Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Carlile of Berriew Excerpts

Tuesday 10th January 2012 Lords Chamber

[Lord Clinton-Davis]

I agree so much with what has been said by the noble Lord but I disagree with his conclusion about the leader of the Liberal Democrats. I have a great regard for him as well, but in this regard he has been an absolute disaster.

I would like to say something about my own experience in undertaking surgeries as a Member of Parliament. Quite often, the people who came along to those were inarticulate and unable to divulge the essence of the case that they wanted to put before me as their MP. They had enormous difficulty in expressing themselves and, if I may say so, I think that will be what happens regularly with regard to the Bill. I am sure that the Minister who leads the Liberal Democrats in this regard will sense that the whole House has great suspicion about the purposes of the Bill and does not see how it is going to work out in practice. There is no evidence to suggest that there will be a saving of money if people cannot express themselves cogently and coherently. From that point of view, an enormous amount of time will be wasted, as has been the case in our surgeries. Of course, not everyone here has been an MP, but those who have will surely view what I have said with some sympathy. I can recall a case where it took about an hour for a person to express themselves about the situation that befell them because they were unable to understand the points that were relevant to the issue that they had to consider. In my view, the Government are therefore bound to consider an aspect that at the moment they are loath to do.

I hope that the Minister, on reflection, will come to the conclusion that we are entitled to know his views about the position that I have sought to reflect. This issue is vital. To expect people to come before courts and express themselves sufficiently coherently is impossible. I speak not only as a former MP but from my knowledge of people whom I come across quite often in my daily practice. I look forward to hearing what the Minister has to say.

[Lord Carlile of Berriew]

My Lords, as another former MP I echo the point made by the noble Lord, Lord Clinton-Davis. Many is the time when Members of another place in their constituency surgeries have to give advice on legal issues to constituents, and it is often the poorest constituents who come with the largest and most complex, multiple legal problems, usually relating to welfare law. There are of course many cases in which an MP can say to a constituent, “Go along to the small claims court, appear on your own behalf and use the words ‘contract’, ‘consideration’ and ‘damage’, and you will do very well”. Litigants in person can succeed, particularly before small claims courts. However, multiple, complex legal issues do not lend themselves to litigation in person. The only responsible advice that Members of another place can give in such cases is, “You’ve really got to go to a decent solicitor who understands this kind of work”—and, if you are a really daring MP, you might discriminate among the solicitors in your constituency and recommend someone really competent in the hope that others do not find out what you have said.

My reason for supporting this amendment is founded in the sympathy that I have for my noble friend the Minister. I share the view that there is a great deal of waste in legal aid and that steps can be taken to reduce legal aid in many areas. I suspect that almost every Member of your Lordships’ House believes that. However, the list of people potentially affected in this amendment is very realistic. It sets out those very people and groups who are likely to be the most adversely and unfairly damaged by these reductions.

I would have expected the Government, in setting out legislation to cut legal aid, to do the work that is implicit in this amendment. I have looked through the notes on this draft legislation and everything that has come from the Government, and I have seen no evidence of any such assessment being carried out. I have not yet read anything but a summary of the King’s College London report, but if the headlines fairly represent what the report says, they are cause for alarm. It has done the work that the Government should have done and revealed that the savings may not be there at all in certain areas, not least, critically, in clinical negligence cases, which are of particular concern to me.

I cannot see that it would be anything other than responsible for the Government to carry out the work set out in this amendment. I would ordinarily have expected them to do so to justify the cuts that they are proposing to make to legal aid. For those reasons, I feel that it is right to support at least the aims and principles of this amendment.

[Baroness Farrington of Ribbleton]

My Lords, I have listened carefully to people speaking in your Lordships’ House who have a much greater knowledge of the legal system than I do. I look to the Minister to answer two questions. Will it work in terms of the savings; and is it right in the impact that it will have on vulnerable people?

