Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Davidson of Glen Clova Excerpts

Monday 21st November 2011 Lords Chamber

[Lord Davidson of Glen Clova]

My Lords, I thank the Minister for his measured introduction to the Bill. First, I should declare an interest as a practising member of the Bar.

As the Minister indicated, the Bill is plainly a substantial piece of legislation. It makes major changes to the civil law, with consequences for access to justice. Our principal concern focuses on extensive cuts to legal aid and a dramatic switch in civil litigation to place greater financial burdens on winning claimants, hitherto treated as entitled to restitution for their loss and damage. As the House’s Select Committee on the Constitution has observed—as if there were any doubt about the matter:

“There is no doubt that access to justice is a constitutional principle”.

The section of the Bill on criminal justice is perhaps less sweeping and less controversial, encompassing as it does both sentencing reform, much of which we support, and the creation of new criminal offences, the latter for the main part having been introduced on Report in another place.

It is the changes to both legal aid and civil litigation that have rightly attracted the most concern, the most representations from civil society and the most debate in another place. It should be clear from the outset that we oppose many of these changes. I know from speaking to certain of your Lordships that these concerns are shared by many here. My noble friend Lord Bach and I will advance arguments as to why those changes are both economically misguided and target the wrong people. They target, for example, the most vulnerable in the case of legal aid, including vulnerable families, and victims in the case of civil litigation reform.

Part 3 of the Bill contains a variety of fairly substantial changes to the criminal justice system, some of which we welcome. For example, the Government intend to divert away from custody people with mental health and addiction problems as well as young people. These proposals are both sensible and proportionate. The Government propose to end indefinite sentences for public protection, IPPs, which have attracted considerable criticism over the years. The plan to replace IPPs with extended determinate sentences and mandatory life sentences for the offender who commits certain specified offences twice will plainly require scrutiny in Committee, as the Minister anticipated.

The Bill also aims to change the way in which remand works in England and Wales by limiting its use where a judge rules that there is no probability of a custodial sentence. Our view on this issue is that there is of course merit in reducing the use of remand where it is unnecessary, but only if it does not put victims and the general public in harm’s way. Further, there are due process issues for a magistrate, who, without having seen prima facie evidence, is required to decide whether an offender is likely to be sentenced to custody. The Government have signalled their intent to bring forward in this House further changes to remand in response to campaigns such as that by the parents of Jane Clough, who was murdered by her ex-partner while he was on bail pending charges for her rape We expect that these will require considerable scrutiny so that we can balance keeping the use of remand while protecting the public.

The Bill also creates new, or possibly restated, criminal offences of threatening with a knife and squatting, alongside what the Government call a “clarification” of how much force can be used in defence of property. I expect that there will be constructive debate in this House on these issues.

I return to Parts 1 and 2 of the Bill, which correctly have attracted most concern. The cuts to legal aid set out in Part 1 and the reduction of damages that victims receive set out in Part 2 are contiguous assaults on access to justice for both the most impecunious in society and those of moderate means. The Government aim to make substantial cuts to social welfare legal aid and advice. Welfare benefits will be removed from the scope of legal aid. Education advice and representation, except for matters dealing with special educational needs or discrimination, will be removed from scope, as will be debt advice, except where the client’s home is at risk, employment advice and representation, except discrimination issues, and housing advice, except where the client’s home is at risk. The Government apparently hope to save some £64.5 million by removing these areas of law from scope while, we say, adversely affecting the most vulnerable people in society. We say “adversely affecting” as these citizens will now have to navigate the First-tier Tribunals on their own without advice or representation.

I appreciate the First-tier Tribunals are meant to be more user-friendly to the unrepresented applicant than the courts, but they still rule on matters of law, which user-friendliness in itself does not assist. The Minister has indicated that today apparently £20 million will be made available in respect of free advice. I have one or two questions about this. It would be interesting to know, for example, whether this is free legal advice, because legal questions tend to require legal advice. I ask this question because we on these Benches have received little information about this proposal. I also ask whether this is possibly the same £20 million to which reference was made on 2 June this year.

The risk is that someone who has a learning disability or poor language or communication skills will receive no help at all. Answers to Parliamentary Questions reveal that those who appear before the tribunals with specialist advice are twice as likely to win as those without specialist advice. If we look at the data for the last year, taking advice away from those who won raises the question whether those 51,000 people who received advice and won their case would have in fact won at all.

The real concern is that people, who have meritorious cases, where advice would permit their cases to be pled cogently and persuasively, will lose out. We know that where the vulnerable lose out, their lives can sometimes tip over into ill health, homelessness and family breakdown. Of course, it is then, only then, that the state will be obliged to intervene.

