Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Howarth of Newport Excerpts

Monday 23rd April 2012 Lords Chamber

[Lord McNally]

This is an interesting side issue. Anybody who has read the debate in the other place will see that the amendments passed in this House were thoroughly discussed.

[Lord Howarth of Newport]

My Lords—

[Lord McNally]

The House is not doing itself much service by this, but do go on.

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[Lord Howarth of Newport]

My Lords, on the issue of parliamentary procedure, is the noble Lord really happy that the first four amendments from this place that the Commons considered had only 26 minutes allocated to them? The House of Commons was allowed fewer than five hours to debate the 11 issues on which this House defeated the Government and offered its very earnestly considered advice.

[The Chancellor of the Duchy of Lancaster (Lord Strathclyde)]

The Motion before the House is that we should deal with amendments that have come back from the House of Commons. If noble Lords wish to have a debate about process and procedure in the House of Commons, they can table questions and debate the issues. This is not the time for that; this is a time to deal with the amendments that we have before us.

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[Lord Pannick]

The answer to the noble Lord, Lord Lester of Herne Hill, is that we are dealing with a Bill that specifically relates to legal aid. It is surely appropriate to include in a Bill relating to legal aid the purpose of legal aid—and to say so in uncontroversial terms. Nothing is more likely to lead to legal uncertainty—the concern that the noble Lord, Lord Thomas of Gresford, has—than that these matters should be left somehow to be implied, in the context of legal aid, by reference to the Human Rights Act. That would seem to me most unsatisfactory.

I turn to the third point: uncertainty. It was a point that the Minister emphasised this afternoon—uncertainty and, as he put it, the spectre of litigation. I find it difficult to understand this concern, given that the amendment makes it clear beyond doubt, in the plainest of language, that it is entirely a matter for the Lord Chancellor how much money to provide for legal aid purposes. The amendment makes it clear beyond doubt that this provision is subject to the detailed provisions in the Bill which specify what subjects are within scope.

In any event, this concern about litigation is a particularly unpersuasive argument in the present context. As I mentioned, the substance of this amendment has been part of legal aid legislation for many years. If lawyers were going to make mischief by reference to this type of wording, noble Lords will recognise that they would have done so by now.

Finally, the fourth point that has been mentioned by the Minister this afternoon is that the other place is, of course, the elected Chamber and that we should defer to its judgment. For my part, I recognise that there is, of course, force in this argument. Noble Lords will wish to reflect carefully on this amendment, as on all the other amendments before the House this afternoon, before asking the other place to think again.

I suggest to noble Lords, however, that this is an occasion—on this amendment certainly—when it is appropriate to ask the other place to think again. The amendment now before noble Lords addresses the concerns expressed by the Minister, Mr Djanogly, in the other place. There is simply no substance to the Government’s opposition to this amendment. It raises an issue of principle of considerable importance and it involves no financial cost whatever to the Government. I beg to move.

[Lord Howarth of Newport]

The noble Lord, Lord Pannick, for the avoidance of any doubt whatsoever, has made it clear beyond peradventure in the drafting of this amendment in lieu that what he and the House have sought to achieve contains no threat to the Government’s public expenditure plans. The wording makes it clear that,

“subject to the resources which the Lord Chancellor decides, in his discretion, to make available”,

the Lord Chancellor shall exercise his powers to secure that individuals have access to legal services.

For the sake of a completely illusory financial requirement, the Government propose to impair a constitutional principle of the first importance which goes back not just to 1949, as the noble Lord, Lord Pannick, reminded us, but to 1215. That is the principle of equality before the law. It should not be in doubt that it is the duty of the Lord Chancellor to secure equality before the law. We all recognise that there are constraints in the present very difficult circumstances of the economy, and that we face an imperfect situation. But it must be right to legislate in principle to ensure that, in normal times at the very least—I would contend at all times—it is a paramount duty of the Lord Chancellor to secure equality before the law for all our citizens. It is no use the law declaring high principles of which citizens cannot avail themselves in practice if financial constraints and the lack of support through legal aid mean that they are not able to substantiate their rights in the courts.

I praise the noble Lord, Lord Pannick, for persisting in this cause. I very much hope that the House will want to support him once again in inviting the other place to think again.

[Lord Woolf]

My Lords, I support what the noble Lord, Lord Pannick, has put before us. Doing my very best, I have found it very difficult to find any reason why this amendment should not be accepted. Attempting to rely upon what was said in the other place just does not wash. If the other place had understood the purpose of the previous amendment, I do not accept that it could have treated it in the way that it did. I do not need to go into detail about that matter because the noble Lord, Lord Pannick, has, with his usual clarity, set out the position perfectly obviously. The situation is as he indicated.