I bring my knowledge from a background of working with people in local government, as do many of your Lordships. In particular, I know that the groups who have been identified as being vulnerable have a fear of officialdom and official settings. I cannot be the only Member of your Lordships’ House who has had to explain to someone how to vote. Someone who has decided for the first time in their life—in their 20s or 30s—that they wish to vote might be frightened of looking foolish by going in the wrong way or doing the wrong thing. I have had constituents who passionately supported their local school during a time of falling rolls, when school provision had to be rationalised. Some of those parents would not go to a public meeting in the school because they did not know how to speak in public. They did not wish to be embarrassed.

Speaking for myself, I was overwhelmed by Preston town hall—now Preston city hall—when I went in for the first time, prior to becoming a councillor. I was overwhelmed by County Hall and thought I would get lost and not know my way around. I ask all noble Lords to believe me because this is true. I was overwhelmed by being on the Committee of the Regions and thought I might get so lost in the Brussels buildings that I would never come back. The Council of Europe was a maze of places; I could have ended up in the Parliamentary Assembly instead of the Committee of the Regions there. Your Lordships’ House was daunting beyond belief. I know that for those noble Lords who had been in another place it was not daunting. They were just coming to the other end of the same building and felt at home, but I did not. I know from talking to people all around the House that I was not the only one who was quaking at my introduction. My five siblings came to watch, partly out of loyalty but also for the joy of watching their big sister Josie being overwhelmed and frightened of doing something. That appealed to them even more than the delight of seeing what was happening.

As I have listened to this debate, it seems to me that there is a misunderstanding about whether people can represent themselves in court, or will even dare to try, when a vital matter in their lives is at stake. That worries me. The Minister has been praised by some likely and, occasionally, unlikely sources. All I ask him for is honesty. Before this Bill goes through Report stage, I want to know that those vulnerable people who I know and he knows will not be further disadvantaged by the Government’s proposals. If, against all the odds, those people are to pay the price, I will have to be convinced that the price they will pay will meet an economic necessity and not just spread the debt into other departments.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Carlile of Berriew Excerpts

Tuesday 20th December 2011 Lords Chamber

[Lord Howarth of Newport]

I will come to that in a second. The noble and learned Baroness will be pleased to know that I am about to wind up. We should all be grateful to the noble Lord, Lord Pannick, for tabling an amendment that challenges us to debate the principles against which the detailed amendments should be judged.

I conclude by saying that I believe that the Government have no mandate for what they seek to do. They have no political or moral authority and no permission from the people to take away their right of access to justice and to dismantle that part of the justice system. It would be a dereliction of our constitution if the Government and Parliament were not to resolve to spend the money that is genuinely necessary to secure access to justice for all. I do not know whether the noble Lord, Lord Pannick, will press his amendment to a vote. If he does I will certainly support it. If he does not, I hope that when we come back to the issue on Report, he or others will table an amendment that fairly and squarely insists on the fundamental principle. If they were to table the amendment proposed by the Constitution Committee in all its principled directness and simplicity, that would be preferable.

[Lord Carlile of Berriew]

My Lords, speaking as a liberal from the Liberal Democrat Benches, it is with regret that I say that I support the amendment in the name of the noble Lord, Lord Pannick. I support it with regret because I had hoped that we would not be in this position by the time we started Committee. Noble Lords will recall the Second Reading debate at which unfortunately I was not able to be present because I was out of the country. Since that debate there has been private and public negotiation, lobbying, a great deal of journalism and an expectation that we would move from the position that was expressed from the government Front Bench at Second Reading. However, I detect absolutely no hint that any concessions will be made. Indeed, I detect an air of irritated intransigence coming from the Ministry of Justice in relation to the Bill.

I would not feel driven to vote for the amendment of the noble Lord, Lord Pannick, and to take the same position as my noble friend Lord Faulks from the Conservative Benches on the coalition side, if I felt that there was some movement in the direction of the general principle set out in the amendment. Furthermore, as the noble Lord, Lord Pannick, explained, this is not an expression of a new principle, nor is it an expression of a principle that is to be applied outside the context of this very Bill. It seeks merely to set out a principle that I believe every person in this House should embrace within the Bill’s in effect financial constraints, which are expressed in the amendment.

