Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Newton of Braintree Excerpts

Monday 16th January 2012 Lords Chamber

[Baroness Mallalieu]

My Lords, a number of noble Lords have spoken who have experience both of the legal and the medical sides of such cases. I am not one of them—it is outside the scope of my field of practice—but I am conscious that this debate on clinical negligence has produced some very powerful arguments, and more very powerful arguments are likely to be produced in the debates on Schedule 1 which are to follow it.

Noble Lords clearly will be arguing what I imagine will be described as special pleading for a number of deserving areas. After clinical negligence I know we are moving on, among other arguments, to those in relation to children, the disabled, disabled children, victims of domestic violence, victims of human trafficking, those who are in need of a guiding hand through the labyrinth of our welfare system, and those whose cases involve complex issues of law which often—indeed almost always—require expertise to present them fairly. Those are just some of the areas to follow. So my sympathy for the Minister, in listening to this particular debate, is great. However, it seems that the amendment in the name of the noble and learned Lord, Lord Lloyd of Berwick, is the very least that could be conceded. I am not by any means sure that it goes far enough, for the reasons which I will come to in a moment, and which the noble Lord, Lord Faulks, set out very clearly.

The Minister will have a difficult time at the end of the debates on these particular additions—as parts of the House will seek to make them—to Schedule 1. He could just stop his ears and refuse to concede on anything, and if he does I suspect that he will leave civil legal aid in tatters, and leave the civil justice system almost wholly to the well-off—to those who can afford to pay. He could pick one or two of the special cases—perhaps clinical negligence, which is very strong, or some of the others, about which we are about to hear. He could pick cases to concede on the basis of who shouts the loudest. He could pick cases that have the strongest or most numerous advocates in debate, those that are likely to attract a bad press for the Government, those that are likely to command public sympathy or—perhaps even more likely—those whose advocates manage to twist his arm most severely between Committee and Report stages in this House.

I respectfully suggest that the Minister should look first at just how much will in reality—particularly in the light of the King’s College research—be saved by each one of these proposals. As the noble Baroness, Lady Eaton, said, in some cases it seems that the gain simply is not worth the candle and that legal aid is ultimately the cheapest option and should remain, albeit with the careful scrutiny suggested by the noble Lord, Lord Phillips of Sudbury, for areas where money could clearly be saved.

Once the Minister has done that and has looked at each of the special areas to see whether the financial argument stands up, surely he must look at those remaining areas to see whether alternative access to justice could be maintained by other means—by mediation; by some form of alternative dispute resolution; or, in clinical negligence cases, by CFAs. We have heard from people closely involved in that area who say that those means will not be available in relation to clinical negligence.

Having done that examination, I am sure that the Minister will find areas where, in his own mind, he has a very real doubt about whether a satisfactory alternative exists and whether he is, by persevering with the Bill in its present form, going to leave people to make their own arrangements without financial help, expert guidance or advocacy and where the result is that the consequences of no legal aid will leave citizens who need the help of our civil justice system with no realistic means of access to law.

I am quite sure that neither he nor the Lord Chancellor would wish to do any of that. When he comes to examine fairly each of the arguments on this aspect and the ones to follow, I hope that he will be open minded in his approach to what is to be done. As I understand it, fairness is the principle that our Prime Minister has said all the cuts which the Government propose are to accord. I cannot believe that that means that civil justice should henceforth be the prerogative of those with means. Unless the Minister, whose judgment I respect and admire, is personally satisfied in each case that an adequate alternative provision is available to such people, I hope that he will take the matter back to his department, take out a red pen where necessary and put his foot down.

[Lord Newton of Braintree]

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

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

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

[Lord Howarth of Newport]

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

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

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

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

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

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

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

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[Lord Newton of Braintree]

My Lords, I intervene briefly not to support every last dot and comma of the amendment—not least because I have not heard what the Minister has to say about cost, which we cannot completely ignore—but to indicate my general sympathy with the concerns that have been expressed by the noble Baroness and echoed by the noble Lord, Lord Wigley. I indicated earlier my concern about the Bill extending to the social security area for a number of reasons. First, the Welfare Reform Bill, whatever its merits—I am a strong supporter of it as a whole—creates a certain amount of turbulence, to put it mildly, for a lot of people, including many disabled people and carers. They have great concerns, which may well lead them to want to challenge some decisions. They ought to be able to do so.

Secondly, there is an interrelation here with the concerns expressed about the absence of sufficiently effective proposals to come anywhere near replacing the availability of legal aid, or at least legal advice, in such cases. We know from a debate in the House only shortly before Christmas that citizens advice bureaux are feeling acute pressure in their ability to maintain, let alone enhance, their level of service. This may have come up earlier, before I was able to be present, but we know that law centres are also feeling acute pressure from expected losses of money from the legal aid changes. From the point of view of claimants in the social security field, as one or two people have said—including me on previous occasions—there is a double or triple whammy here: you do not get help from one quarter; you are steered to another quarter; but that quarter itself is being starved of resources and unlikely to be able to help you.

