Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Howarth of Newport Excerpts

Monday 16th January 2012 Lords Chamber

The Deputy Leader of the House maintained that that was not the case. His reply can have validity only if there is no downstream additional cost to be regarded or that cost is miniscule. Neither of those propositions can be correct. It is for those reasons that I ask the Government to bear in mind the necessity of maintaining a balance and an equity in this situation and to agree to these amendments. No one imposes any condition upon the Government—the initiative will lie with them the whole time—but this will give a balance and an equity to the situation which does not exist in the Bill at the moment.

[Lord Howarth of Newport]

My Lords, should not the governing principle be that every single one of our citizens, regardless of their income or personal resources, should have available to them legal advice and representation should they find themselves in a situation of dispute and where they have a reasonable case to pursue through legal channels? Is that not a fundamental liberal principle? The noble and learned Lord, Lord Scott of Foscote, articulated it very finely and much better than I can, but this has to be our benchmark.

Of course, I recognise that this group of amendments is designed to salvage what can be salvaged and to limit damage. However, we ought to differentiate quite carefully between the purport of the amendments in this group, because they are not all saying the same thing. I support Amendment 24, tabled by my Front Bench, because the effect of it would be that no further areas could be taken out of scope other than by new primary legislation. The way that Parliament deals with secondary legislation does not provide adequate opportunity for debate about very important and contentious matters. Therefore, it would be a proper safeguard that there could be no further attrition of legal aid—we would not take any additional areas out of scope—without Parliament thinking deeply about it, taking care about it and being fully aware of what it is doing.

On the other hand, Amendment 24 would allow areas to be brought back into or added to the scope of legal aid by order. That is acceptable because you are not taking away people’s legal rights, you are enhancing them, and there must be a presumption in favour of that as a matter of principle and that Parliament would therefore not be required to give such proposals the same intensive scrutiny as it ought to give to proposals to take areas out of scope. I agree with my noble friend Lady Mallalieu that there may very well be instances where Parliament would wish to act fast to bring an area back into scope. Therefore, Amendment 24 is preferable within the group.

Perhaps the Minister will again defend the Government’s breach of liberal principle in taking whole areas out of scope of legal aid with the argument that it is imperative to save public expenditure. I noticed that the Lord Chancellor, in that very interesting article he wrote in the Guardian just before Christmas, said that:

“Legal aid in England and Wales costs vastly more than other common law variants—twice as much per head as New Zealand’s system for example”.

However, I understand that the cost of civil legal aid in New Zealand is not significantly higher per head. It is of the same order as it is in England and Wales, and it is in fact in the criminal legal aid area that the New Zealand system is so much more economical—they spend less per head on criminal legal aid but not on civil legal aid. However, although the Government justify what they are doing by reference to the comparison with New Zealand, they have not chosen to seek economies in criminal legal aid, but in civil legal aid. The Government need to examine these figures and, I hope, explain their economic rationale rather more fully than they have so far.

I am sure the Minister has had the opportunity to see the study entitled Unintended Consequences: the Cost of the Government’s Legal Aid Reforms by Dr Cookson of King’s College, London, in which he examines the possible knock-on effects—the higher spending that may be incurred for other government departments and indeed for the Ministry of Justice—as a result of the polices in this Bill. The Minister has been extremely helpful to the Committee in writing to us very fully to explain why the Government have adopted the policies that this Bill would enact. If the Minister would be kind enough to write to us with a detailed refutation of the arguments that Dr Cookson, a distinguished academic, has put forward in criticism of the Government’s case that it will be making a net saving to public expenditure, I am sure that that would be very helpful.

I am very far from saying that the sky should be the limit in terms of what we spend on legal aid. I would entirely agree that where there is waste, it should be taken out. However, the assault should be on waste, not on scope. If the principle is that every citizen should have equal access to the law, then it is not proper for the Government to say, “But if the conflict or dispute that might be litigated is in one particular field, then the citizen is not to have access to the law for a dispute of that kind”. It is fine to do all you can strenuously to reduce unnecessary costs, but do not breach the fundamental principle.

I would finally say that while it seems to be almost common ground around the House that it is necessary to reduce the legal aid bill, with respect, it is an absurd proposition to say that we cannot afford what we are spending. I repeat: we do not need to spend every penny of it, because there may well be waste in the system and it may be possible to reform it to make it more economic while maintaining access to justice. However, to say that a total of £2.2 billion spent on legal aid, which is only 1 per cent of the social security budget, is something that as a country we cannot afford—a country that prides itself on being a liberal society, and on the rule of law—seems to me to be wrong. This is a moral and a political choice, not a matter of economic exigency.

