Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Newton of Braintree and Lord Alton of Liverpool

Monday 30th January 2012 Lords Chamber

[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.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Newton of Braintree and Lord Alton of Liverpool

Tuesday 20th December 2011 Lords Chamber

[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.