaison between probation and magistrates to take place. The noble Baroness is seeking to get two sets of people to talk to each other and that can already happen. There is no statutory barrier to it, but I hear what she says about trying to ensure that this happens, and we are certainly in favour of promoting best practice. We will look to see if there is more that we can do to ensure that best practice is brought to the attention of probation trusts. We are also ready to work with the Magistrates’ Association and others to ensure that we have practical arrangements in hand to encourage magistrates to take part in meetings so that information can be exchanged. We can, however, do this without changing primary legislation. I also note that the amendment does not ensure that magistrates attend these meetings—which would, of course, not be appropriate—it instead places the duty on probation trusts to provide information. As my noble friend Lord McNally said in Committee, we are not aware of a problem in the provision of information but would welcome further information on it if one exists.
I understand what the amendment is trying to achieve. It provides two illustrative examples of what regulations might cover. They include guidelines for liaison and a scheme for magistrates’ expenses. I would like to point out to my noble friend that both of these are, in fact, already covered by existing arrangements. Guidelines for liaison meetings are set out in a protocol issued not by the Government, but by the senior presiding judge. We think it is right that the protocol should set out the process so that there is no suggestion that magistrates should be unduly influenced in sentencing by consideration of a local probation trust’s priorities, rather than what they see as the appropriate sentence in an individual case. That is why the senior presiding judge issues guidance, not the Government. We agree that there should be guidance on these meetings, but we think that the current system is more appropriate and that the guidance—especially since it applies to the judiciary—should come from the senior judiciary, not the Government.
The second example which the noble Baroness gives relates to the payment of expenses. It is true that Her Majesty’s Courts and Tribunals Service does not routinely pay expenses for meetings between magistrates and probation. That does not, however, mean that magistrates can not claim expenses. They can, in fact, claim expenses from the probation trusts in attending these meetings. This is an area where the Government might assist by doing more to publicise the process if magistrates are unaware of it. We will certainly consider, as a practical approach, encouraging better liaison by publicising this.
The noble Lord, Lord Ponsonby, referred to a statutory committee. The amendment would not create a statutory committee; it would merely provide a regulation-making power to promote such arrangements if that was what was decided. On the questions of the noble Lord, Lord Ramsbotham, about ordering the probation service out, we are not aware of the detail of that situation. We would welcome further details, and I will then write to the noble Lord with our reaction to what sounds like a very concerning incident.
I hope that the noble Baroness is reassured that we are committed to best practice regarding liaison and that we will look at practical solutions. We welcome her input on guidance and expenses under the current legislation. I hope that, on that basis, she will feel able to withdraw the amendment.
Lord Brooke of Sutton Mandeville
My Lords, I shall be exceptionally brief. Like my namesake, the noble Lord, Lord Brooke of Alverthorpe, I congratulate everybody who has made possible what has happened in the course of the last three or four months. I was a roughrider in the column of the noble Baroness, Lady Finlay of Llandaff, when she originally raised the South Dakota project. I have no intention of repeating anything that I said on the police Bill, except that I am extremely grateful to her for letting me know, after I remarked in the police Bill proceedings that the South Dakota legislation had been transferred into California, that although the Californian legislation is permissive, the Sacramento experiment is going forward. I am wholly delighted by this turn of events. Having had a very minor part at an earlier stage, I find it very satisfying to see the momentum that has gathered.
Lord Beecham
My Lords, I am not sure what the correct collective noun is for a group of persuasive Baronesses, but whatever it is, we—the House, and indeed society—are greatly indebted to this particular group of persuasive Baronesses, supported as they have been by the occasional male Member of this House.
I would like to join other noble Lords in congratulating the Government on responding so positively and readily to the proposals to carry forward the pilot scheme and to come forward with a legislative framework to adopt the proposals. These have been pushed very hard by the Mayor of London and, indeed, by London Councils as an organisation. There has been complete unanimity politically in London, and in this House too, about the merits of this scheme.
Coming as I do from a city where, unfortunately, alcohol consumption is particularly high—leading generally to low-level crime and a low level of violence which is nevertheless a disturbing social phenomenon—I am very glad that we are beginning to see an approach here that we hope will make a difference. As has been pointed out, however, an alcohol strategy is still awaited. This is perhaps only a first instalment in what may need to be a major review of how we deal with these problems.
The noble Baroness, Lady Finlay—who has been so much the moving spirit, if I can be forgiven the use of that term, in these matters—mentioned one particular matter: domestic violence. There has been consultation about this, as the noble Baroness rightly said. At a meeting held in May 2011, all the violence-against-women agencies present expressed,
“high levels of concern about this scheme operating in relation to domestic violence”.
They gave as reasons that tackling alcohol in itself,
“does not tackle domestic violence … implies that domestic violence behaviour is driven by alcohol, which is not the case … domestic violence can occur when men are sober”—
or when women are sober, as it is not always one-sided—and,
“implies that physical assault (which is linked with alcohol) is the main/only form of domestic violence”,
as that is not correct either. There was,
“general consensus that the additional elements which would need to be considered for DV”—
domestic violence—
“cases, including risk assessment and support”,
would make the matter very complex.
That is not in any way to derogate from the proposals being made, but it does emphasise the need to look carefully, in the context of the pilot, at what will be run as part of the experiment, and to look very sensitively at the concerns of the organisations that work most closely with women as the principal victims of domestic violence, to see whether this is necessarily the most appropriate way of dealing with those problems.
I certainly have an open mind about that, and I assume that the Government would as well. I am therefore just uttering a word of caution. It should not necessarily be assumed that domestic violence is an appropriate topic for inclusion in a scheme of this kind. It is a matter that needs to be tested. The American experience might be helpful in that respect, of course, but the culture is not necessarily the same here as it is in South Dakota or other parts of the United States. I think that we have to be a little careful about jumping to conclusions.
With that single reservation—it is only a note of caution—I very much endorse the principle and the Government’s amendments. I would also like to endorse what the noble Lord, Lord Avebury, has said about costs. I assume that the Government would cover the cost of pilots as they take place in localities. In local government parlance, this would be a new burden, and the convention is that such new burdens are funded by government. As it is a pilot, it should not be too expensive to run—and ultimately, we hope, the public purse will benefit significantly from any savings that accrue, not least in the health service, where such savings would be extremely desirable. I mean savings not only in financial resources but in the time and skills of staff.
The Opposition strongly support this principle. With that note of caution, we congratulate the Government and look forward to taking matters further. Perhaps I may also ask whether the Minister or her colleagues would be prepared to meet before the pilots are instituted with representatives of the organisations concerned with violence against women to explore their concerns and to see whether, perhaps together, a joint approach might be worked out to test the scheme in practice or to see how it might be modified to reflect the real concerns they have expressed. We certainly support the Government and these amendments.
Baroness Northover
My Lords, I thank the noble Baroness, Lady Finlay, and my noble friend Lady Browning for their incredibly kind words to me. However, it is they who have been the doughty fighters who have brought us to this position. I should also like to thank my right honourable friend the Secretary of State, Ken Clarke, for his help in taking forward this innovative idea.
The noble Baroness, Lady Finlay, and the noble Lord, Lord Beecham, mentioned domestic violence, and as both noble Lords emphasised, these are complex issues which require multifaceted approaches. We will need to see how, in tackling the abuse of alcohol, there might be a beneficial effect in this area as well. The provision is not targeted at domestic violence, as noble Lords will appreciate, but we will need to see what we can learn from its possible effects. I would be extremely happy on behalf of the Government to meet the organisations to which the noble Lord referred. I know that the noble Baroness, Lady Finlay, expressed an interest as well. I really appreciate that and look forward to taking that further forward. It is extremely important that we discuss what is suggested here with such groups.
We agree with the noble Baroness, Lady Browning, that alcohol treatment is extremely important; as a spokesperson for health, I hope that I can reassure noble Lords that we fully recognise that. I want to reassure the noble Baroness that we believe that the pilots are there so that we can learn from them. We need to learn what works elsewhere and see how it might need to be adapted within our own legal, social and economic situation. However, we are optimistic that these are interesting proposals to take forward.
My noble friend Lord Avebury asked about the funding for the pilots and the noble Lord, Lord Beecham, also flagged that up. Existing resources will be drawn on for some of the work with breathalysers, but the Government are indeed providing funding for the pilots and this will be announced shortly. My noble friend Lord Avebury asked about the areas for conditional caution pilots. I hope he will be pleased to hear that this will be announced in the alcohol strategy next week.
Above all, I thank noble Lords for their support for the government amendments, and especially for the work of the noble Baronesses, Lady Finlay and Lady Browning, and others in bringing us to this point. I look forward to our learning from these pilots.
Lord Ramsbotham
My Lords, I rise briefly to support the noble and learned Lord, Lord Woolf. There was an extremely useful conference last week by the Thames Valley Partnership which has been pioneering restorative justice for many years. It was interesting to hear exactly how far the National Offender Management Service has gone in preparing for restorative justice to be administered in every prison and every probation area around the country. Indeed, staff are being trained to do it. In addition, the police have trained the all-important committee supervisors and people who run the committees which make it work. Therefore, it would seem logical if this effort is to be overseen and able to come to fruition that it should be backed up by the statutory recognition in the Bill if at all possible.
