Housing: Commonhold

Lord Clement-Jones Excerpts

Monday 10th February 2014 Lords Chamber

[Lord Faulks]

My Lords, my noble friend Lady Gardner has been a doughty champion of commonhold and has indeed recorded her interest and Questions on a number of occasions, in the past decade in particular. Of course, commonhold is successful and well established in other parts of the world, particularly Australia. Unfortunately it has failed to attract much enthusiasm in this country. It was originally the creation of the Law Commission in the 1980s. Whether review of commonhold legislation might be suitable for the commission’s further consideration is a question for the Government ultimately to decide. They have to decide priorities in accordance with the protocol but will bear in mind what the noble Baroness has said.

[Lord Clement-Jones (LD)]

My Lords, as my noble friend the Minister has pointed out, my noble friend Lady Gardner has on many occasions very effectively brought to the attention of the House the defects in domestic leasehold law. He gave a rather dusty reply as far as the Law Commission was concerned but it has been engaged in consultation about its 12th programme. The decision is in the hands of the Lord Chancellor. Is it not high time that the whole question of commonhold enfranchisement and leasehold law was considered by the Law Commission?

[Lord Faulks]

My Lords, the 100% rule, which is the subject of the Question from the noble Baroness, was in fact discussed in some considerable detail during the passage of this Bill through Parliament—the original Bill having been introduced by the party opposite. For reasons that we suggest are substantial, it was decided not to make the 100% rule a part of the law. Unfortunately, commonhold has not proved to be popular and there has been a very limited take-up. There is no obvious reason why this should be, particularly with new developments, although I accept it is much more complicated when converting leasehold to commonhold.

Leveson Inquiry

Lord Clement-Jones Excerpts

Thursday 29th November 2012 Lords Chamber

[Lord Elystan-Morgan]

My Lords—

[Lord Clement-Jones]

My Lords—

[The Chancellor of the Duchy of Lancaster (Lord Strathclyde)]

My Lords, I think we should hear from the noble Lord, Lord Whitty.

--- Later in debate ---

[Lord McNally]

So he knows the affection in which I hold him. However, I do not think that this is an issue for the barrack-room lawyers. It is a time for statesmanship in all three parties.

[Lord Clement-Jones]

My Lords—

[Lord Elystan-Morgan]

My Lords, I resist completely any temptation to embarrass the noble Lord in relation to the issue of legal aid, something that I have assiduously sought to do over the past six months, but does the Minister accept that Lord Justice Leveson says in his report that any complaint should be made,

“without cost to the complainant”?

Therefore it does not matter whether that comes from legal aid or some other public purse—there should be that complete freedom and guarantee in this regard.

[Lord McNally]

As with other parts of the Leveson report, we will have to look at this. However, one of the things that I know is in the report is the suggestion that, rather than a purely legalistic solution, there should be a road for settling complaints against the press that is cost-free.

[Lord Clement-Jones]

My Lords—

[Baroness Symons of Vernham Dean]

My Lords—

--- Later in debate ---

[Lord McNally]

I can assure the noble Baroness of that fact.

[Lord Clement-Jones]

My Lords, Lord Justice Leveson makes clear recommendations about changes to the framework of the Data Protection Act in terms of eliminating some of the exceptions that currently apply to the media. I note in the Statement repeated by my noble friend that my right honourable friend has certain reservations about that set of recommendations. Is the abuse of personal information not one of the root problems that we have seen during the past few years? Should we not proceed with those changes, particularly in light of the fact that his department would be responsible for making them?

[Lord McNally]

No, my Lords, we should not proceed with those changes but we should certainly move with speed to see how such changes could and should be implemented. The recommendations on data protection came slightly from left field; I am not sure that anyone was fully aware that Lord Justice Leveson would make suggestions in this area. It is an area where we are discussing matters in a European context, in terms of revising the European data directive and our own legislation. My right honourable friend the Secretary of State for Justice and I have already commissioned work within our own department to respond to the Leveson suggestions. As with other parts of the report, we will move forward with all due purpose.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Clement-Jones Excerpts

Tuesday 20th March 2012 Lords Chamber

Moved by

[Lord Clement-Jones]

145A: Clause 54, page 39, line 33, at end insert “, or
(c) arranges for another person to provide, for a fee, marketing services by unsolicited SMS text message, unsolicited telephone calls or any marketing in a hospital or other primary treatment centre.”

