Legal Aid, Sentencing and Punishment of Offenders Bill
Lord McNally Excerpts(12 years, 7 months ago)
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Lord McNally
That this House do not insist on its Amendment 1B to which the Commons have disagreed for their Reason 1C.
1C Because it would alter the financial arrangements made by the Commons, and the Commons do not offer any further Reason, trusting that this reason may be deemed sufficient.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, Motion A is the Commons response to the amendment by the noble Lord, Lord Pannick. That amendment has prompted a great deal of high quality, thoughtful and principled debate, and I am extremely grateful to the noble Lord and other legal luminaries in this House who have given us the benefit of their expertise in exploring its effects. Although we have not been able to agree on precisely what those effects are, I thank the noble Lord for his clear argument and his commitment to the important constitutional principle of access to justice. I fully understand his motives in doing so. However, the House of Commons has given us its view on the amendment, and I ask the House to support the position that it has taken. I beg to move.
Lord Pannick
My Lords, I am very disappointed by the Government’s response to the amendment on the purpose of legal aid, approved by this House on Monday. Noble Lords will know that this amendment had its origins in a recommendation of your Lordships’ Constitution Committee, of which I am a member. The recommendation was strongly supported by many noble Lords at Second Reading and in Committee. The amendment was approved in this House on Report by a majority of 45 votes. After the other place disapproved of the amendment, this House voted again on Monday night, and your Lordships approved an amendment in similar terms, this time by a majority of 15 votes.
At no stage during this parliamentary process has the Minister or anyone else on behalf of the Government made any proposal, publicly or privately, for meeting the concerns of this House, whether by a revision of the wording of the amendments approved in this House or in any other respect. That is despite what the Minister kindly described as the very high quality debates that we have had in this place.
In my view, to ignore the views of this House in this way by bringing forward no proposal whatever to meet the concerns expressed here is, at the very lowest, most regrettable. It is all the more regrettable when the issue is of constitutional concern. I hope that these views may be shared, even by noble Lords who did not support the substance of this amendment.
The sorry state of this saga is exacerbated by the application of financial privilege to this amendment, even though it expressly stated that the allocation of financial resources was a matter for the Lord Chancellor’s discretion. This raises issues of considerable concern, which I hope will be shared on all sides of the House. Of course I recognise that financial privilege is not a matter for the Government, but I have had no indication at all that the Government made any representations in support of my contention, shared by many other noble Lords, that it would be quite inappropriate to apply financial privilege to an amendment that expressly stated that financial resources were a matter for the discretion of the Lord Chancellor.
Notwithstanding these matters, I have, with regret, come to the conclusion that I can take this amendment no further. Noble Lords have asked the other place to think again and it has done so. Although I disagree with the result, I do not think it appropriate to invite the House to press the matter further. I should add that if I were a Member of a House of which 80 per cent of Members were elected, I would certainly persist on this matter. Furthermore, given the very limited time made available in the other place for consideration of the amendments that we passed in this House, and given the general absence of scrutiny of this legislation in the other place, I suggest that it is not the procedures of this House that are urgently in need of reform.
I hope I will be permitted to make one other observation; I do so despite the genuine respect I have for the Minister. The unsatisfactory manner in which the Government have treated this amendment is, I regret, typical of the unsatisfactory manner in which the Government have proceeded on this Bill generally. The Government were defeated on this Bill on 11 occasions on Report and three times again last Monday. So large a volume of defeats occurred because the Government adopted inflexible attitudes and lost the arguments on their merits. Part 1 of the Bill has been made marginally better by the amendments, which are the product of the considerable work done on all sides of this House. The Bill would have been marginally better if this amendment had been accepted, but this remains a bad Bill and there remains in particular a bad Part 1 in it on legal aid.
The Government’s general inflexibility on the Bill, as with Amendment 1 in particular, has involved a failure adequately to assess the impact of the provisions before their implementation, a refusal to take on board the fact that many of the financial savings at which Part 1 is aimed are illusory because the denial of access to legal services will result in other financial costs to the state for disadvantaged persons who will be denied the benefits to which they are entitled, and because of a refusal to recognise that the limits on the scope of legal aid imposed by Part 1 will hit hardest the weakest and most impoverished sections of our society, often on complex questions of law such as are raised by immigration law.
The Government’s treatment of my Amendment 1 is, I regret, consistent with this inflexibility and narrow perspective. I am sorry to say that the product of the Minister’s hard work and the process followed by the Government on the Bill do not reflect well on this Government’s reputation. They have damaged access to justice, a fundamental constitutional principle, as this amendment sought to recognise. The Minister has repeatedly emphasised in this House that the Government have accepted amendments during the passage of the Bill, but those amendments have mainly been on matters that should never have been excluded from the scope of legal aid in the first place.
I pay tribute to the noble Lords, Lord Bach and Lord Beecham, for their tireless and eloquent work in exposing the defects in Part 1. I thank them, the noble and learned Lord, Lord Woolf, and the noble Lords, Lord Faulks and Lord Hart of Chilton, for adding their names to the amendment. I thank all other noble Lords who supported the amendment during the passage of the Bill.
Lord Bach
My Lords, I can be very brief. The Official Opposition share the disappointment of the noble Lord, Lord Pannick, in the Government’s response to his amendment. The Government have approached that amendment—a modest and sensible one by any standards—in a most unsatisfactory and unconvincing manner. We certainly agree with what the noble Lord had to say about financial privilege in the context of his amendment. There will be many inside and outside Parliament who will wonder for some time to come why the Government were not able to accept his amendment. We had no satisfactory reason given at any stage, and people will fear the worst as far as concerns this Government’s intentions in relation to legal aid.
I, too, would like to pay a compliment to the noble Lord, Lord Pannick, as my noble friend Lord Clinton-Davis did. He is a model of the way in which a noble Lord can assist this House when dealing with difficult and complicated legislation, and he does it from a point of view that always has justice as its base. The noble Lord made some strong strictures on the Bill and I agreed with every word he said. I will be less polite than he was. There are parts of Part 1 of the Bill—the bits that destroy social welfare law—that are not just bad but actually wicked; and I choose that word with great care. They are wicked because they set this country back from the position it was in.
The noble and learned Lord, Lord Mackay of Clashfern, has a great reputation for making sure that the system of social welfare law worked well and to the benefit of the poorest in our society. I very much regret that the Government have changed all that for no savings at all. Even if the savings were great, they would not be worth it—but there will be no savings at all. Why do I say “wicked”? Because I think it makes this country more uncivilised and it diminishes something that is very precious to all Members of this House: our legal system. As such, it diminishes our country, too.
Lord McNally
We have heard that speech several times over the past few months. I repeat that the big betrayal of the poorest in our society would be to lose control of our economy. Sometimes noble Lords opposite take the biscuit in the way they put their arguments. The noble Lords, Lord Pannick and Lord Clinton-Davis, do not have a monopoly of passion in this area. The noble Lord, Lord Howarth, has used his argument before. We have consciously changed the direction of the 1949 and subsequent Bills that were open-ended in their commitment and now have one that is specific in its commitment. That is at the heart of our resistance to the Pannick amendment. It is to mislead the House to argue that the Government have not made clear from the start the purpose of the Bill and of the Lord Chancellor. I tremble to take on a former Lord Chief Justice or a most distinguished QC, but Part 2 states:
“The Lord Chancellor may make such arrangements as the Lord Chancellor considers appropriate for the purpose of carrying out the Lord Chancellor’s function under this Part”.
It is all laid out there in Part 2. To argue that it is not will mean that we will go round in circles.
I have never used the financial privilege argument. As is well known and as we have heard from some very experienced parliamentarians, if an amendment infringes privilege, that is the only reason that will be given. If noble Lords want a major reconstruction of our constitution going back 300 years, that is all very well; but, as I said, the financial privilege of the House of Commons is not something to be lightly dealt with. Our opposition to the Pannick amendment from the beginning was that it was flawed, providing as it does a duty that is unclear in both application and effect, as well as displacing a duty that is precise, unambiguous and inherently tied to the Bill and the legally aided services available under its auspices.
I therefore ask the House to support the House of Commons in rejecting the amendment—I understand that the noble Lord, Lord Pannick, is not going to press it. This is really the time to ask the House to agree with the House of Commons.
Lord McNally
That this House do not insist on its Amendments 2B and 196B to which the Commons have disagreed for their Reason 196C.
196C Because it is appropriate for provision about evidence of abuse for the purposes of an application for civil legal services described in paragraph 10 or 11 of Part 1 of Schedule 1 to be made by regulations.
Lord McNally
My Lords, we now move to Motion B, which contains amendments in relation to domestic violence. The noble and learned Baroness, Lady Scotland, told this House on Monday that we had a choice to make. Let me reassure this House that the Government have made a clear choice in favour of victims. The Lord Chancellor made this very clear last week when he stated:
“It was never in doubt that there would be legal aid for the protection of victims of domestic violence. Domestic violence is an issue that this Government, like any Government, including the previous one, take extremely seriously”.—[Official Report, Commons, 17/4/12; col. 219.]
The debate on the Bill that we have had over the past few months has not always reflected the extent of the Government’s clear commitment to victims, so I will give some examples.
The Home Office will provide more than £28 million of stable funding until 2015 for specialist local domestic and sexual violence support services, and will provide £900,000 to support national domestic violence helplines and the stalking helpline. The Ministry of Justice will contribute towards the funding of independent advisers attached to the specialist domestic violence courts a total of more than £9 million up to the end of 2012-13. We will also allocate nearly £3 million a year for the next three years to 65 rape crisis centres and are working with the voluntary sector to develop the first phase of new rape support centres where there are gaps in provision. Domestic violence protection orders are being piloted in three police force areas. We have also announced a one-year pilot that will take place from this summer to test out a domestic violence disclosure scheme known as Clare’s law.
We have always been clear that where there is a need for a protective order to prevent victims coming to further harm, legal aid will be available regardless of means. Separately, legal aid will be available for victims of domestic violence for the secondary issue of private family law proceedings—we have always made clear that this should be the case. The issue in hand is how best to apply this principle.
I will remind the House how far the Government have moved. The evidence list has been very significantly lengthened to include protective injunctions, criminal conviction or ongoing proceedings, undertakings, police cautions, evidence of admission to a refuge, evidence from social services and GPs, referral to a multi-agency risk assessment conference and a finding of fact by the courts. We have doubled the time limit on evidence to two years, other than for convictions, where the only limit will be if the conviction is spent. This is a wide-ranging evidence set, which we are confident will meet the needs of victims in these cases.
I remind the House that our package of proposals contains two very important safeguards that will provide genuine victims with a route into legal aid even if they do not have the headline forms of evidence, the need for which may not have been fully appreciated. One is a finding of fact by the court. This is not part of the UK Border Agency list, which is often cited when assessing proposals, but it is extremely important because it means that where someone does not have the evidence we have stipulated but the courts determine that domestic violence is a relevant factor, perhaps on the basis of evidence from friends or family or a domestic violence support organisation, legal aid will be triggered. As such, even in older instances of domestic violence that go beyond the two-year limit, funding will still be available where a court has determined that it is still pertinent to the case. Of course, there remains the more generic safeguard of the exceptional funding scheme.
I submit that this package represents significant movement by the Government. I remind the House that we have now accepted the ACPO definition of domestic violence in full. We have listened and we have learnt from what noble Lords, Members of the House of Commons, and others said about our proposals. We absolutely agree that victims of domestic violence should receive legal aid. However, other than in protection cases, there needs to be evidence, and this should be covered in regulations because of the level of detail that will be required. This package is now worthy of support. The House of Commons gave its support to this, and now should we. I beg to move.
Motion B1 (as an amendment to Motion B)
Baroness Hamwee
My Lords, I hope that my noble friend, in responding to this, can help the House as to how extensive regulations can be to cover the concerns that have been expressed. I have spoken on many occasions over the years about domestic violence, and my response to a lot of what has been said, particularly comments made by the noble Baroness, Lady O’Loan, whom I respect enormously, is to think that we should be doing more with the services that we give to, mostly, women who find themselves in this situation. However, that is about services—refuges and other sorts of help—and it does not go to the evidence, so I hope that my noble friend can help expand on the answer that we have been given by the Commons: that regulations should deal with these matters.
Lord McNally
My Lords, the noble and learned Baroness, Lady Scotland, is a powerful advocate. Throughout, she has presented a case against the Government which I am sure has swayed a number of your Lordships. That is why I sometimes get a little bit exasperated. For example, the right reverend Prelate says that the wool was pulled over his eyes, but I assure him that I made every effort to make clear where we are going, how we are going there and why we are going there on this Bill. Rather like the outgoing Labour Government in their manifesto, we sought to cut legal aid. The noble and learned Baroness read out a load of statistics that suggested that this Bill might achieve that purpose. I point out that part of our approach from the very start was to try to move away from litigation to arbitration, mediation and the alternative settlement of disputes, and we will do so in the various parts of the legal system that were covered by legal aid.
I worry sometimes when I listen to the language that is used. I heard what the noble Baroness, Lady O’Loan, said, and I read in a Sunday newspaper that women who could not get into refuges would be denied legal aid—as if that was it, and they were like Oliver Twist being turned away from the workhouse door. The noble Baroness knows that that is not true.
Baroness O'Loan
My Lords, with great respect, I did not say that women who could not get into a refuge would necessarily be excluded, but it is a fact that that is one of the forms of evidence. If you do not have either that form of evidence or the other forms of evidence that are required, you will not get in.
Lord McNally
But isolating one aspect and saying that if a woman goes to a refuge and cannot get in she will not get legal aid ignores the fact that I have put before the House—the whole list of options that people can turn to. I do not think that it serves the case of women subject to domestic violence to somehow suggest that the passing of this Bill will cut them off from legal aid. The fact is that we will be spending something like £120 million a year in legal aid in this area of law. As I pointed out in my opening remarks, one thing that I am most proud of about this Government is that we have put funding into domestic violence issues in a very detailed way—in a way to which the noble Lord, Lord Blair, referred.
We are talking about a very specific area of assistance in a very specific area of law, with victims seeking legal aid for private family matters. With her skills, the noble and learned Baroness, Lady Scotland, has turned this into a debate again and again on who is in favour of helping domestic violence victims, and who is against. I think that is a clever way of putting it to the House, but it is not a fair way. We have tried and listened and moved on all these areas. Long ago, the request from the Opposition was for the ACPO definition; when the ACPO definition was conceded, it was the UK Border Agency that became the mark. The fact that we have done ACPO-plus does not seem to matter. The fact that we have brought in funding for specific aid in this area does not matter. We will always find there is another bar to clear, so that as noble Lords come in asking, “What’s this about?”, it can be said to them, “It’s about voting for legal aid for those affected by domestic violence”. But legal aid is there for those affected by domestic violence. The criteria by which they qualify have been widened. We have listened to this House and acted on its advice.
On the point raised by the noble Earl, Lord Listowel, about family legal aid in children and kinship, where private family law proceedings are being taken as an alternative to public law proceedings—for example, where it is more sensible for grandparents to care for a child rather than the parents—legal aid will be available. If there is evidence of child abuse, it will also be there. I will look at the further points the noble Earl made, and if I may I will write to him, but we believe that exceptional funding will also kick in in this area.
The noble and learned Baroness, Lady Scotland, is a powerful and sometimes an emotive advocate but it is sometimes worth cutting through the emotion, and I ask the House to do that—to cut through the threat that this will cause death—and look at the facts. The fact is that this Government have listened and extended the criteria for this form of legal aid beyond what the House first asked for. This Government have put real money into real, pioneering services in terms of this terrible scourge of domestic violence. The Commons has considered this, and was right to return it to your Lordships. I believe this is the moment to ask your Lordships to accept the view of the Commons. I beg to move.
Baroness Scotland of Asthal
My Lords, perhaps I might say to the Minister straight away that I hope it has been clear from everything I have said that I have always believed, and still believe, that all sides of this House—and, I hope, of the other place—are of one mind in the approach that they take towards helping domestic violence victims. Nothing I have said from this Dispatch Box has undermined that. What I have been clear about is that this Government have been wrong not to widen the gateway. With respect, we have consistently argued about the time limit and the evidential criteria, right the way through, and we have not changed.
I also say gently to the Minister that in looking at reducing litigation, the one happy thing about domestic proceedings—both in private family law and in relation to domestic violence cases specifically—is that family lawyers worth their salt always appreciate that if a family has got to the stage of having to litigate, they are dealing with damage limitation and not winning or losing. That is why only about 5 per cent of the cases ever go right the way through into contested matters, so in this area of law we are not looking at cases running away and people litigating when it is unnecessary. The Government are continuing the approach that the previous Government took in advocating mediation whenever it is proper.
However, we have a difference of view. I thank the noble Lord very much for his compliments about my advocacy, but I have to tell him that this is not about advocacy. This is about truth and fact, and if I do nothing else I will always stand side by side with the victims of abuse. I believe that is where the Government should be too.
Lord McNally
That this House do not insist on its Amendment 31 and do agree with the Commons in their Amendment 31C.
“Sections 43 and 45 and diffuse mesothelioma proceedings
(1) Sections 43 and 45 may not be brought into force in relation to proceedings relating to a claim for damages in respect of diffuse mesothelioma until the Lord Chancellor has—
(a) carried out a review of the likely effect of those sections in relation to such proceedings, and
(b) published a report of the conclusions of the review.
(2) In this section “diffuse mesothelioma” has the same meaning as in the Pneumoconiosis etc (Workers’ Compensation) Act 1979.”
Lord McNally
My Lords, I would like to start by paying a sincere tribute to the noble Lord, Lord Alton of Liverpool, for his vital role in pursuing his cause conscientiously and relentlessly. I know how conscientious and relentless he can be when he gets hold of a campaign, this time in the cause of mesothelioma victims and their families. I know others have followed his lead, but, as he pointed out, when this Bill first came before the House, there was no mention of this cause and he has, quite literally, put it on the front pages. He can take great personal credit for helping us achieve the position we have reached today and on which I hope all sides can agree.
In the past few days, we have had the opportunity to debate at some length issues in relation to the plight of sufferers of this terrible disease. I and ministerial colleagues have also held a number of meetings with the noble Lord, Lord Alton, and others, including my noble friend Lord Freud, which have been extremely productive. I am grateful for the general recognition of the value of what the Government now propose in respect of a pause in commencement of the reforms in Part 2 in relation to mesothelioma.
Let me be clear about what we are doing. The Jackson reforms in Part 2 of the Bill are due to come into effect in April next year. They will continue to come into effect then, except in so far as they affect mesothelioma claims. Mesothelioma claims will therefore continue for the time being with the current arrangements of recoverable success fees and insurance premiums. As I informed your Lordships on Monday, we are working hard to agree an acceptable scheme to help victims who are unable to trace their employer’s insurers; as I said, I hope that we will be in a position to make an announcement before the Summer Recess. The arrangements for any new process will obviously take some time to bring forward. We will review the position in due course and publish the findings of that review. Only after we have done so, and we are satisfied that the time is right to implement the provisions in Part 2 in relation to mesothelioma, will we do so.
Amid general approval in the House of Commons yesterday, one issue was raised which related to the terms of the review that we have committed to undertake. I hope that your Lordships will understand that I cannot say much more at this early stage about the precise terms of that review, but it will be a proper and appropriate one. My right honourable friend the Lord Chancellor will publish the results, and we will not commence our reforms as far as mesothelioma is concerned until we are satisfied that a structure exists which enables swift and fair compensation for victims and their families.
The strength of feeling in this debate has been palpable and genuine. I am glad that we have been able to meet some of the concerns expressed by tabling the amendment that we have. I beg to move.
Lord Alton of Liverpool
My Lords, I first thank the Minister for the kind remarks at the outset of his speech. I suspected that he might have meant that I have been a bit of a pain in the neck on this subject.
Lord Alton of Liverpool
He put it rather more elegantly. The Minister having had a tough time during proceedings on Part 1 this afternoon, he will be glad to know that I can be very warm in what I am about to say to him, and also to the noble Lord, Lord Bach, and my good friend, the noble Lord, Lord Avebury, for the encouragement and support that they have given me as I have taken this amendment forward at every stage of the Bill.
It puts me in mind of a passage from EM Forster’s book, Two Cheers for Democracy. He said that only “love, the beloved republic” deserved three cheers, but that sometimes the cantankerous, difficult, awkward Member of Parliament who sees some minor injustice and is able to get it right is the justification for our system. I suspect that that is something that unites us on all sides of this House and, indeed, in another place as well. On that note, the noble Lord, Lord Cormack, is about to intervene.
Lord Bach
My Lords, I begin by congratulating the Minister on being a member of the luckiest Government there can ever have been in the history of Parliament. The odds against drawing three votes on crucial amendments, two on Report and one at this stage of proceedings so that the Government win the vote, as it were, must be immense. He has managed to do that and I congratulate him on it. I just hope for his sake and the Government’s that their luck does not begin to run out.
On this issue, the Minister also deserves some congratulation if, as I suspect he did, he played a part in persuading his fellow Ministers, and the right honourable and learned gentleman the Lord Chancellor, that there had to be some give or concession. If he played a part in that, I congratulate him and think that he has served the House well in that regard.
I, too, want to compliment those outside the House. As the noble Lord, Lord Alton, stressed, the co-ordinator of the Greater Manchester Asbestos Victims Support Group, Mr Tony Whitston; Mr John Flanagan, the Merseyside equivalent of that organisation; and many others outside have worked incredibly hard to make sure that people who do not always have a very loud voice have had a say in Parliament—or rather in this House of Parliament. It is absolutely clear that when these matters were raised in the House of Commons when this Bill was first taken through, they were completely dismissed. It was only when the Bill came to the House of Lords that the noble Lord, Lord Alton, with his usual courage and zeal, managed to raise these matters, with the help of the noble Lords, Lord Avebury and Lord Wigley. Eventually, at the very last minute, he got a concession from the Government.
I pay tribute, too, not only to those I have mentioned but to the noble Baroness, Lady Doocey, the noble Lord, Lord Avebury, and the Conservatives who abstained in the vote on Monday night. Had they not played the part that they did, the amendment in the name of the noble Lord, Lord Alton, would not have gone through. I remind the House that it won by nine votes. If it had been lost there would have been no review or concession; there would have just been rejoicing in the Ministry of Justice. It was as close as that. It is because of the bravery of those who were prepared to abstain or vote against their own Government that we are here today congratulating the Government, quite rightly I am sure, on their concession.
Seriously, it is a good concession and we know, or trust, that the review will be genuine. We look forward to playing our part in making sure that the sufferers of this terrible disease get a fair deal when the Government have had their review. Not only the noble Lord, Lord Alton, but all of us will be watching very closely to see how developments move forward in this very vexed field. As for this House, for once it can congratulate itself.
Lord McNally
I think that if the noble Lord were to ask Señor Torres, he would find that a draw is also sometimes a victory. He is the Chelsea centre forward. I know that the noble Lord, Lord Bach, is a Leicester City supporter and does not mix in that kind of high-class company.
I was very grateful for the comments at the beginning of the speech of the noble Lord. I notice that he quickly tailed off towards the end to start initiating rebellions, and so on. I have continually made the point that I am well aware that any Minister is a bird of passage, but I have always been a lover of this place—I mean the whole Parliament building. I sometimes say when I show visitors around that I never come into this place without a sense of awe for what it stands for and what it does. Anyone who stands at this Dispatch Box takes the buffeting and advice and has to work through very much with the help of the awkward squad. The only problem with the awkward squad is that when one campaign is over it immediately starts on another. I noticed from the remarks of the noble Lords, Lord Avebury and Lord Wigley and, indeed, the noble Lord, Lord Alton, himself that further campaigns will be on the way.
Leveson Inquiry
Lord McNally Excerpts(12 years, 7 months ago)
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The Minister of State, Ministry of Justice (Lord McNally)
Perhaps we may hear from the noble Lord, Lord Puttnam, first.
House of Lords: Reform
Lord McNally Excerpts(12 years, 7 months ago)
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Lord Kakkar
My Lords, does characterising House of Lords reform in exchange for House of Commons boundary changes as coalition civility risk an erosion of confidence in democracy, as the people of our country are coming to terms with the spectacle of one party in coalition attempting better to control the House of Commons in exchange for the other party trying to achieve control of a future elected second Chamber, all being pushed through using the Parliament Act in what would amount to a monumental gerrymander?
Lord McNally
That is a rather harsh judgment on the Government. It is right that the case for boundary reform and House of Lords reform are judged on their merits. The Government put them through this House for scrutiny separately. They are not interlinked but are part of the Government’s and the coalition’s overall commitment to constitutional reform.
Lord Hunt of Kings Heath
My Lords, the noble Lord has said that the Government will carefully consider the recommendations of the Joint Select Committee. He may have observed that the committee did not achieve exact unanimity in its conclusions. But the one issue on which all members seem to be agreed is that Clause 2 of the Bill will not do. Will the noble Lord say what the Government’s response will be? Will he also respond to the evidence given by the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Pannick, in relation to the Parliament Act 1911, in which they say it is very clear that that Act was introduced to govern the relationship between an elected and an unelected House?
Lord McNally
My Lords, less than 24 hours after the publication of a carefully considered report, it would be impudent of me to start pronouncing on some of these issues. As to the opinions of the noble Lord and the noble and learned Lord on the 1911 Act, the strength and the powers of the 1911 and 1949 Parliament Acts were recently tested in court.
Lord Tyler
My Lords, can my noble friend tell the House whether the Government have made an assessment of the risks of not proceeding with legislation for the reform of this House? For example, does he appreciate that if each incoming Prime Minister wished to rebalance the party representation in this House, we would soon exceed 1,000 Members? Does he also recognise that the public at the moment are more in favour of abolition of your Lordships’ House—by a very considerable margin—than retaining the all-appointed element?
Lord McNally
My Lords, the best thing this House can do for its own reputation is now to deal with the issue of Lords reform, aided and assisted by the report we have just received and by our normal process of debate. I do not think the country will be satisfied with a House of Lords that seems self-confidently smug about its own rectitude—and that groan of noble Lords will, I suspect, only confirm the country’s opinion of that. Let us proceed with dignity and responsibility. If we allow the status quo to develop—which I do not want to see because I love this House of Lords—the House will drift into public contempt because of its lack of reform.
Lord Soley
My Lords, does the Minister agree that if we move to a situation where a part—perhaps 80 per cent—of this House is elected, we will be moving down the road of a written constitution? Is that his intention?
Lord McNally
I have no intention of going down the road to a written constitution. This country has probably for 300 years been extremely successful in adjusting its constitution to the age in which it is there to serve the people. Now, in the 21st century, the time has come for the House of Lords to make a similar adjustment.
Lord Cormack
Has my noble friend had a chance to read the alternative, unanimous report produced by 12 members of a committee of 25? Will he ensure that all Ministers see it, read it, mark it, learn and inwardly digest it, because it offers a sensible way forward?
Lord McNally
I have not yet read that report. Yesterday I was fully engaged in the fruitful debates on the Legal Aid, Sentencing and Punishment of Offenders Bill. However, I can assure my noble friend that I have a box by the side of my desk marked “weekend reading” which has in it that report and the main report. I look forward to reading both over the weekend. I cannot compel other Ministers as to their reading but I hope that all Members will take this issue forward with a sense of responsibility and a sense of the dignity of this House.
Baroness Hollis of Heigham
My Lords, in response to the supplementary question from the noble Lord, Lord Kakkar, the Minister said that the AV and boundary legislation requiring a second vote by the House of Commons and passage of the House of Lords Reform Bill were two entirely separate and distinct issues. Does this mean that the noble Lord, Lord McNally, publicly disowns the comments freely made by many of his Lib Dem colleagues that the two of them go together and that without the one there would not be the other?
Lord McNally
No. Every time I open my newspaper, there is some new, exciting story about some Minister or somebody in the other place taking a position one way or the other. What I said was that those two Bills had been presented to Parliament quite properly, and debated separately. They stand on their merits. However, over the next few months, we will have to get used to all kinds of scaremongering, rumours and the rest. That is why it is important that we all keep calm—and noble Lords will know how good I am at keeping calm.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord McNally Excerpts(12 years, 7 months ago)
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Lord McNally
That this House do not insist on its Amendment 1 to which the Commons have disagreed for their Reason 1A.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, today the House has the opportunity to consider the Commons reasons in response to the amendments passed by this House during its consideration of this Bill. We have engaged in complex, informed and sometimes passionate debate on a wide range of issues that are of fundamental importance. In so doing, this House has exercised its rights and responsibility as a revising and advisory Chamber. I would hope that, in turn, the Government and the House of Commons have responded attentively and constructively to the opinions of this House. In addition, my ministerial colleagues and I have had numerous meetings with individual Peers and interest groups. We have listened, and we have amended.
Before I deal with the details of Motion A, I would like to remind the House of some of the steps that we have taken to respond to its concerns and to make this a better Bill. From the start, our guiding principles have been to decide what kinds of case need public funding and what alternative routes are suitable for others. It is not all about cost savings, although they are clearly a vital factor; it is also about what kind of justice system we want for the future.
Successive Governments have concluded that the provision of legal aid in the current structure is too broadly drawn, and it encourages court-based litigation and the engagement of professional lawyers as a first, rather than a last, resort. With that in mind, the test that the Government have applied to amendments in both Houses is whether they strengthen or weaken the principles behind the Bill—what I have described many times as its central architecture. We have accepted amendments where they truly improve the Bill. The House has done much valuable work in correcting omissions and ensuring that the most serious cases continue to receive public funding, and I am grateful for the commitment that this House has put into the Bill.
As I have said, the Government have listened and have moved in important areas. We have accepted the arguments put forward by, among others, the noble and learned Baroness, Lady Scotland, and adopted the definition of domestic violence used by ACPO. We have widened the forms of evidence of domestic violence that will be acceptable to secure legal aid funding in private law cases, and doubled the time limit within which such evidence may be presented. We have removed the power to means-test suspects in police custody, and retained legal aid funding for cases involving human trafficking and domestic child abduction.
We have agreed that legal advice and assistance should be made available to welfare benefit appellants whose cases are heard by the Upper Tribunal, the Court of Appeal or the Supreme Court on points of law. We have committed to doing further work to see how we might provide funding for those appearing before the First-tier Tribunal whose case also turns on a point of law, and have retained legal aid for babies who are victims of clinical negligence. We have introduced further measures to put beyond doubt the extent of independence from Ministers enjoyed by the director of legal aid casework.
Many concerns have been listened to and many amendments made, but we have not been able to satisfy every demand. We have now reached the stage where the Government ask both Houses to disagree with amendments that, in our opinion, would undermine the rationale and principles underlying the Bill. The Government cannot accept amendments that use scarce resources on lower priority needs where other funding is available, where conflicts could be resolved by other means or where people can reasonably make provisions themselves. The Government have demonstrated their commitment to the not-for-profit sector, which does such invaluable work, by providing £20 million a year for the next two years, in addition to the £16.8 million we have allocated for this year. However, in a time of austerity, we must make responsible choices about spending public money. We must be rigorous in our decisions about allocating resources. We cannot rely on unrealistic thinking about alternative methods for achieving savings.
We have rehearsed the arguments at great length and in great depth. We are about to reflect on the House of Commons’ opinion of your Lordships’ amendments, and I will be asking the House to agree with the reasons of the House of Commons. I hope that this House will give good weight to that opinion. As I have said, we have listened and responded to the opinions of this House, which now has a responsibility to listen to the clear and settled view of the House of Commons.
Lord Higgins
If the noble Lord will allow me, he is saying that great attention has been given to the various issues that have been raised, for example by the noble Lord, Lord Alton. Is it not the case, however, that on some of these issues there was initially no debate in the Commons at all because it was programmed, and that when the matter returned from this House to the other place the Lords amendments were also programmed—that is, guillotined—and the debate was not brought to a conclusion in the usual way?
Lord McNally
My Lords, the debates came to a conclusion in the usual way. I must say that for a parliamentarian of the noble Lord’s experience, who must have carried through quite a few Bills himself on timetables and the rest—
Lord Higgins
When I was in the other place, we had a very sensible system. If the matter was being filibustered or was urgent, we had a half-day debate followed by a vote on whether there should be a guillotine. In total contrast, when I was carrying through legislation we certainly did not have the system of programming from which we are now suffering.
