Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Clarke of Nottingham and Tony Lloyd

Tuesday 17th April 2012 Commons Chamber

[Mr Clarke]

I am not arguing that. I am saying there should be hesitation before the very powerful and quite legitimate lobbies that have descended on the House since we proposed the changes just sweep everybody into believing that ever-wider provision of legal aid is necessary. There are downsides. In addition to the cost to the public purse, which we cannot ignore because no other democratically elected Government spends this amount of public money on funding litigation and legal advice, if we have a litigious society it imposes costs on all other branches of our life. That is an essential background that we cannot forget as we consider these amendments.

We have applied other tests, but the whole point of having legal aid—and the reason why we are keeping a legal aid system that will still be the most generous in the world even when we have cut it back a bit—is to deal with the needs of justice and those who are vulnerable in society. The other principle that applies is the need to focus taxpayer funding on the most serious and important cases that genuinely require specialist legal advice. Our principled stance is that legal aid should routinely be available in cases where people’s life and liberty are at stake, where they are at risk of serious physical harm or immediate loss of their home, or where their children may be taken into care. It should not routinely be available where other funding is available, where litigants can present their own case, or where the taxpayer is at risk of paying for litigation that any person paying from their own pocket would not finance and participate in. That is the basis on which we look at all the amendments that have come from the other place.

I am grateful to the other place for the time and the detailed debate and scrutiny it has dedicated to the Bill, genuinely improving it in places. I went and listened to parts of the debates myself and I have great faith in the power of the other place to revise a Bill without altering it fundamentally. Wherever possible I have sought to incorporate my noble Friends’ amendments or intentions, and as a result of the scrutiny of both Houses the overall package has moved very significantly from our initial position when we introduced the Bill, and it is all the better for it. Before people press me to agree to more than we are proposing to agree to in this important group of amendments perhaps I should remind the House of the changes we have made since we started this whole process quite a long time ago. They include removing the power to means-test suspects receiving advice and assistance at the police station, adopting the Association of Chief Police Officers’ definition of domestic violence and extending the time limit and range of evidence accepted when it comes to accessing the domestic violence gateway. We agreed to that a long time ago. People got very excited about the ACPO amendment so we gave them that, and then a whole list of fresh demands were immediately made by the Law Society and other groups that have lobbied us. I shall address those issues in a few moments.

Other changes include retaining legal aid for cases involving human trafficking and domestic child abduction—another concession; ensuring that funding covers special educational needs for 16 to 24-year-olds; and putting it beyond doubt that we are retaining legal aid for parents to bring clinical negligence cases in the most serious and complex neurological injury negligence cases for small children, which we always intended to do. Beyond the legislation, we announced at the Budget a further £20 million to go to the not-for-profit sector in each of the next two financial years.

How do the further Lords amendments in the group measure up against the principles I have outlined? I regret that the broad thrust of some of them is still to be rather free with taxpayers’ money. In our opinion, they certainly go way beyond ensuring that the Bill is focusing funding on high priorities.

[Tony Lloyd (Manchester Central) (Lab)]

The Secretary of State made great play of the ACPO definition of domestic violence, but if the test is about protecting the vulnerable I must say that the definition is very legalistic. The experience of lots of women—the 230 women who leave home every week because of violence—is not always packaged in the way allowed for in the proposed legislation. Does he accept that many women will fall outside the definition and will not be able to get legal aid?

[Mr Clarke]

Let me begin with the domestic violence gateway. The ACPO definition is what the Labour Front-Bench team was originally concentrating on. We have to have a definition because we are talking about qualifying for the public funding of legal aid in certain cases. We have moved a lot on domestic violence and we are moving again in response to the Lords’ debate, as I shall explain in a moment. First, though, let me make it clear, because I do not think it has always been clear to people in either House, exactly what we are talking about. It was never in doubt that there would be legal aid for the protection of victims of domestic violence. Domestic violence is an issue that this Government, like any Government, including the previous one, take extremely seriously. As now, it was always intended that legal aid would remain available for victims of domestic violence who were trying, for example, to obtain protective injunctions to defend themselves in such cases. In domestic violence cases there is no means test so even the super-rich can obtain legal aid if they are seeking an injunction for reasons of domestic violence, although I hope that not too many of them will.



