Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Campbell of Alloway Excerpts

Wednesday 14th March 2012 Lords Chamber

[Lord Quirk]

My Lords, I very much support the amendment. As the noble Lord, Lord Newton, reminded us, communication is by no means dependent solely on ears and eyes. It is multisensory and—as the noble Lord, Lord Phillips, hinted earlier—the greater one’s need, the more senses one needs for satisfactory communication. I hope very much that the Government will accept the amendment.

[Lord Campbell of Alloway]

My Lords, I will take very little time. I am very concerned about the situation, for all the reasons that were given—and that were put better than I could have put them. I ask only that consideration be given, and an assurance of further consideration, so that this proposal will not simply be cast away in some form of dismissal. That is all I ask for: an assurance that consideration will be given.

[Lord Bach]

My Lords, I am proud to be associated with the amendment in the names of the noble Baroness, Lady Grey-Thompson, and the noble Lords, Lord Newton and Lord Pannick. The amendment is of the greatest importance, and many people outside the House are following it with exceptional interest.

It is perhaps important to remind the House that the mandatory gateway will apply only to those elements of social welfare law that are still in scope—including, of course, for the moment, welfare benefits because of a decision that the House took last week on an amendment moved by the noble Baroness, Lady Doocey. That is a statement of the obvious, because those areas of social welfare law that the Government intend to take out of scope will be quite irrelevant for these purposes. There is no possibility of legal aid in those cases. In effect, the Government are saying that people with those legal problems will have to fend for themselves if they have no money. That is a pretty shocking state of affairs.

We have had a short but powerful debate in this House today—and we had a very powerful one almost three months ago at the end of the first day of Committee, on 20 December 2011. Very powerful speeches were made. I have in mind that of the noble Lord, Lord Shipley, whose final words were:

“There are real dangers that some of those most in need of help will fail to secure it through a mandatory telephone gateway”.—[Official Report, 20/12/11; col. 1764.]

The noble Lord, Lord Phillips of Sudbury, made yet another powerful speech today. The one he made on that occasion was powerful, too. He said:

“If it is mandatory for those seeking assistance to go through a telephone gateway, we will cast adrift a significant minority of our fellow citizens who will never use a telephone gateway for the sorts of problems with which they are confronted”.—[Official Report, 20/12/11; col. 1766.]

The Minister says from a sedentary position that there is no evidence of that. What an unbelievable response. One only has to know from human nature—from living in the real world rather than the world of Whitehall—that that is how people are. It is about time that the Government started taking people as they are rather than as they want them to be. There were powerful speeches also from the Liberal Democrat Benches on that occasion.

I made the point that it was nearly three months ago because we have had no hint of a concession in all that time. We know from a letter that a telephone call will not be free, as was suggested at the time. There will be a cost to the client who has to make the call. It will not be huge, but it will be there—and that is another factor that will apply. It is simply common sense that to have a mandatory gateway for all clients seeking legal advice is absolutely inflexible and will almost certainly lead to a number of people who clearly should be helped receiving no help at all. It will lead to injustice after injustice.

The Bolton CAB is a large CAB which covers all these fields and has a legal aid contract. It runs an advice surgery from time to time. Yesterday it tried an experiment. Every client who came in had their tale told in general terms by way of a tweet, in other words on Twitter, so that one could read each one of these cases during the course of the morning and afternoon while this surgery lasted. One could see from reading these how the world of a busy CAB or law centre or advice centre actually worked in practice. There were 126 clients who sought legal advice on social welfare issues and they covered practically everything that you could think of. I have no doubt that some of those clients were well able to make a telephone call and start proceedings in that particular way, and I am an undisguised fan of telephone advice when it is appropriate. But are the Government really saying, as I suspect they are, that all 126 of those clients would have been able to do this? Are they saying it is not highly advantageous to have face-to-face contact in some cases? And are they really saying that someone who turned up to a CAB should be turned away and told to call a hotline, as will happen unless this amendment is passed? Can you think of a more bureaucratic, fussy and less efficient system and one that is less reflective of the way people actually live their daily lives? I would argue that it is an absurd proposition which is un-British in the sense that it is one-size-fits-all and too dirigiste and inflexible an approach.