It costs £150 per case of debt advice, but many thousands are required to be spent to resolve a case of homelessness. It can be tens of thousands of pounds—many tens of thousands.

The Civil Justice Council, the non-departmental public body that advises the Ministry of Justice on civil justice, states in its recent report on access to justice for litigants in person:

“It is hard to overstate just how difficult it can be—for the person, for the court, and for other parties—when someone self-represents”.

It goes on to say:

“The design of the legal aid reductions and changes will take away routes to accessible early advice (including by the damage done to the advice sector, which in turn damages access to wider pro bono legal services) and leave intervention too late or denied altogether. As a result we will find more cases started by self-represented claimants that need not have been started, more cases where self-represented defendants are involved for longer than need be, and more cases not starting when they should be started so that they can be resolved. We will find problems clustering, with increasingly wide and serious consequences for the individual, for families, and the state”.

The Government’s own assessments do not read particularly hopefully. They say the cuts to social welfare legal aid threaten to lead to reduced social cohesion; increased criminality; reduced business and economic efficiency; increased costs for other departments; and increased transfer payments from other departments, in particular higher benefits payments for people who have spent their savings on legal action.

These proposals merit considerable scrutiny by this House. I urge those who have not done so to read the Hansard record of the Committee and Report stage of this Bill in another place. Members from all sides have argued that these changes will do little to enhance our society. This House’s Select Committee on the Constitution suggests an amendment to oblige the Lord Chancellor to,

“secure that legal aid is made available in order to ensure effective access to justice”.

We consider that this is a necessary buttress to justice.

The second major change to the legal aid system is that to private family legal aid. Private family legal aid, which helps impecunious applicants with matters including divorce, custody or ancillary relief—payments and maintenance following divorce—will no longer be funded by legal aid unless the applicant has suffered domestic abuse. The Government have set out six forms of evidence that they will accept for the purposes of accessing private family legal aid.

We believe, as do many others including the Women's Institute, Rights of Women, and End Violence Against Women, that this evidential prescription will adversely affect women. In particular, the Opposition are very concerned that the evidential criteria adopted by the Government are too narrow. In fact, they do not even reflect best practice across government. The UK Border Agency's list of accepted evidence on domestic violence is broader than the Bill’s treatment of someone seeking legal aid for divorce.

One is given to understand that the Government are worried that evidential criteria containing an element of self referral and their decision to make domestic abuse the gateway to legal aid will create a perverse incentive to claim abuse where they might be none. But this approach seems to create and foster institutionalised doubt as to the veracity of victims’ claims in the first instance. Put colloquially, women will lie. We fear that it will disadvantage women and indeed men who leave a partner after sustained abuse. They may not have revealed their experience of abuse to others but they will be denied legal aid because they do not fit the set criteria. That is hardly an advance, noble Lords may agree.

Part 2 of the Bill deals with reform of civil litigation funding and costs. The Government believe that contingency fee arrangements—that is, no-win no-fee claims—require substantial reform. No-win no-fee is a mechanism allowing people of little or moderate means to access the courts without having to mortgage their houses or get into severe debt funding an action on a standard fee basis. No-win no-fee has worked remarkably well as a means of funding litigation. It limits liabilities for claimants and deters lawyers from taking on vexatious or spurious cases while enabling reasonable cases to be taken on, all through the awarding of success fees.

The Government's plans, which we will examine in their technicalities in due course, propose major changes to the settled system that we have now. How will it affect those who find themselves needing recourse to litigation, often literally through no fault of their own? Winning claimants—that is, those who have been wronged—will lose out. They may have to pay up to 25 per cent of their damages to their lawyers excepting any award for future care. It is true that to make up for part of these losses the Government plan a 10 per cent increase in damages for pain, suffering and loss of amenity, but not all damages awards. The simplest arithmetic shows that the increase is unlikely to replace the percentage paid to the lawyer.

Oddly, losing claimants, however, will gain. They will no longer have to pay the costs of winning defendants. That is part of the qualified one-way cost shifting scheme that the Government intend to introduce once the Bill passes. Local authorities and insurers are privately counselling that that will lead to an explosion in fraudulent small claims, typically slips and falls, where the authorities’ costs of defending exceed the claim. Elsewhere, the Government say that they fear perverse incentives.