In Bills of this nature, it is frequently the practice to assist those who will subsequently have to apply the legislation—or, if I may say so with feeling, interpret the legislation—by setting out the purpose of the legislation. The Bill makes that purpose clear in so far as there was any doubt about it. There cannot be said to be any financial commitment involved. I am at a loss to understand how the Lord Chancellor, having the responsibilities that he has for the administration of justice under the Constitutional Reform Act 2005, can use that as an excuse for, without justification, trying to impede the proper consideration of this amendment. It reflects no credit to the way in which that office is now being handled for the Lord Chancellor to take that position. Every word that the noble Lord, Lord Pannick, has said with regard to the four points that were taken is of substance. I hope that, even now, the Lord Chancellor will consider whether it is consistent with his responsibilities to take the position that was adopted by the other place after very brief consideration.

I remind the Lord Chancellor of the oath that he takes when he takes office, which is laid down in the Constitutional Reform Act. I ask him to consider whether the position that he has now taken is consistent with that oath. Section 17 of the Act requires him to,

“swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law … and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible.”

The purpose of the amendment is to give the Lord Chancellor scope to do just that.

I would have thought that the proper course was to welcome the amendment, having regard to changes in the situation that can take place in the future. Again and again, in the course of consideration of this Bill, it has been said on behalf of the Government that they are following the course that they are taking because of the financial situation in this country. That argument demands the greatest respect, but as the noble Lord, Lord Pannick, has indicated, this amendment does not interfere with the Lord Chancellor doing precisely that. It is said that it may lead to increased litigation. If that litigation were to take place, as far as I can foresee, it would have to be by way of judicial review and it is well known that judicial review has built-in protections to avoid the litigation process being misused. The requirement of leave would mean that proceedings which are initiated without cause would have a very short life indeed. The Government of the day would be entitled to get the assistance of the courts, which they would receive, to ensure that there was no misuse of those proceedings in these circumstances. I suggest that, if full consideration had been given to this amendment, it would not originally have been objected to or objected to now.

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[Lord McNally]

My Lords, we have had a very interesting debate on this. I hope when the noble and learned Lord, Lord Woolf, has time to read his own remarks, which contain some fairly harsh strictures about the Lord Chancellor, he will reflect that the question of financial privilege is not a matter for the Government or for the Lord Chancellor. As the Clerk of the Commons explains, an amendment that infringes privilege would be the only reason that would be given. That is because giving other reasons suggests either that the Commons has not noticed the financial implications or that it somehow attaches no importance to its financial primacy.

We had a debate very like this one when we discussed the Welfare Reform Bill. I do not have figures at my fingertips—perhaps we can give the noble Lord, Lord Hennessy, the task of looking at the record of respective Administrations in using financial privilege—but when we last discussed the matter it was made clear that this is a matter for the Commons. As the Companion states:

“Criticism of proceedings in the House of Commons or of Commons Speaker’s rulings is out of order, but criticism may be made of the institutional structure of Parliament or the role and function of the House of Commons”.

I think noble Lords have exercised that procedure today.

[Lord Howarth of Newport]

My Lords, the Minister said that financial privilege is not a matter for the Government but for the House of Commons. We understand—we are very familiar with the convention—that when the House of Commons rejects a Lords’ amendment it may state reasons of financial privilege and give no further explanation. However, that does not explain or justify why the Minister, Mr Djanogly, in opening the debate on the Lords’ Amendment 1 last Tuesday, began his speech by drawing to the attention of the other place that:

“Lords amendments 1 and 24 impinge on the financial privilege of this House. I ask the House to disagree to them and will ask the Reasons Committee to ascribe financial privilege as the reason for doing so”.—[Official Report, Commons, 17/4/12; col. 200.]

That was his argument, essentially because he could not think of a better one. It is very unusual for the Government to rely blatantly on financial privilege during the debate.

We have to contend with a new situation. We are not criticising the constitutional arrangements, the conventions or the manner of the relationship between the two Houses, but we are saying that the Government should not hide behind this formula, this antique convention, but should deal fairly and squarely with the merits of the argument.

[Lord McNally]

The noble Lord, Lord Howarth, has wandered—I shall come to some of his comments later—into interesting fields. The financial privilege of the House of Commons may be antique, but as an old House of Commons man I am rather attached to financial privilege. Kings have lost their heads and revolutions have taken place to protect financial privilege and I do not airily sweep it away as an antique remnant of a bygone age. It is an important part of the relationship between the two Houses.