Lord Beecham
My Lords, I strongly support the amendment moved by the noble and learned Lord, Lord Woolf. We are entirely in agreement that restorative justice represents a significant way forward. It is calculated, as the noble Lord, Lord Dholakia, said, to save public funds, reduce reoffending rates and prove acceptable to the wider community, which is not as hard-line in these matters of penal policy as sometimes people imagine. Restorative justice has been shown to be welcomed by 80 per cent of the victims who participate in it. That in itself is a testimony to its effectiveness. I hope, therefore, that the Minister will feel able to accept the amendment but, if she is not, I hope that she will undertake to meet the noble and learned Lord and other colleagues before Third Reading to allow a further and final opportunity to discuss the way forward to improving this part of the Bill, recognising that it will contribute to the intentions of the Government.
Baroness Northover
My Lords, these amendments from the noble and learned Lord, Lord Woolf, and my noble friend Lord Dholakia return to the question of restorative justice. The noble Lords have been outstanding exponents of the importance of restorative justice and we appreciate the contribution that they have made in the House, nationally and internationally in this matter. The Government support the principle of restorative justice as part of an effective response to crime. It offers a crucial opportunity, not only to assist in the rehabilitation of offenders by making them face the consequences of their actions and seek to make amends for the damaged inflicted on others, but to give victims a greater stake in the resolution of offences and in the criminal justice system as a whole. Indeed, victim satisfaction rates have been extremely positive. Additional work in this area will enable us to realise the benefits of restorative justice further. We already have encouraging evidence around its impact on reoffending rates and anecdotal evidence that it encourages offenders to seek further necessary interventions, such as drug and alcohol treatment.
As I mentioned in Committee, we are committed to delivering greater use of restorative practices across the criminal justice system and we are putting a great deal of time and effort into building up the capacity of youth offending teams, probation trusts and prisons to provide restorative justice services, investing over £1 million in order to do so. We just heard reference from the noble Lord, Lord Ramsbotham, to the Thames Valley restorative justice partnership. It is developing training materials and guidance for using restorative justice in the adult system as part of our response to more serious offences. Its experience is invaluable.
These amendments take a three-pronged approach to adding restorative justice to the current legislation. The first would make restorative justice a statutory purpose of sentencing alongside the existing purposes of punishment, reduction of crime, rehabilitation, protection of the public and making reparation to offenders, as set out in the Criminal Justice Act 2003. The second would create a new restorative justice requirement for a community order or suspended sentence order, while the third would add the words “restorative justice” to the existing activity requirement.
Lord Ponsonby of Shulbrede
My Lords, as I sit as a magistrate in both the youth and adult courts, I make one simple point. In the youth courts, we routinely say to youths, “You must behave. If you do not behave, you may come back to the adult court and of course that is a much more serious matter.” What we do not tell them is that the reason that it is a much more serious matter is because there is much less support for them in the adult court system. Everything that the noble Lord, Lord Ramsbotham, said is absolutely right. We see a huge, disproportionate, number of young men from 18 to 24 years old. There are attendance centres, which do good work. I have been to a number. However, it is very minimal compared with the support that this group needs.
Lord Beecham
My Lords, the noble Lord, Lord Ramsbotham, has identified very clearly the nature of the problem and has come forward with proposals to help deal with it. He made a number of points that are very telling. Perhaps a couple of other matters could be added to the issues he referred to. The first is perhaps implicit in what he was saying: the very high reoffending rates among this particular group. The second, and slightly different, point is that there is a disproportionate number of young offenders from black and minority ethnic backgrounds, which is an aspect that we have not much discussed in the course of the Bill. It is not a function of any greater criminality among that group. All the evidences suggest that, for whatever reason, the likelihood of a custodial sentence—or, for that matter, a refusal of bail at an earlier stage—is much greater for people from that group, compared to offenders with comparable offences. There seems to be an in-built bias against BME offenders, which is a matter that needs to be addressed. The other issue is what happens after certain custodial sentences are completed because, after short sentences there is, effectively, no follow-up. That is a significant contributor to the high reoffending rates.
I hope that this proposal—that there should be a requirement to produce a strategy for offenders in this group—commends itself to the Minister. The phrasing of the amendment is perhaps a little difficult in terms of what might be appropriate for statute. However, the principles that the noble Lord has advanced are surely ones that would commend themselves to the Minister. Again, I hope that he can either indicate policy acceptance of the thrust of the amendment or agree that he will consult further with the noble Lord, maybe with a view to bringing back at Third Reading something to meet the common objectives of the Government and Members of your Lordships’ House. Certainly, I would support the noble Lord’s aspirations in this respect.
Lord McNally
My Lords, we keep coming round to these amendments from the noble Lord, Lord Ramsbotham. As he said, we have had debates in this House and bilateral meetings about them. There is a certain disagreement. The noble Lord, Lord Ramsbotham, seems to think—and I am sure that this will provoke him to get to his feet to say that I have got it wrong—that we have to have a strategy and a command structure and, after that, all will be well. I am old fashioned enough to believe that the buck stops with the Minister. The constant desire to have strategies is not a real substitute for doing things.
Having said that, I said earlier today that you do not have to be in this job long before you realise that we have too many women in our prisons. Neither do you have to be in this job very long to see that the 18 to 24 year-old age group among males is a key area for criminal behaviour. Therefore, we have to think very hard about how we break this cycle of criminality. The noble Baroness, Lady Linklater, acknowledges that this is a difficult group. I cannot quite agree with her about regretting that she is no longer a teenager. I would like to be a teenager again, but knowing what I know now. It is a pity that life does not give you that particular deal.
Lord Beecham
Does the noble Lord want to revert to membership of the young socialists a little bit?
Lord McNally
I said that if I knew then—let me get back to the speech. The noble Lord, Lord Ramsbotham and the noble Baroness, Lady Linklater, acknowledged that the group we are discussing is a difficult one but that many of the ideas for dealing with it are extremely expensive. We are trying to deal with it but the Government’s view is that it is not appropriate to prescribe in detail from the centre processes which purport to improve outcomes. Such a way of working would lead to inflexibility and take up resources which are better deployed elsewhere. We are looking wherever possible to empower local decision-making and delivery by prison and probation trusts so that they use resources in a way that responds to local priorities. That also fits with our policy for the management of young adult offenders as individuals based on an assessment of risks and needs rather than their age.
Lord Thomas of Gresford
Amendment 154YUA would add the need for reports to the amendment moved by the noble Lord, Lord Ramsbotham. Although I welcome the abolition of IPPs, I am still concerned about those who have served their tariff but have not been released. The best way of dealing with that is to keep a very close eye on what happens to them. Under my amendment we would know every six months the number of IPP prisoners remaining in custody after their tariff date has expired, the arrangements made for them to complete their courses, the proportion of such prisoners who have already completed their courses, and the number of outstanding applications to the parole board for release. One would hope that within a foreseeable period, perhaps two years, one would see that there was no need for a report because there were no IPP prisoners left in this category. That is the purpose of my amendment, and I look forward to my noble friend’s response.
Lord Beecham
My Lords, I support the amendment in the name of the noble Lord, Lord Thomas. He identifies a useful process and an obligation on the Government to ensure that cases are properly considered and that there is a reasonable way of reporting back on them.
Although I sympathise with the amendment moved by the noble Lord, Lord Ramsbotham, I do not find the content of it particularly persuasive. The amendment would require the Secretary of State to delegate the responsibility for implementing release plans without saying to whom the responsibility should be delegated. That would be odd in primary legislation. The requirement to report within a year of enactment on all cases seems to be too restrictive, given that unfortunately under the previous Government there was a backlog in working with such prisoners, and it is not at all clear how much work would be involved and what resources would be required to deal with the current numbers. It is not really acceptable for the timescale to be in the Bill in this form.
Having said that, if the noble Lord were minded to look seriously at the propositions—and I would certainly commend the thinking behind them if not necessarily the precise formulation that reaches us in the form of the amendment tabled by the noble Lord, Lord Ramsbotham—that could be brought back for consideration at Third Reading. The direction of travel is right but the precise route is somewhat questionable. I hope that the Minister will think sympathetically about the underlying approach of the two noble Lords whose amendments are before the House.
Lord McNally
My Lords, we return to the issue of dealing with IPP prisoners. I must say to the noble Lord, Lord Beecham, that I do not think there is any doubt about the direction of travel. I am dubious about whether we need the kind of prescriptions in both amendments. Ministers are here to be questioned by Parliament. I do not think that there would be any problem in finding opportunities to check on progress, but let us see.
The Government, through the National Offender Management Service, have already made significant improvements to increase the supply of rehabilitation interventions for this group. One of the main criticisms of IPPs was that people became trapped in them in a kind of Catch-22; they had to fulfil certain requirements to be considered for release but the facilities and channels to get these qualifications, improvements and records were not there. Better use is already being made of sentence plans to prioritise interventions for existing IPPs where the need is greatest, and work is under way to ensure that programmes can be delivered more flexibly, supporting greater access and the inclusion of offenders with more complex needs such as learning difficulties.
