Crime and Courts Bill [HL]

Lord Martin of Springburn Excerpts

Monday 10th December 2012 Lords Chamber

[Lord Martin of Springburn]

My Lords, I speak as a layman who has represented communities in which the whole family cannot go out for a night’s entertainment because someone has to stay in for fear of being burgled. Like many noble Lords, I know what it is like to be burgled. You feel terrible when your home has been broken into. What worries me about the provision in this amendment is that in some historical cases firearms have been used. If this amendment is passed, many people who do not want their house to be broken into again will take precautions. In the countryside, people have firearms certificates for vermin and for recreational shooting, and I know that there are some firearms certificates in the city I represented because I had to sign certificates to say that the holder was a good, decent person. With this amendment, some people will want the same protection as someone living in the countryside and will apply for a firearms certificate just in case. That is a worry. There is a big difference between someone living on a small farm having a firearm and someone living in a tenement where it is much more dangerous.

I know from my experience in another place that Ministers, some of them the holders of the highest offices in the land, indulge in sound bites. They say to the press, “People are entitled to protect their homes”. Of course they are entitled to protect their homes, but we cannot have a situation where we give a licence to someone who will decide that he is going to take a shot at a burglar and will say that it was proportionate or that he did not think about it at the time.

Part of this amendment relates to Armed Forces accommodation—barrack rooms. We are talking not about shotguns but about far more lethal firearms. A soldier could say, “I was defending myself, and that’s why I shot this intruder”. I speak as a layman. I have no experience of standing in a court and putting a case or of listening to a case, as some noble Lords have, but I think this amendment is bad news.

[Lord McNally]

My Lords, this has been a very thoughtful debate, and people of great experience have put their views forward. I shall try again to explain where the Lord Chancellor is coming from and to reassure noble Lords on some of the points that have been made.

In bringing forward this amendment, the Lord Chancellor wants to clarify the situation and reassure the general public. Although the last contribution from the noble Lord, Lord Martin, was not in support of my proposal, it made the point that we are trying to deal with ordinary people dealing with situations in their lives. I understand lawyers making their points, but it is important that we see this from the public’s point of view. Although some recent cases have not led to prosecution and conviction, as I said, there may be cases in future which will benefit from the additional protection and clarification we are providing. Let me be very clear again, following on from what the noble Lord, Lord Martin, said, that this is not a vigilantes’ charter. In this country, there are still extremely strict rules about the possession and storage of guns which would still apply.

This is an attempt to recognise that people confronted by burglars, and acting in fear for their safety in the heat of the moment, cannot be expected to weigh up exactly how much force might be required. In these extreme circumstances, we think they should have greater legal protection. It is certainly not a licence to kill, whatever the circumstances. People will still be prosecuted if the use of force was unreasonable in the circumstances. The use of grossly disproportionate force will never be reasonable.

It will be for the courts to determine in each case what is disproportionate or grossly disproportionate. We want to make clear though that householders, who cannot always be expected to be thinking clearly if they are confronted by an intruder, will not be treated as criminals if they use a level of force which in the circumstances as they believed them to be is reasonable but turns out to have been disproportionate. We are clear that it is not open season for vicious attacks on anyone, even an intruder.

Let us also be clear, if somebody has been killed or seriously injured, an arrest may be necessary for the police to investigate thoroughly. A revised code of arrest for the police—PACE Code G—came into force on 12 November 2012 with new guidance on the circumstances in which an arrest may be necessary. The guidance also encourages the police to consider whether voluntary attendance at an interview might be a practicable alternative to a formal arrest. The changes we are making to the law will complement the improvements made to PACE Code G.

We are not changing the fundamental premise that a person can only use force that was reasonable in the circumstances as they believed them to be. The law on the use of force in other circumstances, for example, to defend oneself on the street, to prevent crime or to protect property will remain unchanged. We are trying to rebalance the law so that householders will not be thought of as criminals but, as I said at the beginning, quite properly as victims.

I am assured that we believe that the amendment is compatible with the ECHR and that we have recently published a memorandum in support of that view which I will put in the Library of the House.

Listening very carefully, I again pray in aid although I am not saying he is in support of this particular amendment, the Lord Chief Justice, who caught the mood behind the amendment at his press conference in September. He was reported as saying that,

“I am not talking about individual cases, but I know of cases, and I do read the newspapers occasionally”,

where,

“it looks as though the householder is the criminal”.

He then pointed out the circumstance of a householder facing a burglar.

“You are probably very cross and you are probably very frightened—a mixture of both—and your judgment of precisely what you should or should not do in the circumstances cannot, as another predecessor of mine (Lord Lane) said, you cannot measure it in a jeweller’s scale”.

The realisation that in such terrifying circumstances you cannot measure it in a jeweller’s scale led the Lord Chancellor to conclude that it would be better to clarify the law in a way which he believes will be more reassuring to the householder and give better guidance to the court.

Crime and Courts Bill [HL]

Lord Martin of Springburn Excerpts

Wednesday 27th June 2012 Lords Chamber

[Lord McNally]

That is the noble Baroness’s opinion, but, again, she is suggesting words that I never used. I did not say a “political presence”. What I said was that, to me, the political veto was the intrusion into the process. It has been acknowledged by a number of contributors that if the Lord Chancellor is not in this narrow world where the decision and the selections are made, he will be the elephant in the room. This process gives the Lord Chancellor the chance to have an input in a selection but, as opposed to what the noble Baroness, Lady Neuberger, suggested, he will not have a veto. When the panel makes its decision, there will be no political veto. I should have thought that that would be welcomed by this Committee.

[Lord Martin of Springburn]

Perhaps I may ask the Minister about one point on which I would like clarification. It has been fascinating to listen to both sides of the argument. The Minister mentioned a lay chairman or chairwoman. From what walk of life would a lay chairman or chairwoman come?

[Lord McNally]

I shall have to take advice on that. I should have thought that he or she would come from the court of cardinals. I am not sure, but it would undoubtedly be a chairman or chairwoman of distinction and merit who had experience in these matters.

Leveson Inquiry

Lord Martin of Springburn Excerpts

Wednesday 25th April 2012 Lords Chamber

[Baroness Garden of Frognal]

My right honourable friend in the other place this morning pointed out that he had a number of people in the department working for him to whom he gave responsibility for particular tasks, and he did not then monitor them in precise detail—but I hear what the noble Lord says.

[Lord Martin of Springburn]

I put it to the noble Lady that the impression I got when I listened to the Secretary of State and the Prime Minister was that they were far keener to allow this matter to go to Leveson than to speak to the House. Perhaps she could convey to the Prime Minister that in my experience, if a Prime Minister or a Minister of the Crown in some way feels that they can hedge the situation over to Leveson, it is highly likely that my successor, the Speaker, will allow an Urgent Question and even, in a very serious case, put aside the business of the House. Only two or three years ago, when Mr David Cameron and the Cabinet were in opposition, they put the case that Ministers must come to the House and be accountable. They cannot have it both ways.