[Lord Howarth of Newport]

Can the Minister explain how financial privilege applies in this case? Of course the Bill concerns public expenditure, and in that sense financial privilege applies, as it does to virtually every item of legislation, but how do the Government contrive to justify making it the basis of their argument to Members in another place? They asked them to reject the amendment on the grounds of financial privilege as if it were at risk of incurring unaffordable increases in public expenditure, which is simply not the case.

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[Lord Thomas of Gresford]

My Lords, why success fees should be claimed at all by lawyers in this type of case just defeats me. The problem is in identifying the insurers of a particular firm that may have exposed the sufferer to asbestos many years before. I am delighted to hear that discussions are afoot on setting up a scheme akin to the Motor Insurers’ Bureau, whereby insurers come together to meet the damages and costs of a sufferer who cannot identify a particular insurance company behind his former employer. I hope that comes to pass. If it does, it will cure a lot of problems. It is obvious when a person suffers from mesothelioma; you do not have to prove that someone is suffering from this condition.

As a result of the Supreme Court’s decision last year, it has to be shown only that an employer has exposed an individual to asbestos in the past for that individual’s claim to succeed. The statistics show that these cases settle. What does that mean? It means that the fees of the lawyer are not at risk; he will have his ordinary fees paid by the insurer. Therefore, why should he get a success fee over and above that? On Report, I proposed that there should certainly be no success fee payable if a case settles before steps are taken to bring it to trial. I ask the Minister to take this into account when regulations are drawn up under what will be Section 46. The lawyer is not at risk. He has done nothing to earn more than the fees that he can properly charge. We did not have success fees in the past. We acted for people and, if we lost, we did not charge them. When we won, we got our costs and the expenses that we had paid from the other side, properly taxed. That was how the system worked.

I hope that the Government can bring in a combination of the Motor Insurers’ Bureau scheme for this type of case and couple it with regulations that say that no success fee should be charged when a case settles. That would do a great deal to alleviate the problems of which the noble Lord, Lord Alton, speaks. He is right. I stand along with Ian Lucas, my Member of Parliament in Wrexham, who as a lawyer says, “We didn’t come into this profession in order to take money from injured people”. I think that only a heartless claimant’s solicitor would charge a success fee in cases of this nature.

[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.

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[Baroness Doocey]

My Lords, I speak in support of Amendment 168B. I share the view of the noble Lord, Lord Bach, that the Government’s concessions are not an adequate substitute for the loss of legal aid.

The Government have acknowledged the fundamental principle that civil liberties are nothing if you cannot enforce them. If you do not have the money or the knowledge to defend your rights then, sadly, these rights become meaningless. That is where the legal aid system is so important, particularly for the many disabled people who depend on welfare benefits in order to survive.

The Government seem to support this principle in theory but not in practice. The Secretary of State’s statement that such legal aid should be available only on a “point of law” offers little in the way of practical help for disabled people appealing against incorrect welfare benefit decisions, the majority of which are then overturned on appeal. The difficulty is that it is completely unrealistic to assume that people with no legal knowledge whatever will be able to understand what a point of law is. I believe that many people will not even bring an appeal because they will not have the knowledge or the confidence to do so without legal advice.

The Government’s belief that their advice services fund is an adequate substitute for legal aid is groundless because it will not mitigate the cuts in legal aid. The fund was hugely oversubscribed, and in this financial year less than a third of the money has been allocated to organisations delivering advice on welfare benefits.

The Government have announced a further £20 million of funding for the next two years, and that is of course most welcome. However, this is likely to be spent plugging the gaps in generalist advice services caused by cuts to other funding sources, leaving specialist welfare benefits advice unfunded. Once legal aid cuts are introduced, the advice sector will lose at least £100 million a year, so the £20 million fund will make only a very small dent in this shortfall.

The inadequacy of the funding is exacerbated by the rising demand for services that most charities are facing. A recent survey carried out by Justice for All found that nearly 90 per cent of advice charities had more people coming to them for help in the last year, yet over 80 per cent of the same charities also predicted that, despite this increase in demand, they will be able to help many fewer people next year.

Discretionary funding is no alternative to retaining legal aid because it imposes no duty on the Government to fund specialist services and will guarantee nothing for advice agencies. Unless welfare benefit advice is retained within the scope of legal aid, it will limit access to justice and the right of people to enforce their freedoms.

