Access to Justice
Lord Phillips of Sudbury Excerpts(9 years, 1 month ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Faulks
I will certainly not do that calculation at the Dispatch Box, but I think I understand what the noble Baroness is saying, which is that those systems where the judges are more involved—more inquisitorial as opposed to adversarial—may cost more. None the less, we generally believe that our legal aid costs—as is quite right, because we value access to justice—are more expensive than anything which is remotely comparable elsewhere.
Lord Phillips of Sudbury (LD)
My Lords, does my noble friend the Minister recognise that with the cutbacks in legal aid and fewer solicitors being willing to do it a greater burden rests on the citizens advice bureaux and law centres? Will he contemplate affording them more resources in order to meet the unmet need?
Lord Faulks
My noble friend is right. We have in fact given £107 million via the transition fund; that was last year. We remain concerned that justice should be provided by whatever means and we acknowledge the contribution of the Low commission in identifying different ways of providing help other than by the rather expensive and cumbersome method that is sometimes used.
Civil Proceedings and Family Proceedings Fees (Amendment) Order 2015
Lord Phillips of Sudbury Excerpts(9 years, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Scott of Foscote (CB)
My Lords, I had prepared a speech in support of the amendment of my noble friend Lord Pannick. However, having regard to the speeches that your Lordships have already heard from not only the noble Lord, Lord Pannick, but from the noble Lords, Lord Beecham and Lord Marks, and the noble and learned Lord, Lord Brown of Eaton-under-Heywood, I will confine myself to asking four questions of the Minister.
First, does the Minister agree that respect for the rule of law by at least the majority of those living in this country is an essential requirement if this country is to continue to rank as a civilised country in which it is a pleasure and a privilege to live? Secondly, does he also agree that those who for reasons of lack of necessary funds are denied access to justice in our courts cannot expect to have or to retain respect for the rule of law? Thirdly, if the Minister agrees with those two previous questions, which seem to me self-evident, how can he justify increasing the cost of litigation to a level that will deny access to justice to a large number of people? The fourth question arises out of the terms of Section 92(3) of the Courts Act 2003, which states that in setting fee levels,
“the Lord Chancellor must have regard to the principle that access to the courts must not be denied”.
Does the Minister accept that principle? If he does, as I am sure is the case, how does he justify a fee of as much as £10,000 for the commencement of a civil action? If he does not accept that principle, how does he justify his retention as a Minister in the office of the Lord Chancellor?
Lord Phillips of Sudbury (LD)
My Lords, I thank the noble Lord, Lord Pannick, for tabling this amendment, which I believe is very important—although I note that only those who are speaking are present tonight. I declare an interest as the founder and president of the Citizenship Foundation, a national charity which seeks to prepare young people in our schools for the life they are to lead beyond them by giving them a broad and very basic understanding of the laws of our land. I am also a co-founder of the Legal Action Group, which is to this day a tower of strength in seeking to advance and protect legal aid. The group is fairly desperate about this order, I have to say.
I accept that it is extremely difficult for my noble friend to have to move the Motion on this order tonight. I know him to be as concerned about equal justice as anybody. I also readily accept that the Government have a lousy task in seeking to balance the national books in a way that does not cause mayhem all round. But having said all that, like others I believe that if ever the word “fundamental” is justified, it is justified in regard to protection of the rule of law and equal justice. I maintain that we cannot claim to be a proud democracy which upholds the rule of law when we know that so many of our fellow countrymen cannot access the laws that we in Parliament legislate for them. Knowing that as we do—there is no lack of evidence on that—it strikes me as being almost a case of defrauding the public for us to go on as we do, enacting legislation for which we make all sorts of claims while knowing that so many of our countrymen will not get near to exercising those rights. That is why all of us have spoken so passionately. We all know that the law is now so voluminous, hypercomplex and intrusive that to pretend that poor or middling citizens do not have need of access to lawyers and the courts is just cloud-cuckoo-land. Indeed, quite a bit of research has been done recently into citizens’ need for legal services and access to justice. That comes up with a figure of about one-third of the population being in that bracket.
I must also agree with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who very pertinently observed that we must all have been asleep when Clause 180 of the then Anti-social Behaviour, Crime and Policing Bill was enacted. This was an astonishing clause and I do not think that anyone in this House really had a go at it. Yet how can one conceivably agree to a principle that we make a profit out of justice? How can that have gone through this place? Indeed, I wonder whether it is a provision that could withstand oversight of the courts on human rights grounds, quite apart from those being advanced on behalf of the Law Society; I am very happy to see that my professional body is doing that.
Section 180 of the 2014 Act makes no reference to justice at all. Subsection (3) says that,
“the Lord Chancellor must have regard to … the financial position of the courts … and … the competitiveness of the legal services market”.
Subsection (6) says that the surplus made from increased fees—those parts of them that are intended to generate a profit—must go, as my noble friend Lord Marks said, to improving the efficiency and effectiveness of the system of our courts and tribunals. There is nothing to do with the justice of the system. At no point is there any reference to justice. It makes me wonder whether there might be some defect there in terms of basic law. I may have to reinstruct the noble Lord, Lord Pannick, as I used to about 40 years ago. I hope he will give me the same jolly opinion.
Reference has already been made to Magna Carta by a number of speakers. I do not propose to make further reference to it, but we must accept that the cuts in legal aid made last year have knocked one-quarter off the legal aid budget, I believe. The ones that we are dealing with now will affect huge numbers of claims. The scale of the problem is that there are currently 235,000 claims for possession every year; 370,000 money claims via the court are potentially caught by this order; and there are 160,000 general applications in other proceedings.
One aspect of the Government’s impact assessment really caught my eye. Other noble Lords have made reference to it, but not to this set of facts. In one of the consultation documents we learn that the consultation took place in December and January—over Christmas and the new year. Is that not well designed to have a maximum response? The first question in the questionnaire is:
“What do you consider to be the equality impacts of the proposed fee increases (when supported by a remissions system) … ?”.
How many people do noble Lords suppose answered that first, key question? Seventy-six. It is verging on the scandalous to undertake the measures in this order on the basis of 76 respondents. And how many of them thought that the equality issue was adequately dealt with? Less than half. So you have 30-odd people and organisations approving of the central measure which is the subject of this order tonight.
Assisted Dying Bill [HL]
Lord Phillips of Sudbury Excerpts(9 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
“Legal aid
Legal aid shall be available in respect of the application for the consent of the High Court (Family Division) in accordance with regulations made by the Secretary of State exerciseable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.”
Lord Phillips of Sudbury (LD)
My Lords, this is in the nature of a probing amendment. On the first day in Committee your Lordships decided overwhelmingly that a person may only obtain an order subject to the consent of the High Court, Family Division. You do not need to be a lawyer—I am a very long-in-the-tooth lawyer—to know that applications to the High Court of any sort are apt to be expensive. In respect of what could be an extremely tense, complex and contested application under the Assisted Dying Act, as it will be, the issues to be dealt with by a judge could be both numerous and difficult of deliberation. It is not impossible that members of the family might wish to be heard on such an application. At all events, I put it to the Committee that we cannot legislate on this important measure knowing that access to its provisions will be confined to the better-off.
