Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Faulks Excerpts

Tuesday 10th January 2012 Lords Chamber

[Lord Woolf]

My Lords, as is always the case, the noble Lord, Lord Pannick, has summarised the arguments in support of the amendment with admirable clarity. There is very little that I can add but, looking at these provisions, I should have thought that the Minister—although he may prove me completely wrong—would say, “Of course, that’s exactly what I will do. I will see that the person appointed as director has the qualifications that I consider necessary. How could I do otherwise?”. Likewise, I should have thought that he would say that of course the director must be independent. However, I urge the Minister not to be led astray by some argument on those lines. It is significant that the committees have expressed the concern to which the noble Lord, Lord Pannick, referred with the view that the position should be clearer. I say respectfully that the committees were right to take that view. We are concerned here with access to justice, which is a fundamental constitutional right. Where a right of that sort is involved, it is appropriate that the position is dealt with clearly.

The issue of what sort of civil servant would be appropriate to fill a particular role is always difficult. I remember a time when it was automatically assumed that any Permanent Secretary in what became the Lord Chancellor’s Department would be a qualified member of the Bar or a qualified solicitor. That no longer happens; the days when a barrister or solicitor would perform that role are past.

It is a different type of task that the director will perform. He will have the say-so in determining who is given access to justice—because without legal aid there may be no access to justice, and we all know that that would be a very worrying situation. Therefore, perhaps the Minister will recognise that, irrespective of the good intentions of an officeholder, sometimes it is of benefit if the person concerned is familiar with the subject involved. The experience of senior civil servants filling roles of this sort is that often departments do not feel comfortable with the independence of one of their civil servants who has been—if I may put it this way—seconded for a time to fill an office such as the one about which we are talking. In that situation it is very easy for a department to start giving instructions to “one of their own”—a civil servant whom they see as belonging to the department.

I hope that the Minister will forgive me if I give an example that occurred just before Christmas in connection with the Bill and which caused me to write to him on behalf of two of my noble friends who, with me, wanted to get the assistance of the chief executive of the NHSLA, Steve Walker. A later amendment suggests that there should be a process and a safety net to ensure that, where there might be a claim for medical negligence, a medical report should be obtained prior to litigation being started. We wished to have the advantage of the great experience of that official but were told politely and courteously that he would not be able to give us that assistance because the subject was too political for him to become involved with. I was very surprised and I am now glad that the Minister has properly responded to my concerns—although I have not received his letter—and that the position has been rectified. However, it illustrates how easy it is, when a senior civil servant is on attachment in a role such as that of the director, for those who are experienced in a department not to appreciate how important it is not to interfere with the independent way in which the individual performs their functions. Therefore, these amendments are sensible and I hope that the Minister will feel able to accept them.

[Lord Faulks]

My Lords, I, too, support the amendments. I will be brief, as the reasons were so admirably summarised by the noble Lord, Lord Pannick, and by the noble and learned Lord, Lord Woolf. The post of director will be critical for the preservation of whatever is left of legal aid. The concern of the committees was that there was at least the potential for conflict, as has been outlined, because the director might seek to follow the direction of the Lord Chancellor and not be suitably independent.

May I give your Lordships an example of how important the director’s powers may be and of how important it is that he or she should be seen to be independent? He will have to determine whether a case falls in the so-called exceptional cases category under Clause 9. I understand that the Minister may well be telling us in due course that this category and the availability of legal aid for exceptional cases is an effective answer or partly an answer to the apparent deprivation of access in relation to clinical negligence. I think that some of your Lordships may need some satisfying in this regard, but that I believe is one of the answers to the apparent lacuna.

Whether a case falls within the exceptional case category is bound to be somewhat controversial. Even the current decision-making exercised by the LSC is not short of critics. However, if a director is seen simply as doing the bidding of the Lord Chancellor at the relevant time, confidence in his independence will be significantly undermined. If a Lord Chancellor—not this Lord Chancellor, of course—were to decide that too many claims were being brought against government departments or the NHS, he could, at least in theory, give some rather firm guidance to the director on the process of determining such exceptional cases. Therefore, I suggest that it is vital that decision-making about the availability of legal aid should be seen not to have even the appearance of being at the whim of the Lord Chancellor or Cabinet colleagues but rather to be the proper determination by a suitably qualified director on grounds not of political expediency.