I will ask another question on the point that has already been raised about special advisers. I am deeply concerned at their behaviour. Is it the case that special advisers have a code of conduct? If they do, then the young man, Mr Smith, would have known that he was in breach of that code by breaking a confidence and giving information before it was conveyed to the House. Today the name of Damian McBride was shouted out. It is alleged that Mr McBride, as a special adviser, was keen to blacken the name of the Prime Minister and the Chancellor when they were in opposition, and of the honourable Nadine Dorries. It is sad situation when the taxpayer has to pay for people who are not only incompetent but prepared to blacken the name of decent men and women.

[Baroness Garden of Frognal]

The noble Lord asked a number of questions. I was in the Chamber during Prime Minister’s Questions and while the Secretary of State was making his Statement. On his point about the Secretary of State being accountable to the House, I say that my right honourable friend was doing just that in coming to the House to take questions in great detail for well over an hour from Members of the House. I hope that he proved himself accountable to the House on that front.

The noble Lord asked about the role of spads and whether they have a code of conduct. My understanding is that they do. They perform an incredibly useful function, as successive Governments have discovered—but obviously, if something has gone wrong, that needs to be looked into on an individual basis. He also mentioned some of the evidence that we saw in the media today. We need to be somewhat cautious about taking at face value all the reports that appear in the media. This is the very aspect that we are discussing today, and it might be wiser in some respects to wait until the evidence has been fully investigated so that we know which parts of the reports of the media are true and which are somewhat creative.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Martin of Springburn Excerpts

Monday 23rd April 2012 Lords Chamber

[Lord Martin of Springburn]

May I interrupt the noble Lord? It is very kind of him to mention me. I support everything that he says. However, on privilege, all the Speaker does is to remind the House that it is dealing with amendments that have come from the other place that involve privilege. If the other place wishes to accept those amendments, that is recorded in the Journal of the House. That is all the Speaker does. I make the point because when this last came up, there was an implication that the Speaker was perhaps pushed by the government Whips. I just make the point that the Speaker does not often listen to the Whips. In fact, the Speaker meeting the Whips is usually like a penance during Lent. I agree with everything that the noble Lord, Lord Low, has said. The reasons given are not a matter for the Speaker. They are agreed in the reasons room after decisions have been made. The reason can be to do with finance, but on other occasions other reasons are given. I hope I have not been too long-winded in interrupting the noble Lord’s flow.

[Lord Low of Dalston]

I am very grateful to the noble Lord. We are in a happy state of accord. He agrees with everything that I say and I agree with everything that he has said. I do not wish to suggest that the Speaker in the other place acts in any way other than objectively. I do not think that the Speaker brings any kind of subjective judgment to bear on these matters; he just rules on these cases. However, it stretches credulity to suggest that forces other than the Speaker—to whit, the Government—may not have a role in raising the matters about which the Speaker has to remind the House. That is all that I meant to say.

I am nearly at the end of this point but I shall go back to the beginning of the quote from Jeff King of University College London. He said:

“The Lords has the clear right not to accept the Commons assertion of privilege without a protest. At risk is the Lords’ future scrutiny of legislation on … the whole of social policy. At the least one hopes the Lords will respond that they do not consent to the Commons’ use of financial privilege on this bill constituting a precedent”.

He was referring to the Welfare Reform Bill on that occasion. As a non-party-political Peer, appointed by the Appointments Commission—if not with a particular mandate, at least on a particular set of understandings—I protest at the blanket use of financial privilege by the Commons to summarily defeat amendments passed in your Lordships’ House. We should not consent to its constituting a precedent, either.

In coming to the substance, I can be fairly brief. The noble Lord, Lord Bach, has set out the case very fully and I do not want to reiterate unduly what he said. However, I underline that this amendment is of enormous significance. The Government’s proposed exclusion from legal aid of the area of welfare benefits is colossal. According to their own impact assessment, removing welfare benefit cases from the scope of legal aid will deny at least 78,000 disabled people specialist legal advice on complex welfare benefit problems. Citizens Advice has estimated that it will amount to 49 per cent of its current legal aid caseload.

Disabled people are particularly disproportionately affected by the removal of welfare benefits from the scope of legal aid. As the noble Lord, Lord Bach, said, 81 per cent of benefits cases heard in the First-tier Tribunal relate to disability benefits. As we know, the Government are undertaking a dramatic overhaul of the welfare benefits system. This will see millions of claimants reassessed and moved on to different benefits. For example, plans to replace disability living allowance with the personal independence payment will affect more than 2 million people. At a time of such unprecedented upheaval in the welfare system, access to legal advice is going to be essential, as inaccurate decisions will be inevitable. Indeed, even after three years of discredited Atos Healthcare assessments of people seeking to transfer from incapacity benefit to employment and support allowance, the success rate of appeals is actually going up. As we have heard, it was 45 per cent at the last count. As the noble Lord, Lord Bach, said, legal advice makes all the difference; it is not just marginal. According to the MoJ’s own figures, you are 78 per cent more likely to win your case if you have had legal advice. Of those appealing against their assessment for ESA, 70 per cent of those who are advised win compared with only 43 per cent of those who are not advised.

The Government are in danger of getting themselves into the position where they are criticised for kicking a man down and then depriving him of the means of getting up again. I think we should give the Commons another chance to avoid that charge.

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[Lord Wigley]

My Lords, I am glad to have the opportunity to support the amendment of the noble Lord, Lord Bach, and the comments of the noble Baroness, Lady Doocey, and the noble Lord, Lord Low, particularly in the context of disability. I speak having sat through the Welfare Reform Bill, as a number of us did for many months during the winter, and having seen the complexity that was just referred to a minute ago by the noble Lord, Lord Howarth. When the regulations under this legislation come forward and people’s well-being—the basics of their lives—may be at stake, they may need the ability to follow appeals to wherever they go.

I want to ask the Minister about the new provisions set out by the Government in Amendments 240A and 240B. They are welcome in that they preserve legal aid for welfare benefits advice for onward appeals to the Upper Tribunal, the Court of Appeal and the Supreme Court. As mentioned earlier, such appeals rest on points of law that are highly complex and which lay people can hardly be expected to cope with alone. Now that the Government have started to recognise the problems inherent in points of law in appeals, why do they not see fit to roll out the same provisions for other areas of law where points of law would arise? Surely such provisions should not be limited just to welfare benefits appeals. Now that the Government have the power to change this Bill by order, especially in respect of the scope of legal aid, I would welcome the Minister’s assurance that they will look again at retaining legal aid for advice on points of law in other complex areas of law, for example immigration appeals. Important principles arise from the changes being made and I would be very glad to have some indication from the Minister about where this might be taking us.