Lord McNally
I will leave it to the Opposition to explain fully the introductions that they made to timetabling,
Lord Cormack
I am most grateful for that flattering giving way. I point out to my noble friend that it was indeed a Labour Government who brought in automatic timetabling, but before the coalition Government were elected Sir George Young and others gave an assurance that any Conservative Government—or presumably any Government led by Conservatives—would not have timetabling. We still have it.
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 Alton of Liverpool
My Lords, before leaving that point, it was the Minister who raised the question of procedure and who said that these matters had been thoroughly dealt with in another place. The fact remains that the issue of mesothelioma, which was quite properly raised by the Minister’s noble friend Lord Higgins, was not debated on Second Reading, in Committee or on Report at all in another place. Had it not been for the amendment that your Lordships passed, it would not have been debated at all in another place. To give it only one hour at that stage and for it again to be timetabled is indicative of the need to reform not this place but, in light of what we heard earlier, the other place.
Lord McNally
The four interventions, interestingly, have all come from ex-Members of the other place.
Motion A and Amendment 1 in the name of the noble Lord, Lord Pannick, described by him on Report as a purpose clause, reflect that which features in the Access to Justice Act 1999. Amendment 1 would place a duty on the Lord Chancellor to secure within the resources made available and in accordance with Part 1 of the Bill that individuals have access to legal services that effectively meet their needs.
Despite what was said in the House of Commons by the shadow Justice Secretary, the basis for the Government’s opposition to this amendment has been clearly explained in this House. While I am grateful to the noble Lord for this new amendment, I am afraid that it has not addressed the issues with the original Amendment 1, and the Government oppose the new amendment on the same substantive grounds as we opposed the original construction. In addition to those issues which I will turn to in a moment, Amendment 1B would remove the duty in Clause 1(1) for the Lord Chancellor to secure that legal aid is made available in accordance with Part 1 of the Bill.
On Report I spoke at length about the technical issues with incorporating provisions of the Access to Justice Bill, where only excluded services are specified, to this Bill, where included services are specified. The Bill before us today, if enacted, will represent Parliament’s clear intention as to which services are to be capable of being made available to people by way of publicly funded legal aid services, and therefore to meet their needs in that regard. Any benefit of such a provision akin to that in Section 4(1) of the Access to Justice Act is simply not present in the context of this Bill. Further, both amendments conflate access to justice as a constitutional principle with the provision of legal aid. Access to justice means access to the courts, and does not mean access to a publicly funded lawyer whenever one is sought.
A further duty to provide unspecified legal services must also, in part, serve to muddy the waters and create uncertainty in respect of the services which might be funded under the Bill. It was said by the noble Lord when moving his original amendment that, as a result of the qualifications in it, the amendment,
“does not impose an independent duty which trumps the specific contents of Part 1”,
and that it,
“does not require any further expenditure by the Government”.—[Official Report, 5/3/12; col. 1559.]
I am afraid that we cannot agree with this analysis. By virtue of introducing a new duty on the Lord Chancellor, a potential cause of action must be created where such a duty is said to have not been met. Therefore, by definition, the Lord Chancellor must be at risk of being compelled to provide additional, and as yet unidentified, services to meet that duty or the duty would be a redundant one. This risk is heightened by the fact that both amendments refer to legal services, which are far broader than the legally aided services that the Bill is intended to provide. I acknowledge that this is the first time for the House to hear that observation. Such a scenario would entirely frustrate the Government’s intention of bringing certainty and clarity to the range of services that can be funded under legal aid. The amendment also has the potential to create a great deal of unhelpful and unnecessary litigation as the boundaries of that duty are tested in the administrative court.
The Bill’s purpose is clear, as are the Lord Chancellor’s duties under it. Therefore, I ask that this House does not insist on its Amendment 1. The Commons has decided against it and in my opinion the amendment in lieu from the noble Lord, Lord Pannick, will elicit the same response. Therefore, I urge the noble Lord to withdraw his Motion.
Motion A1 (as an amendment to Motion A)
Lord Lester of Herne Hill
My Lords, I will explain briefly why I do not agree with the amendment. I quite agree with those who have said that it is inconceivable that it will give rise to effective judicial review because it imposes no legally enforceable duty and it is therefore inconceivable that anyone could threaten the Government by way of judicial review. However, my problem with it is that it imposes no legal duty and then does nothing else.
The amendment begins:
“The Lord Chancellor shall exercise his powers under this Part with a view to securing that individuals have access to legal services—”.
Pausing there, it is of course already the Lord Chancellor’s duty to do so under the Human Rights Act, as I pointed out in a brief question to my noble friend and colleague Lord Pannick. Under that Act, the Lord Chancellor has to act in a way that is compatible with Article 6 of the convention, which secures a right of access to justice. Existing law and Section 3 of the Human Rights Act require that all legislation, including this Bill, must be read and given effect in so far as it is possible to do so compatibly with the Human Rights Act. That first part of the amendment is already fully taken care of by that Act. In so far as the rule of law is in play, it is also taken care of by the Constitutional Reform Act.
The amendment goes on:
“that effectively meet their needs, subject to the resources which the Lord Chancellor decides, in his discretion, to make available, and subject to the provisions of this Part”.
That completely swallows up any suggestion that this is some new, important principle. I am afraid it is written in water and I do not approve of putting anything in the statute that is simply an unenforceable duty written in water.
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.
Lord McNally
My Lords, we can go round in circles. The qualification of financial privilege is a matter for the Clerks of the House of Commons. Former Mr Speaker Martin, when we last discussed this matter at the time of the Welfare Reform Bill, made very clear where the line is drawn.
I might not have had as long and continuous a place in the House of Commons as my noble friend but I have been around this place for the past 40 years, and one of the reasons why I teased some former Members of Parliament is that for the past 40 years, under various Administrations, I have heard these debates about the paucity of the way in which the House of Commons discussed a matter and the brutality with which the guillotine was used. That may well be one day—perhaps soon—the reason for a proper parliamentary reform Bill that takes in both Lords and Commons, but it is not an excuse for assuming that somehow, on this particular Bill and this particular issue, the Government are using chicanery or arguments that are not well understood in the relationship between these two Houses.
I also point out to the House that the one thing I have not done, and certainly did not do in my remarks at Report stage, Third Reading or today, is to hide behind financial privilege. I do not think that the Pannick amendment stands up to scrutiny and I was grateful for the contribution of a number of my noble friends in that. Part 1 of the Bill, the Lord Chancellor’s functions, states:
“The Lord Chancellor must secure that legal aid is made available in accordance with this Part”.
This seems to me a very clear statement of intent. The difference between the Act being replaced and this Bill is that the Act being replaced is an open-ended Act. It does not restrict where legal aid would apply. The whole point of the Bill—what makes it different from the previous Act—is that it limits, specifies and draws attention to where legal aid will apply and what will be out of scope. That is the danger of the Pannick amendment—that in its general good will to all men approach, it leaves the idea that things may be added. Indeed, both the noble Lord, Lord Howarth, and to a certain extent the noble Lord, Lord Pannick, said that when better days are here this whole circumstance may change. It may change, but not under a vaguely-worded Part 1 of the Bill. We have, in the course of the Bill, accepted an amendment from my noble friends that removed the ratchet and left a regulator in terms of what can be put back into the Bill, but that will be a matter for reflection and discussion in the future.
What worries me is that all the learned Lords who have spoken may be absolutely right, and if they are right we will all live happily ever after. But if they are wrong it is a future Lord Chancellor and the taxpayer who will have to pick up the consequences. Therefore, I think at this stage in the passage of the Bill, the Lord Chancellor of the day and the Government of the day see dangers in what, if it is anything, is either meaningless or has a meaning that has implications for the future; and if it does have implications for the future, in a Bill structured in this way, I think we are right to resist it.
I hope noble Lords will agree that the Lord Chancellor of the day and the Government of the day could and should have a sense of responsibility and care for the central architecture of the Bill, which we keep on talking about. The Bill is not open-ended but specific and the Pannick amendment is not something that should show on the face of the Bill. I hope that noble Lords reflecting on this, and the fact that it has been well considered and well debated and that I have not tried to hide behind financial privilege in addressing your Lordships either previously or today, will support the Government and the Commons in their amendment.
Lord Pannick
I am grateful to all noble Lords who have spoken in this full debate. I am grateful to the Minister for his consideration of the amendment and for meeting me last week to discuss the issues raised. The other place rejected the amendment and the Minister invites the House to reject the amendment because of a concern or belief that it would impose further obligations on the Government. In this House, a number of noble Lords objected to the amendment on the precisely opposite ground that it would impose no obligations on the Government. Perhaps I may briefly reply to both those concerns.
First, on the concern that the amendment would impose further obligations and would somehow undermine the architecture of the Bill, to use the Minister’s words, with great respect I have enormous difficulty in understanding those concerns. I could understand the concern if the amendment had any adverse financial consequences, but it plainly does not. It says,
“subject to the resources which the Lord Chancellor decides, in his discretion, to make available, and subject to the provisions of this Part”.
I am very grateful to the noble Lords, Lord Faulks, Lord Carlile of Berriew and Lord Phillips of Sudbury, for their views, which I share, that it is impossible to understand how in the real world this amendment could result in litigation that had any prospect of getting off the ground—certainly any more so than the original Clause 1. So the only possible objection to the amendment is that it does not impose further obligations on the Government and that it does nothing. That was the point made by the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Lester of Herne Hill, and was a concern expressed by the noble Lord, Lord Phillips of Sudbury. I say to those noble Lords and to the House, with great respect, that that is to misunderstand the purpose of an objects clause. The purpose of the amendment is to ensure that the Bill recognises that we are cutting back on legal aid, most regrettably, because of current financial stringency, but that the principle of securing that individuals have access to legal services that effectively meet their needs, which has been part of our law since 1949, has not been forgotten. It is still the purpose of legal aid and, when the economy improves, that is the principle by which Ministers and Parliament should assess—
Lord McNally
I hate to stop the noble Lord’s flow, but he has just put his finger on it. This is not an interim, pro tem measure, waiting for a return to the 1949 Act. Although, as I mentioned in my opening remarks, financial considerations of course have played a part, the main intention of the Bill is to restructure, reshape and re-point the direction of legal aid away from the open-ended nature of the 1949 Act and successive Acts and put it into a closed system. It is that closed system that the noble Lord’s amendment, with great skill aforethought, plans to undermine. That is why we are resisting it.
Lord Pannick
I entirely accept the Minister’s point that the Bill seeks to identify those subjects for which legal aid should be made available. But the Minister will recognise that, in the anxious debates that we have had through the progress of the Bill, we have considered a number of sensitive topics in respect of which the Minister’s argument has been that we would like to provide legal aid for this subject but, regrettably, we cannot do so because we do not have the money under the current financial stringency. The House has listened to that debate and accepted, with a heavy heart, that in relation to many of the subjects in respect of which legal aid has previously been made available it will regrettably no longer be made available. Having accepted that the Government must have their way for financial reasons on many of those very difficult areas, I believe that it is absolutely vital that we retain in this Bill a statement of the principle of why legal aid is made available so that when the economy improves—
Lord Pannick
I have given way to the noble Lord before. I anticipate that the House is anxious to move on. The House has heard the debate in relation to this matter. I say to the House that that part of the 27 minutes which the other place devoted—I am not giving way—
Lord Pannick
The House wants to move on. That part of the 27 minutes which the other place devoted to consideration of this amendment shows that the purpose and effect of this amendment were not understood. I think that we should ask the other place to think again on this important matter, and I wish to test the opinion of the House.
Lord McNally
That this House do not insist on its Amendments 2, 194 and 196 to which the Commons have disagreed for their Reasons 2A, 194A and 196A, do not insist on its Amendment 192 and do agree with the Commons in their Amendments 193A, 219A and 220A.
Lord McNally
My Lords, Motion B contains amendments in relation to domestic violence. As I have previously made clear, the Government take domestic violence extremely seriously. We fund a range of programmes to help deal with and prevent this crime, many of which—I am happy to acknowledge—were put in place by the previous Administration. As the noble and learned Baroness, Lady Scotland, has previously made clear, there is nothing between the Government and the Opposition in principle here.
This was reflected in our initial proposals. First, legal aid to obtain a protective injunction against domestic violence should remain exactly as it is at present, so that those who need legal aid to protect themselves can get it regardless of their means. Secondly, while we have removed most of private family law from the scope of legal aid in favour of funding mediation and less adversarial proceedings, an important exception should be made for victims of domestic violence. This was because such victims could be intimidated during court proceedings about, for example, child contact or maintenance issues. Again, it is fair to say that these principles were welcomed.
There has been considerable debate in both this House and the House of Commons over how to decide who qualifies as a victim of domestic violence for the purpose of legal aid for private law family proceedings. Therefore, there has been much scrutiny of the definition of domestic violence used in the Bill, the types of evidence that would prove that someone was a victim and the length of time for which these should be valid. The contributions across the House have been informed, sometimes passionate and extremely helpful. The Government have listened and moved on several key points.
As set out in government Amendments 193A, 219A and 220A, we have accepted the ACPO definition of domestic violence in full. The Bill now defines domestic violence as,
“any incident of threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other”.
This has been universally welcomed. We have also undertaken to widen the list of evidence, which will be reflected in regulations, to include: an undertaking given to a court by the other party in lieu of a protective order or injunction against that party for the protection of the applicant, and where there is no equivalent undertaking given by the applicant; a police caution for a domestic violence offence by the other party against the applicant; appropriate evidence of admission to a domestic violence refuge; appropriate evidence from a social services department confirming provision of services to the victim in relation to alleged domestic violence; and appropriate evidence from GPs or other medical professionals.
These are in addition to those forms of evidence already accepted by the Government, which are: that a non-molestation order, occupation order, forced marriage protection order or other protective injunction against the other party for the protection of the applicant is either in place or has been made in the past 12 months; a criminal conviction for a domestic violence offence by the other party against the applicant; ongoing criminal proceedings for a domestic violence offence by the other party against the applicant; evidence from a multi-agency risk assessment conference of the applicant having been referred as being at risk of domestic violence from the other party and action recommended; and a finding of fact by the court of domestic violence by the other party against the applicant.
On time limits, we intend to double the previously announced time limit from 12 months to two years, save in respect of a conviction for a domestic violence offence, where the only limit is that the conviction should not be a spent one. We think that some sort of time limit will still be needed—we are in the business of reducing rather than encouraging litigation—but we think that two years will make sure that those who need help get it.
I know that the noble and learned Baroness, Lady Scotland, continues to have concerns and has tabled amendments in lieu of her original amendments which ask for our list of evidence to be exactly the same as the list of evidence used by the UK Border Agency in assessing domestic violence immigration applications. I know from my conversations with her that she is worried about consistency and about genuine victims missing out. I have enormous respect for the noble and learned Baroness but I really do think that her fears are now misplaced, given how far we have moved.
On consistency with the border agency, we need to understand that the decisions being made are different, as is the context in which they are made. When the border agency takes a decision on whether domestic violence has occurred, it is a decision on the case itself. This would be analogous with a court looking at an application for a domestic violence protection order and a judge deciding whether domestic violence had occurred, not with a legal aid decision about a private family law case.
We are talking here about a secondary issue—in this case, legal aid—that arises indirectly from a person being a victim of domestic violence, not a decision that directly relates to someone’s protection, such as in an immigration context or an injunction application. What is needed for a grant of legal aid is a set of clear rules, not the kind of case-by-case nuance that is needed to decide whether someone requires immediate direct protection.
Other government departments have to grapple with similar issues when it comes to these secondary issues. They do not use the border agency list but take a judgment on what works in their particular context. One example is the rules for jobseeker’s allowance for victims of domestic violence, over which individual local authorities have discretion.
I should also point out that the noble and learned Baroness has never objected to a very important addition that we have made to the border agency list—namely, “a finding of fact” by a court that domestic violence is a relevant feature. This partly highlights the different context that we are dealing with; such a finding of fact is much less likely to arise in an immigration context, but it also provides a very important safeguard in these cases. By definition in this context, if you are seeking legal aid, it is because there is the prospect of family proceedings. If you cannot show any of the evidence of domestic violence that we have asked for but the court decides, perhaps on the basis of police call-outs or other types of testimony, that domestic violence is a feature in the case, then legal aid will be available. This is also relevant when thinking about the time limits. Where a case relates to older incidents of domestic violence but a court considers that the matter is still relevant and it makes a finding of fact, legal aid will be triggered.
When I spoke last week with the noble and learned Baroness, she suggested that we would be missing a large number of victims with our time limit because of how long victims take to come forward. She mentioned that the average time for a victim coming forward was five and a half years. However, it does not follow, as she suggested, that a two-year time limit for evidence cuts out nearly two-thirds of people as a result, because the crucial point is that the evidence will be generated when people come forward—that is, when they seek an injunction, turn to their GP or decide to go to a refuge. It is when the evidence arises, not when the abuse occurs, that indicates the start of the time limit.
I stress again how far the Government have moved on this issue. We now have a system which will genuinely and generally ensure that victims of abuse get legal aid in these private family cases. We have accepted the ACPO definition of domestic violence—indeed, we have gone beyond that. We have significantly expanded the range of acceptable evidence and doubled the time limit. There is one in-built safety mechanism in the form of “finding of fact” hearings, and of course there is a second safety mechanism in the form of exceptional funding, for the more unusual cases. So I think we have now got this right. I want to pay tribute to those across the House, not least to the noble and learned Baroness, Lady Scotland—I know her well and I know her deep concern on this issue.
For the sake of completeness, I should add that we cannot accept that the evidential requirements should be in the Bill. Legislation of course needs to be precisely drafted, and because of the level of detail required, the evidential requirements are much better left to regulations, subject to the affirmative procedure, rather than primary legislation.
Sometimes at this Dispatch Box one has to make the government case with a heavy heart. I have looked at this from where we started, where we have moved to, and what we now cover in this very important area. I am proud of what the Government have done in carrying on the broader work against this evil crime, but I am also proud of what we have now finished with in terms of a package to help in this particular case. I hope the House will give us its support. I beg to move.
Motion B1 (as an amendment to Motion B)
Lord McNally
I have never doubted that. It is just that I keep getting nudged when I call someone learned and someone whispers in my ear that they are not.
Baroness Scotland of Asthal
Noble Lords are learned if they are in the Supreme Court or have been a Law Officer. Others, regrettably, may be learned in fact but are not learned in name.
Lord McNally
That helps me a great deal. I shall never refer to the noble Lord, Lord Bach, as learned again.
Lord McNally
My Lords, I have stated as clearly as I can why the Government and the Commons have put forward their reasons. The emotional span of this debate is sometimes extended to question whether we are in favour of victims and their children. The answer is that yes, we are in favour of them. As I said in my opening remarks, this debate is about how and whether and within which ambit we provide legal aid in private law cases. It is difficult to go beyond that into individual cases, which have been cited in debate at every stage. In many of these cases, the suspicion is that they would qualify either by application for an injunction or by a finding of fact by the court. The latter is extremely important in the additional list that we have put forward to qualify people for legal aid.
As I said in my opening remarks, when addressing an issue such as this one, and within the constraints under which the Government are operating, lines have to be drawn. It is legitimate for the Opposition to argue that that line has been drawn in the wrong place or that a time limit has been put in the wrong place. In the end, however, Governments have to make decisions—and we have made decisions. As I said, I hope that the House will look at the decisions we have made and see that we have listened and acted in a way that puts us on the side of victims and their children and that, in practice, those who face the problem of domestic violence and who want to obtain legal aid for decisions in private family law cases will find that the concessions we have made and the rules and the guidelines we have laid down will give the women and children—I accept that there may be others, but mainly women and children—who are affected by this scourge access to legal aid. I therefore ask the House to support Motion B.
Baroness Scotland of Asthal
I am disappointed that the Minister takes that view. As he will know from our previous debates, our assessment is that as a result of the changes that the Government are proposing, 54.4 per cent of victims currently obtaining legal aid and assistance for family proceedings will not be able to obtain such help and assistance in future. Although I absolutely accept that the Government intend, or wish, to be supportive, these provisions demonstrate the reverse—that they will not be supportive. I therefore wish to test the opinion of the House.
Lord McNally
That this House do not insist on its Amendments 3 and 4 and do agree with the Commons in their Amendments 4A and 4B.
Lord McNally
My Lords, we now turn to Motion C and to Amendments 3 and 4, tabled by the noble and learned Lord, Lord Pannick. The noble Lord is not learned, is he?
Lord McNally
The noble Lord’s amendments concern the independence of the director of legal aid casework. I am confident that we all share the sentiment that the Lord Chancellor should have no involvement in a decision about legal aid funding in an individual case. However, I share the view of the House of Commons that this amendment has undesirable and unforeseen consequences and that it is possible to provide the assurance and protection required without adopting the amendment.
The primary concern with these amendments is that they would have the effect of preventing the director being appointed as a civil servant. It is our strong view that the director will enjoy full independence from the Lord Chancellor yet can be appointed as a civil servant. For the avoidance of doubt, we are abolishing the Legal Services Commission and creating a new executive agency to provide Ministers with greater policy control and improved accountability for legal aid. Giving full independence to the director would run entirely contrary to this intention.
Clause 4 already provides protection in subsection (4) with a statutory bar on the Lord Chancellor’s involvement in making funding decisions in individual cases. The Bill also imposes a duty on the Lord Chancellor to publish any guidance and directions issued to the director, thereby providing transparency. Noble Lords will recall from Report stage that we amended the Bill to offer greater transparency by requiring the director to produce an annual report for the preceding financial year on the exercise of their functions during that period. This report will be laid before Parliament and published.
Baroness Northover
That this House do not insist on its Amendment 24 to which the Commons have disagreed for their Reason 24A.
Lord McNally
That this House do not insist on its Amendment 31 to which the Commons have disagreed for their Reason 31A.
Lord McNally
My Lords, when we were opening this debate the noble Lord, Lord Alton, intervened to make the very valid point that it was only by him raising the issue of mesothelioma in debate in this House that this important issue has received the attention that it deserved. I pay tribute to him, having known him for a long time as an adept campaigner. Whatever happens, he can take great credit for the way that he has focused attention on this terrible disease. As with some of our other debates, however, this is not about whether you are in favour of or against mesothelioma victims. This is a debate about how our legal system is being reformed.
We are implementing fundamental reforms of conditional fee agreements, or CFAs, following the recommendations in Lord Justice Jackson’s review of civil litigation costs. The current regime allows for risk-free litigation for claimants and substantial additional costs for defendants. We want to restore a fair balance to the system, with meritorious cases being brought at proportionate cost. We are therefore abolishing recoverability of success fees and “after the event”, or ATE, insurance premiums. These reforms are intended to apply across the board and will cause a real shift in our society’s approach to litigation.
That is the general case, and it is important not to lose sight of it in considering respiratory disease claims, mesothelioma claims or others, but I want to repeat some specific points about mesothelioma. No one is suggesting that these tragic cases are contributing in any way to what has been described as a compensation culture—this is a horrible disease which acts very fast, and that suggestion has never been any part of my case in putting forward the Government’s position, as noble Lords know. It is a horrific disease and we have nothing but sympathy and compassion for its victims. Recent Governments of all colours have taken measures to help claimants in these cases, and this Government are continuing that work with due urgency.
Lord Bach
I am very grateful to the noble Lord—I think the whole House will be grateful to him—for shutting me up. That is the first thing that he succeeded in doing, but he also made the point that this is about whether this House believes that the other place should have a closer look at this. What worries me slightly is that, as I understand the programme Motion in the other place, there may be only one hour in the programme for all the matters that they have to consider; but I am not sure that I understand the procedures of this House, let alone those of the other place.
The noble Lord has persuaded me to sit down now. I think that was his intention. I look forward to hearing what the Minister has to say in response to the points that have been made. Surely the other place should take up this matter again—it is of such huge importance.
Lord McNally
I think it was the line, “I want to stop soon” that provoked my noble friend Lord Higgins to get to his feet.
Again, this has been a very useful debate, with two parallel arguments. I go back to my opening remarks: nobody underestimates the horror of mesothelioma and the importance of getting speedy redress for sufferers. Parallel to that, however, are the attempts that we are trying to bring forward to bring some order to the costs of litigation. It simply is not true that the Jackson reforms are intended just to catch dodgy whiplash claims. There was a general feeling that the amendments to CFAs which the previous Administration introduced brought in an overall inflation of costs in our legal system. We all pay for that inflation.
I hear what the noble Lord, Lord Wills, said, but the truth is that the present system which the sufferers have to use is slow and expensive. I repeat that the intention of this Government is to move as speedily as possible to get to where we can through agreement with the industry, to get litigation out of the way. It is true, as has been said by a number of noble Lords, that there was callous treatment of sufferers. There was slow movement in addressing the issue, but that accusation does not lie at this Government’s door. We have moved very quickly in our attempts to get agreement with the industry.
Lord Bach
As far as that is concerned, the setting up of a body in order to get a move on with this was mentioned in a White Paper from the previous Government two years ago. We have seen absolutely nothing after two years to suggest that that body will be set up soon. Indeed, every comment made by the insurance industry as a whole has been opposed to any organisation that would stand in, as it were, when they cannot find who is responsible for these diseases being caused.
Lord McNally
As I made clear in my opening remarks, my noble friend Lord Freud hopes to be able to make a Statement on this by the summer. The House, the insurance industry and sufferers from this disease should understand that we mean business on this. We are addressing this with a real sense of urgency. Whatever happens regarding this amendment, given the plight of sufferers from this disease, they deserve fairness and speed in settlement for the many reasons that have been put forward.
The noble Lord, Lord Howarth, said that there is no virtue in dogmatic consistency and he even had the strong support of my noble friend Lord Carlile in that. Certainly, there is no virtue in dogmatic consistency, but we need to consider the integrity of the legal system as a whole and fairness between different claimants. There are two parallel debates. There are the necessary Jackson reforms of legal costs, which will apply across the board, and the need to move with speed to get a system that deals with the problems of mesothelioma victims as quickly as possible. We can only make our impact assessments.
My noble friend Lord Carlile asked whether we thought that the Jackson reforms will prevent sufferers’ access to justice. We do not believe that. We would not have brought this forward if we had thought it. The point was made about success fees. I repeat that they are not compulsory. As my noble friend Lord Faulks has pointed out, there may be some proper, healthy competition among lawyers that will address the question of success fees.
It is not the responsibility of somebody suffering from a terminal illness to watch the clock as far as costs are concerned. It is the responsibility of government. The Jackson reforms take that responsibility away from claimants. Not just in this particular case but in the broad there was no responsibility on litigants or their lawyers to watch costs. That was the weakness of the whole system. The Jackson reforms put some emphasis back on to the responsibility to watch costs—not on somebody suffering from a terminal illness but through the reforms that we are putting through across the board in this area. For a claimant who does not have to pay a success fee, the 10 per cent uplift could mean more compensation than he or she would otherwise have got. I make no firm claim on that. It is not a question of being callous towards the sufferers. On the contrary, the Government are taking very speedy action to try to get in place an agreement which I am sure we all agree should have been in place many years before.
Sadly, this is not a problem that will go away. That is one of the reasons why I believe that we need a sense of urgency in our approach to this. Although we are now fully aware of the dangers of asbestos, this insidious disease can strike 20, 30 or 40 years after exposure. Therefore, there is a need not for a complicated, expensive, lawyer-based system of compensation, but for a system that will address the needs of sufferers. I am sorry that I cannot help more in relation to making it an exception. Horrific as the disease is, it is not an exception to the way in which the justice system should work. We should have a system in which lawyers get a proper return for the job that they do and in which those deserving compensation receive proper compensation. It is not a case of grabbing 25 per cent of that compensation. Competition and even some morality might drive that out of the system. Even bigger than that is the prize that the Government are seeking: a system that is not lawyer-based but one that is based on need, clearly agreed with the industry. As I have assured the House, we hope to make a Statement by the summer and we hope to have a system in place that brings speed and fairness to the sufferers of this disease. I ask the House to reject the amendment and to support the House of Commons resolution.
Lord Alton of Liverpool
My Lords, I am grateful to all noble Lords who have participated in this debate and in the earlier debates. The Minister has, with his usual courtesy, dealt with the arguments that have been put forward today. I reiterate my thanks to him for the time that he has spent with me, with Mr Paul Goggins last week and with the noble Lord, Lord Freud. He has said a number of things this evening on which the House should reflect, one of which was about the new scheme that it is hoped will be brought in in future and which will be a lot less reliant on lawyers. If we can achieve that, I think that there will be consensus in your Lordships’ House that it will be a very significant and purposeful step forward and it is certainly one that I will wholeheartedly support. The noble Lord, Lord McNally, has told us that that announcement will be made in the summer. However, it will require primary legislation, which is not before us, so there will be at least another 18 months from the time of the announcement before anything is on the statute book.
In the course of this evening’s proceedings, there has been dispute between different lawyers and different Members of your Lordships’ House about the practical effects of the law as now drafted on victims of mesothelioma. Pending the announcement in the summer and the new legislation that might come, I beg your Lordships not to play Russian roulette with the lives of people who have a terminal illness. I beg you not to be drawn into either side’s arguments about how this might work out and not to take chances but to preserve, as the noble Lord, Lord McNally, said the amendment would do, the status quo and keep things as they are at the moment until such time as we have something better to put in its place.
Success fees have been mentioned a great deal during the proceedings. The noble Lord, Lord Faulks, said that many lawyers would not want them, the noble Lord, Lord Thomas, said that they should not take them, and the Minister said that they would not be compulsory. However, the Bill provides for lawyers to take, if they wish, up to 25 per cent in compensation. They can take that as their payment, not for the base fee—they will get that anyway—but in addition to the base fee if they are successful in pursuing a case.
I agree with what the noble Lord, Lord Thomas, said earlier that it would be better if such a system were entirely swept away, but it has not been. If we are to wait for regulation, how do we know whether those regulations will be put forward by the Government or whether they will be successful? I do not think that we should do this on a wing and a prayer.
The noble Lord, Lord Avebury, thanked me for my persistence but, 40 years ago, in 1972, the noble Lord issued a pamphlet championing people who were suffering from mesothelioma. Thirty thousand people have died from the disease over the years. As the noble Lord, Lord McNally, has just intimated, probably the same sort of number will die before this is all over.
We are often accused of being preoccupied with fringe issues, but in a week or so, we shall have Workers’ Memorial Day. Surely, this evening, it would be fitting for us to recognise the sacrifice that workers have made in the service of their companies and this country in many heavy industries. This does not affect just those who have worked in heavy industries as even those who washed the clothes of people working in those industries have contracted this awful disease. Surely this is something on which we can raise our voices tonight, knowing that there are Members in another place who wish to pursue this further in the House of Commons and who were denied the opportunity to do so at earlier stages. Many of the issues that we have been debating this evening, which are new, should have been debated in Committee in another place much earlier on. We have been reassured that there are no financial questions. This is not about austerity; it is not about fraud; it is not about ambulance chasing; and it is not about a compensation culture. However, it is about elementary justice. I hope that your Lordships will agree with my Motion. I wish to test the opinion of the House.
Lord McNally
That this House do not insist on its Amendment 32 to which the Commons have disagreed for their Reason 32A.
Lord McNally
My Lords, Motion F contains Amendment 32, which seeks an exemption from Clauses 43, 45 and 46 for industrial disease claims. The Government cannot accept this very broad exemption to the provisions in Part 2, and the House of Commons has agreed with our position.
The suggested exemption is very wide and would cover all manner of conditions, including relatively minor problems that may be better resolved outside the courtroom. I take the point that there are all types of industrial disease claims with special factors. Where these exist, we can take specific actions, as I outlined earlier when speaking about mesothelioma, but industrial disease is potentially a very wide category, and I am not persuaded that it would be fair to treat the class of industrial disease claims differently from other types of personal injury claim. This may be of little comfort to individual victims of industrial disease, but we need to consider the integrity of the legal system as a whole and fairness between different claimants.