I dare say that this is very much what the Government’s true understanding of the director’s role is, in fact, to be, in which case I hope and expect the Minister to welcome these amendments, which set out, I hope in clear terms, what may be the underlying intention of the Government about the role of the director and his or her independence.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Faulks Excerpts

Tuesday 20th December 2011 Lords Chamber

[Lord Pannick]

My Lords, the amendment is in my name and those of the noble and learned Lord, Lord Woolf, and the noble Lords, Lord Faulks and Lord Hart of Chilton. It is an appropriate amendment with which to begin the Committee stage of this important Bill.

As the debate at Second Reading indicated, there is considerable concern about the contents of Part 1. There is widespread acceptance that in tough financial times legal aid must bear its share of the cuts in public expenditure and that the Government have to make difficult choices. However, there is widespread concern about the wisdom of the choices that are being made in Part 1 and whether it is appropriate to limit legal aid so extensively for those sections of the community that are most in need of advice and assistance to obtain the legal rights and benefits to which they are entitled.

The amendment seeks to focus this Committee’s debate on the contents of Part 1, and seeks to remedy a considerable defect in Clause 1. The defect is that the clause fails to mention that the objective of Part 1 must be to secure access to justice, to protect the needs of individuals and to do so in an effective manner. Clause 1 fails to recognise that our debates about the content of Part 1 should take place in the context that legal aid is a vital element in securing access to justice, and that without access to justice, the rights and duties which we spend time creating in this Parliament by legislation are reduced in value and effect.

The drafting of Amendment 1 is closely based on Section 4(1) of the Access to Justice Act 1999, which imposes duties on the Legal Services Commission. When the Bill transfers those responsibilities into the Lord Chancellor's Department, the primary objective of securing access to justice by effective means to meet needs must be retained in the Bill. That point was made in the report of your Lordships’ Constitution Committee, of which I am a member.

I very much hope that the Minister will be able to tell the Committee that he can accept the amendment. It is carefully drafted to recognise, as does Section 4(1) of the 1999 Act, that the duty to provide access to services in order to meet needs is not absolute. It is a duty defined by reference to the resources available. The drafting does not impose an independent duty which trumps the specific contents of Part 1. On the contrary, it says expressly,

“in accordance with this Part”.

I hope that the Minister will be able to accept the amendment as doing no damage whatever to the specific clauses which we shall be debating later in Committee. At the same time, the amendment ensures that the Bill recognises the vital principle which always has been and which should remain at the heart of our legal aid provisions: a commitment to providing access to justice. I beg to move.

[Lord Faulks]

My Lords, I support the amendment. As the noble Lord, Lord Pannick, explained, the current drafting is a change from the wording of the Access to Justice Act 1999 and the amendment makes it clear that the Lord Chancellor has an obligation to secure the access to legal services that meet the needs of the individual. That was recommended by the House of Lords Constitution Committee, although the amendment contains an important modification in that there is a qualification that the provision of legal aid must be on the basis of resources,

“made available in accordance with this Part”—

Part 1. In other words, there is no absolute requirement on the part of the Secretary of State to make legal aid available regardless of the financial situation.

I understand the purpose behind the Bill, which is, first, to save approximately £350 million as a contribution to reduction in expenditure generally and, secondly, to make some important changes to the litigation system as a whole. Although legal aid and the amendment are concerned with Part 1, it cannot be viewed in isolation, particularly not from Part 2, which brings about changes in current conditional fee arrangements. The need for those changes is clear. As recently as yesterday, a Court of Appeal judge observed at the end of the case that it was another case in which,

“the existence of a conditional fee agreement has made it practically impossible to obtain a settlement”.

He went on to observe that, ultimately, it is the public who pay for these things, either through higher premiums, or through the unwarranted expenditure of public resources.

Access to justice means satisfactory access not just for claimants but also for defendants. My reading of the purpose of some of the amendments put forward by the Front Bench of the party opposite is that they are intended substantially to maintain the status quo. This is somewhat surprising in view of the widespread acceptance of the undesirable effects of the current system, not least by Mr Jack Straw, former Secretary of State for Justice, in debates in the other place. I suggest that some of these amendments will actually impede access to justice.

There is an additional benefit from this amendment, apart from the clarity that I hope it provides. Our law is generally subject to the Human Rights Act—in particular, Article 6 of the convention, which provides for the right to a fair trial. How an individual state decides to reflect this principle in its provision of legal aid or some other form of assistance is, I suggest, very much for that state to decide, and it should be well within the so-called margin of appreciation—theoretically, at least—permitted by the courts in Strasbourg. There have been cases where in one context or another the lack of legal aid has been found to violate Article 6, although it might be said that the jurisprudence in this area lacks some coherence. However, this amendment should make such challenges far less likely to succeed in that there is a clear statement of the Lord Chancellor’s obligation and, contained within it, a sensible acknowledgement of the limits provided by available resources.

