Access to Justice

Debate between Lord Faulks and Lord Howarth of Newport

Wednesday 18th March 2015 Lords Chamber

[Lord Faulks]

I can assure the right reverend Prelate that these are matters which will be considered by this Government, or indeed any other Government to follow, in due course—probably between 2016 and 2018.

[Lord Howarth of Newport (Lab)]

My Lords, is it not clear that the principle of equal access to justice is held sacred across the political parties as well as across the churches? Is it not equally evident, however, and curiously, that it is a principle not cherished in the bosom of the Lord Chancellor, the very person who we would expect to be the high priest of justice? The Minister knows the present Lord Chancellor, Mr Grayling, well. Will he share with the House any insight he may have as to why the Lord Chancellor is a heretic in regard to this article of faith?

[Lord Faulks]

The Lord Chancellor is well aware of his obligations, as he told the Constitution Committee. He has had to ensure that so far as possible there is access to justice while at the same time having to cope with the deficit that was left behind by the party opposite. I can assure the noble Lord that the Lord Chancellor remains committed to access to justice, as do all his Ministers.

Court Fees

Debate between Lord Faulks and Lord Howarth of Newport

Thursday 26th February 2015 Lords Chamber

[Lord Howarth of Newport]

To ask Her Majesty’s Government how much additional money they expect to raise by increasing court fees; what they will use it for; and what is their assessment of the impact of that policy on access to justice.

[The Minister of State, Ministry of Justice (Lord Faulks)]

My Lords, we estimate that the introduction of enhanced court fees for money claims may generate around £120 million in additional income annually. There is a statutory requirement that income from enhanced fees must be used to fund an efficient and effective system of courts and tribunals. For the reasons set out in the Government’s consultation response published on 16 January, we do not believe that the policy will have a negative impact on access to justice.

[Lord Howarth of Newport (Lab)]

Did the Minister, whose personal commitment to justice I do not for a moment doubt, notice that on Monday, when the Lord Chancellor was piously quoting Magna Carta to the Global Law Summit—

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

Mr Grayling intoned—his unfortunate junior Minister, Mr Vara, was attempting to explain to the House of Commons that what the Government euphemistically call “enhanced court fees” are actually intended to protect access to justice? Are not these increases in court fees, ranging to more than 600% and following upon the Government’s assaults on civil legal aid and judicial review, simply the latest instances of how this Government do in fact sell, deny and delay justice, in brazen contempt of Magna Carta and the rule of law?

[Lord Faulks]

No, I do not accept that characterisation of the Government’s policies in general or the enhanced court fees. The Government are committed to providing effective access to justice and a good and satisfactory court system which is paid for by litigants. The qualification to our enhanced court fees is that the 90% who are below £10,000 will not pay increased court fees, and we believe that the cost of the court system should be borne by those bringing larger claims.

Mesothelioma

Debate between Lord Faulks and Lord Howarth of Newport

Tuesday 9th December 2014 Lords Chamber

[Lord Faulks]

It is absolutely not the case that there is insufficient funding for research. As I have said more than once, the case is that, at the moment, there is not a suitable number of applications for research. The funding is very much there. As to any question of insurers making some profit out of this, I will look into that. It is contrary to what the Government wish to achieve.

[Lord Howarth of Newport (Lab)]

My Lords, when the noble Lord, Lord Freud, brought in the mesothelioma legislation he did so undoubtedly in good faith. Yet, sufferers from this terrible industrial disease have now been failed not only by employers and insurers but by the Government themselves. Has the Lord Chancellor authorised the noble Lord to apologise on behalf of the Government for his decision to take up to 25% of compensation awards for costs—conduct which has been ruled by judicial review in the High Court to be unlawful? The noble Lord still has not explained to the House why the Government have failed to honour their commitment, given in terms by the Minister, Mike Penning, to set the levy on employer’s liability insurance at 3% of gross written premiums, which would have enabled better compensation and more funding for sustained research.

[Lord Faulks]

Compensation is full at the moment, as the noble Lord knows. I reject the allegation that the Government have done nothing. Not only are they promoting research; they have also, with their Big Tent meeting in June, encouraged much greater co-operation between lawyers acting for claimants to ensure that medical employment records are swiftly obtained. What is most important is that these claimants obtain compensation quickly and at as high a level as they can.

Legal Aid

Debate between Lord Faulks and Lord Howarth of Newport

Thursday 4th December 2014 Lords Chamber

[Lord Howarth of Newport]

To ask Her Majesty’s Government whether, in the light of criticism from the judiciary, they plan to reconsider their policies for legal aid.

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, we have a good working relationship with the judiciary, and I am a strong advocate of the independence of judicial decision-making. When concerns are raised by the judiciary, the Government reflect upon them. The government policy on legal aid continues to be that limited legal aid resources are made available for the most serious cases and to the most financially vulnerable.