Sometimes Governments just get things completely wrong and Parliament has some sort of duty to say so. It actually helps Governments in the long run if they do not charge off in the wrong direction. Here is a short story. I remember when I was a Minister sitting where the Minister is, in the same department, putting forward some foolish, to put it mildly, proposition and then seeing, when the vote was called, many of my own supporters walking past in order to vote in the Opposition’s Lobby and losing the vote for the Government by a large amount. It was the right thing for them to do. Actually, there was so many of them that none of them could be picked out and dealt with later. There is an advantage in numbers sometimes. And they need not even be afraid on this occasion of the noble Lord, the Deputy Chief Whip of the House. Frankly, I would argue that this is one of those instances. If the Government are defeated on this issue and if the Liberal Democrats could just bring themselves for once to vote against the Government, the world would not stop, the Government would not fall, but an enormous mistake might be averted and Parliament would have done the right thing.

--- Later in debate ---

[Lord McNally]

I would certainly consider that. As so often with suggestions from the noble Earl, that is well worth considering. However, to put it to him the other way round, if the person phoning has children the benefit of being able to get advice at a distance by telephone at a time of their choice could also be an advantage.

[Lord Campbell of Alloway]

I thank the noble Lord. His speech opened the gateway, for which I am grateful, to the face-to-face, one-by-one necessity which arises in a lot of desperate cases. Therefore, on that basis, I accept that the Government will do the right thing.

[Lord McNally]

I am very grateful that my eloquence has won the noble Lord over. I would ask the House to consider what he has rightly drawn attention to: namely, that some people may be in need of an hour-long chat, which is why the gateway is important for the volume that we are dealing with and for making sure that people get the right and the best advice as quickly as possible.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Campbell of Alloway Excerpts

Monday 5th March 2012 Lords Chamber

[Lord McNally]

The noble Lord will probably continue for the next five days to make his debating points, but we are not depriving them and he well knows it. As the Bill proceeds we will make further comments about help on advice.

The Government also consider that case law does not establish that in order to have access to a court, it is a necessary precondition that an individual has received legal advice. A common law right that requires access to legal advice and beyond that to state-funded legal advice and assistance, would also go beyond the approach laid down by the European Court of Human Rights in its case law on Article 6 of the ECHR.

The Government considered very carefully from first principles which cases should continue to attract publicly funded legal advice and representation in the light of the financial constraints that I have mentioned. As reflected in the Bill, the Government reached the view that exceptional funding under Clause 9 of the Bill should be limited to ensuring the protection of an individual’s rights to legal aid under the ECHR as well as those rights to legal aid that are directly enforceable under EU law.

In addition to this the Lord Chancellor would be required in carrying out his functions to protect and promote the public interest and to support the constitutional principle of the rule of law. These considerations are inherent in the Lord Chancellor’s functions as a Minister of the Crown and do not require specific reference here. In addition, the Lord Chancellor has some specific duties under the Constitutional Reform Act 2005.

We have also been clear in the response to consultation that we will work in conjunction with the Legal Services Commission and its successor executive agency to develop and put in place a procurement strategy that reflects the demands and requirements of the new legal aid market.

In light of the practical barriers in operating this amendment and the fact that the more principle-based concerns are addressed in the Bill, I would urge the noble Lord to withdraw the amendment. Many speeches today have gone far beyond what legal aid means in the scope of legal aid under successive Governments. The Bill is honest about what we can do and, as such, it deserves the support of this House.

[Lord Campbell of Alloway]

Perhaps I may ask my noble friend a question, as I am rather confused. To implement this question as put surely you need to have an elastic available resource—you need something that from time to time meets the circumstances. Is that not right? If you look at Clauses 2 and 4, you will see that they are all involved. It is all a question of legal aid and legal resources. I am not trying to be difficult but I just do not quite understand how it will be paid for.

[Lord McNally]

As we continue to point out, it is being paid for by taxpayers via my right honourable friend the Chancellor of the Exchequer. However, my noble friend does put a point. This amendment creates a warm glow. It is a general declaration which the noble Lord assures us will not really affect the workings of the Bill. I am telling him that the Bill, in its structure, covers all the important commitments that he seeks without misleading the public or Parliament about the very real constraints that we and previous Governments have had to put on the limits of legal aid.

