Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Newton of Braintree Excerpts(12 years, 2 months ago)
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Lord Roberts of Llandudno
My Lords, I join in supporting the amendment. In recent debates we have spoken about Jobcentre Plus and how, when young people are looking for work, face-to-face interviews are far more effective than sitting before a computer or dealing over the telephone. This also holds true for those who need advice. I understand that all those under the age of 18 will be able to have face-to-face interviews. This should be extended because people are asking for advice at the most vulnerable time in their lives, with turbulent economic situations, job losses and so on. They need advice, and as the right reverend Prelate stated, and as I know as a minister of the Methodist church, the telephone has its uses, a helpline has its uses, but you sometimes need to sit face to face with a person—to have a personal relationship within which they find far greater comfort and guidance than they would otherwise. I am happy to give my support to the amendment.
Lord Newton of Braintree
My Lords, perhaps I may intervene briefly once again in these debates, in complete support of the points that have been made, not least by the noble Baroness, Lady Grey-Thompson and my noble friend Lord Phillips of Sudbury but to a degree by everyone who has spoken.
As it happens, I have other recent brief experience of this in my capacity as a trustee, along with the noble Lord, Lord Rooker, of the National Benevolent Fund for the Aged, which is concerned with isolated elderly people. We have recently been lobbying Ministers about the apparent assumption that everyone can deal with things on the telephone or through the internet. That is essentially—dare I say it?—a middle-class presumption that does not necessarily apply to the areas that we are talking about now. To their credit, the Ministers whom we have lobbied are, I think I am right in saying, having a round-table discussion tomorrow on how the problem might be dealt with, and I recommend that the Ministry of Justice joins in.
Anyone who has been an MP will have been confronted in their surgery by people who just need to talk to someone, with a sense of the body language, to sort out one to one what may be important in their case, what is not relevant to an appeal and so on. I notice the noble Lord nodding. You can spend an hour listening to people who want to tell you their life story and it is only face to face that you can disentangle the points on which they might have a case. This is important to a lot of people who cannot really fend for themselves. I confess that even I, with a pretty high-quality, advanced education, still prefer, if possible, to go and see someone rather than talk to them on the phone because the body language and the feel of the conversation are important. Therefore, I do not think that we should underestimate these things.
In a curious way, the Government have acknowledged that in the briefing that I have here. It says that, although it is a telephone gateway, there has to be a careful assessment of whether the advice can be provided face to face or over the telephone. Indeed, they have already decided not to include in the single telephone gateway debt, in so far as it remains in scope, discrimination and special educational needs, as well as, I think, community care. What is it that makes these things so different from other forms of advice? There will be many community care cases, and there are also welfare benefit needs, as well as a need for advice on a lot of other aspects of people’s lives. Why is this to be exempted but not the other things? In a way, therefore, I think that the case has been conceded. The costs cannot be large and the need is great, and I think that we are entitled to ask the Government to reconsider this proposal.
Lord Pannick
My Lords, I added my name to the amendment and I did so for a very simple reason: this amendment is truly about access to justice. The concern surrounding the Bill is that legal aid should not be provided only by means that are simply inaccessible to a number of people, as explained comprehensively and persuasively by the noble Baroness, Lady Grey-Thompson.
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 Wigley
My Lords, I support Amendment 132AA and wish to speak to the group which is associated with it, standing in the names of the noble Lords, Lord Alton and Lord Bach. I do so enthusiastically as I indicated in Committee. Whereas the noble Lord, Lord Thomas, may well have arguments in certain cases in relation to the legal processes that he outlined, I come to this from the point of view that compensation should be available in full to people, reflecting their suffering and the condition they have had, and that any legal fees should be other than the sum allocated as a response to that suffering. If this group of amendments is not accepted, the House will no doubt hear the noble Lord’s proposals in a later group of amendments. The scope not only of Amendment 132AA but also Amendment 132AB, which goes wider and covers a number of other equally distressing and deserving conditions, means that they can be supported when it comes to a vote if it does indeed come to a vote.
These amendments would have the effect of exempting cases involving claims for damages for respiratory illnesses following exposure to harmful substances from the range of changes proposed in Clauses 43, 45 and 46 of the Bill. The case for doing so was covered extensively in Committee but, unfortunately, the Minister has not so far moved towards accepting the changes that we hoped he might accept at that stage. A couple of weeks ago, at a St David’s Day dinner, I found myself sitting opposite a widow from my home area of Caernarfon. She had lost her husband to asbestosis six years ago. She described what he and they, as a family, had suffered. She received a modest sum of compensation. However, she told me that she had been following our debates in Committee and doubted that she would have got that compensation under the changes that are coming through. My goodness, if that is the effect that they will have on people who have suffered in that way, we have to make sure that the Bill is watertight and looks after people who have suffered as a result of the work that they have undertaken.
If Clause 43 is agreed unchecked, success fees under a conditional fee arrangement will no longer be recoverable from the losing party in all proceedings. Instead, in cases where claims are made against an organisation as a result of illness due to negligence, the fee will be recovered from damages awarded to the injured person, sometimes substantially eroding those damages. Likewise, if Clause 45 is agreed as it now stands, “after the event” insurance premiums will no longer be recoverable from the losing defendant and will also be taken out of the damages awarded to the injured party. Similar changes are proposed in Clause 46, which prevents organisations recovering their insurance premiums from a losing party. Unsuccessful cases involving more than one claimant can be highly expensive if there are multiple defendants whose costs need to be covered in the event of the case being lost. Without recoverable insurance premiums, these cases simply will not, in practice, be able to proceed.
Many organisations, including the Association of Personal Injury Lawyers, have been at pains to make it clear that damages are awarded for the pain and suffering caused by prolonged and debilitating illnesses. As I said earlier, damages were never intended to pay towards legal costs. Making an insured person or their family suffer an erosion of the financial compensation to which they are entitled on top of the physical distress they have endured is neither just nor dignified. It is wrong that the Government are intent on ploughing ahead with these changes without making exceptions where they are due.
In Committee, the Minister spoke of the Government’s overarching aim as being,
“to create an architecture which squeezes inflationary costs out of the civil justice system”.—[Official Report, 30/1/12; col. 1433.]
Those are grand words indeed but they cover a multitude of sins. As the noble Lord, Lord Alton, remarked, the only people who will be squeezed as a result of these changes are those who are already suffering from fatal diseases and their families. That does not sound like justice to me.
In Committee, the Minister also assured me that a number of possible routes of redress would be made available for individuals who had contracted diseases such as mesothelioma and asbestosis through schemes operated by the Department for Work and Pensions. We have heard reference to this but, as yet, I have seen no further detail on how these schemes may work. In the mean time, we should proceed on the basis that they are not there yet. However, I would welcome any clarification that the Minister might give and will listen carefully to what he has to say.
I support not only the group of amendments spoken to by the noble Lord, Lord Alton, but support very strongly Amendment 132AB in the name of the noble Lord, Lord Bach. It is relevant to a group of industrial diseases such as pneumoconiosis, silicosis and associated lung diseases, which are certainly of considerable importance to me and the community from which I come.
If these clauses are agreed unchecked, individuals who have suffered harm and distress will be dealt a further blow and access to justice will be severely undermined. It is perhaps futile to press the Government to agree to changes that they have already so utterly dismissed out of hand. However, I urge noble colleagues to support these amendments and to argue the case that individuals already suffering due to negligence should not face further hardship.
Lord Newton of Braintree
My Lords, may I briefly split up the Cross-Benchers, albeit in support of everything that they and most others have said? I have a couple of prefatory remarks. I cannot quite share the enthusiasm of the Liberal Democrat and former Liberal Democrat Benches for the anniversary of my noble friend Lord Avebury, although not because I do not have the highest regard for him. However, I was in the Conservative research department at the time and it was a major culture shock, which did not tempt me to join the Liberal Party. It could yet happen of course, but not today.
The Minister may be glad to hear my other prefatory remark. This will probably be my last foray on the Bill because, in general, I regard Part 2 as being above my pay grade. I have been reinforced in that view by the speech of the noble Lord, Lord Thomas of Gresford, which left me feeling—I hope he will not find this too rude—as though I had been enveloped in fog.
I spoke on this matter at an earlier stage and I do not intend to repeat myself. I simply endorse some points that have been made. In an earlier incarnation, when I was Minister for Disabled People, I was also the Minister for the Industrial Injuries Advisory Committee, so I know a bit about industrial diseases, including respiratory diseases such as this one. While they all have their problems and the scheme has its offerings, this disease is pretty unique for reasons that the noble Lord, Lord Alton, has outlined so clearly with his medical knowledge. This was reinforced by what the noble and learned Baroness, Lady Butler-Sloss, said about her experience of seeing and being involved in such cases. We cannot dismiss that.
I said earlier that we need to recognise that this disease is not only terrible but moves very fast. Someone gave the figure of nine months. To repeat something that I said earlier, we also need to acknowledge that this is one of those cancers—it is effectively a cancer—that is still growing. It is not diminishing. There is a long time fuse on exposure to asbestos. We have known about it for a long time and action has been taken; when asbestos is found, there is great expenditure on getting rid of it. However, there are still more cases to come than there have been because of that long fuse. One way or another, it is a pretty special case. I just do not like the idea that it can be dealt with only under CFAs, with the consequences that were so eloquently outlined by the noble Lord, Lord Alton.
This is not part of the mischief of exploiting whiplash injuries. It is very much sui generis and needs to be treated as such. The notion that someone who has just been told that they have nine months or less to live will engage in a lot of frivolous legal activity is far fetched in the extreme.
The noble Lord, Lord Thomas of Gresford, referred to all sorts of other ways of getting compensation, including schemes that the Government have and the possibility of a rival to the Motor Insurers’ Bureau. We are talking about people with nine months to live. It will probably take nine months for them to find out where to start under some of those arrangements, let alone to get some compensation. In any event, what we are offered here are not the alternatives that the noble Lord, Lord Thomas, outlined. They are not here and would have to be worked up. What we have is what is in the Bill. We need to look at that with care and, once more, we need to ask the House of Commons to think again.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Newton of Braintree Excerpts(12 years, 2 months ago)
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Lord Newton of Braintree
My Lords, perhaps I may intervene briefly and almost reluctantly, because, having been rather rebellious last week on the Bill, I have been struggling to find good reasons for not being rebellious this week. I have to say that it is very uphill work. Certainly, when I read all the briefing on this debate from various quarters—the Immigration Law Practitioners’ Association, which in turn quoted the Administrative Justice and Tribunals Council, to which I shall return in a moment, and a variety of other bodies—the Government’s case got thinner and thinner with every word I read. My view has been reinforced by the points made this afternoon.
