Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Carlile of Berriew Excerpts

Wednesday 7th March 2012 Lords Chamber

[Lord Newton of Braintree]

My Lords, my name is to the amendment, along with those of the noble Lords, Lord Pannick and Lord Bach. I intervene at this early stage partly for that reason and partly to support many of the points that my noble friend made without reiterating them.

We need to bear in mind that this proposed change to legal aid does not take place in a vacuum. It takes place at a time of great actual or potential turbulence—or at least change—in the benefits system, arising to some small extent in respect of housing from the Localism Act, and to a much greater extent from the Welfare Reform Bill. I do not want anyone to think that I am opposed to the Welfare Reform Bill. I had some reservations about parts of it but, like every other group in the House, I support its basic thrust. However, we ought to be absolutely clear that you cannot have change on that scale in the social security system without a lot of gainers, a lot of losers and a lot of people who will want to test, question and seek advice on the changes that affect them if they feel aggrieved.

There are many such changes. There is the housing benefit cap. There is the benefit cap, which is probably less serious in this context because fewer people are supposed to be affected. A huge number of disabled people and carers will be affected. In the area of housing benefit, many tenants will be affected by what is known as the spare-bedroom tax. These are not trivial numbers. The DWP’s estimate, given to me by the Minister, of the number of people affected by the housing benefit cap—the bedroom tax, if I may use a tendentious phrase—is 670,000. The number of people potentially affected by changes to the disability and carer allowances in the Welfare Reform Bill is of the same order if the figures I remember being given in Committee are right. Therefore, we are talking about potentially well over a million people.

If I was still an MP, I would be a bit worried. That is an average of around 2,000 people per constituency. They will all have relatives, some of whom will be affected and many others of whom will be upset by what is happening or could happen to their relatives. They will not all have a great grievance but there will enough of them who do. They will be bewildered and in some cases frightened, as we know from the e-mails we all received over the Welfare Reform Bill. They will not know where to turn but they will know that they need advice and help from somewhere. Let us not underestimate the scale of the impact of this change.

My second point, in what I hope will not be too long a speech, is: does it matter? There has been something of a flavour to Ministers’ comments that the only things that matter enough in this area to warrant a continuation of legal aid are those that threaten life or liberty—for example, orders under the Mental Health Act—or highly specialised areas such as children’s special educational needs and several other children’s issues. I pay tribute to the Government for the fact that they have recognised some of those points. However, there has been a slight flavour that welfare rights and welfare benefits generally did not quite rank in this league. There has been a sort of flavour that it is only a bit of money after all, although I do not think that anybody has actually said it. However, no one who has been Secretary of State for Social Security would harbour the illusion that the £10 or £20 a week that people could lose—for example, under the housing benefit cap if they have a spare room and do not move—is a trivial sum. It may not be a great amount to all of us in this House, but there are a lot of people in this country to whom £10 or £20 a week makes a great difference to whether they can heat or whether they can eat. I do not want to exaggerate this matter or get emotional about it, but some people will be frightened at being hit by some aspects of these changes and they will need somewhere to turn to.

I wish to quote a couple of points from the letter that the noble Lord, Lord Pannick, wrote on behalf of all four of us. I stress that the letter was written on behalf of all four of us. I had agreed it; I just was not present to sign it. It states:

“81% of all cases heard in the First Tier Tribunals relating to benefits are for benefits relating to disability … in 2009/10 an appellant at the First Tier Tribunal that received advice before going to the Tribunal was 78% more likely to win their appeal than an unadvised appellant”.

Then there is another point to which I may come back in a moment: namely, that nobody believes that the savings the Government have claimed for these proposals will actually be realised. The CABs, the Law Society and the report produced by King’s College all reckon that a lot of theses savings are illusory and that the knock-on effects on other government departments will be substantial but have so far been completely unquantified.

My third main point is about the effect of all this on the places where people can and do turn for both direct and indirect help: namely, the citizens advice bureaux, which are universally admired and supported, and are valued in this House and the other place, and a whole variety of law centres and other big society advisory services throughout the country. The CABs have just published a report which I hope everyone will read. I do not wish to quote the whole of it, just a bit from the introduction and the conclusion. In between there are a lot of case studies. The introduction states:

“Specialist advice has become a core part of the CAB service. Our frontline caseworkers and managers have told us that the impact of the proposed changes to legal aid on specialist services will be devastating. The overwhelming majority say that it will be impossible to provide a specialist service, whilst over half say that it may be impossible to continue providing any advice service at all … And it's not just the Citizens Advice service that will be affected - law centres, independent advice agencies and some solicitors' firms will find it difficult to continue to operate”.

