Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Beecham Excerpts(12 years, 10 months ago)
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Lord Beecham
“(a) they are not specifically excluded under Schedule 1, and”
Lord Beecham
My Lords, perhaps the noble Baroness should be aware that domestic matters will come later. I have, if not by my bedside at least on my bookshelf, the splendid volume The Rule of Law by the late and most distinguished Lord Bingham. I was struck by one quotation in that book from the chapter on dispute resolution, in which the author made a case with compelling clarity. He stated:
“Legal aid is a service which the modern state owes to its citizens as a matter of principle. It is part of the protection of the citizen’s individuality which, in our modern conception of the relationship between the citizen and the State, can be claimed by those citizens who are too weak to protect themselves. Just as the modern State tries to protect the poorer classes against the common dangers of life, such as unemployment, disease, old age, social oppression, etc., so it should protect them when legal difficulties arise. Indeed, the case for such protection is stronger than the case for any other form of protection. The State is not responsible for the outbreak of epidemics, for old age or economic crises. But the State is responsible for the law. That law again is made for the protection of all citizens, poor and rich alike. It is therefore the duty of the State to make its machinery work alike, for the rich and the poor”.
Lord Justice Jackson, on whose report the Government rely heavily for much of the Bill, particularly Parts 1 and 2, was implicitly very supportive of that definition. He was certainly very clear that the scope of and eligibility for legal aid should not be reduced.
The Bill seeks, in effect, to turn on their head some provisions of the Access to Justice Act 1999, particularly those parts to do with the availability of legal aid, which commanded all-party support. The Access to Justice Act indicated which services the Community Legal Service would not provide and Section 4(2) of that Act provided that legal assistance would be available in all other areas. This Bill seeks to reverse that position and make legal aid provision a matter of exception rather than of course. It is that aspect that these amendments address. Their effect would be to reverse the way that the Government are putting matters. Instead of listing only matters that would be eligible for legal aid, they exclude everything except those matters that are contained within the clause.
There will be a further debate, which my noble friend Lord Bach will initiate, about the procedures to change how the clause we are currently debating might be amended if it stands. However, to fix at a particular point in time an exclusive list of areas of law that should be eligible for legal aid is profoundly mistaken. After all, the law, like society itself, is not static. When I qualified as a solicitor 44 years ago, there were whole areas of law that are now justiciable and part of everyday life which were not recognised at all. There was effectively nothing in the way of equality legislation or legislation affecting discrimination or disability. There was little, if anything, explicitly around the human rights or environmental agendas. Employment law was effectively in its infancy. I well remember the Redundancy Payments Act 1965 and, for a time, giving lectures on what was then developing as employment law. In all these areas, legal assistance, legal advice and legal aid ultimately came to be provided.
We cannot say at this point that similar situations will not arise in future and that there will not be similar changes in the law which should give rise to a right to legal aid provision. The presumption that the Bill makes is that legal aid is not to be available. We on this side submit that that is the wrong presumption. The presumption should be that legal aid should be made available unless it is decided, for reasons of economy or other reasons, to exempt particular matters. That has happened in the past under the previous Government and I have no doubt that there will be occasions when it might be justifiable in the future. However, I submit that the Bill is antithetical to that very clear call, cited with such approval by Lord Bingham, for legal aid and access to justice to be available to all in significant areas of public policy and every-day life. I beg to move.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, Amendment 21 would have the effect of removing Part 1, Schedule 1 and bringing within the scope of legal aid, civil legal services available for all categories of law except those excluded in Parts 2 and 3. Broadly speaking, these amendments seek to reinstate the approach to the scope of civil legal aid under the Access to Justice Act 1999—I think that the noble Lord, Lord Beecham, readily acknowledged that—which provided that most categories were in scope of funding except for those limited matters set out in Schedule 2. As noble Lords will appreciate, this would significantly impact on the savings and fundamentally defeats the object of the reforms. We have never hidden the fact that the aim of these reforms is not just to save public expenditure, given the position with the public finances, but to encourage alternatives to a legal settlement of disputes, not least through mediation. My right honourable friend the Lord Chancellor is attempting to reverse the trend on the part of many in our society over the past 20 years to see litigation—and tax-funded litigation, at that—as the first option, and we have gone about this in a way that moves away from the 1999 Act.
The Government have undertaken a comprehensive review of legal aid, have published impact and equality assessments and received nearly 5,000 responses. We have taken into account the importance of the issue, the litigant’s ability to present their own case, including their vulnerability, the availability of alternative sources of funding, and the availability of other routes to resolution. We have never hidden the fact that this is a change from the 1999 Act, but one which retains access to justice while coming to terms with economic reality. We have prioritised funding so that civil legal services as set out in Part 1 of Schedule 1 will be available in the highest priority cases; for example, where a person’s life or liberty is at stake, where they are at risk of serious physical harm or immediate loss of their home, or where children may be taken into care. I therefore urge the noble Lord to withdraw the amendment.
Lord Beecham
With all respect to the Minister, that is not a very satisfactory reply. In the first place, to suggest that the whole purpose of these changes is to avoid litigation as the first option mistakes the nature of the system. It is not only legal aid and representation that will disappear under these provisions but legal advice and assistance, which often prevent cases going to court. In many cases such measures avoid what I and many observers fear will happen; namely, a significant increase in litigants in person. That is likely to lead to considerable delays, the clogging up of the courts, will be inefficient and, for that matter, costly. The noble Lord airily cited the 5,000 responses received to the consultation paper. He did not tell us how many of those responses supported the thrust of the consultation paper. The suggestion is that about 90 per cent of respondents were very much opposed to the proposals.
In any event, there is another issue. The Government are in effect tying their hands and those of their successors on what might ultimately be thought to be desirable to be brought within scope. That will now require primary legislation to amend the Bill, if it is enacted, on those points. No utility is served by that process. It is always open to Governments to change eligibility if they choose to do so and to take matters out of scope, but we are now seeing an attempt to fix the situation as it now is—to imprison the present system in amber, as it were. That makes change unnecessarily difficult should the situation in society as a whole change and require further alteration.
This matter goes to the heart of the Bill, along with the next amendments to be moved by my noble friend. In the circumstances, I will not push this to a vote at this stage, and I beg leave to withdraw the amendment.
Lord Thomas of Gresford
My Lords, I hope the Government do not think that this debate is special pleading, as the noble Baroness, Lady Mallalieu, feared. There are a number of reasons for that. First, clinical negligence—at the moment, exceptionally in personal injury cases—already attracts legal aid. It is currently within scope. Secondly, there are considerable difficulties in proving clinical negligence. When a car accident happens, almost anyone, given proper evidence, can determine who is responsible. Clinical negligence is a very different field. It is very difficult to prove causation. If you can prove causation—that the condition of the claimant has been caused by the clinician concerned—you then have a further hurdle to surmount: whether that clinician has exercised the proper standards of care as known at the time.
I vividly remember a case in which I was involved where it was established that the arachnoiditis was caused by an injection into the spinal cord by a clinician. Arachnoiditis affects the limbs of a person and causes considerable paralysis. We could establish causation, but by the standards of the time it could not be shown that the injection was negligent.
The third matter that I draw to the Committee’s attention was referred to by the noble Baroness, Lady Finlay—that there is currently quality control in the provision of legal aid in clinical negligence cases. There are panels provided by the Law Society or Action for Victims of Medical Accidents, and it is only to solicitors who are on those panels that legal aid certificates will be granted. That ensures that there is a proper approach to the issues that arise in clinical negligence cases, and a proper conduct of those cases. For all those reasons, this is not special pleading; clinical negligence deserves consideration quite separately from all the other matters that we are raising under the first schedule.
I would like the Government to consider at what level legal aid can be granted. The noble Lord, Lord Faulks, and my noble friend Lord Carlile referred to the possibility that legal aid should be granted in serious cases that have an impact upon the lives of people. For example, if a case is worth only £4,500, which has been referred to, that may not be one in which public money should be involved—certainly not to the extent of £95,000. However, if, as so often happens, the lives of people and members of their families are altered for good, surely a humane society should provide legal aid to cover the cost of litigation in those circumstances?
Lord Beecham
My Lords, this has been a very thoughtful debate, and that owes much to the fact that so many of those who have participated have experience, either legal or medical, of cases of this kind. They are certainly among the most difficult that either clinicians or lawyers have to deal with. The noble Lord, Lord Wigley, referred to the rather alarming statistic that 10 per cent of National Health Service patients in any year suffer from clinical negligence. That ought to concern all of us, especially those with responsibility for the health service.
However, it is also right to point out that this does not give rise to a spate of litigation. In view of the numbers of people who must suffer from clinical negligence, the fact that only around 10,000 or 11,000 cases a year receive legal advice, and of those only about 3,500 proceed to receive legal aid for representation, completely contradicts the assumption that there is a compensation culture—certainly in this area of law and, many of us would argue, generally. There is no compensation culture. However, it is a measure of the scale of the need for representation that of the successful legal aid cases—some 1,500 cases adjudicated in, I think, 2009-10—the average period during which these cases were pursued was as long as 55 months. That might partly be a reflection of the complexity of the evidence, or partly of the fact that you cannot really settle a case until the prognosis becomes clearer, until a client’s needs are defined, particularly in the case of children who suffer perinatal injuries or other forms of clinical negligence. Obviously their future lives cannot be predicted with any certainty at too early a stage. However, it also owes something, as the noble Lord, Lord Thomas, pointed out, to the reluctance of authorities—the NHS bodies and, I suppose, private bodies—to admit liability.