[Lord Howarth of Newport (Lab)]

My Lords, does the Minister acknowledge that in a judgment on 31 October the President of the Family Division made some excoriating observations, of general application, on the unjust effects of the denial of legal aid in a case where parents stand to lose custody of their child for ever? He stated that to “require” them,

“to face the local authority’s application without proper representation … would be unconscionable … it would involve a breach of their rights under Articles 6 and 8 of the Convention; it would be a denial of justice”.

In the words of the judge,

“the State has simply washed its hands of the problem”.

What steps is the Lord Chancellor taking to ensure that Her Majesty’s Government are not in breach of their legal obligations under the European Convention on Human Rights and the Human Rights Act to ensure that no parent facing proceedings for the removal of a child is prevented by a lack of resources from getting paid legal representation?

[Lord Faulks]

It used to be a convention that judges did not criticise politicians and politicians did not criticise judges. I do not propose to depart from that convention. What I can say is that both those litigants have in fact been able to get legal aid. There remain the exceptional funding provisions under Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act, which apply to cases in which there is said to be a violation of the convention or an EU provision. In fact there is a difference, and one should not conflate this, between scope and eligibility. Usually there is scope for these things, but the individual applicants nevertheless have to satisfy the tests of eligibility.

Prisons: Overcrowding

Debate between Lord Faulks and Lord Howarth of Newport

Monday 16th June 2014 Lords Chamber

[Lord Faulks]

My Lords, as the noble Lord says, the level of crime has gone down under this Government. Sentences are longer than they were, as the sentencing guidelines suggest. Unfortunately, while serious crime remains a problem, that is unlikely to change. I take the noble Lord’s point, but I cannot announce any investigation from the Dispatch Box.

[Lord Howarth of Newport (Lab)]

My Lords, the House has just given a Second Reading to the Serious Crime Bill, which creates new imprisonable offences and provides for longer sentences for existing offences. Does the Minister not think that the Home Office should think more carefully before it introduces torrents of legislation that place great pressure on the Prison Service, which is already highly stressed and at the limits of capacity?

[Lord Faulks]

The Serious Crime Bill is intended to deal with serious crime, which unfortunately is a problem. If serious crime is committed, sadly it will result in sentences of imprisonment.

Prisons: Education and Training

Debate between Lord Faulks and Lord Howarth of Newport

Thursday 3rd April 2014 Lords Chamber

[Lord Faulks]

The noble and learned Lord is referring to the Strangeways report. I entirely accept that rehabilitation should be a key part of prison. The noble and learned Lord will recall that the transforming rehabilitation reforms mean that those serving short sentences for the first time will now be able to obtain support after leaving prison and will be enabled by means of resettlement prisons to have some continuity in the support that they receive inside and outside. I accept his general observations. It is a matter very much to be borne in mind.

[Lord Howarth of Newport (Lab)]

My Lords, whatever the Justice Secretary is now saying, is not the reality of the situation that his policy is preventing family and friends sending books to prisoners? Does not a state which treats its prisoners with gratuitous harshness and which seeks to suppress the life of the mind put itself and society to shame?

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Faulks and Lord Howarth of Newport

Monday 23rd April 2012 Lords Chamber

[Lord Howarth of Newport]

My Lords, I have no doubt at all about the sincerity of the noble Lord, Lord McNally, and the compassion for victims of mesothelioma that he expressed at the outset of his speech. None the less, he felt that he must advise the House to reject the amendment so powerfully moved by the noble Lord, Lord Alton of Liverpool.

I say to the Minister that there is no virtue for the Government in dogmatic consistency. I believe that they would do themselves good and, much more importantly, they would do a great deal of good for those diagnosed with mesothelioma, as well as their families and dependents, if they would agree to make an exception in this instance. If they were to do so, it would not create a permanent anomaly, and in the short term I do not believe that it would undermine the central principles of the Government’s reforms because they are absolutely secured in the legislation that Parliament will pass. In any case, the Minister need not fear because this is a category of cases that is going to reduce in number over time. Mesothelioma is, I understand, exclusively associated with exposure to asbestos. All too belatedly the terrible damage that asbestos can do to human health was recognised, and for some time due to regulations and industrial practice there has been no further exposure of people to this hazard. We can foretell with confidence that this category of cases will dwindle and, I think, disappear. Therefore, the Minister need not worry that there will be a permanent anomaly. I say to him that he does not need to persist in a doctrinaire position which runs counter to his own very real human sympathies.

[Lord Faulks]

My Lords, what was said in the other place about there being some advantage, as the noble Lord, Lord Alton, said, in any case of mesothelioma was most unfortunate and was, I hope, a simple slip of the tongue. Using this appalling disease to give an example of the compensation culture was equally ill advised. It plainly is not.