The Lord Chancellor said in an interview with the Guardian, published yesterday, that the Bill was concerned with,

“protection of fundamental rights of access to justice for critical issues that no civilised society can do without”.

I suspect that all in your Lordships’ House would agree with that aim. It is an aspiration that should inform our debates on the Bill in Committee in the weeks to come, and I suggest that this amendment is a good beginning.

[Lord Howarth of Newport]

My Lords, the Constitution Committee did us, as it always does, a good service in reminding us and stating emphatically that access to justice is a constitutional principle. The amendment that it proposed to Clause 1, which would say that the Lord Chancellor must secure that legal aid is made available in order to ensure effective access to justice, would be a humdinger of an amendment. It would reassert absolutely and emphatically the fundamental constitutional principle of equal access to justice for all our people. The amendment that the noble Lords, Lord Pannick and Lord Faulks, and others have tabled and placed before us is not the same as that amendment. They have chosen to qualify the requirement on the Lord Chancellor by including language about his obligation being only within the resources made available for the purpose. The noble Lord, Lord Pannick, also said that in his view the duty was not absolute, although a little later in his remarks he said that access to justice was a vital principle. I am not clear exactly what the degree of obligation on the Lord Chancellor would be.

It certainly seems to me that if the legal aid budget is to be cut by £350 million, it may not be possible within the resources available to secure access to justice. I am beginning to wonder whether the noble Lord, Lord Pannick, and his very distinguished co-signatories, all of them lawyers, may find themselves in somewhat the same position as the revolutionary students in Paris in 1968, whose motto was “Demand the impossible”. It is very exciting to demand the impossible but the prospects for your proposition are not necessarily very good. At all events, I am a little confused about exactly what their amendment would require of the system, and I wonder whether there is not some sort of internal conflict within the amendment.

For my part, I believe that the duty on the Lord Chancellor and the Government should be absolute. If equal access to justice is a fundamental constitutional principle, then I believe that we, as citizens and taxpayers, should pay whatever it reasonably takes to secure it. The legal aid budget, running at some £2.2 billion, is a lot of money. On the other hand, as I mentioned at Second Reading, £2.2 billion is only around 1 per cent of the social security budget and the £350 million cut to the legal aid budget that is being proposed by the Government would, I think, be 0.2 per cent of the deficit, about which all of us are very properly exercised.

I think it is disputable whether the existing legal aid budget is unaffordable. If we believe that it is a fundamental constitutional principle, we could afford to pay what it costs. Of course, costs must be disciplined and the previous Labour Government were severe on that matter. I was not entirely happy when the former Prime Minister, Mr Blair, spoke of his intention to,

“derail the gravy train of legal aid”,

because I believe that a great many legal aid lawyers are working for pretty small remuneration and are not riding on any kind of a gravy train. Nor was I entirely in agreement with the tone and the sentiment of my right honourable friend Jack Straw when he spoke of,

“BMW-driving civil liberties lawyers”.

Of course, it must be right—this is very much the intention that the Lord Chancellor declares in his article in the Guardian today—to attack lawyers who are drawing entirely excessive remuneration out of work that may be funded by legal aid.

My noble and learned friend Lord Irvine of Lairg, when Lord Chancellor, mounted a vigorous attack on the cost of the legal aid system. He attacked the costs but he did not attack the principle. The Government are right, of course, to examine the costs. If it costs £120 million to run the Legal Services Commission, then that commission must be a candidate for economy. However, I am sure that noble Lords will agree here, as elsewhere, that we should not throw the baby out with the bathwater. We are speaking of a fundamental constitutional principle, of a fundamental entitlement for our citizens. Can we speak of a fundamental constitutional principle in the context of an unwritten constitution? I believe that we can, and so I think does the Constitution Committee of your Lordships' House because it quoted the noble and learned Lord, Lord Steyn, and Lord Bingham speaking very eloquently about the right to equal access to justice.

Noble Lords will be very well aware of the Sir Henry Hodge Memorial Lecture, given by the noble and learned Baroness, Lady Hale, in June. I had the privilege and pleasure to listen to that lecture, in which she told us that the principle of equal access to justice is to be found in the Magna Carta:

“To no one will we sell, to no one deny or delay right or justice”.