Lord Faulks
My Lords, would the noble Lord confirm that one of the causes of delays is that in complicated cases—we have been concerned with perinatal injuries—there are a number of different experts who have to report? One expert is not enough; you have an obstetrician and you may have a paediatric neurologist, a neonatologist, a neuroradiologist, a midwife and possibly even a geneticist. Trying to make sure that all those experts bring their expertise to bear at the same time and co-ordinate can itself be a reason for delay and therefore for the complexity of these cases.
Lord Beecham
My Lords, that is right. In addition to that issue, which goes to matters of causation and, potentially, liability, there is also a range of experts whose evidence is needed in determining the future needs of the patient in terms of care, education and support. The point is to underline that these are, necessarily, often complex cases, and they need careful investigation and support before they can be either settled or adjudicated.
The Ministry of Justice has estimated the savings from its proposals at some £10 million. That figure will not go far towards matching Mr Gove’s suggestion of a new royal yacht as a timely gift to Her Majesty the Queen to celebrate the Diamond Jubilee and it occurs to me that the £250 million allocated by Mr Pickles for weekly waste collection would cover the sum in question for 25 years, but all that is beside the point. The reality is that the cost to the NHS will be considerably greater than £10 million. The recent King’s College report that some noble Lords have referred to suggested that a figure of £28 million would be the cost to the NHS of the Government’s proposals. That is surely something that none of us wishes to see. It would be caused by the availability of success fees where hitherto legal aid cases have not attracted such fees, and by meeting the cost of “after the event” insurance—again assuming, as a number of your Lordships have questioned, the availability of ATE. If ATE were not available then of course even more injustice would be done because it would be impossible to bring cases. But there must be a real question about the likely existence of a market for ATE insurance. Furthermore, under the Government’s proposals, there would be the 10 per cent increase in general damages. All of that clocks up to a figure substantially more than what would be saved.
In addition to the financial aspect, there is the real impact on people who require assistance. The King’s College report also indicated that there would be a reduction of 75 per cent in legal help and 65 per cent in legal representation from the admittedly not very large number of cases that are actually brought. That is a significant reduction. Although the noble Lord, Lord McNally, is not replying to this debate, he threw out the figure of a 17 per cent reduction in legal aid expenditure in discussing a previous amendment. However, the cut in civil legal aid generally would be 30 per cent, not 17 per cent. The Government propose saving some £285 million out of something like £900 million or £1 billion. Even the figure of 30 per cent looks modest, though, in relation to the cut that would be inflicted on a number of people who would be entitled to legal aid and representation in this most difficult area of law.
The effect of what is being proposed here is another example of cost-shunting on to other government departments. I have a Question for Written Answer about whether consultations have taken place with other departments by the Ministry of Justice about the impact of the proposals in the Bill on their budgets and whether that has been agreed. In due course no doubt the noble Lord will reply to that and we will see then what is to happen. We have not ventilated the question of a risk register under this Bill as we have in respect of another and I hope that we do not have to go down that road, but it is clear from the evidence that there will be a significant burden on other departments and therefore the net saving to Government from these proposals, if any, is likely to be minimal.
Lord McNally
Politics is always a question of priorities. We keep on having this Second Reading debate. If we want a bit of knockabout, it has taken the Shadow Chancellor and the Leader of the Opposition 18 months into this Government to accept the cuts that the Government are imposing. We can have a knockabout if you want. We started this debate some months ago and what we are talking about is a department that is making its contribution to a roughly 20 per cent cut in public expenditure. That kind of adjustment was necessary—and I think has been successful—to retain the confidence in our economy which others have lost, and which has allowed us to borrow at lower interest rates and keep that readjustment within manageable terms.
Of course, as each department brings its proposals forward, tough choices are made. I am sure there are people in local government who are having to make tough choices, and when they make those tough choices people will extrapolate the consequences of those tough choices—but let us not pretend that there are alternatives to those tough choices. It is also interesting. I am not sure where we are on this. I could not intervene because my noble and learned friend Lord Wallace was in charge of that.
During the medical debate, the noble Lord, Lord Phillips, stood up and with a perfectly straight face, and supposedly making an argument on his side, cited a case where £90,000 was spent—£45,000 on legal fees and £45,000 on advice—to produce £4,500 of compensation for the person offended. It did not seem to occur to the noble Lord, Lord Phillips, but it did to me as a poor, innocent, non-legal layman, that there is something wrong with a system that absorbs £90,000—
Lord Beecham
That was hardly a representative example of cases. In most cases—although necessarily costs in clinical negligence cases are higher than the average—they are nothing like that proportion.
Lord McNally
I never even suggested that. However, I am suggesting that we are talking about processes where the response of the Opposition, and sometimes my noble friends, seems to be yet more lawyers, yet more litigation—
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Beecham Excerpts(12 years, 10 months ago)
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Lord Beecham
“( ) 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, this amendment amplifies the definition in Clause 1 in respect of the legal aid and advice that the clause requires the Lord Chancellor to secure. Among other things, the clause calls on the Lord Chancellor to,
“do anything which is calculated to facilitate, or is incidental or conducive to, the carrying out of the Lord Chancellor’s functions under this Part”.
The purpose of this amendment is to secure the provision of expert evidence where that is needed. The amendment is not intended to be a belated addition to the Christmas stockings of expert witnesses. It is perfectly reasonable for the Lord Chancellor to seek to secure economy in the provision of such services, but that must not be at the expense of ensuring that in appropriate cases there is available to parties to disputes—and indeed to the court—expert evidence of a kind that will assist the court in coming to a decision.
Of course, there are many cases in which expert witnesses can be helpful. They will often be medical witnesses but they may be from other professions; they could be scientists, engineers or surveyors. Therefore, there is a range of professional bodies whose members are called upon from time to time to give evidence in the course of civil litigation—and, for that matter, in some criminal cases.
I want to refer particularly to one group of expert witnesses: the Consortium of Expert Witnesses to the Family Courts, which has submitted interesting evidence to the Justice Committee in the House of Commons and also briefed Members of your Lordships’ House. Some 500 professionals are members of that consortium. They have a wide range of backgrounds—from paediatricians to medical and surgical specialists, forensic physicians, psychiatrists, psychotherapists, clinical psychologists, neuropsychologists, educational psychologists and the like. They have given, and give, evidence in a range of cases—usually but not exclusively involving children—in the domestic courts. That evidence will sometimes deal with the physical evidence of non-accidental injury and will also perhaps involve evidence about the impact of situations within the family on the children’s psychological and emotional well-being; for example, where there may have been domestic violence, where a parent may have engaged in substance abuse, where there may have been criminality, or where other life events may have impacted severely on the domestic situation.
The organisation gave evidence to the Justice Select Committee and expressed its concerns about the provisions currently obtaining in respect of the financing of expert witness evidence. Separately from this Bill, the Government have reduced the fees payable to expert witnesses by 10 per cent. In London—it might be thought somewhat paradoxically—fees are now one-third less than those for expert witnesses outside the capital. One might have thought that, with the oncosts in London generally speaking being higher, at least parity would be maintained, but that has apparently not been the case.
The consequence appears likely to be a reduction in the number of expert witnesses who would hold themselves available for cases where they would be publicly funded. It is estimated that 25 per cent of members overall of this group of 500 witnesses would not continue to give evidence in such cases and that that figure would rise to 50 per cent in London. That could seriously impede access to justice and the assistance that would be available to the courts in determining disputes. As I have said, it is not any part of the purpose of this amendment to defend the financial interests of a particular group of experts, and it is not simply a question of fee levels. It is certainly the case that a more efficient use of expert witnesses could save the public purse and perhaps the time of the courts.
The Justice Select Committee heard differing views on the use of experts. It called, in particular, for better case management by judges, with which the consortium agrees. It believes that experts could be jointly inspected so that there would be only one expert in a case, rather than two or perhaps even more; that there could be pre-hearing meetings involving the parties and the experts, so that the ground might be cleared more efficiently; and that the instructions given to experts could be better managed, with more concise and reasoned questions. It points out that it is not unusual to have sometimes 50 or more rather repetitious questions put to experts in a particular case, which is time-consuming and, therefore, necessarily expensive.
The point is also made—it should be said that this is not quite within the purview of the Bill but it reflects a problem which is causing difficulties to experts and thereby, ultimately, to the justice system—that at the moment payment is made through instructing solicitors. As a member of that profession, I am sorry to say that the profession does not have a good record in paying expert witnesses on time or, sometimes, at all. The suggestion made by the consortium is that payments should be made direct by the Legal Services Commission, which is to be absorbed within the department. Presumably, a successor body could have that same function.
Lord McNally
I do not think that I can give that assurance. The more that this goes on, the more that one can see why the Government are reluctant to accept an amendment that would impose a kind of impossibilism on the Lord Chancellor. We are working our way carefully with the LSC to a system that we think reflects the position. I hear what the noble Baroness is saying about the availability of expert witnesses. This is not the conclusion to which my right honourable and learned friend the Lord Chancellor has come; he thinks that this structure will provide the necessary experts. The more that we hear these examples given, the more I believe that the idea that legal aid or public funds can fund the whole range of expertise that the noble Baroness was suggesting is dangerous and one that I cannot possibly support from the Dispatch Box. I think that we will see some of the worst-case scenarios but we have confidence that the system we are setting up will carry on some of the procedures and reforms set in place by the previous Administration, and that it reflects an effective way of using public money. Therefore, accordingly, I ask the noble Lord to withdraw the amendment.