--- Later in debate ---

[Lord Clement-Jones]

My Lords, first, I declare my membership of the Law Society. As we have discussed both in Committee and on Report, referral fees are one of the major causes of the public’s perception that a compensation culture exists in this country. We have heard some powerful speeches across the Benches on the subject of referral fees. My noble friend Lord Thomas called them insidious and I agree. For that reason I strongly support Clauses 54 and 55.

Although there has been some difference of views on the provisions for referral fees set out in Clauses 54 and 55 as they impact on charities and trade unions, generally there seems to be a common view that although these clauses are useful, if they are to catch all the abuses they need to go further—perhaps not as far as the right honourable Jack Straw would want to go in terms of making it a criminal offence, but covering the full range of malpractices. For instance, there is nuisance marketing in personal injury—specifically, advertising in hospitals, cold calling and spam texts; financial incentives to claim; selling contact and case details of personal injury victims without their consents; and auctioning claims to the highest bidder. Mr Simon Burns the Health Minister recently told English NHS hospitals that it was not acceptable to display advertisements for law firms encouraging no-win no-fee compensation claims. That was a firm and wise action, and I commend it.

In our debate in Committee, my noble friend Lord Carlile of Berriew, on the subject of text messaging immediately after an accident without injury even taking place, made a powerful speech in support of extending Clause 54. My noble friend Lord McNally expressed sympathy with the intention behind the amendment and said that the Government would consider it further. I hope that he will tell us today where the Government have got to. Can we expect white smoke on Report or Third Reading or, indeed, a text message? I beg to move.

[Lord Beecham]

My Lords, I entirely support the amendment. The noble Lord, Lord Clement-Jones, is right that this practice is a nuisance. I was half expecting a text message after I told the House about my fall the other day. I thought that eager readers of Hansard in these companies would have solicited my attention or that of the noble and learned Lord, Lord Wallace of Tankerness, but so far nothing has happened. However, like many of your Lordships, I receive periodic texts and e-mails from organisations saying that I may not have made a claim in respect of my recent accident or, latterly, about payment protection insurance problems, and the like. As the noble Lord, Lord Thomas, said, it is an insidious practice and certainly ought to be banned.

I hope that the Minister accepts the amendment and that, if he does not, the noble Lord, Lord Clement-Jones, tests the opinion of the House.

[Lord McNally]

My Lords, this amendment looks to deal with the serious problem of unsolicited marketing, including text messages or telephone calls about personal injury claims. I congratulate my noble friend on raising an issue which, as the noble Lord, Lord Beecham, indicated, annoys and irritates millions of our fellow citizens. I assure the House that the Government have given careful consideration to this issue since my noble friend raised it in Committee. Legislation, which is primarily enforced by the Information Commissioner’s Office, already exists to protect individuals in this area. Recent action by that office has resulted in the confiscation of more than 20,000 mobile phone SIM cards that were being used to send unsolicited text messages.

Following this issue being raised in Committee, my honourable friend Jonathan Djanogly, the Justice Minister, will meet the Information Commissioner to discuss further how the problem can be addressed. Additionally, the ICO, the Ministry of Justice Claims Management Regulation Unit and other regulators continue to work closely with the telecommunications industry on this problem. Across government, an industry working group has been set up and is due to publish a joint guidance note for consumers explaining the functions of the relevant regulators along with advice on how to make a complaint.

On the particular point about advertising in hospitals, the Government do not support the marketing of such services on NHS premises. There is already an absolute ban on unauthorised marketing by claims management companies. We believe that it is more appropriate that authorised marketing should be dealt with through guidance rather than through regulation. In support of this approach, the National Health Service chief executive has recently written to NHS managers to make clear the position on marketing in hospitals and primary health centres.