In addition, a new specification for offender management, which will provide for the prioritisation of resources based on risk, will take effect from April 2012. Once embedded, this will result in the improved targeting of rehabilitative interventions for IPP prisoners. We are using a range of measures to improve the progression of these prisoners through their sentence, including improvements to assessment, sentence planning, and delivery and parole review processes.
I wrote to the noble Lord following Committee about the work that NOMS is doing to improve support for these prisoners, and I summarise the key points here. First, we plan to issue a prison service instruction that will require effective and realistic sentence plans to be put in place for all offenders on the new extended sentence and for IPP prisoners already in the system.
On the administration of support for IPP prisoners, there are already appropriate structures in place within NOMS to carry out this work. The Indeterminate Sentence Prisoners Co-ordination Group is the NOMS body responsible for co-ordinating the management of all indeterminate sentence prisoners—that is, lifers as well as IPPs. The group’s purpose is to develop and promote the most effective means of managing this group of offenders and to ensure that resources are directed effectively. For example, the group has mandated work to improve the speed of allocation to open prison and identify ways of increasing capacity in the open prison estate for the IPPs, and has co-ordinated the introduction of a new centralised system for organising their transfer.
On the specific amendment, I should make it clear that, as legislation currently stands, it would not be possible for the Secretary of State to produce or delegate anything other than sentence plans for these offenders that may or may not result in progress to a quick release on licence. Statutorily, only the Parole Board can actually direct the release of IPP prisoners on the basis of risk criteria. Amending that situation would be a substantial change to sentences that have already been imposed and would require primary legislation. In Committee, I made it clear that the Government do not believe that that would be appropriate. On the proposal that such plans should be delegated, I noted that it would be unusual for legislation to go into this type of detail about the administration of executive duties.
My noble friend Lord Thomas of Gresford proposed a requirement for the Secretary of State to report regularly to Parliament on IPP prisoner parole status and interventions. Information on the number of IPP prisoners whose tariff has expired is published in the quarterly offender management statistics published by my department. The Parole Board’s annual report publishes comprehensive data on its IPP application workload and backlog. I must resist the requirement to report on programmes in individual cases, as this would be hugely difficult to achieve. Offender managers will regularly review and update sentence plans.
Our recent research suggests that while the Parole Board will take account of the completion of accredited programmes when considering whether to direct the release of an IPP prisoner, this is only one part of the evidence that it will consider. Research shows that the parole process is targeted on the individual, and only programmes specific to the individual’s needs that are successfully completed and show some impact on the prisoner are likely to be taken as evidence of sentence progression. Simply counting completed courses will not be good evidence of how prisoners in general are progressing.
I hope that I have said enough to reassure the House that we have already put effective measures in place to support these prisoners’ progress towards release while keeping paramount our concerns for public safety. We have not introduced these reforms to the IPP system simply to see them fail. The biggest incentives for making sure that our reforms work are for the Ministers who brought them in, and we will be pleased to be judged by our results. I hope that both noble Lords will withdraw their amendment.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Beecham Excerpts(12 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Beecham
“Qualified one-way cost-shifting and uplift in general damages
(1) Before making an order to commence sections 43, 45 or 46 the Lord Chancellor must—
(a) establish a one-way cost-shifting for civil litigation in accordance with this section; and(b) increase the quantum of general damages for pain suffering and loss of amenity by 10% above the levels awarded immediately before this Part comes into force.(2) A “one-way cost-shifting for civil litigation” means a regime that applies to a claimant regardless of means, where that person has entered into a funding arrangement by which he or she receives legal services to pursue proceedings against a defendant covered by insurance or self-insurance.
(3) Subject to subsection (4), the general rule that the court will order an unsuccessful claimant to pay the costs of a successful claimant shall not apply to a claimant within the regime.
(4) The court may apply the general rule where the court finds—
(a) the claim was fraudulent;(b) the claim was so unreasonable that it was or could have been struck out on the grounds that it was frivolous, vexatious or an abuse of process; or(c) in respect of a claim for damages, the cost consequences under Part 36 of the Civil Procedure Rules apply, save that the proportion of a defendant’s costs payable by a claimant within the regime, whether fixed or assessed, shall be limited to 10% of the damages awarded to the claimant.(5) In the event that a claimant within the regime discontinues his action, the general rule shall not apply, unless the court on application finds the action to have been fraudulent, frivolous or vexatious.
(6) In this section, a “funding arrangement” means an arrangement where the claimant has—
(a) entered into a conditional fee agreement or a collective conditional fee agreement which provides for a success fee within the meaning of section 58(2) of the Courts and Legal Services Act 1990; or(b) taken out an insurance policy to which section 58C of the Courts and Legal Services Act 1990 (recovery of insurance premiums by way of costs) applies.”
Lord Beecham
My Lords, once again I declare an interest as a non-paid consultant of a firm of solicitors in which I was a senior partner. Having slipped and fallen on my way to my office at Fielden House, I am tempted to declare an interest as a potential claimant against Westminster City Council. But even I would not have the effrontery to pursue such a claim. There may be no shortage of noble Lords who would proffer their services, although I am doubtful about that, but I may consult one of my clinical colleagues before the day is over.
Today we reach Part 2 of the Bill, a part that has received little scrutiny in either House or in the media. Yet it deals with matters of profound importance. The conditional fee agreements system, which replaced and supplemented some areas of legal aid, is as important in ensuring access to justice for people of moderate means and all people in certain areas of law not within the scope of legal aid as legal aid has been to the poorest. Without a robust and easily accessible civil justice system, victims of terrible wrongs—industrial disease, clinical negligence, privacy violation, such as that suffered by Bob and Sally Dowler, and even grotesque human rights abuses, as in the case of Trafigura about which we will hear more later this afternoon—will not get justice.
Lord Wallace of Tankerness
I am grateful to my noble friend. Debate on his amendment might allow a better exploration of the important point raised by the noble Lord, Lord Ramsbotham.
Lord Beecham
My Lords, that exchange was quite useful because it illustrated the argument against what the noble and learned Lord seeks to persuade us to agree to; namely, the proposition that these are matters for the Rules Committee. The noble Lord, Lord Thomas, has tabled a sensible amendment that covers the situation raised by the noble Lord, Lord Ramsbotham. However, under the Bill these will not be matters for Parliament. The scope of access to justice will not be in the Bill and will not be the subject of legislation. The matter will be in the hands of the Rules Committee. That is a delegation of responsibility too far in a very significant area of public policy. Therefore, I cannot accept the arguments of the noble and learned Lord.
The noble Lord, Lord Thomas, has tabled amendments that we will debate later. I say in advance that I have sympathy with some of them, including the one to which he referred. Perhaps he will forgive the obvious pun: we understand that there are not many doubting Thomases on the government Benches. He will also understand that we do not necessarily share that perspective and that a degree of scepticism is more naturally to be found on this side.
In respect of one or two other matters, the Heil v Rankin decision is based on a particular level of damages. It is not a binding provision, applicable across the piece, as is suggested in terms of the 10 per cent uplift. It seems to us, and not only to us, that it is imperative, given that we are now dealing with the matter of principle of access to justice via this particular method, that the legislation should encompass the range of issues that arise. It can do so in the form of a starting position and provide for additional regulations to be approved by Parliament later. That would have been an option. I would like to think it might still be an option but I am not getting much encouragement from the noble and learned Lord. I cannot accept that the Government’s position is satisfactory. I am grateful up to a point for an indication that one object of these amendments will take place—that is to say that change will be synchronised. I wish that the noble and learned Lord and I had not synchronised our stumbles today. But in terms of legislation, that is a welcome assurance. Nevertheless, there are significant points of principle here and in the circumstances I wish to test the opinion of the House.
Lord Beecham
My Lords, I thought the party of the noble Lord, Lord Thomas, was a party of conscience and reform. Conscience appears to have taken a back seat. I have a good deal of sympathy with most of the amendments to which he has spoken and I shall briefly comment on them.
Although we would prefer that the success fee were not deducted at all from a successful claimant, the noble Lord’s proposal is clearly better than the Government’s proposal. So, to the extent that the Government might be disposed to listen to him on this, we would support that in lieu of what we regard as an even better position.
The other amendments to which the noble Lord spoke largely depend on matters being determined by rules of the court, which would appear to have a discretion to make the necessary changes, for example, under Amendments 142B, 142BA and 142BB, with the Lord Chancellor, in the case of Amendment 142B, identifying the proceedings but not necessarily requiring the change to be made.
I entirely share the noble Lord’s view about environmental claims, and a subsequent amendment in my name covers much the same territory. In Committee, I quoted at some length the legal opinions to which the noble Lord referred at that time and dealt with the point about the Aarhus amendment and the points made by his noble friend Lord Lester, which, I agree, misstate the position in respect of protective costs orders. The noble Lord, Lord Thomas, is absolutely right to say, as I said on that occasion, that they do not offer a sufficient defence, as it were, to those in that position.