We also find that losing defendants—that is, the wrongdoers, those proven to have caused harm—will gain because they will not have to pay the cost of after-the-event insurance and the victim’s lawyer’s success fee thus limiting their and their insurers’ liabilities. Winning defendants who successfully defend their cases will no longer be able to reclaim the cost of their defence thanks to qualified one-way cost shifting. Not all defendants, of course, are large companies or insured persons.

The gainers from this Bill are losing claimants and losing wrongdoers and their insurers. The losers are claimants who prove their cases and defendants who are held not to be at fault. Such outcomes are at best curious to those who prefer justice and fairness.

The majority of civil cases involve road traffic accident personal injuries and it is true that the Association of British Insurers and the right honourable Jack Straw have highlighted how so-called whiplash fraud is a real problem in this area. However, this Bill has consequences well beyond that problem, which can be resolved by a more focused approach. The effect of the Government’s changes will be to render much of the law that protects the individual no longer practically accessible to many of our fellow citizens. If we take the acute area of clinical negligence, for example, the NHS Litigation Authority—hardly a claimants’ advocate because it defends clinical negligence cases— identifies in its response to consultation that severely brain-damaged children and adults will find it hard to instruct a lawyer who is willing and able to take on their cases. People who have lost out to incompetent or fraudulent financial advisers, lawyers or accountants, will find that they will end up recovering less than they lost, despite having done nothing wrong. To lose 25 per cent of damages today connotes significant contributory negligence by the claimant. Under this Bill, the damaged—the blame-free—will lose out; and for what overriding public good? It would no doubt be crude sloganeering to suggest that this is for the protection of insurance company profits, but one is left puzzled seeking to identify the clear policy objective justifying such consequences. The Minister will no doubt assist the House with an explanation beyond what we have heard thus far.

I turn to another area of the adverse effects of this Bill: business and human rights. Cases such as Trafigura, the toxic waste to Africa case, will be most unlikely ever to be brought again in future, and that for cost reasons. The UN Secretary-General’s special representative for business and human rights, Professor John Ruggie, of Harvard University, alongside campaigners such as, inter alia, CAFOD, Friends of the Earth, Amnesty and Oxfam, all urge a rethink. We join them.

Turning to employment law, it is already under assault in so many ways, whether from tribunal charges, legal aid cuts or so-called blue-sky thinking to remove the laws completely. If people are made redundant or sacked unlawfully and their entitlement to remedies is blocked, the result in many cases will be that the state has to provide the support for which otherwise the employer is liable. We note also that insolvency cases raise issues. HMRC and the Insolvency Service have stated that they are lobbying for an exemption, which is possibly not an example of a joined-up government. I should also mention concerns about defamation law. Your Lordships will be aware that the Joint Committee on the draft Defamation Bill has observed that this Bill’s proposals do not put libel proceedings,

“genuinely within the grasp of the ordinary citizen”.

It is hardly an endorsement. Your Lordships will also be aware that the family of Milly Dowler are powerful advocates for the argument that the no-win no-fee system works.

Finally, I turn to industrial illness and disease, one of the most difficult areas. Many charities, including those that support the victims of asbestosis, have expressed real concern that this Bill threatens their ability to get access to justice. I will read a few excerpts from a letter written by Yvette Oldham, whose partner Trevor was a victim of asbestosis. She wrote:

“My husband Trevor and I were devastated upon hearing his diagnosis of mesothelioma in March 2010. We were just a normal couple with a grown-up son, leading busy lives at work, socialising and sporting activities. Trevor is in no way to blame for his condition and was exposed to asbestos between 16 and 24 years of age when he was an apprentice lift engineer erecting lifts on building sites … This disease has affected our lives in every possible way and stress levels have been extremely high for both of us … Trevor has been in pain since the condition showed itself, he is very sensitive to strong pain-killing drugs, so is unable to take more effective pain relief. Compensation would be eroded by having to pay legal costs plus insurance to cover defendants’ legal costs, plus the worry of having to pay some fees upfront. This is an insult and will discourage people from making a claim to which they are entitled. This Bill should be designed to stop the ‘ambulance chaser’ brigade who contact prospective clients and advertise constantly, not workplace victims whose lives were put at risk by exposure to asbestos”.

This Bill overturns central aspects of our civil justice system that have proved positive and progressive. The most vulnerable people in society and victims are being disadvantaged. Some say that the purpose is to attack a so-called compensation culture. Of course, there are abuses, as can occur in all systems, but there is no evidence—evidence, not headlines—of continuing pervasive abuse requiring this Bill’s approach. We believe that the Government will struggle to justify the changes this debate will highlight. We can promise that the Bill will be subject to substantial scrutiny in Committee.