Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Morris of Aberavon Excerpts

Monday 23rd April 2012 Lords Chamber

[Lord Carlile of Berriew]

I will give way in a moment; I shall just finish the sentence.

If the other place has got its reasons wrong then surely we are entitled to question those reasons in this House, and if the burden of the debate justifies it, to ask the other place to reconsider, on the basis that it has got its reasons wrong. I will give way to my noble friend now—but he does not want me to. I am glad that I have answered his question. I have nothing further to add.

[Lord Morris of Aberavon]

My Lords, I rise in support of the noble Lord, Lord Pannick. I am concerned about the reasons given in the Marshalled List, and perhaps the Minister can help the House. What are the financial implications if this amendment were accepted? The reason given is:

“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”.

If that is the sole basis for rejecting the amendment—or if there is any other reason, any other sinister matter, that the Minister is concerned about—perhaps he will tell us.

The noble Lord, Lord Pannick, has told the House that there are no financial implications to his amendment. The amendment states that the Lord Chancellor shall exercise his powers under this provision in order to ensure that individuals have access to legal services, and that it is entirely within his discretion,

“and subject to the provisions of this Part”.

This is a very carefully drafted amendment. It secures the Government’s financial position. The ultimate discretion is the Lord Chancellor’s, and I find it very difficult to foresee, in reality, any other financial implication.

[Lord Hart of Chilton]

My Lords, I have supported the noble Lord, Lord Pannick, throughout the process of this Bill. I do so again and I will not take up time to enlarge on anything that has been said thus far in support of the amendment. I simply risk causing the Minister convulsions by drawing his attention to the clock and indicating that we are well on our way to doubling the amount of time that the Commons took to dispatch four of your Lordships’ amendments. It also had the temerity to adopt a programme Motion that caused Sir Gerald Kaufman to stop in mid-track when he was saying:

“It is out of order in this House of Commons to accuse anyone of hypocrisy, so I—”.—[Official Report, Commons, 17/4/12; col. 208.]

We shall never know what he was about to say, but it shows how well we attend to amendments in this House and how poorly they do so in the Commons.

--- Later in debate ---

[Lord Avebury]

My Lords, I join my noble friend Lord McNally in paying tribute to the noble Lord, Lord Alton, who has fought so tenaciously for the rights of mesothelioma victims and their bereaved families over many months and previously, before we got to these debates. I know that he has always espoused their rights and tried to do the best that he could for them. I also thank my noble friend Lord McNally for what he said about the Government’s intentions, the programme for settling cases without the necessity to go to court and the development of a scheme analogous to that which operates in the case of motor accidents where it is impossible to find the insurer. I welcome those moves but they are not in any way in conflict with what the noble Lord, Lord Alton, proposes in his amendment.

The arguments in favour of the amendment have been covered exhaustively in both Houses and I do not propose to repeat any of them now. I will say only that it is incomprehensible that, in the face of near unanimity on all sides among those who have spoken in those debates, the Government are still unwilling to give way. The argument that the amendment undermines the principle that in CFA cases the success fee and the ATE are to be paid by the winning claimant is destroyed by the concession that has been made on clinical negligence cases.

In moving to reject the amendment in another place, Mr Djanogly said that it was unnecessary because there was nothing in the Government’s proposals to prevent cases being taken or those affected receiving appropriate damages. If he had read the evidence that was provided by the Asbestos Victims Support Groups Forum UK, he would know that that was not true because many victims have said that they would not have brought cases if they had known that the success fees and ATE insurance would be deducted from the damages awarded. The Minister did not reply when asked directly by Kate Green whether he accepted that some cases would go unrepresented and unpursued.

Secondly, he trotted out the argument of inconsistency. Throughout these debates we have been perfectly clear in saying that we wanted to make an exception for the victims of what is universally acknowledged to be a particularly horrible disease that is invariably fatal, and the majority who voted for it were fully aware they were making an exception to the general pattern of CFA cases. The Minister then insinuated that the claims dealt with in the amendment were part of the compensation culture—an infamous suggestion when we are talking about people who are terminally ill. He went on to say that the Government were not persuaded that these cases were substantially different from other personal injury cases. I question whether he bothered to read our debates or has any knowledge of the ordeal that is experienced by mesothelioma sufferers in the final months of their lives. This is graphically described in the evidence submitted by the victims and relatives’ organisations, and known about directly by many past and present honourable Members from testimony that they received at their advice bureaux.

Finally, the Minister said that the Government were determined to bring down the cost of litigation. Let us be clear that, as my noble friend Lord McNally acknowledged, in this amendment we are talking about whether the claimant or the defendant pays the success fee. No cost to the taxpayer arises.

In another place, five Conservative honourable Members defied the Whip by voting for the mesothelioma amendment and several others abstained. It can be assumed that if it had been a free vote, the other place would have upheld the amendment and we would not be debating it today. It is only right that we should give them another opportunity to set aside the callous treatment that the Government have insisted on all along, and to substitute what we all know is the fair and compassionate answer.

[Lord Morris of Aberavon]

My Lords, I add my support to the noble Lord, Lord Alton. As constituency MPs, many of us saw cases to do with this very issue and the difficulties that some of our constituents had in establishing liability after years of contact. I added my name to the noble Lord’s original amendment and heard his speech then, which set out the case admirably. I congratulate him on continuing to expose such an injustice. At this late hour, all I wish to say is that my support continues and I hope that the noble Lord will succeed.

[Lord Thomas of Gresford]

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

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

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