Most people, particularly those lacking in confidence and articulacy, will not be able to bring an application of this sort without legal assistance. If they want to intervene in the proceedings, similarly they will not be able to do so without legal assistance. That of course means expense—sadly, very considerable expense. I therefore tabled this amendment with a simple objective, which is to make the Bill democratic and fair—a Bill of equal access—and I hope that it will commend itself to the Committee. I am well aware that there may be defects in its phrasing—
Lord Howarth of Newport (Lab)
My Lords, before the noble Lord concludes, he has indicated his expectation that the level of cost will be pretty significant. Can he give us in very broad terms an assessment of what the range of probable or likely cost might be?
Lord Phillips of Sudbury
The short answer is no. Lawyers charge very different amounts. A city lawyer charging £500 or £700 an hour is rather different from a country lawyer charging £100 or £200. It will also depend, as I said, on the complexity, but one is talking of thousands, not hundreds, of pounds. That is about the best I can do on that. However, as I said, I hope that the principle will commend itself to the Committee and that necessary changes to the drafting of my amendment can be dealt with prior to the next stage. I beg to move.
Lord Hunt of Kings Heath (Lab)
My Lords, I was rather taken aback by this being such a short debate. I very much welcome the noble Lord’s amendment. We discussed this matter at a little length on the first day of Committee. As he said, applications to the High Court in the circumstances of the Bill, if enacted, could, but not always necessarily, involve complex procedures. The noble Lord is not able to quantify the cost and that is entirely understandable. However, I recognise that for any Government there is then a problem in not knowing that potential cost.
On the first day in Committee, I thought that the Minister was reasonably sympathetic to the point. He referred to the LASPO Act, which has,
“an exceptional cases provision which deals with questions of the Human Rights Act and the convention requirements”.—[Official Report, 7/11/14; col. 1879.]
He said that that was as far as he could then go on the question of legal support. Without entering into any question of financial commitments, which will no doubt haunt both sides of the Committee, I just ask whether he can go a little further and become a little more sympathetic on this issue.
Lord Phillips of Sudbury
My Lords, I am grateful for the Minister’s helpful reply and for the intervention of the noble and learned Lord, Lord Falconer of Thoroton. I will consider this extremely carefully. I personally think that it would be appropriate and simplest if we were to have a provision in this Bill rather than having to set in train a completely new statutory instrument, with all the separate procedures that that would involve. I should be grateful if Members of the House, after reflecting on this short debate, would get in touch with me if they have a particular view on the options that are now presented to us. For the moment, I am happy to withdraw the amendment.
Baroness Symons of Vernham Dean (Lab)
The noble Lord mentioned that legal aid should also be available to members of the family and my noble and learned friend Lord Falconer made the same point. Would he take that view if members of the family were opposed to the wish of the person seeking assisted suicide? For example, if parents of a young person of 18 or 19 wanted to intervene, would his amendment cover the position of such parents?
Lord Phillips of Sudbury
I am grateful for that intervention. I think my answer is this. I speak with the experience in the early part of my career of having had a lot to do with family matters and of acting for a coroner. The sad fact is that applications under the Bill when it is enacted could be highly contested, especially in circumstances where a close relative believes that undue pressure is being brought on the person making the application and is convinced that the application needs proper airing before a judge. I know that doctors will give their opinions, but sometimes the facts are complicated. Members of the family will not be able to approach doctors to say, “For goodness’ sake, do you not know blah blah blah?”. One needs to make arrangements for legal aid in such cases. I am utterly convinced that it would be scandalous if we allowed this to go forward without making arrangements for people who cannot afford legal advice. I beg leave to withdraw the amendment.
Criminal Justice and Courts Bill
Lord Phillips of Sudbury Excerpts(9 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Faulks
My Lords, we turn to Part 4 of the Bill, and specifically the clause concerning procedural defects highly likely to have made no substantial difference to the outcome of a judicial review. I pay tribute to this House, and the expertise shown in many corners, which has been brought to bear on these clauses. We have heard from my noble and learned friend Lord Mackay of Clashfern, who brought his unrivalled experience to the debate. He referred to comments of a former Secretary of State, the noble Lord, Lord Adonis, who wrote in his book, Education, Education, Education:
“However, if Parliament was navigated quickly and unobtrusively, the same was not true of the courts. As soon as academy projects became public, opponents seized on judicial reviews as a means to stop them. Ultimately they failed, but only after years of lengthy, expensive and immensely distracting court actions”.
My noble friends Lord Horam and Lord Tebbit told us that judicial review does not exist in isolation and has an impact on projects in the real world that deliver employment to people and can significantly affect actual problems. There have, of course, been many contributions far less supportive of the Government’s proposals. For example, the House has heard from a number of distinguished judges with enormous experience of judicial review, including the noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Woolf. We heard from the noble Baroness, Lady Campbell of Surbiton, of the important role that judicial review can have when used properly.
Throughout, the Government have listened carefully—more carefully than some of our more trenchant critics suggest. The amendments that we propose in later groups bear, I hope, testimony to that. In the case of financial information we have proposed an amendment, despite having won a substantial victory in the other place. However, I must say to the House that on the matter of this clause the Government have not been persuaded that any amendment is required.
When used appropriately judicial review is an essential part of the rule of law, by allowing for the lawfulness of public bodies’ actions to be tested in court. But it is an area that has been misused, with claims brought with no real prospect of success, and with a view to delaying and adding expense to perfectly lawful acts that are simply disliked. Such challenges place significant burdens on the public purse and strike at the economic development that the country badly needs.
The Government want to restrict judicial review, not abolish it—I must emphasise that. Rather, we want to restrict it to cases that have real merit. Judicial review should not be used as a campaigning tool. It should be concerned with unlawful activity that has or is likely to have a real effect on outcome.
Clause 64 is intended to filter out claims brought on technicalities highly unlikely to have made a substantial difference to the claimant’s position earlier and at a lower cost. Your Lordships’ amendments would, in the Government’s view, undermine the clause. The elected Chamber rejected the House of Lords amendment, voting by 319 to 203 last Monday.
As this House amended it, Clause 64 would permit the court to refuse permission or a remedy where it was considered highly likely that a complained-of flaw would have made no difference to the outcome for the applicant. The Government’s formulation would require the judge to consider an argument that it was highly likely that a complained-of flaw would have made no substantial difference to the outcome for the applicant, and to refuse a remedy or permission where he or she was satisfied that the argument was made out.
Although the clause introduced duties on the court, it retained significant judicial discretion—primarily, of course, in deciding when the “highly likely” threshold is met in a particular case, and where the court is of the view that there is any significant doubt that it is, it can act as it thinks fit. Indeed, we have deliberately avoided defining “highly likely” in the statute, meaning that the judiciary will determine how it will apply in practice.
In the House of Commons, in speeches pitched against the Government’s original position and in favour of the amendment made by your Lordships’ House, it was said that we would be putting the judge in the position of the decision-maker. I simply fail to understand this point. The judge is not being asked to second-guess the decision of the administrative body; he or she is being asked simply to consider whether it is likely that there would have been a substantially different outcome if the impugned decision or the conduct had not occurred. This is very much judicial territory. Judges perform such assessments in all sorts of different circumstances.