The mantra is that all this is necessary because we have such a big debt. I have said several times, as the noble Lord, Lord Pannick, said, that I entirely understand the need to tackle the country’s financial problems. It does not necessarily follow that this of area of legal aid has to bear an equal share. Certainly, my recollection of the rhetoric of the coalition agreement was that we would tackle the debt problem while seeking to protect the poor, the weak and the vulnerable from the worst effects of the country’s difficulties. I am bound to say that I found it very difficult to square that rhetoric with some of the stuff in the Bill.
I shall say something even more uncomfortable to my noble friends on the Front Bench. The conclusion to which I am being forced, given some amendments, particularly those on welfare benefits and on this matter, is that—and this is not the first time in history—a department, in this case the Ministry of Justice, has either acquiesced in or been coerced into a settlement that is bordering on inconsistency with the fulfilment of its objectives in terms of the promotion of justice in this country. I find that very sad, particularly when I look at some of the things for which the Government have managed to find money like a rabbit out of a hat on one or two occasions that it might be tendentious for me to quote. There is therefore a tension with the overall position of the coalition on what we are doing here.
I shall refer only briefly to some other matters, because they have all been touched on. I think that the House is well aware from earlier discussions that for a decade I was chair of the Administrative Justice and Tribunals Council and its predecessor, the Council on Tribunals, until I became time-expired. I had nothing to do with the council’s comments on this proposal, but it would not surprise anyone to know that I agree with it. Perhaps it is therefore even less surprising that the Government appear to be hell-bent on abolishing that council, because they do not really like anybody who—I am sorry, I should not say that. They are not very happy with people who make comments that they do not welcome. As the AJTC and the judges quoted by the noble Lord, Lord Bach, have said—two or three of whom are senior judges—the whole thing is so impenetrable that they cannot, in effect, understand it and could reach different conclusions on any given case, and that the whole thing needs to be clarified and sorted out. What is the answer to that?
We have heard references to how advice workers can help, but we have also heard—and it is the situation—that under the regime of the Office of the Immigration Services Commissioner, CAB people, for example, are largely prohibited from offering a good range of advice in this field. I think that I have got that right, and it is certainly what the briefing appears to say. Where do we stand on that? Again, if I have correctly read what I have been sent, there is a suggestion that social workers might advise people in certain circumstances. I doubt that they are qualified at the moment. I doubt that they feel qualified. Are they going to be trained as legal advisers in place of lawyers? A lot of further thought is needed before we go down this path. I will listen with interest to the Minister, but at the moment the case has not been made for the proposition that is opposed by the amendment.
Baroness Butler-Sloss
My Lords, I shall concentrate on the issue of trafficking, which noble Lords will have heard me mentioning from time to time. First, I congratulate the Government, as I have done on several occasions, on their strategy on human trafficking, but I remind the Minister that Article 12.1 of the Council of Europe trafficking convention, which I am delighted that the Government have signed, states that each party should provide assistance to trafficked persons that should include at least,
“counselling and information, in particular as regards their legal rights and the services available to them, in a language that they can understand”.
That is four square within what the noble Lord, Lord Bach, proposes. The Government will be allowing a dramatic gap in their strategy if they do not allow legal advice to trafficked victims.
I am extremely grateful to the noble and learned Lord, Lord Wallace, for supporting, at least in principle, an amendment which I tabled on domestic servitude and women claiming in the employment tribunal legal advice until the door of the court. Of course, to know that they have a claim, they need to be able to stay in this country to make it, so they will need a residence permit. Unless they are seeking asylum—and a large number of domestic workers will not—they will not be able to claim a residence permit. They may or may not go through the national referral mechanism; but they will be deported and they will lose their legal rights and claims.
What I have had from the Government is only the second part. What is needed is the first part, to enable those people who are victims of trafficking, the most vulnerable, deprived and traumatised of all people, who have the misfortune to be brought to this country for reasons over which they have no control. They will need help. The only way that they can get that help is to seek help from NGOs or whoever. As the noble Lord, Lord Newton of Braintree, said, and as I am informed, immigration advice is regulated. Consequently, NGOs and other organisations will not be able to give immigration advice to trafficked people, so they will be completely stuck. They will not be allowed to get legal aid and they will not be allowed to have immigration advice, which would lead to being able to deal with their immigration problems. That means either that NGOs will break the law or that those vulnerable people will be stranded without any ability to cope and, almost certainly, not having much grasp of the English language.
Many domestic workers, in particular, but also other workers, have legitimate claims, such as an application to the employment tribunal, for which they require a residence permit at least for a certain period. I believe that residence permits last for up to about one year. I understand that the police are prepared to seek residence permits, but only if the trafficked victims are prepared to give evidence in the criminal court. There is a gap here which the Government must fill, or they will be in breach of the convention obligations which they have signed.
Lord Newton of Braintree
My Lords, will the Minister acknowledge that part of the reason for introducing the Office of the Immigration Services Commissioner was the poor quality of the advice that people were getting at these tribunals from people who simply did not know what they were doing? The new service was designed to ensure that they would get proper advice, and we should think very carefully before going back to the preceding regime.
Lord Wallace of Tankerness
My Lords, we are not proposing to abandon the regime. As the noble Lord, Lord Bach, pointed out, immigration advice is tightly regulated by the OISC, to which complaints can be made.
Substantial savings are required. The change that we propose will save an estimated £20 million a year out of a total of £90 million spent in this sphere of law. It is important to show a balance; it is not just a case of taking immigration cases out of scope. Cases affecting some of the most vulnerable people will remain in scope. I do not for a moment doubt the motivations behind the amendment. However, I assure noble Lords that the matter has been given careful consideration. My noble friend Lord Boswell asked about complex law being kept under review. He will be aware that the power to add, within scope, that has been proposed for Clause 8 is a safety net that could be used if, in the light of experience, the somewhat apocalyptic scenario described by the noble Lord, Lord Bach, came to pass. Of course, there will be a post-implementation review after five years.
I hope that noble Lords will recognise that in a very difficult area we have sought to strike the right balance in cases that are particularly demanding and that particularly affect asylum seekers, such as cases of domestic violence and where people are being held in detention, and that we are addressing some of the most difficult cases in the immigration field. However, we had to draw the line somewhere. It could never be in the right place for all noble Lords. I can only assure them that it was done with some care and thought, and ask the noble Lord to withdraw his amendment.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Newton of Braintree Excerpts(12 years, 2 months ago)
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Lord Newton of Braintree
My Lords, my name is to the amendment, along with those of the noble Lords, Lord Pannick and Lord Bach. I intervene at this early stage partly for that reason and partly to support many of the points that my noble friend made without reiterating them.
We need to bear in mind that this proposed change to legal aid does not take place in a vacuum. It takes place at a time of great actual or potential turbulence—or at least change—in the benefits system, arising to some small extent in respect of housing from the Localism Act, and to a much greater extent from the Welfare Reform Bill. I do not want anyone to think that I am opposed to the Welfare Reform Bill. I had some reservations about parts of it but, like every other group in the House, I support its basic thrust. However, we ought to be absolutely clear that you cannot have change on that scale in the social security system without a lot of gainers, a lot of losers and a lot of people who will want to test, question and seek advice on the changes that affect them if they feel aggrieved.
There are many such changes. There is the housing benefit cap. There is the benefit cap, which is probably less serious in this context because fewer people are supposed to be affected. A huge number of disabled people and carers will be affected. In the area of housing benefit, many tenants will be affected by what is known as the spare-bedroom tax. These are not trivial numbers. The DWP’s estimate, given to me by the Minister, of the number of people affected by the housing benefit cap—the bedroom tax, if I may use a tendentious phrase—is 670,000. The number of people potentially affected by changes to the disability and carer allowances in the Welfare Reform Bill is of the same order if the figures I remember being given in Committee are right. Therefore, we are talking about potentially well over a million people.
If I was still an MP, I would be a bit worried. That is an average of around 2,000 people per constituency. They will all have relatives, some of whom will be affected and many others of whom will be upset by what is happening or could happen to their relatives. They will not all have a great grievance but there will enough of them who do. They will be bewildered and in some cases frightened, as we know from the e-mails we all received over the Welfare Reform Bill. They will not know where to turn but they will know that they need advice and help from somewhere. Let us not underestimate the scale of the impact of this change.
My second point, in what I hope will not be too long a speech, is: does it matter? There has been something of a flavour to Ministers’ comments that the only things that matter enough in this area to warrant a continuation of legal aid are those that threaten life or liberty—for example, orders under the Mental Health Act—or highly specialised areas such as children’s special educational needs and several other children’s issues. I pay tribute to the Government for the fact that they have recognised some of those points. However, there has been a slight flavour that welfare rights and welfare benefits generally did not quite rank in this league. There has been a sort of flavour that it is only a bit of money after all, although I do not think that anybody has actually said it. However, no one who has been Secretary of State for Social Security would harbour the illusion that the £10 or £20 a week that people could lose—for example, under the housing benefit cap if they have a spare room and do not move—is a trivial sum. It may not be a great amount to all of us in this House, but there are a lot of people in this country to whom £10 or £20 a week makes a great difference to whether they can heat or whether they can eat. I do not want to exaggerate this matter or get emotional about it, but some people will be frightened at being hit by some aspects of these changes and they will need somewhere to turn to.
I wish to quote a couple of points from the letter that the noble Lord, Lord Pannick, wrote on behalf of all four of us. I stress that the letter was written on behalf of all four of us. I had agreed it; I just was not present to sign it. It states:
“81% of all cases heard in the First Tier Tribunals relating to benefits are for benefits relating to disability … in 2009/10 an appellant at the First Tier Tribunal that received advice before going to the Tribunal was 78% more likely to win their appeal than an unadvised appellant”.
Then there is another point to which I may come back in a moment: namely, that nobody believes that the savings the Government have claimed for these proposals will actually be realised. The CABs, the Law Society and the report produced by King’s College all reckon that a lot of theses savings are illusory and that the knock-on effects on other government departments will be substantial but have so far been completely unquantified.
