Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Carlile of Berriew Excerpts

Monday 23rd April 2012 Lords Chamber

[Lord Thomas of Gresford]

Why should one run that risk? Why should one have applications for judicial review being made based on the amendment as currently drafted? This adds nothing to the Bill. All it does is open an avenue for satellite litigation which should not be permitted.

[Lord Carlile of Berriew]

My Lords, it would be a great disappointment to your Lordships’ House if you were to find that there was unanimity on these Benches. I am not going to disappoint your Lordships: there is not.

I agree entirely with the noble Lord, Lord Pannick—particularly in relation to the second and third parts of his speech—and also with the noble and learned Lord, Lord Woolf. In answer to my noble friend Lord Thomas of Gresford, I would say that Clause 1(1) contains absolutely no statement of principle whatever, whereas Amendment 1B does contain a statement of principle, albeit within the financial limits set by the Bill.

What I really wanted to do is say a few words about financial privilege. I suspect that there will be other noble Lords who were once Members of another place who, like me, have sat on the Reasons Committee. It is the Reasons Committee that drafts the reasons why the Commons do disagree with your Lordships' House. It sits in a room just behind the Speaker’s Chair. That room is known as the Reasons Room. Behind that Alice-in-Wonderland title lies an Alice-in-Wonderland process. In the Reasons Room, the Reasons Committee—which does not produce a Hansard record, or certainly did not do so in my time—produces reasons that, by and large, are presented on a piece of paper and nodded through. That seems to me to be what has happened here. The reason that is given is that,

“it would alter the financial arrangements made by the Commons”.

That is a statement of predictive certainty. What we have heard from my noble friend the Minister suggests that there might be a possibility at some stage in the future that some kind of judicial review action might, not would, have some effect on, not alter, the financial arrangements made by the Commons.

I echo the words of the noble and learned Baroness, Lady Butler-Sloss, about the process of judicial review. Every judicial review application goes in the first instance, on an entirely paper procedure, before a judge of the administrative court. As it happens, most applications—about 80 to 90 per cent—are refused on the papers and there is practically no expenditure upon them at all. I cannot see any circumstances in which it is more likely that judicial review proceedings would continue as a result of including this amendment in the Bill as compared with the Bill as it stands. As my noble friend Lord Thomas said, the Bill as it stands contains the potential for applications being made for judicial review against the exceptionality provisions and against a ruling that legal aid should not be given. What is proposed here hardly increases that risk.

[Lord Thomas of Gresford]

My Lords—

[Lord Carlile of Berriew]

I will give way in a moment; I shall just finish the sentence.

If the other place has got its reasons wrong then surely we are entitled to question those reasons in this House, and if the burden of the debate justifies it, to ask the other place to reconsider, on the basis that it has got its reasons wrong. I will give way to my noble friend now—but he does not want me to. I am glad that I have answered his question. I have nothing further to add.

[Lord Morris of Aberavon]

My Lords, I rise in support of the noble Lord, Lord Pannick. I am concerned about the reasons given in the Marshalled List, and perhaps the Minister can help the House. What are the financial implications if this amendment were accepted? The reason given is:

“Because it would alter the financial arrangements made by the Commons, and the Commons do not offer any further Reason, trusting that this reason may be deemed sufficient”.

If that is the sole basis for rejecting the amendment—or if there is any other reason, any other sinister matter, that the Minister is concerned about—perhaps he will tell us.

The noble Lord, Lord Pannick, has told the House that there are no financial implications to his amendment. The amendment states that the Lord Chancellor shall exercise his powers under this provision in order to ensure that individuals have access to legal services, and that it is entirely within his discretion,

“and subject to the provisions of this Part”.

This is a very carefully drafted amendment. It secures the Government’s financial position. The ultimate discretion is the Lord Chancellor’s, and I find it very difficult to foresee, in reality, any other financial implication.

--- Later in debate ---

Therefore, the question is this: will lawyers take the cases? If they will, there will not be the terrible denial of justice to which the noble Lord refers. In my view, they will take the cases. They will be properly rewarded financially for doing so and they will have the satisfaction of representing those who deserve compensation. Therefore, while having every sympathy for the sufferers and great admiration for the campaign that has been launched on their behalf, we need to stand back and say what this amendment is about. It is about whether lawyers will be paid more money and whether the fact that they will be paid less money will prevent these cases taking place. I do not believe that it will.

[Lord Carlile of Berriew]

My Lords, the noble Lord, Lord Alton of Liverpool, has made a very persuasive case for those who suffer from mesothelioma. Part of that case is that he believes—and he has much support for this—that there will be sufferers from mesothelioma who will not be able to recover damages unless the amendment that was previously passed remains in the Bill. We have just heard from an expert on personal injury cases—my noble friend Lord Faulks—who has expressed the contrary view. He said that lawyers will be prepared to take these cases because they are not very difficult to prove and that there will be no deficit for potential claimants if the amendment is not restored to the Bill. That leaves those of us who are genuinely interested in knowing the truth about these claims on the horns of a dilemma. Given that there is no claim of financial privilege in relation to this amendment, the answer to that dilemma is extremely important.

Therefore, I, for one—and I am sure that other noble Lords around the House share this view—would be grateful if in replying to this debate or at some point during the debate the Minister could tell us whether the department has made an assessment of this problem. What is the department’s view? Does it accept that cases will not be brought if the amendment is not restored to the Bill? If so, there is a very powerful case for an exception, as otherwise people will be denied justice for an extremely serious illness by reason of what I think the noble Lord, Lord Howarth, called dogmatic consistency. I share his view that dogmatic consistency is not a necessity for any Act of Parliament. Indeed, one has only to examine half a dozen at random to see how little dogmatic consistency there is in Acts of Parliament. Therefore, I hope that the Minister will give us that information during this debate so that we can make an informed judgment in deciding whether to vote and, if so, how.

[Lord Wills]

My Lords, the case for this amendment was powerfully made in this House last month and in the other place last week, and I rise now briefly to add another voice in urging Ministers to think again, even at this late stage, and to try to find a constructive solution to this issue.

Before coming to your Lordships’ House, I was an MP in Swindon. Because of that town’s industrial history and particularly because of the large railway works, which employed many thousands of people over many years, this illness was known locally as the Swindon cancer. I, too, thank the noble Lord, Lord Alton, for his sterling efforts on behalf of all my former constituents who have suffered from this terrible disease and, I am afraid, will suffer from it in years ahead.

Ministers have claimed that it would be wrong for various reasons—I understand and completely accept what the noble Lord, Lord McNally, has said about this—to make a special case for this one disease. The fact, however, of this disease’s particular virulence, that it is inevitably fatal, that it progresses with terrifying speed, that it is hard even to find palliative care for it once it has taken hold, all argue powerfully for it being just such a special case.

It is unconscionable to force sufferers from this terrible disease, and their families, at a time when every hour is precious to them, to go through the processes required by this Bill to secure the compensation to which they are entitled. Those are fundamental points for me—whether they can secure lawyers and whether success fees are to be secured for the lawyers. Every hour is precious. The people who are diagnosed with this illness have months and sometimes only weeks to live. We should not force them to go through the processes required by this Bill.

As my noble friend Lord Howarth has already said, accepting this amendment would do no damage to the fundamental principles behind the Government’s reforms of the legal aid system. It is the only decent thing to do.