I similarly agree in relation to the civil liberties claims and, again, we have tabled an amendment in somewhat similar terms, with the exception that under the opposition amendments the Lord Chancellor would effectively take the decision which would change the nature of the position in relation to those claims. As that would have to be, as the noble Lord implied at one point, through secondary legislation or affirmative resolution, it is a more accountable way of dealing with matters than simply leaving it to the courts to determine.
In these circumstances I apprehend that the Government will not be disposed to accept these amendments. Perhaps the Minister will be willing to undertake further discussions with his noble friend, if not with anybody else. If not, as the matter clearly will not be put to the vote tonight, I can only record our unfortunate disagreement with the position in which we will end up because it will not be satisfactory. I do not accept that it is undesirable and wrong to look at particular instances which might fall outside the general rules. The Government have acknowledged to some degree that this should be the case in relation to recoverability under clinical negligence. If they can do that in respect of clinical negligence, then they can equally extend a similar principle elsewhere. Having said that, we await the noble and learned Lord’s response.
Lord Wallace of Tankerness
My Lords, I thank my noble friend for his amendments. It will come as no surprise to the House if I yet again echo what has been said on numerous occasions on Report: the architecture, as my noble friend Lord McNally referred to it, of this part of the Bill seeks to ensure that there is fundamental proportionality and fairness across the board in these claims, and that is why we have adopted the proposals of Lord Justice Jackson.
The cumulative effects of Amendments 132B, 132C, 132E, 133B, 133E, 139D, 140A, 141ZA, 141ZB and 142B would be, as my noble friend said, a refinement on what has been proposed. When the noble Lord, Lord Beecham, talks about my party and my noble friend’s party as being a party of conscience, it is because we feel that some of the fees that have been charged have been unconscionable under the existing scheme. That is why we wish to address the issue.
My noble friend wishes to introduce staged success fees. I am very grateful to him for his complex set of amendments; he has set out what the fees would be at different stages, on the multi-track approach. His proposals would introduce staged success fees in ATE insurance premiums, the cost of which would be split between the losing defendant and the successful claimant. Some recoverability of success fees in ATE insurance premiums would therefore remain.
I assure my noble friend and the House that we have given the amendments careful consideration, even at this late stage. They are proposed as a compromise and are supported by some but not all personal injury claimant representatives. It is fair to recall that these proposals are not entirely new. In his report, Lord Justice Jackson made primary recommendations that have essentially been adopted by the Government in Part 2. He also made an alternative set of recommendations which, while not identical, bear some considerable similarity to the proposals put forward by my noble friend.
Lord Beecham
My Lords, in fairness to the Government, they did not do what the noble Lord, Lord Martin, suggested. They did not put the whole report on the table and say, “We will have it”, but chose which bits suited them and left out the part of the report that dealt with legal aid, which we have debated at some length, among other matters. However, that is a little beside the point.
I support the noble Lord’s amendment, if only because subsection (4), which it seeks to delete, effectively locks and bolts the door to any subsequent change to the provisions on success fees without primary legislation. That is a formidable obstacle. The subsection is unnecessary and the Government could have dealt with the matter in a way that would have allowed them or a subsequent Government to review the situation without primary legislation. The way that the Bill is drafted does not allow that, and for that reason, if no other, I support the noble Lord’s amendment.
Lord McNally
Did the noble Lord, Lord Martin, say “crabby”? My goodness; I have always been thought of as a little ray of sunshine. Of course we have not accepted the Jackson report lock, stock and barrel. We have honed and polished it, and brought it to the House. We have of course accepted the proper role of this House, which is to revise and advise. I listened with a good deal of sympathy to the experience of the noble Lord, Lord Martin, although I have to say that I am not a lawyer, and I would have taken up the case of Christopher Jefferies, never mind anyone else. I think it was the Daily Mirror that accused him of being a Liberal Democrat, which would have been—I had better not say it.
Lord Beecham
Lord Beecham
My Lords, this amendment effectively deals with the position in which public authorities are the defendants to claims. In cases where the state is in fact the defendant—in other words, the converse of the previous situation that we discussed—the amendment would allow for success fees to be paid when a CFA is in place. To give a brief indication of the kinds of cases that might be involved, they would cover claims for assault, battery, false imprisonment, malicious prosecution, trespass to goods or land, and misfeasance in a public office, or claims in a judicial review or under the Data Protection Act and the Equality Act, negligence where there is a wider public interest in the claim being brought—a sort of localised Trafigura situation, one might imagine—or damages in respect of an act or omission by a public authority that involved a breach of convention rights.
Those are all potentially serious matters in which the state is, in one capacity or another, in the position of defendant. In those circumstances, it seems appropriate that the success fee position should not be that advocated for the rest of the legislation—although we have our differences about that too—but that the state should pay the success fee and not expect it to come out of whatever damages might be awarded to a successful complainant concerning acts that the state should never have committed. I beg to move.
Lord McNally
My Lords, I hope that my reply to the previous debate has shown our gritty determination to keep to the central architecture of the Bill. As I have explained, abolishing the recoverability of success fees and insurance premiums from the losing side is a key government reform which will reduce the substantial additional costs paid by defendants under the current regime. The reforms are intended to apply across all areas of civil litigation, and the Government do not believe that any exemptions are necessary, fair or desirable. If the amendments were accepted, claimants in these types of cases would have no incentive to control their lawyers’ costs. That cannot be right. Proposals to control legal costs should apply across the board. I urge the noble Lord to withdraw his amendment.
Lord Beecham
I decline the request to agree with the Minister. There is little incentive for the Government as a defendant to settle cases when they do not have the additional incentive of a success fee being awarded against them when they lose. However, in the circumstances I beg leave to withdraw the amendment.
Lord Beecham
“( ) 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 Beecham
My Lords, Amendment 136A is in another group of amendments that seek to modify the Government’s stance and I anticipate something short of a welcome from the Minister when he replies. Nevertheless, I want to raise these matters. The effect of Amendment 136A would be to permit the recoverability of ATE insurance in judicial review cases funded by a CFA. This is particularly relevant since at the moment there is no proposal to introduce QOCS for these cases. In addition, in any event claimants would have to fund their own disbursements via an ATE policy as well. Particularly in the absence of QOCS, recoverability remains an important issue in those cases.
Amendment 136B would effectively disapply the Bill’s provisions for breach of an employer’s duty leading to physical or psychological injuries—in effect, personal injury claims. I do not propose to repeat what was said in Committee or at Second Reading about the desirability of including personal injury cases within this proposal. The noble Lord will disagree but it strikes me as axiomatic.
Amendment 136C maintains the same approach in respect of professional negligence cases which can take a variety of forms, as we have said before, affecting members of the legal and other professions. The noble Lord will repeat the mantra that we should not be seeking to add to cases where the general principle is disapplied, but this is potentially important. In particular, the loss of money by professional negligence will be compounded by having to pay, potentially, a significant success fee out of damages, which does not seem at all reasonable.
Amendment 136D would give a complete exemption for clinical negligence cases as opposed to the partial exemption which is currently proposed. Amendment 139C would require the Lord Chancellor to make regulations to provide for cost orders to require payment where the applicant has taken out an insurance policy against the risk of liability to pay their own costs within a pre-action protocol period or 42 days in the absence of such a period. This is a potential stumbling block. In an earlier debate I referred to the potential scale of the cost of premiums to cover the cost of disbursements—leaving aside road traffic cases where it will be fairly nominal—ranging from £900 through to a very high claim of around £11,000 in respect of clinical negligence.
I am not anticipating a favourable response at this hour. It is a matter which will have be returned to if not at Third Reading then in future as we see an accumulation of cases in which claimants are put at a disadvantage or alternatively in which many people are deterred from taking proceedings in the first place by the potential cost of organising their own “after the event” insurance to cover disbursements—estimated by the Access to Justice Action Group to be something like 25 per cent of cases, following an extensive trawl through some 69,000 cases. That would represent a significant reduction in the number of claimants actually able to bring their cases before a tribunal. I beg to move.
Lord Pannick
My Lords, I am sure the Minister will tell us again that the general regime for success fees and “after the event” insurance must apply to all cases and one cannot have exemption for this type of case. But have the Government given any thought to whether it might be desirable to include in Part 2 a provision similar to Clause 8(2) of Part 1, giving some form of discretion to the Lord Chancellor to exclude from the scope of Part 2, in the light of experience of how Part 2 operates, any categories of case in respect of which it becomes apparent after this Bill comes into effect that the system is not working very well and is causing practical problems about access to justice? It might then be more sensible to go back, in relation to particular categories of case, to the old system under which the unsuccessful defendant would have to pay the success fee. Will the Minister give some thought to whether a general power for the Lord Chancellor to that effect might not be a good idea? Things might look rather different in a year or two from how they look now.
Lord McNally
Amendment 139C, in the name of the noble Lord, Lord Beecham, seeks to amend Clause 45 to require the Lord Chancellor to make regulations to allow the recovery of ATE insurance premiums taken out to cover the risk of paying one’s own disbursements within the relevant pre-action protocol period. As I have already made clear, the Government’s position on ATE insurance is that it should no longer be recoverable from the losing party. Amendment 139C goes against the Government’s reform and we will strongly resist it.