I, as a liberal and a Member of the Liberal Democrats, have understandably—like, I am sure, my noble friend Lord Faulks—been encouraged not to cause difficulties, not to intervene too much and not to obstruct the Government in getting their Bill through; in other words, I have been encouraged to support this coalition Government, which I would very much like to do. However, I have detected an assumption that Liberal Democrat Peers are to support the Government’s approach to this Bill, and I say to my noble friend Lord McNally that it is not sufficient to make us wait to find out later what concessions are to be made on the many representations that have been made.

I agree wholeheartedly with the Government that a great deal of legal aid money is being wasted at present. I believe that fervently, and I could identify, and indeed have identified when asked, areas in the legal aid system where savings could be made. However, arguments have been made for concessions in areas where access to legal services is required as the only way, in effect, to meet the needs of people whose rights have been adversely affected. If my noble friend wishes us not to support this amendment, I invite him to tell us when he replies to this debate the areas in which concessions are to be made and the general nature of those concessions, not the particulars. In other words, I am asking my noble friend not merely to assume our support from these Benches but to earn our support from these Benches. Without that, I am afraid that I shall remain dissatisfied and will feel free to intervene during these debates on the merits of these amendments.

[Lord Ramsbotham]

My Lords, I briefly support the amendment by echoing the words that have already been quoted—those of the Lord Chancellor, who said:

“access to justice is a hallmark of a civilised society”,—[Official Report, Commons, 15/11/10; col. 659.]

and those of my noble friend Lord Pannick, who has said repeatedly that access to justice is a vital constitutional principle.

At Second Reading, I regretted that the word “rehabilitation” had been replaced by the word “punishment” in the title of this Bill, and I fear that the proposed denial of legal aid to some for whom its provision is a vital part of their rehabilitation suggests that there are some in government who are allowing an uncivilised concentration on punishment to supersede their duty to protect the public. I know that this is a hybrid Bill and that Part 3 will concentrate on rehabilitation, but I wish I felt the same of Part 1.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Carlile of Berriew Excerpts

Tuesday 20th December 2011 Lords Chamber

[Lord Howarth of Newport]

My Lords, my noble friend Lord Bach and the noble Baroness, Lady Grey-Thompson, have identified, imaginatively and sensitively, extensive groups of people for whom a mandatory telephone gateway would be entirely inappropriate. I hope that the Minister will reflect carefully on the apprehensions expressed this evening. The noble Baroness, Lady Prashar, and the noble Lord, Lord Shipley, both suggested that it would be a false economy to skimp on the cost of the initial advice and assistance. We could end up, perversely, having to spend a lot more because people did not receive the advice and assistance that they needed, it was not comprehensible to them, it failed to match what was appropriate for them or because they lacked the encouragement to explain themselves fully, so their cases were not taken further through the appropriate channels and their personal predicament deteriorated. We must take all those worries seriously.

The noble Baroness, Lady Grey-Thompson, touched on the question of training, and the noble Lord, Lord Shipley, talked about the need for the people who are to provide the service to be of high calibre. Those things are important. It would be helpful if the Minister would say more about what the Government envisage by way of training programmes and the level and standard of personnel who will be recruited to provide the service. We are in a familiar dilemma as we examine the legislation. It is perfunctorily articulated in extremely important aspects. We were asked to take the Government on trust. We are willing to take the Government on trust to the extent that they will explain themselves to us and we know what we are being asked to trust. I hope that the Minister will be able to be helpful to the Committee on those points.

I have two quick questions to put to the Minister. Will this be a freephone service? Secondly, does he envisage that there will be a network of telephones that people will be able to use when they make these calls? It could be a very sensitive matter for people explaining themselves to someone at the other side of the telephone gateway about issues concerning family breakdown, debt and so forth. It is not just that they are painful topics but that it could be positively hazardous for people not to be able to make those telephone calls in circumstances of privacy where they can be confident that they will not be overheard or interrupted. We need to know a lot more detail about how the Minister anticipates that the system will be made to work in practice.