For all the sympathy that we have for sufferers of any industrial disease and the desire of all of us to make the legal process easier, particularly for those facing terminal illness, I cannot see that a system based on exceptions would be fair to other claimants. I fear that we would be failing in the wider duty of fairness in legal proceedings, which, as I mentioned in the earlier debate, is the key element behind the Jackson reforms. I urge the noble Lord not to insist on his amendment. I beg to move.
Motion F1 (as an amendment to Motion F)
Lord Phillips of Sudbury
My Lords, I can be very brief. There is a belief on this side that Amendment 32 would drive a coach and horses through the Jackson amendments, and we are broadly in support of the need to amend and reform conditional fee agreements and the like. I also draw the House’s attention to the fact that the wording of this amendment is extraordinarily wide. It will not apply just to cases of damages for industrial disease, as the heading would indicate; it will relate to any proceedings that include a claim for damages for a disease, condition or illness. That could be a minority part of the claim, and the rest, piggybacking on it, would also be outside the broad changes to these conditional fee agreements that have, in my view and in the view of the Government, had extremely unpropitious consequences for litigation generally, some of which we heard in discussion on the previous amendment. I am afraid that I oppose this amendment.
Lord McNally
My Lords, I am grateful for my noble friend’s support. We should move quickly to a decision on the matter. This is a very wide amendment. It ducks the issue that the Government have made central to this Bill and which I made in our debate on mesothelioma. Singling out a sector for special treatment is unfair across the board. We are looking in that case for non-legal solutions to the problems of the victims. The Government have taken action on a number of areas of specific industrial diseases and will continue to do so.
As I said at the beginning of my remarks, we will not undermine what most people saw in the system that is now in place: a very inflationary form of financing litigation where neither the claimant nor the lawyer has any need to concern themselves about cost. That is why Jackson was set up and why he came up with the solution that he has. As in previous cases, the idea that the 25 per cent is compulsory is not necessary. I should like to see much more competition and willingness to take these cases. Noble Lords have seen that it is easy to take very hard cases and then to say, “Well, we can’t go along with this”. If you do that, you dismantle the Jackson reforms. I believe that the debates in both Houses over the full period of this Bill have been mainly supportive of the central architecture of the Jackson reforms. I hope that when they vote on this amendment, noble Lords will see its flaws and will support what the Commons has proposed.
Lord Wigley
My Lords, I have listened carefully to what the Minister has said in this short debate, but the fact remains that if one considers the debates that took place at Second Reading, in Committee and on Report in the House of Commons, these issues have not been handled in depth and in detail. We have not seen the figures on how financial savings will arise in detail from the changes that are being made. If there are complexities in law with regard to many of the cases for compensation for injury or disease in a place of work, surely without financial support people will not be able to get the compensation to which they are entitled. If they are entitled to compensation, it is downright unacceptable that up to 25 per cent can be skimmed off.
Time after time the Minister has said that there is no compulsion to take up to 25 per cent. There may not be compulsion but it is available, and the Government have chosen to make it available. To my mind, and I believe to the minds of many noble Lords, that is unacceptable. The House of Commons needs to get its act in order and to apply itself in detail to these questions in a way that did not happen on 17 April when about one-third, at most, of an hour was allotted to the content of this amendment. For those reasons, I wish to test the will of the House.
Lord McNally
That this House do not insist on its Amendment 168 to which the Commons have disagreed for their Reason 168A, do not insist on its Amendments 169 and 240 and do agree with the Commons in their Amendments 240A and 240B.
Lord McNally
My Lords, the amendments in Motion G would bring the majority of welfare benefit matters back into scope. Before I get into the detail of this Motion, I want to remind the House that these amendments have been considered by the House of Commons. That House has disagreed with Amendment 168, ascribing financial privilege as the reason for doing so, and in place of Amendments 169 and 240 has accepted the Government’s amendments in lieu. Despite this, the noble Lord, Lord Bach, has tabled an amendment to Amendment 168 that would bring into scope advice and assistance for all welfare benefit appeals in the First-tier Tribunal. It is my opinion that this amendment will elicit the same response from the House of Commons.
As in our earlier debate, the fact that the amendment infringes privilege is the only reason that is given. I do not object to the amendment; as the Clerk of the House of Commons recently put it after a privilege reason, “That does not exclude a second try by the Lords”. However, as was said by the Joint Committee on Conventions, of which I was a member:
“If the Commons have disagreed to Lords Amendments on grounds of financial privilege, it is contrary to convention for the Lords to send back Amendments in lieu which clearly invite the same response”.
I put it to the House that the amendments tabled by the noble Lord, Lord Bach, will invite the same response—in fact more enthusiastically, in that they are wider.
As I have said many times, the Government consider that, in most cases, appellants can and do present their welfare benefit appeals in the First-tier Tribunal in plain language and without legal assistance. The tribunals system has been designed precisely so that they can do this. Indeed, a report by the president of the Social Entitlement Chamber of the First-tier Tribunal has pointed out that Department for Work and Pensions decisions are most commonly overturned because the tribunal elicits additional factual information from the appellant, usually in the form of oral evidence provided by the appellant. This suggests that legal arguments are not the most common reason for a welfare benefit decision being overturned in the tribunal. Furthermore, in his 2008-09 report, the president stated:
“The availability of this additional information suggests that there should be more direct engagement with the appellant”.
We have committed to ensuring that not-for-profit advice remains widely available and we have supported this view, as I reported earlier, with further funding, making available £16.8 million for advice service funding, which is already helping 300 front-line advice organisations. In addition, £20 million of funding will be made available in each of the financial years 2013-14 and 2014-15.
Perhaps I could draw the attention of the House to the government amendments, which, as I have said, I think are a genuine response by the Government to points that were made, not least from my own Benches. We have listened very carefully to the arguments raised here and in the House of Commons about retaining legal advice and some representation for onward appeals on a point of law in relation to a welfare benefit matter. At this point, I pay particular tribute to the noble Baroness, Lady Hollis, who has engaged in a constructive discussion on this topic with my noble friend Lord Freud. Her contribution has undoubtedly helped us to produce a sensible and workable solution.
We accept that legal aid may be justified in these cases and we offered government amendments in lieu in the House of Commons. These government amendments will make legal advice and assistance available for welfare benefit appeals on a point of law in the Upper Tribunal, including applications to the Upper Tribunal for permission to appeal. In addition, the amendments would bring into scope advice, assistance and representation for welfare benefit appeals in the Court of Appeal and the Supreme Court, including applications to these courts for permission to appeal. It is worth noting that the right to appeal to the Upper Tribunal in relation to a welfare benefit matter is a right to appeal on a point of law arising from a decision made by the First-tier Tribunal.
The House of Commons also recognises that there may be cases—although the Government think that there will be very few—where appeals relating to welfare benefits in the First-tier Tribunal will be on points of law. The Government have listened to arguments on this and have undertaken to look into this issue and investigate whether we can devise a workable system whereby advice and assistance can be made available for certain welfare benefit cases in the First-tier Tribunal.
We believe that the government amendments in lieu address the specific concerns in this House and seek to prioritise funding on cases where legal advice and assistance is most needed. I beg to move.
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.
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.
Lord Bach
Yes, I am pleased that the Government have done that, but that figure is included in the 8 per cent that they have taken off criminal legal aid. They have taken 29 per cent off family legal aid, as well as 53 per cent off social welfare law. Why that distinction? Why take 8 per cent from a large amount on criminal legal aid, 29 per cent on family law but 53 per cent of a pretty small budget on social welfare law? That is deliberate, is it not?
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—
Lord Low of Dalston
With respect, in my remarks I said that I had no intention of disparaging other Peers. More than once I have gone on record as saying that the contribution of Peers appointed from political parties is indispensable to the effective working of this House. I am certainly not one of those who would like to see the House of Lords a politician-free zone.
Lord McNally
The point is that it is still an appointed House and is an advisory and revisory Chamber. As such, where this House decides to draw stumps on a particular issue is a matter for its judgment. Although financial primacy may occasionally irritate this House, again, as a House of Commons man and as I said earlier, this is not something recently drawn up by the coalition agreement or even by the 1911 Act. It is 300 years of our much-valued history during which kings have lost their heads and their throne in the primacy of the House of Commons on financial matters. Much as I should like to flatter the House on this matter, I still believe that it is important.
I understand the desire to see more legal advice in these cases. As I said in my opening remarks, we believe that in most cases individuals will be able to appeal to the First-tier Tribunal without formal legal assistance. I quoted the president of the tribunal in highlighting that in many cases eliciting additional information from the appellant was the most useful exercise that the tribunal carried out.
I also think that we are not being idle while welfare benefit reforms are being brought forward. A number of proposals currently are being considered across government that should make it easier for people to receive the right provision of entitlement in areas such as welfare, benefits and education. The most notable of these is the universal credit which will help to reduce the scope of error significantly as it makes the whole benefit system simpler and easier to understand. We are working closely with DWP as part of its wider welfare reform programme to improve the quality and effectiveness of its initial decision-making.
As I have said, we have gone into this matter fully and it is not something that we have ducked. From the very beginning, from the first consultation paper, we took a decision that social welfare would be taken out of scope. I know how passionately the noble Lord, Lord Bach, feels about this matter. If he was in my position, it is not the road he would have taken to fulfil his party’s commitment to cut legal aid. That is the nature of things. This is the judgment of the Government.
We are not looking at complex points of law in other areas at the moment. As the noble Lord, Lord Wigley, said, the problem is that if you make a concession somebody immediately stands up and says, “Why not look at it in other areas?”. We can build on what the Lord Chancellor promised about talks with the DWP. The noble Lord, Lord Thomas, in explaining what he was proposing, illustrated why we have been careful in putting this matter forward. We will look at it carefully and I will draw to the attention of my right honourable friend the Lord Chancellor the specific proposals he made in his speech.
As I have said before, we have had a very thorough debate on this. It has certainly been very thoroughly debated in this place over the past year. I believe that it would be better now if the House were to accept the Commons amendments and the noble Lord were to withdraw his.
Lord Bach
I am very grateful to all noble Lords who have spoken in this debate. We have had the expertise of the noble Baroness, Lady Doocey, and the noble Lord, Lord Low, both of whom are experts on the disabled and the problems that they face. I am also very grateful to my noble friend Lord Howarth and the noble Lord, Lord Martin of Springburn, for their very knowledgeable contributions on this matter, and not least to the Minister for what he has had to say.
This is one of the central and most important debates of this whole Bill. It goes to the very heart of what the Government are seeking to do, which is effectively to ask whether social welfare law will survive in our jurisdiction. We currently have a system of social welfare law that we can be proud of. It is not perfect; it makes mistakes and it probably does not have enough money spent on it but it is not a bad system, where not-for-profit organisations around the country—CABs, law centres, other advice centres and some Law Society solicitors—do wonderful work at very low rates, giving advice to the most vulnerable, the disabled and the poorest in our country.
The issue is whether claimants will continue to get the advice that they have been entitled to in the past—because there has been a consensus of the political classes of all the parties that that is the proper way for a mature legal system to behave—which helps them decide whether or not they have a case when they are dealing with the state. Without that advice, how will these people get to the tribunal in the first place? The Minister quoted the president of the Social Entitlement Chamber of the First-tier Tribunal. Is that the same president who has publicly said that he is appalled at the prospect of more and more claimants coming before his tribunals who have not had the benefit of any legal advice?
Lord McNally
That this House do not insist on its Amendments 170 and 172 to which the Commons have disagreed for their Reasons 170A and 172A.
Lord McNally
My Lords, the Motion contains amendments dealing with clinical negligence. We have debated the issue of clinical negligence at length, and I am grateful for the intensity and conviction of those who have spoken in support and those who have challenged the Government during the passage of this Bill. Before I go into the detail of this Motion, I remind noble Lords that we listened to their concerns and brought forward an amendment at Third Reading in this House which specifically addresses their concerns. This amendment puts beyond doubt that legal aid will remain available for babies who suffer brain injury at birth leading to a lifetime of care needs. This was in recognition that there are often difficulties in obtaining funding for these cases through conditional fee agreements due to the extent and expense of the investigations required.
Our amendment brings into scope claims where medical negligence causes a brain injury as a result of which the child is severely disabled. It is intended that this will cover cases of medical negligence where the child is at its most vulnerable, during its time in the womb, during the delivery, and immediately afterwards. The House of Commons raised concern that there might be arguments about whether a particular child falls within the scope of this amendment. We believe that the amendment is clear in this regard. It provides for funding where the negligence occurs in the period of time beginning with the point of the mother’s pregnancy until eight weeks after birth. In recognition of the fact that premature babies are particularly vulnerable, the government amendment also provides that where a baby is born prematurely, the eight-week period will be taken to start from the point at which the mother would otherwise have begun her 37th week of pregnancy.
We have also provided that where the negligence occurs beyond the eight-week point, a safety net will remain in the form of the exceptional funding scheme, in those cases where the failure to fund would amount to a breach of the individual’s rights under the ECHR. Contrary to the concern expressed in the other House it is right that all other cases should first seek a conditional fee agreement, and where one is not available—for example, due to high disbursement costs—then exceptional funding may be available, taking into account factors such as the complexity of the case and the capacity of the litigant or litigation friend to present their case. The Government’s amendment covers the vast majority of clinical negligence children’s cases currently funded through legal aid.
My noble friend Lord Cormack has tabled an amendment in lieu of his Lords Amendment 172, which seeks to bring into scope other children’s cases involving clinical negligence that occurred when the child was below the age of 16, rather than 18. We believe that this amendment would still bring into scope a whole range of less serious cases which do not involve lengthy and detailed investigations or multiple expert reports, which are caught by government Amendment 216, and which are more suited for funding through a CFA in exactly the same way as for adults. We believe this to be the case whether the child is 18 or 16. The Commons has decided against Lords Amendment 172, and it is my opinion that my noble friend’s amendment in lieu will elicit the same response. I urge my noble friend to withdraw his Motion.
On Amendment 170, the Government have already made special provision for expert reports in clinical negligence reports to the Jackson provisions in Part 2. This will mean that no one is required to pay up front for expert reports in clinical negligence cases. Providing for all expert reports would be more costly than the current legal aid arrangements. As I have said previously, at present solicitors have to choose whether to use legal aid or a CFA to fund the case. Only 18 per cent of cases where the funding method is known use legal aid. The amendment would open up legal aid for all of those cases which are currently funded by way of CFA. Lawyers would be able to claim their success fee while using legal aid to fund expert fees, and the legal aid fund would carry all of the solicitor’s or insurer’s risk. This could result in a significant expansion of the legal aid scheme and significant costs. We do not consider this a fair outcome for the taxpayer, who should not be required to pay where cases are already taken forward and paid for by alternative means. I beg to move.
Motion H1 (as an amendment to Motion H)
Lord Beecham
I was about to say precisely that. It was never implemented so it is open to the Government to lay regulations that would require that 25 per cent deduction. It is equally open to them to do what their predecessors did and not lay such regulations or make that deduction. I am entirely at one with the noble Lord in saying that that deduction should not be made, but that is the situation at the moment.
With respect to the noble Lord, I do not think that his argument takes us very far at all. The Opposition support the amendment proposed by the noble Lord, Lord Cormack, despite the fact that it appears to contain a grammatical error. It refers to,
“clinical services which took place at a time when the individual was child”.
There is an indefinite article missing somewhere. However, that is a trivial point. The substantive point is one that was made effectively by the noble Baroness, Lady Eaton, when we debated this on Report. In the debate on the amendment that was discussed on that occasion, she talked of the figures involved in legal aid expenditure for children. She pointed out that legal aid for clinical negligence claims involving children cost the Legal Aid Fund some £4.6 million, of which £3 million was spent on precisely the cases of neonatal injury to which the Minister referred and to which the Government have responded by restoring them within scope. Therefore, as the noble Baroness pointed out, the net saving would amount to £1.6 million for the Legal Aid Fund.
It is time to dispose of some of the shibboleths about tough decisions and the like. Apparently it is not a particularly tough decision for the Department for Communities and Local Government to spend £250 million on weekly bin collections. It seems to me and to the noble Baroness, Lady Eaton, and presumably the noble Lord, Lord Cormack, a very tough decision to deny legal aid at a cost of £1.6 million to children under the age of 16 who suffer clinical negligence other than through the limited but welcome concession that the Government have made in respect of the injuries to which we have referred.
I also remind your Lordships of the view of the National Health Service Litigation Authority, which I quoted last time and will quote again. It stated:
“We have serious concerns over the proposal to withdraw legal aid from clinical negligence claims. Whilst we have seen an upsurge of claims brought under Conditional Fee Agreements … in recent years, we question whether CFAs are likely to be readily available to fund many of the more serious claims currently brought via legal aid”.
That view was about clinical negligence claims at large. Therefore, one might think that those concerns would surely apply to claims for children under the age of 16.
This does not remotely impinge on the huge problems that the Minister constantly reminds us of in relation to deficit reduction and the like. It is an almost trivial sum of money. By no conceivable stretch of the imagination could it be justified by financial privilege, which is the cover under which the Government approach this amendment. Let us be clear about financial privilege because it has been bandied around today and on previous occasions. Of course the Commons has the right to assert financial privilege, which is an objective process as far as the Clerks and the Speaker are concerned. However, it does not stop there. The Commons can waive financial privilege. If the Government wished for financial privilege to be waived, it would pass almost without opposition and frequently does. It is often waived. The Government choose not to waive it in connection with this and the other matters to which we have referred. It is a fig leaf behind which Ministers hide. I hesitate to convey an image of Ministers brandishing fig leaves; that would be an unwelcome variation on a theme. However, it is a pretty feeble and diminutive fig leaf for any Minister to hide behind. It is not an adequate defence for what they are doing.
I repeat: the figures show that the potential savings are minimal. Undoubtedly, justice will not be accessible for too many young people except in an expensive form potentially through a conditional fee agreement—even allowing for how the noble Lord, Lord Thomas, described it. I very much hope that the House will build on the Government’s welcome concession with this small additional financial burden and extend justice to those who need it.
Lord McNally
My Lords, the noble Lord, Lord Higgins, quoted the Reason, which states that the amendment,
“would alter the financial arrangements made by the Commons”,
and goes on to state that,
“the Commons do not offer any further Reason”.
As an old parliamentarian, he knows that if an amendment infringes privilege, that is the only reason that will be given. Obviously, when taken against the national economic crisis that we are dealing with, these various precise sums will always be able to be argued away as almost too trivial to worry about.
Perhaps I may relate to the House some other thoughts that have also motivated our approach in trying to reform legal aid in this area. Clinical negligence claimant lawyers’ bills, which the National Health Service Litigation Authority has to pay, have more than doubled from £83 million in 2006-07 to £195 million in 2010-11. As part of this, CFA success fees to claimant lawyers have more than doubled in the past four years from £28 million to £66 million, and the NHSLA pays out an estimated £33 million in claimant insurance premiums. However, damages paid to claimants have risen more slowly—from £579.4 million to £863.4 million over the same period—and the NHSLA has controlled its own defence legal costs much more carefully, rising only 26 per cent during the same period.
One motivation behind our approach in this whole area has been the impact that the system brought in by the previous Government in 2000 has had on the National Health Service, with an extraordinary rise in payments to lawyers. We are trying to address that. In doing so, early on we listened carefully to concerns about the specific issues faced by the most vulnerable children at the most vulnerable point in their lives, and we brought forward amendments to deal with that. Of course, in these areas there will always be disputes about where you draw the line and what happens to those on the other side of that line. However, in bringing forward our amendments our intention was to meet that initial lobbying, and we responded to it most positively. However, that was immediately followed by further lobbying that this should cover all children, but we do not believe that that is necessary.
The amendment purposely captures clinical negligence before, during and shortly after birth. We believe that that is a proportionate means of meeting the policy objective of targeting legal aid on the most serious and complex cases that would otherwise struggle to obtain a CFA. The eight-week period is an appropriate period of time at which to draw the line, because most of the serious and complex clinical negligence cases involving neurological injuries to infants are likely to arise from treatment or care administered during this period, when the infant can be considered to be most vulnerable. We have drawn the post-birth line at this point because of that. We also recognise that some children will be born prematurely and will need fairly intensive medical supervision in the first weeks of life. Any cases in which negligence occurs beyond this point will need to be considered under exceptional funding on a case-by-case basis. It is difficult—
Lord Faulks
I am very grateful to my noble friend for giving way. I wonder whether he can help the House on one point. Originally, before the welcome concession by the Government concerning babies damaged at or about the time of birth, the response was that exceptional funding might be available to meet those claims. Now that those claims are to be within the scope of legal aid, does it follow that more exceptional funding might be available to deal with the hard cases that may arise with children who are outside the scope of the eight-week period?
Lord McNally
I do not think that exceptional funding has ever been a specific amount of money and that therefore the amendment releases more of the exceptional funding pot to others. The exceptional funding is there to meet cases that fulfil the requirements for exceptional funding. I will not follow my noble friend because he leads me down a dangerous road. The exceptional funding is and will be there on the merits of the case. That is why we have confidence that the combination of the amendments that we have made, the CFAs, which, as was pointed out, some 82 per cent are already using, and a robust exceptional funding scheme will meet the needs in the cases that are covered by the amendment that we are opposing. Again, I ask the noble Lord to withdraw his amendment and to support the Commons.
Lord Cormack
My Lords, I felt very sad as I listened to a Minister, for whom I have both affection and respect, fail to answer this brief debate.
I am grateful to all those who have taken part. It has been brief, but that does not mean that the issue is unimportant. I apologise, incidentally, to the noble Lord, Lord Beecham, for the missing indefinite article, but we are talking about a definite proposition. That definite proposition is this: we often talk about rights and responsibilities, and certain people have particular rights and to them we have particular responsibilities. We are talking about children—those under the age of 16: children who are damaged as a result of clinical negligence within the National Health Service that the country provides for them and in which they and their parents place their trust. To limit the help, in a very small timeframe, to those who suffer brain damage is frankly not the hallmark of a civilised health service or a civilised society.
I know not whether the figure of £1.6 million given by the noble Lord, Lord Beecham, is right, but it is certainly around that figure. Indeed, the state would be the beneficiary in the long term. It would certainly be the beneficiary in the moral sense. We should concern ourselves about that. Of course the Government have problems. Of course they have great responsibilities for the economy. We are not, however, talking this evening about something that can in any way damage the financial strategy. What it can do is damage our reputation. I wish to test the opinion of the House.
Baroness Northover
That this House do not insist on its Amendment 171 to which the Commons have disagreed for their Reason 171A.
Public Bodies (Abolition of Courts Boards) Order 2012
Lord McNally Excerpts(12 years, 8 months ago)
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Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord McNally
That the amendments for Third Reading be marshalled and considered in the following order:
Clauses 1 to 9, Schedule 1, Clauses 10 to 24, Schedule 2, Clauses 25 to 31, Schedule 3, Clauses 32 to 38, Schedule 4, Clause 39, Schedule 5, Clause 40, Schedule 6, Clauses 41 to 63, Schedules 7 and 8, Clauses 64 to 69, Schedule 9, Clauses 70 to 90, Schedule 10, Clause 91, Schedule 11, Clauses 92 to 106, Schedule 12, Clauses 107 to 111, Schedule 13, Clause 112, Schedule 14, Clauses 113 to 121, Schedule 15, Clause 122, Schedules 16 and 17, Clause 123, Schedules 18 and 19, Clauses 124 to 126, Schedule 20, Clause 127, Schedule 21, Clause 128, Schedule 22, Clauses 129 to 133, Schedule 23, Clauses 134 to 136, Schedule 24, Clauses 137 to 142, Schedule 25, Clause 143, Schedule 26, Clause 144, Schedule 27, Clauses 145 to 155.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I beg to move the order of consideration Motion.
Baroness Trumpington
My Lords, I apologise. Perhaps I may ask the noble Lord, Lord McNally, whether the removal of the boards which have recently been erected in Parliament Square will have to wait until the Bill supported by the noble Lord, Lord Marlesford, is passed. If so, I consider that the relevant authorities are wet.
Lord McNally
My Lords, I am not sure of the answer to that question. I know that I have just moved a formal Motion. In case the noble Baroness thinks that she will have to wait until about 11 o’clock to get an answer, I should say that all the Motions between this one and the Report stage of the Parliament Square (Management) Bill are formal. Perhaps she will let me move this formal Motion, and we can then move on very quickly to Parliament Square, when she might want to intervene again.
Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord McNally
(a) add services to Part 1 of Schedule 1, or(b) vary or omit services described in that Part,”
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the Government have tabled government Amendments 1, 6, 7, 8, 13, 14 and 18 following the commitment I gave on Report. The Government have listened to the reasoned arguments presented by my noble friend Lord Thomas of Gresford and other noble Lords, and we have brought forward these amendments accordingly.
Amendment 1 to Clause 9(2) would give the Lord Chancellor the power to omit, but in addition the power to add or vary the services in Part 1 of Schedule 1. He would be able to do so by modifying Parts 1, 2, 3 and 4 of Schedule 1. The power to vary a service allows us to amend the existing services within the schedule where they need to be altered, but without the need to omit a service and then add a new service. For example, if the Immigration (European Economic Area) Regulations 2006 were amended in the future, any such amendment might not mean that services need to be added to the schedule, but it might be necessary to vary the provisions in paragraph 31 of Part 1 in order to reflect any such changes to those regulations.
The provisions of Amendment 1 mean that the power in Clause 9(2) would be similar to that which exists in Section 6(7) of the Access to Justice Act 1999. We consider that this is the correct and sensible approach to take. The powers in Clause 9(2) would be exercisable by the Lord Chancellor when making an order. Clauses 41(6) and 41(7)(a) mean that such an order would be subject to the affirmative procedure and so subject to debate in and approval by each House of Parliament.
Amendment 2, tabled by the noble Lord, Lord Bach, would allow services to be added but not to be omitted. As I have said, the government amendment provides for balance to the existing Clause 9. Amendment 2 seeks to go further and actually removes the ability to omit. I firmly believe that that power to omit is necessary and gives the Bill a welcome flexibility. An example of where this may be necessary is where the governing legislation behind an area of law is repealed or otherwise altered and we need to alter civil legal aid provision accordingly. Another example would be where particular court proceedings are moved to a tribunal. It may cease to be appropriate to provide funding for advocacy for those proceedings, so an amendment to Part 3 of Schedule 1 would be needed.
As a result of Amendment 1, we no longer consider that we need certain powers in Schedule 1 to make secondary legislation. The purpose of this is not to reduce the categories in which legal aid will be available but are more technical in nature. To ensure that this is clear, let me explain in detail the powers which will be removed. First, Amendments 6 and 7 relate to paragraph 4(1)(k) of Part 1 of Schedule 1, which concerns the care, supervision and protection of children and provides for further orders or procedures to be prescribed for the purposes of this paragraph. In the light of the power to add services proposed by Amendment 1, we consider that the power at paragraph 4(1)(k) of Part 1 of Schedule 1 is no longer necessary.
Secondly, Amendment 8 would omit paragraph 9(3)(n) of Part 1 of Schedule 1, which relates to community care. Paragraph 9(3) defines community care services as services,
“which a relevant person may provide”,
under a number of listed enactments. Heading (n) of that definition allows other enactments to be prescribed for the purposes of that definition. With the power to add services under Clause 9, this is no longer necessary.
Baroness Butler-Sloss
My Lords, as a Cross-Bencher, I add to what the noble Lord, Lord Bach, has just said about the death of a man who was a great friend to many of us. Lord Newton was an adornment to this House, who stood, as the noble Lord, Lord Bach, has already said, for his conscience rather than for what his party, or any party, might wish. It is easy for me as a Cross-Bencher to examine my conscience, and I am well aware it is not so easy for members of political parties. He will be enormously missed. His name is on a number of today’s amendments, and I hope that noble Lords will forgive me for saying something about this before I move to Amendment 1.
I congratulate the Government. I do not do it terribly often but am going to do it three times today. This amendment, as the noble Lords, Lord Thomas of Gresford and Lord Bach, have said, is overdue. It is splendid that the Government have recognised the importance of having the ability to increase legal aid. I also very much support the fact that they are putting in “vary or omit”. All of us who have had anything to do with legislation know that from time to time it becomes redundant and has to be got rid of or needs a tweak here and there, and therefore needs a variation. I support this amendment as it is.
However, if the Minister will forgive me, I will make one or two points about what has happened as a result of this Bill so far as family cases are concerned. The noble Lord, Lord Thomas of Gresford, has already mentioned this but I will add to it. I strongly urge the Government to review the impact of the legal aid changes no later than a year from now, to see what happens to the family courts in the light of the removal of nearly all private law cases from legal aid. I am not sure the Government really quite accept what a number of us have been saying, to the Ministers in this House and the other place, about the impact on the courts. There will be longer lists. I know the Ministry of Justice is already aware that the lists in the courts are too long, and they will be increased substantially.
There will be longer hearings. As the noble Lord, Lord Thomas of Gresford, said—entirely accurately—without lawyers to keep a case under control, two litigants in person will spend an absolute age. The sort of case that takes a day, or possibly a day and a half to two, will take not less than a week. I have a vivid recollection of one litigant in person who took a week to give evidence and cross-examine. Every time I asked him to hurry up, it added another hour or two to the case. I am afraid I sat scribbling nonsense, because nothing he said was of any value to the conduct of the case.
It is going to be very difficult for district judges and magistrates to manage people totally caught up in the emotions of a failed relationship and fighting over money, a house or particularly children. They will have to do it but it will clog up the courts to an even more significant degree.
It will have an impact in children’s cases. One example in child protection issues is the fact that drink or drug abuse is sometimes detected only during the hearing of a private law case. It is crucial that the person who is drinking or taking drugs to excess is tested to see what should be done as to whether that parent is fit to have care of the child, or even to see the child. The Minister will be aware that in the Norgrove report that point was made about the very thin line between the private law cases and those that tip over into child protection issues. On Report, we discussed whether the mediator would identify cases where there might be abuse. There is a hard core of 5 per cent of cases that cannot be settled between the parties—and, of course, that 5 per cent of cases will carry on regardless and may not ever come to the attention of the mediator.
I ask the Minister, in congratulating him on proposing the amendment, to have a real look at the impact on the family courts within no later than a year to see what is actually happening.
Lord McNally
My Lords, of course I associate myself with the expressions of sympathy on the untimely death of Lord Newton.
On the matter raised by the noble and learned Baroness, we are committed to undertaking a post-implementation review of the specific policies set out in the Bill. As she acknowledged, we have just replaced a ratchet by a regulator, which should also help in seeing whether some of her predictions come true, and how we react to that.
Lord Bach
From the opposition Front Bench I can be extremely brief, as I should be because this is Third Reading. These are very important amendments which the House will have to decide on shortly. JustRights has done some number-crunching on the issue of children. It points out that, while 95 per cent of funding may be protected, only 74 per cent of children are protected likewise. Therefore, the 6,000 mentioned by the noble Baroness who moved Amendment 3 will be left to navigate the legal system alone. These children will have no adult to help them—no litigation friend, in parlance.
It is absurd to think that in social welfare law cases, a conditional fee agreement is any substitute whatever for basic legal aid for getting legal advice for the kind of problems that affect these children. In effect, we are being asked to abandon some of these children— 16 year-olds perhaps—to a legal system that is far from understandable. They will be mainly children in care who have fractured relationships with their parents. The House knows so well that these are exactly the kind of children who, if they do not get early legal help, may end up in young offender institutions or secure children’s homes at enormous cost to the state, which would be much more than the small amount that the Government claim will be saved by not giving them legal aid. How much wiser would it be to spend that money early? Surely, for children, legal aid is greatly preferable to a CFA right across the board. We support the amendments.
Lord McNally
My Lords, in debates like this, I am always a little worried that noble Lords not in the Chamber when the Division Bells ring will come along and say, “What is this about?”. They may be told, “Oh, we are voting on legal aid for children”. Let us be clear, these amendments and this debate are not about whether we provide legal aid for children and vulnerable people; nor is it about not being willing to help those least able to help themselves; and nor is it about denying help to the most vulnerable in our society.