The second point made in the House of Commons was that the judge would not be able to come to a decision without a mini-trial or dress rehearsal. I do not accept that point either. At the moment he or she will have to decide in appropriate circumstances whether it is inevitable that the outcome would have been unchanged. Now the bar is slightly higher but the process by which the judge arrives at the conclusion will be very similar, if not the same.
The noble Lord, Lord Pannick, referred to public interest. Of course, public interest plays a part in a number of different legislative provisions in different contexts. But we believe that the threshold established in this clause does best serve the public interest. It will ensure that judicial review cases that progress beyond permission stage are not purely academic and are not based on minor technicalities highly unlikely to make any difference. We therefore think that this strikes the right balance. Indeed, the House’s amendments to the clause could serve to undermine the intended effect, and underestimate the significant safeguards built into the clause as agreed by the other place.
There is a balance between imposing appropriate duties to ensure that these reforms have the intended effect and preserving the important role of judicial decision-making. I strongly believe that this clause gets the balance right between allowing judges to decide matters of judicial review and nevertheless providing appropriate safeguards to ensure that inappropriate and meritless judicial reviews do not proceed further. I beg to move.
Lord Phillips of Sudbury (LD)
Before my noble friend sits down, will he be so kind as to give a little more information about the underlying justification, as he puts it, for the rejection of this amendment? That is, he put it in terms of abuse of the judicial review process, technicalities, academic applications and so on. Has he any statistics or indications as to the extent of that abuse?
Lord Cormack
My Lords, I strongly support what my noble friend Lord Deben said in a truly remarkable, powerful and splendid speech. What he did not say—which I think that we can all say—is that the other place, of which I was proud to be a Member for 40 years, was misdirected by the Lord Chancellor. To misdirect a jury is not exactly a trivial matter but the Lord Chancellor has had the good grace and dignity to apologise. The fact is that the House of Commons made its decision having been wrongly advised and made it in a very short space of time. An hour was given up for debates on which your Lordships’ House had spent considerably longer.
Like my noble friend Lord Deben, I was somewhat concerned by the remarks of the noble Lord, Lord Beecham. He is not normally like that but he almost put me into a position where I could do no more than abstain. I say to him that no party has the monopoly over upholding the rule of law. I am inclined to vote for the amendment in the name of the noble Lord, Lord Pannick, because I am a Conservative and because, like my noble friend Lord Deben, I am proud of the part that the Conservative Party has played over the centuries in upholding the rule of law.
I say also to all my colleagues on these Benches that this is not a question of party loyalty or disloyalty. I was in the other place for the whole of the 16 years that my noble friend Lord Deben was a Minister. Of course, I was not a Minister for any of those years and frequently found myself at odds with things that the Government proposed. On a number of occasions I voted accordingly because I always tried to uphold the dictum that one’s order of priorities as a parliamentarian in the other place is country, constituency and party. In your Lordships’ House, we do not have constituency responsibilities but we do have national responsibilities.
If we believe that something is being done that is not in the national interest, we have an absolute duty to speak and to vote accordingly. If this House has any point or purpose—I echo in slightly different words something said by my noble friend Lord Deben—it is to say to the other place, “You have, we believe in all humility, got it wrong. Please, please think again”. We did that last time and the other place did not. It did not think again because it was wrongly advised by the very man who should have been advising them correctly.
Therefore, we have every right this evening to say, “Please reconsider and take a little longer in reconsidering”. We are not talking about the convenience of governance or about narrow party advantage, we are talking about something that is fundamental to the survival of a parliamentary democracy and to the rule of law. I very much hope that my noble friend the Minister, for whom we all have real regard, will be able to say something that will satisfy us, but I am bound to say that I am not overoptimistic. If he does not, I shall have no alternative but to go into the Lobby behind the noble Lord, Lord Pannick.
Lord Phillips of Sudbury
My Lords, when I intervened on the Minister and asked for the evidence or indications to underpin the need for this amendment, he, as the House heard, declined to give the same. It was important to add evidence or indications. I perfectly accept that a lot of the matters with which we are dealing in this amendment cannot be susceptible to simple adding or subtracting.
I want to make one point. I believe that we live in a time of democratic crisis. The public are voting for UKIP and, to some extent, they voted in droves for Scottish independence because there is a real breakdown of confidence in the main parties. We all know that there is a breakdown of trust in the great institutions of our state, in business and in us. We cannot brush aside the expenses tragedy of a few years back as if it is all forgotten and done with. It is not. I went to Clacton and canvassed. My goodness, it is not. There is a breakdown in trust. Of all the times to bring in a provision as contained in Clause 64, this is absolutely not the time.
Surely it is a simple point that the one thing that controls and contains any Government, however strong or however wrong, is the instrument of judicial review. I do not think that it is justifiable at all to reduce the extent and power of judicial review to any extent. That is the rule of law. If the proposal were to be brought forward, it surely could be brought forward with any semblance of decency only if the evidence for the need for it—the essentiality of it—was abundantly plain. We all know that it is absolutely as miles from that as it could be.
I am completely persuaded that there is only one thing to do tonight. I regret voting against a heavy whip but sometimes we all know that we have to do that, which is what this House is here for. I say again, we cannot take the step proposed by the Government to reduce the extent and power of judicial review.
Lord Horam (Con)
My Lords, perhaps I may add an element of balance to this debate, although balance may not be exactly the right word since I probably am the only person who is going to speak in support of my noble friend the Minister in order that the debate may be not wholly, completely 100% unbalanced but a little bit balanced. I want to explain to noble Lords what worries us. I am not a lawyer so I cannot comment on some of the technical points that have been made. I am worried that there is considerable abuse of judicial review.
My noble friend Lord Deben—who was kind enough to say on a previous occasion that we have never disagreed on anything even when we were in different parties, which is largely true—said, in relation to the example brought forward at the beginning of the Minister’s speech, that it was not very convincing. I remind the House of the example which is, I think, shocking and a defining example of how judicial review can be abused. That point is made by the noble Lord, Lord Adonis, in his book, Education, Education, Education. He wrote:
“As soon as academy projects became public, opponents seized on judicial review as a means to stop them. Ultimately they failed, but only after years of lengthy, expensive and immensely distracting court actions, mostly funded by legal aid with the real opponents—the National Union of Teachers and anti-academy pressure groups—masquerading as parents too poor to afford to pay legal fees”.
That is an example of some years ago.
My understanding is that that is happening today not only in education but in rail. For example, the Government have already had to spend £460,000 in outside legal fees to defend the judicial reviews against HS2. I am aware of judicial reviews in regard to roads. Development was rather scoffed at by the noble Lord, Lord Beecham, but in many instances it means housing projects and we need more housing in this country.
Social Action, Responsibility and Heroism Bill
Lord Phillips of Sudbury Excerpts(9 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Beecham (Lab)
My Lords, the prisons are in crisis—understaffed, overcrowded, with a rising incidence of self-harm and suicide. The judiciary complains of the difficulty, delay and cost caused by the increase in unrepresented litigants denied legal aid. The magistracy is greatly concerned about the decline of local justice, exacerbated by court closures and the increasing reliance on professional district judges. An untried and risky change in the probation service is under way, beset by the loss of experienced staff and reports of confusion and disorganisation. The Lord Chancellor’s response is what can only be described as another Grayling gimmick.