That is a principle that has been established cumulatively through our history. She told us that a statute of 1494, in the reign of Henry VII, provided for actions to be brought in forma pauperis, relieved from court fees and provided with lawyers acting pro bono. Then later in our history, there was the famous case of Ashby v White, the Aylesbury election case in 1703, when Lord Chief Justice Holt, in his judgment said:

“If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy; for want of a right and want of a remedy are reciprocal”.

Some noble Lords may have read an excellent and informative article in the London Review of Books, on 20 October, by Joanna Biggs, who traced some of the history of the establishment of the right of equal access to justice. She describes how, in 1944, Henry Betterton, who, like the right honourable Kenneth Clarke, the Lord Chancellor, was a barrister and indeed a Conservative Member of Parliament for Rushcliffe, was appointed to chair a special committee on legal aid and legal advice. In his report in 1945 he said:

“The great increase in legislation and the growing complexity of modern life have created a situation in which increasing numbers of people must have recourse to professional legal assistance”.

The free legal aid that was at that stage available was, he said, at best somewhat patchy and totally inadequate. He recommended that in the future legal aid should be available not just for the poor but for people of small or moderate means. People who could afford to do so should contribute to their legal costs. Barristers and solicitors were to be paid adequately. There should be legal aid centres across the country. That was the vision that underlay the Legal Aid and Advice Act 1949. That legislation was widely recognised as being part of the structure of the new welfare state that was being created by that Labour Government.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Faulks Excerpts

Monday 21st November 2011 Lords Chamber

[Lord Faulks]

My Lords, the intention behind Parts 1 and 2 of the Bill is to restore some balance to our civil litigation system. The system should provide access to justice but should not be so distorted that it provides a source of excessive profits to lawyers and a small industry of parasitic organisations which have been spawned by the current arrangements. Whether there is indeed a compensation culture does not matter very much. In fact, successive government investigations have suggested that there is no such thing. What, however, is indisputable is that the litigation process has been disfigured by the whole machinery of referral fees, crude advertising and cases which too often become about legal fees rather than the underlying dispute. The case for reform is clear. But does the Bill go too far?

The noble Lord, Lord Pannick, is quite right: we should see the whole question in historical context. When legal aid was introduced in 1949, it came shortly after the establishment of the national health system and reflected the national mood. However, we should beware of golden-ageism. We should also be careful of drawing too close a parallel between patients and litigants. Welcome though the provision of legal aid was, there gradually developed a system in which only those who were very rich or had legal aid could afford to litigate at all.

It was to restore a sense of balance that the Court and Legal Services Act 1990 brought in some modest changes allowing conditional fees to provide access for what has now become known as the squeezed middle. There was a view that these changes did not go far enough, hence the Access to Justice Act 1999, which unleashed the changes now to be redressed by the Bill. The provisions of that Act allowed for the recoverability of success fees up to 100 per cent and large ATE premiums which were effectively unchallengeable. This has meant that defendants have suffered an unfair disadvantage in litigation. I remind the House, as did the noble and learned Lord, Lord Davidson, that not all defendants are multinationals or emanations of the state.

The Jackson report, about which the noble Lord, Lord Hunt of Wirral, spoke so clearly, was the remarkably detailed and comprehensive response to these problems. It forms the basis of Part 2 of the Bill. I am broadly if rather cautiously in favour of these changes. I am concerned that some meritorious claims by the victims of industrial disease and even of environmental disasters may not now be viable. I will leave other noble Lords to develop arguments in these areas. However, a fundamental point ought to be made about Sir Rupert Jackson's report. It assumed the continuation of legal aid.

I want to concentrate the remainder of my remarks on clinical negligence. I should declare an interest as a practising barrister who has been instructed for defendants and claimants in this area of litigation. Many noble Lords will consider that we should retain the status quo, which allows legal aid at least where children are concerned. I have considerable sympathy for this view. The retention of legal aid for clinical negligence is supported not only by the NHSLA, as has been referred to by the noble Lord, but by Sir Rupert Jackson himself. In a lecture to the Cambridge law faculty in September this year, he said,

“of all the proposed cutbacks in legal aid, the removal of legal aid from clinical negligence is the most unfortunate”.

Although I would prefer to keep legal aid for seriously injured children as it is, it should at least be retained for the costs of investigation. Let me give a specific example of where injustice will follow if the current Bill is not amended. In cases of brain-injured children there are often considerable difficulties in establishing whether there has been a breach of duty, and sometimes greater complications still in establishing causation. Even the most experienced solicitors in the field will need expert opinions from obstetricians, midwives, neuro-radiologists, paediatric neurologists and/or neonatologists. Under the existing system, the LSC, which carefully monitors expenditure, allows for considerable legal and medical costs involved in forming a view on whether a case can go forward.