As my noble friend Lord Thomas of Gresford pointed out, the core principle of our reforms is to ensure that civil legal services will continue to be available in the highest priority cases; for example, where a person’s life or liberty is at stake or where children may be taken into care. The application of this principle has led us to protect the vast majority of funding and cases involving children. They include child protection cases, civil cases concerning the abuse of a child, special educational needs cases and cases involving children who are made parties to private family proceedings. Noble Lords will also recall that we have moved to make funding available for clinical negligence cases concerning brain-damaged infants. It is simply not true therefore to suggest that there will be no funding or very substantially reduced funding for the cases involving children and young people.
In addition, as indicated earlier, we have moved the amendment ratchet to “regulator” which will enable us to test whether some of the more dramatic warnings that have been issued about our reforms can be looked at. We are committed to undertake a post-implementation review of the specific policies set out in Bill. We believe that these safeguards are sufficient to ensure that children do not fall through the net. Our approach will mean that 97 per cent of current spend on cases involving child claimants will continue, and that is the overwhelming majority of current support. Spending reductions are never welcome, but I hope these figures put it beyond doubt that we have made a genuine endeavour to ensure that children are protected, even as we push on with the wider objective of our reforms, which is to focus scarce resources on the most serious cases, to contribute to savings and to reform the system.
Lord Beecham
That is on top of the £80 million of cuts to citizens advice bureaux.
Lord McNally
Citizens advice bureaux operate in a country that is 10 per cent poorer than the last Government gave the country to understand. It is absurd to pretend that citizens advice bureaux or any other sector—local government and national government —should not face this reality.
In civil cases, it is already a requirement of the rules of civil litigation that a child or other protected party who lacks capacity must have a litigation friend to conduct a case on their behalf. In the case of a child, this is usually a parent unless the court specifically orders otherwise. It will only be in exceptional circumstances that the court will make an order permitting the child or protected party to conduct proceedings on their own behalf. Any step taken before a child or protected party has a litigation friend is of no effect unless the court makes such an order. There is no requirement that a litigation friend must act through a solicitor. It is therefore open to a child’s parent or other person caring for the child, for example, to act as the child’s litigation friend in proceedings where the child is a party. We believe that this provides a clear safeguard for children and vulnerable young people who lack capacity to conduct proceedings on their own behalf.
We recognise that Amendment 5 also covers the 18 to 24 year-old category. As I said earlier, we have provided for those who are most vulnerable. However, we have also been clear that, in what is a complex area, there must be flexibility. The exceptional funding scheme therefore provides a mechanism whereby the director of legal aid casework can grant legal aid in areas of scope which would normally be out of scope, where necessary, to ensure the protection of the individual’s right to legal aid under ECHR and EU law. In cases engaging Article 6 of the ECHR, the director of legal aid casework must take into account a person’s ability to represent themselves, the complexity of the proceedings, the importance of the issues at stake and all other relevant circumstances. An individual’s age as well as their capacity will be a key consideration in determining a person’s ability to represent themselves. The exceptional funding scheme will clearly be an important safeguard for children and vulnerable young people who would otherwise be unable to present their case.
Amendment 3, in particular, seeks to bring all cases back into the scope of legal aid where a child is a party, but the Bill already provides for child parties to be within scope of legal aid in family proceedings. The amendment is therefore in part unnecessary and seeks to replicate what is already in scope. The rest of the amendment seeks to keep funding across the board for children in all civil disputes without regard to the relative priority or alternative methods of resolving them. The majority of children will already fall within the scope of legal aid as provided for by the Bill. However, there are additional safeguards to provide further protection through exceptional funding powers and, should it prove necessary, the power to add to civil legal services.
The Archbishop of York
The Minister has not yet answered the question which I think the noble Lord, Lord Thomas, raised—and had I had the chance, I would have raised the same question—on Amendment 3, in relation to proposed new paragraph 1(1)(k), which specifies:
“civil legal services relating to an appeal to the Supreme Court”.
I have not seen that provision in the Bill as drafted, but it is quite important. What will happen to it? I agree with the Minister about the other provisions, but I do not think that he has answered the question on that one.
Lord McNally
It is always a pleasure to see the most reverend Primate the Archbishop of York in his place. I shall give him a definitive answer as I sum up and come to my peroration, as there are a number of other matters that I wish to cover.
Amendment 4 seeks to bring into scope children for all clinical negligence cases. I have already set out my arguments on how we have protected children in the Bill. On clinical negligence, in particular, we recognised the concerns that serious and complex cases involving brain-damaged babies may not be able to secure a conditional fee agreement, and we therefore brought forward an amendment on Report that will provide certainty for families and make the application process straightforward.
The amendments we have made will allow funding for cases where the negligence occurs in a period of time beginning with the point of the mother’s pregnancy until eight weeks after birth. This does not mean that the symptoms have to become apparent during this period. They could become apparent beyond this period and still be in scope providing that the relevant negligent act or omission took place during that period. We also moved to include an additional safeguard in respect of babies who are born prematurely. We recognised that these children are particularly vulnerable in the post-natal period and have therefore provided that where a baby is born before the 37th week of pregnancy, the period of eight weeks will not run from birth but will be taken to start from the first day of what would have been the 37th week of pregnancy. I hope noble Lords will recognise that the Government have listened and acted to introduce back into scope the most serious clinical negligence cases involving children.
Amendment 5 seeks to bring into scope civil legal services in relation to advice and proceedings for any person who is 24 years old or under and has a disability, is a former care leaver or is a vulnerable person as specified by regulations. We have provided for those who are most vulnerable, as I have said, under Amendment 3, which covers those under the age of 18. However, we have also been clear that there must be flexibility in this complex area. The exceptional funding scheme therefore provides a mechanism whereby the director of legal aid casework can grant legal aid in areas that would normally be out of scope, where necessary, to ensure the protection of an individual’s rights to legal aid under the ECHR and EU law. In cases engaging Article 6 of the ECHR, the director of legal aid casework must take into account a person’s ability to represent themselves, the complexity of proceedings, the importance of the issues at stake and all other relevant circumstances. An individual’s age as well as their capacity will be key considerations in determining a person’s ability to represent themselves. The exceptional funding scheme will clearly be an important safeguard for children or vulnerable young people who would otherwise be unable to present their case.
I am told that we have lost the vote about retaining legal aid for appeals to the Supreme Court.
Lord McNally
The most reverend Primate the Archbishop of York may be disappointed to know that he may have been absent to defeat us on that point at an earlier stage. As the noble Lord, Lord Bach, has indicated, the Government will look at these matters between now and consideration in the other place.
The only outstanding point that I wanted to cover was that made by the noble Lords, Lord Thomas and Lord Avebury, about the balance between CFAs and legal aid in injury cases. Although I am not a lawyer, I would say that, on balance, CFAs are the most effective way of taking these cases. It is worth remembering that 82 per cent of cases are already covered by CFAs. People are not left abandoned on a lonely sea—the process works.
It is always difficult to draw lines and easy to say that the lines have been drawn in the wrong place. As I said in opening, the amount of coverage for young people in this area is completely different from what was suggested in some speeches today. We believe that between the coverage of scope that we put into this Bill, the workings of exceptional funding and the availability of wider advice, there will not be the kind of consequences that have been suggested. I also make it clear that we do not think that Amendments 3, 4 and 5 are consequential, so if noble Lords do press them, we would want to test the opinion of the House on each. However, I hope that the noble Baroness will agree to withdraw her amendment.
Baroness Grey-Thompson
My Lords, I thank the Minister for his comments and consideration. The House appreciates that he has perhaps been given little or no room for manoeuvre. I would also like to thank all Members who have tried to ensure that children’s interests are safeguarded in this Bill. Most of all, I thank Members on the government Benches who have understood the problems with this legislation right from the start and have been prepared to raise them. We all understand that this is a very difficult thing to do. However, because of the very nature of the legislation and its impact on those unable in law to represent themselves, we need to ask the other place to take another look. Therefore, I wish to test the opinion of the House.
Lord Beecham
My Lords, I support my noble friend Lady Hollis and, of course, the noble Lord, Lord Best, in moving this amendment. They have made a very powerful case, which was rehearsed on Report. At that time, I quoted Shelter and the Nottingham Law Centre, two separate organisations from the not-for-profit sector, which strongly urged the Government to change their position on this. They are the organisations that provide legal help and advice, not necessarily extending to court proceedings, on the benefits side as well as the remainder of the housing issue—some of which, in fairness, the Government are including within scope.
This is a classic case, as my noble friend has implied, where there is a potential modest saving to the Ministry of Justice budget but a potential extra cost to other departments. If homelessness ensues, particularly where children are involved, very substantial costs are imposed on the budgets of the local authority, and maybe also on the Department for Work and Pensions, which in certain circumstances may be devolved; for example, special needs payments or crisis loans, which a family on the streets may clearly require.
In this context, cost is a consideration which, if anything, tells against the Government’s proposals rather than the other way round. I hope that the Government will recognise the strength of arguments from those dealing with this directly—not from the legal profession in this case, but from the advice sector—and provide for the possibility of timely advice being given to avoid worse consequences for the individuals and their families and, for that matter, the public purse. I hope that the Minister will reconsider the position the Government have hitherto adopted.
Lord McNally
My Lords, the noble Lords, Lord Beecham and Lord Best, acknowledge that this is one more time on which we have discussed these matters. We had detailed discussions in Committee and on Report. Amendment 16 is intended to bring into the scope of legal aid advice and assistance in relation to an individual’s financial situation, such as debt and housing-related welfare benefits issues, where they are linked to the loss or threatened loss of the individual’s home under paragraph 34 of Part 1 of Schedule 1. The House will be well aware that our proposals ensure that legal aid continues to be available to an individual in relation to the immediate risk of losing their home, through possession or eviction. This includes cases where the underlying cause is a debt or welfare benefits issue.
It may reassure noble Lords if I reiterate a few brief examples of where legal aid will be available under the loss-of-home provisions in paragraph 34 of Part 1 of Schedule 1. First, legal aid will continue to be available before a case is brought to court. It will be available where possession or eviction action is contemplated. Where an individual receives a letter which threatens possession action, legal aid will be available at that point. For example, legal aid will remain available to a person threatened with possession action for mortgage arrears to negotiate with their mortgage lender.
In the context of welfare benefits, it is important to recognise that, where a landlord threatens their tenant with possession proceedings, legal aid would be available to the tenant to reach agreement with a landlord to delay the possession action pending the resolution of the welfare benefits issue. If possession proceedings are issued, legal aid will be available to an individual to argue for an adjournment—for example, if they are likely to be able to make the necessary payments if an underlying benefits dispute is resolved in their favour. Where an individual loses a welfare benefits appeal and subsequently faces possession action for rent or mortgage arrears, legal aid will be available in relation to that action. We will also retain legal aid provision for judicial reviews about welfare benefits decisions and for welfare benefits matters which relate to a contravention of the Equality Act 2010.
This amendment would go much wider and would generally provide for legally aided advice and assistance on the financial circumstances of an individual—such as for underlying debt or welfare benefits issues—where these are linked to loss of home. This would run contrary to our approach. At a time when the country is recovering from a genuine fiscal crisis we need to focus limited resources on the highest-priority matters. As I have said before, we cannot agree that legally aided advice and assistance should be generally available in relation to a person’s financial circumstances—such as for debt or welfare benefits issues—in the situations covered by the amendment.
There is no doubt that people, including those in potential loss-of-home situations, find advice useful in areas such as debt and welfare benefits. But we are firmly of the view that what those affected often need is practical advice rather than legal advice funded by legal aid. Individuals who have debt problems often need advice on managing their finances better and on practical measures to resolve their situation, and can access that advice through a range of specialist organisations. It will come as no surprise to the House to hear me repeat that the Government greatly value the not-for-profit sector and the good-quality free advice which it provides to people in their communities on these sorts of matters.
My department is working closely with the DWP to improve the quality and effectiveness of initial decision-making in applications for social security, reconsideration within the DWP and the system of subsequent tribunal appeals. This work should make it easier for claimants to receive the right benefit provision. Moreover, welfare benefits appeals matters are resolved through a tribunal which is designed to be accessible without legal assistance, and general advice on welfare benefits is available from a number of sources.
I know that this issue has been raised at every stage. After these debates, we do not just close the book and not take any notice. We go back to the department and the Ministers and advisers have a discussion. There is also a discussion about the issues raised with other departments. This is not a decision taken lightly but we believe that the loss-of-home proposals in the Bill get the balance right in terms of focusing limited public funds for legal advice and assistance in the most appropriate circumstances. We have listened to the appeals made by the noble Lord and considered them. At this point, we cannot agree with them. I ask him to withdraw his amendment.
Lord Best
I am grateful to noble Lords who have spoken. I am also grateful to my noble and right reverend friend Lord Harries of Pentregarth, who put his name to this amendment but has had to leave us. I thank the noble Baroness, Lady Hollis, for talking of the perfect storm at a time of housing benefit change when advice will be incredibly important to people. Things will change dramatically on the benefit front and mistakes will be made by the officials concerned. Experts will be needed for support and assistance. I am grateful to the noble Lord, Lord Beecham, who reminded us that Shelter, Citizens Advice and such bodies are behind this amendment rather than the lawyers. He also mentioned the extra costs that homelessness always brings.
This is a cost-saving amendment. The noble Lord is right that much remains within scope. Some 75 per cent to 80 per cent of the work currently being done remains within scope, which is great, but a lot of that is wasted if the remaining 20 per cent to 25 per cent is cut out. Where possession is threatened is the bit where the argument can be taken up with the administrators, the housing benefits officers. With their negotiating skills and expertise, they can fix it and sort it. Cutting that out renders a lot of the rest of the expenditure much less worth while.
Before the hour gets any later and without further ado, I wish to test the opinion of the House.
Lord McNally
Lord McNally
Lord McNally
My Lords, the House will recall that my noble friend Lord Macdonald was most persuasive in Committee so that during Report a government amendment was agreed that removed the power to introduce means testing and make regulations setting criteria for determinations in relation to advice and assistance for individuals in custody. Amendment 20 is a government amendment that removes references to determinations under Clause 13, on police station advice and assistance, from Clause 21, which concerns financial resources. This is a consequential amendment in light of the Government’s amendment accepted on Report to remove the power to means test police station advice and assistance. This technical amendment is required to remove from Clause 21 the reference to regulations under Clause 13. I beg to move.
Lord Stevenson of Balmacara
My Lords, the noble Baroness, Lady Coussins, has introduced this group of amendments with her customary fluency and passion, and she has been joined by other speakers who have made the case well. As has been pointed out, this measure risks damage to the UK’s reputation for justice to those people who have suffered damage to their human rights caused by companies based in the United Kingdom. I am sure that none of us wishes to see that happen.
We have support from all around the House, and we are grateful to those who have joined in on these amendments. The settled view of your Lordships’ House is clearly that there is a real danger that, if this Bill goes through in its present form, the changes that it makes to the way in which international human rights cases are to operate, combined with the restricted damages that the Rome II regulations impose on the level of damages that can be awarded to claimants, will make it impossible for such cases to be mounted in the UK in future.
As the House has heard, several very important independent charities have been lobbying hard on this issue. Several meetings have been held with the Minister and correspondence has been exchanged. We hoped that an accommodation could be reached, and we went to see him yesterday in the hope that that might be possible. He e-mailed us today to say that he could not accept our amendments.
It is clear to me that while on the one hand the Government do not want to be responsible for preventing these cases continuing in future, they have not so far been convinced that it is highly probable that they will occur in future. Why is that? The arithmetic, as has been said, is very clear. We seem to be in a situation where the department’s overriding concern that the architecture of the Bill should be retained is working here against good legislation. What other arguments can there possibly be? We have heard from those directly involved in these cases and we know what the figures are. It is clear that the facts outlined by the noble Baroness, Lady Coussins, and my noble friend Lord Brennan that the Government are wrong. I hope that when the time comes the noble Baroness will test the opinion of the House, and we will be supporting her in the Lobby.
Lord McNally
My Lords, I confirm that we have been in regular discussions about these amendments, and I regret that I am not able to accept them today.
There have been a number of comments about costs and indeed about the Trafigura case. What strikes me most about that case is that the £30 million that was won in damages worked out at about £1,000 per victim—against, as has already been accepted, legal costs that at one time, until they were beaten down, were running at £100 million. To me, that is an obscene system.
With regard to the reforms that we brought forward, we have said that we believe CFAs will continue. We are also introducing damages-based agreements. Far from welcoming them, though, the CBI and others worry that those may well provide funding in this area. So, it is not that the Government are opposed to bringing companies to account for their behaviour. I just do not believe in the rather broad claims by the noble Lords, Lord Brennan and Lord Judd, that this issue will dramatically affect the lives of people in developing countries. There are other areas of policy that are going to do much more than that.
I make clear that the Government strongly support claims arising from allegations of corporate harm in developing countries being brought, and we support the protection of damages for personal injury. Where we disagree with the supporters of the amendment is that we do not believe that our plans would prevent such cases being brought or ultimately damage the ability of NGOs and others to hold big business to account.
An exception along the lines proposed is in our view neither necessary nor justified. It is not necessary because reformed “no win no fee” arrangements will still allow cases to be brought. It is not justified because it would undermine the wider rationale for the Jackson reforms in Part 2 of the Bill, which should apply across civil litigation without any exceptions. In doing so, it would introduce unfairness between different types of claimant.
We recognise, however, that, following the Rome II regulations, damages in these cases can be relatively low, and they will not be subject to the 10 per cent increase available for other claims. The costs awarded can nevertheless be extremely high, as was demonstrated by the Trafigura case. The question is whether any exception should be made for these cases either on a wider basis, as proposed in Amendments 21, 22, 23 and 26, or on a narrower basis, as proposed in Amendment 27. I concede that in putting forward Amendment 27, the movers tried to put forward a narrow-based solution.
The Government have listened to this debate and those that went before, and we have reflected carefully on the points raised. We have held many meetings with interested stakeholders and NGOs over the past months, and the Government are fully aware of the strength of feeling on this issue. I have looked again at the evidence that has been presented, including reports by Professor Rachael Mulheron of the University of London and Mr Smith of First Assist. Both reports make the general case for recoverable success fees and insurance premiums to continue in these cases, but they do not present any figures showing why these cases could not be brought in future. During our discussions with the NGOs we have asked for such evidence but it has not been forthcoming, even though we have asked them for more detailed figures.
The truth is that the available evidence shows that these cases, though few in number—about 10 in a decade—have historically been highly profitable for the legal firms involved. Although under our plans the margins available would be reduced, they are still likely to remain attractive. I remind noble Lords of the sums involved. Since the previous Government introduced the recoverability of success fees and insurance premiums in 2000, we know that there have been only around 10 of these cases, mainly undertaken by a single firm of solicitors. Most of these cases have succeeded or settled, but some claims have been pursued in which costs have not ultimately been recovered. The figures suggest that in those cases that were not pursued to trial, there were disbursements of some £131,000 and legal costs in the region of £1.4 million. I appreciate that those figures will not cover all costs in all cases but they should be a fair ball-park indication. £1.4 million sounds like a lot of money for a firm to bear in what are effectively losses on a case not pursued and won until the substantial sums that have been received in success fees are considered. We know that in the case of Trafigura alone, success fees—intended to cover the costs in lost cases—of around £29 million were allowed by the Court of Appeal. Those figures amount to a net gain for claimant lawyers from these cases over the past decade of more than £27 million from the success fees for Trafigura alone. That does not include all the success fees in the other successful cases.
These figures speak for themselves. They cast all emotion aside and demonstrate the substantial gains in legal costs from these cases and the proportionately much lower costs expended. When the ratio of earnings to losses is more than 10:1, the current system can, to put it mildly, bear some reform. Therefore, while I recognise that claims against multinationals can be complex, the changes that we are making to the CFA regime will not prevent these cases being brought in the future. They can still be brought but the costs will be more proportionate. As Lord Justice Jackson recognised, a greater incentive for claimants’ lawyers to work more smartly is needed so that they incur only costs that are justified when bringing a claim, rather than allowing costs to escalate.
It is worth pointing out, as I have previously in the House, the criticism by the Court of Appeal of the costs claimed by the claimants in the Trafigura case. In that case, the court itself questioned whether some of the work undertaken by the claimants’ lawyers was necessary. It criticised them for seeking costs of £100 million in a case that resulted in payment of £30 million in damages. It is not for me to question the conduct of those involved, but it needs to be borne in mind when looking at the extraordinary costs claimed in that case alone. I should add—again, as I have pointed out to the House previously—that in that case the defendant’s costs were approximately £14 million, which is around one-seventh of the costs claimed by the claimants.
I turn now to Amendment 27, which seeks to allow for the recoverability of “after the event” insurance premiums to pay adverse legal costs, including expert fees and other disbursements. In doing so, the amendment goes much wider than just the cost of funding the expert reports for which we have provided in the special situation of clinical negligence cases. The amendment would potentially cover paying the other side’s costs, too, but this is not necessary because we are introducing a system of qualified one-way cost shifting in personal injury cases, which will protect losing claimants from having to pay the other side’s costs. We have discussed making exceptions in relation to expert reports in other contexts, but we do not believe that an exception is more needed here than in other cases. As I have said, the costs recovered in successful multinational cases have been substantial and could provide funds towards paying up front for reports where needed.
As I indicated on Report, on several occasions my officials and I have met representatives of the NGOs that support these cases. However, we have not been persuaded that such cases cannot continue to be brought when our changes are implemented. Nor are we persuaded that they justify an exception in the Bill that would be unfair to other, no less deserving claimants.
The House will be aware of all the arguments that I have rehearsed today, in Committee and on Report. We have treated subsequent discussions with the seriousness they deserve, and we have listened carefully. However, the Government continue to believe that reform is unavoidable, necessary and overdue. In this case in particular, we should not mix up a challenge to overgenerous costs with a denial of access to justice. Access to justice is precisely what the reformed CFA regime will protect, but as part of a more proportionate and balanced system. Therefore, I urge the noble Baroness to withdraw her amendment.
Lord Beecham
My Lords, the Opposition certainly support the amendment moved by the noble Lord, Lord Pannick, in his customary and eminently reasonable way. He clearly draws the analogy between the changes that the Government, to their credit, accepted in relation to legal aid and what is being advocated here. It adopts the precautionary principle whereby if things went wrong—they may not of course—there would be a fairly simple way of correcting them if the amendment were to be accepted. If it is not accepted, we would presumably be in for a long delay while primary legislation was enacted, as both noble Lords have made clear.
In this case, discretion is the better part of legislative valour, and I hope that the Government will accept the amendment. It does not bind them to anything but provides an opportunity for corrective measures to be taken, if that should prove necessary, in precisely the same way that they have accepted in relation to legal aid.
Lord McNally
My Lords, the noble Lord, Lord Pannick, has tabled his amendment along the lines he suggested on Report. He suggested then that it might be sensible to have a power to disapply the effects of Part 2 in relation to the abolition of recoverability of success fees and insurance premiums in respect of particular categories of case. The amendment now seeks to achieve that.
I have referred on several occasions during the passage of the Bill to its central architecture. The Government’s view, quite simply, is that the current recoverability regime is wrong in principle. It is wrong in principle to impose substantial additional costs on losing parties, whether in relation to success fees or insurance premiums. Those costs add to the already significant costs of civil litigation and allow for risk-free litigation by claimants and what I earlier described as inflation in our legal system.
I have explained the rationale for our proposals and why we consider that they should apply across the board without exception, and I do not propose to repeat those arguments now. The amendment seeks to allow different recoverability in different classes of case. We are implementing a package of reforms, not all of which are contained in the Bill. This package has been carefully put together to be fair between claimants and defendants.
I understand the noble Lord’s intentions. I understand that he thinks it sensible to allow for exceptions to be made at a later date. However, we are legislating now on what we consider to be a fair and overdue basis. Funding arrangements need a degree of certainty. Claimants and defendants need to be able to plan and adapt to the new regime. The amendment would only create uncertainty. Will an exception be created? For what and when? Rather than settling the issue of CFAs, as this Bill seeks to do, the amendment would open the door to constant campaigning and calls for individual exceptions. The amendment may be well intentioned but it is fraught with difficulty. It would provide uncertainty and confusion where we are seeking to introduce clarity. It would provide increased costs where we are seeking to reduce costs. It is wrong in principle and unnecessary. I urge the noble Lord to withdraw it.
Lord Pannick
My Lords, I am grateful to noble Lords who have spoken in the debate. I simply do not understand how the amendment undermines certainty any more than does the equivalent provision in Part 1. I repeat that it would simply confer a discretionary power on the Lord Chancellor. I understand that the Government believe that the architecture in Part 2 is correct, but the Minister should accept that experience may show that in some contexts, the architecture does not work. The amendment would, importantly, ensure that if those concerns prove to be justified, the Lord Chancellor will have a power to do something about it.
This is an important matter. I wish to test the opinion of the House.
Lord McNally
My Lords, my noble friend is catching something that perhaps I should not call Pannick disease. The noble Lord, Lord Pannick, has a habit of asking questions and then giving the answers. We will have to see whether I will be able to satisfy my noble friend on the questions that he raised.
As I explained, the basic rationale for the proposed reforms to no-win no-fee conditional fee agreements is to squeeze the inflation out of our legal system. It is to rebalance the system to make it fairer as between claimants and defendants. They do this by correcting the anomaly whereby those who bring cases have no incentive to keep an eye on the legal costs. Right now, the recoverability of success fees and insurance premiums from the losing side can have the perverse effect of preventing defendants fighting cases, even when they know they are in the right, for fear of the disproportionate legal costs involved if they were to lose.
High and disproportionate costs have a negative impact not just because they can deny access to justice but more broadly because they can lead people to change their behaviour in damaging ways because of the fear of claims. Nowhere is that more true than in relation to responsible journalism, as well as to academic and scientific debate. The judgment of the European Court of Human Rights, to which my noble friend Lord Lester referred, in January 2011 in Mirror Group Newspapers v the UK—the so-called Naomi Campbell case—found the existing CFA arrangements with recoverability in that instance to be contrary to freedom of expression under Article 10 of the convention. Editors and journalists have long warned of the chilling effect of the current libel regime and argued that part of the problem is the huge costs that no-win no-fee cases impose. However, defendants are not always rich and powerful newspapers; they are also scientists, NGOs, campaigners and academics.
I have already made the general argument that any exception to reforms intended by Lord Justice Jackson to apply across the board is invidious and likely to lead to unfair anomalies with special treatment for some areas of law but not others. In the case of defamation, I additionally argue that these amendments are premature because, as the noble Lord, Lord Lester, explained, these issues need to be considered in the context of the defamation Bill, which we aim to introduce as soon as a legislative opportunity arises.
Lord McNally
The noble Lord will have to wait and see. One thing is certainly true: I have made every effort to make sure that defamation is not engulfed in a tsunami from Leveson. If we really want to reform defamation and not get caught up in a much wider privacy law, what I am trying to do is the way forward. Stunts like dividing the House tonight will show that, on this Bill, the noble Lord is still more interested in short-term political gain than in making progress.
Lord Thomas of Gresford
As a member of the committee that has just reported, I should remind the noble Lord that it advised against a privacy law.
Baroness O'Neill of Bengarve
Before the Minister finishes winding, will he explain to the House why he does not think that these exemptions—the noble Lord, Lord Lester, may be entirely right—are the right way to go? Does he not think that two successive changes in the regime are the very worst thing for litigants in this area? In so far as we are leaving the Bill as it is, one change will happen now and another will happen down the road if there is legislation on defamation.
Lord McNally
We are talking about a Bill that does not come into effect until 2013. Given that defamation legislation is in process, I do not think the fact that there is a slight lacuna is a major problem in terms of the issues that the Bill will deal with. If it takes a little longer, that is a problem, and I will return to that.
That Bill and associated measures seek to reduce the costs of litigation and discourage unnecessary litigation in the area of defamation. We seek to do so, very broadly, by introducing a range of substantive and procedural changes and also by focusing on alternative dispute resolution, which is quicker, at lower cost, and offers more meaningful redress.
Any exceptions for defamation or privacy cases from the changes in Part 2 are unnecessary because our CFA reforms should not prevent strong cases being brought. I share the concern that individuals who are not wealthy or powerful sometimes need to bring defamation or privacy cases. Nothing in our proposals should prevent that where a case is a good one.
The noble Lord, Lord Bach, sometimes makes me gasp when he starts lecturing our Benches on consistency. The noble Lord, Lord Prescott, asked why this was happening now. Perhaps I may quote an expert on these matters:
“CFAs will remain available for defamation cases; thereby, lawyers will still be able to use them in deserving cases”.—[Official Report, 25/3/10; col. 1157.]
Those were the words of the noble Lord, Lord Bach, as Justice Minister, when he rushed attempts to reduce success fees before this House just before the election. We have already heard what happened in the grand coalition that was the Labour Government when the proposal went down the other end. Nevertheless, the noble Lord, Lord Bach, told this House:
“There is a substantial body of opinion that 100 per cent recoverable success fees should not continue in defamation cases”.—[Official Report, 25/3/10; col. 1156.]
He was backed up by a consultation which said,
“immediate steps are needed in respect of defamation proceedings”.
Lord Bach
My Lords, I stand by those remarks. If the Minister thinks that there is something wrong—for example, the difficulty in relation to damages where, under his Government’s scheme, claimants will have to pay up to 25 per cent of the damages they get—what is he going to do to change that? He is in government now.
Lord McNally
We are doing what they did not do. We are bringing forward a Defamation Bill that will address many of these problems. The noble Lord says that he does not know what is in the Defamation Bill. A Defamation Bill was brought into this House by my noble friend Lord Lester two years ago, when this Government first came in. In reply to that, I said from this Dispatch Box that we would take up this Bill. We went into a consultation, which has been published. We produced a draft Bill, which the noble Lord may have noticed. We also had pre-legislative scrutiny under the chairmanship of the noble Lord, Lord Mawhinney, and we have responded to that.
We have played this by the book. We have not tried to rush through legislation, as the noble Lord did in the dying days of his Government. We have carried out a sensible look at defamation. The noble Lord knows the conventions. I am very hopeful that we will find parliamentary time in the very near future.
As I have already said, the legislation in this Bill does not come into effect until 2013. The Defamation Bill and the procedural reforms that we intend to take forward with it are of course about reducing the complexity and therefore the expense involved. In order for those aims to be achieved, we will look at the rules on costs protection for defamation and privacy proceedings for when the defamation reforms come into effect. I can give the House the assurance that we will do so. Bearing that in mind, I hope that the noble Lord will withdraw these amendments. We are on course for a reform of our defamation laws.
Lord Lester of Herne Hill
My noble friend the Minister accused me of asking questions to which I knew the answer, but this question I do not know the answer to. Is the Minister saying that there will be adequate powers, either under existing law or the future legislation, to create any cost changes that are needed to secure a level playing field and equality of arms? If that is what he is saying, I am completely satisfied.
Lord McNally
That is precisely what I am saying. I have not brought this Bill this far to score such an enormous own goal. Noble Lords, particularly those who have been in government, know full well how these processes are carried forward. Nothing will happen that will not be fully and thoroughly debated in both Houses of Parliament. I know that various groups have been briefing and arguing for action now. I do not think that these amendments carry us forward in any way.
I give noble Lords as full an assurance as I can. Bills have to go through Cabinets and Cabinet committees, et cetera, but they also have to go through two Houses of Parliament, where this issue is extremely live. I cannot imagine that the kind of issues that the noble Lord, Lord Prescott, has raised tonight will not be dealt with fully in that Defamation Bill. With that, I urge the noble Lord to withdraw his amendment.
Lord Prescott
I certainly do not withdraw the amendment and I hope that the House will vote on it.
Lord McNally
“( ) the legal services relate to any other claim or potential claim for damages arising out of circumstances involving personal injury or death,”
Lord McNally
My Lords, I committed on Report to bring back at Third Reading amendments to address issues raised by my noble friend Lord Hunt of Wirral in respect of Clause 57. Amendment 29 addresses situations where the referral fee for an ancillary claim, such as for damage to a motor vehicle involved in a road traffic accident, in addition to a personal injury claim, may be inflated to include a payment for a referral fee for the personal injury claim. Amendment 30 makes it clear in the Bill that the payment of referral fees to a third party, whether or not they are regulated, will not avoid the prohibition on the payment of referral fees. This gives both practitioners and regulators a clear marker and removes doubt as to the effect of the clause. We do not wish to place additional burdens on regulators and these amendments will remove the potential for confusion on what is and what is not covered by the ban.