I make no apology for repeating things I have said on previous occasions: there is an absence of apparent—I choose my words reasonably carefully—joined-up government. Ministers have effectively said that they do not know what is the overall financial effect of this, because they know what is saved to the Ministry of Justice, but they do not really know what are the costs elsewhere.

I doubt whether they even know what will be the net effect on the Ministry of Justice. It is well known to anyone who knows anything about tribunals that the less help and advice that people have in social security tribunals and related matters, leading them to represent themselves, the more time will be taken at the tribunal trying to sort out what are the issues. Cases will get taken to tribunals which would not have been had people been well advised beforehand. There will be costs to the Tribunals Service in the Ministry of Justice that I am not sure are allowed for in the costing that the Ministry of Justice has ascribed to the savings on legal aid. We need more convincing answers on this than we have so far had. I do not want to see the amendment pressed to a vote tonight, but I hope that Ministers have their ears open on this one and will look carefully at the reality, as opposed to the optimistic forecasts of the original estimates of savings in this field.

[Baroness Lister of Burtersett]

My Lords, it is always a pleasure to follow the noble Lord, Lord Newton, so I am keen to come in at this point.

I support the amendments proposed powerfully by the noble Baroness, Lady Doocey. I shall focus on Amendment 32 but say just a few words on Amendment 35. Although I would not want to confine advice and assistance for social security claims before tribunals to disabled people, if it was to be confined to a single group, there is a strong case for that being the group, because of the high proportion of those who are affected who have additional needs over and above legal needs which affect their ability to exercise their legal rights.

That is brought out very well in the briefings we have received from Citizens Advice and Scope’s report, Legal Aid in Welfare: the Tool We Can't Afford to Lose. I also received a case study from Charnwood CAB, which is local to my university. I will not read it out because it is rather long and complex, but someone came for help because of the interaction between decisions on disability living allowance and income support. Then they ran out of time in appealing and were going to get in a real mess. It was only with the help of the citizens advice bureau that they were able to lodge an appeal. The CAB pointed out that that cost the taxpayer no more than £167 excluding VAT—since October, it would have cost £150.

That exemplifies the more general point of Amendment 32, which would put social security law back into scope. As the noble Baroness said, like it or not, social security law is complex and will remain so however successful universal credit is.

The Government's suggestion that people can turn to Jobcentre Plus or the benefits advice line for help with such cases has been described as incongruous by the president of the First-tier Tribunal, his honour Judge Martin. It is utterly incongruous when one considers that it is their mistakes that have so often given rise to the need for legal advice in the first place. According to Liberty, Community Links advice service recorded that in 2010, 73 per cent of benefit-related cases handled by its staff arose from errors made by the Department for Work and Pensions.

The president of the First-tier Tribunal also pointed out that the emphasis on the user-friendliness of the tribunal system misses the point, because the tribunal has no role to play in assisting claimants to decide whether to bring their appeal or to help them prepare their case. The experience of CABs and other agencies and research by the LSE shows that often the role played is to stop cases getting to the appeal tribunal, so, in a sense, saving the Government money, because the advisers know whether there is a case worth pursuing or not.

As the noble Lord, Lord Newton, said, the other suggestion is that people can turn to CABs, law centres and so forth. However, as the noble Lord said, these are under immense pressure. Not only that but sometimes people ask how what is happening now compares with what was happening in the 1980s, when we had social security reform and cuts. At the time, I was working at the Child Poverty Action Group. One thing that is making things much harder now is that in the 1980s local authorities were expanding welfare rights advice services, and they were able to help people to deal with the turbulence of social security reform and the changes being made. Now, local authorities throughout the country are cutting back on welfare rights advice services, and this is happening when law centres, like CABs, are under pressure. Therefore, that is not the answer either.

As has already been said, removing legal aid for help with social security law would be damaging to some of the most vulnerable people in society at the best of times, but doing so when we are facing the most radical change in social security law in 60 years, as the Government themselves bill it, could be seen as bordering on the vindictive.

I want to turn to a rather limited but important aspect of this issue. On our first day in Committee, the Minister and I had an exchange about whether legal aid was available for cases coming before the Upper Tribunal and the higher courts. I am sure that, like me, the Minister went away and did his homework. My homework confirmed that I was right: legal aid is available for advice before one gets to the Upper Tribunal. However, I was only partially right because in some cases it can also be available for representation. I sought advice from Roger Smith of Justice, who is a former colleague of mine, and this is what he said:

“Legal help is, of course, currently available for advice. The position on representation is a bit more complicated. Legal aid for representation is not available as routine for social security cases in the Upper Tribunal but has been available for further appeals to the courts. Legal aid for court representation will be withdrawn under the Bill.

Legal aid is available for certain specified appeals to the Upper Tribunal, basically where legal aid was available prior to the establishment of the Upper Tribunal but this does not include social security”.

Nevertheless, he continues:

“The Access to Justice Act allows funding in exceptional circumstances where proceedings are otherwise out of scope … and, therefore, can cover representation at Upper Tribunal cases. This is the provision that is used to provide representation in inquests but it covers all proceedings”.