[Lord Phillips of Sudbury]

My Lords, I would very briefly reassert the fundamentalism of access to the law. Equality before the law is one of our basic claims. If in fact it does not exist, it damages not only the law and the rule of law but democracy itself.

This group of amendments is interesting. Amendment 22, moved by the noble Lord, Lord Faulks, which leads the group, simply removes subsection (2) of Clause 8, which will mean that any change in the scope of legal aid would have to be by primary legislation. Our amendment, spoken to by my noble friend Lord Thomas of Gresford and to which my name is added, seeks to even things up by saying that not only can the Government omit or change by deletion the scope of legal aid, but can add to it. The third position is that of the noble Lords, Lord Bach and Lord Beecham, who in their amendment reverse the tables, saying that you cannot remove from scope but you can add to it.

I must confess that I would, if the world were a perfect place, prefer the first amendment, Amendment 22, which would require all changes in scope to be by primary legislation. However, living on a pragmatic globe, I suspect that the best we may do is at least to have equality as between diminution of scope and addition to it. Hence Amendment 25, which incidentally is mirrored by Amendment 23, spoken to by the noble and learned Baroness, Lady Butler-Sloss.

I would just add this point, which has not been sufficiently clarified or emphasised. Whether something is in or out of scope is not, in my book, most significantly a question of finance. If we are the most legislated democracy on earth—do not forget that we pass about 14,000 pages of new statute law a year—it behoves us, in this Parliament above every parliament, to ensure that what we do has fairness of application in the real world. Above all, I put it to my noble friend Lord McNally that there has been a unanimity of view from those who have contributed to this debate that, as things stand, the exclusions from scope are going to cut so deep that the consequences will be social and political unless they are reversed speedily. For that reason alone, if I were sitting in the seat of my noble friend, I would want to be able to add back speedily. I promise him that if this Bill goes through as drafted, scandals will arise, which the Government will want to rectify swiftly. Therefore, I hope that the Government will move on this.

--- Later in debate ---

[Lord Newton of Braintree]

My Lords, I rise in the hope of commanding your Lordships’ attention for two reasons. First, my name is on one of the amendments in this group in the name of my noble friend Lady Eaton. Secondly, since I was unable to be here last week, I want the Front Bench to know that I am back. I have listened with care to the speeches that have been made, and obviously I express my support in particular for the arguments on children’s clinical negligence which were raised by my noble friend Lady Eaton. I also want to say to my noble friends that when they come across an amendment with the names Newton and Tebbit on it, they are in trouble. I am sorry that my noble friend is evidently not able to be here today. We are friends but no one who knows us both will think that we always come from the same perspective. Here, we are united.

I need not repeat the points that have been made in debate, not least the very important points made by a number of my noble friends, including my noble friends Lord Faulks and Lord Carlile and—not to minimise any other speeches—the very constructive remarks just made by the noble Baroness, Lady Mallalieu. I share the view that this is one of those areas where it is highly likely not only that the game is not worth the candle but that the costs to other departments will be greater than any savings to the Ministry of Justice. That simply cannot be a sensible way to approach the problem of the deficit as a whole.

Without rehearsing all these arguments again, I hope that I am right in detecting in the air today a move away from what my noble friend Lord Carlile memorably described at an earlier stage as “irritated intransigence” from the other end of the building, and that we will get a constructive approach. We have certainly heard a lot of constructive speeches; I think that they deserve—if I may say so to my noble friends on the Front Bench—a constructive response. Leaving aside the Newton-Tebbit point, if I were them and looked at the totality of the names on the amendments in this group, I would decide, if I may coin a phrase, that concession was the better part of valour.

[Lord Howarth of Newport]

My Lords, the noble Lord, Lord Carlile, was right to draw attention to the unwillingness of members of the medical profession to admit fault. I have a son who was brain-damaged at birth. The evening after he was born, I spoke to the consultant gynaecologist, a very famous individual, who reassured me that that there was no reason to suppose that anything had gone wrong. But when the diagnosis of cerebral palsy was made, and my wife and I decided that we ought to pursue the possibility of a clinical negligence claim, we found—I am not sure that it is really surprising, though it is very shocking—that the file had gone missing, and it took a considerable time to obtain it. We know that clinical negligence claims take a very long time to pursue. Part of the reason for that is the intransigence of the system—it is very human; it is very understandable—and we have to be realistic about that.