[Lord Martin of Springburn]

My Lords, the noble Lord has made many very interesting points but, at the end, he said that it would be good if the House of Commons had another chance to look at this matter. If the amendment were carried, the other place would have a chance to look at this. I heard the Minister’s comments about financial privilege, but I do not share his point of view that if we put back the amendment we are being unfair to the House of Commons or to the traditions of this House.

I think of the situations that I had to face in my former constituency where there was a great deal of poverty. I heard many academics say that it was terrible that in the east end of Glasgow and in parts of the north end of Glasgow the life expectancy of people was such that you had a better chance of survival if you lived in Calcutta. It is all very well for an academic to say that, but people in areas of great poverty in my former constituency did not always get the benefits to which they were entitled. But if they go to the first line of appeal, it will be most unfair if they do not get legal aid. In the city of Glasgow, many lawyers recognise that people who have little or no income need the help of lawyers to articulate their cases.

We should not forget that when an appeal is made, often a recipient cannot speak up for themselves—perhaps because they are stroke victims—and cannot communicate, and therefore the carer has to worry about the benefits that they are losing. The carer has a 24-hour job. When someone says they are a carer it rolls off the tongue, but that carer can be up at three in the morning or may be denied the opportunity of a social life. They have to worry about going along to a tribunal on behalf of someone whom they love dearly and whom they are caring for seven days a week and it is a great relief to many of those people if they can get legal aid which will help them so much.

It used to be the case—I know it was a while ago—that if a working man or woman had to get the help of a solicitor, they had to go into the city centre but then lawyers realised that help was needed in the peripheral areas. Many legal companies operate in what used to be shops. They rent shops and now they are in the heart of very poor communities. It would be most unfortunate if people who need help, particularly carers, do not get assistance from those who are legally qualified and able to articulate a case for them.

[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.

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[Lord McNally]

Of course it is deliberate. One of the things about that rather long opening speech is that it is the same speech that the noble Lord has been making for 18 months. I appreciate that he disagrees with our judgment on social welfare law, but we have never made any bones about the fact that that is where we took a tough decision. On criminal legal aid, I am quite sure that we will return to it, but the judgment we made was that since the previous Administration had made a series of quite significant cuts in criminal legal aid, we would allow them to bed in before returning to that matter. The fact is that the decisions have been tough, and we stand by the fact that tough decisions were required in the economic circumstances that we found ourselves in and also because successive Administrations have said that the legal aid system was in need of reform.

I do not know whether we have got the specific answers to the question asked by the noble Lord, Lord Howarth, about the balance in other common law countries. I have never used comparisons with continental legal things; I have always made the point that as far as Britain is concerned the comparison is with common law countries. Many months ago, on my return from the Commonwealth Law Conference in Sydney, I mentioned that the one message I brought back from Commonwealth countries with legal aid systems was their amazement at the generosity of the British system.

We are in a process in which we have had to take tough decisions. Some of the contributions today by the noble Lords, Lord Low and Lord Martin, and the noble Baroness, Lady Doocey, almost made the case that the only practical help is legal advice. That is not something we accept. We think that in these cases there are other forms of advice that are just as valuable.

On the point made by the noble Lord, Lord Martin, that I had said that we cannot give offence to the House of Commons, I think that if he checks Hansard he will find that I have never been against this House giving offence to the House of Commons. Indeed, I quoted the Companion earlier:

“Criticism of proceedings in the House of Commons or of Commons Speaker’s rulings is out of order”.

However, the Companion goes on to state that,

“criticism may be made of the institutional structure of Parliament or the role and function of the House of Commons”.

[Lord Martin of Springburn]

I think that the Minister suggested that for this House to send the amendment back again was against the conventions of this House.

[Lord McNally]

It is not. I quoted from the Cunningham committee which held that opinion. There was a point when it was against the conventions of the House.

[Lord Martin of Springburn]

That is an opinion of a committee; it is not a convention of this House. The opinion of a committee is just that: an opinion.

[Lord McNally]

Nobody is suggesting that if this House wants to send the amendment back, it is not entitled to do so. I heard what the noble Lord, Lord Low, said about the importance of people’s Peers. He may know that it is my long-standing opinion that having a party-political label does not somehow lower one’s capacity to take views on legislation. Indeed, for many hours in this House the only people taking a detailed view of legislation are those on the party political Benches. I admit and acknowledge that recent appointments have brought valuable experience to this House.

Although my membership of the other place was brief, I remain at heart a House of Commons man in terms of where—

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Martin of Springburn Excerpts

Tuesday 20th March 2012 Lords Chamber

[Lord Martin of Springburn]

I declare an interest as a member of Unite. The noble Baroness, Lady Deech, was good enough to say that she had mentioned the problems of referral fees in a previous debate. That debate took place on my amendment. My case was that trade union officers go to places where there has been an accident. Therefore, there is a certain expenditure when those visits are made. There is obvious expenditure and there should be some compensation. The noble Baroness was good enough to mention referral fees and I was deeply impressed by what she said. Therefore, I will not move Amendment 146.

[Baroness Deech]

My Lords, I should have declared an interest as chairman of the Bar Standards Board, which prohibits barristers from receiving or dealing in referral fees. If I gave the impression last week that referral fees that go to unions go direct to the political party and that is wrong, I apologise. My point is that it is happening in another way. I have not yet been corrected but my research on the internet showed that direct referrals from a party to a firm resulted in the firm paying a referral fee to the political party. Therefore, if it is not happening in one way, it may be happening in another.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Martin of Springburn Excerpts

Wednesday 14th March 2012 Lords Chamber

[Lord Judd]

My Lords—

[Lord Martin of Springburn]

My Lords—

[Lord McNally]

I am sorry, but I am not going to take questions. We are hard-pressed for time. I have offered to re-engage, but as I said before, the evidence we asked for has not been forthcoming and I do not believe the argument that without this amendment, it is going to be catastrophic for these particular cases; that is, for those which people want to take through our law courts. I ask the noble Lord to withdraw his amendment—

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Moved by

[Lord Martin of Springburn]

133: Clause 43, page 30, line 24, leave out subsection (4)

[Lord Martin of Springburn]

My Lords, I am pleased to move this amendment. I understand that the night is getting on and we have all been here for many hours. I say in the nicest possible way that, as the hour gets later, the noble Lord, Lord McNally, seems to get a bit more edgy or, as we say in Scotland—I do not know if the term is used south of the border—a wee bit crabbit. The noble Lord would not give way.

The Jackson report has been mentioned many times tonight, and it sounds as though it is a commendable report. However, I put it to the noble Lord, Lord McNally, that we are not here just to take a report and rubber-stamp it. That would be easy. It has to be debated and thought through. It would be very easy for our democratic institutions if we just got a report and passed it through, saying, “It’s a good report”. It has to be tried and tested. In that spirit, I am moving this amendment.