I am grateful to my noble friend for raising this issue. The Government take it very seriously and are taking positive action. We believe that the answer lies in greater enforcement and robust action, along the lines of regulations and guidance that already exist. We will continue to monitor the situation and take it seriously, and I hope that in the light of that response my noble friend will agree to withdraw this amendment.

[Lord Clement-Jones]

My Lords, I thank the Minister for that reply. It very much falls into two parts, as far as I can see, in terms of action by and with the Information Commissioner and action by the Secretary of State and Ministers relating to unauthorised and authorised marketing in NHS hospitals. The bit I find difficult is not that relating to the Information Commissioner; indeed, it is very welcome that those powers are being mobilised and that the Minister, Mr Djanogly, is having the necessary meetings with the Information Commissioner. The surprising part concerns the National Health Service. I think that the view around this House is that there should be no authorised marketing of this kind within NHS hospitals. What baffles me is why that kind of marketing is allowed to persist within NHS hospitals. I am not going to press the amendment today but I very much hope that we can progress further, certainly in pressing the Department of Health to be much more robust than appears to be the case about this kind of marketing.

Whatever the form of marketing which is an arrangement between a hospital and a firm of solicitors —perhaps advertising law firms within hospitals or allowing texting—it certainly falls morally within the terms of the kind of action that we are trying to prevent within this clause. It therefore really should be covered, and if there is that power within the department —or indeed by any future regulator under the health Bill that has now passed—I very much hope that it will be exercised and that my noble friend the Minister’s department will keep pressing the Department of Health. Perhaps we might even bring this back for an assurance on Third Reading, to understand exactly what is being authorised if there is such a thing as authorised marketing of this kind. In the mean time, I beg leave to withdraw the amendment.

Amendment 145A withdrawn.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Clement-Jones Excerpts

Wednesday 1st February 2012 Lords Chamber

Moved by

[Lord Clement-Jones]

165: Clause 54, page 39, line 24, at end insert “, or
(c) arranges for another person to provide, for a fee, marketing services by unsolicited SMS text message, unsolicited telephone calls or any marketing in a hospital or other primary treatment centre.”

[Lord Clement-Jones]

My Lords, in moving Amendment 165, I shall speak to Amendments 167 and 168. We are still on Clauses 54 and 55, but we are dealing under these amendments with a rather different set of considerations. Both my noble friend the Minister and the noble Lord, Lord Bach, have mentioned the report from the noble Lord, Lord Young of Graffham, Common Sense, Common Safety. He was explicit in stating:

“The problem of the compensation culture prevalent in society today is, however, one of perception rather than reality”.

I suspect that a major reason for the public’s perception that a compensation culture exists has been driven by the actions of ambulance-chasing claims management companies. The existence of referral fees is another major cause of that perception. I very much support the Government’s attempt to solve the problem with Part 2 of the Bill, but legislation designed to end their influence must be watertight. In recent years, it is clear that there have been differing views on how to achieve this. Insurers allege that referral fees are directly responsible for the enormous increase in motor insurance premiums; others allege that insurers themselves have profited from receipt of referral fees for several years by selling details of their customers to panel solicitors or claims management companies. As we have heard from a number of noble Lords, Lord Justice Jackson in his review of legal costs, which reported in 2010, recommended that referral fees in personal injury cases should be banned. Others, however, such as the Association of Personal Injury Lawyers, fear that a ban will simply drive fears underground.

The insurance industry does not agree that transparency is sufficient and has welcomed the proposed ban. So too has the Law Society, of which I am a member, but it wants it extended beyond personal injury cases. Others, such as the right honourable Jack Straw, want to go further and make it a criminal offence—not just a matter of regulation—to solicit, offer or pay referral fees in road traffic accident claims. He proposed an amendment to the Bill to that effect last November. The Justice Select Committee, under the chairmanship of my right honourable friend Sir Alan Beith, believes that it should be punishable with a custodial sentence. This has been rightly resisted by the Government on the basis that circumstances could be very varied and complex and best dealt with by the regulator. I believe that the current provision strikes the right balance.