In the interests of being realistic, I should like to pick up a point made by the noble Lord, Lord Phillips of Sudbury, à propos his Amendment 30A, in which he favours the appointment by the NHS Litigation Authority of a single expert witness who would produce a report. We can see the attractions of this in the interests of economy, but if there is mistrust between the claimant and defendant, as there so very often unfortunately is, I wonder how much confidence claimants will have in such reports commissioned by the defendant, the NHS Litigation Authority. That is particularly so if the expert witness appointed by the NHSLA finds that there was no negligence, which may indeed be correct, but can we expect the claimant to accept that that is so?

We all agree that it is unthinkable that legal remedy should not be available for victims of clinical negligence, but I believe, as do others far more authoritative than I, that this is a field in which legal aid must be retained. For example, if you are looking to solve part of the problem by disbursement-only ATE policies, it appears that they are simply not commercially viable. I am advised that, based on an ATE insurer’s real figures, for the average cover of £2,000 needed for preliminary investigations—which does not include the high investigation costs of cases such as catastrophic birth injuries—the premium would need to be of the order of £11,000. So it simply will not work. The noble and learned Lord, Lord Lloyd of Berwick, was right to put it to us that this, at minimum, is an area in which legal aid must be preserved.

If the Government’s proposal to remove ATE recoverability were to be accepted, there would be an increase in the number of unscreened cases, because ATE insurers are pretty risk averse and pretty sceptical. For very good business reasons they do not want to see unviable cases going through. They are therefore part of the mechanism, part of the system, that enables the bad cases, the weak cases, to be screened out. I understand the NHSLA shares that view.

Finally, I will quote to the Committee, if I may, a paragraph from a paper by the NHS Litigation Authority, which is impressive. Its view ought to carry weight with the Committee. It says:

“Ironically, whilst a so-called perceived ‘compensation culture’ (which does not actually exist currently when it comes to healthcare) is said to be one of the drivers for reform, the proposed changes will do more to promote the unsavoury aspects of a ‘compensation culture’ than deter them. For example relinquishing the degree of quality control afforded by the legal aid system for clinical negligence will throw the market open completely to non-specialist and less scrupulous solicitors and claims farmers. There would in all likelihood be an increase in this type of activity.”

That is powerful evidence that I am sure the Government have considered, but that the Committee also ought to consider.

[Lord Phillips of Sudbury]

The noble Lord made a perfectly reasonable criticism of one aspect of this amendment. First, he commended the NHSLA, but does he not accept that the amendment says,

“a list maintained by the NHSLA and AVMA”,

which is an independent body that exists to see fair play done?

[Lord Howarth of Newport]

I am second to none in my admiration, indeed my gratitude, for AVMA, which helped me and my family at a very difficult stage of our lives. I am deeply appreciative of them. If the list of expert witnesses was to be maintained both by the NHSLA and by AVMA, rationally speaking that is a list that should command confidence. None the less, in the emotionally fraught circumstances of a dispute, particularly where a baby has been damaged at birth or where some other catastrophic injury has taken place, it is asking a lot to expect people to trust witnesses and reports that are to be commissioned—the noble Lord’s amendment would require that—by the NHSLA.

[Lord Thomas of Gresford]

My Lords, I hope the Government do not think that this debate is special pleading, as the noble Baroness, Lady Mallalieu, feared. There are a number of reasons for that. First, clinical negligence—at the moment, exceptionally in personal injury cases—already attracts legal aid. It is currently within scope. Secondly, there are considerable difficulties in proving clinical negligence. When a car accident happens, almost anyone, given proper evidence, can determine who is responsible. Clinical negligence is a very different field. It is very difficult to prove causation. If you can prove causation—that the condition of the claimant has been caused by the clinician concerned—you then have a further hurdle to surmount: whether that clinician has exercised the proper standards of care as known at the time.

I vividly remember a case in which I was involved where it was established that the arachnoiditis was caused by an injection into the spinal cord by a clinician. Arachnoiditis affects the limbs of a person and causes considerable paralysis. We could establish causation, but by the standards of the time it could not be shown that the injection was negligent.

The third matter that I draw to the Committee’s attention was referred to by the noble Baroness, Lady Finlay—that there is currently quality control in the provision of legal aid in clinical negligence cases. There are panels provided by the Law Society or Action for Victims of Medical Accidents, and it is only to solicitors who are on those panels that legal aid certificates will be granted. That ensures that there is a proper approach to the issues that arise in clinical negligence cases, and a proper conduct of those cases. For all those reasons, this is not special pleading; clinical negligence deserves consideration quite separately from all the other matters that we are raising under the first schedule.