Lord Beecham
My Lords, I am grateful to noble Lords who have spoken in this debate. Several noble and learned Lords have been very sympathetic to the amendment; I am particularly grateful to my noble friend Lady Kennedy and the noble and learned Lords, Lord Morris and Lord Woolf. I am also grateful to the noble Lord, Lord Walton, whom it was my pleasure to instruct from time to time as an expert witness over many years, paying his very moderate and modest fees for his expert services.
I find the Minister’s response disappointing, to put it mildly. In answer to my noble friend Lord Howarth, I should say that a body to advise the Lord Chancellor in the exercise of the functions proposed by the amendment would be the right approach. However, the real issue here is accessibility, which depends on there being sufficient witnesses who are ready and willing to give evidence to assist parties and the courts. There is a clear concern about that, which is magnified by the issue of fees. The Minister rather airily dismissed the question of the availability of witnesses but did not address the point that I raised about the National Health Service finding difficulties with the proposed arrangements. My noble friend Lord Bach has handed me a letter which he has just received from the chief executive of the Central and North West London NHS Foundation Trust. The chief executive says that she writes,
“on a matter of some concern regarding the fees paid to expert witnesses … I have been approached by clinicians in my Trust who undertake expert witness work … I am informed that the fees payable for such work have recently been reduced to a rate (of £90 per hour) which is causing some concern in my … service. As the NHS, we are required to pay consultant medical staff at the national rate and these are not compatible with the rates set by the Legal Services Commission. Our staff are highly expert and it would be a great loss to the family courts if we were unable to release them for such expert witness work in the future”.
That is clear evidence of the kind of problem that we will see and which will presumably grow over time.
The noble Lord raised the issue of London having more people, and so on. However, a London expert giving evidence somewhere else, as many of them will have to do, will presumably be paid at the London rate, whereas an expert in a provincial city will presumably be paid at a lower rate. It seems incongruous to me.
I hope that the Government will look again at this and perhaps answer—if not on this occasion, then in writing—a question which was put by, I think, the noble Lord, Lord Clinton-Davis. What discussions have taken place with the consortium to which I referred, and were there any positive responses? In particular, if a third meeting was promised, why did it not take place? At this stage, however, I will not press the amendment, but beg leave to withdraw it.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Beecham Excerpts(12 years, 10 months ago)
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Lord Beecham
“( ) Before making arrangements under subsection (2)(c), a draft order with the proposed arrangements must be laid before, and approved by an affirmative resolution of, each House of Parliament.”
Lord Beecham
My Lords, after the nerve-tingling excitement of the debate on the previous amendment, we come to arguably more prosaic matters. The amendment deals with the provision in Clause 2 under which the Lord Chancellor would have the power to, as the Bill quaintly puts it,
“make such arrangements as the Lord Chancellor considers appropriate for the purposes of carrying out the Lord Chancellor’s functions under this Part”,
which is perhaps a little otiose. The crucial point arises under subsection (2), under which he may make arrangements for a variety of things:
“making grants or loans to enable persons to provide services or facilitate the provision of services … making grants or loans to individuals to enable them to obtain services, and … establishing and maintaining a body to provide services or facilitate the provision of services”.
The amendment would require any such arrangements to be made by way of an order that would have to be approved by an affirmative resolution of each House. That is consistent with the creation of what presumably, or potentially, would be a new quango—something that the Government have been at pains to dismantle wherever they have spotted one hitherto—and with the other provisions in Clause 2(2). It is necessary for there to be adequate parliamentary scrutiny of any such arrangements.
I confess to not having understood quite what the Government’s intentions are in respect of this clause; the Explanatory Notes do not live up to their title. Perhaps the Minister could sketch for us what in fact the Government have in mind regarding this provision. Do they propose to set up a quasi-Legal Services Commission? Will they set up some kind of Tesco law outfit that would be contracted to provide services more widely and perhaps on a less commercial basis?
What kinds of loans or grants are envisaged to individuals to enable them to obtain services? This is something of a novel concept—funding litigation by way of a loan from an organisation set up, presumably, by the Government. What sort of body is envisaged to provide services or facilitate their provision, given that the LSC disappears? None of this is apparent in the Bill or, as far as I can tell, in the Explanatory Notes, and it would be helpful if the Minister could enlighten the Committee about the ultimate intention.
Under Clause 2(5) there is a provision that allows the Lord Chancellor to make different arrangements under this clause—relating both to the matters to which I have referred and to remuneration, which we will come on to in a subsequent amendment—with regard to different areas in England and Wales, different descriptions of case and different classes of person. Again, it would be helpful to know what the Government have in mind. Would there be a different system of grants and loans according to different areas of law or in different parts of the country? What are the Government’s intentions, and how would they go about developing them? What consultations do they propose to hold, or indeed have they held, about this? In particular, what would be the impact not only on the legal profession but on the voluntary sector, law centres, Citizens Advice and other bodies? As I say, none of this is apparent in the Bill, hence this is something of a probing amendment. In any event, if the Government are to proceed along the lines sketchily laid out here, parliamentary approval for their proposals should be a prerequisite, and that is ultimately what the amendment comes down to.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, Amendment 7 seeks to require a novel situation whereby specific arrangements that the Lord Chancellor may make under Clause 2(2)(c) would have to be included in an order subject to the affirmative resolution procedure. I believe that it will be beneficial to expand on the purpose of the provisions in question before addressing the amendment itself.
The specific provision is designed to provide the Lord Chancellor with the powers to create a body to provide or facilitate the provision of services. In practice, this provision is included in the Bill to allow the Lord Chancellor to continue to provide services through the Public Defender Service. The PDS is a body established under the auspices of the Legal Services Commission that directly employs lawyers to provide legally aided criminal defence services, alongside solicitors’ firms in private practice that are contracted with by the LSC. This dual model tends to be used in areas where there have historically been issues with the level of availability of supply. The PDS must necessarily be distinct from the Lord Chancellor, given its role of defending individuals accused by the state of committing criminal offences.
Let me turn now to the proposed amendment. It appears to me a very novel suggestion that the legislative processes of these Houses would be used to consider arrangements that are not intended as legislative instruments but would nevertheless become so were the amendment to be adopted. The specific arrangements envisaged under this proposal—the continued provision of the Public Defender Service—do not and should not require parliamentary scrutiny. There is no question of protecting independence. Lawyers employed by the PDS are subject to the same professional obligations and ethical codes as those in private practice, regulated as they are by the Solicitors Regulation Authority. In addition to this, PDS lawyers are also subject to a PDS code of conduct, which is designed to help ensure independence. It is the Government’s intention that all current arrangements should continue under the new framework, including the PDS code of conduct.
This is explicitly dealt with in Clause 28, which provides for a code of conduct to be observed by civil servants and employees of a body established and maintained by the Lord Chancellor, the latter dealing with those individuals employed as part of the PDS. The PDS has operated unencumbered by interference since it was first deployed in 2001, and there is no basis for assuming that its continued operation should be in any way different under the revised framework before the Committee. I stress that this power will be used in law to re-establish the PDS under the new framework. However, in practice nothing will change: the PDS will operate in exactly the same manner and in the same locations, and it is not appropriate to use parliamentary time to endorse what is already in existence. Given those assurances, I hope that the noble Lord will withdraw his amendment. There is no need to put powers in the Bill to create the LSC’s replacement. This is a departmental administrative arrangement and the legal aid agency will be an executive agency of the MoJ.
Lord Beecham
My Lords, I am tempted to apologise to the Minister for not having the telepathic powers that would have enabled me to understand what the clause is about. It does not specifically refer to the Public Defender Service. Of course I accept the noble Lord’s explanation but it would be helpful if the Government were to amend the clause before we get to Report to make it clear that it is the Public Defender Service that is referred to. On the face of it, it could be any kind of arrangement that is being made, so, if I may say respectfully, it would be helpful for that course to be taken.
Lord McNally
If it would be helpful, I will write to the noble Lord to clarify and I will consult with colleagues on the point that he makes.
Lord Beecham
“( ) Before making regulations relating to the payment of remuneration to barristers and solicitors in accordance with subsection (3), the Lord Chancellor shall consult—
(a) the Bar Council;(b) the Law Society of England and Wales;(c) the Institute of Legal Executives; and(d) organisations representing the legal advice movement.( ) Where the Lord Chancellor makes regulations in accordance with subsection (3), he or she shall have regard to the need to secure the provision of services of the description to which the order relates by a sufficient number of competent persons and bodies.”
Lord Beecham
My Lords, the noble Lord may say that this amendment relates only to the Public Defender Service, in which case I suspect that my speech will be rather shorter than it might otherwise have been. The amendment refers to Clause 2(4), which refers to,
“arrangements for the purposes of this Part”—
not just this clause—
“that provide for a court, tribunal or other person to assess remuneration payable by the Lord Chancellor, the court, tribunal or other person … in accordance with the arrangements”.
The previous subsection provides that the Lord Chancellor may make such provision for remuneration by regulations. I apprehend that this will not refer to the Public Defender Service. If that is the case, I will proceed to outline the position that we wish to take.
On the assumption that this amendment is of general application, which appears to be the position, the amendment would require the Lord Chancellor to consult the Bar Council and the Law Society, which is the present position under the Access to Justice Act. In addition, it is suggested that consultation should take place with the Institute of Legal Executives, which is now a recognised and substantial body of contributors to the legal system, and with organisations that represent the legal advice movement—law centres and the like. These have, with cross-party support since their inception, played a growing and important role, again supplying legal aid and advice.