There are a number of issues, however, that arise in the course of consideration of the ban. First, the Legal Services Board highlighted the difficulty of defining referral fees. The Motor Accident Solicitors Society, in its evidence to the Transport Select Committee, highlighted the importance of a definition being wide enough to cover all potential commission fees, administrative costs, transfers and any other payments that may be disguised.

Secondly, the purpose of a ban on referral fees is to reduce insurance premiums in future. But how is that to be judged? The benefits derived from a ban may not necessarily be passed on to consumers. Indeed the impact assessment of the proposed ban admits that, overall, claimants might lose out from a ban on referral fees on personal injury cases, with individuals expected to be affected more than business. However, lawyers are apparently likely to incur no net additional costs.

Thirdly, are any other sectors in contemplation that could be activated by Clause 54(4)(b)? Last October, the House of Commons Justice Committee, to which I referred earlier, called for that ban to be extended for other types of case. My right honourable friend Sir Alan Beith, chair of the committee, said that it was “disappointing” that the Government had chosen to limit its enforcement capacity for the most serious cases of abuse of personal information. He added:

“It is likely that Ministers will have to return both to this issue and to the issue of referral fees in areas other than personal injury, where they are taking welcome action”.

It is important, however, that the ban extends to the full range of malpractices. They include nuisance marketing in personal injury, specifically advertising in hospitals, cold calling and spam texts; third-party capture, which was debated earlier; financial incentives to claim; selling of contact and case details of personal injury victims without their consent; auctioning claims to the highest bidder; and marketing that is not accompanied by a service to filter out spurious claims. This is the reason for Amendment 165. The amendment would ban nuisance marketing, which fuels perceptions of a compensation culture and impacts on the ability of genuine accident victims to obtain redress. It would have the benefit of driving the really unscrupulous operators out of the market.

Health Minister Mr Simon Burns recently told English NHS hospitals that it was not acceptable to display adverts for law firms that encouraged no-win no-fee compensation claims. Surely, however, any conflict with the Compensation Act 2006, which allows businesses to operate in NHS trusts with the approval of the facility’s management, must be resolved through primary legislation.

However, there must be clear exceptions. National Accident Helpline exists as a national brand for the marketing activities of more than 100 leading solicitors’ firms around the country. They have told us that this scale of marketing allows tens of thousands of people who would otherwise find it very difficult to access legal support to obtain legal representation and pursue legitimate claims, and that they—the NAH—strictly filter those who respond to marketing. Every year, it tells more than 150,000 people who contact it that they do not have a claim. The NAH contends that if such legitimate marketing, already regulated by the ASA and others, were to be banned, thousands of genuine accident victims would be left without legal representation. That is the reason for Amendment 167.

The ban on purely commercial referral fees must exclude provision of legitimate marketing services that enable innocent injury victims easily to access the requisite legal representation. The ban should also exclude other services under a scheme, such as sales, marketing, product development, vetting of clients, upholding solicitor standards and debt control. Amendment 168 would remove Clause 55(9), which is potentially very damaging to the ability of accident victims to obtain high-quality legal representation.

Some believe that the ban could also be read as banning or capping the legitimate costs of genuine, high-value services. These include the provision of necessary medical reports for clients, quality assurance for solicitor firms, sales and product development. To ban or limit those commercial activities would drastically restrict the ability of legal firms to offer the best advice to genuine claimants. My noble friend the Minister will, I hope, be able to give assurances that any cap excludes these legitimate services such as I have mentioned. I beg to move.

[Lord Hunt of Wirral]

My Lords, I shall speak to Amendments 166A and 166B, standing in my name on the Marshalled List, and to declare my interest as a partner for 44 years in the international commercial legal firm DAC Beachcroft LLP, and the other interests contained in the register.