I declare an interest. I successfully took the Times to task on a no-win no-fee basis. Even on that basis, it was very daunting to be up against a large media organisation. I have been in politics for a long time and I feel as though we have all been hardened to what the media do and say. It must be even tougher for men and women who never expected to be in a situation in which their reputation was tarnished. It is a great loss that we are losing no-win no-fee for libel damages. My thoughts go to Mr Christopher Jefferies, the landlord in Bristol who was accused of all sorts of things because he was in the wrong place at the wrong time. It was very sad for the poor victim of that murder, but Mr Jefferies was also a victim.

The media said all sorts of things about that poor man. He must have thought to himself that he must take them on, and he did so on a no-win no-fee basis. Mr Jefferies probably took them on knowing—or his lawyers would have known—that whereas he had one solicitor, every national newspaper has a whole team of solicitors. There is not a time in the day when a media editor does not have access to a solicitor. I do not need to reiterate the things that the media said about that poor man as your Lordships know what was said. I was appalled that when the editor—I believe it was the editor of the Mirror newspaper—spoke at the Leveson inquiry, his apology was so cold and unmoving that you would not have known from it that he had destroyed that poor man’s very reputation.

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[Lord Martin of Springburn]

My Lords—

[Lord McNally]

The noble Lord has come to my aid, because I think these cases are still going on, and I had better say no more. Whenever I hear the Opposition on the wickedness of the press, I have to remind them that from those Benches more than a decade ago I proposed a minor amendment on press accountability, and was told from this Dispatch Box by the Labour Minister of the day that I was proposing the “slippery slope” to a state-controlled press. We know today what slippery slope we were actually on.

I say to the noble Lord, Lord Martin, as I have explained in dealing with other amendments, that abolishing recoverability of success fees and insurance premiums from the losing side will rebalance the CFA regime to make it fairer for defendants by reducing the substantial additional costs which they have to pay under the current regime. Amendment 133 would retain the recovery of success fees from the losing side in all cases. I am not sure whether Amendment 133ZA was spoken to, so I shall not refer to it, but the noble Lord, Lord Martin, made it sound as though we were abolishing CFAs. I emphasise that CFAs will still be available to fund the same cases as they were under the original arrangements introduced by my noble and learned friend Lord Mackay of Clashfern.

However, I understand the concerns of the noble Lord, Lord Martin, about the press. I am not sure that they are best dealt with in this Bill. As the noble Lord will know, I hope that parliamentary time can be found to introduce a defamation Bill. It is in that Bill that we will look at the question of the balance of arms between the individual and large media interests. I hope that we can do that reasonably soon. In the light of that and what I have explained, I hope that he will withdraw his amendment.

[Lord Martin of Springburn]

My Lords, I am very pleased that the noble Lord has said that he hopes to bring in a defamation Bill. That at least is something, because my worry is that there is a great imbalance. I will not detain the House any longer. I beg leave to withdraw the amendment.

Amendment 133 withdrawn.

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[Lord Hunt of Wirral]

My Lords, in speaking to Amendments 146A and 148A, I wish to say how strongly I support in principle the Government’s proposal to ban referral fees. I declare my interest as a partner in DAC Beachcroft, the international commercial law firm. My amendments are intended simply to clear up some possible loopholes. Having just heard the comments of the noble Lord, Lord Beecham, I caution how important it is to have a blanket ban because any ban that is implemented has to work. However watertight the ban is—my amendments are intended to help the Government achieve that objective—it is critical that we also remove the incentive for referral and profit share by removing the excessive legal costs from the system. There are many vested interests here and a lot of money is at stake—too much money in my view.

At present, solicitors acting for claimants can still afford to pay out more than half of their fees to a third party whose only role is to buy and sell on the details of an injured person. That cannot be right. Amendment 146A would make a minor change to Clause 54(4) by inserting,

“which consist of or include damages”.

I raised in Committee the spectre of the current wording permitting the payment of a referral fee for some non-injury element of an injury claim, completely bypassing the Government’s intentions. I look forward to hearing my noble friend the Minister’s comments on that.

Amendment 148A would insert,

“whether received by the person referring prescribed legal business or not”,

into Clause 54(8). I highlighted in Committee this gap in the drafting which could be exploited simply by the way in which payment is routed. Again, I await my noble friend the Minister’s answer.

Finally, I would also be very interested to hear whether my noble friend can give this House a commitment about just how much of the excess cost can now be taken out of the system altogether, which is, frankly, a more effective remedy than tightening up the drafting.

[Lord Martin of Springburn]

My Lords, I wish to speak to Amendment 146 in my name. In doing so, I declare an interest as I have been a member of the Unite union for a long time. I am not having a go at the media on this matter but, often when trade unions are mentioned in the media, reference is made to trade union leaders. Not much is known about the activities of the lay officials and junior officers of a trade union. Tonight we have spoken about asbestos victims. A trade union would probably be the first port of call for a person who felt that they were suffering from the effects of asbestos inhalation. Apart from the serious matter of asbestos inhalation, your Lordships may be aware that even a National Health Service kitchen can be a very dangerous place for workers. They can fall, be scalded or be cut by the knives that they are using. After any injury such as that or any other injury relating to a person’s work, the first port of call is to the local trade union office, and an investigation is made before the matter is referred to a lawyer. Any of us who has run an office knows that photocopiers, heating, lighting and cleaning all cost money. It means that there should at least be some compensation for the trade union that is prepared to try to help that member before the member goes to a solicitor.

[Baroness Deech]

My Lords, I declare an interest as chair of the Bar Standards Board, which regulates barristers and prohibits the payment of referral fees, which we regard as immoral—I think that I am not putting it too strongly—and which we disapprove of because they are anti-competitive.

While I have every respect for my noble friend Lord Martin and for the work that the unions do to help their members, the amendment has brought to mind one of the most reprehensible incidents of modern times relating to lawyers and referral fees. I will not give the House too much detail because it is late at night, and the story is probably well known to noble Lords here, especially noble and learned Lords. When very many miners were sick and 23,000 cases were referred on by the union to a solicitors’ firm, it ended up with reprimand and with the law firm taking far more money than did the sick miners. The solicitors were paying the union, and in the case that I am thinking of the amount came to about £10 million, because 23,500 cases were referred to one firm.

If a firm of lawyers knows that a number of cases of that order are to be referred to them without the firm making any effort, without it going out into the market and proving how good it is, it is not surprising that things went wrong.

[Lord Martin of Springburn]

I know it is late in the evening and I thank the noble Baroness, but I am sure she would agree that not every union or every solicitor would conduct their affairs like that. Tomorrow, there will be unions that refer their members to a solicitor, and they will do so in good faith and in the best interests of their members.

[Baroness Deech]

I am sure that the noble Lord is right, but what I am objecting to is the exchange of money. If you go to the website of the union, you may click through to the page where legal services are offered, click where the page directs you to a law firm, the law firm is named, and then you can continue to click until it says, “For every case referred to this firm, the firm will pay the union a sum of several hundred pounds”. If the unions wish to help their members, it would be very easy simply to refer them to a whole number of local firms without money changing hands. There is nothing to stop the good work done by the unions, which I praise. It is the exchange of money that I object to. In the case that I am thinking of, it was actually public funds that went to the solicitors’ firm. It illustrates what is wrong with referral fees: the issue is treated as commercial and the law firm can sit back, knowing that cases will flood its way, whether it deserves them or not.