Without legal aid I cannot see how a brain-damaged child and his or her family can begin to pursue these cases. The cost of an ATE premium will be beyond the means of almost all litigants. Even large firms of solicitors will not be able to carry the expenditure, particularly where the advice may often be not to proceed further. Someone who is possibly the victim of clinical negligence has the right to know whether the immense cost and heartbreak involved in bringing up a disabled child can be mitigated by an award of damages. The provision of legal aid at modest rates is essential to allow them to do so.

For reasons that will be developed in Committee, the so-called exceptional funding provisions, which seem to be directed at Human Rights Act cases, are no answer. In this connection perhaps I may refer the Minister to the case of Powell v United Kingdom in 1990, decided by the European Court of Human Rights, which makes it clear that medical negligence cases will very rarely, if at all, involve violations of the convention. I am afraid that I am also wholly unsatisfied by the Government's proposal in Clause 45 that there will be some modification of the rules to allow the recoverability of ATE premiums in respect of expert reports. Where is there any evidence that such a market can simply be created by the Government in this context?

The only other response is that CFAs should be enough. For the reasons that I have given, I cannot see how anyone in this situation will be able to obtain a CFA, particularly if the profitability is to be so reduced. It is interesting that the existing LSC funding code, which specifically identifies investigative help as being of,

“vital importance in clinical negligence cases”,

also provides that,

“the potential to obtain a Conditional Fee Agreement will not be a ground for refusal of Investigative Help for a clinical negligence case”.

So even if a CFA could be obtained, it is not a very impressive reason for declining legal aid in these cases, particularly when legal aid is granted only where the solicitors are franchised and thus experienced in the field. That is a point of fundamental importance to access to justice. I profoundly hope that the Government will make changes to put the matter right.

I hope that there can be a degree of consensus in the approach to the vitally important process of improving the Bill. That would be much easier to achieve if the party opposite were to acknowledge in the course of debate that it too would have made significant, if not wholly identical, changes to the civil litigation system. Would it really have ignored the Jackson recommendations? Was it really happy with some of the grotesque results of the legislation that it brought in?

This momentous legislation is a necessary corrective to the unsatisfactory system. It reflects the economic times in which we live. There are changes to the Bill which we need, not least in the definition of the Lord Chancellor's duties to which the noble Lord, Lord Pannick, referred—I support his proposed amendment in that regard—and the role of the director of legal aid casework. In scrutinising this legislation it will be vital to ensure that access to justice is not a meaningless mantra. It is a critically important part of what it means to be British.

--- Later in debate ---

[Lord Elystan-Morgan]

My Lords, I wish to use the time available to me to speak to Parts 1 and 2 of the Bill, that robustly harrowed area in respect of which we have heard the most distinguished and powerful contributions already.

Unless a Government of the future pass a one-clause Bill to abolish legal aid completely, the contents of this Bill and the proposals surrounding them must constitute the most savage and most deadly attack upon the institution of legal aid in the 62 years of its existence. The Government have pleaded three justifications for those proposals. The first is that we live in a society that is overindulgent with eccentric litigants, that legal aid is wasted and, even worse, that in some way or another it encourages and stimulates utterly irresponsible litigation. The second is that, in the context of legal aid, there is every alternative possible that can ameliorate and mitigate any loss that would otherwise exist. Furthermore, they say that, in any event, it is a system that will be greatly improved by the proposals in the legislation.

A few questions should be asked about those propositions. First, is there a litigation culture that menaces the community in which we live? I doubt it very much. I draw all my experience from some 50 years in the law as a solicitor, a barrister and a judge. I have seen many cases of legal aid. There may well be some one would doubt it was utterly reasonable to have granted legal aid—what else would you expect in an imperfect world? But for each one of those, I can think of a dozen cases for which one would think it would have been proper for a litigant to have been granted legal aid.

The first point that I would wish to make in challenge to that proposition of overindulgence and creating a culture of litigation is to be found in the report by the noble Lord, Lord Young, some few months ago, entitled if I remember rightly, A Community and a Safe Society.

[Lord Faulks]

My Lords, it was Common Sense, Common Safety.