As we heard in the context of the debate on today’s first amendment—on expert witnesses—there is a potential issue about remuneration, which is linked to the possibility of maintaining an adequate supply of lawyers in this case, and to providing choice for consumers. Therefore, the amendment would make it necessary for consultation to take place, whereas the Government’s view is that it is not necessary to have that in legislation. They have indicated that they will continue to consult the Bar Council and the Law Society. We would say that consultation needs to be wider and that it needs to be statutory, rather than simply rely on the good will of the Government of the day. Consequently, any regulations that then come forward would also require approval.
Amendment 9 would make it a requirement—rather than, as matters presently stand, discretionary—for the Lord Chancellor to set and monitor standards of service in legal services. That seems a sensible provision, which would reinforce the need to ensure that there is access to advice that meets a standard. At present, under the legal aid scheme, certain quality standards have to be passed by practitioners and that should remain the case. Amendment 10 effectively reinforces that provision, again making it necessary for the Lord Chancellor or other persons to set and monitor standards of service under the Bill.
Amendment 11 refers to the need to consult the relevant organisations—the Law Society, the Bar Council and the Institute of Legal Executives—in devising and maintaining a system of accreditation for the purpose of providing legal services.
There is a question raised by Amendment 12, which as it stands would remove Clauses 3(4) and (5), which provide for the Lord Chancellor to charge for accreditation. This is designed to elicit a response from the Minister as to what the Government’s intentions are in this respect. It may be that charging for accreditation would act as a deterrent in certain areas, particularly perhaps in the voluntary sector and for law centres that would seek accreditation.
Amendment 104 again requires the Lord Chancellor to carry out consultation before making regulations in relation to criminal proceedings. He should consult with the Lord Chief Justice, the Director of Public Prosecutions and, again, the three legal bodies. There is a concern that the current pattern of reductions in support for organisations will impact on market sustainability, to use a phrase of the chief executive of the Legal Services Commission. People consider there is a danger that organisations will not survive, particularly in the voluntary sector. That is something on which the Government need to reflect when they are making regulations to secure the delivery of advice and support services.
The Access to Justice Act provides:
“When making any remuneration order the [Lord Chancellor] shall have regard to— … (a) the need to secure the provision of services of the description to which the order relates by a sufficient number of competent persons and bodies, … (b) the cost to public funds, and … (c) the need to secure value for money”.
That measure has commanded cross-party support for well over a decade. The thrust of these amendments is to ensure that that remains the case and to involve those who will be engaged in providing that legal advice and assistance in the regulations that the Lord Chancellor will be required to make regarding remuneration, the supply side of the service, as it were, and maintaining the quality of the service. I hope the Minister accepts that these amendments are designed to reinforce and support the system which the Bill seeks to create. I beg to move.
Lord McNally
My Lords, I note that the noble Lord spoke not only to Amendment 8 but to Amendments 9, 10, 11, 12 and 104. I hope that that was intentional. I am happy to reply to both groups. According to my batting order they were supposed to be spoken to separately. However, the noble Lord spoke to them so well that I am happy to reply to both groups. If anybody wants to speak to the group beginning with Amendment 9, I will sit down while they do so; otherwise, I will reply to both groups at the same time. I commend the noble Lord, Lord Beecham, on his splendid—
Lord McNally
Perhaps he would like to move the next four groups formally as well.
Amendment 8 seeks to achieve two things. First, it provides for the inclusion of provisions akin to those in Sections 25(2) and (3) of the Access to Justice Act in relation to the matters the Lord Chancellor must take into account when setting remuneration rates for barristers and solicitors in regulations under Clause 2(3), specifically,
“the need to secure the provision of services of the description to which the order relates by a sufficient number of competent persons and bodies”.
I realise that a number of the amendments that the Opposition have put forward have harked backed to the Access to Justice Act.
The second effect of the amendment would be to create a statutory requirement to consult with the Bar Council, the Law Society, the Institute of Legal Executives and organisations representing the legal advice movement before making regulations under Clause 2(3) setting remuneration rates for barristers and solicitors. I recognise that the Delegated Powers and Regulatory Reform Committee drew the attention of the House to Clause 2(3) in light of the lack of a provision in the Bill equivalent to Sections 25(2) and (3) of the Access to Justice Act 1999. However, in our view Amendment 8 is unnecessary. In respect of factors the Lord Chancellor must take into account when making regulations setting rates of remuneration for barristers and solicitors, the matter specified in the amendment is naturally a matter that falls to be taken into account, along with other relevant considerations, when deciding how to set those remuneration rates, and it is therefore unnecessary to include a reference to them on the face of the Bill. It is also unhelpful specifically to list these factors when there will be a range of other factors that, in the particular circumstances prevailing at the time, also properly fall to be considered but may appear excluded, or be given a lesser status, by the proposed provision. I am sure that noble Lords will agree that, when making regulations setting remuneration rates, the Lord Chancellor should properly have regard to all the relevant considerations and give them appropriate weight and that the Bill should not imply otherwise.
In respect of the proposed duty to consult with the Bar Council, the Law Society, the Institute of Legal Executives and organisations representing the legal advice movement before making regulations under Clause 2(3) setting remuneration rates for barristers and solicitors, we also consider this to be unnecessary. We will continue to engage the Bar Council, the Law Society and other representative bodies on remuneration matters wherever it is appropriate and constructive to do so. The absence of a statutory duty does not preclude this. With that assurance, I hope that the noble Lord will withdraw the amendment.
Lord McNally
If I may say so, that is an extremely helpful intervention. One reason why my right honourable friend is reluctant to have these things battened down is that, as I have said from this Dispatch Box, the provision of legal services and the structures of the legal profession will be changed not by any radical zeal from the Ministry of Justice but by market forces and changes that are happening in our society. Much of what we have been talking about since the dinner break has concerned the machinery to be put in place, which very much replicates machinery already there but anticipates a more fluid situation in the legal profession.
That is why specifying named organisations and people could be dangerous. What must be clear is that the Lord Chancellor has those responsibilities, including the overriding one of protecting justice. I also invite the House to have some common sense: any Lord Chancellor or Secretary of State for Justice who tried to ignore or ride roughshod over the various bodies involved would soon come to grief.
I agree with the comment of the noble Lord, Lord Bach: successive Ministers will find that you can consult but you do not always agree. I am sure that there was not total agreement when the previous Government imposed cuts in various fees for parts of the legal profession. That is the nature of things. Any sensible Lord Chancellor would involve and consult those bodies. That makes the amendments unnecessary.
Lord Beecham
I am glad to have given the Minister the opportunity to buy one group of amendments and get another free. I am sorry that he has not accepted the offer. He twice used the pregnant phrase that this does not “preclude” consultation. If I may say so, that is a very negative way of looking at the responsibilities of the Lord Chancellor and a rather worrying phrase. It is not a question of not precluding; the Bill should lay down what is expected of the Lord Chancellor and what he should do.
The Minister has repeatedly objected to the substitution of “must” for “may” in my amendments. The word “must” is in Clause 1, which states:
“The Lord Chancellor must secure that legal aid is made available in accordance with this Part”.
In some ways, this is a mirror image of another debate that I am involved in, with other Members of your Lordships' House, on the health Bill. Many of us, including some on the government Benches, have been trying to secure that the Secretary of State for Health has the duty to provide health services. That aspiration is one which, in respect of legal services and legal aid as defined in the Bill, is embodied in the government's wording.
Given that, it is not enough for the Minister to say that the LSC has those powers now. After all, the LSC effectively disappears. The Lord Chancellor becomes the authoritative body for the provision of legal services. It seems to me sensible and in fact desirable to protect the Lord Chancellor from succumbing to the temptation not to consult properly or to do things in perhaps a rather rushed or narrow way either of his own volition or at the behest of the Treasury or other organs of government, looking, for example, to make savings very quickly and perhaps very radically. I dare say that that may not be the intention of the present Lord Chancellor but it would be better to protect him from the possibility of judicial review, to which the noble Lord, Lord Carlile, referred, in the first place by providing a clear responsibility.
I was rather worried by the Minister’s reference to market forces. This is, I suppose, a reference to the sort of Tesco law that we are beginning to see happening. It rather worries me that, particularly in relation to Amendment 104, which deals with the criminal justice aspect, market forces might be deemed to be fit and proper effectively to run the legal aid service, whereas in the particularly important area of public policy and justice there is no requirement to consult such responsible bodies and persons as the Lord Chief Justice, the Director of Public Prosecutions and the three legal professions. I do not think it is good enough just to say that any Lord Chancellor would do this. One would hope that that would be the case but I am not sanguine enough to accept that it is proper in dealing with these matters to leave it to the potential good will of a future Lord Chancellor.
I would hope that the Minister would recognise that there ought to be a duty here. It is something that, in the absence of any movement before Report, we will have to come back to, as we might with regard to some of the other aspects to which he referred—in particular, the issue of charging for accreditation. I can see some case for making charges but I can also see a strong case in the realm of the voluntary sector for a different scheme. I give way to the noble Lord.
Lord Phillips of Sudbury
Does the noble Lord not take some solace from the view expressed by my noble friend Lord Carlile and the noble Baroness on the Cross Benches that a Minister who ignored the obvious consultees would be susceptible to an effective judicial review? Is that not the best assurance that the noble Lord needs in order to rely on the present wording?
Lord Beecham
It strikes me that it would appeal to members of the Bar because it could be an endless source of work for them, but I do not think that that is the best way to make law—that is, leaving judicial review as an option and expecting that to act as a deterrent. Surely it is much better to have the duties clearly outlined in the Bill and placed on the person who has the statutory responsibility to secure the availability of legal aid and advice. It seems to me concomitant with that principal responsibility. I beg leave to withdraw the amendment at this stage but I may have to return to it at a later stage.
