Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Beecham Excerpts

Wednesday 7th March 2012 Lords Chamber

[Baroness Hamwee]

My Lords, perhaps I may ask a short supplementary question following the queries made by my noble friend Lord Carlile about Clause 9. I was intending to raise it on a later amendment but will do so now if my noble friend is going to deal with it.

The natural meaning of “exceptional cases” suggests to me something very unusual about either the claim or the claimant. I am troubled that claimants might fall foul by virtue of being part of a cohort. Can the Minister help me with what is meant by “enforceable EU rights”, which, along with convention rights, bring one within the exceptional determination provision?

[Lord Beecham]

My Lords, before I address the amendments, I must correct something that I said in Committee. I unfortunately misrepresented the noble Lord, Lord Wigley, as saying that 10 per cent of National Health Service patients suffered clinical negligence. I rather conflated different figures. He referred to the fact that a million of what are described in somewhat Orwellian language as “adverse incidents” take place in the health service, of which only 10,000 give rise to claims, which represents only 1 per cent of those adverse incidents.

The noble Lord, Lord McNally, has in the previous debate, and indeed in virtually every debate, prayed in aid as a rationale for government policy the question of costs. It is not unreasonable that costs and public expenditure should form part of these discussions, but, as we have heard today from the noble and learned Lord, Lord Lloyd, the noble Baroness, Lady Grey-Thompson, and the noble Lord, Lord Wigley, and others, the argument in this case runs the other way. What the Government are proposing would cost the Exchequer, rather than the converse. In any case, we are speaking only of some £10 million, which would have been the saving under the Government’s original policy. I welcome so far as it goes the amendment that the Government are proposing. As they are now going some way—though not far enough—towards meeting the case for extending legal aid, that amount of saving would be reduced in any event.

However, it is not just those of us who support the amendments of the noble and learned Lord and of the noble Baronesses, Lady Grey-Thompson and Lady Eaton, who take the point about the cost and the way in which the system would work. No less an authority than the National Health Service Litigation Authority has expressed its considerable reservations about the Government’s approach, saying:

“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 (CFAs) 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 is at odds with that of the noble Lord, Lord Thomas. Given that the litigation authority is at the receiving end of these claims, I am inclined to give rather more weight to its views.

[Lord Thomas of Gresford]

Although the organisation questions, it is hardly saying something that is contrary to what I have said. I have said that if everything went wrong and worst-case scenarios arose, the amendment accepted by the Government, which would permit bringing these matters back into scope, would be extremely important.

[Lord Beecham]

It would be extremely important if the Government acted on it. We do not know that they will. While the noble Lord claims credit for the amendment, he was not quite so enthusiastic when it was being debated in Committee at the instigation of this side, but that is a little beside the point. The litigation authority states clearly:

“Overall, we are strongly in favour of retaining legal aid for clinical negligence cases using current eligibility criteria”.

In that phraseology, it echoes the words of Lord Justice Jackson.

Welcome as the government amendment is, they anticipated some discussion about it because they also questioned whether the scheme would cover only cases of the most severe brain damage or whether it would extend also to claims for moderate brain damage and shoulder dystocia, or to children whose mental faculties are spared but who have serious physical disabilities. We know that we are dealing only with a limited number of perinatal cases, as movingly explained by the noble Baroness, Lady Eaton. Again, it would seem that, on balance, the litigation authority, although it welcomes no doubt the progress made so far, would not be content with leaving the situation as it stands.

Of course, the case of Sophie Tyler was very moving. It is interesting that her solicitor said:

“This is an important case which has allowed our client to access justice and secure the lifetime of future care she needs but it would not have been possible without the support of legal aid”.

That is a very important observation. However, there are many other kinds of claim which arise out of different types of clinical negligence and with different effects. While the number of adverse incidents has now risen to 1.15 million, there are some 2,500 clinical negligence claims in what is a called a “serious category”. Of those, 12.5 per cent result in death; 17 per cent lead to unnecessary operations or amputations; 8 per cent lead to damages to nerves or senses; and 2.9 per cent lead to cancer. So 50 per cent of six major categories overall are not of the kind that would be covered by the government amendment.

In these circumstances, it is quite clear that a substantial number of people will not be able to access legal aid. Despite the assertions of the noble Lord, Lord Thomas, it must be questioned whether the conditional fee system would be an answer to that and, in particular, whether that would not in itself increase the costs to the National Health Service.

[Lord Thomas of Gresford]

Perhaps I may point out to the noble Lord, and my noble friend the Minister will confirm this, that I raised the issue of increasing the powers of the Lord Chancellor before Second Reading. If he would like to consult the record, he will see that my amendment, to bring areas back into scope, was tabled on the very first day that amendments could be put down. The amendments put down by the Labour Party were many days after that.

[Lord Beecham]

My Lords, some nerve damage is being sustained by the noble Lord. Let us, however, concentrate on the issue, which is rather more important than claiming credit for amendments; namely, the future of patients who undergo clinical negligence and who have claims. We have heard much talk about equality of arms in litigation. I fear that what the Sophies of this world may face is more akin to a farewell to arms. That is the danger we face if legal aid is not extended.

There is a hierarchy of amendments before us tonight. Of course I endorse the Government’s amendment, as far as it goes. Equally, we support the amendment of the noble and learned Lord, Lord Lloyd. However, for us the best amendment—because it effectively embraces both the others—is that tabled by the noble Baroness, Lady Grey-Thompson. We wish her well should she decide to test the opinion of the House at an appropriate moment.

[The Advocate-General for Scotland (Lord Wallace of Tankerness)]

My Lords, I think that it is evident to the House that we have had a very important, serious-minded and sensitive debate. I listened to many of the speeches at Second Reading when many of these points were aired, not least on perinatal and neonatal injury. I also responded to the debate in Committee when, again, passion and concern was expressed in all parts of the House.

The debate benefited from noble Lords’ experience. My noble friend Lady Eaton referred to her personal and professional experience. My noble friends Lord Faulks and Lord Carlile have professional experience in the legal sphere, as has the noble Lord, Lord Clinton-Davis. While I anticipate that I am not going to be able to bring succour to all those who spoke, I hope that in responding to the debate I may indicate that this is an issue that the Government have treated seriously, and on which they have sought to respond to many concerns expressed in earlier debates. We believe that the provisions that we are putting in place provide a proper means of addressing these important issues.

Concerns were expressed at Second Reading and in Committee about the serious and complex cases involving brain-damaged babies for whom a conditional fee agreement might not be able to be secured, and thus they would need to rely on exceptional funding under Clause 9, which could leave their families in an uncertain position. For that reason, the Government brought forward Amendment 68. I welcome the fact that it was welcomed by the noble Lord, Lord Beecham, on the opposition Front Bench, and by my noble friends Lord Faulks and Lord Thomas of Gresford. My noble friend Lord Carlile said that it was a moment—perhaps a very rare moment—of ministerial bliss this evening; and the noble Lord, Lord Wigley, accepted that it was a significant concession. As I indicated, it was brought forward in recognition of the concerns raised, and to put beyond doubt that legal aid will remain available for babies who suffer brain injury at birth that will lead to a lifetime of care needs.

We recognise that in these cases there are difficulties in obtaining funding through CFAs because of the extent and expense of the investigations required. We stated that we expected to spend about £6 million on legal representation in clinical negligence cases that merited exceptional funding through Clause 9; and we said that we expected a significant proportion of the £6 million to be spent on serious infant brain-damage cases. Given that fact, we decided that it would be appropriate to bring these cases back in scope. We hope that this will provide certainty to families and make the application process more straightforward.

The amendment provides funding for claims for medical negligence causes of brain injury as a result of which a child is severely disabled. I listened to, and understood, the inevitable concerns expressed about where one should draw a line, and I will say something about that. The noble Lord, Lord Howarth, spoke very briefly but with a weight of personal experience, and asked whether we could identify the issues of principle that underpinned the amendment. Our intention is to cover cases of medical negligence where the child is most vulnerable: during its time in the womb, during delivery and immediately afterwards. For that reason, the amendment provides for funding in cases where negligence occurs in the period beginning with the mother’s pregnancy and continuing until eight weeks after birth. We recognise that premature babies are in a particularly vulnerable situation. That is why the amendment also provides that where a baby is born prematurely, the eight-week period will be taken to start from the point at which the mother would otherwise have begun her 37th week of pregnancy.

Because our intention is to cover birth and pregnancy-related negligence, we have had to draw the line at some point after birth. The amendment refers to the eight-week period because it is in the first few weeks of life that a child is at their most vulnerable. This period is also one in which postnatal medical care is expected to take place. It is also provided for in the guidance from the National Institute for Health and Clinical Excellence entitled Routine Postnatal Care of Women and their Babies. In cases where negligence occurs beyond the eight-week point, there will remain a safety net in the form of the exceptional funding scheme under Clause 9. I will say more about that when I address the amendments tabled by my noble friend Lady Eaton and the noble Baroness, Lady Grey-Thompson. I will address the question of whether the failure to fund would amount to a breach of the individual’s rights under the European Convention on Human Rights.

It is important to stress that exceptional funding decisions will necessarily be taken by the director on a case-by-case basis. My noble friend Lord Carlile asked if there could be a multi-party action to satisfy the Clause 9 criteria. He will be among the first to recognise that it is difficult and possibly unwise to speculate about hypothetical cases. However, in principle it would be possible. Each application would be assessed against the criteria, and it may well be appropriate to fund the lead case in a claim if there is a requirement for it to be funded under, for example, Article 6 considerations. It may be the case that other claims could then progress on a CFA basis. The question would turn on the individual case, but there could be a lead case where failure to fund it would amount to a breach.

My noble friend Lady Hamwee asked what was meant by enforceable European Union rights. They are rights to legal aid which might have direct effect in domestic law. An example would be rights enshrined under Article 47 of the European Union Charter of Fundamental Rights, which provides the equivalent of Article 6 protection in cases falling within the scope of European Union law.

Amendment 13, moved by the noble and learned Lord, Lord Lloyd of Berwick, seeks to bring into scope civil legal services for obtaining multiple expert reports in medical negligence cases. He indicated that government Amendment 68 would provide legal aid for cases where the most expensive and extensive medical reports would be required, and that his amendment would cater for the remainder. However, we believe that it would not be limited to the remainder of those cases that are presently funded by legal aid. Solicitors currently have to choose whether to use a legal aid route or a CFA route to fund a case. Only 18 per cent of cases where the funding method is known use legal aid. As my noble friend Lord Thomas of Gresford indicated, some 82 per cent of cases proceed down a conditional fee agreement route.

The amendment would open up legal aid to many cases that are funded by way of CFA, and could mean that lawyers who currently have to carry the no-win no-fee risk to get their success fee could apply for legal aid to cover the expert report in every case where their client is financially eligible, and still get their no-win no-fee success fee in respect of their other legal costs. This is not a fair balance for the taxpayer. It could also result in a significant expansion of the legal aid scheme. The taxpayer should not be required to pay where these cases have already been taken forward and paid for by alternative means. The position would also be limited to those who are financially eligible for legal aid. That would mean that those who are outside that eligibility—which could be many people—would have no assistance in funding expert reports in criminal negligence cases.

I recall that in Committee the noble and learned Lord presented a torrent of figures, and I indicated that we would look at them. I encouraged officials to look at them and I know that there was some engagement, that he met my noble friend Lord McNally and that there were exchanges on these figures. In this situation, we must agree to differ. The Ministry of Justice analysts carefully reviewed the calculations. We sought to explain the Ministry of Justice’s calculations. The matter is very technical; I have tried to get my head round both sets of figures.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Beecham Excerpts

Monday 5th March 2012 Lords Chamber

[Lord Beecham]

My Lords, on this occasion, as in Committee, the House has been treated to the observations of a veritable constellation of legal luminaries, supplemented today by my noble friend Lord Howarth. Indeed, the whole principle of independence was a matter of strong comment not only by the Constitution Committee, as referred to by my noble friend Lord Hart, but by the Joint Committee on Human Rights. Both in Committee and today that concern has manifested itself across a number of speeches that have drawn attention particularly to the difficulties that could arise on the appointment of someone with very wide powers that could conceivably be exercised in an independent spirit. However, as the noble Lord, Lord Phillips, pointed out in Committee and again today, there must be not only actual independence but perceptible independence. That is very much open to question.

On the last occasion the noble Lord, Lord Faulks, drew attention to the difficulties that could arise with the exceptional cases category under Clause 9, and that certainly remains an issue. He rightly said:

“Whether a case falls within the exceptional case category”—

which is to be determined by the director—

“is bound to be somewhat controversial”.—[Official Report, 10/1/12; col. 86.]

It might be thought that that is almost judicial understatement, but it is certainly a highly relevant matter that was not really addressed on the previous occasion by the noble Lord, Lord McNally, who laid great stress, perhaps understandably, on the fact that the director would be independent from interference in individual cases. As others of your Lordships have pointed out, that is not enough. The noble Lord, Lord Phillips, referred then to Clause 4(4) and has reminded us of it today. That gives a wide power of direction to the Minister. Presumably, therefore, whole categories of case might be ruled out of access to legal aid, which cannot conceivably be regarded as satisfactory.

The amendment does not in terms address the character of the director. There must be concern, shared widely and beyond even those who have spoken today, that it would be a civil servant, without necessarily any legal or any other qualification, who was appointed. What criteria might the Government have in mind for a potential appointee to this significant position? Although it is for my noble friend to decide, I would hope that, unless the Minister indicates that the Government wish to think again about this matter, the House might wish to take a view on it.

There are a number of other pieces of legislation in which independence is in the forefront of the argument. I refer, for example, to the health Bill, in which there are issues around certain organisations and bodies where independence is thought to be highly desirable but which the current proposals do not embrace. It is even more important in the context of justice that there should be that independence. Therefore, the Opposition strongly support the amendment moved by my noble friend. We welcome the Government’s amendment. It would be helpful to have a report, but that does not take us very far on the more important issue on which we wait to hear what the noble and learned Lord has to say.

--- Later in debate ---

Moved by

[Lord Beecham]

4A: Clause 4, page 3, line 31, at end insert—
“( ) Before issuing guidance or directions under this section, a copy of the proposed direction or guidance must be laid before, and approved by, each House of Parliament.”

[Lord Beecham]

My Lords, this is a short and simple amendment. In replying to the last debate, the Minister indicated that guidance and directions would have to be published. That is of course helpful, but what would be more helpful in reinforcing the independence of the director is if the guidance and directions had to be approved by a vote in each House. Given the potentially wide scope of directions and guidance, it seems sensible to provide for such consideration and, indeed, for an affirmative vote. I beg to move.

[Lord Wallace of Tankerness]

My Lords, if Amendment 4A were accepted, it would mean that directions and guidance issued by the Lord Chancellor would require the approval of this House before being in force. Directions or guidance cannot conflict with secondary legislation made under Part 1—a point I made in the previous debate—and we cannot see any reason for bringing them separately before the House. As I have already said, Clause 4 requires the Lord Chancellor to publish all directions and guidance given to the director. Transparency is achieved through this provision and, as I hope that the House agrees, the director would be required to produce an annual report on the operation of their functions. The report will include an explanation as to how directions and guidance have shaped decisions. I can also assure your Lordships’ House that the Lord Chancellor will, as a matter of good administration, keep guidance and any directions issued under continual review. That emphasises the fact that, if it is to be kept under continual review, having to bring them back every time to be amended would be an unnecessarily burdensome process in the efficient administration of the legal aid scheme. It would not in any way enhance the transparency that we seek to achieve—and on that we have common ground. Accordingly, I urge the noble Lord to withdraw his amendment.

[Lord Beecham]

My Lords, the House has gone some distance in reinforcing the independence of the director, and I trust that the Government will accept that position. On that perhaps optimistic assumption, I beg leave to withdraw the amendment.

Amendment 4A withdrawn.

--- Later in debate ---

Moved by

[Lord Beecham]

4B: Clause 4, page 3, line 31, at end insert—
“( ) Any guidance or directions issued under this section must be reviewed on a regular basis, being not more than at three year intervals from the time they were issued.”

[Lord Beecham]

My Lords, this is again a perfectly simple amendment, and the Minister anticipated it in his reply to the previous amendment in indicating that matters will be reviewed. The amendment provides for a more systematic review, perhaps, than the Minister implied. Since his implication was that there may be a number of changes over time, it seems sensible that there should be a consolidation, and a three-year period should be sufficient to allow a view to be taken about progress and the actions of both government and the director under the terms of the legislation. I should have thought that it was a simple enough request. It does not require parliamentary approval in this case but it at least allows for a considered view to be taken after a reasonable period of time. Given that this is a new process, one would have thought that that would be helpful. I hope that the Minister on this occasion might see his way to accepting the amendment. I beg to move.

[Lord Wallace of Tankerness]

Again, my Lords, the noble Lord, Lord Beecham, has indicated that the purpose of his amendment is that any guidance or directions issued under Clause 4 must be reviewed on a regular basis in an interval of not more than three years from the time that they were issued. As I indicated in respect of the previous amendment, it is not possible for any of the directions or guidance to conflict with the secondary legislation made under this part of the Bill.

We believe that the review provided for by the amendment is unnecessary as a statutory requirement. However, I assure the noble Lord and your Lordships’ House that the Lord Chancellor will, as a matter of good administration, keep guidance and any directions issued under continual review. Protections are afforded to the director through the operation of Clause 4. There is also an opportunity for transparency, which is achieved through the publication of directions and guidance. These are important safeguards and, in the Government’s view, those arrangements are not improved upon or added to by the amendment. As I indicated, in some circumstances there might well be a maximum period of three years, but the amendment poses an additional statutory burden. I have given an assurance that the Lord Chancellor, as a matter of good administration, will keep the guidance and directions under continual review, and I hope that with that reassurance the noble Lord will feel able to withdraw his amendment.

[Lord Beecham]

My Lords, I am certainly prepared to accept the assurances that the Minister has given. I beg leave to withdraw the amendment.

Amendment 4B withdrawn.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Beecham Excerpts

Monday 5th March 2012 Lords Chamber

Moved by

[Lord Beecham]

7: After Clause 6, insert the following new Clause—
“Expert evidence
The Lord Chancellor must review the accessibility and quality of expert advice that is available for civil legal proceedings and ensure that this is maintained or improved following the commencement of this Part.”

[Lord Beecham]

My Lords, as your Lordships will be aware, the Lord Chancellor hails from Nottingham. He adopts the robust approach to justice that the legendary sheriff of that place is assumed to have held. Indeed, he almost embodies in himself a spiritual descent from the sheriff of Nottingham judging by some of his more recent observations, including today’s, in which he seemed to imply that concerns about the Bill were motivated by concerns for lawyers’ incomes. Recently, in an interview, he said that there are far too many experts.

As I said in Committee when we were discussing this issue, we are not concerned to protect the interests or incomes of lawyers or experts. We are concerned about the position of organisations, such as law centres and the like, which the Government assume will be able to shoulder a substantial part of the burden that will be shed from the legal aid system—but that is another issue. Our objective is to preserve access to justice and to ensure that the parties and the courts have the assistance that experts can bring to bear on the matters which have to be adjudicated.

This amendment seeks only to create a duty on the Government—the Lord Chancellor—to review the accessibility and access to expert assistance and to ensure the maintenance of both. It does not prescribe a method by which this should be achieved. There could be a variety of ways in which the objectives can be met. There might, for example, be a system of approving panels of experts for particular areas of law and for dealing with their remuneration in a rather more structured way than is presently the case. But that is not a matter which the amendment seeks to prescribe in any detail.

Expert witnesses are relevant across many types of case. The amendment refers to the need to preserve the expert capacity in relation to Part 1, which is a matter that we will debate at some length on Wednesday. It remains to be seen what areas of law will remain in scope and what will not. Among the areas that might be brought into scope are elements of personal injury law and clinical negligence, and some matters of contract and the like, in which expert evidence can be very important.