There have been other reprehensible incidents such as this, with which I will not delay noble Lords, save to mention one other effect. Given that very large sums of money are paid to the union, whichever union it is, by the law firm, and we know that many unions are inclined to support one political party, we end up with money being paid—very indirectly, I grant you—to the political party because the money is coming from the funds that the union has accumulated, and part of those funds come from referral fees.

If the solicitors can afford to pay £200 a time, or whatever it may be, to the union in return for every case, that must logically indicate that the case could have been handled for less money than was charged. I am by no means saying that that is always bad, but there is definitely a risk in referral fees. In particular, there is a severe risk to the interests of justice where a firm knows that thousands of cases can come its way without it making the effort in the market to get them and handle them well. Therefore, with all due respect, I hope that the amendment will not be pursued, as I do not think that it helps the Bill.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Martin of Springburn Excerpts

Monday 12th March 2012 Lords Chamber

[Lord Martin of Springburn]

On that point, does the noble Lord agree that government departments and health services all turn up with lawyers when they are defending an unfair dismissal? The Government will use lawyers, but they are saying that those who are seeking to fight their case do not need lawyers.

[Lord Bach]

The noble Lord is absolutely right; that is the thinking behind it. The same Government who say that this is not legal advice will of course have lawyers there to represent their interests at industrial tribunals. That will continue whether this legislation goes through or not, so let us have no more of that.

We have already heard mention of the unanimous resolution that was passed, I think only yesterday, at the Liberal Democrat party conference in Gateshead to support legal aid. I shall read three parts of that quite long resolution. First:

“A properly funded system whereby access to legal advice and representation before the courts is not denied to those otherwise unable to bear the costs”.

Secondly:

“The continued provision of legal aid”—

yes, legal aid—

“for those who cannot afford to pay for legal services, in serious cases where a failure to provide legal services may lead to injustice”.

That seems to me like an employment tribunal. Lastly:

“The implementation of the party’s policy on Access to Justice debated at Conference in 2011”.

Of course, the leadership of a party does not always take complete note of what the conference passes, even if it passes it unanimously. Yet it might have been better if the Government, who obviously did not agree with what was said in that unanimous resolution, had had the courage to say so during the course of whatever debate took place. It is very depressing.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Martin of Springburn Excerpts

Wednesday 1st February 2012 Lords Chamber

[Lord Pannick]

Yes, I agree. Of course, the Bill will not in any way prohibit such transfers; it will prohibit only payment. However, prohibiting payment will deter what may be a very sensible economic arrangement that provides an incentive to the first solicitor to transfer to the second solicitor a case which the second solicitor can deal with far more efficiently—in the interests of the client; that is the point. As I say, all these matters are properly regulated by the SRA. If the SRA is not properly regulating it is not doing its job. I ask the Minister why and also whether there is any evidence that the SRA is not doing its job properly in regulating referral fees in relation to transfers between solicitors.

[Lord Martin of Springburn]

My Lords, Amendment 166ZB is in my name and those of the noble Lords, Lord Elystan-Morgan and Lord Collins of Highbury. Of course, I am supportive of the other amendments that have been moved and spoken to.

I note that the other amendments mention payment to charities. When I signed up to the metal workers’ union as a young apprentice, it was regulated under the Friendly Societies Act. It was the same as the insurance companies such as the Co-op, the Salvation Army or the Wesleyan—they were charities. The trade union movement has always had a tradition of not only looking at wages and conditions within the factory but trying to go beyond that to help the member and his family. It knew that there was no point in just fighting for wages and conditions alone; there were many problems outside the place of work. Often that meant that, particularly when workers were involved in an accident, the unions had to get in touch with a solicitor who was willing to help, particularly in the bad old days.

Not so long ago in my native city of Glasgow, the Kelvingrove Art Gallery—which I would recommend anyone who visits Glasgow to go and see—had an exhibition of trade union banners. Trade union banners today tend to have big messages saying “Cameron out!”—and before that it was “Thatcher out!” or, even before that, “Heath out!”—but these old trade union banners were absolute works of art. They displayed exactly what the trade was all about. I remember the coach builders’ banner; one of the members had had an accident in the street and you saw the accident—the poor man had broken his leg—and another part of the banner showed him in bed and the officers of the branch turning up, and the caption underneath was, “When I was ill, you visited me”. My point is that there was always care within the trade union movement.

I know that many people, particularly in the media, can point to the salaries of the trade union leaders and make negative comments about them. But it must be remembered that the vast majority of people working in trade unions do so on a voluntary basis without any financial help.

--- Later in debate ---

[Lord McNally]

No, of course the Government cannot do that. There was one thing that I was interested in. I do not know this because it is always dangerous to think aloud at the Dispatch Box, but on the powerful case for aid for charity I do not see why wealthy solicitors’ firms or wealthy solicitors could not make donations to that charity as long as there was no link with the search for work. It is worrying to have a charity that is dependent on making referral fees to certain solicitors. I am more comfortable with our banning referral fees.

In a way, the same applies to what has been said about trade unions. I fully accept the point made by the noble Lords, Lord Collins and Lord Martin, about the services that trade unions offer working people in this country. My father worked for 47 years for ICI and was a lifetime member of the National Union of General and Municipal Workers. When I hear attacks on health and safety, I know the importance of health and safety in industry, but that should not be linked to a relationship with a professional service organisation.

[Lord Martin of Springburn]

I may have failed to declare an interest in that I am a member of Unite. It used to be the metalworkers’ union and then it became another union. When I looked today, it was still called Unite, but it might change its name tomorrow.

[Lord McNally]

It might. Some of them sound like coffee bars rather than trade unions these days, but perhaps that is part of the marketing. Certainly, the case of the trade unions was made very strongly by those who intervened. The service that trade unions provide their members no one gainsays—it is important—but we do not believe that that link between referrals and certain legal firms should be exempted from a general ban on referral fees. There must be those who have worked for trade unions who do not pay referral fees. I do not know. As a layman, I see referral fees as a distortion of the market, but there is nothing to stop trade unions having a good close working relationship with particular law firms. Some have had long-standing relationships. However, I cannot tell the House that we are willing to make an exception.

The noble Lords, Lord Pannick and Lord Clinton-Davis, referred to the payments by solicitors to other solicitors for the transfer of prescribed legal business, and we believe that that argument is rational and sensible. If for any reason a solicitor decides that a piece of business needs to be transferred, perhaps for the geographical reason that the noble Lord, Lord Clinton-Davis, gave or because the solicitor realises that it is beyond the competence of his or her firm, it would be perfectly reasonable to see a transfer. When the transfer is made, the solicitor concerned is able to claim an appropriate amount of money for the work dispersed before the transfer was made. We accept that logic. However the Government’s view is that reasonable payments of this type are not captured by the ban as long as they only cover the work undertaken by a firm in respect of the claim prior to it being transferred to a new firm. If there is a referral fee element to the payment, this would be subject to the referral fee prohibition and is a matter best dealt with by the regulator rather than by legislation.