Insurance: Payment Protection Insurance

Lord Campbell of Alloway Excerpts

Monday 5th March 2012 Lords Chamber

[Lord McNally]

My Lords, those are exactly the regulations that pertain to these companies. However, because of the pressure of sales, there is no doubt that people are being misled in that way. We shall need to take further action because, as the noble Baroness rightly says, one does not need a pocket calculator to realise that these companies operate in an area where they can make a lot of money, which should quite properly go into consumers’ pockets.

[Lord Campbell of Alloway]

My Lords, why is the Minister of Justice concerned with this? If there is concern, why is not the Lord Chancellor asked to deal with this? What is the difference between the one and the other now that we do not have the old-style Lord Chancellor or Minister of Justice?

[Lord McNally]

I was halfway to agreeing with the noble Lord because one of the first things I asked was: why is the Ministry of Justice regulating claims management companies? I was told—I am looking at the noble Lord, Lord Borrie, although I do not think he was in post at the time—that the Office of Fair Trading was reluctant to take on this responsibility. The noble Lord nods his head. I still wonder whether there would not be a better home for this matter, but while we have it, noble Lords should know that our motto is “We are from the Ministry of Justice; we are here to help”. We certainly intend to ensure that, while we have a responsibility to regulate this industry, we will regulate it with all due diligence.

Prisoners: Transport

Lord Campbell of Alloway Excerpts

Tuesday 7th February 2012 Lords Chamber

[Lord Mackenzie of Framwellgate]

My Lords—

[Lord Campbell of Alloway]

Is this really a question of training? Is it not a question of making appropriate provision in these special circumstances?

[Lord McNally]

Yes, my Lords, but the fleet for transporting prisoners has recently been updated, so there should be greater security in those circumstances. There is training of staff—prisoners are accompanied by staff—and an assessment is made in advance, particularly of the transportation of Category A prisoners. The investigation under way will look at what is in place and whether those procedures were followed and, if all the procedures that were in place were followed and yet a successful break was made, what lessons are to be learnt from that.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Campbell of Alloway Excerpts

Tuesday 10th January 2012 Lords Chamber

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

My Lords, I am most grateful to all noble Lords who have contributed to the debate. It has gone slightly wider in the use of experts than the narrow interpretation given in the amendment, and in some respects has read into the amendment things that are not there, but I shall try to deal with the points raised and noble Lords may then understand better what I am saying.

On the point made by the noble Baroness, Lady Kennedy, we are not withdrawing funds for experts. Where the case has public funding under legal aid and funding for expert opinion is appropriate, funding will be made available. The Government are working with the Legal Services Commission to develop and put in place a robust client and provider strategy that both reflects the demands and requirements of the new legal aid market and obtains the maximum value from the ongoing structure developed in the legal aid market.

In the Government’s response to the legal aid reform consultation, we confirmed that we would not be considering contracting with or paying experts directly in the short term because of the administrative costs to the LSC. However, when we have had time to consider the family justice review final report, which came out just before Christmas, we will look at this matter again. At the moment, there is no plan for the LSC to take this on from the solicitors to whom the noble Lord, Lord Beecham, referred.

Amendment 5 seeks to impose a duty on the Lord Chancellor to review the accessibility and quality of expert witness advice for the purposes of civil proceedings, as well as a duty to maintain or improve such accessibility and quality following the commencement of Part 1 of the Bill. This is an entirely unworkable amendment, in our opinion. By definition, expert witnesses are highly qualified and experienced professional individuals in their normally very technical fields. As professionals, they will be subject to the standards required by their respective professional membership bodies. It is not within the Lord Chancellor’s gift, nor should it be, to determine the quality provided by any given expert witness. Principally, this would be inappropriate; the Lord Chancellor cannot be expected to be in a position to determine the quality of the expert evidence or advice given, not least because the requisite expertise would not be held to reach a credible determination.