Perhaps the most clear example, which will certainly arise, is in relation to evidence in family situations. There are many cases in which expert evidence can be extremely important in the context of private family law. Examples include false allegations of child sexual abuse. In one particular case a child psychiatrist, having examined the situation, stated that a child who was allegedly abused would in fact have no memory of the time when the abuse was alleged to have occurred and thus was able to demonstrate that the child had been influenced by a foster carer.

--- Later in debate ---

[Lord Beecham]

My Lords, I am grateful to all those who have spoken in the debate for their contributions and, indeed, to the Minister. I will not press the amendment to a vote. Even if the noble and learned Lord were disposed to accept the thrust of the amendment, legislation is not required to achieve its objectives. Nevertheless, it is somewhat disappointing that the objective of maintaining the supply of expert evidence is not apparently on the Government’s agenda. It is one thing to arrange for an organisation—at present it is the Legal Services Commission—to determine fee levels on what looks to be a fairly crude and arbitrary basis. It is clear that neither the Lord Chancellor nor his department decides who should be included on any panel of approved experts. However, the Government are not even encouraging the formation of such panels comprising members of professional organisations who could evaluate whether a person was a competent specialist in his own field and was able to act as an expert witness. The latter is a different role. It is not necessarily the same as being an expert surgeon, psychiatrist or whatever. Giving evidence in the context of litigation is an additional skill which not everybody has or aspires to have, although the matter could be delegated. However, if the Government simply stand aside, as appears to be the case, it is not at all clear how the supply of relevant expert evidence can be secured.

This is a matter that will have to be returned to in the light of not only the financial aspects, which are clearly threatening to reduce the availability of witnesses with relevant experience and expertise, but the choice that is available to parties and courts. It is certainly necessary to be economical in these matters—that is absolutely accepted—but the danger is that we will end up with the worst of all possible worlds, with a reduced supply of people. That would damage the judicial process and sometimes the interests of, as the noble Lord, Lord Thomas, pointed out, vulnerable people—whether they are children or others—particularly, although not exclusively, in family matters, as the noble Lord, Lord Faulks, rightly reminded us.

Although I will seek leave to withdraw the amendment, this topic will not go away. It is one to which the courts, professional bodies and ultimately the Department of Health in the context of medical evidence—and perhaps departments in other areas, including that of the Lord Chancellor, who has responsibility for the judicial system as a whole—will have to revert at some point. However, I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

Moved by

[Lord Beecham]

7A: After Clause 6, insert the following new Clause—
“Post-commencement review
(1) Two years after the commencement of Part 1 of this Act, the Lord Chancellor must commission an independent review to assess—
(a) the cost and impact of Part 1 on—(i) children and young people;(ii) people with disabilities, including people with learning, physical, mental and psychological disabilities; (iii) women;(iv) victims of domestic violence;(v) black and ethnic minorities;(vi) government departments;(vii) courts and tribunals, including any changes in time and resources; and(viii) local authorities; and(b) the impact of Part 1 on—(i) the incidence of homelessness;(ii) the incidence of ill-health or suicide;(iii) the commission of criminal or anti-social behaviour; and(iv) the future provision and availability of services including, but not limited to, law centres and citizens advice bureaux.(2) The Lord Chancellor must lay a copy of the final report commissioned under subsection (1) in both Houses of Parliament at the same time as laying a draft revival order under section (Duration of Part 1).”

[Lord Beecham]

My Lords, I will be blessedly brief. The first of the two amendments in this group is the mirror image of my noble friend’s previous amendment and calls for a post-commencement review of the impact of the changes proposed in the Bill after two years. It would provide for a report to be laid before Parliament. No doubt the noble Lord, Lord McNally, will say that it was always intended that there should be a post-implementation review. I accept that.

The second amendment in the group would create a more formal structure by proposing a sunset clause, whereby the provisions of Part 1 would lapse unless they were to be revived by an order. This would add teeth to the review process that the noble Lord will no doubt say would happen anyway. The provision would also add pressure to ensure that such a review would be thorough and comprehensive and allow Parliament to take a considered view of what, by any standards, would be significant changes to the legal aid system, regarding not only the effect on potential clients but the impact on government departments and public expenditure as a whole.

While the noble Lord constantly returns to the refrain about the difficult economic situation, which we all of course understand, it is certainly the view of many—I put it no higher—that the Government are transferring the burden from this department to elsewhere. They may also—according to the King’s College report, at any rate—actually be increasing their financial expenditure rather than reducing it. Experience will tell us which way this will go—I hope within the period suggested. At that point it would, if the amendment were to be accepted, be open to the Government to table a resolution to continue with the scheme. Otherwise, if those of us who are sceptical about it prove to be right, the provisions would lapse, and therefore the savings would be made at that point, rather than ab initio, as the noble Lord believes will be the case. I beg to move.

--- Later in debate ---

[Lord McNally]

My Lords, let me make it absolutely clear from the start that my spirits are lifted when I see the noble Lord, Lord Howarth, rise to his feet. In all seriousness, I believe that he is a very effective parliamentarian. I say that as a compliment. He researches his interventions, his arguments are well marshalled, and it is always a pleasure to respond to him. That is particularly the case this evening, when we have had a glimpse of what might have been: the Howarth Chancellor of the Exchequer Budget. There would be all the savings and cuts and the only thing that would stop Chancellor Howarth getting the country a triple C rating would be the presence of a triple D rating. Nevertheless, it is always a pleasure to respond to him, and that is why I intend to take at least 25 minutes to deal precisely with the points that he has made.

As the noble Lord, Lord Beecham, very frankly, pointed out, Amendment 7A would require a post-commencement impact assessment in the same terms as the pre-commencement impact assessment, which we discussed under Amendment 6. I do not propose to rehearse the same arguments again here, as the real issue of this amendment concerns its relationship with Amendment 161. That amendment would, as has been explained, place a time limit on the effect of the primary legislation, and any revival of its provisions would require the approval of both Houses.

I ask the noble Lord, Lord Beecham, to consider for a moment the legal, contractual and practical implications of the legal aid scheme under this Bill lasting for only three years unless Parliament’s approval were reaffirmed at that point and thereafter annually. That would undermine the approval that Parliament may give by seeking re-approval inside a period shorter than most governmental terms. I do not really think that this proposition for a sunset clause in this Bill is practical. I hope that the noble Lord will reconsider the wisdom of this amendment and withdraw it.

[Lord Beecham]

My Lords, it is a profoundly wise amendment, but nevertheless I beg leave to withdraw it.

Amendment 7A withdrawn.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Beecham Excerpts

Wednesday 15th February 2012 Lords Chamber

Debate on whether Clause 121 should stand part of the Bill.

[Lord Beecham]

My Lords, this is a probing suggestion that the clause should not stand part of the Bill. It relates to penalty notices for disorderly behaviour. The notices were introduced under the Criminal Justice and Police Act 2001. They allow a police officer who has reason to believe that somebody has committed a particular kind of offence—described and listed in the Act as a penalty offence—to issue them with a notice that gives them the option, within 21 days, of either paying a fixed penalty or electing to be tried for the offence. If they do neither, they become liable to a higher penalty. The notices are designed to deal with offences of disorder. The Act includes references to drunk and disorderly behaviour, possession of cannabis, petty retail theft—I am not sure how that is defined—and causing criminal damage.

Noble Lords might think that this is somewhat reminiscent of one of Tony Blair's less successful inspirations, by which offenders might be marched to the nearest cashpoint and compelled to force it to disgorge a certain amount of money at the behest of a police officer. That is not quite the way in which the system works. The current analogy of what Tony Blair suggested might be bankers who treat their banks' assets as something like a cashpoint and come away with considerable sums of money without any penalty being imposed—but that is by the way.

Clause 121 and Schedule 20, with which it is linked, contain some interesting changes to the original scheme. They confer power on chief officers of police to set up a scheme in their area which would allow police officers to issue penalty notices not just, on this occasion, with a fine, but with an education option under which the offender—or the person suspected of having committed an offence because an offence does not have to be proved—would have the chance of avoiding the fixed penalty or court proceedings by undergoing an educational course for which he then pays the appropriate fee. This is somewhat reminiscent of the debate we had around the proposed scheme in London in relation to alcohol, but it is discrete. It is an analogous proposal. It is an interesting idea that such a course might be a suitable alternative to a financial penalty or court proceedings. Perhaps the noble Baroness will be able to say tonight or subsequently quite how far this concept has gone and whether indeed there are such educational courses available, whether this has been trialled anywhere, and so on. It would be helpful to have an understanding of where we are on this.

I have a slight reservation that this is left to chief officers of police, so we can presumably have the same situation, the same set of circumstances, in two adjoining force areas and an entirely different way of dealing with matters. I do not know whether the Minister will indicate whether she is content that this matter should be left entirely to the discretion of chief officers or whether it might be government policy eventually, perhaps having trialled the thing, to see whether it might be rolled out in a more systematic way.

Certainly, it is a welcome innovation to look at more constructive ways of steering people away from, in this case, disorderly and relatively minor criminal behaviour without the more drastic consequences of punishment through the courts. Nevertheless, there are some issues that arise with this proposal. First, I should welcome the fact that the notice cannot be given to a person under the age of 18, so we are dealing with adults only. However, there are some reservations about other aspects of the proposals. The first is the requirement that the police officer issuing a notice to an individual other than at a police station must be in uniform. In other words, a police officer out of uniform will still have that power to give a notice. I think that that is not good practice. It is something that I invite the Government to explain. It might be regarded as a matter of convenience, but if we are talking about disorder, if somebody who says he is a police officer and is not in uniform hands out a notice, one can envisage circumstances developing in a way that is not intended. In other words, there might be resistance to an approach of that kind from somebody not in uniform. Obviously, there might be some other evidence of the officer’s status, but I do not see that that suggestion is likely to assist in dealing with the matter. The other requirement, and I am less concerned about this, is that police officers currently have to be authorised constables when they are delivering notices in a police station. That would no longer be the case. Perhaps that is less obvious because people are then in police custody and the situation would be clearer.

However, there are some other reservations about these matters. When this was debated in the House of Commons, an amendment was moved by Helen Goodman MP for the Opposition maintaining the obligation of a police officer issuing a penalty notice for disorder to be in uniform and for the actual act of delivering that notice to take place within a police station. That was not accepted, but I would be interested in hearing the rationale for turning down that suggestion.

--- Later in debate ---

[Baroness Northover]

My Lords, this clause gives effect to Schedule 20, which amends the PND—penalty notice for disorderly behaviour—scheme by giving the police the power to issue adult penalty notices with an education option, to abolish PNDs for under 18s and to remove some unnecessary constraints on a police officer’s ability to issue a PND.

PNDs were introduced by the Criminal Justice and Police Act 2001, under the previous Government, to provide the police with a swift financial sanction to deal on the spot with low-level offending. PNDs may be issued for a specified range of offences listed in Section 1 of the 2001 Act. They include being drunk and disorderly, as we have heard, in a public place, low-level retail theft, behaviour likely to cause harassment, alarm or distress, and cannabis possession. I would reiterate that, in relation to the concerns mentioned by the noble Lord, PNDs were introduced by the previous Government.

At present the recipient of a PND has 21 days either to pay the penalty amount or to request a court hearing. By paying the penalty amount—currently £80 or £50 depending on the type of offence—the suspect discharges all liability to be prosecuted for and convicted of the offence, and no admission of guilt is required. If the recipient fails to take any action during the 21-day suspended enforcement period, a fine of one and a half times the penalty amount may be registered against them by the magistrates’ court.

Some 76 per cent of adults who received a PND in 2008 did not reoffend within one year. However, we believe that some individuals receiving PNDs would benefit from an educational intervention to reduce the likelihood of them reoffending. That is why we are responding to police requests for suitable PND recipients to be given the option to discharge their liability to conviction of the offence by paying to attend an educational course—where a police force has set up such a scheme—rather than simply paying the penalty amount in full. The noble Lord asked about examples. A number of schemes are operating in various forces, including Hertfordshire where courses are run by a charity called Druglink. It is self-sustaining as offenders pay to attend the courses.

Schedule 20 therefore gives the chief officer of a police force the power to establish an educational course scheme in his or her area and, where such a scheme has been set up, for officers in that area where appropriate to issue penalty notices with an education option. A recipient of a PND with an education option would be able to discharge their liability to be prosecuted for and convicted of the penalty offence in one of two ways. They could either pay the penalty amount in full or pay for and complete an educational course. Of course—I think that this is the key point in answer to the noble Lord—it remains an option to contest their responsibility for the offence by requesting a court hearing. A suspect’s failure to exercise any of these options, including paying for a course but then not attending or completing it, would result in a fine being registered against them at court of one and a half times the amount of the penalty.

PNDs with an education option will be offered only if a course has been set up in that area for the specific offence for which the PND was issued and where the police officer considers it to be appropriate. It is intended that courses will highlight the implications of the suspect’s behaviour, both for him or herself, or for the victim and the community, with the aim of reducing the likelihood of reoffending. For example, an individual suspected of being drunk and disorderly may be offered a PND with an option to attend an alcohol awareness course.

The schedule confers a number of new powers on the Secretary of State to make regulations prescribing the detail of educational course schemes, including the fees that may be set for a course and arrangements for dealing with non-attendance. In addition, and as part of work to develop a clearer national framework for dealing with adult and youth offending out of court, the schedule abolishes PNDs for under 18s. This will simplify youth out-of-court disposals and enable the police to focus on offering disposals that allow rehabilitative and reparative activities to take place. The aim is to prevent further offending and provide greater redress to victims and communities.

Finally, we are also cutting red tape and simplifying frontline police processes by removing the existing requirements that a police officer issuing a PND outside a police station must be in uniform and an officer issuing a PND inside a station must be formally authorised to do so. Both of these requirements are unnecessary. The uniform provision is particularly problematic in plain clothes operations—for example, test purchasing to tackle underage alcohol sales where officers are forced to bring suspects back to the police station to issue a PND. They would still need to demonstrate that they are indeed police officers. I hope that that reassures the noble Lord that there is a protection.

I think that I have covered most of what the noble Lord raised and I hope that Members of the Committee will welcome these improvements to the PND scheme. I would ask that Clause 121 and Schedule 20 stand part of the Bill.

[Lord Beecham]

I am grateful to the noble Baroness for her response and the information that she has given. I still think there is potentially something of a problem with dispensing with the uniform requirement, although I do not know what evidence there is that it has caused actual problems. Will the Minister say whether there will be a review of how the system is working in two or three years’ time to see if it is operating as intended? What stage are we at in terms of the regulations being drawn up that she referred to? Presumably they will come through under the normal procedure for approval.

[Baroness Northover]

In terms of review, the Government’s position is always to keep legislation under review and to take steps to deal with issues that arise, so obviously if the kind of concerns flagged up by the noble Lord are seen to develop, that would be picked up in any kind of review. I am sure that the regulations coming through will follow the normal procedures and that we will have all sorts of things to consider, but if I am not right about that, I shall write to the noble Lord.

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Moved by

[Lord Beecham]

185A: Clause 124, page 106, line 12, at end insert—
“(6A) Within three years of the commencement of this section, the Secretary of State must review and report to Parliament on the operation of youth cautions, in particular, the use of appropriate adults in the cautionary processes and whether it should be extended to 18 year olds.
(6B) At any point following a report being made under subsection (6A), the Secretary of State may by order extend the appropriate adult provisions in this section to a person given a youth caution, where that person is under the age of 18.”

[Lord Beecham]

My Lords, given the time, happily this is a short amendment. The Police and Criminal Evidence Act 1984 established that people under the age of 17 years are to be treated as children and therefore have to be questioned or interviewed in the presence of an appropriate adult, but people of 17 years of age and up to 18 are not treated in the same way. The Government have dealt with what has been an anomaly about treating 17 year-olds as adults for the purposes of bail, and that has now been changed to lift the age to 18. It would seem to be consonant with that approach if the appropriate adult provision was also extended from 17 years of age to 18. This is a straightforward matter and I should say that the Prison Reform Trust, in which I declare an interest as a member of its advisory group on youth offending, strongly urges that this should be dealt with in the same way as the bail situation. Incidentally, the trust extends its thanks and praise to the Government, so if they want another round of thanks and praise, they merely have to accept this amendment. I beg to move.

[Baroness Northover]

My Lords, how very kind of the noble Lord. Youth cautions are specifically designed for young offenders and the provisions in Clause 124 underline our approach to the prevention of offending by children and young people by providing assessment and rehabilitative programmes through specialised youth offending teams. The noble Lord has flagged up the suggestion that appropriate adult provisions should be extended to offenders above the age of 17.

Work is under way in the Home Office, the Youth Justice Board and the Ministry of Justice to look at the possibility of extending the appropriate adult scheme for all under-18s in the criminal justice system. However, we will need to consider fully the resource implications before any change can be made. At the moment, we feel that the scheme needs to remain as it is, but we keep it under review. For the reasons I have set out, I urge the noble Lord to withdraw his amendment.

[Lord Beecham]

My Lords, I am not going to divide a thinly attended House at this hour of the night on this issue. What the Minister said is again consonant with the first amendment, which, after all, suggests a three-year period. That should be long enough even for the Home Office to come to some conclusions. However, in the circumstances, I beg leave to withdraw the amendment.

Amendment 185A withdrawn.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Beecham Excerpts

Thursday 9th February 2012 Lords Chamber

Moved by

[Lord Beecham]

178: After Clause 83, insert the following new Clause—
“Right to appeal bail decisions
(1) The Bail (Amendment) Act 1993 is amended as follows.
(2) After section 1 insert—
“1A Appeal against a bail decision
(1) The prosecution may appeal to a judge of the High Court against the decision of a Crown Court to grant bail in a case where a person is charged with or convicted of an offence triable on indictment.
(2) Subsection (1) applies where the prosecution is conducted—
(a) by or on behalf of the Director of Public Prosecutions; or(b) by a person who falls within a class or description of person as prescribed in regulations made under this section.(3) An appeal under subsection (1) may only be made where—
(a) the prosecution made representations that bail should not be granted; and(b) the representations were made before it was granted. (4) In the event of the prosecution wishing to exercise the right of appeal under subsection (1), it must give oral notice of appeal to the Crown Court at the conclusion of the proceedings in which such bail has been granted and before the release from custody of the person concerned.
(5) Written notice of appeal shall thereafter be served on the Crown Court and the person concerned within two hours of the conclusion of such proceedings.
(6) Upon receipt from the prosecution of oral notice of appeal from its decision to grant bail, the Crown Court shall remand in custody the person concerned until the appeal is determined or otherwise disposed of.
(7) Where the prosecution fails within the period of two hours mentioned in subsection (5) to serve one or both of the notices in accordance with that subsection the appeal shall be deemed to have been disposed of.
(8) The hearing of an appeal against a decision of the Crown Court to grant bail under subsection (1) shall be commenced within forty-eight hours, excluding weekends and any public holiday (that is to say Christmas Day, Good Friday or a Bank Holiday) from the date on which oral notice of appeal is given.
(9) The judge hearing an appeal under this section shall be privy to any earlier evidence and may, at the conclusion of the hearing—
(a) remand the person concerned in custody; or(b) grant bail, subject to any conditions,as he or she sees fit.”.”

[Lord Beecham]

My Lords, every so often—

[Baroness Anelay of St Johns]

My Lords, the noble Lord, Lord Beecham, is making a very diplomatic hesitation before moving an amendment that I know is not only of importance here but will be taken account of outside this House.

[Lord Beecham]

My Lords, every so often a tragic incident occurs which leads to a change in social policy or, indeed, a change in legislation. One thinks of the cases of Stephen Lawrence, Jamie Bulger, Victoria Climbié and Milly Dowler and, as your Lordships may recall when we were discussing amendments in relation to alcohol and offences the other night, the murder of the husband of a Member of your Lordships' House—the noble Baroness, Lady Newlove.