Although I know that parts of this reply will disappoint noble Lords, we appreciate the widespread support for our ban on referral fees. We believe that this is the best way to lead our proposal to provide the most effective and proportionate way of preventing payment for personal injury claims and squeezing a bad practice out of the industry. We therefore invite noble Lords not to press their amendments.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Martin of Springburn Excerpts

Monday 30th January 2012 Lords Chamber

[Lord Wigley]

My Lords, Amendment 137A stands in my name, as well as in the names of the two noble Lords who have already spoken. Back in the 1970s, as a young Member of another place, I was very involved in campaigning on respiratory injury caused by slate dust in the slate quarries in my area. Slate dust, of course, causes a progressive disease similar to asbestosis. I was also involved in the asbestos battle—and I also knew the late Nancy Tait very well—in that I had a Turner & Newall, or Ferodo, factory in my constituency and had constituents who were affected by asbestos. I also gave evidence to the Pearson commission on these matters in the 1970s.

In the debates on this Bill I have already made clear my feelings about how proposals to cut the Ministry of Justice’s budget will have a disproportionately negative effect on individuals who have been injured or disabled. During the debate on Part 1, I argued against removing access to legal aid from those injured due to clinical negligence. My comments today will, for the most part, centre on the legal implications for another group—those injured due to exposure to harmful substances such as asbestos. The case for mesothelioma has been made graphically by the noble Lords, Lord Alton and Lord Avebury, so I shall concentrate on the provisions of the Bill.

Under the proposals in Clause 43, a success fee under a conditional fee arrangement will no longer be recoverable from a losing party in all proceedings. This fee will instead have to be paid for out of the modest damages awarded to the injured person, meaning that they may lose up to 25 per cent of their damages. Clause 45 removes the recoverability of the after-the-event insurance premium from the losing defendant, and this will probably result in this premium also being taken out of the damages awarded to the injured party. To put this in context, an ATE insurance premium for an employer’s liability case, such as for industrial disease, can cost up to £12,000.

Both clauses will have an adverse effect on individuals attempting to bring cases against companies or organisations as a result of an illness or respiratory disease they developed after being exposed to a dangerous substance. For this reason, I support the amendments before us, and perhaps I may set out why I think this is necessary.

As it stands, the present system, which comprises both conditional fee arrangements and ATE insurance, allows an individual to proceed with a case against a corporation or organisation which has caused them harm without the fear that they will in some way be left worse off after bringing the claim. There is sometimes a feeling that no-win no-fee claims are bogus and encourage mercenary behaviour. This conveniently ignores the fact that many meritorious cases, including those brought by victims of industrial disease such as asbestos poisoning, rely on the no-win no-fee system to access compensation.

I draw to your Lordships’ attention a case brought to my notice by the Access to Justice Action Group involving an industrial disease claim for silicosis. The deceased person was employed in a local quarry. He worked in the vibrating shed and blast shed, where he was exposed to high levels of silica. As a result of this exposure, the deceased developed silicosis and lung cancer. He died due to his illness and a claim was brought by his widow. Initial prospects were put fairly high, at 65 per cent to 75 per cent, with potential damages assessed at over £100,000. The ATE insurer, ARAG, a German company, agreed to provide cover. The initial medical evidence obtained was very supportive, and a subsequent admission of liability was then made subject to medical causation.

The outcome was that despite the initial optimistic prospects for the case and liability being admitted, further medical evidence could not prove the necessary causal link. Based on the expert medical advice, the case had to be abandoned. The disbursements incurred totalled £2,019. ARAG settled these in full. Under the Government’s qualified one-way costs shifting proposals the claimant widow would be responsible for these disbursements, as QOCS makes no provision for the payment of claimants’ disbursements in failed cases and the ATE system will not survive to cover these claims. The net effect is that the widow would not have been able to pursue that case.

It would perhaps be beneficial to remember that accident cases are not limited to those accidents which occur on the roads. If Clause 43 is taken forward without amendment, these victims will no longer have a right to redress for the wrong done to them. Likewise, ATE insurance protects an individual from having to pay the costs of the other side if he or she loses a case. In cases which centre on industrial disease, the other side will usually be a multimillion pound organisation with access to teams of solicitors. ATE insurance also pays for additional expenses, such as medical reports, without which cases alleging illness as a result of exposure to a dangerous substance would flounder at the first hurdle.

If Clause 45 is agreed and the recoverability of ATE insurance is removed, the injured person would face losing a hefty proportion of his or her damages to pay for the premium. Thus, without recoverability, both the uplift required to allow a solicitor to take a case on a conditional fee arrangement, and the ATE premium necessary to pay for the costs risk if the case loses, will be paid from the claimant’s damages. That will inevitably mean that many solicitors will be unwilling to take on cases where the chance of recovering their costs is low, without the client having to lose most of their damages. This is particularly pertinent on noting that in lower value cases, the additional liabilities may even exceed the amount of damages awarded. One consequence of people being unable to afford solicitors’ fees will be an increase in litigants in person taking on large corporations which, as well as demoting access to justice, will have an inevitable toll on the courts system. In cases which do proceed, the increased risks for claimants, who will have to pay additional liabilities from damages, will result in a perverse incentive to compromise cases at below full value. This can hardly be said to be promoting access to justice.

It is vital that the present system be kept in place for genuine claimants who have developed illnesses resulting from industrial exposure. I should note that in preparing for this debate I have been assisted by First Assist Legal Expenses, the Association of Personal Injury Lawyers, the Access to Justice Action Group, and by Mr Tony Whitston, to whom the noble Lord, Lord Alton, has already referred. What they all hold in common is a firm view that access to justice should not be barred for those with legitimate grievances who would not otherwise be able to gain the compensation that is due to them.

Cases which involve asbestos poisoning and other industrial disease cases often have more than one defendant and are highly complex. Unsuccessful cases can thus be extremely expensive if there are multiple defendants whose costs would need to be covered if the case is lost. Without a recoverable insurance premium, these cases could not be brought by an individual unless that individual had access to substantial private funds. If an individual is diagnosed with asbestosis, this clearly indicates that they have been in contact with asbestos. Even so, due to the complex nature of these cases in establishing liability, pleural thickening and asbestosis cases attract only modest damages. Most solicitors will not be able to take on the risks involved in these cases without being able to recover the ATE insurance premium. Those suffering from industrial illness thus face being additionally victimised by the justice system.