Baroness Butler-Sloss
I am an honorary member of Resolution. I would like the Committee to know that Resolution has extremely high standards in ensuring, if possible, that its clients settle every case which the lawyers deal with. It has a very impressive protocol on how each member of Resolution should behave in family law cases. I entirely agree with the noble Lord, Lord Thomas of Gresford, about the importance of collaborative law. As I understand it, it is the brainchild of Resolution, and Resolution is doing it with a view not to making a lot of money from it but to doing something to help families who otherwise will come before the courts. It is an admirable scheme run by an admirable organisation.
Lord Beecham
My Lords, like the noble Lord, Lord Thomas, I was unaware of collaborative law until I read the briefing from Resolution, but I congratulate the organisation and the noble Lord on bringing these amendments to the Committee today. In the run-up to the Bill, the Government laid great emphasis on the need to find alternative methods of resolving disputes, and particularly on mediation. Mediation can undoubtedly play a role but it is not a straightforward matter. As I said on Second Reading, particularly where there is no equilibrium between the parties—or, to use the other phrase which has been bandied around your Lordships' House for some time, no equality of arms between the parties—mediation is not particularly suitable.
Certainly, those of us who have practised family law have often found in these cases that one party or the other—usually the husband—plays a dominant role in the relationship, particularly when it comes to litigation. All too often in my experience the other party—usually the wife—gives way. Mediation is not an adjudication and it is not a question of reaching an agreement between equals. Even if it were more balanced, it is interesting that the Government’s own projection was that out of 230,000 family cases only an additional 10,000 would be referred for mediation once the system changed as the Bill envisages. In any event, it was clearly not going to extend very much further than it does at the moment.
As the noble Lord has indicated, this proposal is of an entirely different character. In particular, there will be legal advice available—there will be somebody with the parties—and that should redress the balance that is so often missing in mediation and should lead to agreement. In fact, this was something that the previous Government had encouraged. Certainly there was the intention—I am not sure if it was realised—for legal aid to be made available for this on the basis of modest fixed fees being paid to the lawyers involved. As the noble Lord has pointed out, there was no incentive for those lawyers to prolong the case or see that it went further.
I understand from the briefing from Resolution that there has been some discussion—or at least correspondence—with the ministry, which seemed to warm to the idea and indicated that while it was recognised that Schedule 1 to the Bill only refers to family mediation,
“we think that should we wish in future to fund, for example, collaborative law, this could still be achieved. This might, for example, be through the issuing of guidance about what we wish to cover under the term ‘mediation’”.
It is not mediation, as Resolution itself points out, it is something distinct and different and, I suspect from the perspective of many of us, rather better and more useful than mediation.
The amendment deals only with family law. In principle, this process could be taken further—for example to things like employment or perhaps even debt cases, where a less elaborate process than the full litigation which is currently available but which will no longer be available to be supported by legal aid can give way to a process analogous to that which the noble Lord has outlined in the case of family law. There is great potential in this, and it is a better way of reducing the burden on the courts and the costs of public—or indeed private—funding than mediation in many cases.
I hope that the Minister will acknowledge that there is merit, both in the principle and in the amendment that the noble Lord has moved. Perhaps he will consider whether that same principle might be extended to other areas which it is the Government’s intention to remove from scope—not all areas, obviously, but there may well be some—even if it is not possible to identify those at the moment because there would have to be further consultation, and to perhaps bring back an amendment that would allow for additions to what might be brought within the framework of collaborative law, in the same way as subsequent amendments will allow for the addition as opposed to the deletion of items from scope. In that way, we would have a more flexible system that was able to adapt to changing circumstances and a changing ethos within the legal profession and advice services, and build on what appears to be a very successful initiative.
I hope that the Government will agree to take this back and look at it in principle from a supportive standpoint, and that we can end up with something very much along the lines of the noble Lord’s amendment, possibly with the additional factors to which I have referred.
Lord Howarth of Newport
My Lords, I understand that the Government are increasing funding for mediation by two-thirds, which is something that the Lord Chancellor has made considerable play of. But are the Government not at risk of putting rather too many eggs into this basket, particularly with the removal of legal aid, which is normally available in family dispute cases? Those on low incomes will be more or less forced into mediation. But you cannot force people to go to mediation. It will not work and, as my noble friend Lord Beecham has said, there is the danger of considerable inequality of power between the two parties whose dispute is being mediated.
I join other noble Lords in asking the Minister to look positively at the suggestion in the amendment tabled by the noble Lord, Lord Thomas of Gresford. It may be useful to provide some funding for collaborative law. It may well be that the legislation should reflect the positive view that the Government take of the availability of this means of resolving disputes in a variety of circumstances.
Lord McNally
My Lords, we are approaching the witching hour, as the opposition Whip moves stealthily to consult the government Whip. I do not want to give any clues as to whether this is going-home time, but if it is I am very grateful to my noble friend for ending our evening on a matter on which there is some hope of collaboration. I do not want to raise his expectations too much, but I agree with the noble Lord, Lord Beecham, that this concept, which is new to many of us, seems to have great potential. Again quoting from the noble Lord, it appears to be adaptable and flexible. It now has the not inconsiderable badge of approval from the noble and learned Baroness, Lady Butler-Sloss, as an admirable scheme run by an admirable organisation. Like book reviews, I am sure that Resolution will have that as a strap-line.
How does this fit in with what the Government are trying to do? In response to the points made by the noble Lords, Lord Beecham and Lord Howarth, I should say that we have never seen mediation as a cure-all. The Lord Chancellor has made it very clear that he wants to wean us away from almost automatic litigation at the taxpayers’ expense, which is one of the attractions of mediation. The collaborative law concept certainly has its attractions.
As the noble Lord, Lord Beecham, pointed out when he quoted from Resolution, the MoJ has said that the Bill as it stands does not exclude the possibility of funding collaborative law in the future. Clause 7 refers to funding,
“mediation and other forms of dispute resolution”.
The amendments are accordingly unnecessary in so far as they set out to make it possible, as opposed to requiring, for funding to be made available for collaborative law. However, given the reduction in the budget that we need to make and the additional costs of involving two lawyers, as would be required for collaborative law when compared with mediation, we cannot commit to the additional resources required to fund collaborative law at this stage. We would not, however, rule it out at some time in the future.
I should like to make one other point. The Government understand that some mediation cases are complex and need additional legal support. We will be providing further legal advice in such family cases where an agreement reached through mediation needs to be turned into a court order, with an independent fee set at this level of service at £200. This is in addition to the £150 fee for legal advice accompanying mediation as originally proposed, and taken together this means that there will be considerable scope for publicly funded legal advice to accompany mediation, especially in more complex cases.
As I have said, I cannot take out the chequebook this evening so far as collaborative law is concerned, but I assure my noble friend that by putting this on the agenda, as it were, there is no doubt that it will play a part in future. Again, as the noble Lord, Lord Beecham, has said and as I have said a number of times from this Dispatch Box, legal services are on the move and I can very well see that the concept of collaborative law or collaborative resolution, if my noble friend Lord Phillips has his way, may well play a part in the future. At this time of night, however, I ask my noble friend to withdraw his amendment.
Lord Beecham
My Lords, perhaps the Minister might suggest an experiment with collaborative resolution. If the Prime Minister and the Deputy Prime Minister underwent the process, it might help the noble Lord to get the resources needed to extend the principle more widely.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Beecham Excerpts(12 years, 11 months ago)
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Lord Thomas of Gresford
I will say something about that in our debate on Amendment 2. I entirely agree. I think that the Government are making a mistake in welfare law and that cutting legal advice and assistance for people at the bottom end of society will cause more problems than it solves; it will not achieve the savings that the Government think it will. That is my case. Your Lordships have only to look through the Marshalled List of amendments to see that, time and again, I seek to rejig Part 1 in a way that I think will make more sense while attempting to save the Government the money that they must save to meet the deficit in this area. That is why, to be honest, I am not concerned about this amendment. As I said, it does not say anything; it just concerns what resources will be necessary to meet what will be in this part of the Bill when we have finished with it.
Our decisions in Committee should not be about piling back in everything that has been taken out. We are living in a different world. There are different needs. Society has changed. From getting on for 60 years of experience, I think I know what those needs are. I hope, with your Lordships’ assistance, to go through it all piece by piece, detail by detail, and point out to the Government what they should rethink.
I can make a speech about principles. Good God, I have done rhetoric all my life—I am a Liberal Democrat. I listened to the noble Lord, Lord Howarth, earlier. He made a fine speech, and I agree with every word, but what it had to do with the Committee's proceedings I was not quite sure.
We want to get away from rhetoric and down to the nuts and bolts of the Bill to see what solution we can come out with at the end. That is why I shall support my noble friend if this is taken to a vote and ask my colleagues to come with me to support the Government at this stage. It might be necessary later in our proceedings to hammer home certain points that we have not yet discussed, but I respectfully suggest that it is not necessary to defeat the Government on this amendment.
Lord Beecham
My Lords, I must begin by declaring some interests. I am an unpaid consultant with the firm of which I was senior partner for 30 years, in the course of which I engaged in legal aid work in the fields of personal injury law, family law and criminal law. I was also one of the founders of the citizens advice bureau in Wallsend, near the town in which I live, and I was instrumental in securing a law centre in Newcastle. I also have to declare a paternal interest, as my daughter practises in the field of housing and employment law at the Bar.