[Lord Elystan-Morgan]

I am most grateful and obliged to the noble Lord. In that report, the noble Lord, Lord Young, made it perfectly clear that the conclusion that he came to, from all the evidence that he had heard, was that there was no such thing as a litigation culture in society but there was in the minds of tabloid editors. Of course, there are eccentric litigants. Let us just think of how poor the reports of the law of tort and the law of contract in the 19th century would have been were it not for eccentric litigants. However, they were rich and they were certainly not on legal aid. That is what we have to consider. There is no evidence whatever that we live in a situation where legal aid has stimulated a culture of litigation.

Secondly, we ask whether the effects of what we see now are going to be destructive or benign. So much has been said here today that it needs me only to ask that particular question for it to be answered. It is perfectly clear that the whole foundation, the whole ethos, of legal aid is being challenged and attacked. In those situations, the scope of the cuts and the very nature of the deprivations are such that it is inevitable that there will be very considerable destruction. There will be no legal aid generally, but only in that cluster of sparse areas referred to in Schedule 1. Six hundred thousand people who are now eligible for legal aid will be taken out of that system. There will be no legal aid for private family cases apart from domestic violence—and it seems that the gateway to that has already been deliberately created as a massive obstacle course for likely applicants.

Thirdly, I look to the question of whether amelioration is possible. I doubt it. No doubt mediation has its part to play. Even if we had an army of persons trained, skilled and experienced in mediation—and I hope that some day we might very well come to that; a great deal might be done—some cases, especially family cases, as I well know, could take days but would otherwise be utterly impossible. Again, so much has been said about no-win no-fee to make it obvious that, although that may fill some of the gap, a huge and yawning chasm will still remain.

Lastly, I ask a question about the cost to the Exchequer. In its third report on legal aid, the House of Commons Select Committee on Justice expressed amazement that there was no comprehensive study of the knock-on effects. These knock-on effects will show themselves in one of two ways: either people will retreat from defending or asserting their rights altogether, or there will be a knock-on effect in massive expenditure in other departments.

It has been calculated by the CAB that for every £1 that is spent on legal aid, £2.34 will be spent on housing, £7.18 on employment, and £8.80 on benefits. Where is the gain? What is the gain commensurate with the anguish, the loss and the injustice? At Second Reading of the Bill in the other House, the Secretary of Justice said:

“I accept that access to justice for the protection of fundamental rights is vital for a democratic society—something on which I will not compromise”.—[Official Report, Commons, 29/6/11; col. 986.]

It is not by their words but by their deeds that they will be judged, as far as this matter is concerned.

Supreme Court: President

Lord Faulks Excerpts

Wednesday 16th November 2011 Lords Chamber

[Lord McNally]

My Lords, I could not agree more with my noble friend. The difficulty is that sometimes the idea of choice on merit slips into “chaps like us”, and that is what must be avoided.

[Lord Faulks]

My Lords, do the Government have any view on the so-called tie-break principle, whereby if there are two candidates of entirely equal merit there will be a favouring of either female applicants or members of the ethnic minorities?

European Convention on Human Rights

Lord Faulks Excerpts

Thursday 19th May 2011 Lords Chamber

[Lord Faulks]

My Lords, I, too, congratulate the noble and learned Lord, Lord Irvine of Lairg, on securing this debate. More than 10 years after the enactment of this momentous piece of legislation, it is time to consider whether the Human Rights Act has lived up to expectations. It is a subject rarely out of the news, but a dispassionate look at its successes and its failures is required.

The title of the White Paper, Rights Brought Home, published in 1997, echoed the consultation document published earlier by the Labour Party entitled Bringing Rights Home. The rhetoric surrounding the introduction of the legislation created a picture of rights invented by us at last being brought into our courts, sparing citizens the long, tedious and expensive journey to secure justice in Strasbourg. It is not without irony that the recent publication by the Policy Exchange is entitled Bringing Rights Back Home. This paper advances the case not for steps to “give further effect” to the convention, as did the Human Rights Act, but rather that control should now be retaken of the convention so as to limit or even eradicate the effect in this country of decisions of the European Court of Human Rights in Strasbourg.

No one in your Lordships’ House or outside can be against the idea of protecting human rights. Few would quarrel with the identification of fundamental rights included in the convention, which we signed in 1950, but even the most fervent supporter of the Act must have quietly despaired at the popular disaffection with it. Sadly, the idea of human rights, once such a noble aspiration, has become trivialised. Since the passing of the Act, I have been engaged as a barrister representing public authorities in claims in tort and now under the Human Rights Act, mainly in the Appeal Court. The Act did not make an immediate impact in this field, but I can tell noble Lords that there has now been a positive explosion of activity. Was this to be expected?