In the same vein, I cannot accept Amendments 136A to 136D, which would retain recoverability of success fees for judicial review, employers’ liability claims, professional negligence and clinical negligence. I have touched on some of these issues before and I do not intend to detain noble Lords further by going into the details of each particular area or trying to assess which litigants should be classed as more deserving than others. As I have said, it would be invidious and unfair to set out exceptions for some claimants and not for others, and we do not intend to do so.
I urge the noble Lord not to press the amendments.
Lord Beecham
My Lords, I strongly support the noble and learned Lord’s amendment, which makes every conceivable sense from the financial to the legal and logical. I have to say that I do not at all blame the noble Lord, Lord McNally, or the noble and learned Lord, Lord Wallace, but it is a matter of some concern that those responsible were not courteous enough to ensure that the noble and learned Lord, Lord Lloyd, who, after all, is one of the most distinguished Members of your Lordships’ House, should have been supplied with a copy of the document lodged in the Library. Indeed, had I not chanced across it myself today and given him a copy, he might not even at this stage have known of its existence. That is not good enough and I hope that Ministers will have a word with the appropriate members of their staff.
More significantly, the noble and learned Lord makes an unanswerable case for this amendment and I hope that the Minister will be able to say that the Government will respond sensibly. It would assist justice and assist the finances. It seems to me that it would be absurd for the Minister not to accept this amendment.
Lord McNally
My Lords, if there has been any discourtesy to the noble and learned Lord, Lord Lloyd, I absolutely apologise and take responsibility for it. I should like to put that on the record. The noble and learned Lord has described our proposal in the past as expensive and inefficient, and has made much of the difference between his and the Government’s figures. As he knows, we have now put our calculations in the Library of the House and I can assure your Lordships that we have given careful consideration to the calculations that the noble and learned Lord has provided. In addition, I have met with the noble and learned Lord, as have my officials, and we have swapped calculations. We have explained that we believe that he is omitting some vital costs from his calculations.
The method we have used is open and transparent. Taking costs to legal aid and to public sector defendants, we believe that the costs to the public purse of the proposals from the noble and learned Lord, Lord Lloyd, to fund expert reports by legal aid is about £17.5 million a year, whereas the cost to the public purse of our proposal for recoverable insurance premiums is between £18.5 million and £19.5 million. The result is likely to be an additional cost of about £1 million to £2 million.
I understand that the noble and learned Lord does not accept our calculations, but we do not accept his. This is a matter on which we have to take a judgment. These additional costs, as he has said, will enable more people to gain access to justice than under his proposals, which are limited to those who are financially eligible for legal aid. For this reason, and for reasons that are set out in more detail in the paper in the Library, we believe that the powers in Clause 45 are the best way to support victims of clinical negligence in a relatively inexpensive and fair way. I realise that this is a clash of figures and a clash of judgments, but I am making my judgment and we are willing to defend it in this House. At this hour, I would urge the noble and learned Lord to withdraw his amendment.
Lord Beecham
Lord Beecham
My Lords, we return briefly to the question of environmental cases which we also discussed under the amendments tabled by the noble Lord, Lord Thomas. The distinction between these amendments and the previous amendments are that, in this case, the amendments provide the Lord Chancellor with the opportunity to provide by regulation for the changes that are sought; namely, that in respect of Amendments 139 and 140, disbursements related to ATE insurance would be recoverable and, under Amendment 142BC, that qualified one-way costs-shifting would apply, as it should, to these cases. That was recommended by Lord Justice Jackson and I cannot see why the Government would differ from his view. Therefore, for environmental claims and judicial reviews connected with them, QOCS would apply, as indeed they should. This is an important area of policy and potential litigation. As the noble Lord, Lord Thomas, pointed out fully, it needs to be addressed. As I have said, we prefer this iteration of the remedy, but in one way or another the Government should be seen to move in the direction of facilitating these claims under the conditional fee arrangement scheme. I beg to move.
Lord McNally
My Lords, Amendments 139 and 140 seek to allow the continued recoverability of ATE insurance premiums in environmental claims to cover the costs of expert reports. Environmental claims will generally involve a number of claimants who could contribute towards the costs of any reports. Alternatively, the reports could be funded under a “before the event” insurance policy should claimants have one, or under an “after the event” insurance policy should claimants wish to purchase one. Further, the claimant’s solicitors might agree to fund disbursements in exchange, perhaps, for an increased success fee. A variety of means of funding disbursements are available in environmental cases without the need for an exception for recoverable insurance premiums.
So far as the other side’s costs are concerned, the Government’s view, as I explained in Committee, is that a protective costs order ought to provide sufficient costs protection in respect of the other side’s costs in environmental judicial review cases, as we set out in our recent consultation. Under a PCO, it will be clear from the outset what costs the claimant will have to pay if the claim is unsuccessful. The order will also ensure that some contribution is made towards the costs of public bodies that have successfully defended the claim. As I said earlier, environmental claims will generally involve a number of claimants and it is right that they should contribute together to costs, at least to some extent. The Government remain convinced that this is the right approach in these cases. We will shortly set out the details of the way forward in the light of our consultation. I hope, therefore, that the noble Lord will withdraw his amendment.
Lord Beecham
“( ) A regulated person is not in breach of this section if the body to which the payment is made for the prescribed legal business is a not-for-profit organisation and the payment is in the nature of a service that was provided before 27 July 1999.”
Lord Beecham
My Lords, this amendment deals with referral fees. The Bill provides rules against referral fees and defines the nature of regulated persons, who are effectively prohibited from receiving a payment for referring prescribed legal business to another person. Under Clause 54(4), the legal services in question relate to,
“a claim or potential claim for damages for personal injury or death”,
or where,
“the business is of a description specified in regulations made by the Lord Chancellor”.
I do not know quite what is envisaged by the latter provision, but it is clear that the aim is to inhibit the referral of personal injury claims in return for payment. The regulated person, who for these purposes would presumably be acting on behalf of an injured person, would also be in breach of the subsection if he arranged for another person to provide services to the injured party and was paid or had been paid for making the arrangement.
A number of issues arise from this. The first is that the payment need not necessarily be financial; it could also involve, for example, the provision of another service. It might fall within the scope of the clause—I am not sure whether this was intended—if an organisation referred a client to a solicitor and, as part of their service, the solicitor prepared a will for that client or gave legal advice on another matter that was not related to the personal injury or other category that the Lord Chancellor might specify.
The purpose of Amendment 142E is to make it clear that a person would not be in breach of this subsection if the body to which the payment is made—that is, the person referring the client—is a not-for-profit organisation. There are of course organisations, such as charities and the like, which refer their members or others to solicitors and perhaps other professionals, and receive payment in return. In particular, I understand that a number of medical charities do this. I suppose that at one time organisations such as the Automobile Association, or other motoring organisations that are no longer membership organisations in the traditional sense, might have done likewise. Since they are not-for-profit organisations, it does not seem appropriate that this bar should be in place.
The situation is not analogous to that which the noble Lord, Lord Thomas, dealt with in terms of third-party funding, about which he is absolutely right to be exercised. Therefore, it should not be caught within the prohibition that is envisaged here. It could certainly do considerable harm to organisations and, for that matter, limit the benefit to clients of being referred. As I said, they might be referred on the basis of free advice or advice at a reduced cost, which would presumably appeal to the Government—quite rightly since they are talking about reductions in cost.
Therefore, I hope that the noble Lord will look again at this situation, perhaps with a view to coming back to it at Third Reading if he cannot accede to this measure tonight. There are other amendments before us in this group and there is to be a further amendment which will be taken next Tuesday, so we are not quite in the position of closing the door yet—not before Third Reading in any event. In these circumstances, I beg to move Amendment 142E.
Lord Hunt of Wirral
My Lords, in speaking to Amendments 146A and 148A, I wish to say how strongly I support in principle the Government’s proposal to ban referral fees. I declare my interest as a partner in DAC Beachcroft, the international commercial law firm. My amendments are intended simply to clear up some possible loopholes. Having just heard the comments of the noble Lord, Lord Beecham, I caution how important it is to have a blanket ban because any ban that is implemented has to work. However watertight the ban is—my amendments are intended to help the Government achieve that objective—it is critical that we also remove the incentive for referral and profit share by removing the excessive legal costs from the system. There are many vested interests here and a lot of money is at stake—too much money in my view.
At present, solicitors acting for claimants can still afford to pay out more than half of their fees to a third party whose only role is to buy and sell on the details of an injured person. That cannot be right. Amendment 146A would make a minor change to Clause 54(4) by inserting,
“which consist of or include damages”.
I raised in Committee the spectre of the current wording permitting the payment of a referral fee for some non-injury element of an injury claim, completely bypassing the Government’s intentions. I look forward to hearing my noble friend the Minister’s comments on that.
Amendment 148A would insert,
“whether received by the person referring prescribed legal business or not”,
into Clause 54(8). I highlighted in Committee this gap in the drafting which could be exploited simply by the way in which payment is routed. Again, I await my noble friend the Minister’s answer.