I would like the Government to consider at what level legal aid can be granted. The noble Lord, Lord Faulks, and my noble friend Lord Carlile referred to the possibility that legal aid should be granted in serious cases that have an impact upon the lives of people. For example, if a case is worth only £4,500, which has been referred to, that may not be one in which public money should be involved—certainly not to the extent of £95,000. However, if, as so often happens, the lives of people and members of their families are altered for good, surely a humane society should provide legal aid to cover the cost of litigation in those circumstances?

--- Later in debate ---

[Baroness Howe of Idlicote]

My Lords, let us face it, the next group of amendments covers almost exactly the same area as this one. I shall reserve what I was going to say until we reach my amendment in that group. However, in view of the comments made by my noble friend Lord Wigley about running all these Bills together simultaneously, I wanted to point out that—believe it or not—in the Moses Room this afternoon, going on in parallel with what was going on in this Chamber there was a Motion about jobseeker’s allowance. Aspects of the Welfare Reform Bill and the legal aid Bill are interwoven in an appallingly complex way.

We have just heard from the noble Lord, Lord Phillips, a very clear case as to why the whole exercise is going to be costly. I agree with the sympathetic point he was making for the Government: any change made to these forms of welfare help is almost by definition bound to involve extra cost and extra complexity, because it is yet another layer added to the thousands of pages that have to be understood by the professional expert. Then, one appears to be busily taking away, or making it much less easy to access, the professional help we have had in the past. There is also the point made that the CABs, which have been so marvellous in the past, are going to be shorter and shorter of money. The whole thing is becoming really worrying and I hope that the Government will reflect on this.

[Lord Howarth of Newport]

My Lords, like my noble friend Lady Lister, I often feel that after the noble Lord, Lord Newton of Braintree, has spoken, there is not very much to add. However, all noble Lords who have subsequently spoken have indeed made very valuable additional contributions. I would like to say a few words because this is a debate of absolutely central importance in our consideration of the Bill. We should all be extremely grateful to the noble Baroness, Lady Doocey, for moving as she did the amendment that she and colleagues have tabled. She raised an interesting and important point—among many others. Since such a high proportion of those who receive legal aid to support them in welfare benefits cases are disabled people, this policy may be in effect discriminatory against disabled people. That in itself is something that we ought to reflect upon. I hope that when the Minister replies he will be able to tell us whether or not this is the case, and if he thinks it is not the case, how he explains that.

The noble Baroness also reminded us of the high success rate of appeals and of appeals made by disabled people. Of course, the proportion of successful appeals is higher when people have been advised, when people appear personally in court, and when they are accompanied. If the Government are going to take away legal aid from welfare benefits cases, it raises the question of whether they want people who are entitled to receive benefits to do so. I believe that they do. I cannot believe that the Liberal Democrats and the Conservative Party do not want people who are genuinely and properly entitled to receive welfare benefits to do so. However, the reality is that if they take away legal aid in support of those cases, they are ineluctably going to prevent very significant numbers of people who should receive those benefits from doing so. I ask them fairly and squarely this question, and again I would like the Minister to respond specifically to this point: do they want all these people to receive benefits, and if they do, how do they suppose that they are going to receive those benefits?

Ministers at the Ministry of Justice have been pretty blunt hitherto in saying that they consider welfare benefits cases to be of lower importance than other categories of case which will continue to be in scope of legal aid. I would like to know—and again I ask the Minister to tell us in his reply—exactly why the Government believe that welfare benefits cases are less important than other categories of cases that they have determined should remain eligible for legal aid. I think that for people in poverty, welfare benefits are extremely important, and those people would be interested to know the Government’s explanation of their policy, just as we would be.

Of course, there are going to be growing numbers of these people. This is partly because of the recession, which is increasing unemployment and the hazards of life, and making much, much more difficult the personal, domestic, and financial circumstances of very many people. There is also going to be an increased number of people who wish to appeal against decisions that they should not receive welfare benefits, on account of the transition to the new incapacity benefit, employment support allowance, personal independence payments, and the whole panoply of welfare reform upon which the Government have embarked. This is undoubtedly going to lead to confusion, to administrative complexity, and to a higher error rate on the part of staff whose job it is to determine eligibility for welfare benefits. We are going to see an increasing number of appeals that people will very properly want to be able to make. The Government therefore need to have very good reasons indeed for why they are going to make it harder for people to pursue these appeals successfully. After all, they are expecting, by their own admission, to make savings to the public purse of only some £25 million net—a trivial saving, absolutely trivial, in the context of overall public spending.