This amendment and the government amendment arise from the brutal murder of Jane Clough, a 26 year- old nurse and mother of a baby daughter, by the partner with whom she was living who had been charged with very grave sexual offences. The partner was granted bail in the magistrates’ court and the brutal murder occurred shortly thereafter. This morning I have had the humbling privilege of meeting Jane’s parents—John and Penny Clough. I salute the dignity and courage with which they are not only bearing the loss of a beloved daughter in the most appalling circumstances but the way they have campaigned, with support from a wide range of individuals and organisations and across party, for a change in the law to allow an appeal against the granting of bail. I know that they would wish for an expression of thanks to be made to all those who have supported them in this campaign, in particular to Vera Baird, the former Solicitor-General, and to Members of Parliament in the other place, notably Helen Goodman and Jenny Chapman. Penny and John are sitting today below Bar in your Lordships' House. They came the other night but, unfortunately, we did not reach this amendment at that time. They have stayed on in order to see effectively the culmination not only of their pain but also of their campaign.

Irrespective of whether bail is granted in a magistrates’ court or in a higher court, there will never be any guarantee that the person granted bail will not commit an offence. However, these amendments seek to ensure that in the appropriate cases the prosecution, knowing of the circumstances which gave rise to the charges in the first place, can at the very least take the matter to a higher court for determination, and offer a perhaps better prospect of avoiding a repetition of this dreadful incident or any incident like it. In approving a change in the law—I say immediately that I very much welcome the Government’s amendment and am happy to withdraw my amendment in favour of it—we should be able to demonstrate the capacity of Parliament to react to issues of this kind and to encourage others, perhaps facing different circumstances but where a change in the law might be needed, to follow the wonderful example of Jane’s parents, Penny and John, in ensuring that a change in the law is made. I said to them that if this House were given to standing ovations, they would be greeted with such an ovation today. Our hearts, our sympathies, but more particularly and perhaps more relevantly, our legislative endeavours go towards them today in meeting their objectives.

[Lord Clinton-Davis]

Is there any possibility of any action being taken after the judge has considered the point? In other words, would the prosecution be able to take the matter further?

[Lord Beecham]

I do not think that the amendment allows for that, but that is a matter that perhaps might be considered. It is adequate that the Crown Court should be able to deal with these matters.

However, leaving that technicality aside, perhaps I may, on behalf of your Lordships' House, extend our very best wishes to the whole family of Penny and John because their daughter is seeking to adopt the grandchild, and all of them deserve our best wishes and, indeed, our thanks.

I intend to withdraw the amendment.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, the noble Lord, Lord Beecham, has already outraged the protocol of this House by recognising people present beyond the Bar, but I do not think that he will be taken away to the Tower for that breach because it is good that Members of the House are aware that Jane’s parents are present to see us in action. I am afraid that the other night they had the experience of seeing the Lords in action that delayed this debate, but it is such an important matter for them, their family and the wider public that we have this debate today. I sincerely hope that within a few minutes they will see Jane’s law passed by this House.

Amendment 178ZZA creates a right of appeal for the prosecution against a Crown Court decision to grant bail. It does so by extending the existing powers in the Bail (Amendment) Act 1993, which currently provides for a right of appeal against bail granted by a magistrates’ court. That appeal is to the Crown Court. Under Amendment 178ZZA, the avenue of appeal against a Crown Court decision would be to the High Court.

As we have heard from the noble Lord, Lord Beecham, this is a matter that has been the subject of a campaign by Jane’s parents following the release on bail of Jonathan Vass by the Crown Court, despite representations from the Crown Prosecution Service. We considered this matter very carefully. We took account, on the one hand, of the fact that a right of appeal would necessarily impose an additional burden on the High Court. On the other hand, there was strong support for change in the other place, as we have heard, and the Director of Public Prosecutions has made it clear that he too is in favour of such a change in our law.

Our conclusion was that without calling into question the correctness of decisions made by Crown Court judges in the vast majority of cases, it is not right that such decisions should be beyond challenge. We are persuaded of the case for changing the law in order to ensure that victims and their families, and the public at large, are protected.

The effect of the provision will be that the decision to appeal must be made immediately, before the defendant has been released, and as the defendant would be held in custody pending the appeal, the appeal must be heard very quickly. Listing cases at such short notice before a High Court judge clearly has resource implications, and it is important that the right of appeal should be used sparingly. This will be recognised in the guidance that the Director of Public Prosecutions will issue to his staff, which will require a decision to appeal to be approved at a senior level.

The most notable difference between our Amendment 178ZZA and Amendment 178 moved by the noble Lord, Lord Beecham—I am grateful that he intends to withdraw it—is that ours is shorter and does not permit an appeal against a decision by the Crown Court to grant bail where it was itself made on appeal from the grant of bail by a magistrates’ court. So if a defendant was granted bail by the magistrates, the prosecution appealed and the Crown Court granted bail, the prosecution would not be able to appeal further. This is to stop a continuing series of appeals on a matter that by then would have been considered by two courts. I therefore commend Amendments 178ZZA and 178ZZB to your Lordships' House.

It is my responsibility as the Minister to put on the record the technicalities; hence, some of my remarks may seem gobbledegook to those not in the Chamber. However, I can assure the House that what the Government are doing, supported by Her Majesty's Opposition and, as the noble Lord, Lord Beecham, made clear, supported firmly by the other place, is approving Jane’s law.

[Lord Beecham]

My Lords, I beg leave to withdraw the amendment.

Amendment 178 withdrawn.

--- Later in debate ---

[Lord Ramsbotham]

My Lords, in speaking to the amendment and Amendments 178ZAA, 178ZAB, 178ZAC and178ZAD, I must state my strong support for the reforms implicit in Clauses 91 to 94, which place two clear sets of conditions on a court before a child can be remanded in custody. I say that because, at present, one-third of all children remanded to youth detention accommodation do not go on to receive a custodial sentence. I also support the simplified single remand order, which addresses the anomaly of 17 year- olds being remanded in adult accommodation.

I turn to Amendment 178ZZAZA. Our debate on Tuesday on Clause 75 concerning the proposed increase in curfew hours is linked to Clauses 87 to 89, to which the amendment refers, because electronic monitoring of children is part of their curfew regime. Clause 87(2) states:

“The first requirement is that the child has reached the age of twelve”,

before he or she may be electronically monitored. I and the Prison Reform Trust—for whose admirable briefing on this and many other issues I and, I am sure, many other noble Lords are extremely grateful—contend that 12 is too young.

Research suggests that, particularly if the longer periods that were so deplored around the Committee on Tuesday are adopted, many children aged 12 are likely to find compliance with electronic monitoring too onerous due to developmental immaturity, learning difficulties, learning disabilities or other mental health and communication problems, contributing to a lack of understanding of the consequences of their actions. This is borne out by the breach figures, which show that one in six children aged 10 to 14 in custody had been imprisoned for breach of a curfew order.

As was mentioned on Tuesday, Home Office research published in 2005 raised concerns that electronic monitoring can also prevent children participating in legitimate activities, thus increasing the likelihood of breach. I am aware that in Committee in another place the Minister, Crispin Blunt, said in rejecting a similar amendment:

“By removing the power of the court to use electronic monitoring with 12 and 13-year-olds, the amendments would push courts to remand more young children in secure accommodation … contrary to the policy underlying the provisions, which are aimed at reducing the use of secure remands of children and promoting greater community provision”.—[Official Report, Commons, Legal Aid, Sentencing and Punishment of Offenders Bill Committee, 11/10/11; col. 709.]

With respect, I think he missed the point that was being made, which was that removing the power to electronically monitor would encourage positive engagement. From personal experience, I know that better outcomes result from positive engagement than from the imposition of onerous conditions, particularly with younger offenders. The amendment seeks to raise the minimum age for electronic monitoring from 12 to 14, with the same age condition for remand to youth detention, to which my Amendments 178ZAA to 178ZAD refer. I beg to move.

[Lord Beecham]

My Lords, it is certainly desirable that electronic monitoring should be used very sparingly but there may well be cases in which even a 12 or 13 year- old has exhibited behaviour which requires—I say with some reluctance—monitoring of this kind. Therefore, I am afraid that the Opposition cannot support the amendment of the noble Lord, Lord Ramsbotham.

However, I have a question in relation to Amendment 178ZAD, which concerns extradition cases. I should like an assurance that, if the country requesting extradition does not itself apply electronic monitoring to the age group in question, such cases will not attract that procedure in this country. It would seem anomalous if we were to go further than the country seeking extradition in applying electronic monitoring to those cases. Perhaps the noble Baroness could deal with that. If she cannot do so today, perhaps she could write to me accordingly.

--- Later in debate ---

[Baroness Northover]

I am happy to write to the noble Baroness. Of course she is absolutely right. We know very well that the influence of peer groups is a very important issue.

[Lord Beecham]

I thank the noble Baroness for the information that was conveyed to her from the Box but it does not quite reach the point that I was making. The point was that if the country to which the child is being extradited does not apply electronic monitoring, should we be doing it? That was my question, but I am not asking for an answer now.

[Baroness Northover]

I am very happy to write to the noble Lord on that point.

--- Later in debate ---

[Lord McNally]

My Lords, this is a technical amendment. I beg to move.

[Lord Beecham]

It would appear that I am in some danger of becoming a repeat offender when it comes to breaching protocol. I apologise to the House.

My only concern about the technical amendments in this group is the insertion in Amendment 178ZAZB of the word “accused” before the word “charged”. I appreciate that it is intended to correct what was described as an accidental gap in replicating earlier provisions, but it concerns me that we may apply electronic monitoring to people who have not been charged but merely accused of an offence in another jurisdiction. I wonder whether it is the right approach. Perhaps the noble Lord will want to think further on that. It strikes me as a little odd, in the same way as the previous matter we discussed struck me as odd. I may be entirely wrong but it seems to jar with the notion that a simple accusation would suffice to allow somebody to undergo electronic monitoring.

[Lord McNally]

My Lords, one of the uses of Committee is to allow noble Lords to scrutinise and to seek clarification. The noble Lord’s point is not covered in my notes. The amendments in this group are intended to be minor and technical. They set out a requirement for electronic monitoring in extradition cases that is consistent with its use under the Extradition Act 2003. Clause 88 is intended to create a test that is equivalent to that in Clause 87 which applies to young people who are charged with or convicted of an offence. “Accused” is the word used in the Extradition Act. If we did not change the wording of the Bill to match, we would create a lacuna whereby the courts would have only limited remand powers over an individual who was being extradited before being charged. I will clarify the noble Lord's point about the use of electronic tagging and write to him.

--- Later in debate ---

[Lord Beecham]

I am grateful to the Minister for this group of amendments, with which we entirely concur. I am particularly glad that the wisdom of the House in ensuring that the Youth Justice Board has been preserved is reflected in here. I am unable to resist the temptation, given the name of the chief executive of the Youth Justice Board, to say that justice has been done. I am sure that Frances Done will be delighted to see these amendments and I congratulate the Government on their wisdom in accepting the original views of the House.

Amendment 178ZAE agreed.

--- Later in debate ---

[Baroness Northover]

My Lords, this package of amendments will give effect to the second stage of the Government’s approach to the simplification and clarification of the current release and recall provisions for determinate sentenced prisoners by bringing these provisions together within a single statute—the Criminal Justice Act 2003.

The current release and recall provisions are spread across a number of different statutes, subject to commencement orders with complex transitional and savings provisions and subsequent amendments. This has created an extremely intricate and unwieldy web of legislation which is very difficult to follow, even for criminal justice experts and practitioners. This in turn has been heavily criticised by the courts and calls have been made for the Government to simplify the provisions.

The first step in our approach to achieve this simplification was to introduce the provisions contained in Clauses 100 to 112 of Chapter 4 of the Bill. These amend the current 2003 Act provisions to establish the single regime that will apply to those sentences imposed on or after commencement.

The second stage of our approach, which is what this package of amendments will do, is to consolidate within the 2003 Act those provisions of the Criminal Justice Acts 1967 and 1991 that will be required to continue to apply to those prisoners who, at the time of commencement, are subject to the release arrangements of those previous statutory regimes. We have no intention of making substantial changes to the way in which the sentences of those existing prisoners operate and so these amendments do not change the release dates or licence lengths for those current prisoners. In practice, this means saving the current release regimes for the few remaining 1967 Act prisoners; 1991 Act prisoners serving long-term sentences of four years or more for sexual or violent offences—often known as “DCR” prisoners; and for current 2003 Act extended sentence prisoners. Going forward, however, all sentences imposed on or after the date of commencement will be subject to the 2003 Act release and recall arrangements, as amended by the provisions in this Bill, regardless of the date that the offender committed his or her offences.

That is the broad effect of this package of amendments. I would be happy to explain what each of the amendments does should your Lordships find that helpful, but in the interests of keeping my explanation to a minimum I propose simply to highlight the main features. I can assure your Lordships that, while these amendments are long and technical, they do not make substantive changes to the current release arrangements. They are intended mainly to make the legislation itself clearer, easier to follow and less open to misinterpretation.

Two new schedules will be inserted into the 2003 Act—the content of these make up the bulk of the amendments. The first, Schedule 20A, makes amendments to other statutes that are consequential on the amendments made to the 2003 Act. It also contains transitional provisions to allow prisoners released under the 1991 Act to be deemed to have been released under the 2003 Act, while preserving their current licence length. The second, Schedule 20B, reproduces within the 2003 Act the elements of the 1967 and 1991 Act release regimes that need to be preserved for those prisoners already serving these types of sentence. In other words, it achieves the consolidation of all the current release provisions into a single statute.

Connected to the introduction of new Schedule 20B, our intention now is to remove Clause 112. The clause contains a power to allow the Secretary of State to make an order by secondary legislation to bring the release and recall provisions of the Criminal Justice Acts of 1967 and 1991 into the 2003 Act. But with the introduction of these amendments, and Schedule 20B in particular, that consolidation now will be achieved on the face of the Act so that the order-making power is no longer necessary and can be removed. I commend this package of amendments to your Lordships and I beg to move.

[Lord Beecham]

My Lords, I welcome the clarification that this range of amendments brings about. I am particularly glad to see the mea culpa stance over Clause 112 standing part and hope that this presages greater use of the procedure whereby the Government withdraw proposals which are not satisfactory. I trust that this is the first swallow of a summer of such arrivals.

Amendment 178ZC agreed.

--- Later in debate ---

[Lord Beecham]

My Lords, there is certainly a unanimity of view in the debate thus far that the present system is not satisfactory. It should perhaps be pointed out that there have been very few instances of compassionate release, including three cases arising out of the Good Friday agreement and the case of the East End criminal, Reggie Kray, but that is a little beside the point.

My problem, such as it is, with the noble and learned Lord’s amendment, is more in the rubric than in the intention. It is clear that there will always be some cases in which release will not and should not occur. I suspect that there will be few, but there will be some. The public need to be persuaded that the people who are not reformed and who might well continue to constitute a danger will not be released. There will always be a small number of those.

The amendment refers to the,

“Duty to release certain prisoners serving a whole life sentence”.

I can see whence that comes—that is the end of the process, as it were, which would be acceptable—but as it stands, the wording seems to imply an implicit or explicit duty to release prisoners serving a whole life sentence instead of posing the duty to consider the release. With respect to the noble and learned Lord, that would have been a better way to phrase the amendment and would give the public more assurance than what appears on the face of it—and I appreciate that it is only on the face of it—to be an absolute duty to release certain prisoners serving a whole life sentence.

[Lord Lloyd of Berwick]

That ignores the function of the Parole Board, which has the discretion, not the Minister.

[Lord Beecham]

That is precisely my point. The amendment rightly envisages a duty to refer to the Parole Board, but on the face of it it looks as though there is a duty of release ab initio. That is not the noble and learned Lord’s intention—and I say this with great respect, because of course he is a very eminent and learned judge—but it might have assisted his case if it had been put in that way. That point in a sense echoes the point made by my noble friend Lord Borrie.

It is sensible to restore a situation in which a release after 30 years can be contemplated and, after due process, properly agreed. If the Parole Board adjudges that it is safe to release someone, that should be the Secretary of State’s duty at that point. In fact, relatively few people are serving these sentences—I think there are 40 prisoners, and that 20 have been sentenced in that way in the last 10 or 12 years as a result of their trial and the conditional decision at the time—so I think there is a way forward on this, with a slight modification of the way in which the amendment is phrased, and I hope that the Government will look sympathetically on it while clearly bearing in mind that there will be some prisoners for whom, in the end, there will be no hope of release. One hopes that there will not be many in that category, but there will be some, and that ought to be recognised from the outset.

[Lord McNally]

My Lords, the noble Lord, Lord Beecham, referred to the unanimity of view in the House during this debate. I sometimes think that perhaps a joint meeting of both Houses would be interesting when we discuss these issues. Nevertheless, this House has a long and proud history of providing a platform for penal reform, and it has certainly lived up to that reputation today.

I make one or two preliminary comments. The noble Baroness, Lady Stern, referred to the campaign to abolish the death penalty. Like many in this House I am old enough to remember that campaign, and I remember that part of it, which swung many MPs, was the proposal that life would mean life. It has always been a problem area, particularly for those who have committed the most horrific crimes.

The story that the noble Lord, Lord Ramsbotham, told was very encouraging in that it told of someone’s capability do good, even after the most horrific crimes. However, that capacity to do some good would not convince me to release a dangerous person into the community—and it is that test that has to be passed. I would hope that even those who spent the rest of their lives in jail would find within their confinement a capability to do good.

I think that we will return to this theme on a number of occasions in the next hour or two, as various amendments come up. The noble Baroness, Lady Stern, asked what sort of penal system and what sort of values we should have, and the noble Baroness, Lady Mallalieu, called for courage. Courage is certainly needed, but so is a practical use of the art of the possible. Penal reform is always a balance between humane treatment of those who are in prison, concern for the victims of crime and the retention of public confidence in our system of justice. Unless we can convince the public of the elements of punishment and public protection within the system, we will not get their buy-in to rehabilitation, which as I have often said from these Benches is very much part of what I and the Lord Chancellor see as built into the system. However, unless we can carry colleagues and the public with us and retain public confidence, we will not get the kind of reform that we want. I freely acknowledge that carrying through some of these reforms is an exercise in the art of the possible in what will win the confidence of the other place and the public.

As the noble and learned Lord said in introducing his amendment, things were different some time ago. One good thing to my mind about recent reforms was that all tariffs are now judicially determined. I am one of those—and I share it in other cases as well—who thinks that we should rely on judicial judgment in these matters. The imposition of minimum terms and whole life orders is now a matter that is exclusively for the judicially. I was very interested in his views on the judgment of the European Court of Human Rights. I tend to agree with the noble Baroness, Lady Stern, that when the Court gets it right it does not get much coverage. I am sure that if it reverses its decision, it will be page 1 again. Nevertheless I was a little worried that both the noble Lord, Lord Pannick, and the noble and learned Lord seem to think that a majority verdict was somehow of less value. A verdict is a verdict, and a win is a win. I am sure that he has been on the winning side a few times in those circumstances—I knew I was tempting fate.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Beecham Excerpts

Thursday 9th February 2012 Lords Chamber

[Lord Beecham]

My Lords, the Front Benches are occupied by somebody from the lowest levels of the legal profession and somebody who is even lower because, as we were told the other day, he has done only a short period of legal education. I do not know about the Minister, but I find myself oscillating between the very eloquent, articulate and lucid explanations of the various positions. I was totally persuaded by the noble and learned Lord, Lord Lloyd—until I heard the noble Lord, Lord Carlile. Then—with all due respect to the noble Lord, Lord Blair—I was made to think more by the noble Lord, Lord Thomas. On balance, I am grateful that I was not a member of a jury to be addressed by any of these three eminent lawyers because I am not sure we would have reached a verdict even now—at least I would not.

On balance, I am persuaded by the arguments of the noble Lord, Lord Carlile, although I am concerned—as everyone in this House should be—at the very disturbing statistic that the noble and learned Lord, Lord Lloyd, adduced about the number of people held on life sentences in this country being greater than that for the whole of the rest of Europe. That is not something about which the English system should feel at all complacent. Nevertheless, for what it is worth—which is clearly not much—I am persuaded by the argument that the noble Lord, Lord Carlile, advanced. It remains to be seen whether it endorses the position that the Minister will give us in a moment.