We are doing quite a lot of other things. The Home Office is for the first time providing more than £28 million of stable funding until 2015 for specialist local domestic and sexual violence support services, and £900,000 each year to support national domestic violence helplines and a stalking helpline. Our Department is now contributing towards the funding of independent advisers attached to specialist domestic violence courts. We are giving a total of £9 million for that purpose up to the end of 2012-13. We are allocating £3 million a year to 65 rape crisis centres and opening new ones. Domestic violence protection orders are being piloted in three police force areas.  We have announced a one-year pilot which will take place from this summer to test out a domestic violence disclosure scheme, known as Clare’s law.

I mention those things so that we can have a debate which, with great respect to their lordships, is not on the same basis as the part of the Lords debate that I listened to—that people did not realise the seriousness of domestic violence as a social issue in our society. We all do. The Bill never challenged that. It is all part of a pattern of services being provided by this Government, through which we think we are strengthening the support for victims of domestic violence.

What we are discussing here is the special provision that we are also making to provide legal aid to people who have been recent victims of domestic violence, so that when they are dealing with their abuser in court on other issues—ownership of the former matrimonial home, maintenance, access to property—they have access to legal aid. In such cases, particularly the private family law cases and the children’s cases, we are trying to shift away from so much adversarial litigation. Having lawyers on both sides arguing about custody and access to children does not always lighten the tensions or resolve the dispute, as most Members of Parliament are only too well aware from their constituency surgeries, so we are moving towards mediation, which is cheaper. That is why some of the lobbyists do not like it, with the result that in cases where it does not work, they are arguing for legal aid to continue to be available.

We have conceded the case that after a recent episode of domestic violence, the victim on her own may not want to deal, even through mediation, with her abuser. How do we define domestic violence for that purpose? That is an important but secondary purpose, as the case will not be about domestic violence. In such a case, what definition of domestic violence should be used for the person to qualify for legal aid? That is what the argument about the definition in both Houses has been about all the way through.

Victims and Witnesses Strategy

Debate between Lord Clarke of Nottingham and Tony Lloyd

Monday 30th January 2012 Commons Chamber

[Mr Clarke]

That was the problem when the scheme was first set up—I remember wrestling with it 20 years ago. At that point, we had slipped into a situation in which a compensation claim was assessed as though it was a personal injuries claim in a civil court, which meant that every case took ages to litigate, lots of lawyers would turn up to make representations on the basis of large numbers of medical reports, and the costs soared. Everybody accepted that this was completely unsustainable. The compensation scheme for criminal injuries is not meant to be full compensation; it is meant to be a contribution towards covering the financial consequences of the injury. As I said earlier, it would be nice if the taxpayer could pay everybody full compensation as if it were a civil award, but frankly that was never practicable from the moment it started, and it certainly is not affordable now.

[Tony Lloyd (Manchester Central) (Lab)]

May I return to the question of delays? Certainly for victims of serious crime—either threats of violence or violence itself—delays in the investigation and delays by the Crown Prosecution Service and in the court process simply add to the menace that victims suffer. The Secretary of State has made some suggestions on how to proceed, but will he assure us that this matter will be a key consideration when drawing conclusions from the consultation? Of all the matters I have dealt with, perhaps the most harrowing involve those who live in fear, suffering a sentence while those awaiting trial are free on the outside.