My third main point is about the effect of all this on the places where people can and do turn for both direct and indirect help: namely, the citizens advice bureaux, which are universally admired and supported, and are valued in this House and the other place, and a whole variety of law centres and other big society advisory services throughout the country. The CABs have just published a report which I hope everyone will read. I do not wish to quote the whole of it, just a bit from the introduction and the conclusion. In between there are a lot of case studies. The introduction states:
“Specialist advice has become a core part of the CAB service. Our frontline caseworkers and managers have told us that the impact of the proposed changes to legal aid on specialist services will be devastating. The overwhelming majority say that it will be impossible to provide a specialist service, whilst over half say that it may be impossible to continue providing any advice service at all … And it's not just the Citizens Advice service that will be affected - law centres, independent advice agencies and some solicitors' firms will find it difficult to continue to operate”.
After mentioning various cases, the conclusion states that if these cases,
“could be empowered to help themselves without specialist advice, casework and support from legal aid, then every CAB would rejoice, but that is not the reality. It will be a massive failure in the justice system if they are abandoned”.
I shall conclude quickly, but I should like to make just one other point. The Government have, in a way, acknowledged that there may be a need to support other advice services, but we still have no real idea how that is to be done. We have had a promise of a one-off £20 million, which is not a lot in this context. A review is going on which has not yet been completed and whose results we do not know. We have no serious commitment from the Government as to what they will do when they have the results. The nearest we have to that is a comment on the King’s College study to which I referred, which states:
“We are committed to the not for profit sector and have committed £20m this year to improve the efficiency and effectiveness of advice services, but this does not mean that the Government will meet all demand in the future”.
I would not want to back off from supporting the amendment on the basis of a vague promise that something along those lines might be done. It is a classic case where we are entitled to ask another place to take another look, and that is what I hope we will do.
Lord Carlile of Berriew
My Lords, in the background to the undoubted need to cut legal aid for economic reasons, it is undoubtedly fair to take as a starting point the Government’s realistic decision to continue to fund judicial review for welfare benefit decisions. In their 2010 Green Paper, the Government gave examples of where judicial review would be used, and is used, for benefit cases. I quote:
“As with other areas of law, funding for judicial review will continue to be available for benefits cases. Such cases are likely to occur where there are delays in making decisions on applications for benefits, or delays in making payments, or whether there has been suspension of benefits by authorities pending investigation”.
None of those examples of judicial review is based on the merits of the case in question; and the problem with judicial review is just that. Where legal aid is available for judicial review in benefits cases, it will not avail a single potential litigant when the decision taken is simply wrong, the evidence has been mis-analysed and misapplied, and the factual decision is unsustainable. That is not what judicial review is for.
Bearing that in mind, I have had to think hard about the balance between wishing to help the Government to fulfil their aims to cut legal aid in a realistic way and those determinations of principle and conscience that some of us have held to for quite a long time. I applaud the measured and economical way in which my noble friend Lady Doocey moved the amendment. She has great experience in dealing with these issues and enormous knowledge of them. Over decades, she and I, and a number of others on these Benches, have attended debate after debate within our party in which the sort of principles that she espoused have been affirmed, reaffirmed and re-reaffirmed.
Baroness Finlay of Llandaff
My Lords, I sense that the House is getting to the point where this debate needs to draw to a close, so I will not go over the points that I was going to make at length, except to point out that there is a moral case and a financial case for both the first two amendments in the group. The moral case is that people are particularly vulnerable when they are in the hands of clinicians, their vulnerability being the reason that they need a clinical intervention. Therefore, closing down access to justice or compensation when things go awry seems particularly wrong.
I have a further point to make on allowing clinical negligence to come back into scope. The financial arguments, as already laid out by the noble and learned Lord, Lord Lloyd of Berwick, and in the report of King’s College London, indicate that on financial grounds alone both these amendments make sense. To repeat the figures given by my noble friend Lord Wigley, the cost to the public purse is estimated to be £28.5 million, as opposed to the £10.5 million that the Ministry of Justice hopes to save by this measure. We have heard a lot about the need to save money.
There could be unintended consequences from this calculation of increased, not decreased, expenditure. The intention behind the Government’s amendments is to be welcomed but I fear that there will be complications in, for example, trying to work out the dates of a pregnancy if a scan is not done in the first trimester. Women’s periods are notoriously unreliable as a method of establishing dates in a pregnancy, and arguments about whether it is one day or another will make life extremely difficult.
I end by pointing out that in his report Lord Justice Jackson said that of all the proposed cutbacks in legal aid, the removal of legal aid in relation to clinical negligence was the most unfortunate. He went on to state that if—in his view, wrongly—legal aid for clinical negligence was cut, then removing legal aid for expert reports would not make sound sense.
Lord Newton of Braintree
My Lords, I wonder whether I might be allowed to intervene from this Front Bench position without people feeling that I have fallen victim to delusions of grandeur of one kind or another.
I wish to make three points. First, I support the general thrust of the arguments that have been put forward by the noble and learned Lord, Lord Lloyd, the noble Baroness, Lady Grey-Thompson, and my noble friend Lady Eaton. I shall not elaborate but I think that they have made excellent points which need to be considered.
The second is to build on what was said by my noble friend Lord Cormack and, even more so, by the noble Baroness, Lady Mallalieu, about one striking aspect of the speech of the noble and learned Lord, Lord Lloyd, and indeed the note he had sent me. Had I had the temerity to intervene in the winding-up of the previous debate or had I wished to elongate my speech in that debate, I would have said that those of us who were supporting it were not hell-bent on increasing the deficit and raising the debt. The key point is that we just do not believe the Government’s figures. No one outside the Government believes that savings are going to be made on the scale that the Government claim, and in many cases we think that the deficit is going to be increased. We now have this concrete example of where the figures are wrong, and I hope that the House will bear that in mind.
Finally, one thing that sticks in my mind from this whole exercise is a seminar at which we heard from someone who had been severely damaged by clinical negligence, along with his wife. Victory in that case had enabled the wife to go on looking after the man and for him to go on having as normal a life as possible in a severely disabled state. I just ask myself how much the state saved in that one case, where the husband and wife would not otherwise have been able to go on in those circumstances. How much had been saved in terms of many years of residential care or much more extensive support from the social services department? In my view, these are the things that have not been factored into some of these calculations, and there are many others. Although not strictly related to this amendment, every child taken into care costs £36,000 a year. These are the costs that have not been factored in. I think that we are owed some better answers than we have had so far, and I hope, without much expectation, that we will get some better answers tonight.
Lord Faulks
My Lords, I take note of the indication from the noble Baroness, Lady Finlay, that the House may have heard enough but I hope that noble Lords will bear with me for a little while. I spoke on this subject at Second Reading and on a previous occasion and I should remind the House that I have spent much of the past quarter of a century working on these clinical negligence cases. I remind myself of that also, lest I should be guilty of any lack of detachment on these difficult issues.
I remain enthusiastic about legal aid. A well organised legal aid scheme with proper controls over funding, franchising of solicitors to ensure relevant expertise and a rigorous approach to the funding of individual cases is a highly worthwhile aspiration. Unfortunately, we have rarely had a scheme like that. In saying this, I do not wish in any way to denigrate the contribution of the many public-spirited lawyers who practise in the field, but too much has been spent on cases which have failed or were not really worth while even had they succeeded. It is perhaps something of an irony that clinical negligence—latterly, at least—has been a far more effectively funded area of the law than ever before. By “effectively”, I do not just mean in terms of the size of the funding; I simply mean the efficiency in the way that specialist lawyers conduct this litigation.
Not all claims have been funded by legal aid. In some there are difficulties of eligibility, and others have preferred to go the route of CFAs. These provide greater flexibility and, of course, greater profit. On the previous occasion, the Minister pointed out that more than 80 per cent of clinical negligence cases are taken under CFAs, so this remains, at least in theory, an option for the future. However, it is of course a much less attractive option. As the noble Baroness, Lady Turner, pointed out, there is no ATE insurance and success fees are limited to 25 per cent of past losses and general damages. This is particularly so with complex cases, where investigative costs are particularly expensive and may ultimately prove irrecoverable if the case fails to get off the ground or fails in the end.
I have not been, as a number of noble Lords will be aware, entirely uncritical of this Bill. In particular, I was anxious to ensure that there was a reiteration in Clause 1 of the fundamental principle of access to justice, and I was concerned that there should be additional steps to underline the independence of the director of legal aid casework. Unfortunately, my views did not coincide with the views of the Government. One reason I felt able to support those amendments was that they did not involve any government expenditure but reflected what I thought were important principles about the justice system.
However, with this group of amendments we are now concerned with areas that involve government expenditure, although quite how much, I accept, is very much open to debate. The financial situation requires there to be cuts and the Government have taken the perfectly reasonable view that the legal aid budget must bear its fair share. I remain somewhat unconvinced by the stance taken by the party opposite, which seems to be that civil legal aid would have been left entirely alone by it and, for the most part, CFAs as they currently are represent a satisfactory situation.
The Government have had to take some hard decisions in cutting back on expenditure on legal aid. Surely we are acknowledging that and are engaged in scrutinising this Bill in an attempt to limit the damage rather than simply pretending that there are limitless funds available for legal aid. Perhaps I may join the noble Lord, Lord Carlile, and congratulate the Minister and his officials on their response to the concerns that I and other noble Lords expressed about the position of brain-damaged babies. The Government have put down this most welcome amendment. I genuinely believe that this is a thoughtful and appropriate concession and an indication that the Government are trying to address some of the very difficult situations which this legislation throws up.
Legal Aid, Sentencing and Punishment of Offenders Bill
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Baroness Mallalieu
At Second Reading, I supported a very similar amendment, and I would like to support this one today. This is the single most important amendment in relation to this Bill. It sets out a clear principle that the Government say that they accept—that nobody should be deprived of access to our legal system because they cannot afford it. The rest of the Bill contains many instances where one doubts whether that principle is being applied. I usually take the view that a statement of principle at the very beginning of a Bill is rather pointless—it is merely words—but in this case it is essential. It indicates that this Government, in this Bill, despite the difficulties that they are facing financially and the difficult decisions that they are having to make, are not abandoning a central pillar of our constitution—that nobody should be denied the right to go to a court of law because they cannot afford it. That is all that I would like to see put into the Bill in that amendment.
Lord Newton of Braintree
I am sorry, but I cannot quite make it. I shall try again later.