I wish to put on record my thanks to my noble friend for tabling his amendments, which have enabled the Government to strengthen and clarify the ban on referral fees in personal injury cases. I beg to move.
Lord Hunt of Wirral
My Lords, I thank the Minister and declare my interest as a partner in the international commercial law firm, DAC Beachcroft LLP, and my other interests in the register.
I warmly applaud the coalition Government’s intention to ban referral fees in personal injury cases. The amendments establish greater clarity around the operation of the ban on referral fees to ensure that there must be no side-stepping of the intention to ban them. I thank him warmly for bringing forward these amendments at Third Reading.
Lord McNally
Lord McNally
“(9) In Schedule 9 to that Act (transfer of community orders to Scotland or Northern Ireland)—
(a) in paragraph 1(5), after “require” insert “an alcohol abstinence and monitoring requirement or”, and(b) in paragraph 3, after sub-paragraph (4) insert—“(4A) The court may not by virtue of sub-paragraph (1) or (3) require an alcohol abstinence and monitoring requirement to be complied with in Northern Ireland.” (10) In Schedule 13 to that Act (transfer of suspended sentence orders to Scotland or Northern Ireland—
(a) in paragraph 1(5), after “require” insert “an alcohol abstinence and monitoring requirement or”, and(b) in paragraph 6, after sub-paragraph (4) insert—“(4A) The court may not by virtue of sub-paragraph (1) or (3) require an alcohol abstinence and monitoring requirement to be complied with in Northern Ireland.”(11) In the Armed Forces Act 2006—
(a) in section 180 (transfer of service community order to Scotland or Northern Ireland), in subsection (2), after “3(1)” insert “and (4A)”, and(b) in section 204 (transfer of suspended sentence order to Scotland or Northern Ireland), in subsection (2), for “6(5)” substitute “6(4A) and (5)”.”
Lord McNally
My Lords, Amendments 33, 34, 35, 42 and 43 are minor and technical consequential amendments, which provide clarification of the provision of the alcohol, abstinence and monitoring requirement introduced by an amendment on Report. Our intention is that new requirements should be available to the courts in England and Wales but not to the courts in Scotland or Northern Ireland. The amendment therefore ensures that the new requirement will not be capable of being imposed by a court in England and Wales on a person who is resident in Scotland or Northern Ireland. I beg to move.
Baroness Finlay of Llandaff
My Lords, I welcome these amendments. I am grateful to the Government for addressing an area that I overlooked in the amendments that I had drafted. I also should like to place on record my gratitude to the noble Baroness, Lady Northover, who, with me, met the domestic violence groups, as we had promised in the previous proceedings. We had a very useful and fruitful meeting with open discussion. At the end, everyone agreed that it was very clear that there was never any intention that the pilots should involve domestic violence, particularly not at the beginning, because the issues around domestic violence are so complex. The organisations involved in domestic violence very much want to be consulted at every stage of further development and the programmes in place to help people cope in situations of domestic violence are very important in trying to provide a safer and more stable society.
Lord McNally
(a) ”
Lord Bach
My Lords, I will be as brief as I can with this amendment. This is the third time that the issue has come before the House. The names put to the amendment on the first occasion were those of the noble and learned Lord, Lord Mackay of Clashfern—who made a very powerful speech—the noble Lord, Lord Thomas of Gresford, and mine. On Report it was just my name and that of the noble Lord, Lord Thomas of Gresford, and he made a very powerful speech. Now it is down to one, and I intend simply to ask the Minister some questions.
The Minister will recall that, on Report, he stated that the Government accepted that “insolvency proceedings are untypical” and—stand apart as they are—that they are,
“one of the few areas where CFAs sometimes work to the advantage of government departments”,
and creditors generally. Despite that, and despite what I would argue are clear arguments in favour of it, the Government have decided against “a carve-out” for insolvency. The Minister announced that there has been,
“agreement across government, in respect of insolvency proceedings”,
and,
“that new ways will be implemented to deal with these cases without recoverable success fees and insurance premiums”.—[Official Report, 14/3/12; col. 358.]
The insolvency profession has apparently not been involved in any discussions with the Government about this new way of approaching insolvency proceedings and is concerned that the Ministry of Justice and HMRC may have decided that a contingency legal aid fund could be set up for insolvency cases.
My questions to the Minister are as follows. First, what are the Government planning with regard to insolvency proceedings and—to ask the same question as the noble Lord, Lord Thomas, asked on Report—when will this be implemented? Is it indeed a contingency legal aid fund, or is it not? Secondly, if the Government are not going to exempt insolvency proceedings, will they agree to carry out a proper impact assessment to determine the impact that this will have on the taxpayer and business community? Thirdly, have the Government consulted the insolvency profession on how this might work in practice? Fourthly, will this measure help safeguard returns not just for HMRC but for private businesses as well? Fifthly, will this measure act as a fraud deterrent, as the current system does? Sixthly, if this new way does not work, what protections will the Government put in place to safeguard returns to HMRC and businesses? Could there be an exemption, for example, further down the line? Lastly, can the Minister assure the House that the Government will consult the insolvency profession on the details of these proposals? Those are the questions that I would like answered. I beg to move.
Lord McNally
My Lords, as I indicated on Report, we have reached agreement across government in respect of insolvency proceedings. In future these cases will need to proceed without recoverable success fees and insurance premiums. Alternative ways will be developed in time to deal with these important cases. We are working on a programme for implementing Part 2 of the Bill, and the details relating to insolvency proceedings will be set out in due course, before implementation. Insolvency cases will need to proceed without recoverable success fees and insurance premiums in the future. The impact of the Government’s CFA changes on those affected will depend on a number of unknown factors, including the volume of cases pursued in future, the number of cases which win, the levels of success fees and ATE insurance premiums negotiated, and the recoveries made in those cases. The Government will work with HMRC and others to further assess the impact of our changes. Policy discussions within government continue all the time, and remain confidential until the policy is agreed and announced. I urge the noble Lord to withdraw his amendment.
Lord Bach
Of course I am going to withdraw my amendment this evening, and I understand that the Minister could not answer all the detailed questions that I put to him just a few minutes ago. I would be grateful if he would be good enough to get his officials to write to me, through him, with the replies that he was not able to give tonight.
Lord McNally
To clarify, my Lords, we will engage as well with insolvency practitioners.
Lord McNally
“(3A) Section 78 extends to England and Wales, Scotland and Northern Ireland, subject to subsection (10).”
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord McNally Excerpts(12 years, 9 months ago)
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Lord Phillips of Sudbury
My Lords, I shall intervene briefly. I declare an interest in that a firm in which I was a partner had major arrangements with a number of trade unions.
I say to the noble Lord who has just spoken that the unions and the firms who do their work will be able to adjust their arrangements. For a start, by not paying the referral fee, the solicitors doing the work will be able to drop their charges to take account of that fact, and the trade unions will be able to adjust their arrangements with their members, although it will not be a major adjustment. The point that the noble Lord reasonably made is capable of adjustment in a way that will enable the abolition of referral fees—which, in general, are extremely deleterious to justice—to be effected.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, this proposal is not in any way union bashing and I am sorry that it has been caught up like that. I was pleased that when the noble Lord, Lord Beecham, opened the debate he joined with the Government in our general desire to ban referral fees. It is of course right that injured people should be able to pursue claims and under our reforms they will be able to do so. Costs will be more proportionate and the damages they receive will be increased.
However, it is wrong for third parties to be able to profit from referral fees for personal injury cases in this way. I found the intervention of the noble Baroness, Lady Deech, last Wednesday extremely powerful and I recommend noble Lords to reread it. The noble Lord, Lord Beecham, is right: it is not four-square with referral fees but it illustrates the danger of sweetheart relationships in this area. The Law Society was quite right—but rather belatedly so—to deal with a great injustice to miners who had already suffered much in their industry.
On the question of political funding, yes, I understand the difference between union general funds and the political fund and that it is the political fund that goes to the Labour Party. However, again, the noble Baroness, Lady Deech, explained that she was referring to the party itself acting as a referee. Even as I speak, I wonder whether this merry thought has occurred to any other political party. I know political parties look for ways to earn funds and, if this has been thought up by the Labour Party, it is, at the moment, within the law. However, we do not think it is right.
I also welcome the intervention of my noble friend Lord Phillips. I do not always welcome his interventions but this time he has put his finger on it: we are not preventing solicitors taking on a case at reduced rates or for free; nor are we preventing solicitors from making donations to charities or other not-for-profit organisations. Charities representing injured people will still be able to offer advice and recommend the best law firms. However, they should do that in the claimant’s best interest, not on the basis of what fee they can get for that claim. The amendment would not only allow an exception for charities and unions but for all not-for-profit organisations. I fully appreciate that trade-union, charity and political-party referral fees can be nice little earners, but that kind of relationship is not in the best interests of the consumer.
I say to the noble Lords, Lord Monks, Lord Brooke of Alverthorpe and Lord Martin, that I am well aware of the record of trade unions in legal advice and the help that they give to their members. I have no doubt of the accuracy of the figure of 50,000 a year given by the noble Lord, Lord Monks. However, I also take the point—which I did not know—that only two trade unions use referral fees. This suggests to me that this is not the universal attack on trade unions that anybody has suggested. We simply say that whether it be political parties, trade unions or charities, it is not healthy or in the consumer’s interest to have sweetheart deals between unions, charities or political parties and individual law firms.
The amendment goes further than earlier proposals. Some claims management companies are currently not-for-profit organisations and others could become not-for-profit bodies in order to get around the ban. In Committee, the noble Lord, Lord Bach, tabled an amendment that would have made an exception for charities only. This amendment now makes a wider exception which would exempt unions, political parties and not-for-profit claims management companies as well.
We believe that referral fee arrangements are wrong in principle. Under the cloak of support for charities, the amendment would allow payments for the referral of personal injury cases by a wide range of organisations. This amendment would make a mockery of the ban on referral fees, which the Opposition have claimed to support in principle—and I believe they do support it in principle. I really think—and the more I listen to this debate the more I think it—that for the Opposition to press this amendment is simply wrong-headed. I hope that the noble Lord will withdraw the amendment.
Lord Beecham
My Lords, let me make it clear that I do not for a moment charge the Minister—or indeed the Government—with conceiving of this as in any sense aimed at trade unions. It is a by-product of policy. Let me also remind your Lordships that referral fees are only banned—certainly at the moment, under the terms of this Bill—in respect of personal injury claims. For any other kind of arrangement, referral fees are apparently acceptable—not, however, in the context of personal injury claims.
That really illustrates whence this proposal comes from. It comes from the unacceptable activities of those who have perhaps been promoting spurious claims—and we will come at the next amendment to the kind of techniques that some of these firms and outfits adopt to encourage claims in a way that fosters this myth of the compensation culture. That is the genuine motivation of the Government; what they are doing to deal with it goes too far.
I do not recall having jousted in legal terms with the noble Baroness, Lady Deech, 50 years or so ago when we shared adjoining desks at the Honour School of Jurisprudence, but I will joust a little with her, if I may, this afternoon. She first of all asserts that it would be an incentive for firms not to do the job properly. I do not know what possible basis she can have for saying that. A solicitor’s job is to do his best for his client. In a sense, there are two clients when one is acting for somebody referred by an organisation. Far from it being the case that there is no incentive to do the job properly, there is a greater incentive to do the job properly when one has a connection with a potential source of work—whether there is a referral fee or not —because, of course, one does not just lose and upset one client: one potentially loses a whole stream of work. In fact, therefore, the converse of her proposition is actually true.
The second of the noble Baroness’s points which I seek to rebut is that this deprives people of choice. A union member or a member of a charitable or other organisation does not have to use the organisation that is recommended or go to one that pays a referral fee. They have the same choice as anyone else. But they may choose to rely on their own organisation, trade union or otherwise, having established from its experience that a particular firm or firms are capable of carrying out the work. The choice, however, remains with them. The noble Baroness has been on the website and discovered the Labour Party’s scheme. Let me tell her and the House how much that scheme has raised: nil, nothing, not a penny. It is about as vibrant as Monty Python’s parrot. It is redundant. It is a dead scheme. It has never been activated, so that issue need not distract your Lordships’ House.
Before I conclude, I should make one other point in relation to charitable organisations. The ones I have mentioned operate on a referral-fee basis. There are three of them and I think there may be others, although perhaps that is a little beside the point. I liken the process to another aspect which is certainly something that political parties and many charities operate, and that is an affinity card with a bank, where a percentage of one’s expenditure when using the card goes to the organisation. In precisely the same way that it could be alleged—I think wrongly—that as referral fees increase costs in the legal system, so by definition an affinity card must push up the costs in relation to financial services. It is an analogous situation.
I feel strongly about this—
Lord Beecham
My Lords, I entirely support the amendment. The noble Lord, Lord Clement-Jones, is right that this practice is a nuisance. I was half expecting a text message after I told the House about my fall the other day. I thought that eager readers of Hansard in these companies would have solicited my attention or that of the noble and learned Lord, Lord Wallace of Tankerness, but so far nothing has happened. However, like many of your Lordships, I receive periodic texts and e-mails from organisations saying that I may not have made a claim in respect of my recent accident or, latterly, about payment protection insurance problems, and the like. As the noble Lord, Lord Thomas, said, it is an insidious practice and certainly ought to be banned.
I hope that the Minister accepts the amendment and that, if he does not, the noble Lord, Lord Clement-Jones, tests the opinion of the House.
Lord McNally
My Lords, this amendment looks to deal with the serious problem of unsolicited marketing, including text messages or telephone calls about personal injury claims. I congratulate my noble friend on raising an issue which, as the noble Lord, Lord Beecham, indicated, annoys and irritates millions of our fellow citizens. I assure the House that the Government have given careful consideration to this issue since my noble friend raised it in Committee. Legislation, which is primarily enforced by the Information Commissioner’s Office, already exists to protect individuals in this area. Recent action by that office has resulted in the confiscation of more than 20,000 mobile phone SIM cards that were being used to send unsolicited text messages.
Following this issue being raised in Committee, my honourable friend Jonathan Djanogly, the Justice Minister, will meet the Information Commissioner to discuss further how the problem can be addressed. Additionally, the ICO, the Ministry of Justice Claims Management Regulation Unit and other regulators continue to work closely with the telecommunications industry on this problem. Across government, an industry working group has been set up and is due to publish a joint guidance note for consumers explaining the functions of the relevant regulators along with advice on how to make a complaint.
On the particular point about advertising in hospitals, the Government do not support the marketing of such services on NHS premises. There is already an absolute ban on unauthorised marketing by claims management companies. We believe that it is more appropriate that authorised marketing should be dealt with through guidance rather than through regulation. In support of this approach, the National Health Service chief executive has recently written to NHS managers to make clear the position on marketing in hospitals and primary health centres.
I am grateful to my noble friend for raising this issue. The Government take it very seriously and are taking positive action. We believe that the answer lies in greater enforcement and robust action, along the lines of regulations and guidance that already exist. We will continue to monitor the situation and take it seriously, and I hope that in the light of that response my noble friend will agree to withdraw this amendment.
Lord Clement-Jones
My Lords, I thank the Minister for that reply. It very much falls into two parts, as far as I can see, in terms of action by and with the Information Commissioner and action by the Secretary of State and Ministers relating to unauthorised and authorised marketing in NHS hospitals. The bit I find difficult is not that relating to the Information Commissioner; indeed, it is very welcome that those powers are being mobilised and that the Minister, Mr Djanogly, is having the necessary meetings with the Information Commissioner. The surprising part concerns the National Health Service. I think that the view around this House is that there should be no authorised marketing of this kind within NHS hospitals. What baffles me is why that kind of marketing is allowed to persist within NHS hospitals. I am not going to press the amendment today but I very much hope that we can progress further, certainly in pressing the Department of Health to be much more robust than appears to be the case about this kind of marketing.
Whatever the form of marketing which is an arrangement between a hospital and a firm of solicitors —perhaps advertising law firms within hospitals or allowing texting—it certainly falls morally within the terms of the kind of action that we are trying to prevent within this clause. It therefore really should be covered, and if there is that power within the department —or indeed by any future regulator under the health Bill that has now passed—I very much hope that it will be exercised and that my noble friend the Minister’s department will keep pressing the Department of Health. Perhaps we might even bring this back for an assurance on Third Reading, to understand exactly what is being authorised if there is such a thing as authorised marketing of this kind. In the mean time, I beg leave to withdraw the amendment.
Lord Bach
My Lords, we congratulate the noble Lord, Lord Pannick, from these Benches. I thank him very much for his well deserved tribute to my noble and learned friend Lord Goldsmith. I have to say that I felt a slight tremor of envy when I saw this amendment on the Marshalled List. I have tried throughout the Bill to put forward an amendment that might have the name of the noble Lord, Lord McNally, attached to it, but have failed miserably. The noble Lord, Lord Pannick, makes one attempt and it succeeds.
Lord McNally
My Lords, I will explain. The original amendment by the noble Lord, Lord Pannick, did not cut the muster as legal statute. As the noble Lord knows, I have qualifications in this area, so I tweaked it a little, on the basis of my knowledge of part 1 of the relevant material on English legal institutions, to make it fit for purpose. I was glad to do so.
I am also glad to associate myself with the intervention of my noble friend Lord Phillips, who is on a roll today. I commend LawWorks and its encouragement of pro bono work on the part of solicitors, the Access to Justice Foundation and the work of the noble and learned Lord, Lord Goldsmith, in this area. We hope that it will increase the stream of funding available for pro bono work. I have great pleasure in saying that the Government accept this amendment.
Lord Pannick
I renew my thanks to the Minister. He is absolutely right; those advising him did indeed improve the drafting of the amendment and I am very grateful to them as well.
Lord McNally
My Lords, the noble Baroness, Lady Corston, said that she had discovered over the years that she had become not only an adjective but a noun as well. I told her last week when we met that she was well on her way to becoming a national treasure—something I would not wish on anybody. Her report was certainly a landmark report. It is required reading for me and I listen carefully whenever she speaks and when other experts in the House speak on this subject. I also listen carefully to criticisms such as those recently made by Nick Hardwick and repeated today by the noble Baroness, Lady Stern.
I should like briefly to mention our response to those criticisms, and particularly to his criticism of the Keller unit. This is being reviewed and a number of recommendations have been suggested. The potential for the provision of updated facilities to supplement or replace the Keller unit is being reviewed by the National Offender Management Service. However, the majority of recommendations have been actioned, including the development of healthcare and support, including mental health, first aid, training in positive behaviour, support methods, the presence of a registered mental health nurse seven days a week, structured therapeutic programmes provided by mental health occupational therapists and a co-ordinated approach to the clinical review of patients. There is also the introduction of a programme of structured intervention on a daycare basis that is accessible to the residents of the Keller unit. Steps have been taken to ensure the timely sharing of records between mental health and primary care teams. The new governor of HM Prison Styal is currently reviewing the role of the Keller unit, alongside the development of other specialist accommodation in the prison to meet the needs of women with a range of complex problems. The review will continue, and the prison is currently bidding for funding to establish a therapeutic unit.
I emphasise from this Dispatch Box the importance I attach to a strategic and coherent policy addressing the problems of women at risk and the problems of women in prison and on release. The noble Baroness, Lady Gould, and the noble Lord, Lord Wigley, gave us the statistics that underline the importance and urgency of this matter. As the noble Baroness, Lady Corston, mentioned, I had an interesting and informative meeting with Peers and stakeholders last week on the occasion of the fifth anniversary of the Corston report. The noble Lord, Lord Judd, paid tribute to the long-term interest of the noble Baroness in these issues. My interest has grown with every month that I have been in office, every visit I make and every meeting I hold. As has been said, we have too many women in prison and we intervene too late.
However, I do not believe that a women’s justice policy unit bringing together officials from several government departments, as proposed in this amendment, is necessary. That approach was tried a few years ago, but I understand was discontinued after a year or so. I can reassure the House that there continues to be a dedicated resource to women offenders within the Ministry of Justice. However, rather than co-locating staff from other government departments into the Ministry of Justice, officials now work closely with a wide range of rehabilitation reform policy leads in those other departments who are best placed to address the needs of women offenders in their policy areas, including health, employment and homelessness. These close working relationships across departments help to ensure that the needs of women offenders are embedded in cross-government policy-making.
As I explained in Committee, this cross-government approach receives strong leadership from the Minister for Prisons and Probation, my honourable friend Crispin Blunt, who works closely with his ministerial colleagues, in particular the Minister for Women and Equalities and the Parliamentary Under-Secretary of State for Equalities. The amendment suggests that the policy unit would report and be answerable to an interministerial committee. I do not believe that we need any additional interministerial governance for the women’s agenda. The Inter-Ministerial Group on Equalities, on which Ministry of Justice Ministers sit, has responsibility for driving forward the Government’s equality strategy, including strategic oversight of issues affecting women. Departments also work together through the Cabinet Committee on Social Justice and the All-Party Parliamentary Group on Women in the Penal System.
Finally, let me assure noble Lords that officials are already delivering effectively the functions envisaged for the new policy unit. As I explained in Committee, we already have and are delivering a strategy for women offenders. This ensures that women will benefit in key areas such as mental health, drug recovery, tackling violence against women, troubled families and employment. It recognises the important role of women’s community services, as well as the good work by NOMS to implement many of the recommendations in the noble Baroness’s report. We also actively consider gender equality as required under the Equality Act 2010. We are committed to monitoring progress on achieving key outcomes for women offenders in all areas of our approach to rehabilitating offenders. For example, in setting out our plans radically to reform criminal justice through improved punishment, payback and progression of offenders, we have looked very carefully at how these reforms will impact on women, and have given a clear commitment that we will take into account the different profile of women offenders in achieving this, including the reasons underpinning their offending. I believe that there is effective provision to ensure that the Government are held to account for progress against this agenda.
The noble Lord, Lord Ramsbotham, gave us a long list of titles and initiatives, but he also pointed out that nothing has happened. What we need is what the noble Lord referred to: a drive to get it done. I believe that this is what the Government are doing—a drive to do practical things. In Committee, I undertook to consider what more we could do to communicate our priorities for women because, as I have emphasised, I believe that the priorities and policies are already in place. While I do not believe that we need a statutory requirement to report annually to Parliament on our work, I have agreed with my honourable friend Crispin Blunt that we will publish a short document setting out our strategic priorities for women. We will place this on the Ministry of Justice website for easy reference. It will be a live document that can be updated as necessary and will be available to promote questions and debate both in this House and the other place on the progress being made. We will continue to listen to noble Lords on this important issue. Noble Lords sometimes overemphasise the importance of writing things in the Bill. I believe the greater importance is, in the words of the noble Lord, Lord Dholakia, in achieving outcomes.
I have listened carefully to this debate. It has been an excellent debate, and I think it will read well outside. I honestly do not believe it is a matter on which the House should divide. I am not in a position to accept the amendment and, therefore, if the noble Baroness does press it, I shall ask my noble friends to vote against it. I would rather urge her to withdraw it in the spirit in which this debate has taken place.
I have said that we will publish a strategic document. It will be a short document setting out our strategic priorities for women. It will be a live document and will be updated. I believe that goes some way towards what the House has been asking for. I believe also that what we are doing in practice meets the demands that have been before the House today. In that spirit, I urge the noble Baroness to withdraw her amendment.
Baroness Corston
My Lords, I am grateful to noble Lords on all sides of the House who have spoken in support of this amendment. I am grateful to them for highlighting the profile of the women about whom we talk. They are poor, they are mothers, they are mentally ill, they are alcoholics, they have very little education, and they have no life skills. They are in prison for an average of 28 days, at the end of which they have lost their homes and children and generally do not get either back. It is a huge social issue, and this is the place where it can be resolved.
I have to say that the Minister is badly advised. One of the reasons progress was made from 2007 was because a women’s criminal justice policy unit was established, and because there was an interministerial group run by Maria Eagle, who harried officials, organisations and NOMS to make sure that this happened. On her watch, more than 30 so-called Corston women’s centres were set up across the country to reduce women’s offending, with spectacularly wonderful results.
To say that there was not an interministerial group is not right. Nor is it right to say that there was not a unit, in that I know that the people working in that unit from different departments made things happen. Indeed, collocation of staff from different agencies in youth offending teams and the Youth Justice Board was the key to getting agencies to work together. If you do not have that nationally, it will not be reproduced regionally and locally.
As the noble Baroness, Lady Stern, who I think of as a friend, said, you can make progress but you can quickly revert. All I say to the Government is that quick reversion is what will happen. I am sorry to sound so passionate, but it is because I feel passionate. I wish to test the opinion of the House.
Lord McNally
Lord McNally
My Lords, this group of government amendments contains a number of minor and technical amendments to suspended sentence orders, detention and training orders, youth remand, and the release and recall provision. This group also contains a few substantive amendments to youth remand. Last week, I wrote to all Peers about these amendments, and a copy of the letter has been placed in the House Library. The youth remand-related substantive amendments in this group mean that any imprisonable offences committed while a young person was remanded in prison will be taken into account in order to determine whether a young person has a history of relevant offending.
Amendments 152ZB and 152BZA remove two provisions that are no longer necessary. Clause 75(10) and paragraph 20 of Schedule 9 contain amendments to the Armed Forces Act 2011. The effect is to modify amendments that Schedule 3 to that Act makes to the Armed Forces Act 2006. This was to ensure that those amendments would work if this Bill came into force before the 2011 Act. In fact, the amendments in the 2011 Act will come into force on 2 April 2012, which makes Clause 75(10) and paragraph 20 of Schedule 9 redundant.
Amendments 152YH to 152YQ are technical amendments that will ensure that Armed Forces legislation properly reflects the changes that the Bill makes to the release provisions in the Criminal Justice Act 2003. The Bill makes changes to Section 240 of the 2003 Act on how relevant periods of remand time are credited towards a prisoner’s sentence, and in Schedule 15 makes certain transitional arrangements. These amendments ensure that these changes are also reflected in the equivalent Armed Forces legislation.
Substantive Amendments 152H, 152K, 152P, 152T, 152U, 152W, 152X, 152YD and 152YF in combination provide that where a young person who is being dealt with under the remand provisions of the Bill has previously committed imprisonable offences while remanded in prison under the current law, such offences can be taken into account when determining whether they reveal a relevant history of offending such that the court may impose electronic monitoring or remand to youth detention accommodation.
Currently, 17 year-olds are treated as adults for remand purposes and can be remanded only to prison. In addition, 15 and 16 year-old boys not deemed vulnerable and made subject to secure remand must also be remanded to prison. Offences committed in prison are not taken into account for the purpose of establishing a history under the equivalent tests in the current legislation, but the restructuring of the remand framework is based on the principle that all under-18s should be remanded according to the same test. Under the new remand framework, remands to prison for under-18s will cease.
These amendments are necessary to ensure that courts remanding offenders under the new framework will take into account any offences committed while an under-18 was previously remanded to prison under the old remand framework. They will ensure that all under-18s subject to the new remand framework or who may be considered for an electronic monitoring requirement on bail are treated equally.
I said before that these are mainly technical amendments, that I wrote to all Peers about them last week, and that a copy of the letter has been placed in the House Library. I beg to move.
Lord McNally
Lord McNally
Lord McNally
Lord McNally
Lord McNally
Lord Beecham
My Lords, the noble Lord, Lord Ramsbotham, has identified very clearly the nature of the problem and has come forward with proposals to help deal with it. He made a number of points that are very telling. Perhaps a couple of other matters could be added to the issues he referred to. The first is perhaps implicit in what he was saying: the very high reoffending rates among this particular group. The second, and slightly different, point is that there is a disproportionate number of young offenders from black and minority ethnic backgrounds, which is an aspect that we have not much discussed in the course of the Bill. It is not a function of any greater criminality among that group. All the evidences suggest that, for whatever reason, the likelihood of a custodial sentence—or, for that matter, a refusal of bail at an earlier stage—is much greater for people from that group, compared to offenders with comparable offences. There seems to be an in-built bias against BME offenders, which is a matter that needs to be addressed. The other issue is what happens after certain custodial sentences are completed because, after short sentences there is, effectively, no follow-up. That is a significant contributor to the high reoffending rates.
I hope that this proposal—that there should be a requirement to produce a strategy for offenders in this group—commends itself to the Minister. The phrasing of the amendment is perhaps a little difficult in terms of what might be appropriate for statute. However, the principles that the noble Lord has advanced are surely ones that would commend themselves to the Minister. Again, I hope that he can either indicate policy acceptance of the thrust of the amendment or agree that he will consult further with the noble Lord, maybe with a view to bringing back at Third Reading something to meet the common objectives of the Government and Members of your Lordships’ House. Certainly, I would support the noble Lord’s aspirations in this respect.
Lord McNally
My Lords, we keep coming round to these amendments from the noble Lord, Lord Ramsbotham. As he said, we have had debates in this House and bilateral meetings about them. There is a certain disagreement. The noble Lord, Lord Ramsbotham, seems to think—and I am sure that this will provoke him to get to his feet to say that I have got it wrong—that we have to have a strategy and a command structure and, after that, all will be well. I am old fashioned enough to believe that the buck stops with the Minister. The constant desire to have strategies is not a real substitute for doing things.
Having said that, I said earlier today that you do not have to be in this job long before you realise that we have too many women in our prisons. Neither do you have to be in this job very long to see that the 18 to 24 year-old age group among males is a key area for criminal behaviour. Therefore, we have to think very hard about how we break this cycle of criminality. The noble Baroness, Lady Linklater, acknowledges that this is a difficult group. I cannot quite agree with her about regretting that she is no longer a teenager. I would like to be a teenager again, but knowing what I know now. It is a pity that life does not give you that particular deal.
Lord Beecham
Does the noble Lord want to revert to membership of the young socialists a little bit?
Lord McNally
I said that if I knew then—let me get back to the speech. The noble Lord, Lord Ramsbotham and the noble Baroness, Lady Linklater, acknowledged that the group we are discussing is a difficult one but that many of the ideas for dealing with it are extremely expensive. We are trying to deal with it but the Government’s view is that it is not appropriate to prescribe in detail from the centre processes which purport to improve outcomes. Such a way of working would lead to inflexibility and take up resources which are better deployed elsewhere. We are looking wherever possible to empower local decision-making and delivery by prison and probation trusts so that they use resources in a way that responds to local priorities. That also fits with our policy for the management of young adult offenders as individuals based on an assessment of risks and needs rather than their age.
Lord Ramsbotham
My Lords, I expected that response. However, I remind the Minister that I have worked in Whitehall for many years. I do not disagree with him about Ministers being responsible; of course they are, but the question is how do they exercise that responsibility? They cannot do it on a 24 hour, seven days a week basis because they have many other things to do. Therefore, they need a structure to help them do it. The noble Lord referred to a command structure. You can call it what you like but it is a matter of people being responsible and accountable to a Minister for making certain that what the Minister wants to happen does happen. That happens everywhere—in schools, hospitals, businesses and the Armed Forces, but it does not seem to happen in the Prison Service.
I am very concerned about disseminating all responsibility down to the local level. I have said many times in this House that two things are involved in this. One is the question of what should be done, which is the central responsibility, but how it is done is the local responsibility. If you get that the wrong way round and nothing but “how?” comes out from the centre at the top and all the “what” is left down below in the local areas, you get confusion. People in the local areas need to know what they have to do. They should be allowed to disburse their resources locally as there will be different needs in different areas. That again seems to me common sense because unless you have a “what?” coming down, nobody knows where they are going. I have spoken to the chairman of the Youth Justice Board, and I understand that that body would be more than happy to tackle this measure. However, the chairman made the point that she did not want the youth offending teams involved in working with this age group. I accept that entirely. However, the success of the intensive schemes pioneered by the probation service shows that it is taking a keen interest in this group, and I see no reason to interrupt that. Therefore, it seems to me that the framework is there.
The Minister mentioned that a lot of things are going on but was not very specific. In the same spirit in which we have met to talk about many issues after Committee, can we meet to discuss this matter as it is far too important just to be left in the air at half past eight at night without, frankly, it being completely clear? I understand what he says about payment by results.