Two years ago, the Lord Chancellor celebrated his arrival in office by pitchforking unnecessary provisions into the then Crime and Courts Bill, supposedly to protect householders from prosecution if they used force to defend themselves or their property from intruders. It would be interesting to learn in just how many cases that measure has been invoked. This autumn, we have a five-clause, 20-line, one-page Bill—one of the shortest on record—designed to meet another non-existent problem: the unfair or, alternatively, chilling effect of the so-called compensation culture on those who might face a claim for compensation for negligence or breach of statutory duty while,
“acting for the benefit of society or any of its members”.
From bash a burglar to hug a hero in two years.
Such was the significance of the Lord Chancellor’s proposed measure that of the 18 witnesses he invited to give evidence in support of the Bill, only five bothered to turn up. Two of those were fire authorities. The Greater Manchester fire authority was particularly exercised by the fact that it had faced two claims for compensation by people who had tripped over fire hoses in the vicinity of an accident. Quite what difference the Bill would have made to the outcome of such a curious claim is unclear. Perhaps the Minister would care to elucidate.
By contrast, all five witnesses invited by the Opposition attended. One of them, representing the Law Society, was treated to a most discourteous and offensive attack by the Minister, Mr Vara, who is clearly a graduate of the Eric Pickles political charm school. His performance only underlined how fortunate we are to have the Ministry of Justice represented in this House by the noble Lord.
The Second Reading debate occupied all of an hour and a half, with two Back-Bench speeches, one—as we have heard from the noble and learned Lord, Lord Lloyd—by the distinguished former Conservative Solicitor-General, Sir Edward Garnier. The Lord Chancellor did not condescend to stay for any speeches, even Sir Edward’s. He did not even extend the courtesy of staying to hear Sir Edward speak on Report and at Third Reading. Perhaps he anticipated the forensic dissection of this flimsy foray into legislative vote-catching. Not a single government Back-Bencher spoke in the debate in Committee.
The Bill starts with the premise that volunteers are deterred from helping individuals, or society as a whole, for fear that they might be sued if things go wrong because of the alleged compensation culture which insurance companies and the media constantly denounce. There is very little evidence to support that claim. Even the noble Lord, Lord Young of Graffham, who is not in his place—that ermine-clad St George, constantly in search of regulatory dragons to slay—observed that the so-called compensation culture was more a matter of perception rather than reality. As the noble and learned Lord, Lord Lloyd, has pointed out, that view was explicitly shared recently by Lord Dyson, the Master of the Rolls.
The irony is, of course, that banging on about a compensation culture is itself likely to create the very apprehension that the Bill purports to allay. The reality is that anyone seeking compensation has to prove, on the balance of probabilities, that the defendant has been negligent—that is, to have failed to take reasonable care—or in breach of a statutory duty, and that that has caused the damage that is the subject of the claim. Nothing in the Bill displaces that test and nor should it. If, as a result of my careless driving, a third party suffers injury, why should the fact that I may have been engaged in some voluntary service—perhaps taking an overexcited Minister to a therapy session, for example—in any way affect that third party’s right to compensation, even if he was my passenger?
The position was well summarised by the Minister, Mr Vara, in the Public Bill Committee:
“Nothing in the Bill suggests that it gives immunity from civil liability. It also does not change the standard of care that is generally applicable. That is and remains what the ordinary and reasonable person should have done in the circumstances. The Bill simply requires the court to have regard to certain factors in deciding what steps should have been taken to meet that standard of care in a particular case. It does not tell the court what conclusions to draw or prevent a person from being found negligent if the facts of the case warrant it”.
In which case, one might ask, what is the point of the Bill? He went on to muddy the waters:
“In a finely balanced case, if the court’s consideration of these provisions tipped the balance in favour of a defendant who had acted for the benefit of society, demonstrated a generally responsible approach towards the safety of others … or intervened to help somebody in an emergency, we would welcome that outcome”.—[Official Report, Commons, Social Action, Responsibility and Heroism Bill Committee, 9/9/14; col. 63.]
I suspect that the welcome would not be shared by the injured party, particularly if it allowed the insurer of the defendant—if he or his employer was insured—to avoid paying compensation.
Moreover, the courts would have to engage with interpreting the wording of the Bill, which, to put it mildly, is highly problematic. Take Clause 2, which requires the court to,
“have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting for the benefit of society or any of its members”.
How would one define “the benefit of society”? Would that proviso protect somebody who negligently inflicted injury while acting for the benefit of a “member of society” who happened to be doing something inappropriate or even criminal?
Clause 3 is similarly opaque, with its reference to its requirement for the court to,
“have regard to whether the person … demonstrated a generally responsible approach towards protecting the safety or other interests of others”.
What on earth constitutes a “generally responsible approach”? As the General Secretary of the Fire Brigades Union—the members of which risk life and limb daily to protect the public—put it,
“the question of how an employer deals with … situations is not a matter of the general perception of their responsibility … The question of the employer’s general responsibility … comes down to the specifics of how they have planned, prepared and resourced the particular incident”.—[Official Report, Commons, Social Action, Responsibility and Heroism Bill Committee, 4/9/14; col. 21.]
To cap it all, we have Clause 4, “Heroism”, which appears to be the stuff of Greek legend or the annals of Boy’s Own Annual. The court is solemnly charged with the duty of having regard to whether,
“the person was acting heroically by intervening in an emergency to assist an individual in danger and without regard to the person’s … safety or other interests”.
We all salute those who risk life or limb to rescue others, whether they do so as part of their job—as fire or police officers, for example—or simply as courageous citizens, like the recent tragic case of the doctor who died trying to save others from drowning in the seas off Cornwall. But where is the evidence of claims for damages by the subjects of such brave and selfless interventions against those endeavouring to help them? For that matter, where is the evidence that the present state of the law deters such brave responses to emergency situations? And what, after all, constitutes an heroic intervention?
There is another aspect of this defective Bill which causes concern; namely, the possibility that references to breaches of statutory duty imply a potential defence for employers, or perhaps for those with other statutory duties—for example, in the realm of care—for acts which cause damage or loss. Perhaps the Minister could clarify the Government’s intentions in this respect, assuming of course that they are conscious of having any.
If, as I hope, the noble Lord can confirm that the Bill is not intended in any way to diminish the existing protection to employees or others, we are left essentially with a Bill which is designed to send a message to volunteers—a message to counteract the possible, but unproven, effect on volunteering of a reaction to the compensation culture mythology which the Government sedulously peddle on volunteering. This would in effect merely echo, as we have heard from the noble and learned Lord, Lord Lloyd, the provisions of the Compensation Act 2006—a well intentioned but, I have to say, not particularly compelling piece of legislation on somewhat similar lines but without the surrounding hyperbole or loose phraseology. It is hardly surprising that the Delegated Powers Committee says:
“There is nothing in this Bill”—
although, in all fairness, it did go on to say,
“which we wish to draw to the attention of the House”.
The Explanatory Notes to the then Compensation Bill declared that it was intended to,
“contribute to improving awareness … of the law … and to ensuring that normal activities are not prevented because of the fear of litigation and excessively risk-averse behaviour”.