After mentioning various cases, the conclusion states that if these cases,

“could be empowered to help themselves without specialist advice, casework and support from legal aid, then every CAB would rejoice, but that is not the reality. It will be a massive failure in the justice system if they are abandoned”.

I shall conclude quickly, but I should like to make just one other point. The Government have, in a way, acknowledged that there may be a need to support other advice services, but we still have no real idea how that is to be done. We have had a promise of a one-off £20 million, which is not a lot in this context. A review is going on which has not yet been completed and whose results we do not know. We have no serious commitment from the Government as to what they will do when they have the results. The nearest we have to that is a comment on the King’s College study to which I referred, which states:

“We are committed to the not for profit sector and have committed £20m this year to improve the efficiency and effectiveness of advice services, but this does not mean that the Government will meet all demand in the future”.

I would not want to back off from supporting the amendment on the basis of a vague promise that something along those lines might be done. It is a classic case where we are entitled to ask another place to take another look, and that is what I hope we will do.

[Lord Carlile of Berriew]

My Lords, in the background to the undoubted need to cut legal aid for economic reasons, it is undoubtedly fair to take as a starting point the Government’s realistic decision to continue to fund judicial review for welfare benefit decisions. In their 2010 Green Paper, the Government gave examples of where judicial review would be used, and is used, for benefit cases. I quote:

“As with other areas of law, funding for judicial review will continue to be available for benefits cases. Such cases are likely to occur where there are delays in making decisions on applications for benefits, or delays in making payments, or whether there has been suspension of benefits by authorities pending investigation”.

None of those examples of judicial review is based on the merits of the case in question; and the problem with judicial review is just that. Where legal aid is available for judicial review in benefits cases, it will not avail a single potential litigant when the decision taken is simply wrong, the evidence has been mis-analysed and misapplied, and the factual decision is unsustainable. That is not what judicial review is for.

Bearing that in mind, I have had to think hard about the balance between wishing to help the Government to fulfil their aims to cut legal aid in a realistic way and those determinations of principle and conscience that some of us have held to for quite a long time. I applaud the measured and economical way in which my noble friend Lady Doocey moved the amendment. She has great experience in dealing with these issues and enormous knowledge of them. Over decades, she and I, and a number of others on these Benches, have attended debate after debate within our party in which the sort of principles that she espoused have been affirmed, reaffirmed and re-reaffirmed.

--- Later in debate ---

[Lord Carlile of Berriew]

My Lords, I want to give my noble and learned friend the Advocate-General a brief moment of ministerial bliss during this debate—there have not been many so far. I speak to government Amendment 68. My noble friend Lord Faulks and I and others have argued that clinical negligence should be available for severely disabled infants—at least for those who suffered neurological damage, which may of course result in physical damage, and often does, either before birth, at birth or shortly after. It is a great pleasure to see Amendment 68. It has been the result of some negotiation, but I should say that the Government have been very willing negotiators at all times on this issue.

I recognise that there will be understandable disappointment if legal aid is not extended in the same way to all clinical negligence relating to infants, even that which does not involve neurological damage, and disappointment that legal aid is not being automatically scoped into all clinical negligence. Like the noble Lord, Lord Clinton-Davis, I am old enough to have been involved in clinical negligence cases and seen the advantage of legal aid, particularly for those of poor means.

I raise one issue with my noble and learned friend on which I would be very grateful for a specific response. It is about other clinical negligence and exceptionality. Many of us have pored over Clause 9, entitled “Exceptional cases”, although if one reads the text of Clause 9, it is ambiguous whether it applies only to exceptional cases or, potentially, to a largish cohort of cases that fall within Clause 9(3)(b)—that it is appropriate to grant legal aid,

“in the particular circumstances of the case, having regard to any risk that failure to do so would be”,

a breach of convention or enforceable EU rights. I have in mind where there may be a number of claims of a similar nature—for example, a group of 100 claims arising from the negligent use of a particular drug. One has only to say the word thalidomide to understand how that can arise. I believe that a similar situation could arise in our age, just as it did then.

I would be grateful if the Minister would confirm that, were such a cohort of cases to exist, it would not be excluded from exceptionality by reason of being a cohort or group. If one looks at the decided cases in which the word exceptional or exceptionality has been interpreted by the senior courts, it is generally understood to refer to singular cases. We can envisage a plurality of cases of the kind I described, which may give rise to a risk of a breach of convention or other EU rights.

[Lord Howarth of Newport]

My Lords, I, too, welcome the concession that the Government propose in Amendment 68, in so far as it goes, to allow legal aid to be available in cases where infants have suffered perinatal injury. As the parent of a child who suffered perinatal injury, I can only welcome it. I simply ask the Minister on what argument of principle he extends legal aid to that group of people but not to others whose lives may be ruined through the experience of clinical negligence.