This gives me an opportunity to respond to one or two comments in the earlier debate. In this important group of amendments we need to focus on the underlying problem of legal costs as much as on the problem of referral fees. As my noble friend Lord Clement-Jones just reminded us, the Government are implementing another of the main recommendations of Lord Justice Jackson’s review of civil litigation costs. Perhaps I should mention here my personal pride that one of my partners, Andrew Parker, was an assessor to Lord Justice Jackson's review.

--- Later in debate ---

[Lord Clement-Jones]

My Lords, I thank the Minister for that reply. Apart from the metaphorical slap on the wrist at the end of his response, it was generally helpful. I thank those who have spoken to the amendments. The noble Lord, Lord Hunt, made some interesting contributions and it is good to hear that the Minister is looking favourably on those amendments. The phrase about removing the excess from the system is very powerful. My noble friend talked about commoditisation and the possibility of litigation futures. The lawyers are probably salivating at that prospect. A number of noble Lords have recounted their experiences in this area. I will not add to the list of those who have spoken on that. However, I have even received a text message when I have not had an accident, which just shows the assiduity with which these characters operate.

I enjoyed hearing the noble Lord, Lord Bach, going well off piste when discussing the Jackson report in responding to my humble reference to a single aspect of that report, which was then inflated into a general reference to the whole of the Jackson report.

[Lord Bach]

I say with the greatest respect to the noble Lord that of course I remember his comment on Lord Justice Jackson’s report, but in this instance I was referring to what the noble Lord, Lord Hunt, said about that report.

[Lord Clement-Jones]

It is very useful to explain it in that way.

I thank the Minister particularly for his sympathy for Amendment 165. I very much hope that he will carry that forward to Report. Having looked at the existing legislation, I think it would be extremely useful to signpost that measure explicitly in this legislation. I also thank him for his assurance about pooled marketing and legitimate activities on the part of those pooled marketing schemes. They perform a very useful service and it would be a retrograde step if they were not able to continue. I will read with great care what the Minister said about Clause 55(9). I beg leave to withdraw the amendment.

Amendment 165 withdrawn.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Clement-Jones Excerpts

Monday 21st November 2011 Lords Chamber

[Lord Clement-Jones]

My Lords, I declare an interest as a member of the Law Society and as a partner in an international law firm. Even so, I venture with caution into this arena, so I shall be brief, especially as so many excellent speeches have been made tonight. By background, I am a commercial lawyer, but I became involved in politics largely as a result of my experience volunteering in the early 1970s at the first law centre, the North Kensington Neighbourhood Law Centre set up by Peter Kandler, in the immediate post-Rachman era. I joined the Legal Action Group, founded in 1971 by my noble friend Lord Phillips, and thereafter I have taken a strong interest in the development of the law centre movement and the extension of legal aid into key areas of family law and social welfare. Until now, I thought that we had been making steady progress in ensuring that, where rights had been given, there would be adequate access to justice to enforce them, regardless of means. The contents of this Bill heavily lead me to doubt that belief.

I recognise that savings need to be made in the budget of the MoJ; the current legal bill is £2.2 billion. However, the extent of withdrawal from scope of legal aid is quite breathtaking and I believe it will put the clock back more than 40 years. We are told that more than 650,000 people will be affected in total. As we have heard, it seems that Lord Justice Jackson is not happy that these cuts are part of the package. They will cripple CABs and law centres and many will have to close. We are told that 18 out of 56 law centres are at risk and that they are already suffering from a 10 per cent cut in legal aid fees. My noble friend Lord Shipley has illustrated that extremely clearly. Granted there is planned to be some transitional support but, over time, the law centres will lose some 77 per cent of their legal aid funding. Do the Government think that we will all go back to volunteering in order for people to get the legal help that they need?

Furthermore, in the first instance, even where legal aid is available, the only initial recourse will be via a telephone gateway. This will badly disadvantage the more vulnerable, who will find the telephone much more difficult to cope with than a face-to-face meeting, as many noble Lords have said. This will save the princely sum of £2 million, we are told. All these cuts will fall hard on the poorest and most disadvantaged members of society, who are already being heavily impacted by government welfare reforms.