[The Minister of State, Ministry of Justice (Lord McNally)]

I thank the noble Lord, Lord Beecham, for those comments. I approach any discussions on Schedule 21 with great trepidation because very early in my ministerial career, I was lured by the eloquence of the noble and learned Lord, Lord Lloyd, into agreeing with him about some of the flaws in Schedule 21, only to be hauled over the coals when I got back to the department and told that this was not departmental policy and I was not to listen to such siren voices.

I think the noble and learned Lord, Lord Lloyd, knows that both the Lord Chancellor and I—importantly, and less so—come instinctively to the view that judging is best left to the judges. This debate has taken place within this context. I am very grateful to my noble friend Lord Carlile for his intervention because he pointed out that what we are debating is where the responsibility of Parliament is in setting a framework, while leaving, properly, to the judges the flexibility to handle that framework.

I am also grateful for the intervention of the noble Lord, Lord Blair, for two reasons. First, he made the unique point—certainly in this Bill—that he was going to shorten his speech because somebody else had made the speech earlier. All I say to the rest of the House is: “Go thou and do likewise”. Secondly, he made the important point that I think will come back again and again in our debates—I wrote it down—that murder is “the crime by which the public judge the criminal justice system” above all others. Therefore, as the noble Lord, Lord Blair, said, it is right that Parliament has a duty to set a framework in these matters.

I take the point of the noble Lord, Lord Thomas, that it may seem an artificial framework, but in putting forward the 2003 Act Parliament allowed judges the necessary discretion to arrive at any minimum term from any starting point, which allows exceptional cases for minimum terms to depart from the norm. It is not as inflexible as is suggested. The 2003 Act puts in place arrangements for all minimum terms to be imposed judicially—something which I think has general approval. However, Parliament took the view at the time that it was right to have statutory guidance on sentencing for murder. The guidance provides for consistency of approach but still gives the court the necessary discretion to deal with each case appropriately.

I note what the noble and learned Lord, Lord Lloyd, said about the Sentencing Council and I pay tribute to its work, but the Government still believe, as Parliament believed in 2003, that it is right that Parliament should remain responsible for sentencing guidance for murder. It is for Parliament to reflect what circumstances should be considered as particularly or exceptionally grave for this, the most serious of crimes. With that explanation, I urge the noble and learned Lord to withdraw his amendment.

--- Later in debate ---

[Lord Lloyd of Berwick]

My Lords, the real scandal is that IPP sentences have gone on for so long. The previous Government had the chance to do something about them in 2008, as the noble Lord, Lord Goodhart, has indicated, when it was already obvious that IPP sentencing was going badly wrong. I remember tabling an amendment at that time to raise the bar and therefore reduce the number of those eligible for IPP sentences. The noble Lord, Lord Bach, was sympathetic but met me only half-way. The Conservatives, I am sorry to say, opposed the amendment. As a result, we have the situation in which we now find ourselves. I entirely share the indignation so well expressed by the noble Lord, Lord Ramsbotham. I add only that in my view something must be done, and done soon.

[Lord Beecham]

My Lords, it is quite clear that more people are serving longer sentences under the system introduced by the previous Government than was anticipated. It is also clear that insufficient resources were devoted to meeting the requirement that people should undergo training and courses, on programmes to be provided within the custodial setting, as a condition of release. As the Prison Reform Trust has pointed out, the situation is even worse for prisoners who are mentally ill or suffer from a learning disability. There is certainly a very real problem with how prisoners are to be assisted in demonstrating their fitness to be released. That undermines what would potentially have been a valuable way of protecting the public. It undoubtedly caused the system to fall into disrepute. The fifth report of the Justice Select Committee of the House of Commons made a number of perfectly valid criticisms of those matters.

Not the least irony of the situation is that referred to by the noble Lord, Lord Wigley. He pointed out that the cost of keeping substantial numbers of people in prison is excessive in relation to the cost that would arise from investing in the necessary programmes to assist people to make their case and earn their release. I am bound to say that that position is likely to recur in conjunction with the Government’s proposals for extended sentences.

I do not dissent from the critique of indeterminate sentences, although I remain far from convinced that extended sentences necessarily resolve the problem. In that context, will the Minister indicate in replying what additional resources are planned for rehabilitation and the like under the new system? How will people who remain under the old system be dealt with? As has rightly been pointed out, a substantial number are still in that position.

I do not know whether the Minister is aware of the Answer given by the Minister in the House of Commons to a Question from Andy Slaughter MP about the number of people who were likely to be retained in prison as a result of the extended sentence programme. That was a very illuminating document. It showed that around 550 people a year would be sentenced and treated in that way, so that over 10 years 5,500 people could be in the same position as those who were sentenced under the previous regime. That is a formidable figure and, as the noble Lord, Lord Wigley, implied in respect of the existing system, a very costly one. I am not aware of any impact assessment or analysis of the cost of that new proposal. I do not know whether the Minister can direct me to any such analysis. In any event, the figures suggest a very significant cost.

Having said that, I have difficulties with various amendments that are being proposed. In particular, as has already been mentioned by the noble Lord, Lord Ramsbotham, it is asking too much, even if the system were to receive an injection of money, for courses and the like to be laid on in such numbers and in so short a time as to meet the targets that some of the amendments suggest. Therefore, the amendment of the noble Lord, Lord Wigley, to require that within 30 days of the Act coming into force prisoners must have,

“access to relevant rehabilitation programmes”,

or be released simply does not seem realistic.

--- Later in debate ---

[Lord Lloyd of Berwick]

I am grateful to the noble Lord who is pointing out all sorts of difficulties. I am bound to say that I would be happier if he could at least feel the same sort of indignation that some of us feel at what has already gone wrong, and support the need to do something about it now. That is for the Government to do.

[Lord Beecham]

I share that view. I had hoped that I had made it clear that I think the previous Government did not invest anything like sufficient resources to fulfil their intentions. The intentions were reasonable but the means to fulfil them were not provided. That has to be acknowledged. However, I am afraid that the present Government are, to an extent, following the same course, if they do not look to avoid repeating the experience of under-resourcing a system that on their own figures is likely to lead to substantial numbers of people being held for a very long period—longer than is necessary for their good or society’s good—although there will always be some people who will have to be held for a long period.

[Lord Goodhart]

My Lords, would it not be more expensive to keep in prison these people who should not be there rather than going through the relatively simple processes that would be required to stop them having to remain on an indeterminate sentence?

[Lord Beecham]

Indeed, but the Government have, as I understand it, no real plans to deal with the 3,000 people who are still held on indeterminate sentences. My whole point is that just as the previous Government did not invest in this sufficiently, this Government are in danger of doing the same. Across your Lordships’ House there would be a view that this investment would repay itself in financial terms as well as in social terms.

[Lord McNally]

My Lords, as the noble and learned Lord, Lord Lloyd, and the noble Lord, Lord Goodhart, mentioned, IPP was identified long time ago as a train crash in waiting. I take pride that this Government have taken forward this reform. I note that, as always, there are those who say it does not go far enough—and that is the nature of reform. I was also pleased that there was a certain cross-examination of the noble Lord, Lord Beecham, because he is such a reasonable and likeable person that one would think he was going to slip past the responsibility that the previous Administration have to carry for bringing in these reforms.

We are trying to disarm a time bomb and it has to be done in a careful and measured way. This afternoon, we have heard unanimity of views on prison reform. I have to say, in trying to argue the case for prison reform to both Houses and the public at large, it would be easier if the Labour Party, for which I retain a residual affection, had resumed some of its old and traditional campaigning for penal reform, instead of indulging in a kind of “We’re tougher than you” arms race with those who need to be convinced of the case.

That is a fact of modern political life. The Labour Party of Sydney Silverman and Roy Jenkins is perhaps not here any more. Successive Labour Home Secretaries were very keen not have the term “liberal” attached to their term of office. Thus we face a problem such as IPP. We are trying to deal with the issue. The National Offender Management Service prisoner co-ordination group is chaired at director level. It certainly does not meet the catchiness of the request by the noble Lord, Lord Ramsbotham, for a named person, but that group is trying to manage the specific problem of IPP prisoners. The new specification for offender management, which will provide for the prioritisation of resources based on risk, will be phased in from April 2012. It means that the higher the level of identified risk or the likelihood of reoffending, the higher the level of service that will be provided. In particular, that will result in improved targeting of rehabilitative intervention for IPP prisoners.

To take up the point made by the noble Lord, Lord Dholakia, the key rehabilitation stage for those prisoners is being able to demonstrate in open conditions or temporary release that they have learnt new behaviour. NOMS has identified special issues surrounding waiting lists for IPP prisoners who have been assessed as suitable to be held in open conditions. Work is under way to improve the speed of allocation to open prisons, and a temporary release policy is being reviewed to consider whether suitable prisoners might be given access to temporary release from closed prisons.

The Government took the view from an early stage that IPPs must be replaced, and we have brought forward proposals in the Bill to do so. Once those provisions are commenced, no further IPPs can be imposed, even for previous offending. That is a major step forward. We are now concerned with those who have or will receive an IPP sentence prior to abolition. A range of amendments have been tabled on the subject, which we are now debating. The noble Lords, Lord Ramsbotham and Lord Thomas of Gresford, have tabled amendments proposing that the Parole Board release tests be changed. Their amendments also propose the conversion of current IPP sentences to automatic release sentences; that cases are referred back to the Parole Board every six months; and that the Secretary of State should be required to demonstrate that he has made programmes available to prisoners who are refused parole.

The amendment from the noble Lord, Lord Wigley, proposes that those offenders should either have access to a relevant rehabilitation programme or that their sentence be rescinded. By that, I presume he means that they should be given automatic release if programmes are not available. The noble Lord, Lord Ramsbotham, and other noble Lords have asked through another amendment for the Government to plan release for those prisoners. I should make it clear that, as the statute stands, the Government could not implement any such plans, because the power to direct release would remain with the Parole Board. Again, a conversion to automatic release would be required.

Let me start with the question of the conversion of IPP sentences. We do not think that it is right or appropriate retrospectively to alter sentences that were lawfully imposed by the court simply because a policy decision has now been taken to repeal that sentence. That is what would be required to make release automatic for those prisoners. Generally, sentences already imposed are not substantively altered by subsequent legislation. In this case, it would be particularly difficult, as the court would have to impose the sentence with risk management issues in mind.

Several of the amendments relate to the availability of programmes for IPP prisoners. There is rightly concern that those currently serving IPP sentences should be supported in progressing their sentence and achieving release on licence. The National Offender Management Service is using a range of measures to improve the progression of those prisoners through sentence, including improvements in assessment, sentence planning, delivery and the parole review process. We continue to monitor outcomes to ensure that further improvements are identified and implemented.

--- Later in debate ---

[Baroness Stern]

My Lords, I shall add a few remarks to the chorus of disapproval. I welcome the noble and learned Lord, Lord Lloyd, raising this matter. I shall say a little about the use of life sentences in our law. I have some comparative figures for 2008 about the use of life sentences per 100,000 of the general population. For England and Wales, including IPP sentences, the figure is 20.9; for life sentences that are not IPP sentences, it is 12.71. I suppose the Minister might regard those as reasonable comparators. For France, the figure is 0.85, for Germany 2.41, for the Netherlands 0.14 and for Sweden 1.68. On the face of it—and I am reasonably confident about the accuracy of the data—there is an extraordinarily different way of sentencing within the criminal law in this jurisdiction from in the jurisdictions of continental Europe.

It says nothing about sentence length—that is an entirely different question—but it says a great deal about the admiration and affection that we seem to have for indeterminacy as a way of dealing with people. In the last group of amendments, the noble Lord, Lord Ramsbotham, spoke eloquently about the impact of indeterminacy on the sentenced person. The sentenced person is left in limbo. He has a very vague idea of what the future holds and of whether a sensible plan could be made for the years that stretch ahead. He has no idea of who has the power to decide whether, and when he is released, how those decisions are made and how he can have an influence, by behaving in a certain way, on what happens in the future. I would imagine that it is a less desirable option than a fixed sentence, where it is clear to the person and to the family in the outside world what the future looks like and how it can be affected.

The proposal for another mandatory life sentence is highly undesirable and I support the amendment.

[Lord Beecham]

My Lords, in replying to the debate on the last group of amendments, the Minister spoke of his residual affection for the Labour Party in terms that he might have used about an elderly relative. I half expected him to cross the Floor and offer me a cup of tea and a biscuit. I appreciate his kind thoughts.

On the substance of what we are now discussing, I am not at all comfortable with the line the Government are adopting. I entirely support the amendment of the noble and learned Lord, Lord Lloyd. Either the Government intend there to be an effective mandatory life sentence policy, which would be wrong in principle; or they want to give the impression of so doing when they do not intend that, which would be disreputable. I am sorry that the noble Lord appears to be lending himself to either of those approaches.

The Minister referred to the party to which I belong as being less than liberal. Those who know me within the party I represent, here and elsewhere, know that I have not been uncritical from time to time of the penal policy of the previous Administration, for what that is worth. I was going to say that the noble Lord should perhaps look behind him, but there is only one Peer from the Conservative Party in the Chamber and she has the respect of us all.

I recall a poster in the 2005 election—I cannot resist reminding noble Lords about this—which I noticed en route from Heathrow Airport into London, which said:

“What would you think if a bloke out on licence raped your daughter?”.

That was the style of an election campaign of the noble Lord’s current partners. I do not for a moment imagine that he or his colleagues on the Liberal Democrat Benches, then or now, would approve of that approach.

One can debate the merits or otherwise of various party policies but that does not get us very far. However, the Minister talked about disarming a time bomb. The fear is that while he is disarming a time bomb he might be planting a minefield in terms of the effect of this provision about life sentences if it is carried out. Here I must plead guilty, before being charged, to inadvertently misleading the House when I gave statistics earlier, which I said related to the extended sentences. In fact, they related to the mandatory sentence provision. But they are the statistics and they demonstrate that over a decade around 5,500 would be added to the very long-term sentences if this provision should pass into law. A great proportion of them would involve serious crimes of violence against a person, as well as other offences. That was the substance of the Written Answer to the parliamentary Question to which I referred.

The noble and learned Lord has more than adequately, as one might expect, disposed of the case, such as it is, for Clause 114. I hope that the Minister today will agree that it should cease to form part of the Bill or at the very least undertake to look again at the provision and come back at Third Reading on the issue.

[Lord McNally]

My Lords, it is very difficult debating against the noble Lord, Lord Beecham. He is such a reasonable man who puts forward such reasonable arguments. I sometimes think that surely he must be on the Lib Dem Benches. But no, there he is.

[Lord Beecham]

Perhaps the Minister should seek treatment for this condition of confusion.

[Lord McNally]

I asked for the House of Commons Hansard for 1 November. I could have picked quite a few but I shall pick one for the House to catch the flavour. As I have said, I have been faced with such unanimity today. Mr Sadiq Khan said:

“No amount of smoke and mirrors can disguise the fact that, by abolishing indeterminate sentences, he”—

the Lord Chancellor—

“is risking the safety of communities in each and every constituency”.—[Official Report, Commons, 1/11/11; col. 793.]

You can imagine him banging the Dispatch Box and a growl of “Hear, hear” coming from behind him. That is the difficulty we have in this. Quite frankly, if the noble Baroness, Lady Mallalieu, or perhaps my noble friend, was dishing out awards for political posturing, it would not be to only one side of the House or to this end of the corridor. I am also a little—

--- Later in debate ---

[Lord Dholakia]

My Lords, I can assure my noble friend the Minister that this is a reasonable amendment from a reasonable Liberal Democrat.

The purpose of the amendment is twofold. It would retain the current position whereby prisoners serving extended sentences are released after serving half their sentence, but it would also give the Minister an opportunity to explain the reasoning behind the provision in the Bill that offenders with extended sentences should in future have to serve two-thirds of the custodial term in custody before release compared with serving half the term, as they do at present.

Up to now, the point of an extended sentence has not been to increase the period that offenders spend in custody. Extended sentences are intended to make sure that, when offenders who pose a risk to the public are released, they are subject to a longer period than usual of post-release supervision on licence. This means that they are subject to restrictive conditions and controls at the same time as being provided with constructive, rehabilitative help. If offenders breach a condition on their licence, they can be recalled to prison. It is a very useful provision that means that society maintains control over the offender’s behaviour for a long period.

However, let me say where I see the anomalies. First, the Bill increases the time that an offender given an extended sentence spends in prison. This means that the time that he or she spends under supervision will be correspondingly reduced, which does not make much sense. Surely supervision is an essential element for the rehabilitation of offenders. The second anomaly is that, as the Bill stands, a court wishing to impose an extended period of post-release supervision will be able to do so only if it passes a sentence that also increases the length of time spent in custody before release. My noble friend must have an explanation as to why this provision is necessary.

If a judge does not want to increase the time that an offender spends in prison but wants to make sure that he or she has an extended period of supervision on release, why should they not be able to order this as they can under the current provisions for extended sentences?

If the Government are not willing to leave the release point at half the sentence as at present, will my noble friend agree to consider giving courts discretion over the issue? I am sure that this matter can be looked at before Report. In essence, will my noble friend consider amending the Bill so that a court can specify that the offender must serve either half or two-thirds of the sentence in custody depending on the circumstances of the individual case? The Minister and I are agreed on the final outcome that we all desire. Surely my formula will offer this. I beg to move.

[Lord Beecham]

Perhaps the Minister could indicate what assessment has been made of the effect of the new extended sentence provision on prisoner numbers and the time that prisoners will spend in custody, as well as the cost. In so far as the indeterminate sentence will, one hopes, reduce numbers when various changes have been made, this measure is likely, like the mandatory provision, to drive up both numbers and costs. Has an assessment been made of that? If it leads to extra costs, how will the Government manage the process? The noble Lord is to be congratulated on the amendment. The current provisions simply do not make sense in the context of what purport to be the Government’s objectives.

[Lord McNally]

My Lords, perhaps I may clarify the point raised by my noble friend Lord Dholakia. The two-thirds release point applies only to the new extended sentence. The court must specify both the custodial term and an extended licence period when it imposes an extended sentence. The offender is released or can apply for release at the two-thirds point of the custodial term. The extended licence will start when the custodial term is concluded, so offenders will receive an appropriate licence period regardless of the point during the custodial term at which they are released. I listened to my noble friend’s idea about discretion. This is not something that courts would have discretion on. They will decide on the appropriate custodial term plus an appropriate extended licence. Yet, as always with suggestions from my noble friend, I will ponder this one between now and Report.

--- Later in debate ---

We will also step up rehabilitative support for dangerous offenders to help them to progress to release as soon as it is appropriate. We are introducing compulsory intervention plans for these offenders while they are in prison so that they are supported to change their ways and rehabilitate themselves. Sentence plans will include appropriate interventions, assessed as necessary, to address the risk that the offender presents. Offenders who engage with these requirements should be able to demonstrate reduced risk. I hope, therefore, that my noble friend will feel able to withdraw his amendment.

[Lord Beecham]

My Lords, on a point of clarification, the Minister referred to the impact assessment disclosing that 2,500 fewer people would be in prison. Does that relate to the overall package or to this particular amendment? That was the point that I was raising.

[Lord McNally]

It relates to the overall package and, in that wonderful save-all term, the long term. As we are already seeing, predicting prison numbers is not an exact science.

[Lord Beecham]

Perhaps not now, but could the Minister advise me on the implications of this amendment in terms of numbers, as opposed to the generality to which he has referred?

[Lord McNally]

I do not have a specific number, but I will write to the noble Lord and make it available to the House.

--- Later in debate ---

[Lord Ramsbotham]

My Lords, I gave notice of my intention to oppose that the clause stand part in order to be consistent with my now failed hope that the Government would accept the earlier amendments on the IPP. As they did not, it is obviously irrelevant now to say that the clause should not stand part. I shall therefore not oppose it. For all the reasons that the noble Lord, Lord Thomas, outlined, the clause contains some very important measures which provide the Secretary of State with tools to bring about many of the things that we hope will happen to the IPP sentence.

