Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Clinton-Davis Excerpts

Tuesday 10th January 2012 Lords Chamber

[Lord Elystan-Morgan]

I, too, support the amendment that has been moved with such clarity by the noble Lord, Lord Beecham. An expert is not a luxury. Irrespective of how conscientious, patient and thorough a judge may be, there are many technical issues on which he would be lost in coming to a proper, conclusive determination of the case without expert evidence to assist him.

In some cases there will be privately paid experts and no expert on the other side. How can there be an equality of arms in such a situation? Without elaborating on the case that has been properly put by the noble Lord, I would urge on Her Majesty’s Government a consideration that the denial of an expert in a proper case is a denial of justice and, more often than not, may not be a saving in net financial terms.

We shall deal later with other amendments on savings. The Government believe that they can save £350 million through the changes proposed in this part of the Bill. The Law Society, very conscientiously, has drawn up a plan suggesting that £375 million could be saved in a totally different way. I appreciate that there are conscientious and genuine differences as to these opinions but I have no doubt that much of the saving which, on the face of it, appears to be attractive in this situation of financial stringency, may very well not be a saving in actuality.

The diminution in the fees of experts was an extremely retrograde step. There was no justification for it and it will reduce the availability of experts. I speak as one who sat for many years in the family jurisdiction in North Wales, where one had to go far afield for experts in the Manchester and Liverpool areas. One was at the end of the queue and had to wait for months before an expert was available. Diminish that availability and you will add to an injustice that already exists.

[Lord Clinton-Davis]

The consortium has opined that deleterious effects will follow the Government’s proposals. It says that the standards and availability of experts will disappear or be badly affected. The Committee is entitled to know—I hope the Minister will discharge this in his speech—what meetings have taken place with the consortium. What are the effects? Are the Government closing their mind entirely to the representations that are being made?

[Lord Morris of Aberavon]

My Lords, a range of issues could be raised under the amendment, which I support. It is self-evident—it speaks for itself—that there should be accessibility to and a maintained quality of expert evidence. For justice to be done, it frequently turns on the quality and persuasive ability of the expert who is giving evidence.

We are debating the generality of the need for expert evidence. When we come to clinical negligence, we will return to more specific questions about the need to maintain particular panels. People in this field are highly respected and in very great demand, and frequently the problem is to lay one’s hands on someone who can deal with your specific problem. When I was a very young man, for a very short time I had something to do with mining cases in south Wales—a very long time ago—where the quality of the experts on both sides of the mining industry ensured that justice was done because the judges frequently knew many of the experts. The experts were well qualified on both sides. More often than not, cases were settled in view of the nature of the expert evidence that had been tendered, and that saved individuals and the state a great deal of money.

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On the £350 million which the Government hope to save, I appreciate that their attempts are genuine but I suspect that they are utterly misconceived. The Minister is a person for whom I have immense personal regard; I have greatly respected his intelligence and indeed his wisdom over the years in this House. Can he with his hand on his heart say that there is any certainty about any saving at all in relation to these expenses? Secondly, even if there is a saving, can he say that it is anywhere in the realm of the £350 million that has been adumbrated by the Government?

[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.

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[Lord McNally]

My Lords, I am most grateful for all the contributions to what has been an extremely full debate—one that yet again has taken on some of the elements of a Second Reading debate, partly because of the structure of the amendment.

I have to say that we were one hour and 40 minutes into today’s deliberations before anyone—it was the noble Baroness, Lady Howarth—kindly mentioned that the debate and the Bill are set against the background of the economic situation we faced when we came into office. In the Ministry of Justice, a relatively small department, there was a commitment to find savings of £2 billion during this spending round. I say to the Benches around the House that there are no soft options.

I have not yet had a chance to read in full today’s speech by the Leader of the Opposition in which he is apparently asking the Labour Party to face up to the fact that cuts are inevitable. However, I have been following some of the advice he has received over the past week or so about facing that reality, some of which came even from Members of this House. I also think that some of the comments about the kind of social tsunami that we are going to face if the Bill is passed need a reality check: that after we have cut £350 million off the budget of our legal aid scheme—and I have not heard anyone challenge this—it will remain among the most generous in the world. The idea that somehow this is the end of civilisation as we know it does not stand up. We have been asked on a number of occasions to go back to first principles. We came into office with a commitment to make cuts in a department where there are really only four areas of expenditure: courts services, probation, prisons and legal aid. We set about trying to reshape the legal aid scheme in a way that addressed what we saw as the most fundamental issues of access to justice.

[Lord Clinton-Davis]

But if the Government are wrong about saving £350 million, and if the cost of providing services equivalent to legal aid mounts irrevocably, what does the Minister say about that? If the Government have miscalculated, is that not a grave offence?

[Lord McNally]

Fortunately, I know that the noble Lord has himself stood at this Dispatch Box, and I am sure that then he heard alarm bells going off in his head when anybody asked him questions with “if … if … if” in them. It is wise not to try to speculate. Of course things may happen beyond our control. The Government have made a judgment on these matters. We are asking the House to support that judgment, and we will find in the course of time whether that judgment is right.

The Bill is beginning to suffer from what I might call report fatigue, in that almost weekly a report comes out, usually sponsored by very interested parties, which is then quoted around the House. I would be the last to deny the right of groups to commission reports and to use their findings, but it is not necessary for those to be treated as holy writ. They are studies; we receive them, read them and take notice of them.