I congratulate the noble Lord, Lord Pannick, and his co-signatories on tabling the amendment. I confess that I share some of the reservations expressed by other noble Lords about the qualification included in the amendment. I am tempted to say that if my noble and learned friend Lord Goldsmith is satisfied, I must be satisfied. In all events, I am open to persuasion by the noble Lord, Lord Pannick, whom, with his display of forensic skill and general persuasiveness, I have never heard without being utterly persuaded. I am sure that he will persuade me and others of your Lordships that the amendment is on the right lines. The reference to Part 1 is predicated upon changes that I think many of your Lordships would like to see to the scope of the Bill.
The key issue for Parts 1 and 2 is that of access to justice, as fully explained by the noble Lord, Lord Pannick, in his brief opening remarks. There are two parts of the Bill with somewhat different purposes. Part 1 deals with legal aid, which is what we are dealing with today. Part 2 deals with litigation funding and is based on the recommendations of Lord Justice Jackson. Taken together, they mark a fundamental change in our system of justice. We will debate the Jackson proposals in Part 2 later. Many will see merit in many of his proposals.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I thank the noble Lord, Lord Beecham, for his words. We are very pleased to see the noble Lord, Lord Bach, with us. He very courteously explained to me the personal reasons why he could not be with us earlier, but it is good to see him in his place now.
The debate has taken on some of the aspects of a Second Reading debate and it is none the worse for that. The first amendment allows for such wide-ranging points to be made. I shall not try to reply to them all at this point, as we are at the very start of Committee stage. My noble and learned friend Lord Wallace and I will return to many of the issues, like medical negligence and social welfare, as the Committee stage runs forward.
I accept the point made by the noble Lord, Lord Beecham, that the official Opposition are not arguing for retaining the status quo. He and the spokesman for the Labour Party in the other place have made it clear that, if they had been in office, faced with the economic situation with which we are faced, they too would have been making cuts. The debate is about where those cuts should be made and with what impact. It is fair for him to look at the impact assessment, and the fact that it lends some ammunition to him is an assurance that it is a very fair impact assessment. The very first question I answered from this Dispatch Box about the Bill related to the fact that if you make budget cuts to a section of government expenditure that is focused mainly on the needy, it is the needy who will find the impact of those cuts. That is true of housing, social welfare, and so on, and that is the reality of a Government who have to cut back on expenditure.
I make no complaint at all about the contributions from lawyers in the debate. If we were debating a fundamental issue about medicine, I would hope that the noble Lord, Lord Winston, and other expert medics in the place would contribute; and if we were talking about defence, I would hope that our generals would contribute. I do not think that there is anything wrong with the fact that a large number of the contributors have come from the legal profession. The daunting thing for me, as a non-lawyer, is the array of talent that is on display from the legal profession. I always remind my colleagues down the corridor that, whenever I stand at this Dispatch Box, I am very conscious that somewhere in the listening audience there are about three former Lord Chancellors and half a dozen former Solicitor-Generals or Attorney-Generals. I have never quite got to grips with the number of QCs that we have in the House of Lords, but there is a goodly number. We have good legal expertise and this debate is, and the Committee stage will be, all the better for it.
It is certainly not my intention to approach this—I am trying to find that barb from my noble friend—with something like tetchy impatience. In fact, over the past few months, I have been watching my noble friend Lord Howe at the Dispatch Box. He will be my model for this Committee stage—a kind of concerned bedside manner.
However, in talking about Committee stage when I was on the Benches opposite, I was on record as saying that if the House divides in Committee, almost invariably one will have to resist. I genuinely want to use Committee stage to listen. I cannot make blanket promises and I certainly, at this stage, cannot start giving a list of concessions. The position of the Government is that the Bill has been delivered from the other place in pristine condition and ready for adoption but, as our system works, we listen to the advisory—
Lord Beecham
I am not so sure about adoption being that much more difficult these days.
Lord McNally
We will listen and we will ponder. I hope that that will be the spirit in which we conduct the debates. It is certainly not, as the noble Lord, Lord Alton, suggested, an attempt to turn the clock back. Even when this exercise is finished, no one could dispute that we will have one of the most generous legal aid schemes in the world. My right honourable friend the Lord Chancellor, in his article in the Guardian, which has been quoted a number of times, says:
“Access to justice is a fundamental part of a properly functioning democracy”.
He goes on to make the point that the noble Lord, Lord Howarth, and a number of others made: “Without legal aid, and”—I emphasise this—
“the dedicated lawyers who deliver it, our system of justice would quite simply collapse”.
That is the starting point.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Beecham Excerpts(13 years ago)
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Lord Beecham
My Lords, not for the first time, although I think it is fair to say no doubt inadvertently, children and young people will be among the prime casualties of government policy. The Family Rights Group reports that 300,000 children are living with family or friends as carers because of illness, violence, separation, drug abuse or whatever by their natural parents, and a third of these carers give up work to look after the children. They can apply for a residence or guardianship order, but the Bill will allow legal aid funding only where the child is at risk of abuse and in particularly constrained conditions.
For example, under Clause 10, evidence of abuse would have to be provided, including ongoing criminal proceedings for child abuse, where a local authority child protection plan is in being, or where a court has found that child abuse has occurred within a period of 12 months prior to the application. Therefore, a carer cannot obtain funding to anticipate a situation in which a child might be abused, nor will an application be able to receive legal aid support 12 months after the last incident of abuse. I hope that the Minister and the Government will look very closely at the requirements to facilitate the granting of legal aid in circumstances in which, for example, there is a reasonable cause for the carer to fear that abuse would occur even if it has not already occurred.
Alternatively, the 12-month time limit for proving abuse should be waived, and in particular there should be no bar to obtaining funding for resisting an application to discharge an order simply on the grounds that any abuse took place more than 12 months before that application was made. Equally, funding should not be restricted where the court has made a Section 37 order requiring the local authority to investigate whether abuse has occurred.
In any event, the restriction of legal aid funding to instances of child abuse, as such, is much too narrow a definition. Of course, where the welfare of children is concerned, access to justice should surely not depend on private resources where legal aid is not available.
The position of children is affected in other ways, too. The noble Lord, Lord Alton, referred to the fact that 6,000 children will be denied legal aid and assistance. Indeed, 69,000 youngsters between the ages of 18 and 24 will lose access to legal aid and advice. The range of cases is quite remarkable. There are nearly 2,000 employment cases, 9,000 debt cases, 11,000 immigration cases, 210 education cases, 9,000 welfare benefits cases, 1,090 clinical negligence cases, and up to 34,580 private law cases involving children. Those are very significant figures, and large numbers of young people will therefore be denied legal aid.
The Government seem to rely on the voluntary sector to pick up the slack that will be created by the withdrawal of legal aid funding. Citizens Advice estimates that the 500,000 people whom they currently serve will lose out because of cuts that they are sustaining. They have an 80 per cent success rate in the cases that they bring, supporting claims with legal advice. They estimate that 75 per cent of their cases in debt would lapse, and they take on an astonishing 9,400 cases a day nationally.
The noble Lord, Lord Shipley, referred to the difficulties faced by law centres and quoted extensively the position in Newcastle. In fact, virtually the same observations were made at cols. 844 and 845 in Hansard on 26 October, when I made a speech that very much involved Newcastle. However, I undertake to the noble Lord that I will not bring any action for breach of copyright whether or not no-win no-fee arrangements are available to me. In any event, the point is well made and it is broader than simply Newcastle.
Local authority cuts to law centres nationally average 42 per cent; in London the average is 61 per cent. Four law centres have received a complete 100 per cent reduction in their funding from the local authority—in Birmingham, Oldham, Warrington and Wythenshawe in Manchester. More may well be on the way. The total cut in grants from local authorities to law centres is some £7 million. That has to be set against the £20 million, to which others of your Lordships have referred, which the Government are proposing to award in a grant. I understand that reference has been made to that £20 million about 14 different times. Whether it is the same £20 million no doubt the Minister will advise us, but perhaps when he replies he will indicate whether it is a one-off payment or whether it is envisaged that it will be continued. If it is a one-off payment, frankly, it will not go very far to staunch the flow of resources from law centres at a time when demand will constantly be rising.
I do not for a moment suppose that the Minister would associate himself with the rather strange attitude evinced by one of his ministerial colleagues in the Ministry of Justice who was reported in the Guardian last October as saying that legal aid work will be useful filler for unemployed lawyers, or for women returning to work. That is hardly a sensible definition of legal aid and what it has to offer.
Many of us have been concerned that the Health and Social Care Bill, with which we continue to deal at some length, will undermine the National Health Service. It is clear to many of us in your Lordships' House that this Bill clearly demonstrates that the Government are taking a wrecking ball to the structure of access to justice. That is in the context in which, on their own figures, 80 to 85 per cent of cuts to legal aid will affect the 20 per cent poorest people in this country. I can do no better than conclude with the words of Lord Justice Jackson in his report from which the Government have cherry-picked their selection of reforms. He said very explicitly:
“I do not make any recommendation in this chapter for the expansion or restoration of legal aid. I do, however, stress the vital necessity of making no further cutbacks in legal aid availability or eligibility. The legal aid system plays a crucial role in promoting access to justice at proportionate costs in key areas”.
Those should be the watchwords of any reform. Thus far, the Bill does not match them.
Community Legal Service (Funding) (Amendment No. 2) Order 2011
Lord Beecham Excerpts(13 years ago)
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The Lord Bishop of Ripon and Leeds
My Lords, I am grateful to the noble Lord, Lord Bach, for raising this issue tonight and for concentrating my thoughts—like those of the noble Earl, Lord Listowel—on the welfare of children as they are treated by our legal system. We spent the whole of this afternoon talking about the treatment and rights of children. I look forward to the Government’s response and comment on the ways in which children can be particularly protected in our legal system by the way in which the distribution of fees is arranged throughout that system.