Equally, and as the Association of Personal Injury Lawyers argues, individuals who are diagnosed with asbestosis are at a greater risk of developing a fatal disease like mesothelioma later in life. Currently, a case for asbestosis must be brought within three years of gaining knowledge of the disease. If a case is not brought within that time frame due to an increased risk of costs, and in the mean time mesothelioma develops, the injured party may well be unable to bring a claim for the disease. He or she would then be denied compensation twice—both for the asbestosis and mesothelioma.

In summary, the reforms proposed in Clauses 43 and 45 would have a disproportionately harmful effect on claimants bringing cases against corporations and organisations as a result of illness incurred after exposure to dangerous substances. The notion that the Government intend to remove the means currently in place that allow individuals to pursue justice in such distressing situations makes a mockery of the principle of equality of arms—a complaint that I brought against the proposals in Part 1 of the Bill. One of the principal reasons that the then Government introduced recoverability was so that meritorious cases could be proceeded with without potential claimants having to face undue costs if a complex case were lost. The then Government also recognised that victims having to pay additional liabilities from their damages put them at a disadvantage compared with claimants who were eligible for legal aid. If these reforms are implemented, the system will no longer be able to deliver compensation to individuals whom the law is designed to protect.

There is a related anxiety that without the deterrent of individuals being able to bring claims for compensation, breaches of the law will increase. Most pressingly, the Bill injects yet more uncertainty into cases that are already complex and distressing. Many individuals will not be able to proceed with legitimate claims, regardless of their merits, because they will not be able to find solicitors willing to take on their cases. These groups or individuals have already suffered grave wrongdoing at the hands of others. Surely our legal system should do all it can to redress that wrong rather than put up further barriers to justice for them.

[Lord Martin of Springburn]

My Lords, I support the amendment and the noble Lords who spoke. My thoughts turn to a lawyer, the late Frank Maguire, who died recently. He was a campaigning lawyer on behalf of asbestos sufferers north of the border. He took on very difficult cases. Many of them were test cases. The important thing for his clients was that he offered a no-win no-fee arrangement. We may be perhaps comfortable in our lives, but it should be remembered that a disease of the lungs creeps up on a person. They feel breathless gradually. They might put it down to smoking or something else around them. Also, because of their shortness of breath, they lose time at work if they are lucky to be employed, so they are not very well off financially by the time they go to see a solicitor. When they see the solicitor, it is a great relief to have a no-win no-fee arrangement.

I was in a room with a constituent who was being questioned by the late Frank Maguire. Frank would go back to a time when they were 15 or sometimes 14. Like a police officer, he would ask about every place of employment where the person had worked. The person suffering from the disease and difficulty had to recall all the places they had worked because—let us face it—an employer is going to deny liability and a lawyer has to ensure that the right person or company is being claimed against. That is not easy with all the closures that have taken place over the past 50 years. Many companies have closed down and others have changed their name. Some companies that have stayed in business have changed their address, so it is hard for a lawyer to track them down. It would be a great help if the Minister would say that in this instance the Government will make sure that they do not create any more difficulties not only for sufferers but for their families.

I did not set out to be an asbestos worker, but these things happen when you go into a factory. As an apprentice metal worker I was expected to drill metal; I made electric heaters. As in the case of the toasters that the noble Lord mentioned, the elements of the electric heaters were wrapped around light asbestos board. When I was 16, my boss used to instruct me to cut and drill the asbestos. There were many young women in the factory who drilled the asbestos. In fact, because it was white board instead of metal that was covered in oil that got on your denims, you quite liked this white powder that you could just wipe off, not realising the dangers involved. The relatives come into this because in those days, you did not send your clothes off to the laundry, mum did the washing. In some cases, there could be two or three daughters in one family working with that asbestos and going home. Their mum was exposed to the asbestos. Then if mum was ever feeling breathless, a good doctor—there are many good doctors around—would probably ask a man where he worked before he retired and if he said he worked in the shipyard there might be a possibility that he was using asbestos that was the cause of the breathlessness, but for a mother, a housewife, it might not dawn on the doctor that she had any contact with asbestos. That makes it all the harder for the lawyer to fight the case when it finally comes.

--- Later in debate ---

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

My Lords, it is a long time since I pointed out that we had a whole series of amendments, each taking a different aspect of the Bill’s architecture, suggesting that on this case the Government should make an exception. Of course, had we conceded all afternoon, nothing would be left of the Government’s architecture. I listened to what the noble Lord, Lord Bach, has said and sometimes I feel that he is a little harsh on the legal profession. I cannot believe that lawyers would be so unwilling to take cases in the circumstances of what will be left in place after the Bill becomes law.

Let me make one personal point about mesothelioma. My sister Betty died of this disease. I do not need to hear the graphic descriptions that have been used in this House because I saw it with her. The family did not decide to take legal action, although undoubtedly she worked with asbestos two times in her life. Some 50 years ago she worked in an ICI plant. She also worked in what were then the asbestos-constructed Ministry of Pensions’ prefabs at Norcross. But the chance of providing proof in either case was very vague. Quite frankly, the family felt that no amount of litigation, proof or anything else would bring Betty back. She was dead. But that was a personal decision of the family.

Part of this debate turns on our industrial heritage and cleaning up the mess. Of course, I agree entirely with what the noble Lord, Lord Bach, said, and I see the noble Lord, Lord Monks. The Health and Safety at Work Act is about this issue and workers working in dangerous and dirty conditions. I was born on an ICI estate and I sometimes shudder at the thought of what went on as normal practice in chemical factories 40 to 50 years ago. Certainly, these cases are extremely difficult.

Before we put too much faith in lawyers, I was very proud to be involved in the Labour Government who gave the miners compensation. But, my God, was there not some abuse of that by the lawyers?

[Lord Martin of Springburn]

I know that the hour is late. There might have been abuse from lawyers but there was no abuse from the victims.

[Lord McNally]

I never said that there was. But I can say to the noble Lord, Lord Alton, that I am quite sure that the insurance industry has been lobbying on this Bill. However, I can also tell him that the lawyers have not been too bad at lobbying either.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Martin of Springburn Excerpts

Monday 30th January 2012 Lords Chamber

Clause 43 seeks to abolish the recoverability of a success fee under a conditional fee agreement from the losing party in any proceedings. This will require claimants pursuing claims under CFAs to take an interest in keeping down their costs and will reduce the disproportionate impact of their costs on those who face the claims. At the moment, a claimant has no interest at all in tackling mounting levels of costs. The costs that losing parties must pay can comprise their own legal costs and the winning party's basic legal costs. That much is reasonable and applies generally in civil litigation. However, under CFAs the losing party also has to pay the winning lawyer's success fee of up to 100 per cent of the base costs, as well as the “after the event” insurance premium that can be very substantial, as we heard from my noble friend Lord Thomas. That is why a losing defendant in a CFA case can expect to pay more than double the legal costs of a defendant in a non-CFA funded case. This in turn can put CFA-funded parties at a significant disadvantage over those whose cases are funded by other means.