More than a decade ago, a great deal of time and money was spent in educating judges and the legal profession about the forthcoming legislation. Revisiting some of the literature now, it is instructive to see how speculative were the views of commentators about the likely impact of the Act. Perhaps it should have been more obvious that those who would rely on the Act would not be, for the most part, the most attractive members of society. Unfortunately, it has not always been the poor, the sick, the disabled and the homeless who have used it, but prisoners, bogus asylum seekers and illegal immigrants. This has not helped to endear the public to the Act.

One of the more surprising features of the Act has been the response of our judges to the challenges that is has thrown up. Section 2 imposed an obligation on courts to “take into account” Strasbourg jurisprudence rather than to follow it, but the House of Lords Judicial Committee in the case of Ullah said that it was the duty of national courts,

“to keep pace with the Strasbourg jurisprudence as it evolves over time: no more: but certainly no less".

I do not think that Parliament truly expected such acquiescence.

In the passage of the Bill, an amendment was put down the effect of which was to limit the binding effect of Strasbourg case law. In opposing the amendment, the noble and learned Lord, Lord Irvine, said:

“As other noble Lords have said, the word ‘binding’ is the language of strict precedent but the convention has no rule of precedent …We take the view that the expression ‘take in account’ is clear enough … it is important that our courts have the scope to apply that discretion so as to aid in the development of human rights law. There may also be occasions when it would be right for the United Kingdom courts to depart from Strasbourg decisions”.—[Official Report, 19/1/98; col. 1270-71.]

The way decisions are reached in the ECHR is very different from the approach in this country, where there is a strong regard for precedent and consistency in decision-making. Our courts have expended enormous intellectual energy in trying to impose some sort of order on the ad hoc decisions that emanate from Strasbourg. Despite these efforts, considerable uncertainty has resulted as to what the law is, with the result that many Human Rights Act cases reach the appellate courts, with consequent expense to all parties, principally public authorities.

For those who were prospectively concerned about the potential loss of identity in our law by reason of the impending legislation, reassurance was offered by the prospect of the “margin of appreciation”. The Secretary of State for the Home Department, Mr Jack Straw, said on 3 June 1998:

“The doctrine of the margin of appreciation means allowing this country a margin of appreciation when it interprets our law and the actions of our Governments in an international court, perhaps the European Court of Human Rights. Through incorporation we are giving a profound margin of appreciation to British courts to interpret the convention in accordance with British jurisprudence as well as European jurisprudence”.—[Official Report, Commons, 3/6/98; col. 424.]

Those who were concerned that the Human Rights Act would have insufficient impact on our law were afraid that too much respect would be paid to the margin of appreciation—that there would even be a double margin of appreciation—but the reality is that it has featured hardly at all in the responses by courts here to the often-controversial decisions emanating from Strasbourg, which have largely been remarkably creative interpretations of the fundamental rights embodied in the convention. The courts have thought it appropriate not restrict to themselves to the protection of fundamental rights but frequently to reinterpret United Kingdom obligations in areas such as policing, social services, education and even the administration of prisons. These are surely areas where one would expect the courts to reflect the margin of appreciation.

Judges here have been perhaps slightly supine in the face of some curious decisions coming from Strasbourg, but there has of late been a flicker of a response. In the recent case of Horncastle, the Supreme Court declined to follow a decision of the ECHR and encouraged what it described as a “dialogue” to begin between the courts here and there. Experience suggests that any such exchange is less likely to be the elegant exchanges of a Noel Coward play and rather more a Beckett monologue, with Strasbourg the only speaking part.

This leads to prisoners' votes. A significant majority of the UK population is against them voting, although some might regard the right to vote as slightly less controversial than the right to receive heroin substitute, which has been the subject of a large number of claims against those responsible for the “health” of prisoners. However, Strasbourg has decided that the parliamentary ban is insufficiently nuanced and has persisted in this view, notwithstanding the view expressed by the House of Commons in the recent debate.

I welcome the commission set up by the Deputy Prime Minister, which has an enormous and vital task to perform. The members of the commission will not be short of advice. I am sure that they will not be swayed by the tabloid headlines that have so disfigured the debate so far. I only wish that I could tell the House that all the newspaper stories were fundamentally wrong, but they are not.

No one who followed the introduction of the Act can question the motives of those behind the legislation. It took tenacity and intellectual courage to see it through. It would take even greater courage to accept its major shortcomings and the need for change.