Lord McNally
I am very willing to meet. The noble Lord knows how much I value his experience, expertise and commitment in this area. I am happy to meet him to discuss this matter as often as he likes. However, later this week I will be sitting down with ministerial colleagues to discuss a detailed report on the various areas of MoJ business with the civil servants with direct line responsibility for them. We will have gone through policy areas and will be looking at various policy outcomes. The idea that somehow the National Offender Management Service is drifting somewhere outside ministerial control or accountability or that it is not being set various tasks and responsibilities is just not true.
On the other side, as has been acknowledged, we are dealing with very difficult and straitened times. The resources available to target this area are extremely limited. We shall see whether we can involve payment by results as one way of getting good results and resources into this area. We do not doubt the problem. I am very willing to continue to have discussions with the noble Lord, but I do not want to give him any false hope that we can go down this way in this Bill.
Lord Ramsbotham
I thank the Minister for that reply. In no way am I seeking to interfere; I am merely seeking to ensure that our commitment to this very important problem is properly recognised because we wish to share everything that he has shared with us that has come up from below to ensure that due account is given when we get an opportunity to do so.
I am not going to talk about payment by results because, as the Minister says, this is early days and the Government have set their sights on it; they have pilot schemes in place and we shall know more. It is premature to take more than that, other than to reflect concerns that are being reflected to me by people who have to operate it on the ground, particularly the small voluntary organisations which operate in this area and which are finding it enormously difficult to survive. In view of the fact that there is so much to play for in this area, it would be sensible to continue the dialogue. Therefore, I wish to withdraw the amendment.
Lord Bach
My Lords, I will comment briefly. My noble friend Lord Ponsonby made a good point. The question is whether the Bail Act 1976, which as he said has worked pretty well in a practical way at various levels—although no one would claim that it is perfect—needs to be changed by what appears at first blush to be a rather superficial alteration.
I am concerned about the matters raised by my noble friend, to which I hope the Minister will respond tonight, and about the prospect of a custody test and the expectation that a defendant will be given if he is granted bail on the basis that he will not receive a custodial sentence, because it may become absolutely apparent at the time of sentence, for whatever reason—and anyone who has been in a court knows that the facts sometimes do not emerge until very late on—that although the defendant’s expectation is that he will not get a custodial sentence, the court would not be doing its duty unless it gave him one.
The expectation that someone will have once they have been given bail is that they will not—to use common parlance—go down. In my view that is the wrong way around. Magistrates’ courts or Crown Courts should have the discretion that they enjoyed under the Bail Act 1976 to do what they consider to be right in the circumstances, subject to the terms of the Act. Therefore, my view is that the case for change has not been made, and that what is proposed is very superficial.
Lord McNally
I wonder whether one reason why the Magistrates’ Association found itself alone on this is that most other penal reform organisations welcomed a proposal that will prevent people being sent to jail. One of the big arguments that we have had about the inexorable rise in our prison population over recent decades is over whether as a society we are too quick to send people to jail. The no real prospect of custody test simply asks, “If you are not going to imprison a defendant if he is convicted, why should you be able to do so before he has been tried?”.
The noble Lord, Lord Ponsonby, tabled amendments that would remove the no real prospect of custody test from some, although not all, of the places in Schedule 11 where it appears. Amendment 152JA would remove the amendment to Section 7 of the Bail Act, which applies to the test to bailed defendants who have been arrested for absconding or breaking their bail conditions. Amendment 152JD would remove the amendment that applies the test to defendants who have committed offences that merit summary imprisonment. However, for some reason the paragraph in Schedule 11 that introduces the no real prospect test for indictable offences is left undisturbed. Amendment 152DA removes the definition of custodial sentences that is relevant to the no real prospect test, but Amendment 152JB appears to remove a consequential amendment that is not directly related to the test.
The noble Lord spoke of the risks to the safety of the public, but how much of a risk is a defendant for whom it can be said that there is no real prospect of custody? We also heard about intimidation. However, as we mentioned, intimidating witnesses is an offence in its own right that is not only imprisonable but likely to result in a custodial sentence. A defendant who is not facing custody for their original offence would be foolish to put themselves at risk of receiving a far more serious sentence by trying to interfere with a witness.
We recognise that special considerations may apply where the circumstances of the offence suggest that there may be a risk of domestic violence. That is why we have included an exception designed to protect those who might be vulnerable in this way. This exception in new paragraph 15 of Schedule 11 would in fact be removed by Amendment 152JC. I do not understand why.
The noble Lord asked me a number of specific questions about the August riots, curfews and the need for sufficient information to be given. It would be fun for me to try to reel off answers from the Dispatch Box, but it would be better, and certainly safer for me, if I wrote to the noble Lord and made that reply available in the Library of the House. He can then contemplate what he will do at Third Reading.
I am not sure that the Magistrates’ Association is on the right path here. We think this is a sensible proposal for keeping people out of prison when it is not strictly necessary for them to be there. I will try to give the noble Lord answers to his questions, but in the mean time I ask him to withdraw his amendments.
Lord Ponsonby of Shulbrede
I thank the Minister for that response. I make the point that the Magistrates’ Association and every magistrate I have ever sat with do not want to put people in custody, and the whole purpose of my speech was to point out inconsistencies and a lack of clarity in these proposed changes. Nevertheless, I thank the Minister for offering to respond to my specific questions, and I beg leave to withdraw my amendment.
Lord McNally
Lord McNally
Lord McNally
Lord McNally
Lord McNally
Lord McNally
Lord McNally
Lord McNally
Lord McNally
Lord McNally
“( ) Section 246 (crediting of time in service custody: terms of imprisonment and detention) is amended as follows.
( ) For subsections (2) to (5) substitute—”
Lord McNally
Lord Bach
My Lords, I can be very brief because the speeches that have been made set out the case very well indeed. Proper caution has been taken in the way in which the amendment has been worded. We all know that the people whom we are talking about have committed the most terrible offences and in many cases—in practically every case, I suggest—it may well be, given the caution included in the wording of the proposed new clause, that these people will stay in prison for the rest of their lives. All that the noble and learned Lord is asking, as a matter of principle, is that for anyone after they have served—this is the caution— 30 years of a sentence,
“it shall be the duty of the Secretary of State, after consulting the Lord Chief Justice”—
of the day, presumably—
“and the trial judge if available, to refer the case to the Parole Board”.
Surely we have trust and faith in the Parole Board. The Parole Board has to be satisfied that,
“it is no longer necessary for the protection of the public that the prisoner should be confined, and … that in all the circumstances the release of the prisoner on licence would be in the interests of justice”.
My argument is that the Parole Board has to make hard findings in any case, particularly in cases of this kind. Even if the Parole Board is satisfied on these matters, the amendment says only that it “may direct his release under this section”.
The amendment is extremely cautious, but it is humane, in the way that has been described, for people who sometimes may seem not to deserve the protection of a humane state. However, we live in one, and surely the point of the penal policy is for it to be humane when it can be.
I listened carefully to what the Minister said in response to this matter in Committee and it seemed to me then that the Government’s real case is—I put it crudely—that the Daily Mail would not like it. If that is really the level of the argument that the Minister is going to put again today, it is quite unsatisfactory for a matter of principle of this kind. I hope that, if the Minister opposes the amendment, he will find a better argument than that.
Lord McNally
My Lords, the better argument is that if I accepted the amendment, the Labour Party would, as it has done on most law and order issues over the past 20 years, try to outbid the hard right to the right. If the noble Lord is announcing a new Labour Party policy on this issue, I shall give way. No, he is not, so let us not go too far down that road.
I acknowledge that this is a cautious amendment. We have heard from some very distinguished and learned Members of the House and I shall not try to match them in legal skills. However, I have been around politics for quite a few years and, in many ways, one has to make political judgments. If we had been debating this in the 1960s along with Sydney Silverman or in the 1970s with Roy Jenkins, we might have found a political atmosphere in which to discuss these issues. Sadly, things have moved on since then and if you are a legal reformer like me you try to make progress where you can.
Part 3 of the Bill carries us forward significantly in two areas of legal reform: reform of IPPs, which we will be discussing later, and the Rehabilitation of Offenders Act. I believe that those are worthwhile measures. I do not think that we are in a position at the moment to move as far as this amendment suggests, cautious though that may be in rational terms. Just as there are passionate arguments about the possibility of ultimate rehabilitation for even the most dangerous offenders, there are equally passionate arguments that there are some prisoners who should never be released under any circumstances. Both views were reflected in the debate in Committee. I do not think that we are in a position—never mind the opinion of the other place—to carry public opinion with us on this matter.
Lord McNally
Lord McNally
Lord Lloyd of Berwick
As the House will remember, Clause 117 provides that if a person has been convicted of a listed offence for which he has been sentenced to 10 years or more and then commits a further offence for which he might expect at least a 10-year sentence in prison, then he “must” be sentenced to life imprisonment unless it would be unjust to do so.
I described this clause in Committee as being pointless and indeed it is, but I now suggest that it is worse than pointless. In Committee, the Minister described the clause as introducing a new mandatory life sentence, and he placed particular emphasis on “mandatory” to show, no doubt, that the Government in this respect are being tough on crime. But a mandatory sentence is one that the court is obliged to pass, like the mandatory sentence of life imprisonment for murder. This clause is quite different from that.
Despite the use of “must”, the clause recognises that the judge will in fact pass the sentence which, in the particular circumstances, he believes to be the just sentence. That is exactly what judges always do when sentencing. Why then do the Government persist in calling it a mandatory sentence? It cannot surely be in order to create some sort of presumption that a life sentence should be passed. How would the judge begin to know what weight to give to such a presumption? Calling it a mandatory life sentence and the use of “must” in the light of the judge’s ability to pass the sentence he believes to be just is simply a contradiction in terms. To create contradictions in terms in all legislation is a mistake, particularly in legislation of a criminal kind which has to be interpreted by the courts. What the clause could have said was that the court “may” pass a life sentence in these circumstances. That would at least serve some purpose because it would cover those rare cases where the second offence does not carry with it a life sentence as its maximum. As it is, the clause is not only pointless for the reasons I have gone into but it is also ambiguous.
I have one other point. Do we want to create more life sentences? I look round to see if the noble Baroness, Lady Stern, is here and I do not thinks she is, so I will make the points which I know she would have made. She quoted what are on any view some very surprising figures that we have in England and Wales 7,663 persons serving life sentences. The figures, which have been provided by the Council of Europe, show that, whereas we have 12 lifers for 100,000 members of the population, for France the proportion is 0.85 per cent, for Germany it is 2.4 per cent, for the Netherlands it is 0.14 per cent, and for Sweden it is just over 1 per cent. The conclusion from these figures is inevitable. We have far too many prisoners serving life sentences when a long determinate sentence would do just as well. As for deterrence, it is very fanciful to suppose that a prisoner having served 10 years already would be deterred by the prospect of a life sentence rather than a long deterrent sentence and decide thereafter to go straight.
As for Amendment 157, we have a new Clause 134 which creates an offence of threatening with a knife. It too carries a mandatory sentence and, as such, suffers from all the defects which I have already mentioned in the earlier debate. It is even more pointless for the reason that we already have an offence of carrying a knife in a public place under the Criminal Justice Act 1988. It carries a maximum sentence of four years. In 2003 the Court of Appeal issued guidelines in which it said that if the knife was used to threaten, then the sentence should be towards the upper end of the scale. What, then, can be the purpose of now creating a new offence of threatening with a knife, carrying the same maximum sentence of four years? Clause 134 is exactly covered by the existing legislation. Its only purpose I can see is, as I have said before, to give the impression that the Government are doing something about knife crime. If they think that, then they deceive themselves. The only way to do anything about knife crime, as I mentioned in Committee, is to do what has been done in Glasgow and that is to get in among the gangs who use these knives. There, knife crime has been reduced by an astonishing 82 per cent. That is the way to reduce knife crime, not cluttering up the statute book with unnecessary provisions such as this. I beg to move.
Lord McNally
My Lords, a concern expressed by some noble Lords in Committee seemed to be that the new mandatory life sentence would be pointless—a word that the noble and learned Lord used several times—because courts will not have to apply it if it would be unjust to do so. It is right to say that the court will retain a discretion not to impose the new mandatory life sentence when the particular circumstances of the offence or the offender would make it unjust to do so. But that is very far indeed from meaning that the sentence is pointless. Save for murder, all mandatory sentence requirements on the statute book contain an exception of this kind. It is done so that mandatory sentence requirements will be compatible with human rights, and to prevent arbitrary sentencing, which cannot take any account of specific and individual circumstances. It is clearly not a permission or excuse for the court to do away with the mandatory sentence requirement. We expect that in the majority of cases the exception will not be engaged at all.
Last summer we made a commitment to introduce a tougher determinate sentencing regime to replace IPPs. A key element of that regime is mandatory life sentences for the most serious repeat offenders. The mandatory sentence requirement in Clause 117 will ensure that the worst repeat sexual and violent offenders receive a life sentence.
Amendment 157 would remove Clause 134, a new knife offence, from the Bill. The noble and learned Lord, Lord Lloyd, argued in Committee that the two new offences in Clause 134 are adequately covered by existing legislation and that, therefore, there is no reason for creating them. It is true that unlawful possession of a knife or offensive weapon is already a serious criminal offence which carries a maximum custodial sentence of four years. The intention of Clause 134 is to strengthen this existing legislative framework by targeting behaviour that amounts to more than simple possession but does not go so far as resulting in injury to the victim. The new offence will complement the existing offences of possession, which deal with those who carry offensive weapons or bladed or pointed articles in public places or schools without lawful authority, or reasonable excuse or good reason. It will do so by targeting behaviour that goes beyond possession, specifically targeting instances where an individual brandishes a knife or weapon, threatening another and placing them at immediate risk of serious physical harm. We want to send a strong message that this type of behaviour will not be tolerated. The minimum sentence attached to the new offence drives home the point that this kind of behaviour is extremely serious, even if it does not carry through into causing actual physical harm. Indeed, threatening people and placing them in fear of serious physical harm is serious enough that people should expect to face custody if they act in this way.
I know that the noble and learned Lord is particularly concerned about the minimum sentence for 16 and 17 year-olds contained in the new offences. I understand his concern, but in the other place my right honourable friend the Lord Chancellor made it clear at Third Reading that the Government had listened carefully to the arguments made in support of extending a minimum custodial sentence to all those under 18. The Government had then decided, on balance, that it would be appropriate to extend the minimum sentence to the narrower group of 16 and 17 year-olds who commit these offences. The Government have not made the decision to create these offences lightly, but consider it appropriate to have minimum sentences set out in legislation when a particular offence demands a firm and unequivocal response.
The Government cannot accept this amendment. To do so would undermine the strong message sent by this clause. We need this to complement the much wider range of initiatives we have in place to address problems posed by people who unlawfully carry or use knives in our communities. We believe that, in respect of 16 and 17 year-olds, Clause 134 strikes the right balance. I urge the noble and learned Lord to withdraw his amendment, and that this clause and Clause 134 should remain in the Bill.
Lord McNally
Lord McNally
Lord McNally
“(10) In subsections (1)(a) and (8), references to a specified offence, a specified violent offence and a specified sexual offence include an offence that—
(a) was abolished before 4 April 2005, and(b) would have constituted such an offence if committed on the day on which the offender was convicted of the offence.(11) Where the offence mentioned in subsection (1)(a) was committed before 4 April 2005—
(a) subsection (1)(c) has effect as if the words “by section 224A or 225(2)” were omitted, and(b) subsection (6) has effect as if the words “in compliance with section 153(2)” were omitted.”
Lord Dholakia
My Lords, Clauses 118 and 119 deal with the new extended sentence and release on licence matters. I do not question the Government’s intention in what they are trying to achieve, but I do question the discrepancy that these clauses would create. My amendments would give the courts discretion over the release date of offenders given extended sentences. In appropriate cases, courts would be able to retain the current position whereby prisoners serving extended sentences are released after half the sentence. In other cases, where the court considered it necessary, it could specify that the offender will not be released until he or she has served two-thirds of the sentence.
At present, prisoners serving determinate sentences are released on licence after serving half the sentence in custody. This also currently applies to offenders serving extended sentences. Up to now, the point of an extended sentence has not been to increase the period which offenders spend in custody. Extended sentences are currently intended to make sure that when offenders who pose a risk to the public are released, they are subject to a longer period than usual of post-release supervision on licence. This means that they are subject to restrictive conditions and controls at the same time as receiving constructive rehabilitative help from the probation service. If offenders breach the conditions of their licence, they can be recalled to prison. This is a very useful provision which means that society maintains control over these offenders’ behaviour for a long period. However, the Bill would increase the time which an offender given an extended sentence spends in prison by stipulating that all extended sentence prisoners will not be released until the two-thirds point of their sentence.
When we debated this matter in Committee on 9 February, my noble friend Lord McNally explained the Government’s view that this would be appropriate for some prisoners who would now be given IPP sentences. However, the change in the Bill will not apply only to offenders who would now receive an IPP sentence. It will also apply to people who would currently receive an extended sentence. In future, these offenders will also have to serve longer in custody if this provision in the Bill remains unchanged. The Government have produced no explanation to demonstrate why it is necessary to change the rules for prisoners of the type who would now receive an extended sentence.
As the Bill stands, a court wishing to impose an extended period of post-release supervision will be able to do so in future only if it passes a sentence which also increases the length of time spent in custody before release to two-thirds of the sentence. If a judge does not want to increase the time that the offender spends in prison but simply wants to make sure that he or she has an extended period of supervision on release, why should he not be able to order this as he can under the current provisions for extended sentences?
When I moved a similar amendment in Committee on 9 February, my noble friend Lord McNally said:
“I listened to my noble friend’s idea about discretion … I will ponder this one between now and Report”.— [Official Report, 9/2/12; col. 467.]
That is the stage we have reached. These amendments give my noble friend the opportunity to let us know the result of his thinking on my suggestion. I beg to move.
Lord McNally
My Lords, I was teased earlier in the day about my Labour and trade union past. One quote that sticks in my mind is from the great TUC general secretary George Woodcock, who once said that good trade unionism is a serious of squalid compromises. Sometimes law reform or criminal justice reform is a series of compromises. The noble Lord, Lord Bach, shakes his head. Of course it is. We have to carry Parliament with us, we have to carry the various parts of the coalition Government with us, and we have to carry public opinion with us. Reflecting on my noble friend’s amendment, when we announced our decision to reform the Rehabilitation of Offenders Act, one of the campaigning groups rang up and said, “But you have not gone as far as Labour promised in their 2002 White Paper”. That is true, but we were reforming the Act for the first time in 37 years. Labour had talked big and done nothing.
A key element of our IPP replacement regime is the new extended determinate sentence for dangerous offenders. On this sentence, the offender will always serve at least two-thirds of the custodial term in prison. In the most serious cases early release will be at Parole Board discretion. This means that offenders stay inside until the end of that term. My noble friend has proposed that the court should have a discretion as to whether the minimum time in prison offenders on the new extended sentence should serve is one-half or two-thirds of the custodial term. He has explained that one of his key concerns is that there should be an appropriately long licence for the offender without the need to increase the period spent in prison. I have written to my noble friend to address the point regarding the licence.
The new extended licence consists of a custodial term set by the court, during which—or at the end of which—release will occur. This must then be followed by an extended period of licence, which is also set by the court, and may be up to five years in length for a violent offence and eight years in length for a sexual offence. The courts will base the custodial term on seriousness and factors relevant to that. The extended licence period will address risk. As the proposals stand, the court should be able to impose a sentence that will require a suitably long period of licence regardless of when during the custodial term the offender is released. Therefore, I do not think there is a problem with licence, but if there were I am not sure that this amendment would be the solution. It would be entirely possible for a serious offender to remain in prison until the end of the custodial term regardless of the point at which he becomes eligible for parole.
I also note that this would be a new decision for judges, and it is not clear on what basis they would make it. Seriousness and risk management are already addressed by the decisions the court will already make in relation to the sentence. Asking them to decide additionally between different sentence formats would seem to make this a very complex sentencing decision.
Finally, as I have said before, in June last year the Government committed to introducing a tougher determinate sentencing regime to replace IPPs. A key part of that tougher regime is that those on public protection sentences, now that they are no longer liable to receive IPP sentences, will spend more of their determinate sentence in prison. We think this is needed to enhance public protection and deliver public confidence. It will provide more time for offenders and the National Offender Management Service to work towards rehabilitation. I know that my noble friend and his friends in NACRO will continue to campaign on these issues and it is right that they should do so. However, I hope that my noble friend will feel able to withdraw his amendment.
Lord Dholakia
My Lords, I thank the Minister for his explanation. I am delighted with the information he has given. It is always nice to niggle him from time to time so that we can hear some lovely anecdotes. As long as he keeps bashing the Labour Party, I have no reason not to withdraw the amendment.
Lord McNally
“(8) In subsections (1)(a) and (6), references to a specified offence, a specified violent offence and a specified sexual offence include an offence that—
(a) was abolished before 4 April 2005, and(b) would have constituted such an offence if committed on the day on which the offender was convicted of the offence. (9) Where the offence mentioned in subsection (1)(a) was committed before 4 April 2005—
(a) subsection (1) has effect as if paragraph (c) were omitted, and(b) subsection (4) has effect as if the words “in compliance with section 153(2)” were omitted.”
Lord McNally
Lord McNally
“4 (1) Section 35A of the Road Traffic Offenders Act 1988 (extension of disqualification where custodial sentence imposed as well as driving disqualification) is amended as follows.
(2) In subsection (4)(e)—
(a) for “227” substitute “226A”, (b) for “half” substitute “two-thirds of”, and (c) for “227(2C)(a)” substitute “226A(5)(a)”.(3) In subsection (4)(f)—
(a) for “228” substitute “226B”, (b) for “half” substitute “two-thirds of”, and(c) for “228(2B)(a)” substitute “226B(3)(a)”.(4) In subsection (8) omit “or 247(2)”.
(5) In subsection (9) omit paragraph (b).”
Lord McNally
Lord McNally
“Sections 116, 118 and 119: consequential and transitory provision
Schedule 20 (abolition of certain sentences for dangerous offenders and new extended sentences: consequential and transitory provision) has effect.”
Lord McNally
“2 (1) Section 237 (meaning of “fixed-term prisoner” etc) is amended as follows.
(2) In subsection (1)(b), before “227” insert “226A, 226B,”.
(3) In subsection (3), before “227” insert “226A or”.”
Lord McNally
“Dangerous offenders subject to service law etc
Schedule (Dangerous offenders subject to service law etc) (dangerous offenders subject to service law etc) has effect.”
Lord Beecham
My Lords, I support the amendment in the name of the noble Lord, Lord Thomas. He identifies a useful process and an obligation on the Government to ensure that cases are properly considered and that there is a reasonable way of reporting back on them.
Although I sympathise with the amendment moved by the noble Lord, Lord Ramsbotham, I do not find the content of it particularly persuasive. The amendment would require the Secretary of State to delegate the responsibility for implementing release plans without saying to whom the responsibility should be delegated. That would be odd in primary legislation. The requirement to report within a year of enactment on all cases seems to be too restrictive, given that unfortunately under the previous Government there was a backlog in working with such prisoners, and it is not at all clear how much work would be involved and what resources would be required to deal with the current numbers. It is not really acceptable for the timescale to be in the Bill in this form.
Having said that, if the noble Lord were minded to look seriously at the propositions—and I would certainly commend the thinking behind them if not necessarily the precise formulation that reaches us in the form of the amendment tabled by the noble Lord, Lord Ramsbotham—that could be brought back for consideration at Third Reading. The direction of travel is right but the precise route is somewhat questionable. I hope that the Minister will think sympathetically about the underlying approach of the two noble Lords whose amendments are before the House.
Lord McNally
My Lords, we return to the issue of dealing with IPP prisoners. I must say to the noble Lord, Lord Beecham, that I do not think there is any doubt about the direction of travel. I am dubious about whether we need the kind of prescriptions in both amendments. Ministers are here to be questioned by Parliament. I do not think that there would be any problem in finding opportunities to check on progress, but let us see.
The Government, through the National Offender Management Service, have already made significant improvements to increase the supply of rehabilitation interventions for this group. One of the main criticisms of IPPs was that people became trapped in them in a kind of Catch-22; they had to fulfil certain requirements to be considered for release but the facilities and channels to get these qualifications, improvements and records were not there. Better use is already being made of sentence plans to prioritise interventions for existing IPPs where the need is greatest, and work is under way to ensure that programmes can be delivered more flexibly, supporting greater access and the inclusion of offenders with more complex needs such as learning difficulties.
In addition, a new specification for offender management, which will provide for the prioritisation of resources based on risk, will take effect from April 2012. Once embedded, this will result in the improved targeting of rehabilitative interventions for IPP prisoners. We are using a range of measures to improve the progression of these prisoners through their sentence, including improvements to assessment, sentence planning, and delivery and parole review processes.
I wrote to the noble Lord following Committee about the work that NOMS is doing to improve support for these prisoners, and I summarise the key points here. First, we plan to issue a prison service instruction that will require effective and realistic sentence plans to be put in place for all offenders on the new extended sentence and for IPP prisoners already in the system.
On the administration of support for IPP prisoners, there are already appropriate structures in place within NOMS to carry out this work. The Indeterminate Sentence Prisoners Co-ordination Group is the NOMS body responsible for co-ordinating the management of all indeterminate sentence prisoners—that is, lifers as well as IPPs. The group’s purpose is to develop and promote the most effective means of managing this group of offenders and to ensure that resources are directed effectively. For example, the group has mandated work to improve the speed of allocation to open prison and identify ways of increasing capacity in the open prison estate for the IPPs, and has co-ordinated the introduction of a new centralised system for organising their transfer.
On the specific amendment, I should make it clear that, as legislation currently stands, it would not be possible for the Secretary of State to produce or delegate anything other than sentence plans for these offenders that may or may not result in progress to a quick release on licence. Statutorily, only the Parole Board can actually direct the release of IPP prisoners on the basis of risk criteria. Amending that situation would be a substantial change to sentences that have already been imposed and would require primary legislation. In Committee, I made it clear that the Government do not believe that that would be appropriate. On the proposal that such plans should be delegated, I noted that it would be unusual for legislation to go into this type of detail about the administration of executive duties.
My noble friend Lord Thomas of Gresford proposed a requirement for the Secretary of State to report regularly to Parliament on IPP prisoner parole status and interventions. Information on the number of IPP prisoners whose tariff has expired is published in the quarterly offender management statistics published by my department. The Parole Board’s annual report publishes comprehensive data on its IPP application workload and backlog. I must resist the requirement to report on programmes in individual cases, as this would be hugely difficult to achieve. Offender managers will regularly review and update sentence plans.
Our recent research suggests that while the Parole Board will take account of the completion of accredited programmes when considering whether to direct the release of an IPP prisoner, this is only one part of the evidence that it will consider. Research shows that the parole process is targeted on the individual, and only programmes specific to the individual’s needs that are successfully completed and show some impact on the prisoner are likely to be taken as evidence of sentence progression. Simply counting completed courses will not be good evidence of how prisoners in general are progressing.
I hope that I have said enough to reassure the House that we have already put effective measures in place to support these prisoners’ progress towards release while keeping paramount our concerns for public safety. We have not introduced these reforms to the IPP system simply to see them fail. The biggest incentives for making sure that our reforms work are for the Ministers who brought them in, and we will be pleased to be judged by our results. I hope that both noble Lords will withdraw their amendment.
Lord Thomas of Gresford
My Lords, I believe that I should reply first. The Minister’s response was encouraging. He said that Ministers were here to be questioned. I shall make a note in my diary to put in a Written Question every six months, asking for the information—or something like it—that I seek in the amendment. It is very important that a close eye is kept on those who remain under an IPP sentence but whose tariff has expired. I beg leave to withdraw my amendment.
Lord McNally
Lord McNally
“Scrap metal dealing: increase in penalties for existing offences
(1) The Scrap Metal Dealers Act 1964 is amended as follows.
(2) For the following words (which have effect as references to a fine not exceeding level 3 on the standard scale) substitute in each case “a fine not exceeding level 5 on the standard scale”—
(a) in section 1(7) (dealer failing to register) the words from “a fine” to the end;(b) in section 2(6) (dealer failing to record dealings) the words from “a fine” to the end;(c) in section 3(4) (itinerant collector failing to keep receipts) the words from “a fine” to the end;(d) in section 4(4) (convicted dealer failing to meet additional requirements) the same words before “and the court”.(3) For the following words (which have effect as references to a fine not exceeding level 1 on the standard scale) substitute in each case “a fine not exceeding level 3 on the standard scale”—
(a) in section 1(8) (dealer failing to give notice of cessation of business) the words from “a fine” to the end; (b) in section 5(1) (dealer acquiring metal from a person under 16) the same words before the proviso;(c) in section 5(2) (selling metal to a dealer under a false name or address) the words from “a fine” to the end;(d) in section 6(5) (obstructing entry and inspection) the words from “a fine” to the end.”
Lord McNally
“Offence of buying scrap metal for cash etc
(1) The Scrap Metal Dealers Act 1964 is amended as follows.
(2) After section 3 insert—
“3A Offence of buying scrap metal for cash etc
(1) A scrap metal dealer must not pay for scrap metal except—
(a) by a cheque which under section 81A of the Bills of Exchange Act 1882 is not transferable, or(b) by an electronic transfer of funds (authorised by credit or debit card or otherwise). (2) The Secretary of State may by order amend subsection (1) to permit other methods of payment.
(3) In this section paying includes paying in kind (with goods or services).
(4) If a scrap metal dealer pays for scrap metal in breach of subsection (1), each of the following is guilty of an offence—
(a) the scrap metal dealer;(b) a person who makes the payment acting for the dealer;(c) a manager who fails to take reasonable steps to prevent the payment being made in breach of subsection (1).(5) In subsection (4)(c) “manager” means a person who works in the carrying on of the dealer’s business as a scrap metal dealer in a capacity, whether paid or unpaid, which authorises the person to prevent the payment being made in breach of subsection (1).
(6) Subsection (1) does not apply if—
(a) the payment is made in the carrying on of the dealer’s business as a scrap metal dealer as part of the business of an itinerant collector, and(b) at the time of the payment an order under section 3(1) is in force in relation to the dealer.(7) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(8) An order under subsection (2) is to be made by statutory instrument.
(9) A statutory instrument containing an order under subsection (2) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”
(3) Section 2 (records of dealings) is amended as follows.
(4) After subsection (2)(d) insert—
“(da) where paragraph (d) applies, any part of the price that is unpaid at the time when the entry is to be made;”.(5) In subsection (2)(e) for “the last preceding paragraph” substitute “paragraph (d)”.
(6) After subsection (4) insert—
“(4A) If a scrap metal dealer pays at any time for scrap metal falling within subsection (1)(a)—
(a) the dealer must keep, with the book containing the entry relating to receipt of the scrap metal, a copy of the cheque (if the payment was by cheque), or any receipt identifying the transfer (if the payment was by electronic transfer and such a receipt was obtained), and(b) the particulars required by this section to be entered include those listed in subsection (4B). (4B) The particulars are—
(a) the full name and address of any person who makes the payment acting for the dealer;(b) the full name and address of the person to whom the payment is made;(c) in the case of an electronic transfer where no receipt identifying the transfer was obtained, particulars identifying the transfer.(4C) Anything kept by virtue of subsection (4A)(a) must be marked so as to identify the scrap metal by reference to the entry relating to receipt of the metal.
(4D) An entry in pursuance of subsection (4A)(b)—
(a) must be made immediately after the payment is made, and(b) if not made at the same time as the entry relating to receipt of the scrap metal, must identify the metal by reference to that entry.”(7) In subsection (5), after “this section and” insert “the book and anything required by subsection (4A)(a) to be kept with it”.
(8) Section 3 (special provisions as to records in certain cases) is amended as follows.
(9) In subsection (5)(d), for “subsection (4)” substitute “subsections (4) and (4D)(a)”.
(10) In subsection (6)(a)—
(a) after “books” insert “, and the obligation imposed by subsection (4A)(a) of that section to keep anything with a book,”;(b) after “the like particulars” insert “, and to keeping the same things,”;(c) for “and (3)” substitute “, (3) and (4A) to (4D)”.(11) In subsection (6)(c), for “subsection (4)” substitute “subsections (4) and (4D)(a)”.