The costs of establishing a mechanism to assess credibly the quality of expert witnesses would also be prohibitive. Even if resources were unlimited, we have severe doubts as to the viability of such a mechanism. Disputes as to the accuracy or otherwise of expert evidence can be the subject of extensive debate and even litigation.

[Lord Campbell of Alloway]

In trying to follow this, I must say that surely the question of the quality of the expert evidence is not fundamental. The fundamental question, is it not, is whether they need expert evidence. Who decides that? Is it an independent person or is it the legal aid authorities? Could I ask for an answer, if it is relevant?

[Lord McNally]

I refer to quality because the amendment itself does so, but the application for legal aid will go to the new director, who will consider both the question of legal aid and whether there is justification for having expert witnesses, as I said before.

As I said, disputes as to the accuracy or otherwise of expert evidence can be the subject of extensive debate, even litigation, and the notion of a single objective standard that could be applied without reviewing evidence or advice given on a case-by-case basis, bearing in mind the myriad scenarios—in which, for example, a psychologist might be giving evidence or advice—does not hold water. Equally, we find the notion of accessibility somewhat difficult in the context of expert evidence. By definition, these individuals are experts in their fields and therefore few in number, and their engagement in any given proceeding is, outside the major urban conurbations, unlikely to be geographically convenient—a point made by the noble and learned Lord. Under the current framework, experts are quite naturally drawn from far and wide and it is not within the Lord Chancellor’s gift, nor should it be, to try to control or influence the geographical distribution of experts in England and Wales.

The noble Lord, Lord Beecham, referred to the matter of lower rates being applied in London. The fact is that expert provision reacts to normal economic considerations of supply and demand. It follows, of course, that in areas of higher supply there is greater competition, and it should be open to the Government to pay slightly lower rates to reflect that position.

Prisons: HM Young Offender Institution Feltham

Lord Campbell of Alloway Excerpts

Wednesday 29th June 2011 Lords Chamber

[Lord McNally]

I do not think that I can make that commitment from the Dispatch Box. In part, that is because part of the advice that we get—this relates back to the suicide issue as well—is that the assessment made of young offenders sometimes shows that cell sharing could be of benefit in the circumstances, rather than leaving them in isolation. I make no bones about the fact that it is partly a matter of the resources that would be required for single-cell accommodation, but we also get strong professional advice that, in some circumstances, cell sharing can be of benefit to the young people concerned.

[Lord Campbell of Alloway]

My Lords, what can be obsolete as a matter of policy in respect of the law of murder?

[Lord McNally]

For example, some of the recommendations in the report related to cell furniture, which had already been changed by the time that the report came out. Part of the difficulty was that some cell furniture could too readily be used for violence. There were changes to the design of cell furniture—for example, bolting cell furniture to the floor so that it could not be so easily used—so that, by the time that the report came out, the recommendation on cell furniture was obsolete.

Justice: Civil Litigation Reform

Lord Campbell of Alloway Excerpts

Tuesday 29th March 2011 Lords Chamber

[Lord McNally]

No, not in these proposals, but, as I said earlier, we are waiting for a report on that matter. It must be at least 10 years ago, and perhaps more, that I raised from the Benches opposite the fact that you have only to watch the television any afternoon at home—I know that noble Lords do not often do that—to see those adverts, which make the winning of a case seem akin to winning the lottery. You see a smiling client with a large cheque, having successfully referred their case to some organisation or another, without the general public being aware that the organisation with which they were in contact would not have dealt with their case but farmed it out to a solicitor, thereby only adding to the costs. My right honourable friend the Lord Chancellor is very well aware of this and we await the report. I suspect, knowing him as I do, that he will want to take action on something which irritates and angers a lot of people.

The third question of my noble friend Lord Newton was how many people have recourse to the civil courts. In 2009, some 1,460,000 money claims were issued. I hope that helps my noble friend.

[Lord Campbell of Alloway]

My Lords—

Bribery Act 2010

Lord Campbell of Alloway Excerpts

Wednesday 2nd March 2011 Lords Chamber

[Baroness Williams of Crosby]

My Lords—

[Lord Campbell of Alloway]

My Lords—

[Baroness Whitaker]

My Lords—

[Lord Strathclyde]

My Lords, two of my noble friends wish to speak, but my noble friend Lord Campbell rose to his feet earlier on.