Lord Howarth of Newport
My Lords, we shall look forward very much to hearing the noble Lord, Lord Newton, in a moment.
This is major legislation to reform the legal aid system, and the least that the Government can do is to incorporate within this major legislation the affirmation of principle that the amendment in the name of the noble Lord, Lord Pannick, calls for. His formulation is a modest one by comparison to the formulation that the Constitution Committee of your Lordships' House recommended should be incorporated, which would have laid upon the Lord Chancellor an absolute duty to secure effective access to justice. At a time when our society is particularly stressed by the rigours of recession and reductions in spending on public services, as well as by what we on this side of the House take to be a very harsh prospective reduction in benefits, it is particularly important that the Government should do what they can to reassure members of our society that they are committed to justice. The affirmation of principle that is called for in this amendment is for that reason the more necessary. So I hope very much that the Minister, having listened to the powerful arguments deployed on all sides of the House, will concede that this is indeed the right thing to do.
Lord Newton of Braintree
My Lords, I apologise for my slowness. I start by saying that I am so far the only person who has spoken who is not a lawyer or bishop. I would claim with the right reverend Prelate to be a humble seeker after truth. I am not sure what I would claim with the lawyers. But I do know that I am racked with guilt about the noble Lord, Lord Pannick, because on the last occasion that he brought this up I indicated that I was not with him. Indeed, last week when he asked me whether I was going to vote on an amendment and I said that I was going to vote with the Government he wisely ignored my advice and voted against it, which is probably what I should have done anyway. However, I find myself now on Report much more inclined to support the noble Lord, both because of what he said today and because—dare I say to my noble friend on the Front Bench; I have already warned him that I may be a bit troublesome today, but he will have expected that—the more that I look at the provisions, the more I doubt that the Government are committed to the principle reflected in the amendment to which most of us would be committed.
I do not doubt that the coalition Government, whom I strongly support in general terms, including the Prime Minister and the Deputy Prime Minister, are committed to freedom, openness, transparency, justice and fairness. The coalition agreement is littered with the rhetoric of all those things and I think they meant it and still mean it, although I find it difficult to see the connection between some of the proposals in the Bill and those declarations, particularly about freedom and justice. The Minister referred jocularly at Question Time to the Ministry of Justice’s motto being, “We’re the Ministry of Justice, here to help”. Frankly, you might query that when you have looked at the provisions of the Bill. The noble Lord, Lord Pannick, also referred to the Justice Secretary’s broad declarations on this. I could make a lot of rather tendentious points particularly in the area of administrative justice, to which we will come later with an amendment on which my name stands, but there are enough questions in all this to make me wonder much more about supporting this amendment, subject to what my noble friend may say.
Lord Wallace of Tankerness
In fairness to my noble friend, it is a good question, which I have asked myself. The answer, as I have tried to indicate in my earlier elaboration of the structure of the Bill, is that we are not trying to recreate a non-departmental public body. Consideration of whether it would be possible to incorporate the words “independent” or “independence” into Clause 4 as proposed would require us to consider very carefully whether that might inadvertently affect the proposed structure, but in no way does it detract from the heart of this matter. In respect of individual cases, the director of legal aid casework will in no way be subject to the influence or interference of the Lord Chancellor.
We need to try to get that structure right while allowing for the provisions that will be there, as my noble friend picked up and as the noble Lord, Lord Hart, indicated, in the part of the amendment that refers to direction and guidance. If that is combined with the very clear protection given—the freedom from any interference by the Lord Chancellor in individual cases—that gets the structure right without inadvertently affecting the proposed architecture of the Bill.
We seek to supplement this. The new clause that the Government propose in Amendment 5 is intended to provide a statutory requirement for the director to produce an annual report for the preceding financial year, detailing how the director has carried out his or her functions during that time. That would naturally include detail of the director’s interaction with the Lord Chancellor and how the Lord Chancellor’s directions and guidance had been used to guide decision-making over the reporting period. A noble Lord asked whether the director would have a voice. There will clearly be an opportunity for a voice because it will be his or her report that is submitted and subsequently presented to Parliament.
I hope that noble Lords will be reassured that this additional measure will provide further transparency in relation to the director’s functions and help to demonstrate that the prohibition as to interference in individual cases has been and will be adhered to. These are important safeguards to ensure the independence of the director.
Lord Newton of Braintree
I am sorry to interrupt the Minister but I have a number of questions at this stage along with a mounting sense of absurdity and unreality. Am I not right in thinking that in the ordinary course of events any civil servant has to be the servant of the Minister whom he serves? That is my general assumption. Secondly, if this civil servant is not to be in that position, does he not in effect become a non-departmental public body in his own right, as an individual? Thirdly, was it not the position of this Secretary of State on the Public Bodies Bill that these are decisions that he ought to take as Secretary of State? That was the whole purpose. My noble and learned friend, for whom I have huge admiration and who usually does terribly well on sticky wickets, has not kept the ball out of the wicket on this occasion.
Lord Wallace of Tankerness
I do not agree that the person would become a non-departmental public body in his or her own right. My noble friend raises an important point because, as has been indicated on a range of issues, guidance will be given and criteria set. There will be a framework; there will be a responsibility for the Lord Chancellor; but the crucial point—and there is concern across the House on this—is that in individual cases there cannot be that level of interference. We believe that that is secured by the provision in Clause 4(4) that it would be unlawful for the Lord Chancellor to interfere in a way that undermined that freedom of decision-making in individual cases. More than that, other measures in the Bill provide for transparency to show that that is not being in some way undermined.
Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord Newton of Braintree
My Lords, I wonder whether I might come in briefly, not least because of the reference to the later amendment of the noble Lords, Lord Alton and Lord Wigley, and others that is acknowledged to be related to asbestosis, which in effect is raised by one of the amendments in this group. I hope that the noble Lord, Lord Alton, will understand. I had indicated that I might speak in support of his amendment but I hope that he will take this as a speech in support; I do not expect to be here if this drags on as it looks like doing. Am I allowed to say that kind of thing?
The main thought that occurred to me was—I say this before coming more positively to the noble Lord’s amendment—that this and the two subsequent amendments look to me like a pretty scattergun approach. By the time I had read through them over the weekend, there appeared to be almost nothing that noble Lords on the Front Bench opposite were not seeking to exempt, and on a very wide front. I would like to know, for example, what Amendment 121 means by “physical or psychological injury”. We can all understand what is meant by death, but “physical or psychological injury”, which I think is referred to in that amendment—I hope I have got this right—appears to be of a breadth that could cover anything from a cut finger to hurt feelings when someone was nasty to you, and I am not aware of a definition of “physical or psychological injury” that would narrow it. If I am wrong about that, no doubt the noble Lord, Lord Beecham, will tell me. Some of his other amendments are more closely defined and relate, for example, to definitions in the criminal injuries compensation scheme. If he wishes to intervene, by all means he may, but I thought that this was a blunderbuss approach.
Lord Beecham
Well, I am sometimes guilty of blundering, but a good example of psychological injury would be post-traumatic stress disorder, which is not at all uncommon in the case of severe accidents. That is the sort of territory. This is a fairly conventional term in personal injury litigation.
Lord Newton of Braintree
As a non-lawyer trespassing with great trepidation into this lawyers’ paradise territory I am prepared to accept that, but to a layman “physical or psychological injury” as a definition of any serious kind would cover pretty well anything. If I am told I am wrong then I will accept that, but at the moment I think it is in doubt.
Having made that point, which will indicate that were there to be any question of pressing some of these amendments to a vote—I understand that there is not—then my noble friend on the Front Bench will be thrilled to hear that I would not be minded to support them, I turn to the more positive point about Amendment 156A and the amendment later on of the noble Lord, Lord Alton, relating to asbestosis. I have some experience of claims relating to that disease—or rather to mesothelioma, the form of cancer to which it often gives rise—in my capacity as both Minister for Disabled People and Minister for the industrial injuries compensation scheme, and latterly as chairman of a hospital sometimes concerned with these respiratory diseases. I think there is a real case for wondering whether we should not maintain assistance to that group of people.
There are two reasons for that. One is that this condition is what you might call very slow burn. Exposure to asbestos that occurred very many years ago may give rise much later to mesothelioma, one of the nastiest forms of cancer. In consequence, there could be significant difficulties in proving the causation. Therefore, there is a case for making sure that legal aid is available in such cases. The nature of this disease and the problems associated with it also make a strong case in ordinary human terms for ensuring that people who have contracted it through no fault of their own as a result of something that happened during their employment should be helped to establish whether their employer could be held liable for that, or, indeed, whether they should get compensation in any other way. Therefore, I hope my noble friends on the Front Bench will not consider that this amendment would have a scattergun effect but that it is well targeted and deserves careful consideration. I hope that the noble Lord, Lord Alton, will make his case alongside mine in an hour or two or whenever we reach the relevant amendment.
Lord Alton of Liverpool
My Lords, I wish to intervene briefly to support the terms of the amendment spoken to by the noble Lord, Lord Bach, specifically on industrial-related injury such as mesothelioma—the issue to which the noble Lord, Lord Newton, has just alluded. We will debate that whole question later but it is worth reinforcing the point that 30,000 people have died of mesothelioma over the past 30 to 40 years and that 60,000 more people are predicted to die of this terrible disease in due course. From the time of prognosis to death, the period which elapses is usually about nine months. Whatever else, it is obvious that this is not a group of people who can bring in vexatious or frivolous cases. If the Government are minded to look for some exceptions—the rifle-shot approach that the noble Lord, Lord Newton of Braintree, has just advocated, not the blunderbuss approach—clearly this is one of those groups which I hope they will look to exempt. The measure does not even ask for legal aid; it simply asks for the status quo, which is that success fees can be paid in such cases.
Lord Newton of Braintree
My Lords, given that this is Committee, perhaps I may intervene again. I forgot to say, because I stood up in some haste, that the numbers point is interesting, as a consequence of what I call the slow burn, where a lot of cases that are appearing now relate to injury caused many years ago. My understanding is that cancer is one of the few whose incidence is, if anything, increasing rather than decreasing, because of the delay from the time of causation in such cases coming through. I think I have got that right, but whether I have or not I am delighted that the noble and learned Baroness, Lady Butler-Sloss, joined us in support of this point.