Contrast the contents of this Bill with the one line in the coalition agreement which says:

“We will carry out a fundamental review of legal aid to make it work more efficiently”.

What kind of mandate is that for the sweeping nature of this Bill and its changes to legal aid? As if that were not enough, as has already been said, the Lord Chancellor will have the right to omit further categories from the scope of legal aid by order, but not to add to them. What is the justification for these changes: the so-called compensation culture? As we have heard, the report by the noble Lord, Lord Young, said that this was a myth perpetrated by the national press. If the grounds are purely cost-cutting, why has the MoJ not taken more seriously the Law Society’s suggestions for savings of between £249 million and £384 million, and sat down to explore them? As we have heard, the impact assessments of the MoJ are not underpinned by any proper research into the unintended cost to the taxpayer and other government departments—indeed, the MoJ admits it. How can it cast doubt on the Law Society’s projections for efficiencies, procedural reforms, and cost-cutting in other areas, or the CABs’ claim of what the impact will be on them?

In many ways the most unfair and emotionally disturbing aspect of the Bill, however, is the proposal to do away with legal aid for clinical negligence except in exceptional cases. This is particularly because very ill and very injured children are often involved. I want to describe a typical case which has been cited to me by a well known firm of personal injury and clinical law specialists:

“Our client Felix was born at the Royal Surrey County Hospital in Guildford in 2002. He was born premature but healthy. Sadly his prolonged neonatal jaundice was not adequately and promptly treated, so he suffered severe brain injury and has cerebral palsy. He requires 24-hour care, including waking specialist nurse care at night. After his claim was issued at the High Court, the hospital admitted liability and has made damages payments ‘on account’ of the final damages settlement that we hope will be reached before the trial, fixed for next year. Felix can now be provided with the care, equipment and therapies he so desperately needs. His damages settlement will be strictly based on his needs, as well as the massive impact his condition has upon his family.

Felix’s claim is funded by legal aid. This meant that if Felix had lost his case, he and his family would not be liable for the costs of the Trust, and that they were able to instruct lawyers with the ability to deal with his complex claim. Under the new LASPO regime proposed by this Government, Felix’s family, who could not themselves have paid to bring a case, could only have brought a claim if they could both find a law firm willing and able to fund the investigation and running of Felix’s complex claim, and perhaps also pay for insurance to cover the risk of paying the Trust’s costs if the claim failed. Felix would also have lost a substantial slice of his carefully calculated damages to pay that part of his costs the Trust would no longer be obliged to pay. These same issues apply to many of our clients’ claims”.

It goes on to say:

“Compensation payouts are not lottery wins. They are calculated in great detail in an attempt to normalise the lives of both the injured and their families following traumatic events. They can provide for care costs, adaptations to accommodation, equipment such as wheelchairs and hosts, and vehicles”.

Firms in this field say that without legal aid, especially to pay for the early investigations and medical reports, and exacerbated by the 25 per cent cap on success fees, they will in general find it very difficult to act on a regular basis with a CFA for victims of medical negligence unless their chances of success are assessed as at least 70 per cent.

All for what? An estimated saving of £10 million. The NHS Litigation Authority said that removing legal aid for clinical negligence would undoubtedly cause NHS legal costs to escalate massively and increase public expenditure. The Minister may say that of course some exceptional cases will be funded if failure to provide funding would breach the applicant's rights under the 1998 Act—but he knows that this has been very narrowly interpreted by the European Court of Human Rights.

The one bright spot in Part 1 is the fact that specific provisions for legal aid for children with special educational needs and disabilities has been strengthened: but even here, it needs to be made clear that this will continue beyond 16 to the age of 25 and will cover more than a school setting.

In conclusion, we all celebrate the passage of the landmark Legal Aid and Advice Act 1949, which had such a major, positive impact on the enforcement by ordinary citizens of their legal rights. This Bill risks being remembered for another, more negative reason. I urge the Minister to listen to the voices in the House today, and those in Committee, so that we will be able radically to alter its worst features before it leaves this House.