However, importantly, they also went on to stress that the provision did not alter the standard of care or the circumstances in which such a duty is owed, and they explicitly affirmed that it did not extend to cases of breach of statutory duty involving strict liability or where carelessness was not an issue. Moreover, the notes stated that the,
“provision reflects the existing law and approach of the courts as expressed in recent judgments”.
In other words, the legislation was, in effect, otiose, and this proposed legislation is doubly otiose.
Sir Edward Garnier spoke powerfully both at Second Reading and on Report. He detected in the Minister’s speech during the Queen’s Speech debate in your Lordships’ House some lack of enthusiasm in relation to this measure. Is the Minister able, in the light of the vestigial information contained in the impact assessment, to reply to Sir Edward’s inquiry as to how many High Court or county court actions would have been decided differently if this Bill had been in force?
Sir Edward’s speech was a devastating critique of the Bill. He declared:
“I really do think that the courts will treat this Bill with derision … unless we are clear … that we are doing something to improve the situation in an intellectually sustainable and coherent way. I sincerely regret the fact that so far this Bill does not do that ... I am used to bits of Bills sending messages and signals—albeit that that is an improper use of legislation ... We do not think about what is in the legislation; we just think about the flags we are running up the flagpole in order to send a message”.—[Official Report, Commons, 20/10/14; col. 697.]
It will be gathered that the Opposition are not enthusiastic about this Bill. My right honourable friend Sadiq Khan, in winding up the Third Reading debate in the Commons, observed:
“The Bill will change little, but we will not oppose it today. We tried in Committee to make something of it, and it will now fall to the other place to attempt to give it purpose”.—[Official Report, Commons, 20/10/14; col. 705.]
The noble and learned Lord, Lord Lloyd, feels very strongly about the Bill. He regards it as trivial and I have to say that I agree with him. However, when it comes to seeking to defeat a Bill at Second Reading, the House is traditionally cautious. I recall the two Bills that the noble and learned Lord referred to—their passage through this House occurred in the four years that I have been here. In particular, I recall the Health and Social Care Bill—a major piece of legislation affecting a huge swathe of public services and for which neither of the governing parties had made any kind of provision in their manifestos. It did not seem unreasonable on that occasion for the Opposition to move that the Bill be not read a second time.
Frankly, I do not think that a Bill as trivial as this should attract such an amendment and we will not support it. It gives a trivial Bill far too high a profile for its contents, but also it is not, in my submission, necessary to deal with the Bill in that way. If the noble and learned Lord, Lord Lloyd, divides on it, I will advise opposition Members to abstain. We will endeavour to make some modest improvements to this Bill in Committee. Even if we succeed in those, frankly, it will add little to the state of the law, but in my judgment that is a better process for us to follow. Indeed, in his speech, Sir Edward Garnier called on the House of Commons—mainly, as it turned out—to introduce,
“a degree of common sense into … the … Bill before the other place gives it a thorough grilling”.—[Official Report, Commons, 21/7/14; col. 1204.]
Let the grilling commence.
Lord Phillips of Sudbury (LD)
My Lords, I agree word for word with what the noble and learned Lord, Lord Lloyd of Berwick, said in moving his amendment, and indeed with what the noble Lord, Lord Beecham, has just said.
Lord Pannick (CB)
May I remind the noble Lord that there is a list of speakers in this debate?
Lord Pannick
There is a list of speakers and next on the list is the noble Baroness, Lady Browning, who is expecting to speak.
Criminal Justice and Courts Bill
Lord Phillips of Sudbury Excerpts(9 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Deben (Con)
My Lords, many cases have been put before us in these debates in which we have argued the facts. We have disagreed about whether particular measures will have this or that effect. This is not the same kind of discussion. I can see that we could have quite a lengthy discussion about the access to our courts of foreign nationals and the cost to the nation of that.
However, that is not what I want to argue here. I want to argue something that is more serious because it is not a matter of opinion but of behaviour. If a responsible Minister has made an undertaking about a law and that has been accepted by the House, if that undertaking is to be changed, it must be changed in front of the House in circumstances in which the House can make a decision. I am a bit tired of the constant statement by Ministers that there is the affirmative resolution procedure, as if that made any real difference. We all know perfectly well that the system that we have means that there is very little effective parliamentary control over legislation that is passed by those techniques.
If Parliament has been assured by a Secretary of State that a particular situation pertains, it is morally unacceptable that some other Secretary of State can reverse that without Parliament being able to argue the case. I say that as somebody who may not have gone all the way along with some of the arguments about access to justice for people wherever they come from and the rest. I certainly have some concerns—I think many Members of the House have concerns—about the way that our system has been used in the past. I certainly have a real concern about the exclusion of children; I agree with the noble Lord opposite on that. However, that is not the issue for the House today. That is why I am very sorry that we are debating it so late, at a point when the Opposition have decided that it is perfectly possible to send all their people home. Some people might ask why people thought that they would have an early night when matters of real importance—this amendment and the previous one—were being discussed. I think that many will ask that question.
The Government and the Minister need to stand up and explain to the House how it is possible, in a democratic society, for a Secretary of State to give an undertaking to the House as to what a Bill means and for that then to be changed without an opportunity for debate in the House. That is a really serious issue and not one of an ordinary kind. Although we will not vote on this, because one can see the nature of it, I hope that the Minister will take back to his colleagues that this is not a debate of the same kind that we have had up to now. It is a serious issue because people must trust the words of Ministers when they speak officially. I was a Minister for 16 years and I do not think that I can remember a moment when I would have reversed the public statement of a predecessor without giving an opportunity for that debate to take place publicly and clearly. On this occasion, the House has every reason to say that this is not good enough.
Lord Phillips of Sudbury (LD)
My Lords, in 1949, when the Legal Aid and Advice Act was brought in, the state of affairs in this country was radically different for the ordinary man and woman in the street from what it is now. I speak in terms of legal services and the availability of the same. In 1949, after the Legal Aid and Advice Act was passed and the scheme introduced, 95% of all law firms in the United Kingdom undertook legal aid. I can assure your Lordships that every single one of those firms would have done a great deal of pro bono work in the communities that they served. Indeed, not to have done so would have been a deathblow to their local reputation and workflow.
In the interim, everything has changed in that regard. Today, the number of firms doing substantial amounts of pro bono work and which are therefore available to the bemused citizen has, I am afraid, shrunk to a very small number. Indeed, the irony is that the bigger and richer the law firm, the less pro bono work it does. I speak as president of the Solicitors Pro Bono Group, or LawWorks as it is commonly known. In the mean time, the volume of legislation that we pass in this place has rocketed. Indeed, it is ironic that LASPO, the Act that underpins these amendments—I am speaking particularly to Amendment 176—is 302 pages long, is complex beyond measure and has rather more pagination than the entire statutes of 1906, which I had cause to look at the other day. Our output is something in the order of 13,000 to 15,000 pages of statute law a year, with only 2,000 or 3,000 pages of repeals. The problem for the ordinary citizen in terms of the law, access to the law and getting help and assistance when they desperately need it has never been remotely as great. Indeed, it is one factor in this strange mood that prevails in our country today—a mood of disillusionment and mistrust.