Lord Wallace of Tankerness
My Lords, perhaps I may deal with Amendments 121, 122, 129, 130, 134, 136A, 136B, 151, 152, 156AA, 156AB and 156C together. All seek to exempt certain types of cases from the Government’s reforms of no-win no-fee conditional fee agreements—CFAs. My noble friend Lord Newton described some of these amendments as being parts of a blunderbuss approach. I think that the noble Lord, Lord Beecham, described it as a bit of a shopping list. I shall come on to the issue relating to mesothelioma sufferers.
The amendments clearly stem from concerns that individuals may be unable to afford to bring certain personal injury cases. My noble friend Lord Newton of Braintree anticipated later amendments in the group beginning with Amendment 137A, which will be moved by the noble Lord, Lord Alton. I recognise that other issues arise such as the difficulty in trying to track down previous employers. I know that my noble friend Lord McNally will respond to that group of amendments and bear in mind what my noble friend Lord Newton said. When I was a Justice Minister in Scotland, I remember the plight of many mesothelioma sufferers, who were trying to get the process expedited so that their cases could be brought to court because many of them had a very short life expectancy. I certainly recognise the importance of those cases and I am sure that there will be a fuller debate on the back of the amendments to be moved and spoken to by the noble Lord, Lord Alton.
The difficulty with the other amendments in this group, as my noble friend Lord Newton said, is that when taken together they do not leave very much of the original intention of the Bill. With regard to recoverable or non-recoverable success fees being shifted to the defendants, it was pointed out in the previous debate that such fees have led to an escalation of costs. A plaintiff does not have the same interest, or may have no interest, in seeking to contain costs in those circumstances. One amendment relates to situations in which the defendants are public authorities. Some people have to pay the price of these additional costs. In motor insurance cases, we pay them through increased premiums. Council tax payers will no doubt bear some cost when escalating costs are picked up by public authorities.
The changes that we are bringing about will lead to costs becoming more proportionate. Equally, claimants will still be able to bring necessary and meritorious claims, and receive damages when they are due. However, as with privately paying clients, claimants on CFAs may have to pay some of their legal costs out of damages recovered. However, as I have indicated, we are introducing a number of measures that will help claimants to pay their solicitors’ success fees. The point was well made by my noble friend Lord Thomas of Gresford, in response to the previous debate, that in many cases no success fee is charged and some solicitors may have a selling point: “We will litigate for you, and no success fee will be charged”. That is more than likely to happen.
We must also remember that there will be a 10 per cent increase in general damages for non-pecuniary loss such as pain, suffering and loss of amenity. There will be a cap on the success fee at 25 per cent of damages awarded but, significantly, that will not apply to damages for future care and loss in personal injury cases. That will help to protect a claimant’s damages.
We have already discussed qualified one-way cost shifting. That will mean that losing claimants in personal injury cases who act reasonably will not have to pay a winning defendant’s costs, which in turn will reduce the need to have expensive ATE insurance products. Amendment 156AB is intended to ensure that the changes to the ATE insurance arrangements under Clause 45 do not come into force until the QOCS regime has come into force. I assure the Committee that we intend the package of reform to come into force at the same time.
On Amendment 156C, Clause 46 prohibits membership organisations from claiming the costs incurred by self-insuring against risk. That point was made by the noble Baroness, Lady Turner, in our previous debate. As I understand it, under the Access to Justice (Membership Organisation) Regulations 2005, bodies are listed by the certification officer. Trade unions represent an important number of those bodies, but a number of others have also been listed under Section 30 of the Access to Justice Act 1999.
As has been said on many occasions, the Government have decided to abolish the recoverability of ATE insurance premiums, and believe that this change should apply equally to arrangements for membership organisations. Retaining the recoverability of ATE insurance premiums for membership organisations would create an unfair advantage and mean that defendants in claims brought by members of such organisations would continue to be liable for significant additional costs in such cases and be placed at a disadvantage.
Lord Justice Jackson made no formal recommendations in reference to member organisations. In such a compendious report, one may wonder why not. Nevertheless, in his response to the consultation, he supported the Government’s proposal that changes to the recoverability of ATE insurance premiums ought to apply equally to the arrangements for membership organisations in order to remove any unfair advantage. That view was shared by 63 per cent of respondents to the consultation, who thought that retaining recoverability of the self-insurance element for membership organisations would create an unfair advantage. It is to ensure that that unfair advantage does not occur that we resist the amendment, and I invite the noble Lord to withdraw it.
Legal Aid, Sentencing and Punishment of Offenders Bill
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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.
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?
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.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Newton of Braintree Excerpts(12 years, 4 months ago)
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Lord Alton of Liverpool
My Lords, the noble and learned Lord, Lord Goldsmith, was born in inner-city Liverpool. I had the privilege of representing part of that city for 25 years, first as a city councillor and later, as the noble Lord, Lord McNally, knows, as a Member of the House of Commons. Liverpool is one of the more deprived and economically disadvantaged parts of this country. Therefore, not as a lawyer but as someone who knows communities that have been socially disadvantaged and where access to law and justice is crucial, I spoke at Second Reading strongly against the proposals in the Bill.
I want today to support my noble friend's amendment because, like the noble Lord, Lord Goodhart, I believe that it goes to the very heart of what the Bill is about. It demands the perfectly possible. It is perfectly possible because it is what we do already. Unlike the noble and learned Lord who has just spoken, I turn the attention of Members of the Committee not to the word “resources” but to what the amendment says at the end. It says,
“that individuals have access to legal services that effectively meet their needs”.
To oppose the amendment and vote it down would be for us to say that people should not have access to legal services that effectively meet their needs. Do we really want to turn the clock back to those pre-1949 days that my noble friend Lord Elystan-Morgan spoke about a few moments ago? We are all aware of the five giant evils that the noble Lord, Lord Howarth, mentioned in his remarks that were identified by Lord Beveridge. It was Hartley Shawcross who, from the Labour Benches in 1949, introduced the legal aid provisions. Hartley Shawcross was the Member of Parliament for another Merseyside seat, St Helens.
By way of illustration, the Liverpool Law Society wrote to me recently about what would happen if the provisions in the Bill were to be enacted, and one of the examples comes from St Helens. It involves a long-distance lorry driver who died of lung cancer after a mistake was made in his diagnosis. The settlement was made with his widow after commissioning significant experts’ fees. Under the new regime, the Liverpool Law Society said that the client,
“would not have been in a position to fund any disbursements to enable an investigation to be taken forward”.
That is only one example of many that I have been given of people who for one reason or another, particularly because of changes to legal aid, would no longer be able to get that crucial access to justice that is available in this country at present.
The Bar Council says that it is,
“profoundly concerned about the impact that the Bill's proposals could have on access to justice, particularly for some of the most vulnerable members of society”.
The point is underlined by the Law Society, which said that,
“the Bill ensures that serious injustice will be done … Clients with physical or mental health deficiencies, or low levels of education, may be unable to resolve their problems in the absence of support through legal aid”.
It is worth reminding the Committee what Lord Justice Jackson said when he examined the proposals and came out very strongly against any cuts in legal aid. He said:
“I … stress the vital necessity of making no further cutbacks in legal aid availability or eligibility … the maintenance of legal aid at no less than present levels makes sound economic sense and is in the public interest … On the assumption that it is decided not to maintain civil legal aid at present levels, the question may possibly arise as to whether any particular area of civil legal aid is particularly important and should be salvaged from the present cuts. My answer to that question is that of all the proposed cutbacks in legal aid, the removal of legal aid from clinical negligence is the most unfortunate”.
We have heard several references to the Committee of your Lordships’ House. The House of Commons Justice Committee stated that the Government are in error in failing to undertake a comprehensive assessment of the knock-on costs arising from the cuts to legal aid. In other words, this is penny-wise but pound-foolish. This is a point borne out by Action Against Medical Accidents. Indeed the noble Lord, Lord Carlile, who spoke so eloquently earlier on, chaired a meeting at which I and other Members of your Lordships’ House, including the noble Lord, Lord Howarth, were present, where Action Against Medical Accidents said that in order to save the Ministry of Justice just £11 million it will cost the NHS at least £14 million and possibly as much as £21 million.
This is what the House of Commons Committee said:
“We are surprised that the Government is proposing to make such changes without assessing their likely impact on spending from the public purse and we call on them to do so before taking a final decision on implementation”.
We still have a chance between now and Report to do that. As the noble Lord, Lord Carlile, said he would be, I will be looking for a signal from the government Front Bench today of reasonableness: a willingness to re-examine whether or not the propositions that have been put to us by the Bar Council, the Law Society, practising lawyers and people who have represented disadvantaged communities hold up and are up to scrutiny. It is in that context that we should return our sights to the amendment before your Lordships today, proposing that,
“individuals should have access to legal services that effectively meet their needs”.
When we come to vote we will be voting on that proposition. Unless I hear from the Front Bench that it is prepared to look at this again between now and Report, I will join my noble friend in the Lobby.
Lord Newton of Braintree
My Lords, it is probably my turn, if my noble former constituent will allow me. I have been stimulated, not for the first time and I hope not for the last, by some of the speeches in this debate. First, the noble Baroness, Lady Mallalieu, reminded me of how grateful I was that, in 18 years as a Minister, nobody ever sent me anywhere near the Home Office. I do not know whether or not I would have withstood it, but I am glad that I did not have to be tested.
Secondly, the speech of my noble friend Lord Carlile was absolutely spot on. I have not had the same experience as he has of being pressurised by the Whips: they have given up on me. I am glad to support him, because we need some signs of movement in the speech that will be made at the end of this debate. I say to the noble Lord, Lord Pannick, that I would much prefer it if this amendment were treated as putting down a marker to see what response we get and that we should judge things in the light of what may happen later on with the Bill as well as what is said tonight. In that respect, I have a lot of sympathy with what the noble and learned Lord, Lord Goldsmith, said. But we need something less than irritated intransigence, as my noble friend Lord Carlile put it, from the Ministry of Justice in the way that it responds to the concerns in the Committee. We should make that very clear tonight. In other words, if we do not get some sense of willingness to move then we should return to this on Report. Meanwhile, I look forward very much to a constructive response from my noble friend.