[Lord Beecham]

My Lords, this amendment is perfectly sensible. Before we get to Third Reading it would perhaps be helpful, if it is at all possible, to have a clear indication of how the Government propose to proceed. Presumably it will not be long before the affirmative resolution procedure is put into place once the Bill is enacted, and that might just allay some doubts around the House and outside it about what is likely to happen. Subject to that, we certainly take the view that it is sensible to proceed on the lines set out in the amendment.

[Lord McNally]

I am grateful for that. As to what I was watching on Saturday afternoon, being a gentle soul, I take the view that rugby is a gentleman's game played by hooligans. I am not as keen on watching it—the violence is too much. I am glad, however, that everybody has noticed the point of Clause 117. It goes back to what I said before in that analogy about disarming the time-bomb. We need a little flexibility and a chance to see how the present probation rules apply, but this gives the Secretary of State the opportunity to adjust what we are doing in the light of the experience of the overall reform of IPP. I am therefore grateful for the support from all sides of the House and I hope that Clause 117 will stand part of the Bill.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Beecham Excerpts

Tuesday 7th February 2012 Lords Chamber

[Lord Judd]

My Lords, I must apologise for not having been in my place when the noble Lord, Lord Wigley, was moving his amendment; however, as I have put my name to the amendment, I hope that with the leave of the House I might make just two observations.

First, it has been said that it is not appropriate to tell the courts what to do because they know what to do. That is a fine sentiment in some ways, and I pay due respect to the sincere professionals who make the courts system work. The issue is whether the court has enough information in front of it to make a proper decision in view of the circumstances and consequences of what it may decide. The amendments are therefore dealing with a rather different point.

I also want to make this observation: of course, when the court has before it someone who is about to be sentenced, I am sure that there is a punishment to be made; but if we are sensible and rational beings, and the courts are working well, it is also essential right from that moment to be thinking about the rehabilitation of the individual so that they can become a positive citizen. That is why the quality and depth of the probation service’s report is crucial; otherwise, we slip into a sort of factory system of justice whereby there is an automatic response to a case. One has to try all the time to look at the individual and at how the sentence can be tailored to enable that citizen not only to be punished but to start the process of rehabilitation and join society as a responsible citizen.

If we are concerned about future crime, there is nothing more absurd and wasteful than not to take fully into account the implications for the dependants, because we may otherwise find that the court, by not having paid sufficient attention to the needs of the dependants, has inadvertently contributed to the next generation of offenders in that family.

[Lord Beecham]

My Lords, we on the opposition Benches support both amendments and congratulate the noble Lord, Lord Wigley, and his cosignatories on bringing them forward. I have not the slightest doubt that any court presided over by the noble Lord, Lord Faulks, would not only know what to do but actually do it. However, that is not necessarily universally the case, and the Justice Select Committee in July 2008 raised concerns about the fact that pre-sentence reports were not requested frequently enough. It also raised doubts about the adequacy of those reports when they were presented; so there is clearly a problem in some courts some of the time, and it is sensible to make provision along the lines of both amendments.

An amendment precisely along the lines of the second amendment was moved in the Commons by Helen Goodman MP. It is surely essential for the courts to give due consideration to the effect of sentencing on dependants, not only from the point of view of those dependants but—given that we are necessarily talking about costs all the time—to avoid the costs that may arise from, for example, having to take children into care or the long-term damage that may be done to families, particularly but not exclusively in the context of mothers being sentenced to imprisonment.

The noble Lord, Lord Wigley, rightly referred to the fact that there is a high suicide rate among women prisoners. There is also an alarmingly high rate of self-harm. After all, one-third of women prisoners are single mothers; only 9 per cent of children with mothers who are serving custodial sentences are looked after by their father. That is not to say that there may not be other family members who take care of some children in those circumstances, but it is clearly a material factor.

It is of great concern that more than half of women prisoners suffer from severe mental illness, and half have suffered from domestic violence. They are clearly very damaged women. One might feel that children in that family are already vulnerable and exposed to risk. Notwithstanding the experience of my noble friend Lord Clinton-Davis, it is clear that women are not treated in exactly the same way in sentencing, as a higher proportion of first-time offenders among women are sent to prison than men and a higher proportion of women are sentenced for non-violent offences—both significant differences. There is a problem about sentencing of women, and we will be considering that under later amendments. Bearing in mind the higher proportion of those women who have dependent children, the amendment is extremely timely.

The noble Lord, Lord Howarth, raised an issue about the practicality of the situation and cited the experience of last summer, with courts sentencing people to custodial sentences in the middle of the night. It may be that custodial sentences were required. The question arises whether it was necessary for those sentences to take immediate effect without proper inquiry into the background circumstances. I would argue that that was not necessary, whatever the ultimate sentence may have been.

My noble friend Lady Corston has reported extensively on the position of women prisoners. Her report will no doubt be touched on in conjunction with later amendments. The spirit of that report should surely inform the Government’s attitude to these two amendments, which we heartily commend.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, this has been an extremely useful debate and one that has not necessarily followed previous structures where the Minister sits there under fire from all parts of the House. It has been interesting to hear the various experiences, particularly of noble and learned Lords and their opinions on whether the amendments are necessary or add to present practice.

The Criminal Justice Act 2003 sets out when a court must or should request a report. Amendment 175 does not address those provisions, which relate to the duty to explain a sentence after it has been decided. A pre-sentence report is designed to inform the judge or magistrate before they decide on a sentence, while the clause relates to duties to explain the sentence that is being imposed.

Nevertheless, under the system now in place, a pre-sentence report to the court by the probation service sets out a recommendation for sentence based on the background and the risk posed by the offender. The report will set out any factors relevant to the offending. That will include a history of alcohol or drug dependency or any home life factors that might be relevant. That report is, in effect, what one would understand by the term “social history”. Of course, the court would also have in front of it a print-out of previous convictions and it would decide which of these were relevant to the case.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Beecham Excerpts

Wednesday 1st February 2012 Lords Chamber

[Lord Thomas of Gresford]

I am sure that my noble friend would agree, however, that protective costs orders are matters of discretion for the judge who hears an application, and that the threshold is extremely high. In his particular case, he obviously advanced matters of considerable public interest that were much wider than only the issues in the litigation that affected his clients. So a protective costs order can be applied for in such cases. However, I was involved in the case following the flooding of houses at Aberfan that occurred as the result of the spoil banks placed there after the disaster. In that sort of case, where individual householders were affected, protective costs orders would not have met that threshold.

[Lord Beecham]

My Lords, at the risk of being accused of unqualified one-way sycophancy, I must again congratulate the noble Lord, Lord Thomas, on the clarity of his presentation of this complex issue. Although I somewhat dissociate myself from the preamble to the substantive part of his speech, I entirely concur with his amendments. At this stage, I should also express my thanks to the learned counsel whose advice has instructed me in a matter about which, hitherto, I knew nothing. Aarhus meant absolutely nothing to me up till now. It seems that I may have shared that failing with Her Majesty's Government. We shall see from the Minister’s reply whether that is a correct inference or not.

The noble Lord referred to the ClientEarth case in which the Aarhus Convention Compliance Committee observed that the cost rules pertaining in the United Kingdom placed it in systemic breach of Article 9.4 of that treaty. The committee concluded that we had not as a country adequately implemented our obligation to ensure that procedures are not prohibitively expensive. Counsel's opinion, to which the noble Lord referred, identified two particular issues. The first is that of uncertainty. The second is the sheer amount of the defendant’s costs that might fall on unsuccessful claimants. The noble Lord referred to the case of Barr and Biffa waste company, which arose from a complaint about odours emanating from a landfill site, where the costs were indeed nearly £3,250,000.

Lord Justice Jackson has much to say about those issues. His remedy is, as the noble Lord pointed out, a move to qualified one-way cost shifting. He gave six reasons for his conclusions, which are germane to the thrust of the amendments. He said:

“This is the simplest and most obvious way to comply with the UK’s obligation under the Aarhus Convention in respect of environmental judicial review cases”.

He continued:

“For the reasons stated by the Court of Appeal on several occasions, it is undesirable to have different costs rules for ... environmental judicial review and... other judicial review cases”.

His third reason was that the requirement for permission,

“is an effective filter to weed out unmeritorious cases. Therefore two way costs shifting is not generally necessary to deter frivolous claims”.

They simply do not arise. His fourth point was that,

“it is not in the public interest that potential claimants should be deterred from bringing properly arguable judicial review proceedings by the very considerable financial risks involved”.

He pointed out that:

“One was costs shifting in judicial review cases has proved satisfactory in Canada”.

His final point, which goes to the issue raised by the noble Lord, Lord Lester is that the protective costs order regime,

“is not effective to protect claimants against excessive costs liability. It is expensive to operate and uncertain in its outcome. In many instances the PCO decision comes too late in the proceedings to be of value”.

So with respect to the noble Lord, the protective costs order regime is not, in the view of Lord Justice Jackson, an answer to the difficulty.

[Lord Lester of Herne Hill]

I hesitate to disagree with the Lord Justice, but I do not understand that point, as one can apply at the very beginning, a very early stage, for a protective costs order—certainly in judicial review proceedings. I do not know why he thinks that it is too expensive or comes too late, because that has not been my experience.

[Lord Beecham]

I cannot answer for Lord Justice Jackson, but that is a subsidiary point. His point is that it is expensive to operate and uncertain in its outcome. Therefore, he regards it as an inadequate protection to the one-way costs shifting which the noble Lord, Lord Thomas, has rightly advanced as the best way to deal with these matters. Lord Justice Jackson’s approach was, as counsel’s opinion, to which the noble Lord and I have both referred, makes clear, endorsed by Lord Justice Sullivan’s working party, which was very clear in stating:

“An unsuccessful Claimant in a claim for judicial review shall not be ordered to pay the costs of any other party other than where the Claimant has acted unreasonably—

to go back to the noble Lord’s earlier point—

“in bringing or conducting the proceedings”.

--- Later in debate ---

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, I am most grateful to the noble Lord, Lord Thomas, for his usual thorough presentation of these amendments and for sending me this opinion of learned counsel, which, as he rightly said, was delivered only 24 hours ago. Even though, as the noble Lord, Lord Bach, will know, the Ministry of Justice is one of the most efficient and speedy departments in Whitehall, the matter is still in the hands of my advisers, and I am sure that we will take it on board. In passing, I should say that I had to clear another piece of paper the other day about asking the advice of learned counsel, and I saw just how much it costs to ask for such advice, so I thank the noble Lord for such an expensive gift.

I was also interested in the confession of my noble friend Lord Lester about accepting success fees. As the debate has unfolded, it has occurred to me that this is indeed a money Bill, but perhaps not in House of Commons terms. Let me also deal with another canard or slur that has been put across the Chamber from the noble Lord, Lord Beecham: that the Aarhus convention is something new to the Government or to government Ministers. Perhaps I can draw his attention to the fact that on 19 October, we in the Ministry of Justice sent out a consultation paper, entitled Cost Protection for Litigants in Environmental Judicial Review Claims, with the specific aim of enabling the UK to implement its obligations under the Aarhus convention. Yet again, when the facts are known, it is clear that the Government are on the case, on the ball and moving forward, despite the attempts of the Opposition to say otherwise.

[Lord Beecham]

It is said that they are in breach of their obligations under the convention.

[Lord McNally]

As I said, we are consulting. I shall return to the question of getting it right. The problem is that the noble Lord, Lord Beecham, is impetuous in so many ways, whereas this Government are determined to get things right—you can see the advice that I get on getting things right.

On Monday, we spent some time discussing QOCS and we heard the concerns of my noble friends and others that the matter should appear in the Bill. This afternoon, I do not want to repeat the more general arguments on these matters, but we need to get the details and the rules right to ensure that they are tailored properly in respect of the category of proceedings to which they apply. For example, in personal injury cases, it may well be that there should not be an initial financial test. However, the position is likely to be different for defamation, and perhaps for environmental cases too, which typically involve more than one claimant—sometimes many claimants. In such cases the costs involved can impact considerably on the ability of the public bodies that are under challenge to perform their general functions.

As the noble Lord, Lord Thomas, explained in moving his amendment on Monday, he was looking for specific words rather than words like “unreasonable”, which he said had such a broad meaning. Indeed, the noble and learned Baroness, Lady Butler-Sloss, added that the word “unreasonable” was liable to cause serious difficulties of interpretation and yet, as the noble Lord, Lord Thomas, has confessed, the word “unreasonably” is in Amendment 157.

It is precisely for those reasons that we are not yet ready to crystallise in statute, and ring-fence away from development in rules, words which are more properly left to the rules, where they can follow detailed discussions with stakeholders. They can be tailored and nuanced for the particular category of proceedings and, of course, the Lord Chancellor will remain accountable for the policy on these issues which is reflected through the Civil Procedure Rules.

Amendments 141, 147, 148, 149 and 150 deal with the recovery of ATE insurance premiums in respect of environmental claims under the Aarhus convention. Amendment 157 would introduce a new clause to provide for costs protection in the form of qualified one-way costs shifting—QOCS—for claimants in environmental claims and, it would appear, for all judicial review claims, whether concerning environmental issues or not.

The Government are, of course, conscious of their obligations under the Aarhus convention. Put simply, the convention requires us to ensure that parties have access to a procedure to challenge relevant environmental decisions that is, among other things, not prohibitively expensive. How we discharge those obligations has been a matter of debate for some time. It was addressed by Lord Justice Jackson in his report and was considered in a number of cases in the High Court and above. Amendments 141, 147, 148 and 149 seek to allow ATE insurance premiums to be recoverable from the other party in these cases. As I indicated in our debate on Monday, the Government's policy is that ATE insurance premiums should no longer be recoverable except in the particular instance of clinical negligence expert reports. Therefore, we do not favour this or any other extension of ATE premium recoverability.

Amendment 157 seeks to apply QOCS to environmental claims, subject to qualification in respect of unreasonable behaviour. The proposed clause would displace any rules of court in this area and provide for the Lord Chancellor instead to have the power to make regulations to extend QOCS to other areas in future. That seems to be something of a departure from the general principle that in civil proceedings, matters relating to costs are regulated in detail by rules of court. It is not clear why the departure would be beneficial.

As noble Lords are aware, the Government are introducing a regime of QOCS in personal injury cases to help balance the impact of the changes to no-win no-fee conditional fee agreements, and in particular as an alternative to “after the event” insurance. Claimants will continue to be able to take out ATE insurance if they wish, but they will pay the premium, which will be lower than the rolled-up premiums presently never paid by anyone other than a losing defendant. Although Lord Justice Jackson suggested that QOCS might be considered for use in some non-personal injury claims, the Government are not persuaded that the case for this has yet been made.

I noted the dispute between the noble Lord, Lord Beecham, and my noble friend Lord Lester about protective costs orders, which are also part of this consultation. As a matter of principle, the Government’s view is that protective costs orders can provide appropriate costs protection in environmental cases. Environmental organisations and the working group chaired by the then Mr Justice Sullivan, to whom noble Lords referred, expressed a preference for QOCS, having argued, including in a submission before the Aarhus Convention Compliance Committee, that an appropriate PCO regime could provide full compliance with the requirements of the convention. With a PCO, it will be clear from the outset what costs the claimant will have to pay if their claim is unsuccessful, while ensuring that some contribution is made toward the costs of public bodies that have successfully defended the claim. As I said, we have consulted on the issue.

The Ministry of Justice consultation Cost Protection for Litigants in Environmental Judicial Review Claims outlines proposals for a cost-capping scheme for cases that fall within the Aarhus convention. The consultation closed on 18 January and we will announce the way forward in due course.

--- Later in debate ---

[Lord Beecham]

My Lords, this has been a short but interesting debate. I shall not detain the House long. I very much welcome the contributions by my noble friend Lord Davies, the noble Lord, Lord Boswell, and in particular the noble and learned Lord, Lord Mackay. I have some sympathy with my noble friend’s approach; he sees in third-party funding arrangements an alternative source of funding for cases that might not otherwise be advanced because of other changes that are in hand. My problem with that is that in effect he is throwing a lifeline to the Government to pursue that very restriction, and that does not serve the cause of access to justice.

The noble Lord, Lord Boswell, rightly drew attention to the concerns about this matter, and the remarks by the noble and learned Lord, Lord Mackay, clearly constitute a significant degree of support for the case advanced by the noble Lord, Lord Thomas. It is clear that we are potentially seeing a sea change in the way that some litigation will be funded in a way that runs contrary to the traditions of justice in this country. I note that the noble Lord, Lord Thomas, referred to hedge funds, and I think he is right; there is a danger here of legal hedge funds, as it were, being created and a secondary market developing, and who knows whence the funding of those organisations will derive? Experience in the United States is not encouraging, as the noble Lord, Lord Boswell, reminded us. I understand that in America, particularly in divorce cases, huge sums are in play.

The noble Lord, Lord Thomas, has done the House a great service in identifying the issues here and in coming up with a viable framework that could be put in place in order to deal with the potential difficulties. I think that the view of the House, from those noble Lords who have spoken, is that a voluntary code simply will not suffice, however well intended the motivations of those who sought to produce one—and they clearly were well intended. There needs to be a more rigorous structure, and the reference by the noble and learned Lord, Lord Mackay, to the Lord Chancellor making regulations, coupled with the ideas set out in the noble Lord’s amendment, offer a way forward.

If at this stage the Minister cannot give a clear nod to the amendment, and I can understand if he cannot, then I hope at least that further discussions can be held on the matter and an agreed position put forward on Report. We do not want this genie getting out of the bottle, to which it could not be returned, by default. There are issues here of great significance and we hope the amendment will provide the basis for taking matters forward in a way that can be agreed across the House—I think there is a general interest across the House in this—to the advantage of litigants and the cause of justice itself.

[Lord McNally]

My Lords, in 1962—which is now, sadly, 50 years ago—part one of my degree course contained a subsidiary paper on English legal institutions. About the only thing I can remember from that course is the concept of champerty and maintenance. It therefore came as something of a shock to be told that it no longer applied, and indeed had not applied for some time.

--- Later in debate ---

[Lord McNally]

I think I had better get on to the brief.

[Lord Beecham]

Could the noble Lord offer his services to the Office for Budget Responsibility?

[Lord McNally]

My Lords, this has been an interesting and useful debate and I am grateful to my noble friend for outlining the matter with his usual thoroughness. Third-party litigation funding has developed and—to use the phrase deployed by the noble Lord, Lord Boswell—there is a welling up of disquiet about it. The noble Lord, Lord Davies of Stamford, takes what I would describe as the Robin Hood approach to this matter and views it rather optimistically as a way for the rich to help the poor. The noble Lord, Lord Boswell, was a little more sceptical about that scenario and drew on his American experience of how the process works. I think that people are a little worried when investors and investment opportunities are mentioned—the noble Lord, Lord Davies, mentioned that matter—when we are talking about the law.

I was delighted to hear the noble and learned Lord, Lord Mackay of Clashfern, mention Lord Simon of Glaisdale, who I remember speaking from the Cross Benches. You used to see the colour draining from a Minister’s face as he realised that Lord Simon of Glaisdale had thoroughly read and filleted the relevant Bill and knew exactly the contradiction in the government amendment that he was about to dissect. I experience that same feeling of foreboding whenever the noble and learned Lord, Lord Mackay, rises to speak. The noble and learned Lord said that Lord Justice Jackson could not be criticised for his brevity. All I can say to him is that Lord Justice Jackson is not alone among lawyers in that failing. I look at no one in this House in saying that.

Like other noble Lords, however, I take on board the noble and learned Lord’s point about the need to exercise caution in this matter. I think that the noble Lord, Lord Beecham, caught the mood of the House when he referred to the concept of legal hedge funds being established and cases being bundled up as investment opportunities as something that gives rise to rightful concern.