The amendment is absolutely essential. Make no mistake, judicial review is more and more important in the world that we inhabit, precisely because of the astonishing complexity and volume of the law with which we are surrounded and the need, therefore, to enable citizens and organisations to have access to the courts for judicial review when it is needed. One might think that JR cases are rocketing, but according to the report of the Joint Committee on Human Rights in April this year on the implications for access to justice of the Government’s proposals to reform judicial review, that is not the case. That may be surprising, but I suspect it has as much to do with the lack of pro bono availability —although there are some wonderful exceptions—and the legal aid position as is. The proposal in Amendment 176 to prevent a future Lord Chancellor from imposing further eligibility criteria or restricting the scope of legal aid without coming back to Parliament must be right. I hope that the Minister, for whom I have great respect, will see the importance of this.
Access to justice is surely the ultimate hallmark of a democratic society that is working. We as a Parliament do not walk our own talk unless, as well as passing these tidal waves of legislation, we make available to the citizen the means of accessing that legislation when needed. Otherwise, frankly, we are hypocrites and aiding and abetting a society in which money wealth is ever more dominant. Where justice is concerned, that must surely be wholly unacceptable.
Lord Faulks
I am not talking about the residence test at all. I shall come to that shortly, but it is a different issue. Noble Lords are perfectly entitled to ask me questions about it at that stage. I am talking about the suggestion that—regardless of the residence test, which is a separate issue that I shall come to later —the provisions on legal aid for judicial review in some way breach an undertaking that was given to Parliament. That seems to be the burden of what is being suggested.
The power to make changes in the future should not be unnecessarily constrained as proposed. Any changes made to scope, under Section 9, and eligibility, under Section 11, are subject to the affirmative procedure, ensuring full parliamentary debate as appropriate. I am sorry that the affirmative procedure is not considered to be as satisfactory as primary legislation. Nevertheless, it remains a proper way to bring such matters before Parliament.
As I said in Committee, making such changes by primary legislation would be a cumbersome process and a disproportionate use of this House’s time. It would stop the Government of the day making necessary changes without primary legislation, even where change was necessary to ensure that the provisions remained up to date. The House may possibly remember—the noble Lord, Lord Pannick, may well remember—that during the passage of the previous Bill, certain noble Lords, of whom I was one, were anxious that the power should include both improving and increasing the scope of legal aid, if it was considered appropriate, and that became part of the LASPO Act.
Lord Phillips of Sudbury
I am sorry to interrupt my noble friend, but does he not accept that the procedure of dealing with changes via statutory instrument offers no protection whatever? There is no power to amend a statutory instrument; one can only reject it. I simply ask my noble friend: when did this House last reject a statutory instrument?
Lord Faulks
I am unable to answer that specifically. I am afraid that I do not know. I accept that there is a difference in the process, and I am sure that rejection is very rare indeed. However, that does not mean that a statutory instrument is not scrutinised. It is scrutinised, but there just happens to be a different method of scrutinising it—as my noble friend knows only too well.
Furthermore, there is no basis on which to distinguish judicial review from other, equally important, matters for which civil legal aid is available by necessitating primary legislation for such amendments. The approach envisaged by LASPO remains appropriate and effective, ensuring that any restrictions—indeed, any changes to eligibility or scope—whether technical or major, will get the scrutiny they require, but this should not necessitate primary legislation.
Finally, the amendment would have the serious effect of annulling any previous instruments made under Sections 2 or 9 of LASPO that restrict eligibility for, or scope of legal aid for, judicial review, including the provisions of an order debated and approved by Parliament in 2013 to ensure that the exclusions relating to judicial review agreed at the time of LASPO function as Parliament intended. Noble Lords will recall that the relevant amendment made under the 2013 order, which made it clear that legal aid for judicial review is governed by paragraph 19 of Part 1 of Schedule 1 to LASPO—and not any other provision—passed without opposition. The effect of the noble Lords’ amendment would be to annul the provisions for judicial review within the 2013 order, undermining the intention of Parliament.
Assisted Dying Bill [HL]
Lord Phillips of Sudbury Excerpts(9 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Phillips of Sudbury (LD)
My Lords, like other noble Lords, I thank those who have brought this Bill before us. I particularly thank the noble Lord, Lord Joffe, who has been the hero of this cause for more years than it would be polite of me to mention. He is still with us and still giving us the benefit of his advice. We must also thank the noble and learned Lord, Lord Falconer, for having taken on leadership of this cause. Like other noble Lords, I thank the extraordinary number of people who have written. I do not know about other noble Lords, but I expect all of us have had extraordinarily moving letters—not Cyclostyle letters with just a name at the beginning and a name at the end, but very particular, individual and moving letters. I am sure they have moved all of us and given us more wisdom and determination to scrutinise this Bill in subsequent readings to make sure that if it goes though, it goes though in the best possible form.
I should say very briefly that at the beginning of my legal career, a long time ago, I was a coroner’s officer for many years and sat occasionally as a coroner. I was also a family lawyer and worked for 10 years for the Samaritans, so one way or another I have seen quite a lot of the pressures of life, suicide and all the rest of it, and that very much affects my view now.
This is without question an epochal Bill and, because it is genuinely that, I suspect that the public have never been more interested in what we are talking about and the way we are talking about it. The fact that it is so fundamental a change brings out the cautious side in me and in many noble Lords.
The other thing that must be made clear is that there are no perfect answers. Quite a lot of the speeches today—and how wonderful they have been—have implied that there is a perfect answer one way or the other, but there is not. As a long-in-the-tooth lawyer, I can assure noble Lords that this is a heck of a messy terrain and there is no conceivable way of wrapping it up neatly so that it is waterproof and watertight. It is impossible. In the end you have to come down more on one side of the answer than on the other; more on safety and caution, perhaps—I do not know because it is not the right language. There is no competition in compassion either. I am sure that we have all been moved by the plight of people. I will not name those who have spoken, but we have heard some extraordinary examples of that plight this very day.
I would also like to say that whether or not one kills oneself is not an individual decision. It is surely one of those situations that John Donne would have been thinking of when he said:
“No man is an Island, entire of itself”.
There is no conceivable way that me killing myself is just for me. It is not just a question of the repercussions for one’s family, there are repercussions for society as well. I have to admit that I am very concerned about that because of the pressure that will inadvertently be brought to bear on vulnerable people if this measure goes through. It is absolutely certain to happen, and I believe that it will happen often. I do not think that we should pretend that by tinkering with the language we can overcome that problem because it is huge.
I want to say a brief word about the context in which we are discussing the Bill; it is one that is in marked contrast to Oregon. We are not a nice country state; we are an urbanised, mobile and materialist culture in which loneliness and distress are rampant. They play straight into the argument vis-à-vis pressure on individuals when they feel that they are offending their relatives, outliving their days, or whatever else it might be. I believe that the status quo is actually not bad. The DPP has made it clear that he deals with things personally; I think that we have had only one prosecution. We therefore should not assume that we can easily improve on that.
Finally, the onus in this great debate should surely be on the movers of the Bill to satisfy the House that the fears which have been expressed and the anxieties that are felt can be better dealt with by this legislation than by the status quo.