Lord Thomas of Gresford
My Lords, we are now coming to what I regard as the nitty-gritty of this Bill: what is going to be in scope and what is not? What is to be provided for? I have focused in particular on the area of welfare law, which I think is of extreme importance in our deliberations. I am speaking to Amendment 2, and, as your Lordships can see, to Amendments 29 and 78. They are concerned with the provision of legal aid in the appeal system in the tribunals. I have other amendments set down which I hope will address what I consider to be a very important part of our deliberations: how do you provide advice and assistance to people before they ever get into the tribunal system? When they are faced with a problem and they want a resolution of it, to whom do they go? I have amendments down which will deal with that part of the matter.
It seems to me to be a fundamental principle that if you get to the Second-tier Tribunal and then to the appeal courts beyond that and if, as will undoubtedly happen, the Government are represented by counsel and solicitors ready to argue the point in front of those experienced tribunals, under the principle of equality of arms, which is a very important principle under the European Convention on Human Rights, it is very important that the applicant—or appellant, as he will have become—should be fully represented as well. It would be quite improper, wrong and a breach of the convention if we were to have litigants in person in front of the Second-tier Tribunal and beyond seeking to put their case forward and to argue law as well as fact.
I sometimes have the feeling that the Ministry of Justice is living in the past. At one time, when the tribunal system was set up, it perhaps—I am not convinced of it—did not require experience, skilled advocacy and the putting together of a case. However, with all the legislation going through that my noble friend Lord Phillips of Sudbury is concerned about and with the new Bill on welfare law, it is clear that there are going to be some very important issues of law to be discussed at that level. Therefore it is quite simply a statement of principle in Amendment 2 and of practicality in the two other amendments to which I have referred that I urge upon your Lordships for your consideration. Equality of arms is vital to justice, and nowhere more so than in the field of welfare law. I beg to move.
Lord Newton of Braintree
My Lords, I shall intervene briefly. My remarks, such as they are—I hope they will not be long—apply also to quite a number of other amendments for which I shall not be able to stay, some of them in the name of the noble Lord, Lord Bach. At Second Reading, I indicated that I have a lot of sympathy with many of these concerns, not least those in the field of welfare, for exactly the reason that my noble friend Lord Thomas of Gresford has just outlined. At one and the same time, we are passing—or the Government are proposing that we should pass—significant changes in the welfare area affecting hundreds of thousands of people and we are seeking to reduce the scope for people to have legal aid or support of one kind or another in challenging some of the decisions that will then be made. I think I referred to it at Second Reading as a sort of pincer movement in that respect and I see no reason to change that judgment now.
That leads me to make two or three points. First, we really need something that we have not had, which is a combined impact assessment of the effect of the various pieces of legislation on poor and vulnerable people. We have not had it. This is not joined-up government and it is very difficult to make a judgment about what we collectively as a Parliament are doing to these people in those circumstances. That is aggravated by what has been acknowledged in this debate, which is that the Government do not know—I do not know whether the Minister will accept these words—what the financial effects of these measures will be, although we all know that there will be effects in increasing costs for other departments. The Government say that they cannot quantify them but I do not think that they would deny that they will be there. If they cannot quantify them, but cannot deny that they will be there, the savings figures are potentially meaningless.
Even within the Ministry of Justice, which I assume has costed the consequences, the extra costs of claimants, litigants and appellants defending themselves will almost inescapably drive up the costs of the Tribunals Service. Has that been measured? Is it taken into account in these savings figures? These are the questions to which we have to have answers. I do not want to see these amendments pressed to a Division tonight any more than I did the previous one, but they enable us to say that we need to know what we are doing before we can make a judgment in these matters.
I cannot stay for too much longer for reasons which I hope the House will understand but there are all sorts of things that one could say. Mediation was referred to earlier as well as alternative forms of advice in one way or another. Again, we need to know just what the position is. I should make the point that mediation has absolutely nothing to do with social welfare. You cannot have mediation about whether you are entitled to a benefit or not. You either are or you are not, although I accept that mediation may have a part to play in some other areas about which we are concerned.
In any event, we keep hearing talk about more cost-effective ways—I do not know the exact phrasing—of assistance, advice and so forth. But as has been said and as was illustrated in the debate on the CABs not much more than a week ago, most sources of advice are being squeezed either by this Bill—for example, the effect on law centres and other advisory services depending on pro bono work or legal aid work from lawyers—or by the squeeze on local authorities, which is putting the bite on CABs. We then hear talk about this, that or the other amount of money being available, but it is far from clear whether the Government know whether the availability of other forms of advice is going up or down and whether the measures will have any significant effect in either direction. We need to know more about all this before we can make a sensible judgment. I am very grateful to my noble friend for having raised this issue, even though I hope that he will not press it further tonight.
Baroness Lister of Burtersett
My Lords, it is always a pleasure to follow the noble Lord, Lord Newton, who I am tempted to call my noble friend even though technically he is not. I rise in support of Amendments 2, 19 and 29 in particular, although I do so with some trepidation because I am not a lawyer. After what my noble friend Lady Kennedy of The Shaws said, perhaps that is not such a bad thing after all. In fact, my first job was as a legal research officer with the Child Poverty Action Group. Many people assumed that I was a lawyer because the group did not have one in those days.
From what we have already heard in relation to Amendment 1, this Bill is not about a narrow understanding of the law; it is about an understanding of the law as an important instrument of citizenship. These amendments are about something I spoke on at Second Reading, the relationship between the citizen and the state. I cannot believe that any Member of your Lordships’ House wants to weaken the position of the individual citizen against the state, yet my fear is that that is what this Bill will do in Part 1.
I am a believer in the state, particularly the welfare state. But the state can loom very large and very oppressively in the lives of some of our most marginalised citizens. It is really important that they can turn to the legal system in their relations with the state. I also want to refer briefly—we will come back to this in later amendments—to the importance of the tribunal system. One of my first pieces of work as legal research officer at the Child Poverty Action Group was on one of the first empirical studies of the supplementary benefit appeal tribunal system. I was very privileged to be supervised by the late Professor John Griffiths, who I think would be horrified by the measures in front of us today.
Public Bodies Bill [HL]
Lord Newton of Braintree Excerpts(12 years, 5 months ago)
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Lord Newton of Braintree
As an amendment to the Motion that this House do agree with the Commons in their Amendment 49, leave out from “agree” to end and insert “disagree with the Commons in their Amendment 49 but do propose Amendment 49B in lieu”.
“Conditions on the exercise of powers under sections 2 to 5
(1) Unless the conditions in subsection (2) of this section are met, a Minister may not make any order—
(a) under section 2 to merge the Administrative Justice and Tribunals Council and the Civil Justice Council;
(b) under section 3 to modify the constitutional arrangements of the Civil justice Council;
(c) under section 4 to modify the funding arrangements of the Civil Justice Council; or
(d) under section 5 to modify or transfer functions of the Civil Justice Council.
(2) The conditions are that—
(a) the Minister has laid before both Houses of Parliament a report setting out in detail how the Government proposes that the functions of the Administrative Justice and Tribunals Council and the Civil Justice Council will be carried out in future;
(b) 60 days have elapsed between the laying of a report under paragraph (a) and the laying of any order for any of the purposes set out in subsection (1) above;
(c) the Minister has laid before Parliament a response to any report of any Committee of either House of Parliament on the Administrative Justice and Tribunals Council or the Civil Justice Council published within two years of this Act coming into force; and
(d) two years have passed since the coming into force of this Act.”
Lord Newton of Braintree
My Lords, I am as delighted as anybody by what has happened on the previous amendment. I am also pleased that a concession has been offered to the noble Baroness, Lady Finlay, though I do not yet know what her reaction to it will be. I bound to say that that leaves me feeling slightly plaintive as the only one to whose modest concerns the Government appear to be unwilling to make any move at all. I have down an amendment in lieu but that is not the one that I am moving. I made it clear to the Minister earlier this morning that I would only move the amendment if it had any attraction to the Government as allowing them to make a move in my direction.
Lord McNally
I am advised that if the noble Lord is not going to move these, he should now speak to the amendment that he is going to move, which is Amendment 49C.
Lord Newton of Braintree
I am sorry. Because of the complexities of this process, on which I had taken advice earlier, that is certainly right. I am not moving Amendment 49A, a point on which I had given the Minister notice earlier. I intend to move Amendment 49C.
Lord Newton of Braintree
As an amendment to the Motion that this House do agree with the Commons in their Amendment 49, leave out “agree” and insert “disagree”.
Lord Newton of Braintree
My Lords, I beg to move Amendment 49C, with which I also wish to speak to Amendments 50A, 51A and 54A, which are related to the other amendments in what I regard as a group.
These amendments are designed to preserve some amendments inserted into the Bill by this House on an amendment of mine at Report—an amendment on which I had strong support from various parts of the House, including my noble and learned friends Lord Mackay and Lord Howe of Aberavon, and the noble and learned Lord, Lord Woolf, who I am delighted to see in his place. My noble and learned friend Lord Mackay is manifestly not in his place, because I am. I do not want to read too much into that; he supported me before and I have not checked what his view would have been on this occasion, though I hope he would have continued to support me.
The purpose of my amendments was not to frustrate the Government’s original intention to abolish the Administrative Justice and Tribunals Council, if that is what they continue to wish to do, but simply to give them scope for greater flexibility if they wanted to do something more creative, on reflection. Let me be quite explicit in respect of the Civil Justice Council, which is named in some of these amendments. I say this particularly to the noble and learned Lord, Lord Woolf. I had neither wish nor intention to damage the Civil Justice Council in any way, but I have long thought that there could be scope for some rationalisation between these bodies, and I am encouraged by the fact that the Master of the Rolls appeared to indicate that view in his remarks to the annual conference of the AJTC last week.
I shall not rehearse the arguments, as I set them out pretty fully on Report and noble Lords are slightly past wanting to hear them. But I shall make 10 points. First, good administrative justice—a fair system accepted by citizens for resolving disputes between the citizen and the state—is part of the bedrock of a society like ours. The second is that the Ministry of Justice has a sort of responsibility in this area, but its main specific responsibility is simply for that part of it that is covered by the Tribunals Service, not by much other essential machinery. It is not responsible for local authority tribunals, including those very important ones, to many citizens, that deal with education, exclusion and appeal matters and other local authority issues. It has no policy responsibility for ombudsmen, who are a key part of this whole set-up, and it has no policy responsibility for decision making and complaints handling of individual government departments, which is another crucial factor in administrative justice.