I am still puzzled by the words of the noble Lord, Lord Marks, and why it should be this area in which we look for savings. A number of noble Lords have spoken of areas, in criminal law, for example, where there could be significant savings. Why should it be this area? I think of the work, for example, of Henry Hyams, a firm of solicitors in Leeds which takes some 2,000 cases a year from the most deprived areas of Leeds. They tell me that almost all of those cases involve the welfare of children.
That takes us to the effect of these cuts on those clinicians who provide reports to assist the courts in making determinations about the safeguarding of children—professionals who provide evidence of injury and of abuse and who are often key to the welfare of children. We have improved immensely our understanding of childcare in our society, and much of that has been due to the diligence of such professionals. We are all made very aware when a mistake is made by one of those professionals; we forget the thousands of cases when accurate decisions are taken about children’s welfare and their future. The debate that we had all afternoon and this debate come together in looking at the well-being—again—of children, and of their place in our society.
Clergy in pastoral work are often aware of the time spent both by those clinicians and by lawyers with their clients, seeking the best way forward for children and family life, often in work that is undertaken quite outside the fee system. We claim to be a society that puts the family first; social welfare law is an important part of enabling us to do that.
The noble Lord, Lord Marks, spoke of the way in which he hoped that, if there were gaps in our provision, they would be able to be filled again as the economic situation becomes better. But the most important part of our response to the difficulties in which we find ourselves is that those who are most deprived in our society should be those whom we seek to protect from the cuts being made. The Government and many local authorities seek to do that, yet in this particular instance those cuts are bearing at their hardest on those least able to bear the brunt of them.
Lord Beecham
My Lords, I have three categories of interest to declare. The first is professional but, unlike a number of noble Lords who have spoken, not as a member of the Bar and still less as a most distinguished judge but as a mere solicitor and now as an unpaid consultant in the firm of which I was senior partner for some 30 years. The second is a political interest. As my noble friend will recall, it was a resolution that I was responsible for that went to the Labour Party conference some three years ago, which was somewhat critical—and rightly so—of the then Government’s policies on legal aid. That led to the establishment of the committee chaired by my noble friend Lord Bach, on which he was gracious enough to invite me to participate. The third is a personal one, because the noble Baroness, Lady Deech, and I graduated at the same time all of 46 years ago from the school of jurisprudence at Oxford.
This order, coming as it does shortly before the Legal Aid, Sentencing and Punishment of Offenders Bill reaches your Lordships' House, is something of a tawdry harbinger of what is very likely to be a prolonged and hard winter for access to justice. It is interesting that the young legal aid lawyers, in the briefing note that they have circulated, drew attention to the fact that the consultation that the Government entered into on their proposals to reduce these fees was very limited. They consulted only the Law Society and the Bar Council; there was no consultation with other stakeholders, such as law centres, community groups or citizens advice bureaux, or indeed any client interests. This does not seem to represent the “no decision about me without me” process, which was allegedly followed in terms of the health service.
Lord Beecham
The lack of consultation to which I referred and on which I quoted the legal aid lawyers was in relation to this fees order, not the Green Paper.
Lord McNally
These were all foreshadowed in the Green Paper. The noble Lord, Lord Newton, is not a happy bunny but, as I said to the noble Lord, Lord Beecham, if we were not willing to take tough decisions, there would be a lot more unhappy bunnies around because we would be paying interest rates of two, three or four times what we are paying now, which would result in far greater cuts in public expenditure and services. The fact that our Government are not making headlines in relation to the economic situation in which they find themselves is because we had the courage to take tough decisions early. I have no doubt that when we ask colleagues and the Opposition to face up to that fact, we will always have the problem that these are tough decisions; we have never resiled from that.
Young People: Politics
Lord Beecham Excerpts(13 years, 2 months ago)
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Lord McNally
My Lords, I will take back to the Cabinet Office the suggestion of specifically recruiting young people to encourage other young people to register. The Cabinet Office has been consulting with youth groups to develop detailed operational policy for individual electoral registration, including ways in which to tackle under-registration. Additionally, the independent Electoral Commission runs public awareness campaigns to encourage voter registration ahead of all major election events.
Lord Beecham
My Lords, can the Minister explain how the Localism Bill’s abolition of the duty to promote democracy will encourage more young people, or indeed any people, to engage with democratic institutions?
Lord McNally
I am not sure whether that particular part of the Localism Bill will have an impact in the way in which the noble Lord implies. As I have just indicated, the Government are taking a great deal of care and attention, particularly about individual registration. Going back to the original Question, we are taking particular care to try to ensure that young people register to vote.
Justice: Reform of Punishment, Rehabilitation, Sentencing and Legal Aid
Lord Beecham Excerpts(13 years, 5 months ago)
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Lord McNally
My Lords, even as I was saying the words about the decision on mandatory sentencing, I had the noble and learned Lord very much in mind. I know his views on the matter. We will have to see how the matter goes through. I know that there are conflicting opinions on it. As I have said, my inclination is for a lot more judge power to be employed, rather than finding the prison population surging not because of a surge in crime but because changes have snared people who might not otherwise have been sent to prison.
On Schedule 21, we want a simpler and more transparent sentencing framework that is also more coherent. We consulted on a proposal to reform Schedule 21—as a possible simplification of the sentencing framework, rather than a measure to change sentencing practice—which sets out the starting point for determining the minimum terms to be served by an offender receiving a mandatory life sentence for murder. There was some support for revisiting the drafting of those provisions, but others took the view that the courts have already interpreted them in a consistent and flexible way. We have therefore concluded that reform is unnecessary at present.
Lord Beecham
My Lords, under civil legal aid, how many of the estimated 700,000 cases for which entitlement would have been lost under the original proposals will now be retained? What is the estimated cost of those changes to restore legal aid and advice that would otherwise have been removed? Secondly, is it correct that 90 per cent of the 5,000 responses disagreed with the proposals for legal aid?
Lord McNally
I am not sure what the statistics are on the responses. If you are about to cut a budget and you ask for opinions, I would guess that you are more likely to get more people objecting to the cuts than you are people in favour. That does not take away the validity. We had a large number of responses, and a large number pointed out various impacts, such as the point made by my noble friend Lord Thomas: sometimes solicitors on legal aid give early advice that saves problems further down the line. It is a difficult balance.
I have never tried to mislead the House by denying that, in part, the things that we have done have been for cost reasons, because of the constraints. That means that some decisions have been hard. The estimate is that we will reduce cases by about half a million—about 600,000 cases will be removed from scope. On the social welfare end, it is an extremely severe cut. Part of our debate will be about our arguments that, in this area, there has been too much publicly funded litigation and that there is much more scope for mediation and non-legal advice. That will be tested as the Bill goes through the other place and through this place when it arrives.
Civil Legal Aid
Lord Beecham Excerpts(13 years, 6 months ago)
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Lord Beecham
To call attention to the case for civil legal aid; and to move for papers.
Lord Beecham
My Lords, I declare an interest as an unpaid consultant in the firm of solicitors of which I was previously senior partner, and which practises in part in the area of legal aid.
We follow a debate on human rights with a debate on one of the most fundamental human rights—access to justice. I say immediately that the credit for this Motion coming before your Lordships’ House today belongs not to me, but to my noble friend Lady McDonagh, who drafted it and would have moved it had she been able to do so. Alas, she is not able to be present today for personal reasons, so I am in a sense instructed by her—a familiar condition for me, because she used to instruct me on behalf of the trade union for which she was an officer many years ago, and after that as general secretary of the Labour Party. I follow my instructions today with perhaps a little more alacrity than I did in that former case.
The legal aid system was one of the great pillars of the post-war welfare state. At one time affording access to justice to 80 per cent of the population, it has undergone many changes in the past 62 years. Currently, around 36 per cent of the population fall within the financial eligibility limits—both income and capital—for legal advice and assistance, or representation in matters of civil law. Some areas have long been excluded from the civil legal aid system, including most personal injury claims, which ironically were removed from the system's scope because of the conditional fee system that the Government now propose to abolish in the guise of an attack on the so-called compensation culture, the extent of which is surely exaggerated.
Last week, I confessed to having form in the matter of police reform. I have a similar confession in respect of legal aid. My noble friend Lord Bach will recall that I was responsible for a debate at a Labour Party conference which was somewhat critical of the previous Government's legal aid policy—this was just before he became a Minister responsible for it—and chaired a very constructive working party that made some improvements to that policy.
At present, legal aid and advice are available across a wide range of issues, including debt, employment, housing, education, family law, immigration and clinical negligence, and more besides. In some of these areas, legal aid does not extend to representation: in others, it does. The total cost is around £900 million a year for civil legal aid and £1.2 billion a year for criminal legal aid. The Government's Green Paper on legal aid reform proposes a massive cut in the civil legal aid budget of £279 million, with a much smaller reduction of around £71 million in the criminal legal aid budget. It achieves this by substantially reducing the scope of the scheme across most of the categories currently covered, while several categories are removed entirely.
The effects are stark. The Government's assessment of the number of individuals affected by the withdrawal of access—not the overall number, which would include family members—is around 500,000 to 550,000. This figure appears to understate the real effect by around 150,000, based on the latest Legal Services Commission data that show that some 725,000 cases will not be assisted. The Legal Action Group’s estimate is 650,000—still substantially more than the Government's estimate. No doubt those figures reflect rising demand stemming from the effects of the recession both in terms of the need for advice and the increasing numbers becoming financially eligible.