[Lord Carlile of Berriew]

My Lords, I raise just one or two points about the notion of a compulsory telephone gateway. The first relates to legal professional privilege. Can my noble friend confirm that all communication in the telephone gateways are and will continue to be covered by legal professional privilege, so that we can avoid the risk of cases eventually arriving in court and initial conversations with telephone gateways being used for the purposes of cross-examination when the person accessing the telephone gateway may well have been lacking in confidence and have stated their case in an inaccurate way?

The second matter I wanted to raise is about the group of people—and there are many of them—who contact what I will call informed lay services. That would include people going to citizens advice bureaux, well informed councillors, Members of the Welsh Assembly in their constituency surgeries and, of course, Members of Parliament in their constituency surgeries. It would not make much sense if people who had gone through those routes were then required thereafter to access a mandatory telephone gateway. Otherwise, we will run into the ludicrous situation where people sit in those establishments with their MPs and a call is made to the telephone gateway during the constituency surgery. That would of course be an absurdity. Perhaps the Minister would explain to the Committee what is proposed in such circumstances, the ones that I have described being but examples.

Personal Injury Lawyers

Lord Carlile of Berriew Excerpts

Thursday 7th July 2011 Lords Chamber

[Lord McNally]

Whether the question of referral fees will find its way into the Bill is a matter for the study that we are undertaking into ways that this could be implemented. However, we are trying to bring forward a range of the Jackson proposals in that Bill. As to referral fees, as my noble friend will be aware, the Legal Services Board and the Transport Select Committee advised a solution in terms of transparency. Lord Justice Jackson recommended a ban and, as I indicated, the Government are sympathetic to the idea of a ban.

[Lord Carlile of Berriew]

My Lords, in addition to that, will my noble friend confirm—as he indicated to me in a Written Answer to me on 23 June—that referral fees or kick-back fees in criminal cases are illegal, corrupt and should not be undertaken in any case by any lawyer?

[Lord McNally]

If that is what I said in a Written Answer it must be—[Laughter.] Even more so, it just sounds right.

Social Welfare Law

Lord Carlile of Berriew Excerpts

Wednesday 29th June 2011 Lords Chamber

[Lord McNally]

My Lords, under our proposals, legal aid will be retained in the highest priority housing cases, where a person’s home is at immediate risk, for homelessness, serious disrepair, unlawful eviction, orders for the sale of the home, and asylum support cases relating to accommodation. Legal aid will be available in debt matters where a person’s home is at immediate risk. We will still be spending about £50 million a year on this section of legal aid.

I have read the comments of the noble and learned Baroness, Lady Hale. I have said from this Dispatch Box that if you have a policy that is aimed at the poorest in our society and you cut the budget, of course there will be an inevitable impact. But in trying to develop this policy we have tried to minimise that impact and focus our resources on those most in need.

[Lord Carlile of Berriew]

My Lords, would my noble friend like to take a short journey down to the Lambeth County Court and other comparable courts in London, Manchester, Sheffield and other cities, where he would find if he spent half a day there that the only way in which to get your house repaired is to sue the local council? All other measures to obtain house repairs are not succeeding. He would then perhaps realise that limiting legal aid to quite the extent which the Government are ambitious to limit it is going a step too far.

[Lord McNally]

Well, I hear what my noble friend is saying. The department was faced with some very hard decisions on a £2 billion cut in a department which, as I have said before, has expenditure on only four areas—prisons, probation, legal aid and on the administration of justice. We have tried to focus where we can on areas of need. I was very interested in the editorial in the Guardian on legal aid, which was headed, “Unjust cuts”. In the course of that editorial, it said:

“It is now being examined for the eighth time since the Children Act 1989”.

The noble Lord knows very well that his own Administration were looking hard at legal aid and how to cut it. It went on:

“The need for reform, and for a more cost-effective system, is undisputed … Professionals acknowledge that too many of these cases come to court, and welcome the proposal for greater use of mediation … Change is needed. There are savings to be made”.

That is under the title of “Unjust cuts”. Those are the realities that we are facing.