[Lord Campbell of Alloway]

I am much obliged to my noble friend. This is not a long question. Is the noble Lord aware that nothing he has said justifies the conduct of the Government on this Bill—nothing at all?

[Lord McNally]

My Lords, one of the great advantages of this House is that a Hansard report is made of interventions. I will ensure that the Hansard report of the exchanges that have come from all parts of the House are duly reported back to the relevant government departments.

Parliamentary Voting System and Constituencies Bill

Lord Campbell of Alloway Excerpts

Wednesday 9th February 2011 Lords Chamber

[Lord Elton]

My Lords, before we come to a conclusion, there is something about which I need to remind myself and your Lordships. It is necessary to keep two or three things in mind. As my noble friend Lord King has already reminded us, at present the Bill permits a variation of 10 per cent, whereas what is proposed is a variation of 15 per cent. I need to remind myself that we are talking not about numbers, areas or acreages but about the value of votes. The proposal is to raise to 15 per cent the discrepancy between the value of a vote in one constituency and in another.

The principle of the Bill is to try to reduce the variations so that everybody’s vote is roughly equal. My subjective—but not, I think, unreasonable—view is that 10 per cent is quite enough. That gets around an awful lot of arguments that have been made and, for me, it is conclusive.

[Lord Campbell of Alloway]

My Lords, may I take up the point which I made yesterday? It is really for the Boundary Commission, which exerts no political influence and has no political influence upon it, to decide what is a viable constituency. That cannot be explained in a definition which you write out in black and white; it is a matter of common sense for the commission. To impede that by a lot of legal processes and lawyers—I am one, although I am a bit past my sell-by date now—is a tremendous mistake and, although it is well intentioned, I do not support this amendment.

[Lord Armstrong of Ilminster]

My Lords, once upon a time there was a man called Procrustes. He made a very beautiful bed, and he liked people to come and lie on it. Being a man of very high and strict principle, he insisted that the bed and the people should fit. Unfortunately, he made the bed unalterable, so he had to make the people fit the bed. He either stretched them out a little if they were too small or chopped a little bit off if they were too tall, with painful, serious and sometimes fatal consequences for the people concerned. Quite apart from the consequences for the people concerned, Procrustes found his reputation deeply damaged; great hostility was shown towards him and there were demonstrations in the street.

Then four good, independent people came along and suggested a simple mechanism whereby some of the strain could be relieved. It was closely restricted; it could be used only in exceptional circumstances and for reasons of an extraordinarily compelling nature. It was a simple mechanism whereby, in these very exceptional cases, the bed could be stretched or shortened by a very small amount. The number of cases would be few but there would be cases in which the variety of human nature was recognised and allowed for and the painful consequences to which I have referred were avoided.

There were many arguments about the principle; it was thought to be very proper, good and strictly maintained. I am sorry to say that Procrustes grumbled greatly about the idea that there should be any stretching or changing of the bed. But in the end he accepted that there had been one or two cases which he agreed should be allowed past and the exceptions and exceptionally compelling reasons were such that the further breaches of the principle which would ensue would not be very serious or great. Therefore, grumbling, he accepted—to the relief of those few people whose lives and bodies were spared and, in the end, to the contentment of Procrustes himself, who accepted that this small degree of flexibility had enabled the bed to survive and the principle to be broadly maintained.

Constitutional Reform: Referendums

Lord Campbell of Alloway Excerpts

Monday 24th January 2011 Lords Chamber

[Lord McNally]

No, I cannot give such guarantees. The Parliament Acts are there for the judgment of the Government of the day. As I have said previously, whether there should a referendum to consult is a matter for the judgment of the Parliament of the day.

[Lord Campbell of Alloway]

Does not the constitutional process to which my noble friend referred require pre-legislative scrutiny of a constitutional Bill, not only of the Bill currently before the House but any Bill?

[Lord McNally]

I think that all parties agree that pre-legislative scrutiny is a good idea—certainly, I have been supportive of it—but, as we have said, it is not always possible when a radical and reforming Government hit the ground running.