[Mr Clarke]

Most of the delays that I have been talking about are delays in payment of criminal injuries compensation, but I agree with the hon. Gentleman that it is just as important that we do something about delays in the criminal justice system. We must improve the efficiencies of the court, avoid wasting as much time as is wasted currently, and so on. Together with the Minister for Policing and Criminal Justice, my right hon. Friend the Member for Arundel and South Downs (Nick Herbert), we are working on ways of improving the efficiencies of the court so that the more straightforward cases can be dealt with more promptly and those that are contested are handled more efficiently, to everybody’s advantage, including in terms of court costs, police costs, and everything else. Our system does not have as many delays as some of the worst in western Europe, but if someone is staying in custody for too long before they can get a trial, it is bad for justice. However, I agree that the biggest complaint we usually get from laymen in criminal cases that have gone slightly wrong is that it has taken too long to get to court and that there have been several abortive appearances that wasted their time before the case finally got dealt with.

Oral Answers to Questions

Debate between Lord Clarke of Nottingham and Tony Lloyd

Tuesday 13th December 2011 Commons Chamber

[Mr Clarke]

When Louise Casey was Victims’ Commissioner, she advised me strongly on giving more resources to the support of bereaved families, and I thought that her advice that we should target our support to victims and their families was very sensible. We are working on that and will continue to do so. I propose to publish a consultation document on a general victims package covering a wide range of areas, and I can assure the hon. Lady that in all our work we intend to give even greater emphasis to the importance of looking after victims, as well as getting justice in their cases.

[Tony Lloyd (Manchester Central) (Lab)]

The outgoing Victims’ Commissioner, Louise Casey, referred specifically to the needs of children as witnesses and victims in the criminal justice system. How will the Justice Secretary work with the new Victims’ Commissioner to ensure that proper protections are given to vulnerable children in that situation?

[Mr Clarke]

I can assure the hon. Gentleman that I will do that. We have made great progress in this country in recent years, including under the previous Government, on giving proper support to witnesses who have to appear in court. Obviously, it is most important to look after the most vulnerable witnesses, including children, who can be intimidated by the experience. We are looking at what we have in place now, and we hope to strengthen the arrangements.

Reforming Civil Justice

Debate between Lord Clarke of Nottingham and Tony Lloyd

Tuesday 29th March 2011 Commons Chamber

[Mr Clarke]

I think that is right. This will have a big impact on defamation cases where people threaten the publisher of something they do not like with enormous costs if they want to defend the action. This is having, to use the jargon phrase, “a chilling effect” not only on scientific and academic work, but on proper investigative journalism. When we put the draft Defamation Bill together with what we are proposing to do in the light of Rupert Jackson’s proposals, the way in which we are setting up no win, no fee generally and the announcements I have made about the jurisdiction of the courts, I think we will make a significant impact on lowering the costs of all this litigation to the advantage of plaintiffs who have a legitimate grievance and of defendants. We are going to stop the whole thing being a high roller’s gamble, which is what it is at the moment, as to whether the other side dare face the risks of the huge costs being piled up the moment a claim is brought.

[Tony Lloyd (Manchester Central) (Lab)]

Whilst welcoming anything that will reduce the unnecessary costs to lawyers and others, will the Justice Secretary give a reasonable guarantee to constituents like my own, who are generally among the poorest people in Britain, that they will still be able to find legal assistance? The obvious problem with the 25% rule is that it might drive people below the threshold at which lawyers would be prepared to take the cases on. Will anything in the proposals deter people from obtaining proper expert evidence when that is necessary for them to fight their claim?

[Mr Clarke]

I think that people will think twice, as it were. At the moment, they are lured into making a claim by an advertisement on the back of a bus or in some local office. There are many people with perfectly legitimate personal injuries claims and the method I would wish them to pursue is to go to a solicitor who will consider the reasonable prospects of success and take it on on a no win, no fee basis—on the sort of terms that were always envisaged when we introduced the system into this country in the 1990s. People will have to think more carefully; there will be fewer purely speculative actions; and there will be fewer actions brought in the hope that the size of the legal costs is so great that the other side might be bullied into making an offer of settlement, regardless of their chance of success. I hope, however, that legitimate claims will prosper under a no win, no fee system, which is much closer to the lower-cost systems that other jurisdictions operate.