The code of conduct was drawn up with the specific requirement that the matter would be revisited if and when third-party funding expanded. It is a question of whether it has now expanded to a point where the matter should be revisited. As the noble Lord, Lord Thomas, explained, the Civil Justice Council published a voluntary code of conduct for litigation funders on 23 November. It was drawn up with the co-operation of the Association of Litigation Funders.

What I can say is that some serious points have been made during this debate, to which I have listened extremely carefully. My right honourable and learned friend the Lord Chancellor would like further time to reflect on these matters. They are serious, and some serious and worthwhile advice has been given. I see that the noble Lord, Lord Davies, is about to leap to his feet, and perhaps I may say that there was good and useful advice on both sides of the argument. I ask my noble friend to withdraw his amendment so that the Lord Chancellor can reflect on this issue. I shall not sit down if the noble Lord, Lord Davies, wishes to intervene.

--- Later in debate ---

Moved by

[Lord Beecham]

164A: Clause 54, page 39, line 20, at end insert—
“and in either case, the regulated person and the person by or to whom the business is referred, each act in the course of a business carried on for profit”

[Lord Beecham]

My Lords, the amendments in this group refer to referral fees. Recent years have seen an explosion of growth among what might best be described as parasitic commercial organisations—claims management companies and the like—seeking to obtain part of the financial stream that flows when litigation occurs by charging for the referral of clients to lawyers. Paradoxically, it might be thought, some of this is fuelled by the very insurance companies that complain about the compensation culture and the costs of litigation. Clause 54 very properly seeks to prohibit referral fees to and by regulated persons, who will include claims management companies, lawyers, insurers and perhaps others. Perhaps slightly counterintuitively, for the purposes of the legislation a referral fee need not take the form of a payment, but could, for example, be an offer by a lawyer to take on work at a reduced rate or for no fee. However, the potential for abuse of the system is apparent, and the Bill seeks to address it.

The amendments tabled in my name and in the names of other noble Lords seek to improve the wording of the Bill. Perhaps I may briefly outline what they do. Amendment 164A would exempt not-for-profit organisations from the operation of the ban on referral fees. It would take them outside the category of regulated person for the purposes of the ban. Of course, there will be many membership organisations—charities, for example—that will come into that area. I understand that some charities refer people for legal and medical advice and any sums arising from those referrals go back into the work of the charity or the membership organisation. That seems a perfectly reasonable category to take out of the provisions of the Bill.

Amendment 164B is a consequential amendment making it clear that regulated persons would be businesses carried on for profit. It is a corollary of Amendment 164A, as is Amendment 164C, which is another consequential amendment. More substantively, Amendment 166 provides:

“A regulated person is not in breach of this section if … that person is a solicitor; and … the body to which the payment is made for the prescribed legal business is a registered charity that has been granted an exemption by the claims management regulation unit”.

Again, both the person making the payment—the solicitor—and the body receiving it—the charity—would be taken out of the scope of the provision.

We support Amendment 166ZA, tabled by the noble Lord, Lord Pannick. The noble Lord will of course address this matter, but the thrust of the amendment seems to be to except from the ban a referral from one solicitor to another. This can easily arise in the course of practice where a case, either from the outset or it becomes apparent, is somewhat beyond the experience and expertise of a particular firm but a good deal of work may have been done on it and in any event it is not unreasonable for a referral fee to be paid.

Perhaps more significant is Amendment 166ZB, in the names of the noble Lords, Lord Martin of Springburn and Lord Elystan-Morgan, and my noble friend Lord Collins of Highbury, which would take out of scope of the ban the relationship between trade unions and their members. I speak with long experience of these matters because I personally acted—the firm, for which I am now an unpaid consultant, continues to act— for a number of trade unions. The relationship there is not simply the passage of a name of a member but, as your Lordships will no doubt hear, one in which a good deal of administration is required and where the union is performing a service on the part of the member that will ultimately benefit the conduct of the case and therefore the solicitors involved in it. Again, it seems quite reasonable in that instance that a fee might become payable and it is unnecessary to bring that sort of relationship within scope.

Finally, Amendments 169 to 171 to Clause 56 are connected amendments. Instead of allowing the Treasury to make regulations enabling the Financial Services Authority to monitor and enforce compliance, they make this an obligation. Amendment 169 substitutes “shall” for “may” and Amendment 170 requires rather than enables the FSA to take action. Similarly, under Amendment 171 it would become a requirement for the Treasury to make rules outlining circumstances where payments are not to be treated as a referral fee. This echoes the Lord Chancellor’s powers proposed under Clause 55(8).

None of this seeks in any way to detract from the thrust of the Bill’s proposals but rather tailors them to the realities of the issues that the Bill seeks to address and to make better sense of what is in principle a sound proposal that the Opposition support. Accordingly, I beg to move.

[Lord Pannick]

My Lords, Amendment 166ZA in this group is in my name. I am grateful to the noble Lord, Lord Beecham, for expressing support for it.

The amendment would exempt solicitor-to-solicitor referral fees from statutory prohibition. I am puzzled as to why the Government think it is appropriate to impose a statutory prohibition on such referral fees. I am puzzled for two reasons. First, there is a public interest in solicitors having an incentive to transfer a case—with the consent of the client, of course—to another solicitor; for example, if the latter solicitor has greater expertise or if the former solicitor will not be able to deal with the case expeditiously. Secondly, any such referral fees from one solicitor to another are regulated by the SRA, which has ample powers to impose sanctions on either of the solicitors if there were any abuse of proper professional standards to the detriment of the consumer.

I ask the Minister—and it is a genuine inquiry—why, in the light of these factors, it is necessary or appropriate to regulate referral fees paid directly from one solicitor to another.

--- Later in debate ---

[Lord McNally]

It might. Some of them sound like coffee bars rather than trade unions these days, but perhaps that is part of the marketing. Certainly, the case of the trade unions was made very strongly by those who intervened. The service that trade unions provide their members no one gainsays—it is important—but we do not believe that that link between referrals and certain legal firms should be exempted from a general ban on referral fees. There must be those who have worked for trade unions who do not pay referral fees. I do not know. As a layman, I see referral fees as a distortion of the market, but there is nothing to stop trade unions having a good close working relationship with particular law firms. Some have had long-standing relationships. However, I cannot tell the House that we are willing to make an exception.

The noble Lords, Lord Pannick and Lord Clinton-Davis, referred to the payments by solicitors to other solicitors for the transfer of prescribed legal business, and we believe that that argument is rational and sensible. If for any reason a solicitor decides that a piece of business needs to be transferred, perhaps for the geographical reason that the noble Lord, Lord Clinton-Davis, gave or because the solicitor realises that it is beyond the competence of his or her firm, it would be perfectly reasonable to see a transfer. When the transfer is made, the solicitor concerned is able to claim an appropriate amount of money for the work dispersed before the transfer was made. We accept that logic. However the Government’s view is that reasonable payments of this type are not captured by the ban as long as they only cover the work undertaken by a firm in respect of the claim prior to it being transferred to a new firm. If there is a referral fee element to the payment, this would be subject to the referral fee prohibition and is a matter best dealt with by the regulator rather than by legislation.

Although I know that parts of this reply will disappoint noble Lords, we appreciate the widespread support for our ban on referral fees. We believe that this is the best way to lead our proposal to provide the most effective and proportionate way of preventing payment for personal injury claims and squeezing a bad practice out of the industry. We therefore invite noble Lords not to press their amendments.

[Lord Beecham]

My Lords, the noble Lord, Lord Hunt, has signified his support for the Government, but he is the only Member of your Lordships’ House who has done so in respect of these amendments. We have had some powerful speeches from a variety of people with an interest in and experience of litigation of this kind: distinguished lawyers such as the noble Lords, Lord Pannick and Lord Elystan-Morgan; people with direct experience of the shop floor, such as the noble Lord, Lord Martin; people with a lifetime in the trade union movement, assisting members and no doubt helping them to make their legitimate claims for compensation and advice, such as the noble Lords, Lord Collins and Lord Monks; and the noble Lord, Lord Alton, with his extensive experience of the voluntary sector. They have all made a very clear case for exempting trade unions and charities from the restrictions of this Bill.

We agree that there is a problem with the referral of claims and the industry that has grown up around them. That is commercial exploitation, which may well lead to expectations being aroused and cases perhaps being brought that should not be brought. That is why we support the thrust of the Government’s proposals. However, the Government and the noble Lord appear to be comfortable with third-party funding of litigation—subject, as we have heard and discussed in a previous debate, to possible regulation—but not at all comfortable with an arrangement by trade unions or charities for a referral fee for passing instructions, and no doubt assistance as well, to solicitors that they are recommending on behalf of their members. There is an element of quality assurance in that too. I do not understand, in this context, what the evil is that the Government’s proposals on referral fees are supposed to be curing. Who loses by the process that is being advocated in these amendments by those who support them? Where is the loss? There is no loss to the public purse, the insurance industry or defendants. There is no loser. It is not at all analogous to the commercial exploitation about which we spoke.

This curious matter, to which I referred in moving the amendments in the first place and which I will take a little further now, arises under Clause 54(8) , which provides that:

“Payment includes any form of consideration (but does not include the provision of hospitality that is reasonable in the circumstances)”.

You can take somebody for a drink but you cannot provide any other service. Page 47 of the Explanatory Notes says:

“Subsection (8) provides that a referral fee can be any form of consideration (which would include, for example, an offer by a solicitor to take on other work at a reduced rate or for no payment at all), other than normal hospitality”.

As part of my firm’s relationships with trade union clients, I used to offer a free will to a client for whom we acted after being referred to us by a trade union. We would offer free initial advice about other matters not connected with their personal injury claim, such as a matrimonial, employment or even a criminal matter. All of that would be caught by the Bill as it stands and as set out in these Explanatory Notes.

--- Later in debate ---

[Lord Thomas of Gresford]

My Lords, before the noble Lord does what he is going to do with his amendment, I just make one comment. He said that the Minister was on his own. When I was a young solicitor, I would have given my eye teeth to secure some union work. I did some at the Bar, but it was very difficult in a small firm to compete with a large firm, as I am sure the noble Lord will agree. If I thought I had to pay money to the union to get their work, that would have made it considerably worse. The money that is paid to the union by the lawyer is ultimately reflected in the hourly rate that the lawyer charges to his client—it eventually falls on the client, or on another client. It is not just disappearing or being absorbed by the large firm.

[Lord Beecham]

Not all firms are large firms, and it will not surprise Members to know that my firm was not—and is not—a large one. However, we have had that kind of relationship. The profitability of firms conducting litigation of this kind is not high in any event, even without the question of referrals. I do not think that there are the kind of consequences that the noble Lord assumes to be the case. Equally, organisations with members seeking to derive the best service that they can for their members ought to be free to do that. I repeat that I do not think this Bill is at all on the right lines in what it is seeking to do. I again respectfully direct the Minister’s attention to the peculiar circumstances that subsection (8) proposes.

I was going to finish by commending again the amendment tabled by the noble Lord, Lord Pannick, about solicitor-to-solicitor arrangements. He made a very strong case there, and I regret that the Minister seems to have just dismissed it out of hand. Certainly—

[Lord McNally]

I ask the noble Lord to read Hansard tomorrow. We have made it extremely clear that we do not think that the kind of relationship outlined by the noble Lord, Lord Pannick, will be caught by this ban. It will be regulated by the Solicitors Regulation Authority, and I hope my statement from the Dispatch Box will give it some help in carrying out that duty. The Government do not believe that that kind of relationship, where a solicitor transfers business and takes a reasonable charge for the work already done, is covered by this ban.

[Lord Beecham]

I do not think it is necessary to confine the payment to precisely the basis that the noble Lord identifies.

[Lord Phillips of Sudbury]

In the new, highly commercial context within which soliciting is carried on today, and in an era when we have these alternative business structures where we can be owned by virtually anybody, does the noble Lord not think that there is a real risk that some of these new ABSs will, as a matter of business, solicit work if they can then pass it on subject to a substantial referral fee? I can see that in the offing.

[Lord Beecham]

I can see a case for regulating the fees. I am not an enthusiast for alternative business structures as the noble Lord has defined them. But in any event, we are not discussing soliciting as such—despite the noble Lord’s use of the phrase. We are talking ultimately about a system that has been used successfully from the point of view of trade unions, charities and their members, as well as the professions, for some time. The Bill is seeking to intervene because of a different set of circumstances and set of relationships, with different causes and consequences. If there is no movement on this we will have clearly have to return to the matter on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment 164A withdrawn.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Beecham Excerpts

Monday 30th January 2012 Lords Chamber

[Lord Beecham]

My Lords, I speak rather earlier than I might have expected. I congratulate the noble Lord, Lord Thomas of Gresford, on the lucid way in which he has presented a very complex argument on very complex issues. I do not entirely agree with everything that he said, but the Opposition and I have considerable sympathy for a good deal of it.

This House is familiar with Henry VIII clauses, but in the year of the World Shakespeare Festival this Bill could perhaps best be described as a Henry VI Bill, since it is in three parts. This is Part 2—and in Part 2 of “Henry VI”, there is the famous phrase:

“The first thing we do, let's kill all the lawyers”.

I cannot recall whether that was part of the coalition agreement or the extent to which it would in any event receive approval from a majority of your Lordships.

However, it is necessary for me to give an opposition view of the generality of the case and then speak more particularly about the amendments tabled in my name and the name of my noble friend Lord Bach. I want to be clear that the Opposition agree that costs in litigation are an issue and have to be dealt with. Equally, we dislike the claims management industry and the commercial referral fees charged by companies seeking to promote litigation. We would go a long way with the Government in restricting the scope of conditional fee agreements, success fees and the like in relation to road traffic accident cases, most of which are settled and with relatively modest damages. I would extend that to slip and trip cases as well, which are much the same category. We agree with the noble Lord and indeed with Lord Justice Jackson in promoting qualified one-way cost shifting for all cases and not just for personal injury claims, as the Bill proposes. However, there is a concern about “after the event” insurance, particularly if QOCS were to be limited.

In passing, the noble Lord, Lord Thomas, referred to positions where there is no incentive on claimants to settle, but of course insurers like to have it both ways. They charge, it appears inflated, premiums for “after the event” insurance but then seem to want to shift the cost on to claimants. In exactly the same way, they complain about whiplash injury claims but sell details of possible claimants to claims management or claims referral companies, so one’s sympathy with the insurance industry is tempered by the experience of what it actually does.

There are, however, principles that need to be borne in mind. The overriding principle should be that successful claimants should not see the compensation on their loss eroded by meeting the costs of the insurance, or indeed the success fee in the event of a successful claim. The noble Lord did not deal with the myth of the compensation culture—perhaps he does not have to—but it is a myth, as the noble Lord, Lord Young, made clear in his own recent report to the Government. The fact is that there has been something like a 14 per cent reduction in civil claims cases in the past year and a four-year downward trend in the number of claims brought, but the principle must surely be to maintain access to justice for people of modest means. That was the whole theory behind the changes made under the Access to Justice Act and the introduction of conditional fee agreements.

The Access to Justice Action Group surveyed 69,000 cases in the light of the Government’s proposals and concluded that around a third of those would not be brought if the legislation were to go forward in its present form. Given that we are seeing savage reductions in legal aid, so that the very poorest in any case would be in great difficulties, we are perhaps now seeing a returned-to category of what might be called the legally squeezed middle. Interestingly the same survey showed that around 50 per cent of those who would in effect be expected to bear success fees, and if necessary the cost of “after the event” insurance, would be around the higher rate tax threshold of £40,000-odd a year—not an inordinately affluent group of people.

--- Later in debate ---

[Lord Wallace of Tankerness]

My plane from Edinburgh, too, was delayed today; I understand the noble Lord's difficulties. He mentioned the arrangement for making offers. Part 36 arrangements were spoken to by my noble friend Lord Thomas when he moved the amendment. I will come to the matter in responding to the debate.

As I indicated, very often these cumulative costs can lead defendants to feel under pressure to settle a claim when they have no legal reason to do so, through fear of incurring payment of excessive costs as the case proceeds.

Without Clauses 43 and 45, high and disproportionate costs in civil litigation will continue. Access to justice will not become more meaningful for all parties, as we intend. If all the amendments to Clause 43 were agreed, the fundamental elements of the Government's reform package would be lost, and defendants would continue to be liable for significant additional costs across a range of cases. It is useful to put the level of costs in some context. My noble friend Lord Phillips pointed out that one general liability insurer indicated that, in 1999, claimants’ solicitor’s costs were equivalent to just over half the damages paid; by 2004, average claimants’ costs were roughly the same as the damages; and, by 2010, average claimants’ costs represented one and a half times the damages received by the injured victims, and indicated that while average damages paid have increased by one-third since 1999, average claimants’ costs have increased by two and a third times over that period. These figures reflect Sir Rupert Jackson’s findings that claimants’ costs are substantially higher than defendants’ costs, and that claimants’ costs in CFA cases are substantially higher than in non-CFA cases.

[Lord Beecham]

If damages had increased, as recommended in 1999, and kept pace with inflation, that ratio would not be quite as wide, would it?

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[Lord Thomas of Gresford]

Before my noble and learned friend leaves this issue, he knows that my concern is that this amounts to a dialogue between Government and the Civil Procedure Rule Committee, with no input from Parliament whatever, and no guidance to the Civil Procedure Rule Committee on how it should proceed and what the parameters are. What I was seeking to do, in broad terms, with my amendment was to introduce certain specific things—for example, that the word “unreasonable” should not be used in these procedure rules, but we should revert to familiar territory, such as “frivolous”, “vexatious”, “abusive of process” and “fraudulent claim”, actually spelling out where a judge should have a discretion and where he should not. “Unreasonable” has such a broad meaning that it would put any litigant off if he were to be told by his solicitor, “We will take this case forward, but you have got to appreciate that, at the end, the judge may look at it and say that your conduct is unreasonable”. What does that mean?

As I endeavoured to show in my remarks, in explaining that concept in the report Lord Justice Jackson used the term “fraudulent, frivolous”, although he did not use “vexatious”. I am seeking clarity. The Civil Procedure Rules will come out of the air from somewhere and will not have any proper parliamentary scrutiny. They will have been drawn up as a result of discussion between the Executive and the Civil Procedure Rule Committee, which is entirely made up of judges and lawyers. I would have thought that there would be a constitutional position. It is more serious than anything else in the Bill.

The Civil Procedure Rule Committee should have guidance, as elsewhere in this Bill it does. Over and over again in the Bill, we come across regulations being made by the Lord Chancellor. There is specificity about that. But this position is highly unsatisfactory. If the Minister cannot put something in the Bill in the way in which he has described, what assurances will Parliament have that the Civil Procedure Rule Committee will act in accordance with certain principles?

[Lord Beecham]

I absolutely agree with everything that the noble Lord has just said. This is a fundamental change in the way in which litigation is to be conducted. It should not just be referred to a wholly unaccountable, although no doubt extremely worthy, group of people on the rules committee. Obviously, they are very eminent but they are not accountable, in the sense that the normal framework would be, to approve changes of this significance. Perhaps, as he develops his reply, he would deal with the point of restricting this significant change to personal injury cases when Lord Justice Jackson advocated it across the piece. Perhaps he would care also to reflect on a point made when colleagues and I met the Association of British Insurers no less, which, for example, said that it did not support means testing for qualified costs shifting at all. But, as I understand it, that is to be part of the scheme—if that is what presumably the rules committee, since it will not be part of the Bill, will say.

The noble Lord is absolutely right to raise these issues and I hope that the Minister will take this back and think again about how matters are to be progressed given the significance of the change.

[Baroness Butler-Sloss]

Perhaps the Minister will not mind if I add a very few words. I had not intended to intervene but, as a former chairman of a rules committee, I have to say that I have considerable faith in the good sense of the way in which it does its work. But the points that have been made are extremely relevant. It is not really the business of a rules committee to change something so dramatic. As the noble Lord, Lord Thomas of Gresford, has said, I would add that “unreasonable” is extremely difficult. The words used by the noble Lord are the standard words that have been used from time immemorial, as the lawyers say. “Unreasonable” is nothing like as serious as the other term but is liable to cause considerable difficulties of interpretation.