What is going to happen to these people who do not get legal aid? They will try to go to other sources of advice, but the charities which might advise them are not going to be in a position to do so, as they have been telling us. The citizens advice bureaux in particular have been warning us very earnestly that they will not be in a position to provide the advice that they have been able to provide with the support of legal aid and local authority funding—neither of those, in large part, are going to be available. Would-be appellants—claimants—may then be driven to other kinds of private adviser. I dread to think what sort of advice they may receive from those sources. We are very aware in the immigration field that some extremely dodgy and dubious people offer advice who are frankly exploitative of people when they are in very great difficulties.

We will see an increase in self-representation: people will go to the tribunals to try and make their own case. The notion, to which the Government are so attached, that the tribunal system is a user-friendly, accessible, informal alternative to the court system, is a pipe dream. Of course it is highly desirable that there be more informal, more economical, more user-friendly systems of justice available. Again and again, attempts have been made to achieve that but, again and again, the system becomes less informal, more complex and more arduous to navigate, and people need expert help to find their way through. It is unrealistic of the Government to suggest that the tribunals system is somehow going to be there and that it will be all right for people to represent themselves.

The consequences of a policy that will result in people not being able to make their appeals in order to obtain the benefits that they should be able to obtain will include increased unemployment, particularly among disabled people, because if they do not have the tailored support that they ought to have, their chances of securing employment, with the odds already stacked against them because of their disabilities and in this very difficult labour market, will be further reduced. We will find more people in debt and suffering ill health, because poverty will mean that people will not be able to afford a proper diet or heating and will have to cope with anxiety about their poverty. We will see more cases of poor physical and mental health. All these predicaments will produce costs to other government departments. I fear that we will also see a greater resort to criminality as people despair and feel that there is no longer a just system available to them. I do not think that there will be savings to the public purse; there will be additional costs to the public purse. Above all there will be a great cost for all of us to pay in national shame.

--- Later in debate ---

[Lord McNally]

My Lords, Amendments 32 and 89 seek to bring welfare benefit matters into the scope of legal aid funding, first, by deleting the exclusion for welfare benefits in Part 2 of Schedule 1 and, secondly, by adding social welfare as an in-scope category in Part 1 of Schedule 1.

The amendments are contrary to our reform programme in which we are focusing our resources on the highest priority cases. Currently legal aid is available for legal advice but not representation in relation to decisions on welfare benefits at the First-tier and Upper Tribunals. While we recognise that many people rely on welfare benefits, these cases are primarily about financial entitlement. In our reforms we have concentrated on the fundamental issues of liberty or safety. Given the need to prioritise funding, we have decided to remove legal advice for welfare benefits from the scope of the legal aid scheme.

[Lord Howarth of Newport]

My Lords—

[Lord McNally]

I am only one and a half pages into my reply. I do not mind. Carry on.

[Lord Howarth of Newport]

Can the Minister explain why poverty is a less fundamental issue than liberty or safety?

[Lord McNally]

I am going to go on to this. I must say to the noble Lord that it would help if I can get further than just past page one. I will deal exactly with the issue that he has raised. As the noble Baronesses, Lady Mallalieu and Lady Howe, indicated, we will have a series of debates on a number of specific individuals who will be affected by reforms.

A number of noble Lords have cited their own experiences, either professional or personal, so I shall in part answer the question asked by the noble Lord, Lord Howarth, by giving a personal experience of my own. In 1976 I sat in the Cabinet Room in Downing Street with the Chancellor of the Exchequer and the Prime Minister—Denis Healey and James Callaghan—and during the course of a two or three hour meeting the pound fell from 1.95 to 1.45 against the dollar. By the time it hit 1.45 we had sent for the Governor of the Bank of England and decided to call in the IMF. Like many events, it has left a political scar, which is this: if you lose control of your own economy, all the concern for the poor and the disabled and the disadvantaged is as nothing because you cannot help them if you are not in control of your own economy.

Many of the debates that we have heard in the past few days, including this one—and probably the one tomorrow—have addressed the kind of issues that we have heard today. As I look around the House, I know that on all Benches there are people who have devoted their lives to the betterment of the citizens of this country. No one party has a monopoly on that. However, it is right to say that we have had to take hard decisions in difficult circumstances. I hear that £1 million is within the margin of error and that £20 million is trivial, but in a department like mine those are the figures that we are having to face and deal with. Therefore, although I understand some of the—

[Lord Howarth of Newport]

I am sure we all accept that it is imperative that the Government do not lose control of the economy, as the Minister puts it, but it is a question of how you gain control of the economy. Why do this Government prefer to deprive people of legal aid in their appeals for welfare benefits in order to save £25 million—they think, but very good reasons have been put by noble Lords all round the House as to why that saving would be illusory—while being prepared to spend much larger sums on freezing council tax, which will largely benefit more affluent people, or on weekly refuse collections? It is a question of priorities.