Finally, I would also be very interested to hear whether my noble friend can give this House a commitment about just how much of the excess cost can now be taken out of the system altogether, which is, frankly, a more effective remedy than tightening up the drafting.
Lord McNally
My Lords, I think that there is broad agreement across the House about the need to ban referral fees in personal injury cases, as we propose in Clauses 54 to 58. However, there is some disagreement about how it should be done, as this debate has shown.
It may be helpful if, in reply, I deal separately with those amendments with which we have some sympathy and those with which we do not. The Government agree with the intention behind Amendments 146A and 148A in the name of my noble friend Lord Hunt of Wirral. I give the House a commitment that we will bring back amendments at Third Reading to address the issues raised by those amendments. However, the Government cannot agree with Amendments 142E and 146. We believe that it is not in the public interest for payments in receipt of referral fees to be allowed in any personal injury cases, regardless of whether the recipient is a solicitor, a charity, a trade union or some other party. If the provision applies to solicitors who pay referral fees, it must also apply to the not-for-profit organisations which deal with them.
The Government intend to ban the payment and receipt of referral fees in all personal injury cases, and we are not persuaded that there should be special treatment for not-for-profit organisations, or for solicitors dealing with trade unions, to exempt them from the ban. However, trade unions will of course still be able to refer cases, without payment, to those best able to pursue them. Nothing in the clauses prevents lawyers providing services free of charge to registered charities.
A number of points were made in the debate. The noble Baroness, Lady Deech, made a powerful case in favour of what we are trying to do on referral fees. She referred to a case, which we all remember, which shows how the best of intentions can be misused when trying to deal with a problem. I say to the noble Lord, Lord Martin, that I certainly advocate the value of trade union membership, but that there is a danger of trade unions, charities and others having a sweetheart relationship with a firm of solicitors based on referral fees.
My noble friend Lord Hunt of Wirral asked me how much of the excess litigation costs can be taken out of the system. My right honourable friend the Prime Minister has announced that we will be extending the road traffic accident scheme to cover claims up to £25,000, and to cover employer and public liability cases. As part of that process, the Government intend to make an objective assessment of the existing costs involved in RTA schemes, and we expect fixed recoverable costs of £1,200 to be reduced significantly as a result. The new fees will come in when the Jackson reforms in Part 2 of the Bill and the ban on referral fees are implemented in April 2013. Although I cannot give a precise figure, the aim, as in other parts of the Bill, is to squeeze out of the system excessive costs, which are undoubtedly there.
I hope that, in the light of those responses, the noble Lord will withdraw the amendment.
Lord Beecham
My Lords, I will be withdrawing my amendment. I must disabuse the noble Baroness, Lady Deech, with whom I shared a law course at Oxford, on the question of the political aspect of union funding. Union funds for political purposes, of course, derive from their political funds and not from general income. The noble Lord, who has a long memory of these things, is acknowledging that, for which I am grateful. It is not just a question, however, of fees, as I have indicated. Other services offered to members, whether they be of trade unions or other organisations, would be caught, apparently, by the Bill as it currently stands. I cannot believe that that is really part of the Government’s intention. Not all unions have an arrangement of this kind, where a referral fee is paid, but unions do have extensive and expensive legal departments which have to be supported. It does not seem unreasonable that those organisations—and, indeed, other organisations; charitable organisations—should have a scheme. I agree that the noble Baroness has identified a particularly abusive situation which, of course, has been rightly dealt with, but that is very much the exception. Having said that, we will, up to a point, be returning to this matter on the next day of Report in a slightly different context. I beg leave, therefore, to withdraw the amendment.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Beecham Excerpts(12 years, 5 months ago)
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Lord Beecham
My Lords, like the noble Lord, Lord Best, I have the benefit of having received a briefing from Shelter, which in my case was sent with a covering letter from a solicitor of a very highly reputed firm. He says:
“I can readily attest to the importance of being able to advise clients upon their welfare benefits problems within the context of housing possession proceedings. It is very often the benefits problems that have resulted in the possession proceedings being issued in the first place”.
He goes on to say that it is far more cost-effective if the legal representative is able to help resolve the problems,
“whilst assisting in defending the possession proceedings themselves”.
Shelter is heavily involved in dealing with cases of housing benefit and support for mortgage interest where problems arise. Sometimes there are issues of delay but frequently errors are made in adjudicating on the amount of benefit or mortgage interest support that is to be made available. As the briefing says, unless that underlying problem is resolved, there is no hope of somebody whose home is threatened with repossession ever meeting the rental or mortgage payments and clearing any arrears. Significantly, Shelter deals with thousands of cases in which tenants have not received the housing benefit to which they are entitled and who would have been evicted but for its intervention. It is a complex world and it is not surprising that mistakes occur. I am not being unnecessarily critical of those who have to deal with a very large case load of benefits. Nevertheless, there is clearly a significant number of cases where the wrong decision is made and this can lead to very significant hardship.
Apparently, ministry officials have said that the mixed-case rule will allow for matters out of scope to be brought back into scope if it was otherwise impractical to run the case. However, Shelter points out that the rule excludes the kind of help that it is particularly capable of deploying, which is the most useful sort in resolving some of these cases—that is, dealing with the housing benefits department through letters and calls to sort out an incorrectly paid claim or one which has not been paid at all. Nor, apparently, does the mixed-case rule allow for backdating or appeals. That would lead to precisely one of the elements to which the noble Lord, Lord Best, referred, which is more adjourned hearings with a waste of tribunal and court time and, ultimately, probably more possession orders.
It is worth mentioning an interesting case cited by Shelter of a client to whom it had given advice as the latter had received a notice from his local authority seeking possession. It transpired that the Shelter adviser found that the possession claim was due to rent arrears caused by the same local authority failing to assess housing benefit properly. It dealt with a revision of the housing benefit decision and got six months of backdated housing benefit. The arrears were cleared and the notice was withdrawn. However, without Shelter’s assistance provided under the legal aid scheme, that simply would not have happened.
The briefing goes on to deal with a number of matters that were discussed in Committee. A series of points made by the noble Lord are rebutted in the briefing. In particular, the noble Lord indicated that while many people rely on benefits, they are primarily about financial entitlement and they have a lower importance than the liberty or safety of the person. He has used this phrase a number of times as we have debated the Bill. It is obviously true but it does not take us very far in dealing with the very difficult problems that people have to face short of losing their liberty or safety. Losing their home must be one of the more traumatic experiences that anyone has to suffer. Shelter points out that unless advisers can look at the underlying problems that cause the arrears, they will simply be unable to stop people losing their homes. It is not, therefore, simply a question of people going to someone to resolve a problem on the basis of advice. There is more to it than that.
Equally, the Minister, as an example, said that factual advice was available for Jobcentre Plus. As the noble Lord reminded us, housing benefit is likely to move towards Jobcentre Plus or, at any rate, the DWP. He referred also to the benefits inquiry line and the tribunal itself. However, Shelter points out:
“There is little or no overlap between the legal advice funded by legal aid and the sort of factual advice on entitlement offered by Jobcentre Plus”.
It is not equipped to deal with the complexities that Shelter has become used to dealing with. The tribunal, which is there to adjudicate between the parties, is not there to represent or assist one party against the other.
Finally, the Minister observed:
“Legal aid will be available to help tenants engage with landlords to try and resolve the actual or threatened possession issue wherever possible, including … delaying the possession matter until the benefit matter is resolved”.—[Official Report, 18/1/12; col. 697.]
However, that assumes that landlords are willing to wait. That is not Shelter’s experience. It is clear that,
“landlords will not agree to delay the possession matter unless they are assured that”
the tenant,
“will be actively assisted in resolving the benefits problem”.
That is an assumption that may be difficult to satisfy a private landlord about. There are sometimes, by necessity, delays and difficulties in resolving those issues, particularly without legal aid and advice being available.
The amendment is, as the noble Lord, Lord Best, said, confined to one issue. Other issues will be covered by legal aid—notably serious disrepair. Several other housing issues might have been brought forward by way of amendment, but it is clear that the Government will not accept them. I join the noble Lord in urging the Minister to look more sympathetically at this issue, given the serious consequences that can ensue and that could have an impact on other elements of public expenditure. If a family is evicted, one may find that the costs of rehousing fall on the public purse—perhaps even the costs of taking children into care and so on. That is less likely to happen when the landlord is the local authority, but it might well arise in the private sector. The economics are not therefore as straightforward as even the noble Lord would suggest. I hope that there will be a sympathetic response—if not tonight, then before and at Third Reading.
Lord McNally
My Lords, I listened with care to the views of the noble Lord, Lord Best, on matters concerning housing. However, our existing proposals make sensible provisions to keep people in their homes. Notably, they already preserve legal aid for advice and assistance for those facing immediate risk of losing their dwelling, whether the cause is housing-related or a consequence of welfare and debt issues.