Civil Legal Aid

Lord Faulks Excerpts

Thursday 19th May 2011 Lords Chamber

[Lord Faulks]

My Lords, I should begin by declaring an interest as a practising barrister and also as chairman of research for the Society of Conservative Lawyers and editor of a pamphlet submitted to the Government and the Ministry of Justice as part of the consultation process in relation to the Government's proposals for the reform of legal aid.

The Government must cut £350 million by 2015. Although comparisons are not easy, we spend much more on legal aid than countries of an equivalent size and economic status. Legal aid, like other areas of government spending, must bear its share of pain. I agree with the Government that court proceedings should be very much the last resort and that encouragement should be given to people to seek remedies by other means.

The party opposite has accepted that had it been in power—I rely on what the shadow Minister in the other place, Sadiq Khan, said—there would have to have been significant cuts in any event. However, consistent with its approach generally, there has been a lack of specificity about where those cuts might fall, thereby leaving plenty of room for manoeuvre to criticise the proposals that the Government have put forward.

However, I welcome the debate secured by the noble Lord, Lord Beecham, and give credit to him and to the noble Baroness, Lady McDonagh, for initiating it. If one accepts that cuts have to be made, the question is where the axe should fall so as to cause the minimum of pain and to try to ensure, so far possible, that there remains meaningful access to justice. I share the concern of, I suspect, many noble Lords that the vista of unrepresented litigants will not necessarily be much of a saving in terms of the administration of justice. Cases tend to take longer and sometimes there are appeals on difficult points.

There is little time to deal with all the many issues that the Government's proposals involve. I shall refer to two. The first is clinical negligence. Some clinical negligence cases are of immense complexity—to take an example, an obstetric case which may result in a brain-damaged baby. These cases will involve myriad experts, quite rightly. They will include obstetricians, midwives, neuroradiologists, paediatric neurologists and neonatologists. A great deal of expertise is needed from them and from the lawyers to investigate what is often a very difficult matter: whether there has been a departure from the appropriate standard of care and, often even more difficult, whether such departure has or has not caused damage. An enormous amount of literature has been generated by this. It really does involve a great deal of skill. Very often the conclusion is reached by lawyers that there is no case, and the matter does not go forward. There is not to be any legal aid, even for the investigatory steps, and I suggest that is potentially going to cut off some very important cases. It means that those who really need compensation in the years to come may well be denied.

The Government’s answer is the CFA system, but because of the changes in the CFA system that they propose following the partial implementation of Jackson, it will be very unattractive for many lawyers to take these cases. I fear that the limit to the success fee—25 per cent of damages excluding really sizeable amounts—and no recovery of after-event insurance mean that many firms are going to restrict their activities to very straightforward cases of egregious errors, the sort of cases, in fact, that would attract claims managers rather than responsible and experienced lawyers. I suggest to the Minister that if he does nothing else as a result of my observations he goes back to Sir Rupert Jackson and asks him whether he would approve of this effective pincer movement on those very worthwhile cases that are going to be prevented as a result of the Government’s changes.

I will have to deal with my second point very briefly. The tone of the Government’s response seems to suggest that there is some possibility of additional funding in cases where they may feel that they would be in breach of treaty obligations if they did not do so. Reading the subtext, I take this to be a suggestion that anything to do with Human Rights Act cases may still require legal aid. There are some very important Human Rights Act cases, but let me tell the House that there is an enormous number of very trivial Human Rights Act cases. The Government should not be frightened to say that if cases are not serious, do not involve large amounts of money and are not truly human rights issues, there should be no legal aid for them. There would be savings that could be better spent elsewhere.

Bill of Rights

Lord Faulks Excerpts

Monday 24th January 2011 Lords Chamber

[Lord Faulks]

The Minister said on another occasion—I think at the Liberal Democrat Party conference—that he was anxious that the Act should be “better understood and appreciated”. Does he envisage, along with other steps that might be taken, giving a gentle reminder to courts and tribunals of the provisions of Section 2, which requires them to “consider” Strasbourg jurisprudence, as opposed to slavishly following it even if the decision is contrary to common sense?

[Lord McNally]

Most certainly, my Lords. One thing that I have been looking at is whether it is possible to give some guidance in the exercise we are undertaking which will point our courts to such a sensible review of human rights cases. Nothing does more damage to human rights than court judgments that call on human rights, not always accurately, as the justification for action which the general public think is absurd.