My next point is that the Council on Tribunals, now the Administrative Justice and Tribunals Council, is agreed to have played a major part over 50 years in improving a system of administrative justice that was bordering on a disgrace in the middle 1950s. There have been major improvements to which the council, under both titles, has contributed, not least the creation of the new Tribunals Service.
I am not sure which point this is—I have 10 in all. My next point is that the creation of the wider remit of the reformed Administrative Justice and Tribunals Council was fully supported less than four years ago by every group in this House, including the then Conservative opposition Front Bench and the then Liberal Democrat Front Bench. So to an extent this is going back to something that was committed to very shortly before the election. There was no manifesto commitment to its abolition and no mandate that can be claimed for its abolition.
My next point is that a key ingredient was the need for an independent voice for the interests and needs of the user of administrative justice systems. That cannot and would not be done by the Ministry of Justice—by people whose primary day-to-day accountability is to the Minister, not to the user or the stakeholder.
My next point is regarding the Parliamentary Ombudsman, whom people may like or not, but the Ombudsman’s comments on the proposed abolition in relation to the consultation document is worth a guinea per minute and quite short. I am not going to read it all out, but one paragraph of it says that her extensive contact with the Ministry of Justice in its various guises over many years gives her no confidence whatever in the ability of the Ministry to assume the functions of the AJTC. She goes on to say that however well-meaning and diligent individual officials may be, the Ministry simply lacks the institutional history, capability and technical knowledge to do that. I say hear, hear to that.
Then there is a devolution angle, which the Minister may not even have thought about. The Administrative Justice and Tribunals Council has a Scottish Committee and has always had one, based in Edinburgh. Since its reincarnation as the AJTC, it also has a Welsh Committee. Both these bodies are valued by the devolved Administrations. Nobody has made any decisions, but the Scottish Administration is looking at the possibility of creating a civil justice council, embracing the work of the Scottish Committee of the AJTC. Northern Ireland, which at present has nothing much at all in this field, is also looking at a model of that kind. From what I was told on Thursday, Wales, too, is looking at a council that would take on the work of the Welsh Committee. Would it not be ridiculous if, as a result of this, England—which started all this—became the only part of the United Kingdom without a body to provide what has been provided in England by the council and tribunals of the AJTC for more than 50 years in respect of oversight and a voice for administrative justice? I think it would be almost unbelievable.
Finally, not everybody will know—I hope the Minister does, certainly his departmental colleague, Mr Djanogly, does—that the Public Administration Select Committee in another place is conducting an inquiry into this abolition proposal. Having attended the hearing yesterday, I make the following points. First, the Ministry, according to the Minister in the other place, Mr Djanogly, as I heard him, intends to take in all the AJTC staff alongside building some modest increase in its own previously non-existent capability even to offer policy advice in this area. I must say that casts huge doubt on the savings figures we have been given, and it was clear yesterday that nobody knows what those figures are.
Secondly, it appears to be accepted by everyone that the MoJ cannot replace much of the work that the AJTC does, especially on the user front and in creating effective stakeholder relationships on a wide scale, as represented by the conference that the noble and learned Baroness, Lady Scotland, attended and spoke at with great distinction last week. I do not believe the MoJ can do that. I do not know what the report will say, of course, because it has not yet been written, but from what I heard yesterday, I think it is highly likely that the Public Administration Select Committee will say that the Government need to look again at this. If they do, that means that an important committee in another place will in effect be saying that another place itself needs the opportunity for further reflection on this proposal. I suggest that your Lordships should give it that opportunity and I intend, subject only to the miracle of the Minister saying something that I do not expect him to say, to seek the opinion of the House.
Lord McNally
My Lords, I had better intervene now so that I do not keep my noble friend Lord Newton in suspense for too long. Alas, as he knows, because we have discussed this on a number of occasions, I am not able to deliver the kind of assurances that I was able to deliver for the noble Lord, Lord Ramsbotham.
Lord McNally
Indeed. One of the thrusts of our argument is that the sooner the Government get back into the habit of taking responsibility for their own inefficiencies, the better. My department and HMCTS are already working closely with DWP on a range of initiatives to improve initial decision-making. It is about time that government departments took responsibility and I concede a whole range of areas where initial decision-making is poor and causes expense. But that is not a reason to pass the buck to some other body. The job is for government to get on with improving the efficiencies.
The Ministry of Justice is well placed to ensure that administrative justice is a key part of the wider justice reform agenda. We are committed to developing a strategic UK-wide approach. We are also committed to ensuring that the right decisions are made the first time. When disputes arise we will provide proportionate, timely and cost-effective solutions and drive ongoing improvements in the system. The MoJ already has strong links with the devolved Governments and other government departments and is already demonstrating the benefits of this. The department is currently considering priority areas and the resources needed to take them forward. At present there is a core team consisting of staff of a range of grades which has access to the wider justice policy group. The team can freely call on legal and analytical experts.
Other issues were raised. Any idea of a merger with the CJC has been ruled out by the judiciary. I mentioned in my initial intervention that we would establish a group of administrative justice experts and key stakeholders to draw on their views. As for the Public Accounts Committee inquiry, my honourable friend Jonathan Djanogly gave evidence yesterday. We will certainly take note of any recommendations that the committee makes. However, I do not think that it will remove the central piece of our analysis, which is that the AJTC is an advisory body that is no longer required in the field of administrative justice. Robust governance and oversight arrangements are now in place with regard to tribunals and the development of administrative justice policy is properly a function of government. A source of advice that is independent of government is not a prerequisite. Civil servants in the MoJ already offer Ministers balanced, objective, impartial advice, and they can draw on expert advice on administrative justice reform.
The Government will ensure that they exercise effective oversight of the administrative justice system in a way that best serves its users. They will develop, maintain and enhance a UK perspective of the system as well as enhancing their links with stakeholders. The Government will expand the channels by which best practice can be shared and collaborative working developed across the administrative justice system.
I have been asked to think again but I say to the House that we have had ample time to think about this. This House has already made one decision on this body. The amendments of my noble friend Lord Newton may be either helpful or ingenious, whichever way one likes to approach them. However, at this stage of a Bill, when the other place has had ample time and ample consideration of these matters, the Government are entitled to say to this advisory House that we have listened to this advice but that we want to abolish this body.
Lord Newton of Braintree
My Lords, I started off slightly plaintive and have ended up more than slightly depressed. I can assure the Minister that I do not wish to become personal non-chums with him. Actually, I rather sympathise with him having to trot out all this stuff for the third or fourth time. He said he thought that the arguments were as sound now as they were at the beginning. From my point of view, they are as weak now as they were at the beginning.
I will make very few points as there is no point in going over all the ground again. I am hugely grateful to those who have spoken in my support. Rather unusually for this kind of debate, they have not only supported me and repeated some of the things that I have said, but all of them have added something significant to the arguments in the debate. I will not pick noble Lords out except for the noble and learned Lord, Lord Woolf, because the Minister said that the judiciary rules out any idea of this being combined in some way—the noble Lord used the word “merging”—with the work of the Civil Justice Council. At least in historical terms, you cannot get much more senior than the noble and learned Lord Woolf. I also have from three separate sources a report that the Master of the Rolls, the noble and learned Lord, Lord Neuberger, who is also pretty senior, said at the AJTC conference last week that he could easily envisage an administrative justice committee of the Civil Justice Council and he seemed to think that it would be a good thing if the set-up were right. I see the noble and learned Lord the former Lord Chief Justice nodding. I do not think that it is right to say that members of the senior judiciary have set their faces against this. It seems to me that that is not the case. I believe that efficiency, economy and effectiveness have been covered with the figures that I gave and that have been given by others.
I must make the point that remarks about Ministers taking responsibility for decisions are completely irrelevant. This is not a decision-making body. This is an advisory body. The Minister said that the department would need to assemble some kind of stakeholder group. I do not recall his exact words. He put the emphasis on practitioners. That means reinventing the AJTC, in one way or another, when it already broadly carries out this function and more, because it links with users, not just stakeholders, judges and advocates. This ties in with the fact, as I learnt on Thursday last, that the tribunal service, which in my time asked the AJTC to run two of its user groups because it was thought that we did it better, has now scrapped all its user groups on the grounds that it cannot afford them. Where does that leave this argument?
There is very little else that I want to say. I do not think that the case stands up. I do not think that the Minister’s arguments stand up. I think that we need a body like this. I wish to seek the opinion of the House.
Lord Newton of Braintree
As an amendment to the Motion that this House do agree with the Commons in their Amendment 50, leave out “agree” and insert “disagree”.
Lord Newton of Braintree
My Lords, I do not intend to move Amendment 51A. I thought that it was worth a try, given the narrowness of the defeat on the first vote. However, I know when I am beat, and I am not going to grumble any further. I will go quietly—at least for this evening.
Baroness Miller of Chilthorne Domer
My Lords, I am extremely grateful to the noble Baroness, Lady Finlay of Llandaff, for enabling Parliament to get back to the place where it should have been, and was, after the Coroners Act. She has done a tremendous job. It has also brought forth something that she mentioned briefly in her speech—she is now involved in the training of coroners. Already there is tremendous progress. I am also hugely grateful for all the work that my noble friend Lord McNally has put into this matter, because I am sure it is not easy to turn the ship of government around when it is sailing so fast in one direction. I can imagine the sort of effort that he had to put in.
The Royal British Legion and Inquest deserve particular gratitude, as do all the other organisations that signed the letter to the Times. A lot of them are run and supported by bereaved families, and it is not easy to go out and campaign when in the midst of grief. Some of those parents and siblings came to give evidence to parliamentarians about what had happened to them at inquests. I should like to take this opportunity to put on record my thanks to those people for giving us examples of why not only the training but the attitude of coroners to issues such as timeliness are extremely important.
I have one question for the Minister. The charter on the table is not now just for bereaved people but for anyone who comes before the coronial system. Some of us, including me, certainly felt that it should be a charter for bereaved people. It is not yet finalised and I hope that the chief coroner, who will be in a wonderful position to cast his or her eye over the draft charter, will have an opportunity to comment on it and perhaps improve it in the light of the things that he or she hears when talking to coroners.
Finally, I wish to comment from a purely personal point of view on the issue of appeals. The noble Baroness, Lady Finlay of Llandaff, made some very good points about the fact that the issue could lie on the table and be implemented later, if necessary, but my heart lies with the government position, and it is not really a question of cost. In many cases, there will never be real satisfaction for the bereaved because, even though the process may have been thorough, timely and open, that is just the nature of bereavement; there is no satisfaction. If the chief coroner manages with all his other coroners to get the process right, there should be no need for appeals. There will obviously be an interim period that will not be entirely satisfactory, but the package on the table is all that we could have hoped for and is one for which I am particularly grateful.