Crucially, legal aid will be available when repossession action is contemplated, for example where a person is threatened with repossession action. Our plans do not mean that a case must reach court before legal aid is available. Therefore, for example, legal aid would be available on reaching agreement with a landlord to delay threatened possession action pending the resolution of a welfare benefits issue. In addition, in cases where possession proceedings have already started, legal aid could be used to argue for an adjournment if, for example, the individual is likely to be in a position to make the necessary payments if the benefits dispute is resolved in their favour.
Some argue that we need to fund welfare advice earlier to prevent problems escalating, but, crucially, what people often need is general advice on, for example, benefits, debt or housing, not specialist legal advice. That is one reason why we were pleased to announce that additional funding will be made available in the Budget for citizens advice bureaux on a sustainable footing. We recognise that many people rely on benefits, and my department is working with the DWP as part of the wider welfare reform programme to improve the quality and effectiveness of initial decision-making in applications for social security, reconsideration within the DWP and a system of subsequent tribunal appeals.
In addition, the Bill ensures that legal aid will continue to be available in judicial review about welfare benefit decisions and benefit matters which relate to the Equalities Act 2010. Noble Lords may not agree with the choices we are making, but I hope that they recognise that our proposals represent a genuine attempt to ensure that people can get access to legal advice on the most serious issues.
To cover one or two points raised, the noble Lord, Lord Howarth, asked about when a benefit appeal is lost and people are facing homelessness. Where the client loses their benefit appeal and subsequently faces action for rent or mortgage arrears that place the home at risk, legal aid will be available, including, for example, to negotiate with mortgage lenders, but it will not be available for welfare benefit matters. Where the benefit dispute is ongoing at the point where repossession action is taken, legal aid will be available in relation to the action. Legal aid could be used to argue for adjournment of possession, as I said.
On the point made by the noble Lords, Lord Beecham and Lord Best, and others, that changes will mean more serious cases resulting in homelessness, we recognise that early advice can be helpful in a range of contexts. However, as I said, people need general advice. Where a debt or welfare benefit problem places individuals at risk of immediate risk of loss of their home due to, for example, rent arrears, legal aid will be available.
The noble Lords, Lord Howarth and Lord Beecham, both referred to the research by Citizens Advice, which has certainly not been short of resources for its lobbying activities. I note what Citizens Advice states in Towards a Business Case for Legal Aid. Although we have read that research with interest, it did not contrast the outcomes of legal aid recipients with those who did not receive legal aid, so our view is that the evidence is not sufficiently robust to allow the conclusions drawn about the impact of advice. That said, we recognise that early advice can be helpful in a range of contexts. However, what people often need is general advice. We propose focusing our limited legal aid resources on those cases which need it most: disabled people in dispute with local authorities about care needs; people detained under mental health legislation; or parents who are facing the removal of their children by social services.
We do not believe that we have got it very far wrong on housing, and I hope that the noble Lord will withdraw his amendment.
Lord McNally
My Lords, with this amendment we intend to extend the scope of civil legal aid in Schedule 1 to include civil legal services provided in relation to terrorism prevention and investigation measures. The Terrorism Prevention and Investigation Measures Act 2011 replaced the old control order regime with TPIMs. TPIM notices impose measures on an individual for purposes connected with protecting members of the public from the risk of terrorism. The current legal aid scheme provides for civil legal services to be available in relation to control orders and TPIMs, and we intend to make similar provisions in the new scheme. This is consistent with our commitment to fund legal services where restrictions are placed on a person’s liberty. I beg to move.
Lord Beecham
Without prejudice to one’s views about the change from control orders to TPIMs, I can give an unqualified welcome to the Government’s amendments. I congratulate the Minister on ensuring that legal aid is available in these cases.
Lord McNally
My Lords, Amendments 86 and 87 are technical amendments to the drafting of the exclusion for damages claims under the Human Rights Act 1998. Again, I have written to noble Lords explaining the rationale behind the amendments and again give them the assurance that these are technical amendments. If noble Lords want a longer explanation, I am willing to provide it, but I hope that they will accept them as technical amendments. I beg to move.
Lord Beecham
My Lords, I hesitate to ask for a longer explanation, but perhaps a slightly longer explanation would help me. Others of your Lordships may have grasped the full implications of the amendment; I fear that I have not quite. It is not clear to me whether as a result of the amendments any claims brought under Section 7 of the Human Rights Act remain outside scope or are brought within scope. I confess that I do not recall having seen the relevant part of the noble Lord’s letter. Section 7 of the Human Rights Act seems to cover an extraordinary range of really quite serious issues. It would be unfortunate if they were to be excluded from scope, but perhaps that is not the intention of the amendment. If the Minister would be so kind as to elucidate, he need not feel that he has to do so at length this evening but could write me a short note.
Lord McNally
No, I fully appreciate the noble Lord’s position. We are aware that the current wording in paragraph 12 could be read as preventing funding for claims which involve a breach of convention rights, even where the client is not seeking damages under the Human Rights Act 1998 for that breach. The amendments are intended to make it clear that paragraph 12 of Part 2 excludes only a claim for damages for a breach of convention rights which is brought in reliance on Section 7 of the Human Rights Act 1998.
As I have said previously, the Government’s view is that damages claims are generally of a lower priority for funding than other claims; for example, claims concerning domestic violence or homelessness. Therefore, the Bill allows funding only for damages claims in certain areas. These include in relation to a contravention of the Equality Act 2010 or a previous discrimination enactment, or if they satisfy paragraphs 3, 19, 20, or 34 of Part 1 of Schedule 1. These paragraphs allow funding respectively for: claims concerning abuse of a child or vulnerable adult; abuse of position or power by a public authority; significant breach of convention rights by a public authority, and claims concerning allegations of a sexual offence.
The exclusion in paragraph 12 of Part 2 of Schedule 1 is lifted for the purposes of paragraphs 3, 19, 20 and 34, so that claims under these paragraphs can include a claim for damages made in reliance on Section 7 of the Human Rights Act 1998. The Government have also tabled an amendment to make it clear that where a claim for damages is made in the context of a judicial review under paragraph 17 of Part 1 of Schedule 1, the grant of legal aid would cover the work associated with the damages aspect of the claim. This includes a claim for damages for a breach of convention rights brought in reliance on Section 7 of the Human Rights Act 1998. Therefore, paragraph 12 of Part 2 has been lifted also for the purposes of judicial review proceedings.
I again assure noble Lords that these are technical amendments to the drafting of the exclusion for damages claims under the Human Rights Act 1998, but I appreciate that the noble Lord might want to read at leisure what I have just said, as will I. If there are still areas of confusion, I will be glad to engage with the noble Lord on them.
Baroness Hamwee
I, too, shall read the Minister’s reply with interest. Is he satisfied that there would not be other types of claim, apart from judicial review, with which a damages claim might be almost inseparably linked as part of the same proceedings? I do not expect him to answer that immediately.
Lord Beecham
Lord Beecham
My Lords, when we considered this issue in Committee, I pointed out that the scheme for criminal injuries compensation—it has changed in terms of the tariff that is now being applied, but that is an irrelevance for the purposes of tonight’s discussion—ran to 55 pages and the guidance to 113 pages and that it seemed there were issues on which advice, if not representation, might clearly be helpful and necessary for claimants. For example, I referred to the fact that the compensation authority could take into account a failure to report an incident in proper time to co-operate with an inquiry, about which there may well have been difficulties for an applicant, and that the existence of a criminal record may also affect the size of a compensation claim.
Moreover, as I recall, the cash in question is fairly limited—a figure of £4 million comes to mind—and, although it is the noble Lord who is replying tonight, the noble and learned Lord who replied then said that he wanted to reflect on the matter and seemed to be sympathetic. I do not know whether the buck has been passed because the noble and learned Lord is unable to translate sympathy into action or whether he is giving his noble friend an opportunity to win plaudits all round the House by following through on not a promise but at least an indication that there might be some movement.
I wait to hear what the Minister has to say about this and I hope that those good intentions will be borne out. If a decision has not yet been reached, perhaps the noble Lord will undertake to bring the matter back on Third Reading for a final determination. I beg to move.
Lord McNally
My Lords, Amendment 90 would have the effect of making legal aid available for services to support some compensation claims to the Criminal Injuries Compensation Authority. Proper support and help for victims of crime is a fundamental part of the Government’s vision of the justice system. However, as with the rest of our proposals on legal aid, the challenge before us is to reconcile the savings required as a consequence of our economic situation with the protection of those facing the most urgent and pressing problems. The logic across our reforms is that claims that are essentially financial in nature are of a lower priority than those concerning life, liberty or safety. On the basis that CICA claims are, by definition, primarily about money, the Bill seeks to remove them from scope by including a general exclusion in paragraph 16 of Part 2 of Schedule 1.
My noble and learned friend Lord Wallace indicated in Committee that we would consider the points made by the noble Lord, Lord Beecham. We have done so carefully but, giving his arguments due weight, I remain unpersuaded that Criminal Injuries Compensation Authority claims should be retained within the scope of legal aid. We recognise that victims of crime will have been involved in a traumatic event. However, the process for making a CICA application is relatively straightforward and there is guidance and support available from CICA to enable victims to make their applications. On the website there is an easy-to-use online form that takes no longer than half an hour to fill out. The section of the guidance about applying for compensation is comprehensive and straightforward. Noble Lords may find it helpful to know that CICA also operates a free telephone helpline to assist people in filling out the form, which is open five days a week. It also offers assistance to those who have difficulty reading or writing.