--- Later in debate ---

Moved by

[Lord Beecham]

121: Clause 43, page 30, line 12, at end insert—
“( ) The amendments made by subsections (2) and (4) do not apply in relation to proceedings that include a claim for damages for—
(a) death; or(b) physical or psychological injury,resulting from any breach of duty trespass to the person.”

[Lord Beecham]

I will not detain the House long on this group of amendments, which sets out a menu—perhaps almost an à la carte menu—of cases in which it might be appropriate to depart from the general principle that the Bill advances. In other words, it would extend the success fee exemption into personal injury cases more generally.

Amendment 121 is of a general nature and perfectly straightforward. It is my understanding that, at the time when the changes were introduced to legal aid for personal injuries and the initial scheme established under the Administration of Justice Act and Access to Justice Act 1999, reservations were expressed by the then Opposition—both parts of it—which I personally shared at the time and still share. I have already outlined the problems that we have with the nature of the uplift and deduction that is contained in the Government’s proposals. I shall not expatiate on those any longer.

Amendment 122 looks to complete exemption for employment liability personal injury cases. These are usually intrinsically more difficult than, for example, the RTA case, which all of us agree should not carry the position in relation to success fees and the like that currently apply. Certainly, as a practitioner who spent a lot of time on those cases, I would have thought that there was a strong case for taking those out of the arrangements proposed by the Bill, and that success fees and ATE insurance should rest where they currently do on defendants.

Amendment 129 looks at a different category of case—cases of maximum severity on which the Judicial Studies Board guidelines lay down parameters. These cases are necessarily more complicated, certainly in relation to disbursements and the like, and generally heavier to promote than the conventional claim. It may be that in those cases a different regime should apply.

Amendment 130 deals with the case of occupier’s liability. There are not all that many personal injury cases arising out of occupier’s liability claims. I am advised that there was a watering down of protections under the Occupiers' Liability Act 1984, although I have to confess that I do not recall quite how much watering down took place at that time. Nevertheless, these are cases in which, again, there are rather more involved in pursuing them than in a straightforward claim and this is also a possible case for modifying the general approach of the Bill.

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[Lord Beecham]

Well, I am sometimes guilty of blundering, but a good example of psychological injury would be post-traumatic stress disorder, which is not at all uncommon in the case of severe accidents. That is the sort of territory. This is a fairly conventional term in personal injury litigation.

[Lord Newton of Braintree]

As a non-lawyer trespassing with great trepidation into this lawyers’ paradise territory I am prepared to accept that, but to a layman “physical or psychological injury” as a definition of any serious kind would cover pretty well anything. If I am told I am wrong then I will accept that, but at the moment I think it is in doubt.

Having made that point, which will indicate that were there to be any question of pressing some of these amendments to a vote—I understand that there is not—then my noble friend on the Front Bench will be thrilled to hear that I would not be minded to support them, I turn to the more positive point about Amendment 156A and the amendment later on of the noble Lord, Lord Alton, relating to asbestosis. I have some experience of claims relating to that disease—or rather to mesothelioma, the form of cancer to which it often gives rise—in my capacity as both Minister for Disabled People and Minister for the industrial injuries compensation scheme, and latterly as chairman of a hospital sometimes concerned with these respiratory diseases. I think there is a real case for wondering whether we should not maintain assistance to that group of people.

There are two reasons for that. One is that this condition is what you might call very slow burn. Exposure to asbestos that occurred very many years ago may give rise much later to mesothelioma, one of the nastiest forms of cancer. In consequence, there could be significant difficulties in proving the causation. Therefore, there is a case for making sure that legal aid is available in such cases. The nature of this disease and the problems associated with it also make a strong case in ordinary human terms for ensuring that people who have contracted it through no fault of their own as a result of something that happened during their employment should be helped to establish whether their employer could be held liable for that, or, indeed, whether they should get compensation in any other way. Therefore, I hope my noble friends on the Front Bench will not consider that this amendment would have a scattergun effect but that it is well targeted and deserves careful consideration. I hope that the noble Lord, Lord Alton, will make his case alongside mine in an hour or two or whenever we reach the relevant amendment.

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[Lord Wallace of Tankerness]

My Lords, perhaps I may deal with Amendments 121, 122, 129, 130, 134, 136A, 136B, 151, 152, 156AA, 156AB and 156C together. All seek to exempt certain types of cases from the Government’s reforms of no-win no-fee conditional fee agreements—CFAs. My noble friend Lord Newton described some of these amendments as being parts of a blunderbuss approach. I think that the noble Lord, Lord Beecham, described it as a bit of a shopping list. I shall come on to the issue relating to mesothelioma sufferers.

The amendments clearly stem from concerns that individuals may be unable to afford to bring certain personal injury cases. My noble friend Lord Newton of Braintree anticipated later amendments in the group beginning with Amendment 137A, which will be moved by the noble Lord, Lord Alton. I recognise that other issues arise such as the difficulty in trying to track down previous employers. I know that my noble friend Lord McNally will respond to that group of amendments and bear in mind what my noble friend Lord Newton said. When I was a Justice Minister in Scotland, I remember the plight of many mesothelioma sufferers, who were trying to get the process expedited so that their cases could be brought to court because many of them had a very short life expectancy. I certainly recognise the importance of those cases and I am sure that there will be a fuller debate on the back of the amendments to be moved and spoken to by the noble Lord, Lord Alton.

The difficulty with the other amendments in this group, as my noble friend Lord Newton said, is that when taken together they do not leave very much of the original intention of the Bill. With regard to recoverable or non-recoverable success fees being shifted to the defendants, it was pointed out in the previous debate that such fees have led to an escalation of costs. A plaintiff does not have the same interest, or may have no interest, in seeking to contain costs in those circumstances. One amendment relates to situations in which the defendants are public authorities. Some people have to pay the price of these additional costs. In motor insurance cases, we pay them through increased premiums. Council tax payers will no doubt bear some cost when escalating costs are picked up by public authorities.

The changes that we are bringing about will lead to costs becoming more proportionate. Equally, claimants will still be able to bring necessary and meritorious claims, and receive damages when they are due. However, as with privately paying clients, claimants on CFAs may have to pay some of their legal costs out of damages recovered. However, as I have indicated, we are introducing a number of measures that will help claimants to pay their solicitors’ success fees. The point was well made by my noble friend Lord Thomas of Gresford, in response to the previous debate, that in many cases no success fee is charged and some solicitors may have a selling point: “We will litigate for you, and no success fee will be charged”. That is more than likely to happen.

We must also remember that there will be a 10 per cent increase in general damages for non-pecuniary loss such as pain, suffering and loss of amenity. There will be a cap on the success fee at 25 per cent of damages awarded but, significantly, that will not apply to damages for future care and loss in personal injury cases. That will help to protect a claimant’s damages.

We have already discussed qualified one-way cost shifting. That will mean that losing claimants in personal injury cases who act reasonably will not have to pay a winning defendant’s costs, which in turn will reduce the need to have expensive ATE insurance products. Amendment 156AB is intended to ensure that the changes to the ATE insurance arrangements under Clause 45 do not come into force until the QOCS regime has come into force. I assure the Committee that we intend the package of reform to come into force at the same time.

On Amendment 156C, Clause 46 prohibits membership organisations from claiming the costs incurred by self-insuring against risk. That point was made by the noble Baroness, Lady Turner, in our previous debate. As I understand it, under the Access to Justice (Membership Organisation) Regulations 2005, bodies are listed by the certification officer. Trade unions represent an important number of those bodies, but a number of others have also been listed under Section 30 of the Access to Justice Act 1999.

As has been said on many occasions, the Government have decided to abolish the recoverability of ATE insurance premiums, and believe that this change should apply equally to arrangements for membership organisations. Retaining the recoverability of ATE insurance premiums for membership organisations would create an unfair advantage and mean that defendants in claims brought by members of such organisations would continue to be liable for significant additional costs in such cases and be placed at a disadvantage.

Lord Justice Jackson made no formal recommendations in reference to member organisations. In such a compendious report, one may wonder why not. Nevertheless, in his response to the consultation, he supported the Government’s proposal that changes to the recoverability of ATE insurance premiums ought to apply equally to the arrangements for membership organisations in order to remove any unfair advantage. That view was shared by 63 per cent of respondents to the consultation, who thought that retaining recoverability of the self-insurance element for membership organisations would create an unfair advantage. It is to ensure that that unfair advantage does not occur that we resist the amendment, and I invite the noble Lord to withdraw it.

[Lord Beecham]

My Lords, I reassure the noble Lord, Lord Newton, that this is a group of probing amendments to see which, if any, the Government might feel on reflection ought to be accepted and the scope of the current scheme in effect retained. Clearly, the answer has not been one to encourage optimism on this side of the House, but there are cases, particularly the last one to which the noble and learned Lord referred, where the Government are trying, as so often, to have it both ways.

In previous debates we have heard trade unions invoked as a source of advice and support for their members once legal aid goes. This is an area in which trade unions have for a long time been active in promoting the interests of their members. They will now lose that benefit. In my view, there is a strong case for the Government to look again at the position. I accept that they want organisations such as trade unions to support their members in the field of legal advice, but if so, they ought to endeavour to facilitate that, not at the Government's expense but by retaining success fees and the self-insurance element that the noble and learned Lord proposes to remove.

Asbestosis is probably the most acute of the diseases involved, and when we will come to a debate on it I will strongly support the noble Lord, Lord Alton. It is sometimes forgotten that it is not just direct exposure to asbestos that causes problems and has resulted in litigation but indirect exposure. There have been cases in which wives dealing with laundry and clothes that have been contaminated with asbestos fibres have themselves suffered injury. They have eventually succeeded in obtaining compensation, but that is an illustration of the kind of difficulty and complexity that can arise. There may well be other cases. Every few years, a new condition reaches the courts. Asbestosis was one; miners’ lung disease, pneumoconiosis, was another; and there are others. Although it is certainly true that, as the noble and learned Baroness, Lady Butler-Sloss, pointed out, some lawyers rather exploited the position in some of those cases involving minters, on the other hand many lawyers took these cases on over a very long period at considerable risk to themselves before obtaining settlements. That eventually led to the sensible outcome of a national scheme that determined a scale of damages and, for that matter, the scale of costs. There will be other cases. One imagines that cases may arise over time in the nuclear industry. There have already been some in which radiation has caused damage. I hope that at the very least the Government will look at those cases sympathetically.

The noble and learned Lord referred again to the number of cases that are being pursued. However, I remind him of the figures that I quoted in the first debate: the very detailed analysis of 69,000 cases showed that a third would simply not have been brought under the proposals presently in the Bill. A significant proportion of cases would therefore be pursued, many of them no doubt successfully although others not.

If we are still in the business of trying to promote access to justice by spreading the risk so that it is not always against lawyers’ interests to run cases with a lesser probability of success, that is something that the system should encourage. The fear is certainly that cases with less than a 75 per cent chance of success will just not reach the courts. A very respected firm, Thompsons, which acts for a number of trade unions, indicates that at the moment it takes cases with a risk level as low as 50 per cent, and it cannot see how it could conceivably do that in the future. Yet some of the very cases that we have been talking about involving asbestosis, pneumoconiosis and so on started off with a probable success rate of 50 per cent at best and arguably even worse. If we are not to close the door on emerging cases of that kind or on cases with perhaps a two-thirds chance of success, we have to have a balance to which success fees can contribute. The Opposition’s case is that that ought not to be simply a matter for successful defendants; it ought to be a collective insurance risk. That is the position that we seek to get to.

[Lord Lester of Herne Hill]

I am very grateful to the noble Lord; I had not intended to intervene. Does he agree that in the public interest we ought to be concerned not only with securing a fair balance between claimants and defendants but with being quite clear that there must be adequate safeguards against abuse by members of the legal profession in relation to conditional fee agreements and success fees? I have encountered abuses, for example in the equal pay area, where claimants’ lawyers have insisted that in cases against public authorities the women concerned should enter into binding agreements to ensure that a cut from the damages for equal pay for these poorly paid women goes to the lawyers and that no individual settlements are made without the consent of the lawyers. Should we not be very concerned about those kinds of things and about driving up the level of unnecessary litigation?

[Lord Beecham]

I entirely agree with that and I think that there ought to be a regime for the determination of the size of the success fee in any event. If a case is brought, that matter should be capable of being decided by the court. The noble Lord’s point is one which unfortunately will see damages being taken willy-nilly precisely from claimants in that category. They will not have the opportunity of getting the success fee paid by the other side. In a sense the noble Lord is supporting the case I am making. I entirely agree that members at both ends of the legal profession need to be monitored and that the courts ought to be taking a more positive role both in case management, as I indicated in the first debate, and in the assessment of what is an appropriate success fee. I beg leave to withdraw the amendment.

Amendment 121 withdrawn.

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[Lord McNally]

My Lords, like the noble Lord, Lord Beecham, when speaking to the first series of amendments, the noble Lord, Lord Bach, continues to jab away at the broad architecture of these reforms. In these reforms we do not accept every last jot and tittle of Lord Justice Jackson’s report but, in the main, we accept its major thrust. It is a package of reforms and we are concerned not to dismantle it by accepting this series of amendments. The reasons for that are clear. The Jackson report was motivated not by government initiative but by judicial demand. Both the Master of the Rolls and the Lord Chief Justice wanted to look at a dangerous inflation in civil costs which in their view—a view that we share—was having an impact on access to justice. Whether there was or is a compensation culture, we can debate for a very long time, but we know that in many parts of the law there has been a quite worrying inflation in costs. A number of examples given by noble Lords on all sides suggest that action is needed. The Official Opposition’s view on the Jackson report was not clear from the remarks of the noble Lord, Lord Bach—he said that he did not agree with this bit of it. The noble Lord, Lord Beecham, looks like a greyhound in the traps, but perhaps at the end of the debate he can tell us his party’s general approach to Jackson.

[Lord Beecham]

My Lords, before my noble friend answers, perhaps the Minister can say which bits of the Jackson report he is in favour of, because there is quite a lot of it that he has not adopted.

[Lord McNally]

The bits that we are in favour of are in the Bill.

As someone who firmly supported the Hunting Act, I am not sure that I am allowed to use the term “shot my fox”, but the arguments that I was intending to deploy were very accurately read out by the noble Lord, Lord Bach. They remain the same as those which my honourable friend Jonathan Djanogly deployed in the Commons—that is, under our reforms people will still be able to bring cases on CFAs in areas where they are currently used in judicial review. After all, we are returning the arrangements to their original form. Legal aid is being retained for the vast majority of judicial review cases that are currently funded. Legal aid recipients will continue to benefit from costs protection. Although I understand what the Opposition are doing in testing various parts of the architecture of the reforms, I can only say again that we will resist the amendments, as they seek to undermine the Government’s reform of civil litigation funding and costs.

I have listened carefully to the arguments advanced in respect of exceptions in individual areas. However, we should not revisit arguments that have already been fully and properly aired in these debates. I am concerned that making the exceptions that the amendments advocate would undermine the benefits of our reforms. I therefore urge the noble Lord to withdraw the amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Beecham Excerpts

Tuesday 24th January 2012 Lords Chamber

[Lord Shipley]

My Lords, I support the amendment moved by my noble friend Lord Thomas of Gresford. It addresses a question that is crucial for the success of legal aid advice at local level. The question is how the Ministry of Justice can deliver its legal aid budget cuts of £130 million out of £250 million while still delivering an effective system of support for legal aid. After a lot of thought, I have concluded that a centralised system of contract procurement is not likely to work well. It would mean high overheads and poor flexibility at a time when a significant number of third-sector providers will be forced to close because of lack of finance, with the consequence of problems that could be sorted out early not being sorted out, and a greater cost to the public purse.

We should note that the Legal Services Commission has very high costs. It spends £120 million on administration. After the cuts, with the new director of legal aid casework, the amount spent on administration is likely still to be around £120 million. That figure is very high. Of course, it includes criminal legal aid, but this has barely been cut at all. However, at local level, the budget cuts will be very significant. They will be in exactly the places that require a seamless service that will enable clients with problems that cut across agencies to benefit from integrated support.

I have a potential solution. I am grateful to Citizens Advice for its suggestion of how we might solve the problem. Could the Legal Services Commission, or its successor body, be moved from centre stage? Could, say, £20 million be reallocated from its administrative budget—which would thereby be reduced to £80 million —to front-line funding based on local legal advice partnerships that would map local advice needs, share back-office services and be based on clear professional standards? There would have to be—

[Lord Beecham]

Do I take it that the noble Lord is referring to £20 million a year rather than a one-off payment of £20 million?

[Lord Shipley]

I am grateful to the noble Lord, Lord Beecham. I do mean £20 million a year from the recurrent cost to provide for those local partnerships. There would have to be a co-ordinating charity, but that should be possible.

In a short debate on citizens advice bureaux on 8 December, I talked around this point and said that there was capacity at a local level to help the Government to solve the problem. Of course, all of this would be in the spirit of localism. The Government have just enacted the Localism Bill. The Localism Act has as its basic principle the principle that far more should be devolved from the centre to local areas.

The first part of the amendment simply gives the Lord Chancellor discretion to permit transfers from the legal aid budget to other funding streams for the provision of advice on issues to which Schedule 1 does not apply. The second part facilitates a cheaper delivery model based on local partnerships. On a practical level, it is important to note that it would be a waste of resources if legal aid clients could not receive holistic advice. There could also be many cases at the margins of situations covered by Schedule 1, and we should note the Legal Services Commission's response to the Green Paper, which highlighted the problem of boundary issues and warned that,

“the administration costs of considering such cases could erode the revenue savings that the Ministry of Justice has committed itself to”.

I think this suggests that we ought to do some further work between consideration in Committee and Report and that we should not lose the opportunity to engage with finding a solution to this problem. I hope that the Minister will understand that in moving this amendment, we are trying to be helpful. There are suggestions that this approach, or one like it, could work very well. I hope that in his reply the Minister will say that he is willing to engage in further discussions prior to Report.

--- Later in debate ---

In brief, to finalise my remarks, I would like to think that my noble friend would welcome this initiative as potentially shedding a lot of badly needed expert light on a singularly vexed area of litigation, which could inure for the benefit of the NHS, of claimants and of everybody on this planet. I should just add that we have had discussions with AVMA, the specialist organisation that is involved with this type of claim. I beg to move.

[Lord Beecham]

My Lords, in principle I welcome the notion of a review and some of the provisions that are effected in the amendment clearly make sense. However, despite the most distinguished provenance of the amendment I am left in doubt as to some of the wording and/or implications of what is proposed.

To begin with, the only duty on the Lord Chancellor, apart from initiating the review, is to lay a report before Parliament. There is no obligation for him in any sense to implement the review or to make changes having regard to the review. One fears that such a report might meet the fate of the infamous Black report—or the famous Black report that was infamously treated—in 1980, which some Members of the Committee will recall was published just before a bank holiday and disappeared from view thereafter. In other words, all we are getting is a report.

Moreover, the report, although it talks about the procedures and costs of claims, apparently is not required to deal with the funding of such claims. It talks about the costs but does not direct the person appointed to carry out the review and to report or comment on funding mechanisms—as I read it. The noble Lord, Lord Phillips, may put me right when he replies. It is quite sensible to have a provision that the reviewer may propose a,

“voluntary scheme or schemes as he or she shall see fit”,

but I am not quite clear what is meant by “voluntary scheme”. Is it a voluntary scheme of advice, or of conducting cases?

Subsection (6) defines “claims” as meaning,

“claims and complaints made by patients receiving services provided in the United Kingdom and commissioned in England”.

I am not quite sure what that means. Is it a reference to the Welsh situation? Does it mean that a clinical commissioning group, or indeed that a claimant of the nature of a private patient seeking treatment in a hospital in another part of the United Kingdom, would be subject to review in this report even though a claim might arise outside the jurisdiction of the English courts? It certainly is not clear to me quite what is intended, so although I certainly support the principle I am not sure that what is being sought here in detail quite meets the aspirations of those who drafted the amendment—let alone being sufficient to secure the support of the Minister. He will no doubt tell us what he thinks shortly.