Lord Newton of Braintree
My Lords, I am going quietly on Amendment 54, but not on Amendment 53. I will go more loudly, but briefly, on this. I congratulate the noble Baroness, Lady Finlay, on her success. I thank the Government for giving her that success, even though she is showing some signs of looking the gift horse in the mouth. I have one very small point that is not about appeals, but about suicides. I declare an interest as the chair of a mental health trust.
One of the problems with the coronial system has been the great inconsistency between the verdicts of coroners, some of whom, it is alleged—I am not an expert on this but I have been to a number of meetings with people who have studied it very carefully—prefer to find suicides as accidental deaths to spare the families. I cannot vouch for that, but that is what is reported by reputable researchers. The Department of Health is devising a suicide prevention strategy. I do not see how such a strategy can be devised, let alone measured, unless there is consistency in coronial verdicts around the country. One thing that is required from a chief coroner’s office is the need to ensure consistency. I should be grateful for an assurance that part of the role envisaged will be to seek to bring about greater consistency in the practice of coronial courts around the country. I believe that I see the noble Baroness nodding her head at that proposition.
Lord Phillips of Sudbury
My Lords, with reluctance I want to speak against the proposition of the noble Baroness, Lady Finlay of Llandaff. Before I do so, I reiterate all that my noble friend Lady Miller and others have said in this mini-debate about the worth of the efforts of the noble Baroness, Lady Finlay, and indeed about how exemplary the combination of her efforts and those of others in this House as well as in outside bodies has been in bringing about the change in government policy that we have heard about today. That really is democracy in action.
However, there is one practical issue here that may not be sufficiently understood. I speak as one who at the start of his legal career was a coroner’s officer and indeed, on occasion, sat as a deputy coroner. The change we are making in creating the chief coroner post is, I believe, fundamental, and I think that it will have more ramifications than many realise. There is positive merit in waiting to see how it pans out over the next few years. Surely we do not want to rush into the creation of a new appeals mechanism without having the benefit of the experience of that changed situation. For that reason, if no other, I think that the position to which we have come—that is, acceptance of the chief coroner but at this stage not approval of a brand new appeals mechanism, especially in view of the fact that coroners’ juries find as to fact—may be the right one for the time being.
Lord Newton of Braintree
My Lords, I am still going quietly, I shall say at the outset, but not, I will say to my noble friend Lady Fookes, on the basis that I am too old to be a rebel.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Newton of Braintree Excerpts(12 years, 5 months ago)
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Lord Newton of Braintree
My Lords, before I say anything else, I should make one prefatory remark of apology to the House and the Minister. It will not surprise those who have observed me in recent times to learn that my stamina is not quite what it was. I hope it will be understood that I shall not feel able to stay for the winding-up speeches later on. I am sorry for not complying fully with the conventions of the House in that respect. If the Minister chooses to ignore me entirely, I shall of course understand completely. In the mean time, I shall try to refrain from asking him too many questions.
In line with almost everybody else in this debate—I want to make this clear to my noble friends on the Front Bench—I am not opposed to this Bill in principle. It is important, and there is a lot of important stuff in it. I do not think that we should attempt to frustrate it. We have had as good a debate as I can recall on any such matter, and it has been a privilege, as a non-lawyer and layman in the field, to have the opportunity to take part in it. I should also tell my noble friends—this may be music to their ears—that wherever I can give the Government the benefit of the doubt they will have it. As for the sentencing and punishment—I must say that I prefer the word rehabilitation—of offenders chunk, if it is in line with the normal liberal instincts of my right honourable friend Kenneth Clarke, I shall be happy to go along with it.
I am also pleased that my noble friend Lord McNally said that he was listening. If I am allowed to note it and it is in line with the rules of the House, I was particularly pleased to note that my right honourable friend Kenneth Clarke actually came along to listen this afternoon, which was a further encouragement.
I want to concentrate on civil legal aid, or rather the proposed cuts in it. I am not now talking about the Jackson aspects, which I broadly support and which seem broadly sensible. Nevertheless, I hope that attention will be paid to the wise words of my noble friends Lord Hunt of Wirral and Lord Faulks and, indeed, to the words of the noble and learned Lord, Lord Woolf, which seem to me to be very important in this context.
The areas that concern me have already been highlighted, so I am not going to rehearse them. One is social welfare law, including the effects on disabled people, on people with special educational needs and learning disabilities, who are a subset of disabled people, and on the law centres that are associated with those effects on social welfare law. I am concerned about the effects on family law, and especially on battered people—battered wives, mainly—and children, which have been highlighted in a number of important speeches. I am concerned about the effect on clinical negligence, where I have some experience as a chair of a number of health trusts, and where I certainly share some of the concerns that were expressed by my noble friend Lord Faulks but not only by him. I also still remain a bit concerned about some of the effects in the area of immigration. We had a go at the Government about that a few weeks back in a dinner-hour debate, where I made it clear that I welcomed the concessions but thought that a few questions remained.
As I have already said, I am not going to rehearse the arguments. Noble Lords on all sides of the House will have representations running out of their ears, and I have them running out of mine. The conclusion I draw is that there is now so much smoke on some of the issues that I have touched on that there must be some fire somewhere, and we need if possible to put it out.
I shall mention three or four other points briefly. I have never seen such a strong feeling that a set of cuts will not produce the savings that they are said to produce. What we appear to have here, as I judge it—and I should warn the Minister that this is an area that we all need to explore very vigorously in Committee—is a set of cuts that will save the Ministry of Justice money at the cost of passing costs to a number of other departments, including the welfare departments, throughout Whitehall and beyond, including, perhaps, local authorities as well.
Even within the Ministry of Justice, I suspect that we have proposals that are going to pass costs from one part of the ministry to another. I was the previous chairman of the Administrative Justice and Tribunals Council. It was notorious that, in many jurisdictions, cases where people turned up unrepresented took longer and cost more than cases where they had legal advice or assistance. Has that been costed? I am not sure. I happened to speak at the beginning of last week with a barrister who had been involved in a case involving a litigant in person. He sounded a sensible fellow, although I cannot validate this in any other way. He reckoned that this case—a High Court case, not one involving civil legal aid—had taken, in his estimation, two and a half weeks instead of four days because of the appearance of a litigant in person. If that was replicated on any scale at all, the savings in possible civil legal aid cases would disappear in a flash. We need to explore that. It was brought out very clearly by my noble friend Lord Pannick—I am going to call him my noble friend for this purpose.
I accept the need to make savings, and I hope that that will not be thrown at me. However, the Government’s position, which I support, was to make these savings and fill the debt hole, or whatever we want to call it, with savings that would not be at the expense of the poorest and most vulnerable but might even help them. As I hear things at the moment, this Bill does not do what it said on that tin.
Let me conclude with one very brief example. If I was not here, I would be upstairs in Committee on the Welfare Reform Bill. While discussing that Bill, we have heard about disabled people’s fears that a lot of them are going to lose out as a result of it. I am not saying that they will or will not, but that is their fear. A figure has been bandied around of 650,000 people who could lose out on disability living allowance as it moves on to something else. That group of people will include many who will want to challenge the results of a new system of that kind. Here we are, then, at one and the same time putting this fear into people’s minds, potentially cutting their benefits and reducing the scope for them to challenge what has been done to them. It is a sort of pincer movement. It is not the kind of thing I like, and I will need to be persuaded before I vote for it.
Community Legal Service (Funding) (Amendment No. 2) Order 2011
Lord Newton of Braintree Excerpts(12 years, 6 months ago)
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Lord Newton of Braintree
My Lords, we live and learn. I apologise to my noble friend on the Front Bench for my slowness in getting up and, possibly, for what I am going to say. We live and learn: I always knew that I was more liberal than the previous Labour Government; I now know that I am more liberal than the Liberal Democrats, at least as represented in the House tonight. I hope that my noble friends on the Front Bench have not reached the stage of trembling when I stand up, because I am really quite a nice pussycat—in comparison with some, at any rate—but I can assure them that, were this to be pressed to a vote, I would not vote for it. I do not think that it is right for us to be killing off statutory instruments in the way that this would do, certainly with the way that the House operates at the moment. However, it is important that somebody from these Benches should make it clear that, even if we would not want to see this voted down, we are not happy bunnies about the policies that seem to underlie it. There are those of us, as I have already warned my long-suffering Whip and others, who are likely to want to return to some of these issues when we get to the Bill that is coming down the track towards us.
The speeches in this debate by the noble Lord, Lord Bach, the noble Baroness, Lady Deech, the noble and learned Lord, Lord Scott of Foscote, and others, including the noble Earl, Lord Listowel and the right reverend Prelate—in fact, everybody bar one, dare I say, who has spoken—have made a pretty devastating case. I will listen to the Minister’s answer. I am a notoriously pliable chap, and if I am convinced I will be prepared to change my view, but at the moment I think that they have made a pretty devastating case. I have only one question to add to those that have been asked, which is about mental health, where locking people up remains one of the areas where you can get legal aid for the mental health tribunal.
I think it is relevant that two years ago, when I was still chairing the Administrative Justice and Tribunals Council, the Ministry of Justice, under its former incumbents—or the officials, at any rate—asked the council, and me as its chair, to chair the user group for mental health tribunals. This is a little less comfortable for the Opposition Front Bench, but even at that stage, mental health lawyers were expressing the view that the cuts that had been made in legal aid remuneration were, at least in some parts of the country, making it virtually impossible to find people to represent those before the mental health tribunals. It was particularly true in the south-west; there were some concerns in the north-east, but there were certainly concerns, even with the policies that had previously been pursued. I therefore want to ask two questions of the Minister. Is mental health affected or potentially affected by this? What is the position on the availability of legal aid lawyers to help claimants who have been confronted by the prospect of being deprived of their liberty by mental health tribunals? This ties in with the point that the noble Lord, Lord Beecham, has just made very effectively. The net result of this may well be to reduce the amount of support available to vulnerable people, not only because legal aid is not available but because growing numbers of young lawyers who do pro bono work will not be able to afford to go on doing it. This is a worry for many law centres and the like. I should like some comment on that.