(12) In section 4(1) (power for court to impose additional requirements on convicted dealers)—
(a) omit “or” at the end of paragraph (a), and(b) after that paragraph insert—“(aa) is convicted of an offence under section 3A, or”.(13) Section 6 (rights of entry and inspection) is amended as follows.
(14) After subsection (3) insert—
“(3A) Whether or not a place is one to which a constable has a right of entry in accordance with subsection (1), a justice of the peace may issue a warrant described in subsection (3B) if satisfied by information on oath that there are reasonable grounds for believing that the place—
(a) is a scrap metal store where scrap metal paid for contrary to section 3A is or has been received or kept, or(b) is a place to which admission is reasonably required in order to ascertain whether that section is being complied with.(3B) The warrant is a warrant signed by the justice issuing it which specifies the place concerned and authorises a constable to enter the place, if need be by force, at any time within one month from the date of the warrant.
(3C) A constable authorised to enter a place by a warrant granted under subsection (3A) has a right—
(a) to inspect that place;(b) to require production of, and to inspect, any scrap metal kept at that place;(c) to require production of and to inspect any book which the dealer is required by this Act to keep at that place and any copy or receipt required to be kept with the book, or, as the case may be, any receipt which the dealer is required to keep as mentioned in section 3(1)(b), and to take copies of the book, copy or receipt;(d) to require production of and to inspect any other record kept at that place relating to payment for scrap metal, and to take copies of the record.” (15) In subsection (4) for “the last preceding subsection” substitute “subsection (3) or (3A)”.”
Lord McNally
“Review of offence of buying scrap metal for cash etc
(1) Before the end of 5 years beginning with the day on which section (Offence of buying scrap metal for cash etc)(2) comes into force, the Secretary of State must—
(a) carry out a review of the offence created by that subsection, and(b) publish a report of the conclusions of the review. (2) The report must in particular—
(a) set out the objectives intended to be achieved by creating the offence,(b) assess the extent to which those objectives have been achieved, and(c) assess whether it is appropriate to retain the offence to achieve those objectives.”
Lord McNally
Lord McNally
My Lords, at this hour of the night I would like to move these government amendments formally but I do not think that I can. Amendment 159 would bring Clause 113 into force on the date of Royal Assent. Clause 113 provides a power for the Secretary of State to remove from the United Kingdom foreign national prisoners serving indeterminate sentences once they have served the minimum term, or tariff, set by the sentencing court. This will be known as the tariff expired removal scheme. By commencing this provision on Royal Assent, it will be possible to begin the process of removals under the scheme from that date. There are a number of IPP and life sentence prisoners with deportation orders served against them who are already past their tariff expiry date. The Government would like to be able to start considering these prisoners for removal under the scheme at the earliest opportunity.
The amendments to Clauses 141 and 142 set out the territorial extent of the Bill. The amendments are to tidy up the clauses in the light of changes made to the Bill during its progress through Parliament and to ensure that provisions are as clear as possible. Amendments 163 and 164 amend the Long Title of the Bill to include the references to the Government’s amendments on scrap metal and magistrates’ courts fines. This is in line with the general rule on making amendments to the Long Title of a Bill to reflect amendments which have been made to the Bill. I beg to move.
Lord McNally
Lord McNally
“(2A) This section does not apply to section (Alcohol abstinence and monitoring requirement) (but see section (Piloting of alcohol abstinence and monitoring requirements)).”
Lord McNally
“(1) Parts 1 to 3 of this Act extend to England and Wales only, subject to subsections (2) to (8).
(2) Sections 122 and 123(1) extend to England and Wales and Scotland.”
Lord McNally
“( ) The powers conferred by sections 177, 178 and 222 of the Extradition Act 2003 (powers to apply provisions to extradition to or from British overseas territories and to extend to Channel Islands and Isle of Man) are exercisable in relation to any amendment of that Act that is made by or under this Act.”
Baroness Howe of Idlicote
My Lords, I very much support this amendment and have put my name to it. It is a great shame that we could not find a way to debate this issue right at the beginning, before we started work on the detailed and different parts of this hybrid Bill. Indeed, many of the debates on today’s amendments—I am not talking about the last two or three, which seem quite beyond the Bill in many ways—illustrate exactly why this amendment is so relevant and important to the Bill. For example, plans to meet women prisoners’ different needs, the debate on restorative justice, better training and rehabilitation plans and post-prison support for young offenders: all of these were about rehabilitation. Indeed, the background to all the work that the Minister has so often talked about is about rehabilitation.
It is quite absurd to be debating what the Title of the Bill should be as we reach the very last pages of the Bill and the very early hour of the following day. If the Minister could accept the amendment, even at this stage, success would have been achieved, giving those who will use the Bill a much better understanding of what it is really about. Above all, it would not have cost the Government one single penny and, over and above that, I am quite certain that the Minister believes—as we certainly do—that in the long run it will save a great deal. I very much hope that he is in a giving mood on this amendment.
Lord McNally
My Lords, I have been wondering whether I dare quote poetry at this hour, but I think noble Lords deserve it. Whenever I hear the noble Lord, Lord Ramsbotham, the noble Baroness, Lady Howe, and the noble Lord, Lord Judd, who I am sure is with us spiritually, I am reminded of these lines from the Rubaiyat of Omar Khayyam:
“Ah Love! could thou and I with Fate conspire
To grasp this sorry Scheme of Things entire,
Would not we shatter it to bits—and then
Re-mould it nearer to the Heart’s Desire!”
Certainly, as I have said before, there is no lack of sympathy with the promotion of the concept of rehabilitation. Indeed, as I have also said before, I believe that those who argue the case for rehabilitation are doing more for victims and more to reduce crime than those to whom the noble Lord, Lord Pannick, referred earlier today as the “throw away the key brigade”. There is no argument between us. The Ministry of Justice believes in rehabilitation, and a large range of our policies are geared to rehabilitation. However, I think most people will look beyond the Short Title of the Bill and judge the Government by their intentions and performance. As many noble Lords have recognised, the Bill contains key measures for the youth and adult criminal justice systems that will contribute to the rehabilitation of offenders. Therefore, although I would very much like to accept this amendment in many ways, I am afraid that the noble Lord, Lord Ramsbotham, is right—I must simply salute, get on with the job and urge him to withdraw the amendment.
Lord Ramsbotham
My Lords, like the Minister, I have to salute and move on. I am very glad for what he said about the essence of rehabilitation because that is hugely important. Even at this late hour, I make no apologies for moving the amendment because it is very important that all that has been said by many noble Lords during the passage of the Bill reflects the heart of what we are trying to do: namely, to secure the rehabilitation of those who end up in the criminal justice system. However, given the reassurance that everyone is trying to do all they can, and given the lateness of the hour, I beg leave to withdraw the amendment.
Lord McNally
Freedom of Information Act 2000
Lord McNally Excerpts(12 years, 9 months ago)
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Lord Wills
To ask Her Majesty’s Government whether they plan to amend the Freedom of Information Act 2000.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the Government are already amending the Freedom of Information Act through the Protection of Freedoms Bill, including provisions to extend the Act to more than 100 extra bodies and to introduce new rights in relation to data sets. These are part of a much wider set of measures to enhance transparency. The Freedom of Information Act is also currently the subject of post-legislative scrutiny by the Justice Select Committee.
Lord Wills
My Lords, I very much welcome that Answer from the Minister, and that commitment to transparency. He will be aware of a report in the Guardian last month that civil servants are calling for higher fees for users of that Act in order to discourage them from using it. I am sure he will recall that at one point the previous Government also looked at increasing charges for users of the Act, but they dropped that proposal when they realised the damage that it would do to transparency. Will the Minister now rule out increasing charges for users of the Act?
Lord McNally
My Lords, I like to take pride in having played this by the book, in that I referred the Freedom of Information Act to post-legislative scrutiny, and it is entirely proper that Sir Alan Beith and his committee should look at a whole range of issues and proposals, including that of charging, which other jurisdictions such as Ireland have brought in. However, it is a matter that we will look at when we have heard what the post-legislative scrutiny deliberations bring forward.
Baroness Hamwee
My Lords, clearly much more information is routinely being published and the culture is changing. To be sure that the system works as well as possible for users, and there must be a number of specific categories that can be identified, will the Government consider undertaking research into the changes that users might welcome to make the system more effective, if that is not covered by the Justice Select Committee?
Lord McNally
My Lords, when this House and the other place considered the original Act, they specifically made applications applicant and motive-blind, and for very good reason. We believe that it benefits the public by providing access to information in the public interest, without targeting specific individuals who are asking those questions. The Ministry of Justice publishes quarterly and annual statistics on the volume, timeliness and outcome of information, but I would still be reluctant to move from the principle of it being applicant and motive-blind.
Lord Maxton
My Lords, given that the BBC is an entirely publicly funded body and a very important part of our democratic system, and that it quite rightly suggests that we should all be accountable publicly and openly, is it not right that all aspects of the BBC should now be covered by the Freedom of Information Act?
Lord McNally
That is an interesting prospect, which I suspect Sir Alan Beith may well look into.
Baroness Gardner of Parkes
Will the changes proposed cover such things as leaseholders being quite unable to get information or transparency? There are over 2 million leaseholders, and they are unable to discover whether the insurance company to which they are paying great money is giving a kickback to the superior landlord. Will that sort of thing be covered, or will it require other types of housing or accountancy legislation?
Lord McNally
I am afraid that it would require a different kind of legislation. This is about freedom of information from public bodies.
Baroness Royall of Blaisdon
My Lords, I know that the Minister shares my frustration that the post-legislative scrutiny on this important Act is being undertaken only in the House of Commons, but I would be grateful if he could tell me two things. First, how can we ensure that the committee in the House of Commons takes into consideration the many views, expertise and great experience of this House on the subject? Can he also assure me that the committee will look at the issues relating to the risk register, because people out there simply do not understand why this House is not able to see the risk register while the health legislation is going through this House?
Lord McNally
I am interested in this question about the risk register. Risk registers are protected under the Freedom of Information Act, and the relevant clauses were enthusiastically used by the previous Government. Their enthusiasm for moving away from the protections of the Act seems to have occurred only after May 2010. They may like to tweet that that is true.
On the other matter, I know that there are strong opinions and great expertise in this House on freedom of information. I regret that there was no Joint Committee but, under the rules and arrangements between the two Houses, Sir Alan’s committee had first pick and chose to do it alone. However, I urge all noble Lords to write to the committee with their opinions and to offer to appear before it if Sir Alan so deems.
Lord Cormack
My Lords, has my noble friend drawn to Sir Alan’s attention the excellent debate initiated by the noble Lord, Lord Hennessy, some weeks ago and some of the very real concerns and important points raised during that debate?
Lord McNally
My Lords, yes, I have. It was an extremely useful debate and a number of former public servants expressed their point of view on how the Freedom of Information Act works in their experience. As I said at the time, I do not share all their fears. I am extremely proud that we, as a party, supported the Freedom of Information Act. It has made our system of government much healthier. Frankly, when politicians, the press and the police have all shown that they have something to hide, this is not the time to start pulling down the shutters of secrecy again.
Lord Kinnock
Can the Minister tell us of any measure of the dimensions of the Health and Social Care Bill, with such direct effect on the organisation of a life-and-death service, that has been protected by any Government’s evasion of the responsibility to publish risk registers? This is not a matter of political persuasion but of the fundamental well-being of the people of this country.
Lord McNally
As the noble Lord knows, the risk registers are protected by the Freedom of Information Act. Every piece of legislation passed by the previous Government enjoyed the same privileges. The Opposition changed their opinion only when they went into opposition.
Since there is no time to respond to the noble Baroness, Lady O’Neill, on her concerns about academic freedoms, I draw the attention of the House to the response of my noble friend Lord Henley. I have also passed that response to Sir Alan Beith for his consideration.
Baroness O’Neill of Bengarve
I thank the noble Lord but that is not what I was going to ask.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord McNally Excerpts(12 years, 9 months ago)
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Lord Bach
My Lords, I am proud to be associated with the amendment in the names of the noble Baroness, Lady Grey-Thompson, and the noble Lords, Lord Newton and Lord Pannick. The amendment is of the greatest importance, and many people outside the House are following it with exceptional interest.
It is perhaps important to remind the House that the mandatory gateway will apply only to those elements of social welfare law that are still in scope—including, of course, for the moment, welfare benefits because of a decision that the House took last week on an amendment moved by the noble Baroness, Lady Doocey. That is a statement of the obvious, because those areas of social welfare law that the Government intend to take out of scope will be quite irrelevant for these purposes. There is no possibility of legal aid in those cases. In effect, the Government are saying that people with those legal problems will have to fend for themselves if they have no money. That is a pretty shocking state of affairs.
We have had a short but powerful debate in this House today—and we had a very powerful one almost three months ago at the end of the first day of Committee, on 20 December 2011. Very powerful speeches were made. I have in mind that of the noble Lord, Lord Shipley, whose final words were:
“There are real dangers that some of those most in need of help will fail to secure it through a mandatory telephone gateway”.—[Official Report, 20/12/11; col. 1764.]
The noble Lord, Lord Phillips of Sudbury, made yet another powerful speech today. The one he made on that occasion was powerful, too. He said:
“If it is mandatory for those seeking assistance to go through a telephone gateway, we will cast adrift a significant minority of our fellow citizens who will never use a telephone gateway for the sorts of problems with which they are confronted”.—[Official Report, 20/12/11; col. 1766.]
The Minister says from a sedentary position that there is no evidence of that. What an unbelievable response. One only has to know from human nature—from living in the real world rather than the world of Whitehall—that that is how people are. It is about time that the Government started taking people as they are rather than as they want them to be. There were powerful speeches also from the Liberal Democrat Benches on that occasion.
I made the point that it was nearly three months ago because we have had no hint of a concession in all that time. We know from a letter that a telephone call will not be free, as was suggested at the time. There will be a cost to the client who has to make the call. It will not be huge, but it will be there—and that is another factor that will apply. It is simply common sense that to have a mandatory gateway for all clients seeking legal advice is absolutely inflexible and will almost certainly lead to a number of people who clearly should be helped receiving no help at all. It will lead to injustice after injustice.
The Bolton CAB is a large CAB which covers all these fields and has a legal aid contract. It runs an advice surgery from time to time. Yesterday it tried an experiment. Every client who came in had their tale told in general terms by way of a tweet, in other words on Twitter, so that one could read each one of these cases during the course of the morning and afternoon while this surgery lasted. One could see from reading these how the world of a busy CAB or law centre or advice centre actually worked in practice. There were 126 clients who sought legal advice on social welfare issues and they covered practically everything that you could think of. I have no doubt that some of those clients were well able to make a telephone call and start proceedings in that particular way, and I am an undisguised fan of telephone advice when it is appropriate. But are the Government really saying, as I suspect they are, that all 126 of those clients would have been able to do this? Are they saying it is not highly advantageous to have face-to-face contact in some cases? And are they really saying that someone who turned up to a CAB should be turned away and told to call a hotline, as will happen unless this amendment is passed? Can you think of a more bureaucratic, fussy and less efficient system and one that is less reflective of the way people actually live their daily lives? I would argue that it is an absurd proposition which is un-British in the sense that it is one-size-fits-all and too dirigiste and inflexible an approach.
Sometimes Governments just get things completely wrong and Parliament has some sort of duty to say so. It actually helps Governments in the long run if they do not charge off in the wrong direction. Here is a short story. I remember when I was a Minister sitting where the Minister is, in the same department, putting forward some foolish, to put it mildly, proposition and then seeing, when the vote was called, many of my own supporters walking past in order to vote in the Opposition’s Lobby and losing the vote for the Government by a large amount. It was the right thing for them to do. Actually, there was so many of them that none of them could be picked out and dealt with later. There is an advantage in numbers sometimes. And they need not even be afraid on this occasion of the noble Lord, the Deputy Chief Whip of the House. Frankly, I would argue that this is one of those instances. If the Government are defeated on this issue and if the Liberal Democrats could just bring themselves for once to vote against the Government, the world would not stop, the Government would not fall, but an enormous mistake might be averted and Parliament would have done the right thing.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, in case my colleagues on the Liberal Democrat Benches missed it, that was a subtle attempt by the noble Lord, Lord Bach, to woo them into the Aye Lobby. All that I can say in this technological age is, just think what the noble Lord, Lord Bassam, will be tweeting about them if they do not do as he suggests.
Throughout this Bill it has been very difficult to reply to a debate, trying to deal with very narrow, specific terms, when the noble Lord, Lord Bach, constantly makes his case in the broadest terms. We are not forcing everybody through a telephone gateway; we are doing a specific and very narrowly drawn test. I ask noble Lords to make their decision on the facts.
We make jokes about this House and its otherworldliness, but we are living in the most communications-savvy generation in our history. I do not just mean teenagers and young people; I mean silver surfers and people right through. They buy on eBay; they use telephones and new technology in a very broad way. It is patronising to assume that people cannot make use of it. Of course, we are aware that there may be exceptions. That is why, when noble Lords come to vote, it would be worth listening carefully to what we actually propose to do and what safeguards we are putting in place, rather than what I would call the broad-brush approach adopted by the noble Lord, Lord Bach.
There will be safeguards. Face-to-face advice will remain an option in the exceptional circumstances when there are callers for whom adaptations cannot be made to ensure that there is an appropriate level of service. Our starting point is that telephone advice is effective and efficient. The Community Legal Advice helpline figures for 2010-11 show that more than half a million calls were made to the service. The 2010 survey of clients who subsequently received advice from the specialist service showed that 90 per cent of clients found the advice given helpful.
The benefits of electronic services generally and the Community Legal Advice helpline service in particular are twofold. The first benefit is access. These services particularly help people with specific needs who find it difficult to get to face-to-face services; for example, those living in remote areas or who have a physical disability. Callers can access the Community Legal Advice helpline service at a time and place convenient to them. The second benefit is quality. Contrary to the assumption that face-to-face advice is always better, specialist telephone advice providers are currently required to meet higher quality standards than their face-to-face counterparts. For both these reasons, the Government believe that the Community Legal Advice helpline should be the mandatory gateway for applying for legal aid.
However, I can confirm today that the Government have listened to concerns and will not proceed with the proposal to include community care as one of the initial areas of law for which clients will be required to use the mandatory single gateway. We acknowledge particular challenges in delivering a quality service to community care clients. The Government have always recognised that this is a complex area of law and said in the impact assessment that around half of clients in this area would require face-to-face meetings with legal representatives even where only legal help is being provided.
We have heard since from stakeholders that individuals’ circumstances can be so unique that face-to-face meetings are frequently required to deal with problems in this area even where only legal help is being provided. We have accepted that the numbers of community care clients requiring face-to-face advice is in fact likely to be more than our original estimates, and we are therefore not proceeding with the proposal to include community care as one of the initial areas of law for which clients will be required to use the mandatory single gateway.
Lord Newton of Braintree
My Lords, I acknowledge that point. I would also like to acknowledge that I inadvertently misquoted the briefing. I referred to community care but I also said that debt, discrimination and special educational needs were covered—I got that wrong. However, I come back to my basic point. What distinguishes the potential recipients of community care from the recipients of welfare benefits and a lot of other things? The same people will have needs elsewhere, and they will need face-to-face help not only with their community care needs.
Lord McNally
That is what I call a second bite of the cherry on Report. However, I was in fact about to clarify, for the benefit of the House, that indeed the noble Lord was wrong, and that the first gateway areas of law will therefore be debt, discrimination, and special educational needs.
As the House is aware, the Government have been working with a range of groups, including equality organisations, to discuss the many adaptations and adjustments already in use through the existing community legal advice helpline. As a result of this work, we are comfortable that meaningful access to legal aid services for the majority of callers in the areas of law that are to be covered by the mandatory gateway is very much achievable. The mandatory gateway will, therefore, be relatively narrowly drawn, and we will proceed sensibly and prudently. This is precisely about ensuring that services remain accessible.
We believe that these are the right areas to begin with, because the community legal advice helpline already offers specialist telephone advice on debt, special educational needs and some discrimination cases. We trust that this provides sufficient knowledge on which to base our volume estimates and have a good sense about the realism of ensuring accessible services. Now that we have made further movement on the issue—a matter that I know the noble Baroness feels strongly about—I hope that she may be able to meet us halfway, particularly given the safeguards that we are also putting in place, which will apply across the three remaining areas.
The Government are not only committed to a review of the whole implementation, including operation, of the gateway in the three areas of law, but will ensure that face-to-face advice continues to be available where it is genuinely necessary. All callers will need to be assessed on a case-by-case basis to determine whether they should be offered advice only over the telephone. Those making the assessment will be required to have an awareness of the difficulties faced by callers, who may have various conditions such as learning impairments, hearing impairments, and mental health conditions. Where they assess callers as not being suitable, even with a reasonable adjustment, to receive telephone legal aid advice, callers will be referred to face-to-face providers. The key consideration will be whether the individual client is able to give instructions over the telephone and act on the advice given over the telephone.
As I have previously stated, specialist telephone advice providers are currently required to meet higher quality standards than their face-to-face counterparts. I understand that the LSC is reviewing the quality standards of all contracts in order to ensure that they remain appropriate and fit for purpose once this Bill is implemented. However, while the precise detail is still being developed, I can assure the House that the tender process, overall quality requirements and contract management approach for the specialist telephone advice providers will mean that they will continue to meet a higher service standard than that expected of equivalent face-to-face advice providers, and that this will include a specific requirement for appropriate training both in relation to understanding individual needs and the assessment process itself. Noble Lords should therefore rest assured that access will be protected under these plans.
A number of specific points were made. My noble friend Lord Roberts argued that the face-to-face guarantee for under-18s should be extended to age 25. Again, I must say to him that those aged 18 to 25 must be the most telephone-friendly generation in our history, and I do not think that we would extend it to 25.
The noble Baroness, Lady Grey-Thompson, made the point that helpline operators are not legally qualified. No, but they are fully trained to identify key words or issues from the client’s description, and then—and this is important—pass the client on to the appropriate legally trained adviser. She also asked how we will assess whether a person is in need of special attention. As I have said, all callers will be assessed on a case-by-case basis to determine whether they should be offered advice over the telephone or assessed for direct face-to-face advice. It is also possible for callers to have an authorised third party to make the initial call for them. Therefore, one should look past the broad brush swept by the noble Lord, Lord Bach, and the suggestion that this is a fundamental bar to access to legal aid.
I say to the noble Lord, Lord Pannick, that earlier this year I went to the Law Society awards ceremony for the best law officers of the year. I was extremely impressed by how many of the prize winners gave distance advice either by telephone or via the internet. It is the age in which we live.
In this explanation, I hope that noble Lords will understand that this is a narrow scope attempt at using a telephone gateway. Built into it, in training the people undertaking it, is the discretion to refer to other specialists and the right of those specialists to offer face-to-face advice if an inquiry warrants it. Noble Lords can see that that is a far road from that painted by some of the speeches today. We have also made a significant move in response to the representations made to us. Based on the facts and the arguments, I hope that the noble Baroness will withdraw her amendment and that, if not, noble Lords will support me in the Division Lobby this afternoon.
The Earl of Listowel
Before the noble Lord sits down, I thank him for clarifying the guidance to those who will take these telephone calls. Will the Minister consider giving these people guidance on the fact that a disabled person may have parental responsibilities, so that if they have children additional thought might be given to a face-to-face meeting? If for some reason this does not work, we harm not only the adult but also the children.
Lord McNally
I would certainly consider that. As so often with suggestions from the noble Earl, that is well worth considering. However, to put it to him the other way round, if the person phoning has children the benefit of being able to get advice at a distance by telephone at a time of their choice could also be an advantage.
Lord Campbell of Alloway
I thank the noble Lord. His speech opened the gateway, for which I am grateful, to the face-to-face, one-by-one necessity which arises in a lot of desperate cases. Therefore, on that basis, I accept that the Government will do the right thing.
Lord McNally
I am very grateful that my eloquence has won the noble Lord over. I would ask the House to consider what he has rightly drawn attention to: namely, that some people may be in need of an hour-long chat, which is why the gateway is important for the volume that we are dealing with and for making sure that people get the right and the best advice as quickly as possible.
Baroness Grey-Thompson
My Lords, I thank the Minister for his response and I recognise that there has been much positive movement. I also thank all noble Lords who contributed to the debate and have expressed their support. I will not précis each contribution, but I feel that there is significant support on all sides of the House. Perhaps I may quote the noble Lord, Lord Wigley, who said that this section is controversial. It is about respect and dignity.
In his response to the noble Lord, Lord Bach, the Minister said that there is no evidence that people will be reluctant to use the telephone gateway. I am afraid that I disagree, and I do not believe it is patronising to say that people will have difficulties with or will be put off from communicating in certain ways. The noble Lord, Lord Pannick, said that it is about access to justice. People should be able to access justice in the most appropriate way. I still do not feel that we are in the right place yet because some cases are incredibly complex. While I welcome the clarity on the training of operators—it is very positive news that the operators of the telephone lines will be better trained than those who do face-to-face interviews—it still comes down to the ability of the client to use the right keywords. If they do not do that or are not able to express things in the right way, I am very concerned that we will be doing a great disservice to a huge number of people.
Again, I thank the Minister, but I do not believe that he has gone far enough, and I wish to test the opinion of the House.
Lord McNally
Lord McNally
Lord McNally
My Lords, with the implicit trust that the House has in me—I am glad to see the noble Lord, Lord Bach, nodding vigorously—I assure the House that these are minor technical amendments. They are really a belt-and-braces exercise to ensure that there are no gaps between the Bill coming into force in April 2013 and various contractual arrangements that we must have. They are minor technical amendments to cover an eventuality in which things did not quite knit together in passing from one Bill to another. I hope that the House will accept that assurance. I have written explaining in detail, and the letter is in the Library of the House. I beg to move.
Lord McNally
Lord McNally
“(2) Where the Lord Chancellor considers it appropriate as part of the arrangements for effecting the transition from the operation of Part 1 of the Access to Justice Act 1999 to the operation of this Part of this Act, the Lord Chancellor may by regulations make provision requiring or enabling prescribed 1999 Act services to be made available to individuals or other persons under this Part for a period specified or described in the regulations.
(3) In subsection (2) “1999 Act services” means services which, immediately before the day on which the first regulations under that subsection come into force, may be funded under Part 1 of the Access to Justice Act 1999.
(4) Where the Lord Chancellor considers it appropriate for the Legal Services Commission to cease to exist before this Part is brought fully into force, the Lord Chancellor may by regulations make provision for the purpose of requiring or enabling the Lord Chancellor and the Director, or persons authorised by the Lord Chancellor or the Director, to carry out LSC functions for a period specified or described in the regulations.
(5) In subsection (4) “LSC functions” means functions conferred or imposed on the Legal Services Commission by or under Part 1 of the Access to Justice Act 1999.
(6) Regulations under subsection (4) may not include provision requiring or enabling the Lord Chancellor—
(a) to take decisions about whether services should be funded in individual cases, or(b) to give directions or guidance about the carrying out of functions under Part 1 of the Access to Justice Act 1999 in relation to individual cases.(7) Regulations under this section—
(a) may amend, repeal, revoke or otherwise modify Part 1 of the Access to Justice Act 1999, this Part of this Act, any other Act and any instrument made under an Act;(b) may describe a period, in particular, by reference to the coming into force of a provision of this Part of this Act or the repeal of a provision of Part 1 of the Access to Justice Act 1999.(8) The requirement for regulations under this section to specify or describe a period does not prevent the making of further regulations under this section.
(9) The powers to make regulations under this section are without prejudice to the generality of the powers to make regulations under the other provisions of this Part and under section 138.
(10) In this section “Act” includes an Act or Measure of the National Assembly for Wales.”
Lord McNally
Lord McNally
Lord McNally
My Lords, the amendment deals with matters on which I have written to colleagues; the letter is in the Library of the House. It is in response to the report of the Delegated Powers and Regulatory Reform Committee, which recommended that the procedures for regulations under Clause 10(1)(b) should be subject to the affirmative resolution procedure. These regulations will set out the merits criteria for civil legal aid and set out rules around the prospects of success and cost-to-benefit ratios. The Government accepted this recommendation subject to allowing for a provision as in the Access to Justice Act to allow changes to be made without delay where appropriate. I hope that noble Lords will see this series of amendments as putting those recommendations into place. I beg to move.
Lord McNally
“( ) regulations under section 10(1)(b), other than regulations in respect of which the Lord Chancellor has made an urgency statement;( ) regulations under section 12(9);”
Lord McNally
“( ) regulations under section 38 that amend or repeal a provision of an Act (as defined in that section), other than regulations revoking such regulations or inserting or repealing provision previously repealed or inserted by such regulations;”
Lord McNally
My Lords, I should first say to the noble Lord, Lord Newton, that if he is thinking of joining the Liberal Democrats he would fit in very well.
This is not a debate about those who care about mesothelioma sufferers and those who do not. We all care, and many of us have been trying to address the problems associated with that dreadful disease. Indeed, the Department for Work and Pensions is working closely with all stakeholders to see what can be done to compensate people with mesothelioma and similar conditions who are unable to claim civil damages because their employer no longer exists and their insurer cannot be found.
It is true, as has been mentioned, that Governments of all parties have taken action to aid sufferers of industrial injuries and illnesses, and the legacies of our industrial past. However, it is also fair to put on record that legal aid was removed from this area of litigation by the previous Administration in 2000.
Before turning to the detail of these amendments, I wanted to say a few words about the importance of the changes we are introducing in Part 2. As we heard in the earlier debate, the changes we are proposing to no-win no-fee agreements were recommended by Lord Justice Jackson after his year-long review, and supported by the senior judiciary. The Lord Chief Justice said that the report addressed civil costs as a comprehensive, coherent whole. Our proposals were welcomed by the previous Lord Chancellor, Mr Straw, and by the opposition Front Bench in the other place when the current Lord Chancellor announced them on 29 March last year. The shadow Justice Minister said at Committee stage:
“the intention of part 2 is perfectly sound, and it is one with which we have a great deal of sympathy”.—[Official Report, 13/9/11; Commons, Legal Aid, Sentencing and Punishment of Offenders Bill Committee, col. 501.]
So there is broad agreement on the principles of our reform.
Part 2 addresses the way that the present system is—as I think that the noble Lord, Lord Faulks, described it—distorted. The agreement is perhaps not surprising given the high costs that have arisen under the current regime and the unfairness that has resulted between claimants and defendants.
I remind the House of that, because I am concerned that in making the position fairer between claimants and defendants, as we seek to do, we should not make the position less fair between different classes of claimants, as some of the amendments would, as the noble and learned Lord, Lord Mackay, just reminded us. The current regime of recoverable success fees and insurance premiums allows for risk-free litigation from claimants and substantial additional costs for defendants.
Allowing exceptions, so that the regime continues in relation to certain cases only, would introduce unfairness for those claimants in an otherwise similar position where the exception does not apply. Allowing an exception for defamation claims, for victims of industrial diseases or for claims of corporate harm by multinational companies, for example, would introduce an advantage to claimants in those specific categories which would be unfair to those in otherwise similar positions whose claims fell into a slightly different category. Clauses 43 and 45 are a fundamental element of the Government's reform in ensuring proportionality and fairness across the board. That is why we resist any substantive amendments to them.
I will take Amendments 132AA, 132AB, 132D, 136, 141, 141ZB and 142 together, as they are intended to retain recoverable elements in claims dealing with respiratory diseases or industrial diseases caused by an employer’s breach of duty to an employee. Amendments 132AA, 136, 141 and 142 would retain recoverability of success fees after the event, or ATE insurance payments and membership organisations’ self-insurance costs for respiratory disease cases. Amendments 132AB, 132D and 141ZB would do the same for employers’ liability claims relating to industrial diseases.