What are the implications of this massive cut—around 70 per cent—in the number of cases for which funding will be available? In round figures, funding will be available for 250,000 fewer cases involving family disputes; 140,000 fewer cases involving welfare benefits; 110,000 fewer cases involving debt; 50,000 fewer cases involving serious housing problems; and 30,000 fewer cases involving employment problems. The impact is concentrated on the poorest. Currently, 80 per cent of legal help cases and 90 per cent of cases where legal representation is funded involve the poorest 20 per cent of the population.
No doubt other noble Lords will give examples of the kind of cases for which assistance will no longer be available. I will confine myself briefly to four. In the area of housing, tenants will not receive help in securing the repair of their homes; in the area of education, the parents of disabled children will not be helped to secure proper provision from the education authority; in the area of employment, help will be available only in discrimination cases; and in the complex world of clinical negligence, no claims will be assisted, not even those of children.
The Government believe that greater reliance on two factors, mediation and the support of voluntary organisations, will substantially mitigate the effects of the draconian cuts. However, mediation already exists—it has to be considered now by the parties and the courts—yet only in some 4,000 cases a year is it adopted. Moreover, as I remarked when we discussed the Statement launching the Green Paper, mediation is not suitable when, as in many family cases, there is disequilibrium in the material or psychological resources of the parties, with the pressure on the weaker party to agree often being irresistible. By definition, the objective of mediation is agreement, not adjudication.
As regards alternative sources of support, law centres and Citizens Advice, too, are under extreme financial pressure, both from the withdrawal of government funding implicit in the proposals of the Green Paper and from local councils struggling to cope with the largest ever reduction in government grants. The Law Centres Federation anticipates a loss of something over 50 per cent of law centres’ income, and there is a fear that 50 out of the 56 existing centres may be forced to close if the Green Paper proposals are implemented. Many are already struggling with cuts in grants from local councils such as Birmingham or Hammersmith and Fulham, where the entirety of local authority funding has been withdrawn. Citizens Advice faces similar pressures at a time when demand is increasing.
The Government rightly claim that our legal aid scheme, when compared internationally, is one of the most, if not the most, generous. However, as the Bar Council points out, if one looks at the cost of the justice system as a whole, adding the cost of the courts to the legal aid bill, the gap is much narrower. Reducing the costs of administering the system should be the first priority. Paradoxically, the reduction in legal aid and advice might drive up costs, as the courts contend with the problems of dealing with litigants in person. International comparisons of expenditure are inevitably rough and ready, taking little or no account of different legal systems, let alone different social and economic structures or pressures. Citizens Advice, in its response to the Green Paper, demonstrated that the taxpayer saves substantially by investing in legal aid. In the case of housing, the saving is £2.34 for every £1 spent on legal advice or legal aid; in the case of debt, £2.98 for every £1 spent; in the case of benefits advice, £8.80; and in the case of employment, £7.13.
Clearly, the justice system cannot be immune from the pressure to engender savings at a time when deficit reduction is a given, even if the scale and timing of reductions continue to be contestable issues. However, I urge the Government to consider very carefully the Law Society's proposals for savings. It identified £249 million-worth of savings for the Ministry of Justice from a range of measures, including improving the efficiency of the prosecution service and capping an individual lawyer’s fees derived from legal aid. In addition, it accepts £62 million of the savings that the Government propose in the Green Paper, plus further savings from barristers' fees. I observe that the Law Society is rather quick to suggest reductions in barristers’ fees; its enthusiasm may not be shared by the Bar Council. In addition, it suggests areas where revenue can be raised: for example, by a modest 1 per cent levy on the alcohol industry, which contributes significantly to the need for legal services not just in the criminal courts but in such areas as family law, housing, debt and welfare—or, on another track, by simplifying housing law. It estimates that £158 million could be raised from a variety of such measures. If all the savings suggested by the Law Society were to be adopted and implemented, they would bring a total of £469 million-worth of savings—substantially more than in the Government's proposals contained in the Green Paper.
There may be other ways of contributing to reductions in the civil legal aid budget. In earlier days, legal aid lawyers suffered a levy of 10 per cent on their costs, as eventually assessed by the courts or agreed with the other side. Perhaps we could revert to that system to generate money for the legal aid fund: or perhaps we could introduce a contingency fee system under which legally aided clients would contribute a proportion of their damages or sums that they recover to the legal aid fund, but preferably not to their lawyers. I recall suggesting such a scheme at a meeting where my noble friend Lord Boateng, then a Minister in another place, had roundly denounced fat-cat lawyers. Speaking, as I said at the time, as a moderately plump-cat lawyer, I thought that my proposal was worth investigating. He did not, and it was not: yet it still seems to me that such a system, coupled with the former practice that cases had to be independently assessed by practitioners as having a reasonable chance of success, and authority obtained to incur significant expenditure, would be better than the conditional fee system that is supposed to incentivise lawyers to undertake weaker cases—on the grounds that swings and roundabouts would apply—many of which might fail. Those cases would be subsidised from the fees from cases that they won. Of course, the conditional fee agreement is now to go.
The Lord Chancellor has made a refreshing start on reforming penal policy, distancing himself from both his Conservative and Labour predecessors. I applaud him for that, though not for yesterday’s unfortunate pronouncements, but in this area of civil legal aid, he is in danger of making a grievous error. In the words of the current Lord Chief Justice, the proposals fail,
“to recognise the depth of the problem”,
and,
“the proposals would lead to a huge increase in the incidence of unrepresented litigants, with serious implications for the quality of justice and for the administration of the justice system”.
Consider the following from the Jackson report from which the Government have cherry-picked recommendations about costs and conditional free agreements:
“I do not make any recommendations … for the expansion or restoration of legal aid. I do, however, stress the vital necessity of making no further cut backs in legal aid availability or eligibility. The legal aid system plays a crucial role in promoting access to justice at proportionate cost in key areas”.
Those are very salient words from a distinguished judge looking at this key issue of public policy.
I have quoted the present Lord Chief Justice, and I conclude by referring to a most distinguished predecessor, the noble and learned Lord, Lord Woolf, who is not in his place today. Two or three years ago, the noble and learned Lord published a volume which is a distillation of his jurisprudence, wisdom and humanity. It is called The Pursuit of Justice. The title is derived from the biblical injunction:
“Justice, justice shalt thou pursue”.
I hope that this House in the course of this debate will endorse that sentiment and urge it on the Government.
Lord Beecham
My Lords, I thank noble Lords who contributed so seriously and constructively to the debate, and others who indicated interest and support but were unable to attend. I cite in particular the noble Lord, Lord Newton of Braintree, who very much wished to be here. I extend my thanks and sympathy to the Minister, who struggled manfully with the constraints of collective responsibility—or, as some of us would say, collective irresponsibility. I am sure that he will take back the opinions, facts and suggestions from today's debate and that we will see at least some of them reflected in the legislation that is wending its way towards us. In the circumstances, I beg leave to withdraw the Motion.
Justice: Civil Litigation Reform
Lord Beecham Excerpts(13 years, 7 months ago)
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Lord Beecham
My Lords, I declare an interest as an unpaid consultant in the firm of solicitors at which I was for many years a senior partner. Like the noble Lord, Lord Thomas, I am no great fan of the no-win no-fee scheme. I recall a discussion with the noble and learned Lord, Lord Woolf, on a social occasion many years ago at which I outlined some objections. He was much more confident about it. The problem is the disappearance of legal aid for so many of these claims, particularly in the realm of personal injury claims.
In a letter today in the Guardian, the president of the Law Society makes two points on which the Minister might like to comment. The first is in relation to the high costs incurred in clinical negligence claims. The president says that much of that is incurred because of the way in which the National Health Service contests these claims. It is very slow and, in far too many cases, the claims go right to the door of the court instead of seeking to settle them earlier. Savings could be made if those cases were better dealt with.
The second point relates to the thrust of the Government’s proposals today around mediation. Does the Minister agree with the president of the Law Society, or does he have a view about her comments, that mediation is suitable in cases where the parties are roughly comparable in their status, economic position and so on but much less so where there is a disequilibrium between the two parties? Is there not some danger in pressing the mediation route, as the Government seem intent to do with these reforms, at the expense of having matters properly adjudicated on with a determination that is perhaps more suitable in more cases than the proposals imply?
Lord McNally
My Lords, I take on board what the noble Lord has said about the way in which the NHS fights its cases. I am not sure whether I have the exact costs to hand but they are enormous. Certainly any way of making settlements easier and less costly will save literally hundreds of millions of pounds for the NHS. Certainly the lowest figure for the impact on these settlements would be £50 million a year, but many people believe it would be far more.
I agree that mediation will work in disputes only up to a point. However, many people find themselves drawn ever deeper into the litigation process, with its associated costs, when a matter might be dealt with much earlier. Mediation offers the opportunity to nip problems in the bud and to avoid the stress that can often accompany a drawn-out legal process. The noble Lord made a point about inequality of arms, and a great deal will depend on the quality of the mediator and their ability to judge these matters.
I now have the figures for the NHS. In 2008-09 the National Health Service paid out £312 million in damages, but it paid out far more in lawyers’ fees—£456 million. That is the wrong way round and it is not where the NHS should be spending its money.
I have the highest respect for the Law Society, which has an absolute duty to represent its members and to put forward its views. However, I am not sure that the invitation on its website at the moment is within the dignity of the profession. It states:
“Defending legal aid: send us your case studies … What we urgently need from you are cases studies of individuals with interesting stories that will chime with the general public. It is clear from our research that cases of medical negligence (especially obstetrics), education matters and private law family matters will resonate very well with the public. Those cases based on clients who are happy to discuss their case with the media and be photographed would be particularly helpful. High profile cases will also be gratefully received”.
That is one way of representing its members, but I would not describe it as research.