Lord Beecham
The noble Lord will expect me to express my disappointment at that conclusion, in my understanding of the change of role from soft cop to hard cop. Of course, in many cases it is certainly true that advice is not necessary, but I have indicated at least three areas in which they might well have been necessary. I have experience of a couple of those in the rare occasions on which I have appeared before a tribunal, and I am sorry that Ministers have not felt able to make the very modest concession that would have ensured that in those rather more difficult cases—and they are the exception—legal advice would be available. It is not simply a question of filling in a form. However, clearly the Government are not disposed to take further action and, in the circumstances, I beg leave to withdraw the amendment.
Lord Beecham
Lord Beecham
My Lords, this is a straightforward amendment that deals with the question of creating a right of appeal to a tribunal or court from a decision by the director. It seems highly undesirable that there is only the possibility in the Bill of regulations being provided to allow for such an appeal, and clearly there ought to be a proper route to appeal. The amendment requires that regulations should be brought into being instead of simply laying down an option for them to be brought forward. I hope that the noble and learned Lord will accept that it is desirable to have that avenue prescribed and subject to regulations from the outset rather than leaving it open. I beg to move.
Lord Wallace of Tankerness
My Lords, as the noble Lord, Lord Beecham, has indicated, the amendment would require regulations to be made under Clause 11 to make provision for appeals to a court, tribunal or other person against determinations made by the director under Clauses 8 and 9, and against the withdrawal of such determinations. I can reassure the House that the Government’s intention is to continue with the existing effective appeal procedures that are currently used by the LSC. First, an internal review on all determinations on civil legal aid will be available. This is required by Clause 11(5). Secondly, we are retaining the current system of independent lawyers, known as independent funding adjudicators, who volunteer to carry out independent reviews of funding decisions in in-scope civil and family representation cases. Clause 11 already allows us to make regulations to set out those appeal processes in secondary legislation, as they are set out currently.
The existing system, which deals with over 11,000 reviews and 3,500 appeals to independent funding adjudicators each year, is both efficient and effective and costs an estimated £60,000 per year to administer. I am not sure that he did, but it may be that the noble Lord envisions instead a tribunal to review these appeals. The review by Sir Ian Magee initiated by the previous Administration into the governance of legal aid looked at the option of directing all legal aid appeals to a tribunal and concluded that this would cost up to £1 million per year to administer. We do not believe it would be sensible to replace a system that works well with an unknown system at possibly 15 times the current cost.
This amendment would also require an appeal in cases covered by Clause 9. Again, we intend to retain the existing system under which, although there will be an internal review available in accordance with Clause 11(5), there will be no appeal to an independent funding adjudicator where applicants remain dissatisfied. I do not agree that these cases should attract a right of appeal to an IFA. It would not be appropriate to refer exceptional funding decisions to an IFA. This is because of the particular nature of the assessment at the heart of such cases, which will focus on an interpretation of the relevant obligations under the European Convention on Human Rights to provide legal aid. Exceptional case determinations, along with all other decisions by the director, would be amenable to judicial review. I think my noble friend Lord Thomas of Gresford confirmed that in his response to an earlier debate. I therefore urge the noble Lord to withdraw the amendment.
Lord Beecham
My Lords, if there is no intention at any stage to provide for appeals to a court, tribunal or other person against such determinations, why is the option included in the first place? Either the Government intend at some point for some categories of case to be dealt with in that way or they do not. If they do, they should make regulations. If they do not, subsection (6) is otiose. However, I am making no progress with the noble and learned Lord, and at this hour I do not propose to take the matter further. I beg leave to withdraw the amendment.
Lord Beecham
Would the Minister acknowledge that it does not necessarily follow that he has to speak for 17 or 25 minutes to convince us either, especially at this time of night?
Lord McNally
I take the point entirely. I will try again to say that Amendment 103 fulfils the commitment that I made. Government Amendment 104 also clarifies that initial assistance might include assistance in the form of advocacy. It ensures that the current position under the Access to Justice Act 1999 is carried forward in this respect in the Bill.
However, Amendment 102 would make police station advice and assistance automatically available to all. It would mean that the director would not be required to determine whether an individual qualified for police station advice, while having regard to the interests of justice. As such, the amendment is unnecessary. Determinations under Clause 12 are for the director to make. However, in practice, as is currently the case, solicitors apply what is known as a “sufficient benefit” test, which is deemed to be satisfied in circumstances in which a client has a right to legal advice at the police station and has requested such advice in accordance with Section 58 of the Police and Criminal Evidence Act. On subsequent attendances in the same investigation, the solicitor must ensure that the sufficient benefit test is satisfied before continuing with the matter.
Article 6 of the ECHR requires legal aid in criminal cases only where the interests of justice require it. The provisions of the Bill are based on the starting point that advice and assistance at the police station should be made available only where the interests of justice require it. Therefore, it is appropriate to allow the director to determine whether an individual qualifies for initial advice and assistance. However, our present view is that it will generally be in the interests of justice for those held in custody at the police station to receive advice and assistance in some form, whether over the telephone or in person. There are no plans to change the current system that operates in practice for police station advice. It is currently intended that initial advice and assistance should continue to be available to all those to whom it is available at the moment.
I should add that the Delegated Powers Committee recommended that regulations under Clause 12(9) should be subject to the affirmative procedure. We have accepted the committee’s recommendation and have tabled Amendment 109, which we will move when we reach Clause 40, to make the regulations under Clause 12(9) subject to the affirmative procedure. Given what I have said, I hope that the noble Lord will withdraw his amendment.
I make one further clarification on this. Subsection (2) requires the director to have regard to the interests of justice when making a determination under Clause 12. As I have said, solicitors currently apply the sufficient benefit test. However, it is interesting that the Access to Justice Act, which we are reimplementing, does not make express reference to the interests of justice, although it is implied. We are covering something that ties in to the ECHR commitment and reinforces what is in the original Act. I do not think there is anything sinister in what the noble Lord is probing. With those assurances, I hope he will withdraw his amendment.
Lord Thomas of Gresford
My Lords, I move the amendment in a probing manner. I am concerned about a statement made by the noble Lord, Lord McNally, in Committee that involves setting up a supplementary legal aid scheme with a proposed deduction of 25 per cent from the damages of people who are supported by legal aid.
So much time has been spent in the course of the Bill in fighting to get areas of litigation back into scope that it is ironic that if those efforts were to succeed and damages awarded in any particular case, they would be immediately subject to a 25 per cent deduction for the purposes of setting up a fund from which other people would receive legal aid. It is a tax on their damages.
The noble Lord, Lord McNally, said in Committee that that was in order to make it no more attractive to have legal aid than to have damages subject to a success fee payable by a successful claimant limited to 25 per cent of his damages to date of trial. There is a difference. The whole purpose of changing the success fee, the burden of payment in conditional fee agreements, from the defendant to the claimant, and for it to be a charge on his damages, was so that there would be competition between solicitors for the business of the claimant at the outset. A solicitor might say, “There will be no success fee payable with me”, or, “My success fee will be limited to 12.5 per cent of the damages, not 25 per cent”. That is a better position than that of a legally aided person, who will have a whole 25 per cent taken out of his damages in any event. When is the supplementary legal aid scheme likely to come into being? I know that there was similar provision in the Access to Justice Act 1999, but under the previous Government it was never brought into effect.
The other matter that concerns me is that the provision could be brought in by secondary legislation under the negative procedure. That would mean that it would be subject to no or very little debate in Parliament and imposed on us. My second concern is to ensure that if such a scheme is to be introduced in future, it should properly be brought under the affirmative procedure so that we have a chance to debate and consider it before it comes before the House for approval.
Those are the reasons why I have tabled the amendment, and I await enlightenment. I beg to move.
Lord Beecham
My Lords, this is another case of déjà vu. In Committee, I congratulated the noble Lord, Lord Thomas, on his amendment. He was absolutely right then; he is absolutely right tonight. I hope that, having heard the noble Lord again, the Minister will acknowledge that he has made a very powerful case on both limbs—the principle and the procedure to which his amendments are addressed. I hope that the Minister can give a satisfactory reply that will not lead to those deductions being made, still less by the defective procedure, which, as the noble Lord has amply demonstrated, would be quite inappropriate.
Lord McNally
Yet again the Opposition, with a completely straight face, agree with my noble friend, although, as the noble Lord himself pointed out, we are making use of a provision in the Access to Justice Act 1999 which was brought in by the previous Government. He is now against it, as he was against the previous one. It seems that things are only good ideas when the Opposition are in government.
Lord Beecham
My noble friend will confirm that from time to time I, in particular, was extremely critical of some of the actions taken by the previous Government in the field of justice. I am not bound by a 1999 Act at all.
Lord McNally
Is another noble Lord going to have a go? Is there to be more sackcloth and ashes?