Although I will address all industrial disease claims in my response, I am aware of the keen interest of the noble Lords, Lord Alton and Lord Avebury, in mesothelioma in particular. They have been tireless and dedicated campaigners on behalf of sufferers of that fatal and tragic disease, and I commend them on that. Although we can agree on the tragic nature of the disease and its impact, I cannot agree that those cases should be exempted from our reforms. Noble Lords have argued that industrial diseases, including mesothelioma and other less serious conditions, are not part of the compensation culture. The Government accept that—I did so in Committee. There is no suggestion that those claims are brought improperly. Our reforms are intended to address high cost throughout civil litigation. This is not just about driving out fraudulent or exaggerated claims but about ensuring that legal costs are proportionate to the sums at issue. For that, wholesale reform is needed. To be effective, it must apply across the board.
Specifically on mesothelioma, I said in reply to an Oral Question from the noble Lord, Lord Alton, on 29 February that I am not aware of anything associated with those cases which makes them particularly expensive to bring. I have not heard anything since which persuades me that there is anything particular about the nature of those cases—the cases, not the disease—which makes them any harder to bring in legal terms than any other case. Indeed, it is quite the reverse. As my noble friend Lord Thomas of Gresford and the noble Lord, Lord Faulks, pointed out, significant steps have been taken in recent years to lower the barriers to bringing compensation claims for those diseases. Senior Master Whitaker, who oversees these cases in the High Court, has helped to introduce a fast-track procedure for mesothelioma cases. That has been incorporated into a practice direction ensuring that those claims are dealt with as quickly as possible—again a point brought up by my noble and learned friend Lord Mackay.
Various legal changes over the past few years, including primary legislation such as the Compensation Act 2006, and judgments of the Supreme Court, have removed some of the hurdles for sufferers of respiratory diseases to bringing claims. The Department for Work and Pensions has undertaken various initiatives to make it easier for claimants to trace their employers’ insurers. I understand that it can be difficult and expensive for those with what the noble Lord, Lord Wigley, I think, referred to as long-tail diseases, such as mesothelioma, to track down the liable insurer. In April 2011, the insurance industry set up the Employers’ Liability Trading Office, or ELTO. Supported by the Government, the ELTO provides an online resource through which claimants and their representatives can search for the relevant policy, reducing time and costs for those involved in such searches.
The Department for Work and Pensions continues to work with stakeholders to see what can be done to compensate people with mesothelioma and similar conditions who are unable to claim civil damages because their employer no longer exists and their employer’s liability insurer cannot be found. A response to the government consultation, Accessing Compensation Supporting People Who Need to Trace Employers' Liability Insurance, which reflects further on possible solutions, will be published in due course. I recently met the insurance industry to discuss ongoing work. I can tell the House that, as a result of this issue being raised in discussion on the Bill, I will be taking the matter up with my noble friend Lord Freud at the Department for Work and Pensions to discuss what progress is being made and how it can be advanced. As noble Lords will be aware, my noble friend told the Grand Committee yesterday that we will be increasing the mesothelioma lump-sum payments by 3.1 per cent from 1 April this year. I welcome my noble friend’s statement and his commitment to working with interested parties to offer further help to sufferers who have difficulty in tracing their insurer.
Noble Lords have spoken of the prohibitive costs of bringing industrial disease claims against well resourced defendants. There is concern that claims will not be brought if claimants risk being liable for high defendant costs should they lose. In response, I remind noble Lords that in personal injury claims, including industrial disease, qualified one-way costs-shifting will apply—that is, a losing claimant will usually not be at risk of paying a defendant’s costs. We discussed QOCS earlier in the debate.
We turn, then, to the claimant’s own disbursements, which noble Lords have argued will be unaffordable should “after the event” insurance premiums no longer be recoverable. On respiratory disease claims, my understanding is that only one medical report is required by rules of court in order to issue a claim. This report will cover the diagnosis, basic causation, prognosis and what the life expectancy might have been without mesothelioma. In exceptional circumstances, a forensic engineering report may also be necessary to show causation. However, the majority of mesothelioma sufferers will not need reams of expert evidence to bring their claim and consequently are unlikely to face high up-front costs for expert reports.
Claims for industrial diseases are not unique in requiring expert evidence to show the nature and extent of the illness. The same is true of many personal injury cases, where there may be disputes, if not of the causation or liability, of the extent of the damage caused. It is not true to say that such reports will be unobtainable without a recoverable ATE premium, particularly as a claim may be brought on the basis of one report. A claimant may pay for reports through their own means; solicitors may decide to bear up-front costs themselves; or a claimant may take out ATE insurance and pay the premium themselves. In any of those instances, either the claimant or the solicitor will have a direct interest in the costs that are being incurred—which is one of the main principles underlying our reforms.
It should also be noted that general damages for non-pecuniary loss, such as pain, suffering and loss of amenity, will be increased by 10 per cent—a point emphasised by the noble and learned Lord, Lord Mackay, but not mentioned in other speeches when there was talk about a raid on damages. That will help claimants to pay any success fee that may be due once their claim has ended. I also point out that the proposed cap on success fees of 25 per cent of damages awarded is not compulsory. It is a negotiated amount and excludes those for future care and loss. We expect solicitors to compete for business by offering lower fees. We also expect those who specialise in this area to offer fair and realistic terms for their clients that take into account not only the risk of the case but also the needs of the individual claimants and their families at what, of course, will be a particularly traumatic time in their lives.
Lord McNally
My Lords, the noble Baroness, Lady Coussins, said that making this exception would not “gut” the Bill. But I hope that noble Lords who sit through these debates or perhaps read Hansard will see the pattern. Clauses 43 and 45 are a fundamental element of the package of reforms recommended by Lord Justice Jackson to deal with the problems of disproportionate costs in civil litigation under CFAs. I have called that the central architecture of the Bill. The clauses seek to reform and remove the inflationary defects introduced into the system by the previous Administration, which is the central point.
The Jackson reforms look at a specific part of our civil justice system. Throughout the passage of the Bill, we have had claims for exceptions to the central architecture. Certainly, in debates an adopter stands up and goes into the great clinical detail of an illness that we might be talking about, as if that is what the debate is about, and whether one should vote for or against it. Or the noble Lord, Lord Brennan, tells us of the suffering and the hardship of working in mines in South Africa as though that was the subject of the debate. Then everyone thinks, “Oh, we can’t be against poor women in South Africa in such conditions or people suffering from such terrible diseases”. In fact, that will remove the central reforms of the Bill.
In most of the examples that we have had so far, when one looks at what we are actually doing, they do not stand up to examination. It is of course always possible to make the case for an exception in a particular class of case, as noble Lords have done. But we believe that our changes must apply across the board. However, let me make it clear at the outset that we support claims arising from allegations of corporate harm in developing countries being brought and we support the protection damages for personal injury. No-win no-fee conditional fee agreements will continue on the same basis on which the noble and learned Lord, Lord Mackay of Clashfern, introduced them. Indeed, if the noble Lord, Lord Brennan, was referring to a case in the 1990s, it was probably brought under this regime, which is the basis on which it still operates in Scotland. We are also extending the availability of damages-based agreements, which are sometimes called contingency fees, to enable their use in civil litigation. Some of the objections to DBAs from the representatives of big business make me feel that they are a much more potent weapon than people give them credit for.
As I have said, we recognise how important these cases can be. We recognise also that, following the Rome II regulations, the damages in these cases can be relatively low. But the costs have been extremely high, as demonstrated in the now notorious Trafigura case, in which the Court of Appeal criticised the claimant lawyers for seeking costs of £100 million in a case which resulted in £30 million in damages. I should add that the defendant’s costs were only approximately £14 million, which was about one-seventh of the costs claimed by the claimants.
The reforms in Part 2 are about making costs more proportionate, while allowing meritorious claims to be pursued. As has been recognised by the noble Baroness, Lady Coussins, I and my officials have met on several occasions with representatives of NGOs which support these cases but we are not persuaded that they cannot be brought when our changes are implemented. We have asked for examples of further details of costs. If noble Lords want to engage between now and Third Reading, I will be happy to do so.
However, I continue to come to this Dispatch Box to answer attacks on this legislation that do not stand up to examination of the reality. It often means that the Opposition cleverly erase their own record in these areas and immediately adopt whichever hard case is being brought forward as the exception that will not damage the whole architecture of the Bill. We believe that Jackson was right in his reforms. We do not believe that those kinds of cases—I think the number referred to is about 10 such cases in the past 15 years —will be prevented from being brought.
We have listened carefully and we have sought to engage with relevant NGOs on this issue. As I said I would in Committee, I have now discussed this matter further with the Secretary of State but for the reasons that I have given we remain unconvinced that these cases cannot be brought under the new regime, as was suggested by the right reverend Prelate the Bishop of Newcastle.
Lord Brennan
The noble Lord is most gracious to give way. The points I was making were illustrated with cases. My principle point was that these cases are so expensive to run that you need a capital base which is not available to lawyers in this country. I should like the Minister to consider—if not now, later—in explaining to the House how it is that his advisers are telling him that lawyers in this country can raise £2 million, £3 million, £4 million or £5 million to run a case for three or four years. How will that be done?
Lord McNally
I will certainly take note of that. I realise the experience of the noble Lord, Lord Brennan, in these areas. When we asked the NGOs for hard facts and figures on costs, they were not forthcoming but perhaps there is time between now and Third Reading to re-engage. I also think that part of the problem is that whatever we have in civil law, conditional fee agreements or anything else, some of the problems raised by the noble Lord, Lord Brennan, in illustration will not be solved in British law courts or by changes in the British legal system. We are trying to reform what everyone who comes to the Dispatch Box acknowledges is a defect in our civil legal system and for which Lord Justice Jackson has produced a reform package that we are trying to put into law. Everyone agrees that we are right to do so, but for this, that and the other exception. Again, I am willing to discuss this further, but I do not think the case has been made—
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—
Lord McNally
I am sorry, the noble Baroness, Lady Coussins. I am happy to re-engage between now and Third Reading, but at this point we are not convinced.
Lord Beecham
My Lords, in fairness to the Government, they did not do what the noble Lord, Lord Martin, suggested. They did not put the whole report on the table and say, “We will have it”, but chose which bits suited them and left out the part of the report that dealt with legal aid, which we have debated at some length, among other matters. However, that is a little beside the point.
I support the noble Lord’s amendment, if only because subsection (4), which it seeks to delete, effectively locks and bolts the door to any subsequent change to the provisions on success fees without primary legislation. That is a formidable obstacle. The subsection is unnecessary and the Government could have dealt with the matter in a way that would have allowed them or a subsequent Government to review the situation without primary legislation. The way that the Bill is drafted does not allow that, and for that reason, if no other, I support the noble Lord’s amendment.
Lord McNally
Did the noble Lord, Lord Martin, say “crabby”? My goodness; I have always been thought of as a little ray of sunshine. Of course we have not accepted the Jackson report lock, stock and barrel. We have honed and polished it, and brought it to the House. We have of course accepted the proper role of this House, which is to revise and advise. I listened with a good deal of sympathy to the experience of the noble Lord, Lord Martin, although I have to say that I am not a lawyer, and I would have taken up the case of Christopher Jefferies, never mind anyone else. I think it was the Daily Mirror that accused him of being a Liberal Democrat, which would have been—I had better not say it.
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.
Lord Bach
I am happy to put my name to this amendment with the noble Lord, Lord Thomas of Gresford. I cannot think of anything he said that is not right on this. It seems an open-and-shut case—as it did in Committee, I have to say, when the noble and learned Lord, Lord Mackay of Clashfern, made the first speech in the debate on this subject. I have nothing to add to what the noble Lord, Lord Thomas of Gresford, said: he made the case. If the Government are to reject this, I very much hope that it will come back for final decision at Third Reading.
Lord McNally
My Lords, the Government accept that insolvency proceedings are untypical of our reforms to CFAs in an important respect. Across many areas of law—for example, in clinical negligence cases against the NHS—the Government are on the sharp end of our dysfunctional CFA regime as it is the defendants bringing cases against claimants, sometimes speculatively. However, as the noble Lord, Lord Thomas, has said, insolvency stands apart because it is one of the few areas where CFAs sometimes work to the advantage of government departments; for example where an insolvency practitioner recovers moneys for the taxpayer and other creditors. So if these amendments were to be accepted, they would effectively constitute a carve-out for the key place where CFAs can be useful to the Government—this at a time when we are asking everyone else to adjust to a new, more sensible regime.
We debated insolvency proceedings in Committee and I said then that we were considering this issue within government. I can report that we have thought about it carefully, but we do not agree that an amendment along these lines is the right way forward. I do not believe it is acceptable to say that CFA reform is good for everyone else, but is not good for the Government.
Lord Bach
I am sorry to interrupt, but it is not so much that this is good for the Government—it is good for the taxpayer. Surely that should be one of the main considerations. If it is good for the Government, that is fine; but if it is the taxpayer who will benefit, because creditors get their money, as it were—the HMRC gets its money by taking advantage of the amendment—I cannot see why the Government are resisting this.
Lord McNally
As the noble Lord will know, the interests of the taxpayer and the Government are synonymous, because one is working for the other.
Lord McNally
It is far too late in the evening for such repartee. As I say, we have reached agreement across government, in respect of insolvency proceedings, that new ways will be implemented to deal with these cases without recoverable success fees and insurance premiums. We are working on a programme of implementation and we will set out the details in due course.
As with other areas now subject to a new CFA regime, the effect will be that claims occur at more proportionate cost, as claimants will have a stake in the legal costs being incurred on their behalf. We believe that the exemption proposed by the amendments in respect of insolvency proceedings is unnecessary and would breach the basic rationale of our reform policy. I therefore urge my noble friend to withdraw his amendment.
Lord Thomas of Gresford
Can my noble friend tell us when these proposals will be finalised and whether it will be during the currency of this Bill?
Lord McNally
I am trying to work out the vaguest reply that I can give to that. Discussions are going on and, as I said, we will make an announcement as soon as possible.
Lord Thomas of Gresford
I am very much enlightened by my noble friend’s formulation. The noble Lord, Lord Bach, made a very good point. It is the taxpayer’s money that we are talking about here, and not just the taxpayer but the worthy creditor, the small businessman or even the large businessman who has given credit to a firm that has gone into liquidation, sometimes through fraud and sometimes through incompetence. However, the taxpayer and the businessman are going to suffer because of this provision, unless my noble friend is saying that these proceedings are never going to be brought because there is some other way of doing it. The vagueness has left us all a little in the air. However, for the moment and subject to further discussions between now and Third Reading, I beg leave to withdraw the amendment.
Lord McNally
My Lords, I hope that my reply to the previous debate has shown our gritty determination to keep to the central architecture of the Bill. As I have explained, abolishing the recoverability of success fees and insurance premiums from the losing side is a key government reform which will reduce the substantial additional costs paid by defendants under the current regime. The reforms are intended to apply across all areas of civil litigation, and the Government do not believe that any exemptions are necessary, fair or desirable. If the amendments were accepted, claimants in these types of cases would have no incentive to control their lawyers’ costs. That cannot be right. Proposals to control legal costs should apply across the board. I urge the noble Lord to withdraw his amendment.
Lord Beecham
I decline the request to agree with the Minister. There is little incentive for the Government as a defendant to settle cases when they do not have the additional incentive of a success fee being awarded against them when they lose. However, in the circumstances I beg leave to withdraw the amendment.
Lord McNally
(a) the agreement was entered into specifically for the purposes of the provision to P of advocacy or litigation services in connection with the matter that is the subject of the proceedings in which the costs order is made, or(b) advocacy or litigation services were provided to P under the agreement in connection with that matter before the commencement day.”
Lord McNally
My Lords, the government amendments in this group are minor and technical and will ensure that changes to the recoverability of success fees and the insurance element will apply consistently to all conditional fee agreements, including collective CFAs. I wrote to all Peers last week about the amendment. A copy of the letter was placed in the Library of the House. I beg to move.
Lord Bach
My Lords, I am not getting to my feet just to be difficult. When the Minister moves government amendments and describes them as technical, usually I sit absolutely still in my place. However, on this occasion I have a couple of questions. If he does not know the answers tonight, he is welcome to write to me and to other noble Lords. Will he confirm that the effect of Amendment 135A will be that a success fee as part of a CFA under which work for the claimant commenced before the Bill’s commencement day will still be recoverable from the defendant on exactly the same basis as it is now?
The second question is similar but concerns collective CFAs. Will the Minister confirm that the effect of the amendment will be that a success fee as part of a collective CFA under which work for an individual claimant commenced before the Bill’s commencement day will still be recoverable from the defendant on the same basis as it is now? I will not object to the amendment being agreed, but I would be grateful if in due course I could have answers to those questions.
Lord McNally
My Lords, I am sorely tempted to show that after months of total immersion in the Bill I can leap to the Dispatch Box and give the noble Lord a detailed response. However, as he knows, I did only one paper on English legal institutions in part 1 of my degree. Therefore, I will not pretend that I can give him a definitive answer. However, I firmly promise that a letter will go to him and into the Library of the House in response to those questions.
Lord Pannick
My Lords, I am sure the Minister will tell us again that the general regime for success fees and “after the event” insurance must apply to all cases and one cannot have exemption for this type of case. But have the Government given any thought to whether it might be desirable to include in Part 2 a provision similar to Clause 8(2) of Part 1, giving some form of discretion to the Lord Chancellor to exclude from the scope of Part 2, in the light of experience of how Part 2 operates, any categories of case in respect of which it becomes apparent after this Bill comes into effect that the system is not working very well and is causing practical problems about access to justice? It might then be more sensible to go back, in relation to particular categories of case, to the old system under which the unsuccessful defendant would have to pay the success fee. Will the Minister give some thought to whether a general power for the Lord Chancellor to that effect might not be a good idea? Things might look rather different in a year or two from how they look now.
Lord McNally
My Lords, we have reached the stage of the evening when the noble Lord, Lord Pannick, not only asks the questions but gives the answers as well—cutting out the middleman, which is me.
I take note of his suggestion. As I do with all our deliberations, I will report back to the Lord Chancellor on this. I would have thought that his experience of the willingness of your Lordships to make exceptions, one after another after another, will make him think that giving such flexibility in the Bill will only encourage a constant stream of exceptions coming to his door.
We have thought very hard about this. We think that the architecture is right. We think that by going back to the system as it broadly was under the noble and learned Lord, Lord Mackay, repairs the damage that was done by the previous Administration—with the best of good will. I will report, and I will even tell the Lord Chancellor that it was an idea of the noble Lord, Lord Pannick, which I am sure will produce the appropriate response from the Lord Chancellor.
Lord McNally
Amendment 139C, in the name of the noble Lord, Lord Beecham, seeks to amend Clause 45 to require the Lord Chancellor to make regulations to allow the recovery of ATE insurance premiums taken out to cover the risk of paying one’s own disbursements within the relevant pre-action protocol period. As I have already made clear, the Government’s position on ATE insurance is that it should no longer be recoverable from the losing party. Amendment 139C goes against the Government’s reform and we will strongly resist it.
In the same vein, I cannot accept Amendments 136A to 136D, which would retain recoverability of success fees for judicial review, employers’ liability claims, professional negligence and clinical negligence. I have touched on some of these issues before and I do not intend to detain noble Lords further by going into the details of each particular area or trying to assess which litigants should be classed as more deserving than others. As I have said, it would be invidious and unfair to set out exceptions for some claimants and not for others, and we do not intend to do so.
I urge the noble Lord not to press the amendments.
Lord Beecham
With my customary reluctance, I beg leave to withdraw the amendment.
Lord Beecham
My Lords, I strongly support the noble and learned Lord’s amendment, which makes every conceivable sense from the financial to the legal and logical. I have to say that I do not at all blame the noble Lord, Lord McNally, or the noble and learned Lord, Lord Wallace, but it is a matter of some concern that those responsible were not courteous enough to ensure that the noble and learned Lord, Lord Lloyd, who, after all, is one of the most distinguished Members of your Lordships’ House, should have been supplied with a copy of the document lodged in the Library. Indeed, had I not chanced across it myself today and given him a copy, he might not even at this stage have known of its existence. That is not good enough and I hope that Ministers will have a word with the appropriate members of their staff.
More significantly, the noble and learned Lord makes an unanswerable case for this amendment and I hope that the Minister will be able to say that the Government will respond sensibly. It would assist justice and assist the finances. It seems to me that it would be absurd for the Minister not to accept this amendment.
Lord McNally
My Lords, if there has been any discourtesy to the noble and learned Lord, Lord Lloyd, I absolutely apologise and take responsibility for it. I should like to put that on the record. The noble and learned Lord has described our proposal in the past as expensive and inefficient, and has made much of the difference between his and the Government’s figures. As he knows, we have now put our calculations in the Library of the House and I can assure your Lordships that we have given careful consideration to the calculations that the noble and learned Lord has provided. In addition, I have met with the noble and learned Lord, as have my officials, and we have swapped calculations. We have explained that we believe that he is omitting some vital costs from his calculations.
The method we have used is open and transparent. Taking costs to legal aid and to public sector defendants, we believe that the costs to the public purse of the proposals from the noble and learned Lord, Lord Lloyd, to fund expert reports by legal aid is about £17.5 million a year, whereas the cost to the public purse of our proposal for recoverable insurance premiums is between £18.5 million and £19.5 million. The result is likely to be an additional cost of about £1 million to £2 million.
I understand that the noble and learned Lord does not accept our calculations, but we do not accept his. This is a matter on which we have to take a judgment. These additional costs, as he has said, will enable more people to gain access to justice than under his proposals, which are limited to those who are financially eligible for legal aid. For this reason, and for reasons that are set out in more detail in the paper in the Library, we believe that the powers in Clause 45 are the best way to support victims of clinical negligence in a relatively inexpensive and fair way. I realise that this is a clash of figures and a clash of judgments, but I am making my judgment and we are willing to defend it in this House. At this hour, I would urge the noble and learned Lord to withdraw his amendment.
Lord Lloyd of Berwick
My Lords, I am afraid that I do not find the answer satisfactory. I will withdraw the amendment, of course, but in the hope that the Government will think again and perhaps, between now and Third Reading, take further and better advice. On that basis, I beg leave to withdraw the amendment.
Lord Beecham
My Lords, we return briefly to the question of environmental cases which we also discussed under the amendments tabled by the noble Lord, Lord Thomas. The distinction between these amendments and the previous amendments are that, in this case, the amendments provide the Lord Chancellor with the opportunity to provide by regulation for the changes that are sought; namely, that in respect of Amendments 139 and 140, disbursements related to ATE insurance would be recoverable and, under Amendment 142BC, that qualified one-way costs-shifting would apply, as it should, to these cases. That was recommended by Lord Justice Jackson and I cannot see why the Government would differ from his view. Therefore, for environmental claims and judicial reviews connected with them, QOCS would apply, as indeed they should. This is an important area of policy and potential litigation. As the noble Lord, Lord Thomas, pointed out fully, it needs to be addressed. As I have said, we prefer this iteration of the remedy, but in one way or another the Government should be seen to move in the direction of facilitating these claims under the conditional fee arrangement scheme. I beg to move.
Lord McNally
My Lords, Amendments 139 and 140 seek to allow the continued recoverability of ATE insurance premiums in environmental claims to cover the costs of expert reports. Environmental claims will generally involve a number of claimants who could contribute towards the costs of any reports. Alternatively, the reports could be funded under a “before the event” insurance policy should claimants have one, or under an “after the event” insurance policy should claimants wish to purchase one. Further, the claimant’s solicitors might agree to fund disbursements in exchange, perhaps, for an increased success fee. A variety of means of funding disbursements are available in environmental cases without the need for an exception for recoverable insurance premiums.
So far as the other side’s costs are concerned, the Government’s view, as I explained in Committee, is that a protective costs order ought to provide sufficient costs protection in respect of the other side’s costs in environmental judicial review cases, as we set out in our recent consultation. Under a PCO, it will be clear from the outset what costs the claimant will have to pay if the claim is unsuccessful. The order will also ensure that some contribution is made towards the costs of public bodies that have successfully defended the claim. As I said earlier, environmental claims will generally involve a number of claimants and it is right that they should contribute together to costs, at least to some extent. The Government remain convinced that this is the right approach in these cases. We will shortly set out the details of the way forward in the light of our consultation. I hope, therefore, that the noble Lord will withdraw his amendment.
Lord McNally
Lord McNally
Amendments 141A to 141C relate to the self-insurance element where a body undertakes to meet a member’s cost liabilities. They are intended to have a similar effect to government Amendment 135A. I beg to move.
Lord McNally
Lord McNally
My Lords, I have said before that we are grateful to my noble friend for raising this issue. It is a possible problem and a number of noble and learned Lords and lawyers outside have given warning signals. At the moment we are looking at how voluntary regulation is working in the area. However, my right honourable friend the Lord Chancellor is very aware of the situation and is keeping it under review. We do not think that statutory regulation through this Bill is either the right place or the right time but we welcome the fact that my noble friend has put this issue on the political radar. Both lawyers and legislators will have to follow the matter closely to see whether we will need to return to it at some future date. In the mean time, I ask my noble friend to withdraw the amendment.
Lord Thomas of Gresford
On this occasion I am grateful to my noble friend for his reply. My purpose was to highlight the insidious advance of third party litigation funding. It is essentially an American concept that has advanced into this country. So far it has reached commercial litigation, with which I have no quarrel. It has also got into family law and I shall be extremely concerned if it were to get into personal injury cases. The fact that the Lord Chancellor now has it on his agenda and will monitor the way in which the voluntary code operates is of great comfort to me and it is on that basis that I beg leave to withdraw the amendment.
Lord Bach
The Minister would be well advised to give serious consideration to the amendment proposed by the noble Lord, Lord Thomas of Gresford. This is not one that he moved in Committee—he has moved it for the first time today. The House knows that he has become an expert in this field of litigation over the months that he has spoken to me about it. He may well be right that it is no good the Government taking a position that looks like it may take some time to develop. It is something that needs to be done and thought about pretty promptly. Therefore, as far as we can, we support the amendment.
Lord McNally
My Lords, I think it was the noble Lord, Lord Martin, who talked about the proper role of the House of Lords. Although the hour is late, my noble friend Lord Thomas has demonstrated one of the benefits of this House in bringing to the Government’s attention an area where there already is or could be a malpractice that will have to be dealt with. As he explained, this is a practice where an insurer approaches a claimant directly, usually immediately after a road traffic accident, with a view to settling the claim, where an insurer’s own policyholder is at fault in a car accident. As I understand it, claimant representatives refer to this practice as third party capture, whereas defendant representatives call it third party assistance. As I indicated in Committee, I shall continue to refer to this practice as third party contact.
Amendment 142D would make it an offence for an insurer to make such an unsolicited approach to a potential claimant in a personal injury case. The amendment also specifies those requirements which must be met before an insurer may make an offer to settle such a claim. This includes a requirement to obtain adequate medical evidence of injury and to advise the claimant of their right to obtain full legal advice before accepting the offer and making it clear to the claimant that the offer to settle is full and final.
It is unclear what my noble friend means when he says that this practice should be an offence. If he refers to this as being a criminal offence, I do not believe that a criminal sanction is appropriate or proportionate. You would have to prove beyond reasonable doubt that something amounted to an unsolicited approach. As I explained in Committee, the Financial Services Authority regulates the insurance industry and requires insurers to treat their customers fairly at all times and that this covers third party claimants.
Third-party contact does not in itself cause detriment to the consumer and may be to their advantage, as a claim can often be resolved quickly. In addition, this practice can allow insurers to reduce the legal costs associated with handling a claim and this in turn reduces costs for all policyholders. However, I am aware of the concerns around the potential risk of conflict of interest and the need for the claimant to have independent legal advice before any settlement is agreed. This matter was looked at by the FSA in its review of third-party contact during 2009-10 and it did not find conclusive evidence that unrepresented third parties could have achieved higher compensation had they obtained independent legal representation.
Following the FSA’s review, the Association of British Insurers published a code of practice in June 2010. The code contains specific guidance for insurers on contacting claimants. This limits unsolicited contact. For example, and I quote:
“Insurers will not make unsolicited visits to an unrepresented claimant at their current address, including hospitals”.
The code also requires that claimants are informed of their right to seek independent legal advice and other options available for them to resolve their claim.
Most of the issues which this amendment seeks to address in respect of the handling of third-party contact claims are already covered by existing regulation. The FSA rules require that insurers fully inform third party claimants of their legal rights, including to independent legal advice and alternatives to settling directly with the insurer. The Government do not believe it is right or appropriate to introduce further sanctions or regulation in this area, especially when a scheme already exists to monitor insurers’ activities. That said, I can reassure my noble friend that if a serious concern arises in the future in this area—and we will keep it under review—we will not hesitate to take this up with the Treasury and with the FSA.
I am therefore grateful to my noble friend for raising this issue with us, but for the reasons that I have mentioned I hope that he will agree to withdraw the amendment.
Lord Thomas of Gresford
My Lords, I am grateful to my noble friend. I am glad that some publicity has been give to this practice which I believe to be fairly widespread and causing a great deal of concern. As long as the Government keep their eye on this area, I shall be satisfied. I beg leave to withdraw the amendment.
Lord McNally
My Lords, I think that there is broad agreement across the House about the need to ban referral fees in personal injury cases, as we propose in Clauses 54 to 58. However, there is some disagreement about how it should be done, as this debate has shown.
It may be helpful if, in reply, I deal separately with those amendments with which we have some sympathy and those with which we do not. The Government agree with the intention behind Amendments 146A and 148A in the name of my noble friend Lord Hunt of Wirral. I give the House a commitment that we will bring back amendments at Third Reading to address the issues raised by those amendments. However, the Government cannot agree with Amendments 142E and 146. We believe that it is not in the public interest for payments in receipt of referral fees to be allowed in any personal injury cases, regardless of whether the recipient is a solicitor, a charity, a trade union or some other party. If the provision applies to solicitors who pay referral fees, it must also apply to the not-for-profit organisations which deal with them.
The Government intend to ban the payment and receipt of referral fees in all personal injury cases, and we are not persuaded that there should be special treatment for not-for-profit organisations, or for solicitors dealing with trade unions, to exempt them from the ban. However, trade unions will of course still be able to refer cases, without payment, to those best able to pursue them. Nothing in the clauses prevents lawyers providing services free of charge to registered charities.
A number of points were made in the debate. The noble Baroness, Lady Deech, made a powerful case in favour of what we are trying to do on referral fees. She referred to a case, which we all remember, which shows how the best of intentions can be misused when trying to deal with a problem. I say to the noble Lord, Lord Martin, that I certainly advocate the value of trade union membership, but that there is a danger of trade unions, charities and others having a sweetheart relationship with a firm of solicitors based on referral fees.
My noble friend Lord Hunt of Wirral asked me how much of the excess litigation costs can be taken out of the system. My right honourable friend the Prime Minister has announced that we will be extending the road traffic accident scheme to cover claims up to £25,000, and to cover employer and public liability cases. As part of that process, the Government intend to make an objective assessment of the existing costs involved in RTA schemes, and we expect fixed recoverable costs of £1,200 to be reduced significantly as a result. The new fees will come in when the Jackson reforms in Part 2 of the Bill and the ban on referral fees are implemented in April 2013. Although I cannot give a precise figure, the aim, as in other parts of the Bill, is to squeeze out of the system excessive costs, which are undoubtedly there.
I hope that, in the light of those responses, the noble Lord will withdraw the amendment.
Lord Beecham
My Lords, I will be withdrawing my amendment. I must disabuse the noble Baroness, Lady Deech, with whom I shared a law course at Oxford, on the question of the political aspect of union funding. Union funds for political purposes, of course, derive from their political funds and not from general income. The noble Lord, who has a long memory of these things, is acknowledging that, for which I am grateful. It is not just a question, however, of fees, as I have indicated. Other services offered to members, whether they be of trade unions or other organisations, would be caught, apparently, by the Bill as it currently stands. I cannot believe that that is really part of the Government’s intention. Not all unions have an arrangement of this kind, where a referral fee is paid, but unions do have extensive and expensive legal departments which have to be supported. It does not seem unreasonable that those organisations—and, indeed, other organisations; charitable organisations—should have a scheme. I agree that the noble Baroness has identified a particularly abusive situation which, of course, has been rightly dealt with, but that is very much the exception. Having said that, we will, up to a point, be returning to this matter on the next day of Report in a slightly different context. I beg leave, therefore, to withdraw the amendment.