The Department for Work and Pensions already reimburses the Ministry of Justice for the cost of running the tribunals, which was necessary after the huge increase in appeals caused by the introduction of employment and support allowance. It is unclear to me why this approach cannot be extended to cover the cost of independent advice to improve the effectiveness of these same tribunals.

We must do everything possible to protect the most vulnerable people in our society. I therefore urge the House to continue to press the Government to give more concrete assurances that disabled people will be able to access legal aid advice when appealing welfare benefit decisions.

[Lord Howarth of Newport]

On 17 April, the Lord Chancellor said to the House of Commons:

“There is no doubt that the present level of legal aid provision is on any measure unaffordably expensive ... Even after our reforms have been carried … we will still have by far the most costly legal aid system in the world. It is almost twice as expensive as that in any other country per head of population”.—[Official Report, Commons, 17/4/12; col. 217.]

The amendments that the other place addressed on 17 April concerned civil legal aid, and I would be grateful if the Minister would advise us as to which common law jurisdictions in other countries actually spend twice per head of population on civil legal aid that we do. I recognise that our expenditure on criminal legal aid is very high by international standards, but the Government have not chosen to reform criminal legal aid. We are dealing here with the reform of civil legal aid. I wonder whether what we are being asked to accept is based on a false premise. I very much doubt that it is correct that our expenditure on civil legal aid is so enormously out of line as the Lord Chancellor suggested. I am very willing to be corrected.

At all events, my noble friend Lord Bach ventured an estimate that the cost of the amendment that we are debating now might be some £15 million. Again, I ask the Minister whether he believes that, in the context of public expenditure of the order of £100 billion per year, the expenditure of £15 million to provide legal aid to support welfare benefit claimants in cases where there is real reason to doubt whether the assessment or the adjudication that has been made of their case is appropriate is unaffordable or disproportionate.

The Lord Chancellor last week in the House of Commons put the figure at £25 million, so £15 million or £25 million in relation to social security expenditure of £100 billion does not seem inordinately expensive. Yet, he said:

“we cannot afford provision in an area of relatively low priority”.—[Official Report, Commons, 17/4/12; col. 224.]

Is it appropriate to describe such an area of expenditure as a relatively low priority? We are dealing with cases of people in poverty. There would be no question of their being eligible for welfare benefits unless they were on low incomes. The risk for them, if they are not awarded benefit, is that they will be cast into abject poverty. For them, this is not a matter of relatively low priority, and nor should it be for us.

The ration that the Legal Services Commission offers of £160 in legal aid to support advice and assistance in welfare benefits cases at an early stage is by no means extravagant—indeed, it represents very good value for money—and may make all the difference to people who may be awarded legal aid or benefits from organisations funded by legal aid as to whether they can lead decent and proper lives, reconstruct their situations, support their families and live other than in poverty.

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[Lord McNally]

My Lords, when the Government launched their consultative Green Paper on this legislation nearly two years ago and I made one of my first ministerial responses from this Dispatch Box, I made it clear that I was aware that we were making some tough and difficult decisions about legal aid. We have heard many times in many debates over the past 18 months that X, Y, or Z is attacking, undermining, or damaging the most vulnerable in our society. I have listened to those debates, but I remain convinced that what would have damaged the most vulnerable in our society more would have been if we had not taken the tough economic decisions necessary to put our economy right. It is no use noble Lords opposite shaking their heads. We were a lot poorer than we thought we were and every government department has had to make tough decisions. My own has had to take cuts of 23 per cent across the board over this spending review. That has meant tough decisions not only in terms of legal aid, but in staff numbers and in other aspects of the Ministry of Justice’s work.

We have never ducked the fact that we have made some hard decisions in this matter. Neither have we ducked the fact that our approach to cutting the legal aid budget meant taking the bulk of social welfare law out of scope. We had taken the decision to focus on civil legal aid. The term “relatively low priority” refers to our view that in terms of criminal legal aid we are talking about people’s liberty and reputation. It is an important part of our system that people should have legal aid in this area.

[Lord Howarth of Newport]

Is the Minister therefore confident that there is no waste in the criminal legal aid budget and that there are no rackets there? Is he confident that this is an area that did not need the Government’s attention and that since the Treasury obliged his department to find savings of 23 per cent it really needed to focus its effort on the civil legal aid budget?

[Lord McNally]

On the contrary. I am sure that the noble Lord, Lord Bach, is ready to leap to his feet to draw attention to the fact that we have carried through the savings in criminal legal aid that the previous Administration put in train.