If this matter is going to be pursued, it really needs some further thought and elaboration. If it is brought back at Report, it might be better to do so in a clearer form and, in particular, not to create a situation in which all that is produced at the end of it is a report which can be kicked into touch.

[Lord McNally]

My Lords, I would hope to persuade the Opposition not even to support the principle of this amendment, which says:

“The Lord Chancellor must, before the end of the period of one year beginning with the day on which this Act is passed, appoint an independent person to review generally claims for clinical negligence and means of improving the modes, procedures and outcomes relating to the same”.

We would prefer to stick to the process established by the previous Government, which put in place post-legislative scrutiny of Acts of Parliament. The aim is to complement the Government’s internal departmental scrutiny with parliamentary scrutiny, principally by committees of the House of Commons, to provide a reality check on new laws after three to five years.

As set out in the Cabinet Office guidance, these reviews normally take place within three to five years of Royal Assent. The responsible department must submit a memorandum to its departmental Select Committee, which will then decide whether it wishes to conduct a fuller post-legislative inquiry into the Act. Of course, the House will be free to debate the committee’s findings should it choose to conduct a review into the Act. In addition to this post-legislative scrutiny, the impact assessment for the specific policies in the Bill is accompanied by a post-implementation review plan. It is intended to review each policy between three and five years after the implementation date.

Noble Lords may also be aware that the Government have conducted a public consultation this year on how lower value cases should be dealt with more efficiently in the county courts. We are working closely with the National Health Service Litigation Authority to consider whether a lower value scheme similar to that which is currently operating for low-value road traffic accident cases would work for lower value clinical negligence cases. At the same time, we are actively considering the Government’s response to the consultation and will publish the response in the near future. In the light of these remarks, I hope that my noble friend will withdraw his amendment.

--- Later in debate ---

Moved by

[Lord Beecham]

108: Clause 16, page 12, line 20, leave out subsection (3)

[Lord Beecham]

My Lords, this amendment refers to Clause 16, which sets out the principles on which qualification for representation for legal aid can be determined. This is basically a probing amendment. Subsection (3) states:

“The Lord Chancellor may by order amend subsection (2) by adding or varying a factor”,

to or of the five factors set out in subsection (2). I apprehend that the Minister will confirm that such an order will be subject to the affirmative procedure. Given that the qualifications for representation for criminal legal aid are at stake, it is particularly important that that should be the procedure. If that is the case, the Opposition will be entirely satisfied and the amendment will be withdrawn.

[Lord McNally]

My Lords, as the noble Lord said, the amendment would omit subsection (3) from Clause 16. This provides a power for the Lord Chancellor to use secondary legislation to add to or vary the list of factors in subsection (2). The Access to Justice Act also contains such a power at paragraph 5(3) of Schedule 3 to that Act. Any order made under Clause 16(3) would be subject to the affirmative procedure.

The factors in the interests of justice test broadly reflect the requirements of the European Convention on Human Rights, which, at Article 6(3)(c), provides expressly for a right for a person,

“to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require”.

We see no reason now to depart from the principle established in current primary legislation that it is appropriate to provide a power for the Lord Chancellor to use secondary legislation to add to or vary the list of factors in subsection (2). This allows for the flexibility to react to any developments in relation to factors relevant to the interests of justice requirement. As I have said and as the noble Lord asked, these would be subject to the affirmative procedure. I therefore urge the noble Lord to withdraw the amendment.

[Lord Beecham]

I am most obliged to the Minister for that assurance. For future reference, it might be helpful in these cases if it were to be made clear in the Bill that the affirmative procedure would be used. It would save a little time. However, we have not spent much time on this and I beg leave to withdraw the amendment.

Amendment 108 withdrawn.

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Moved by

[Lord Beecham]

110: Clause 20, page 15, line 24, leave out “, by telephone or by other prescribed means”

[Lord Beecham]

My Lords, this is one of four amendments with which I hope to deal in pretty short order. It relates to the provisions in Clause 20 and the determination of financial resources for legal aid. Clause 20(6) provides for,

“determinations to be made and withdrawn in writing, by telephone or by other prescribed means”.

That is not very satisfactory because it does not leave a sufficient audit trail. In any event, verbal communication, and possibly online communication, may not be suitable in all cases given the variable capacity of people to manage telephonic or online communication. In particular, if an appeal is made to the magistrates’ court subsequent to a determination, it is necessary to have that audit trail. Hence, the amendment proposes that the communication should be in writing and not by telephonic or other electronic means. I beg to move.

[Lord McNally]

My Lords, concerns about the proposal to establish the community legal advice helpline as the mandatory single telephone gateway in four proposed areas of law were the subject of considerable debate in Committee on 20 December. Given that, and for the purpose of today’s debate, I will therefore address solely the specifics of this amendment as they relate to Clause 20.

Amendment 110 relates to the method by which determinations about financial eligibility for legal aid are made and withdrawn. It would require all determinations about financial eligibility to be made or withdrawn in writing to the person making the legal aid application. It would therefore stop determinations about financial eligibility being made or withdrawn by telephone, or by other prescribed means, thus of course affecting the proposed mandatory single telephone gateway. However, this amendment would go much further than just affecting the gateway. It would seriously affect the financial and operational viability of the provision of legal aid advice by telephone altogether.

In Committee, the noble Lord, Lord Bach, described existing telephone advice provision as “excellent” and,

“a fantastic channel for delivering advice”.—[Official Report, 20/12/11; col. 1759.]

This excellent service is provided through the community legal advice helpline. Currently included in this service is the making and withdrawing of determinations about financial eligibility by telephone.

Determinations about financial eligibility are currently made immediately upon receipt of a call by the community legal advice helpline. No suggestion has been made that the system has not operated effectively and efficiently. This would add considerable time, cost and complexity to the provision of civil legal aid services by telephone. It could delay in particular callers who are not financially eligible for legal aid but are provided with alternative sources of assistance. It could also delay those who are eligible for legal aid help receiving it, as staff and resources would be involved in completing and sending out notifications about eligibility.

Determinations are made after asking precisely the same questions of all callers as face-to-face legal aid providers would ask. Where a person is eligible, they will usually start to receive help on the same day. They do not have to wait perhaps a few days or more for an appointment before their eligibility can be assessed or before they can start to receive help to address their problem, as a person walking into a face-to-face provider’s office may have to do.

In addition, Clause 11(3)(h) means that individuals will have the reasons for the making of a determination explained to them. It will, however, not necessarily be in writing. The assessment of financial eligibility through the community legal advice helpline also filters out those who are not financially eligible for civil legal aid. This assists those individuals by allowing them to receive information about suitable alternative sources of assistance immediately after that assessment is made, enabling them to begin to take alternative action to address their problem promptly and with the minimum of delay.

The current community legal advice helpline is a well used route to access civil legal advice. It offers a high-quality service and works well—the noble Lord’s description of it as excellent is testament to that. The Government understand the concerns behind Amendment 110, but restricting or preventing the operation of the community legal advice helpline will not help those who are in most need to obtain legal aid advice services to help them resolve their problem. This amendment is not in their best interests and I urge the noble Lord to withdraw it.

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[Lord McNally]

Yes. As I said after that debate, we will continue to liaise with the disabled organisations to ensure that we are getting this right.

[Lord Beecham]

My Lords, I regret to say that I do not find the Minister’s answer satisfactory. It is true that many people find the telephone advice line to be perfectly acceptable, but others do not. Telephone advice lines are not the best option for delivering advice to older people, those with language difficulties or those who do not understand English very well. However, this is not about advice; it is about the determination of financial eligibility, and there may be cause for people to appeal against decisions. It is difficult to do that on the basis of a telephonic communication. That is all this amendment requires. Although I beg leave to withdraw the amendment, I cannot say that the Minister has satisfied us about the difficulties which we envisage the proposal will create. It might be something that we have to return to.

Amendment 110 withdrawn.

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Moved by

[Lord Beecham]

111: Clause 21, page 17, line 15, after “individual” insert “or person”

[Lord Beecham]

My Lords, we return again to affluent criminals in a slightly different context. This amendment refers to the definition of an individual about whom information is requested for the purposes of a determination about that individual’s financial resources. The Bill defines such an individual as an “individual”, which is helpful, and goes on to say,

“and any other individual whose financial resources are or may be relevant for the purposes of the determination”.

The problem is that this may not cover, for example, a limited company or possibly a trust effectively controlled by the individual whose financial circumstances are being investigated. The purpose of the amendment therefore is to extend the definition to ensure that any connected companies or trusts are included in the assessment. It may be that the noble Lord will want to take a further look at this, but we are seeking to ensure in a different context the kind of approach advocated by the noble Lords, Lord Carlile and Lord Thomas, in respect of cases—in admittedly slightly different circumstances—where there are means which ought to be brought into account. I beg to move.

[Lord McNally]

My Lords, Amendment 111 relates to Clause 21, which provides a gateway for the disclosure of certain information to the “relevant authority”, defined as the director of legal aid casework or other person prescribed by the Department for Work and Pensions, Her Majesty’s Revenue and Customs and the equivalent Northern Ireland department. The information can only be requested by the relevant authority for the purpose of facilitating a determination about the individual’s financial resources for legal aid; that is, for the purpose of finding out whether they are financially eligible for legal aid. The categories of information that may be requested are listed in subsections (3) and (4) of Clause 21. Those categories refer to types of information in relation to a relevant individual. A “relevant individual” is defined in Clause 21(8) as meaning the individual seeking legal aid and any other individual whose financial resources are or may be relevant for the purposes of determining financial eligibility for legal aid.

We intend as at present to continue to require those applying for legal aid to disclose any company directorships, positions or shareholdings in companies and to provide detailed information about such companies. More generally, applicants are required to disclose whether they receive any support from a third party, including an individual company or trust. Funding may be refused if this information is not supplied. In relation to companies, it is also possible to conduct an additional search through Companies House. There are indeed circumstances in which such information may be relevant. The Bill includes at Clause 24 a power that will enable the Lord Chancellor by regulation to require or permit the resources of a person other than the client to be treated as the resources of the client. That is currently done under the existing financial regulations.

Regulation 11 allows the resources of a person who is, has been or is likely to be substantially maintaining the client to be treated as the resources of the client. Regulation 11 also allows the resources of another person that have been or are likely to be made available to the client to be treated as the resources of the client. Regulation 12 provides a power to take into account resources that the client has either transferred to another person, deprived themselves of, or converted into resources that would be disregarded for the purpose of reducing their resources. For the purposes of those regulations, “another person” can mean a company, partnership, body of trustees and any body of persons corporate or not corporate. The effect is to prevent applicants for legal aid avoiding a full assessment of their resources by, for example, transferring them into the name of a company.

I return to Clause 21. The information listed in subsections (3) and (4) is about individuals because it is basic information such as date of birth, national insurance number and employment status, which can be related only to an individual. However, the information listed in subsection (4), which can be requested from HMRC, includes information about whether a relevant individual is carrying on a business, trade or profession, as well as further information—for example, the name of the business and its address.

As I have said, those applying for legal aid will continue to be required to disclose any company directorships, positions or shareholdings in companies and to provide detailed information about any such company. It is therefore inappropriate and unnecessary to extend the definition of “relevant individual” to include companies and other legal persons. I hope that, with that explanation, the noble Lord will withdraw the amendment.

[Lord Beecham]

My Lords, the Minister has given a clear indication that the objectives of the amendment are likely to be met by the present operation of the system. In those circumstances, I beg leave to withdraw the amendment.

Amendment 111 withdrawn.

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Moved by

[Lord Beecham]

112: Clause 22, page 17, line 31, leave out subsection (3)

[Lord Beecham]

My Lords, the Bill provides for regulations to enable the Lord Chancellor to require a person who qualifies for legal aid to pay an amount exceeding the costs of the civil legal aid services provided. I confess to bewilderment, frankly, at the notion that, in these circumstances, a legally aided person should be obliged to pay an amount greater than the cost of the services—it is almost turning that aspect of legal aid into a profit-making concern. There is no rationale in the Bill for why that should be the case. Litigants do not ordinarily pay more than the assessed costs of a case unless they have incurred some kind of penalty in so doing. The only analogy, when we come to Part 2 of the Bill, is of a success fee having to be paid, effectively, by a litigant. However, in this clause it is not limited to a successful litigant; it simply allows for a prescribed amount in excess of the assessed costs of the civil legal aid services. I simply do not understand whence this derives.

The noble Lord, Lord Thomas, has tabled an amendment which questions the principle and provides for an element of discretion in these matters. However, the Minister has to explain, with respect, why it is that recipients of legal aid should be expected to pay more than the costs that they have incurred. I beg to move.

[Lord Thomas of Gresford]

I thought there was a printer’s error here: that is why I inserted “not”. It is not a matter of principle; I could not imagine that the Government would require someone’s contribution to exceed the costs and put money into the hands of the Lord Chancellor. I do not see any reason for that and I await the explanation with interest.

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[Lord Bach]

It will be a different approach, as I understand it. Under the last Government, it was never put into effect. Under the coalition Government, it will be. That is the difference.

[Lord Beecham]

The Minister expects us to be grateful for this activation of a pretty redundant provision. I cannot say that we are and clearly the noble Lord, Lord Thomas, is not either. Of course, the noble Lord’s example would no longer apply because civil legal aid would not be available for the personal injury case to which he referred, but it would occur in other cases. In one of these exceptional cases or if, for example, there is a move on clinical negligence, a huge slice of not only general damages but also—as I understand the Minister—special damages accrued to the date of the hearing might be taken. In a clinical negligence claim, that is potentially a very substantial sum. The noble Lord, Lord Thomas, is absolutely right. Successful claimants are being asked here to substantially help underwrite the costs of the system. That is not something that successful claimants should be asked to do.

We will revert to this when we come to Part 2. It seems that the burden has shifted from losing parties, and in particular losing defendants, to successful defendants. The Minister refers to the fact as if it were common knowledge that this would be moved. Maybe I have missed something—and so has the noble Lord, Lord Thomas. Neither of us seems able to recall this proposal being ventilated in debates—not in this House or Committee, or generally as part of this process. I am certainly not happy with this. We may well revert to it on Report. If it activates a provision that was laid down in 1999, it should not be done. As my noble friend will confirm, I was critical from time to time of the previous Government’s policy, particularly in relation to criminal justice and criminal legal aid. Had I known about this aspect, I might have been critical at an earlier date—presumably with no effect, either. This is not something we can let pass.

[Lord Howarth of Newport]

If this provision is activated, as the Minister told us that the Government intend it should be, would the likely effect be that damages awards were increased by the courts to ensure that claimants got appropriate damages and at the same time, unfortunately, to underwrite the requirement that part of the proceeds of damages should go to boost the funds of the Ministry of Justice?

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[Lord Beecham]

Increasing general damages by 10 per cent does not compensate for the deduction of 25 per cent. It does not touch the matter of special damages other than the future loss, to which the Minister referred. The 10 per cent is pretty much a gesture in terms of the likely impact on clients. I beg leave to withdraw the amendment but we will certainly want to look at this again.

Amendment 112 withdrawn.

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Moved by

[Lord Beecham]

113B: Clause 24, page 19, line 18, leave out paragraph (b)

[Lord Beecham]

My Lords, we are now at the end of Part 2—sorry, I mean Part 1. The Chief Whip was ecstatic at the thought that we might have reached the end of Part 2. As I am leading for the Opposition on Part 2, I would be ecstatic as well, but we are not there yet, and the House may not be so ecstatic when they hear me during our debate on Part 2.

This is another potential sting in the tail of Part 1, given that it looks to be another device to extract from beneficiaries of legal aid—or, more particularly, their advisers—money to help fund the general system. Of course, the practice of having a statutory charge on the assets recovered is long-standing and has been particularly relevant in matrimonial cases. It has been well understood that money was devoted to the cost to the legal aid fund incurred as part of the action. We are now apparently faced, in addition to the charge on property recovered, with a charge on costs paid by the other side in such a case. In reality, given that legal aid rates are significantly lower than the rates of inter partes costs, the defendant’s or unsuccessful litigant’s costs, the inter partes costs in effect help to subsidise the legal aid costs. There seems no logical reason to attach those costs—and it might well have a significant impact on providers, who in the swings and roundabouts that we will debate at some length when we discuss conditional fees under Part 2 actually help to subsidise the work.

Moreover, I understand that there has been no consultation about this aspect, which is a matter of some considerable concern. I do not know whether the Government have assessed the impact on the supply of legal aid providers—maybe they have. The suggestion from some in the profession is certainly that it would have a significant impact on the provision of legal services. I have heard today in a different or earlier context of a significant legal aid practice in the north-east that is seeking to drop a couple of its contracts because it is having to subsidise it from the rest of its work, and the practice cannot cope with that. This kind of provision will make that even more likely.

[Lord Wigley]

The noble Lord has referred to the fact that there could be some reduction in the number of suppliers who are available, and some may be withdrawing from this field. Does he have any indication of whether that is likely to be a blanket withdrawal or whether some sectors could be particularly badly hit by that, and that therefore those with cases dependent on those sectors might find themselves in a very difficult position?

[Lord Beecham]

My Lords, I am not in a position to say and I fear—perhaps I am wrong—that the Government are not in a position to say either, which is part of the point. There does not seem to have been a consultation. There may or may not have been an assessment of the impact, but there certainly ought to be. As I say, this provision has come out of left field, to quote the noble Lord, Lord Thomas, on an earlier point. It really ought not to be progressed until there is a proper assessment of its impact, in consultation with the profession.

In any event, it seems there is something of an issue of principle as to whether the statutory charge should apply not just to the property secured by legal aid but to costs paid by the opposite party, as a contribution towards the total costs incurred on behalf of a claimant. That seems to be a novel principle and one which, as I say, came out of the blue and certainly needs justification. On the face of it, it is difficult to see what the justification would be. I beg to move.

[Lord McNally]

My Lords, I hope to end the evening on a reassuring note. We recognise that by virtue of the specific reference to costs, the language of Clause 24(1) is different from that in the equivalent provision at Section 10(7) of the Access to Justice Act 1999. However, we consider that costs are capable of falling within the existing provision on the statutory charge as,

“property recovered or preserved by”,

a legally aided person. In any event, I reassure noble Lords that Clause 24 does not represent a change of policy and will not result in any change to current practice.

The provisions in Clause 24 reflect existing practice by protecting the interests of the Legal Aid Fund in the same way that those interests are currently protected by the provisions of the Community Legal Service (Costs) Regulations 2000. For example, the provision in those regulations regarding payment of money due to a legally aided person relate to all such money, including any costs awarded. We therefore have no intention of altering the existing position that operates in cases where interparty cost orders are made and a claim is made against the Legal Aid Fund by a supplier. The current position in such cases will remain exactly the same when we implement the relevant provisions of this Bill.

Indeed, we recognise that market rate costs payments where interparty costs are ordered represent an important source of income for legal aid providers, and nothing in the Bill is intended to interfere with the present position in respect of such payments. Specifically, legal-aid-only costs will continue to be payable to providers where a supplier recovers interparty costs, to the same extent as at present. So the existing position, including in partial cost order cases, will remain. I also confirm that, in the specific context of interparty costs, we intend to exercise the power in Clause 24 of the Bill so that it is clear that legal-aid-only costs, including in partial cost order cases, remain payable to suppliers. This will make the position clearer than it is at present, given that the entitlement to payment for legal-aid-only costs currently appears only in the LSC contract. I hope that with those assurances, the noble Lord will withdraw this amendment.

[Lord Beecham]

My Lords, that certainly sounds extremely reassuring. I will read what the Minister has said with some care—not that I doubt him, of course—because on the face of it, if the clause does not change the previous legislation, I am not quite sure why we have it at all. However, accepting his assurances and good will, and in a spirit of relief at 10.45 pm, I beg leave to withdraw the amendment.

Amendment 113B withdrawn.