Justice: Cautions
Lord Phillips of Sudbury Excerpts(10 years, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Faulks
I am sure—as was the Minister who previously answered Questions—that there is a great deal to be learnt from Scotland. Should the opportunity arise, I will certainly take advantage of it.
Lord Phillips of Sudbury (LD)
Might the decline in statistics—I hate even to question it—be down to the almost complete absence of the bobby on the beat?
Lord Faulks
I do not accept that. The use of cautions is widespread. One of the reasons we are making absolutely clear on the statute book the circumstances in which cautions should be used is that it will enable local scrutiny of the use of cautions. Indeed, this will enable the much maligned police commissioners to look at the figures, to be answerable to the community and to ensure that the statistics remain at a satisfactory level.
Social Welfare Law
Lord Phillips of Sudbury Excerpts(10 years, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Gold (Con)
My Lords, I am most grateful to be allowed to say a few words, even though I am not on the speakers list. May I first—
Lord Ahmad of Wimbledon
If the noble Lord could take his seat. If both noble Lords intervene for just two minutes we should be able to fit both in. I was certainly not informed that the noble Lord, Lord Phillips, intended to speak.
Lord Gold
I will be as quick as I can be. I commend the noble Lord, Lord Low, and his team for producing such a thoughtful report. I also congratulate the right reverend Prelate the Bishop of Peterborough on an excellent maiden speech.
Although I accept, of course, that LASPO has reduced the scope for legal aid, it is not a new problem that there is a gap between what legal aid will support and the needs of those who have claims or grievances. One has to draw the line somewhere and there will always be deserving cases that cannot attract funding. The reality, as we all know, is that there is a finite fund of money available. The report identifies a number of ways in which this problem might be addressed, including recommendations for further government funding. The Minister will, no doubt, tell us what government support there might be for the Low funding proposals, including the Government’s view on taxing pay-day lenders. However, at a time when the Government are still looking to cut expenditure, I am not optimistic that further funding will be available. I would therefore like to propose that much more might be done by the private sector on a voluntary basis.
Now that I am no longer part of a large legal firm, I feel better able to offer others assistance. Paragraph 8.19 of the report rather delicately suggests that law firms might consider offering some funding support. I would suggest another course, similar to that suggested by the noble and learned Lord, Lord Hope. Solicitors’ firms which undertake litigation work have been concerned for some time that, in training their young solicitor advocates, they have not been able to find sufficient cases where they can develop their skills. I know that all large firms encourage their solicitors to undertake pro bono work and a great number of legal advice centres are part-manned by young solicitors wanting to put something back into society. That could easily be extended to provide much assistance in both advisory work and, where necessary, through court advocacy, by tapping into what I think would be a willing resource. Many sets of chambers would welcome such an initiative and I am sure that the Bar and Law Society will support that.
I know that the Low report suggests that it is unrealistic to consider that pro bono help could replace publicly funded legal help, particularly as the laws and regulations can be complex. However, it is the lawyer’s stock in trade to run with something new and complex, and I have no doubt that there are sufficiently talented young lawyers around willing to help that those requiring assistance may well find themselves better represented than they might otherwise have been.
Lord Phillips of Sudbury
My Lords, I join others in congratulating the right reverend Prelate on his maiden speech, which, if I may say so, was wonderfully down-to-earth. I encourage him to go on doing God if he can relate the good Lord so closely to what I suspect most of us feel.
I congratulate the Legal Action Group on instigating the Low commission. I should declare an interest as one of the founders and first chair. Above all, of course, I identify myself with the congratulations to the noble Lord, Lord Low. It is a formidable piece of work in a relatively short space of time. I wish the commission as much success in pushing forward the 100 recommendations as in putting them together.
I shall concentrate on the first of the six overarching recommendations in the report. I refer to public legal education which, the report states, should be given higher priority both in school and in education for life. I fear that I shall be a bit tetchy as we have so many fine words emanating from this place and so many fine pieces of legislation hitting the statute book. Indeed, we are inundating the people of this country with laws with almost the same effect as the floods in the Somerset Levels. The truth is that so much of what we do with the best intentions ends up unimplemented, misunderstood or not understood at all. The provision of education in schools is declining and not improving. Citizenship education is not part of the inspected curriculum. It is part of the curriculum overall but it is not inspected by Ofsted. Citizenship does not have to be taught at all by academies and free schools—roughly half of schools. The number of teachers training to teach citizenship is declining rapidly, as is the number of pupils taking citizenship. That is down to 2% for GCSE citizenship and only 8% for the half GCSE. The situation could not be worse.
Section 1 of the Legal Services Act 2007 states that there should be a regulatory objective of,
“increasing public understanding of the citizen’s legal rights and duties”.
That is honoured in the breach. The citizens of this country are falling further and further behind what we legislate in their name and, often, for them as individuals. We kid ourselves unless we own up to that and put as much energy and enthusiasm into implementation of the excellent ideas behind the report as we have put into this debate.
There is so much to do to give, in particular, the poorest and least capable any sense of what is available for them by way of the law. I entirely agree with the comments made about the crucial, essential need for advice on where it is most needed. We are hypocrites if we do not ensure that. Again, I commend the noble Lord, Lord Low, and his excellent commission and hope that this is a beginning, not an end, a determination, not an elegant manifesto.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I begin by congratulating the noble Lord, Lord Low, on securing this debate and restating my belief, and the Government’s belief, in publicly funded legal services as an integral part of the justice system. All speakers have made valuable contributions to this debate but I am sure that noble Lords will forgive me if I single out the right reverend Prelate the Bishop of Peterborough for his excellent maiden speech. It is clear from his description of the wide variety of people and situations which he encounters in his diocese that he will be able to bring many valuable insights into our debates. I am very glad to welcome him.
Notwithstanding the Government’s continued commitment to the justice system, any discussion on legal aid funding must focus on the spending that taxpayers fund and must recognise the financial realities we continue to face. As noble Lords are aware, legal aid was introduced more than 60 years ago. It has expanded very considerably in scope to become, arguably, something it was never intended to be. The Government were, until recently, spending scarce resources—in effect rather encouraging people to take their problems straight to court rather than trying to achieve successful and often enduring resolution of disputes in different ways.
The Government were forced therefore to take a fresh look and did not embark on the reform programme lightly. However, the fiscal challenge and the spending review settlement required all departments to look critically at where they were spending money, the effectiveness of those interventions and whether they could continue to be justified. A conscious decision was taken, following the public consultation that led to the LASPO Act, that spending the limited taxpayer funding available to the Ministry of Justice on social welfare law matters, when the majority of problems in this area did not require legal expertise to resolve, could not be justified. This and other difficult choices were scrutinised, amended and debated by Parliament after a thorough and wide-ranging public consultation.
People do not always need lawyers in cases involving divorce, employment, education disputes and debt problems, and courts should be a last resort rather than a first one. These are the types of problems that can and should be resolved before tribunals or similar bodies, which are designed to be accessed by unrepresented individuals. However, with the introduction of the LASPO Act—and this is often forgotten—we safeguarded legal aid to ensure that it was targeted to those who needed it most, for the most serious cases, in which legal advice or representation is justified.