The Child Poverty Action Group confirmed that it had legal aid for a social security case in the Upper Tribunal, even though, admittedly, it was hard to get.

Roger Smith also drew my attention to a very useful article in the CPAG’s Welfare Rights Bulletin by the group’s solicitor, Sarah Clarke. She points out that legal aid for social security matters at higher courts is being withdrawn despite the fact that the Ministry of Justice puts no savings on this at all. In fact, at our first sitting, the Minister said that this would save £1 million. In public expenditure terms, £1 million is so well within the margin of error that it hardly counts as public spending; it can simply be written off. The article is helpful. It says:

“In the future, social security claimants who find themselves faced with an incorrect Upper Tribunal decision, or who win their case at the Upper Tribunal but find themselves on the receiving end of an appeal by the DWP, HMRC or a local authority, could be facing the courts and the costs risks attached on their own or not at all. It also means that the big social security test cases which reached the higher courts by way of the appeals process, such as Zalewska on the lawfulness of the Workers’ Registration Scheme, Hinchy on the interpretation of the overpayment recovery test, Pedro, on the meaning of ‘family member in EU law’, and Mallinson, the seminal case on the interpretation of the law on disability living allowance, will not be funded in future.

In view of the complexity of the relevant law and procedure, the importance of what is at stake for the applicant and others, and the fact that many social security claimants are vulnerable and may be disabled or may not have English as a first language, and therefore are particularly disadvantaged in presenting their cases, it seems possible that, particularly in cases before the higher courts, a lack of legal aid could breach the rights of claimants under Article 6 of the European Convention on Human Rights”.

Given that an appeal to the Upper Tribunal has to be on a point of law; given the complexities of that law and how much is at stake in terms of the livelihoods of some of the most disadvantaged members of our society; given that, as Justice points out, even if the Supreme Court had agreed to a case because of its complexity and its importance, legal aid would not be available because the Government say that it is not complex or important enough; and given that the savings are so minuscule that the Ministry of Justice does not even normally record them, can the Minister explain to the Committee why the Government are withdrawing legal aid from this small yet important category of cases, and can he please justify this to the Committee?

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[Lord Newton of Braintree]

There is something that the noble Lord has not mentioned, which could be an important factor, bearing in mind his reference just now to children left helpless and some of his earlier case studies relating to single-parent families. I cannot remember the figure but there is a huge cost for every child taken into care. I would like the Minister to tell us the cost of each child taken into care as a result of the knock-on effects that could arise from these proposals. It costs tens of thousands of pounds every time, and I do not believe that all that has been taken into account.

[Lord Bach]

I am grateful to the noble Lord as he is absolutely right about the social and financial costs of abolishing this sort of legal aid. It is impossible to say what they will be, but they will be huge, which I should have thought was fairly obvious.

The outcomes that we have talked about in this debate are not beyond the realms of probability, nor can anyone say that they would be unexpected. It is up to us in this Committee, and in the House perhaps on a future date, to decide whether the outcomes that have been described would cross the basic line of British decency that it is our obligation to defend. As part of that decision-making, we must look at whether these particular cuts are economic in the first place. Would they achieve even the Executive’s highly limited narrow goals of saving money?

The ministry plans to remove entirely funding for welfare benefits from scope. It claims that that will save £25 million a year. That sum normally goes to dealing with 135,000 cases per year. The advice is delivered, not altogether but pretty much through third-sector not-for-profit agencies such as Citizens Advice, law centres and many other advice centres. Advice goes to those seeking reconsiderations of decisions by the DWP and related agencies and to those appealing decisions before the First-tier Tribunals and then the Upper Tribunals. We have heard who receives the advice. Women are disproportionately users of this advice, as are ethnic minorities. As the noble Baroness indicated, 69 per cent—a very high percentage indeed—of those receiving advice are ill or disabled in some way.

As for who gets more complex advice—that relating to grounds for appeal—the published data for First-tier Tribunals show that of the 50,000 or so benefits-related cases heard a year, 90 per cent relate to disability-related benefits. That is hardly a surprise. For all its sins, jobseeker’s allowance is a simple entitlement for which to calculate eligibility. When there is a degree of subjectivity in deciding on the impairment caused by disability, agencies are more likely to make mistakes and thus require decisions to be appealed.

What does the advice funded by legal aid deliver? Colleagues in another place tabled a series of Parliamentary Questions to establish the percentage of people who win their appeals before tribunal with and without advice. The figures provided by the ministry show that in 2009-10 in welfare benefits-related cases, people were 78 per cent more likely to win if they had advice than if they did not have advice. For ESA the figure was even higher. People appealing employment support allowance decisions were more than twice as likely to win with advice than if they did not have advice. I point out what is obvious: those winning appellants are all legitimate claimants. They are not scroungers; they are not feckless—for the main part they have probably suffered some form of disability. They have been denied their rights by an emanation of the state, by the Executive, and they are legitimately challenging that decision.