[Lord Martin of Springburn]

I apologise for being late for the Committee; I was travelling from Scotland. I am sure that the noble and learned Lord will acknowledge that cases that involve 100 per cent recovery are those that go to court. There are stages where settlements can be made. The defendant can make an offer that can be accepted. If it is done at an early stage there will not be the 100 per cent costs that we were talking about.

[Lord Wallace of Tankerness]

My plane from Edinburgh, too, was delayed today; I understand the noble Lord's difficulties. He mentioned the arrangement for making offers. Part 36 arrangements were spoken to by my noble friend Lord Thomas when he moved the amendment. I will come to the matter in responding to the debate.

As I indicated, very often these cumulative costs can lead defendants to feel under pressure to settle a claim when they have no legal reason to do so, through fear of incurring payment of excessive costs as the case proceeds.

Without Clauses 43 and 45, high and disproportionate costs in civil litigation will continue. Access to justice will not become more meaningful for all parties, as we intend. If all the amendments to Clause 43 were agreed, the fundamental elements of the Government's reform package would be lost, and defendants would continue to be liable for significant additional costs across a range of cases. It is useful to put the level of costs in some context. My noble friend Lord Phillips pointed out that one general liability insurer indicated that, in 1999, claimants’ solicitor’s costs were equivalent to just over half the damages paid; by 2004, average claimants’ costs were roughly the same as the damages; and, by 2010, average claimants’ costs represented one and a half times the damages received by the injured victims, and indicated that while average damages paid have increased by one-third since 1999, average claimants’ costs have increased by two and a third times over that period. These figures reflect Sir Rupert Jackson’s findings that claimants’ costs are substantially higher than defendants’ costs, and that claimants’ costs in CFA cases are substantially higher than in non-CFA cases.

--- Later in debate ---

I am grateful for the indulgence of the Committee in answering a considerable number of amendments. However, I think that it has been useful to consider this—as it were—omnibus set of amendments, which have raised all the different elements of the package. I urge noble Lords not to press their amendments.

[Lord Martin of Springburn]

On the incentive to settle early—I am trying to put this in layman’s terms—is the noble and learned Lord saying that a claimant can, through his solicitor, put it to the defendant that it would be a reasonable settlement, for example, to pay X amount or to print something in a particular magazine that would help the defendant to get his reputation back? Is the noble and learned Lord saying that, if such an offer is refused by the defendant, that would be taken into consideration by the court?

[Lord Wallace of Tankerness]

I think I understand what the noble Lord is saying and I think I gave an indication on that point. Let me just try to find that—

--- Later in debate ---

The whole point of this is that we are shifting power from the vulnerable to the powerful. We are shifting the cost and putting it onto the more vulnerable. This is what these amendments are opposing. At Second Reading, the noble Lord, Lord McNally, said this was a radical shift. Well, it is, but I did not think it was as radical as I now understand it to be. It is a radical shift away from the weak and to the strong, and it is going to make it more difficult, particularly in these media applications. This Bill is not about better civil justice, it is about disadvantaging the vulnerable. That is what we should not accept and that is why we are moving these amendments.

[Lord Martin of Springburn]

My Lords, I support the noble Lord, Lord Bach. I listened with interest to the noble Lord, Lord Lester, and his comments about the rich and famous being able to take cases to court. This is what worries me about the lack of no-win no-fee. I am not concerned about the rich and famous, I am concerned about ordinary men and women, who maybe only once in their life have been defamed by a newspaper. At the Leveson inquiry one former editor said, “If it sounds good or if it sounds like the truth, just lob it in”—just to lob it in for a woman or a man who is living a quiet life is very cruel and hard.

For those of us who have approached newspapers and said, “What you have said about me is wrong”, their first reaction is, “If you don’t like it, write a letter and we will print it in the readers’ column”. How insulting is that, that I or anyone else should then make a contribution to a newspaper—which is usually a nasty newspaper that you would not even have in your home—by putting a letter into their column? That is even the line that they take with the Press Complaints Commission. Everyone knows that when anyone takes up a complaint with the Press Complaints Commission, they are not even looking for money, they are looking for some redress, and that is the first course of action that they take.

Years ago, perhaps in the 1950s, 1960s or 1970s, it used to be the case that if a newspaper printed something that was wrong about you, it was a matter between you and the newspaper. This is not the case nowadays, because when a newspaper prints an allegation, there is a press preview on Sky News or the BBC, where they get some talking heads to chew over what has been said about you that day. That means that even when you are deeply embarrassed about what has gone out, and you have not even had a chance to redress the balance, within hours of that newspaper being published hundreds of thousands of viewers are able to get a look at that newspaper because they are invited to do so by another press organisation.

I note the point that the noble Lord, Lord Lester, has made about local newspapers. When is it that people take offence at a local newspaper? There is maybe the odd individual. But a local newspaper says to itself, “We do not have the resources to involve ourselves in a law suit, so we had better be careful before we go to print”. My local newspaper is the Springburn Evening Times. While there have obviously been people who have taken exception to what it has had to say, I have never known anyone to take it to court, because as an organisation it is careful about what it does.

[Lord Lester of Herne Hill]

Has the noble Lord read the evidence that was given to the Joint Committee on the Draft Defamation Bill by various NGOs and regional newspapers, indicating the ways in which the existing law of libel has a very similar chilling effect on their ability to report and comment on matters of public interest?

[Lord Martin of Springburn]

I have not read the document, but now that the noble Lord has drawn it to my attention, I will. What I am talking about is the experiences that I have had of local newspapers. Of course, they are careful that they do not get involved in any litigation, in the same way as we—as people who have privilege in this Chamber—will be very careful about what we say out in the street, because we know that we would be subject to litigation.

However, the national newspapers are not concerned about being subject to litigation. Some of them are very rich organisations indeed. They know full well, when someone comes along—well, we have covered the rich and famous. Let us take a different situation. We, as a House, encourage people to go into public life. Once you get into public life, you are under the microscope. It may well be that Members of Parliament down the corridor are paid a better salary than your average journeyman or journeywoman—a blue-collar worker, I take it—but they are not paid so well that they can take on some of the people in the media who are vicious and nasty, and are willing to have a go not only at them, but also at their wives and families.

I know that this is about an amendment and therefore I had better not go on for too long about the whole thing. I will say, however, that ordinary men and women should be able to go and, if necessary, take their case to court. I take the noble Lord’s point that if there is a lower court that can handle it, that might be all the better. I will end by saying this: how ordinary can this situation be? An unemployed man in Liverpool, who was a pass-keeper in his local church—the person who does the collection plates and opens the church ready for the service—was accused in a publication of taking money from the collection plate that he put around. His difficulties were so great that he had to get the cheapest bus ticket from Liverpool to London to see a no-win no-fee lawyer to make sure that the balance was redressed. He won. Are we going to say of a man like that, who is unemployed, who was doing his duty in his church—someone who is respected not only by the congregation but by the whole community—and who has an accusation like that made against him, that we cannot allow him to get to court and put his case?