There is no dispute about the diagnosis of mesothelioma on any occasion. However, this is part of Part 2 of the Bill, and Amendments 31 and 32 have the effect of undermining the structure of the Bill. Part 2 was the result of Lord Justice Jackson’s report and represents an attempt to remove some of the more unattractive and, frankly, almost iniquitous aspects of the system that had grown up as a result of the changes unleashed by the previous Government’s legislation. The fact that this amendment would create an exception to this new, much fairer and proportionate system is not of course itself a reason for objecting to the amendment if it would be a denial of justice to these very deserving cases. There is no doubt that they are highly deserving cases and that they need compensation quickly. The Government have announced that there will be an increase in general damages by 10 per cent. I have to admit that I remain somewhat queasy, in common with other noble Lords, about the 25 per cent success fee that will be paid to successful lawyers in these cases, but the Government have said—and I think they are right—that the competition for these cases is such that they cannot imagine that those lawyers will insist on their success fee. A number of experienced lawyers are well geared up to taking these cases, as they have done over the years, and I very much doubt that they will want a success fee. They are, after all, as the noble Lord, Lord Thomas, said, lawyers who will recover the costs to which they are entitled. If those costs are not agreed, they will be entitled to have them assessed by a costs judge, and in due course qualified one-way costs shifting should assist.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Faulks and Lord Howarth of Newport

Tuesday 7th February 2012 Lords Chamber

[Lord Faulks]

My Lords, both these amendments are concerned to ensure that the court knows all that it needs to know before sentencing. In my experience as a recorder, the court would be acting very negligently indeed if it were to sentence a woman, or even a man, without knowing the effect of that on the dependants. That is the fundamental point usually made in mitigation. It is very much part of the picture that any sentencing tribunal would have to take into account. If for some reason an advocate or the probation service was not giving sufficient information about this, the court would ensure—by adjourning if necessary—that that information was available. Therefore, although I accept the points made about the necessity to take all these facts into account, these amendments are designed to tell the courts what to do. I respectfully submit that the courts know what to do.

[Lord Howarth of Newport]

My Lords, I fully support the intentions of these amendments. I admired the speech by the noble Lord, Lord Wigley, but seek clarification from him. I have a question about feasibility and practicality. I am not sure whether it is intended that the requirements in these amendments should extend to magistrates’ courts as well as to the other courts. However, if one considers the circumstances in which the magistrates’ courts were operating last summer, following the riots, when they transacted an extraordinary volume of cases, worked under extreme pressure and sat until late at night, I wonder how realistic it is to lay upon those courts the requirements that these amendments would lay. I had misgivings about the magistrates’ courts working in that fashion but I recognise that what they did at that time was seen by the public as entirely appropriate in a situation of exceptional crisis. Perhaps what I am really saying is that there is no substitute for having enough courts that are sufficiently resourced and a probation service that is well enough resourced, and for the courts to do their work as far as possible screened from the pressures of the media and politics. However, that is a rather fanciful state of affairs to desire.

I therefore simply ask the noble Lord, whose purposes I thoroughly endorse, to explain, if he will, how he envisages these requirements actually working in practice when the courts are under severe pressure.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Faulks and Lord Howarth of Newport

Tuesday 10th January 2012 Lords Chamber

[Lord Faulks]

My Lords, most Members of this House would approve of the idea of having good-quality expert evidence in cases. In the area in which I practise there have been considerable strides forward in that regard. Although the noble Lord, Lord Beecham, speaks of hired guns and undesirable practices, it should be known that much has improved in this area, not least thanks to the major contribution of the noble and learned Lord, Lord Woolf, the CPR, the exchange of experts’ reports, experts’ meetings and a sensible control of the questions that are asked, so I would not like the House to get the impression that the world is a jungle where experts are concerned. Litigation is much more orderly than it was and the noble and learned Lord, Lord Morris, is quite correct that good experts often produce settlement and good results.

While I certainly applaud the sense the amendment, which is to encourage good-quality experts, the reason why they are sometimes not available is not simply because of money. There are difficulties simply in finding the right experts for the right cases because they have other commitments. Let us take paediatric neurology, for example, an area that is particularly important in clinical negligence cases. Very few are available, and they are very often not available for many months. In other words, there are factors that are not easily within the reach of any form of legislative provision. While approving the general spirit of the amendment, I would countenance some wariness in enshrining this in any legislative form.

[Lord Howarth of Newport]

My Lords, as everyone who has spoken has said, it would self-evidently be a false economy and prejudicial to justice if the Government were not willing to spend the money that they genuinely need to spend in ensuring that the expert evidence required is available to the courts. I ask my noble friend Lord Beecham, who moved the amendment, and the Minister—if, as he surely must, he agrees with the thrust of the amendment at least—what their views are on the appropriate methodology under the amendment. Does my noble friend consider that there should be some sort of standing body independent of the Ministry of Justice that would have the task of keeping this issue under continuous review and to report from time to time? I would have thought that it would be a continuing necessity for the Lord Chancellor to have the benefit of such advice so that he can be sure that the taxpayer is not being asked to spend more than is genuinely necessary under this head, but equally to be sure that sufficient resources are being provided. How does my noble friend or the Minister envisage that this function should be carried out? Perhaps they could say something about the practicalities of ensuring that that takes place, as that would be helpful.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Faulks and Lord Howarth of Newport

Tuesday 20th December 2011 Lords Chamber

[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.