We estimate that following the introduction of LASPO around £50 million will still be available in legal aid for social welfare law, which will fund community care and other high-priority debt and housing cases. For those who need or choose to go to court, but who fall outside the scope of the legal aid scheme, there are other resources available in other forms. There are a diverse range of services available that recognise and match the differing needs of individuals, helping them to navigate the system and resolve their problems. I accept that the challenge is to ensure that relevant services continue to be available in a sustainable way. We have seen industries innovate and modernise to address changing needs and environments. It is essential that the advice sector does so too. The noble and learned Lord, Lord Hope, spoke of the increased use of technology. There is also the support for legal initiatives. My noble friend Lord Gold referred to pro bono contributions from young solicitors.
However, the Government have recognised the various pressures that the not-for-profit advice sector would face, as different funding sources were affected as a range of organisations reviewed their funding positions in the light of the changing fiscal environment. That is why the Cabinet Office led a review looking at the long-term sustainability of the not-for-profit advice sector. The Advice Services Review report, published in October 2012, acknowledged that the Government have a role in supporting the sector to adapt to the new funding realities but also made it clear that advice providers would need to take the initiative and change the way they work, adopting often a more collaborative approach with partner organisations across the sector to ensure the long-term sustainability of supply.
In fact, the Government did not wait for the outcome of that report. Since 2010 the Government have provided significant additional support over and above their usual funding to a range of front-line advice organisations such as Shelter, CABs and law centres that provide direct advice to clients on matters such as social welfare law, to help them adapt and make the transition to the new funding climate. This includes providing half of the £68-million advice services transition fund, launched in November 2012 and administered by the Big Lottery Fund, which was referred to by the noble Lord, Lord Low. This fund has provided a total of 228 grants of between £50,000 and £350,000, which are specifically available during 2013-15 to help the sector to address immediate need and help to strengthen organisations for the demands that lie ahead.
The Ministry of Justice itself has worked collaboratively with relevant partners in the sector to ensure that clients continue to be supported even after the introduction of LASPO. In the lead-up to the introduction of LASPO, the MoJ developed a targeted communication strategy to raise awareness of legal aid changes and, in particular, to signpost clients not eligible for legal aid to relevant alternative sources.
My officials also worked closely with other government departments, legal aid providers, advice organisations and relevant third-sector partner organisations to raise awareness and enable them to provide effective information about legal aid changes themselves and details about alternative sources. As part of this, we developed and introduced a new and simple online service. Those words are easy to utter but, having actually tried out this service, I can confirm that it is genuinely simple and can be accessed by those who are not sophisticated in these matters. It is considerably simpler than, perhaps, buying an air ticket from a budget supplier. People can check whether they might be eligible for legal aid. Where they might not be, this service will signpost them to alternative sources. To date, over 194,000 clients have used the site to look for assistance, and we continue to work with legal aid providers and advice organisations on improving awareness.
I turn to the excellent report itself, provided by the noble Lord, Lord Low, and his committee. I have read it with great interest. There are a number of important factors about it. I particularly applaud that it does not simply seek the reinstatement of the status quo ante but rather explores a range of different possibilities. It will be a considerable source of assistance to all the parties as they prepare for the election. The colleague of the noble Lord, Lord Beecham, Andy Slaughter, has said that he will be mining the report for ideas. I know that there have been meetings at No. 10 and that there the noble Lord has met my ministerial colleague with responsibility for these matters, Shailesh Vara. It is an important document that will provide food for thought and inspiration for the way forward.
I welcome the fact that the report does not duck the fact that there are fiscal challenges facing this Government, which necessarily means that fewer resources are available and that hard decisions will have to be made about how they are spent. I also welcome the recognition that the advice and legal aid services sectors are in a period of transition and innovation, which, as the report states, offers scope for agencies to work more collaboratively and in more cost-effective ways in order to help their clients’ needs.
I assure noble Lords that the Ministry of Justice recognises the importance of encouraging decision-makers to get it right first time—a point made in the report and by the noble Baroness, Lady Grey-Thompson, in the course of her speech—and of ensuring that we continue to innovate and improve the current system, as suggested in the report. I can confirm that the Ministry of Justice works closely with other government departments to improve decision-making. We are also considering the recommendations referring to the way in which Her Majesty’s Courts and Tribunals Service hears appeals. The Ministry of Justice has published a strategic work programme for those tribunals that describes how we are working to improve the system in line with efficiency, fairness and accessibility.
We have also established the Administrative Justice Forum, an independent body made up of a range of people who have direct contact and can represent views. We have made considerable progress in the improvement of feedback mechanisms on decision-making to the Department for Work and Pensions, with the introduction of telephone case management and the employment tribunal.
The noble and learned Lord, Lord Woolf, drew an appropriate analogy to his work on access to justice and how that changed the culture and the way that we looked upon the resolution of disputes. That was referred to by the noble and learned Lord, Lord Hope, as well. I am glad to see that the judiciary is referred to specifically in the report of the noble Lord, Lord Low, as providing significant innovation in dealing with litigants in person, which are a reality that we have to face. I refer in particular to paragraph 4.12 of the report. This is the world in which we live: judges would no doubt prefer not to have litigants in person, but they are responding well, using modern technology in assistance to make the system more user-friendly for those who do not have the benefit of legal advice.
There was a great deal of complaint made by the noble Lord, Lord Bach, who I recognise has been a persistent champion of those needing social welfare law. He has also opposed almost every other cut, but I accept that he has made a particular feature of this area. He was critical of the use of the exceptional funding scheme and said that the Government were not, in fact, providing exceptional funding in the way that it was envisaged. I endeavoured to answer questions on that when they were raised in a Parliamentary Question recently. The position is that we think it is working; no doubt the forms might be improved, but we have to provide funding where there is a potential breach under the European convention or EU law. That is the position; that is what is provided by the Act.
There are many other features to which I would like to respond, but time does not permit me to do so. We acknowledge the many useful observations made during this debate and there is a great deal of value in what was suggested in the report itself, particularly in regard to the administrative justice and tribunal system. The Government will, of course, carefully consider these suggestions in the future and continue to incorporate them into our strategic work where it is appropriate to do so.
Lord Phillips of Sudbury
Can the Minister give any reassurance at all to the many who have spoken about public legal education, particularly in schools?
Lord Faulks
I cannot give any formal reassurance as to whether public legal education will be part of any schools curriculum. It is clearly an important feature in the report and is something that will be considered along with other matters.
Legal Aid
Lord Phillips of Sudbury Excerpts(10 years, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Faulks
The Government are aware of the JCHR’s concern about the lack of training. I have been reassured that the employees are appropriately trained and aware of their responsibilities. In terms of the forms, I give the same answer that I gave before, which is that the matter is kept under review. It is believed that the forms are perfectly within the capabilities of solicitors to understand. If one of these forms is inadequately filled in, you are told, whereas with some forms in other contexts you never know which box you failed to tick.
Lord Phillips of Sudbury (LD)
My Lords, can the Minister say whether any research has been done into the number of cases of citizens who would wish to make applications but are unable to find anybody to help them in making those applications?
Lord Faulks
I think it is approximately 61. I will have to write to my noble friend with the precise number who actually made applications. Very often they are given a preliminary view, which they can then take to a solicitor, who will then be able, if he has been given some encouraging words, to take the matter forward.