Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Phillips of Sudbury Excerpts(12 years, 10 months ago)
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Lord Phillips of Sudbury
My Lords, I have my name to this amendment. I confess that I have been impressed by the points made by the noble Baroness, Lady Mallalieu, and the noble and learned Lord, Lord Goldsmith.
It surely is beyond argument that with the cuts in scope to legal aid this Bill will bring about, the need for the citizens advice bureaux and the law centres will be infinitely greater than it already is. If we were to have this discussion in the other place, there would scarcely be an MP who would not automatically come to the aid of the citizens advice bureaux in particular, because they rely on them: they send people from their surgeries to their local citizens advice bureau to get the advice that the MP cannot give.
The numbers of cases dealt with by the CABs in a year are measured not in tens of thousands or hundreds of thousands but in millions. I urge my noble friend to have regard to this simple reality. To put it in scale, I think there are 500 full-time CABs, with something like a further 3,000 CABs sharing premises in libraries and council offices and so on; so 3,500 of them, and probably 60 or 70 law centres now, a declining number; but they are on the front line of citizen advice. They are indispensable in the truest sense of the word.
The fact that so much of what they do is done by voluntary assistance—and very many local solicitors are volunteer CAB workers—only multiplies the value of what they do financially. The £20 million that the Government gave a couple of months ago to tide over the CABs in a funding crunch must be the best value £20 million the Government have spent on anything in the last year. I repeat, the multiplier effect of the voluntary effort put in to CABs makes every pound of support given of much greater value.
I do not think it needs labouring, it is just that I feel so passionately about this. I declare an interest that I was for 20 years legal adviser to the National Association of Citizens Advice Bureaux, and my firm still does work for them. I have seen for myself from the inside and as an occasional volunteer the absolutely essential front-line work that they do. Frankly, to think of this country without the CABs is to contemplate a nightmare. My noble friend the Minister may say, “That is an exaggeration; there is no chance of that”. Well, put us at ease by allowing this amendment. Indeed, take it away and contemplate putting some obligation alongside the discretion.
I also know that Citizens Advice has to plan its finances on a solid future framework. It cannot hope each year that somehow the money will tip up. It needs certainty of supply, as do the independent law centres. We all understand the financial rigours under which the coalition Government are having to work but I cannot urge more strongly the fact that the task of the CABs and the law centres, in the straitened circumstances which will prevail after the cuts in legal aid brought in by this Bill, will be ever more urgent in an ever complicating society.
Lord Bach
My Lords, until now, I have been happy to support every amendment moved by the noble Lord, Lord Thomas of Gresford, but I have to say that on this one I find that I cannot give my support. I agree with the noble Lord, Lord Phillips of Sudbury, that we are incredibly lucky in this jurisdiction to have a not-for-profit sector, as well as those solicitors who still do this work, which provides at very little cost a terrific service for people who otherwise would not get access to justice. They do so largely due to the good works of a lot of Lord Chancellors in the past but not least the noble and learned Lord, Lord Mackay of Clashfern, who is not in his place now but was here earlier, who, in 1995 I believe, made it possible for law centres and CABs to receive legal aid and thus give the kind of advice that changes lives. I agree absolutely with what the noble Lord, Lord Phillips, has said. If that should disappear, it would be one of the scandals of the first few years of this century.
If this amendment is intended somehow as an acceptable substitute for taking whole areas of legal aid, particularly social welfare law, out of scope, it has the potential be dangerous and short-sighted. I do not doubt for one second the good intentions and good faith of those who have put forward this amendment. But why do I say that? It seems to me to play entirely into the hands of a Government. It could be this Government or a future Government. I agree absolutely with my noble and learned friend Lord Goldsmith on this. Most likely the Lord Chancellor would be at liberty to pay whatever grant he wanted or no grant at all because the power is entirely discretionary as the amendment is drafted.
We know that there are a multitude of not-for-profit advice centres. Well over 500 CABs, 60 law centres, and hundreds of small, sometimes specialist, centres deal with the type of issues with which Part 1 is concerned. Some receive legal aid and some do not. I agree with the noble Lord, Lord Shipley, that it is not a perfect system by a long way. Given his background, what he has to say about localism is of huge interest, which I know from being the Minister some time ago. But at least under the present system, the Legal Services Commission grants contracts for legal aid for a length of time and it is not the Lord Chancellor’s job to grant those contracts. It is not perfect by a very long way but the contracts are intended to cover the country. At present, those contracts are one step removed from a politician’s stroke of the pen. In my view, that is an important consideration.
Who will the Lord Chancellor fund? Of course, I am talking about a Lord Chancellor in the future. I am not talking about now. Will it be those he likes? Will it be those that are in his part of the country? The Lord Chancellor may be a Member of Parliament, as he is now. Will it be those who do not often sue the state or do not offend him or the Government? He could turn the tap off at any moment and the organisations would have no way of planning their present and their future. There would be no certainty.
One of the criticisms made by the not-for-profit organisations I certainly remember hearing as a Minister was, “Look, there is not enough continuity. We do not know about the future. How can we plan and become efficient organisations without knowing how long we will get contracts for?”. There may be not be enough continuity in the present system, but necessarily there would be no continuity under the system being mooted in this amendment. Frankly, it is an open invitation to a new Lord Chancellor, under pressure from the Chancellor of the Exchequer—and every Lord Chancellor I have ever heard of or spoken to has been under that pressure from the day he gets into office—just not to make the grants, and that will be it. The not-for-profit sector will collapse. I ask this question: if grants are the solution, where is the money coming from? If the money is there, why take social welfare law out of scope in the first place? Why not provide the rather limited, perhaps too limited, resources for social welfare law that are available at present?
Of course we are open to discussion and further debate about this, but what we want to happen is that those areas of the law—in particular, social welfare law, which it is suggested should be taken out of scope by the Bill—should not be taken out of scope; they should remain in scope. The system does not work badly; in fact, I would go so far as to say that it is working well. There is no need for this. If I was the Minister tonight, I would bite off the arm of the noble Lord, Lord Thomas, and accept this amendment saying, “Yes, I agree”. That is because, as it is presently drafted, I am afraid that it plays much too much into the Government’s hands.
Lord McNally
Of course they are going to lose work in the areas that are being taken out of scope. That is self-evident. I make no complaint about it, but we continually have brandished at us reports from organisations with, to put it bluntly, an interest in the issue. It can at least be examined thoroughly. Organisations which have been involved mainly in areas which are being taken out of scope will find that that work is no longer there, which will have an impact on some of them. However, they will still be free to bid for work which is within scope. We can go round that time and again.
Lord Phillips of Sudbury
I know that my noble friend is trying to get into his speech but, en route, important issues come up, and one has a duty to the Committee to continue with them. Does he not appreciate—I do not think that he can—first, that local authorities, because of their financial stringencies, have withdrawn grants to law centres and CABs all around the country and, secondly, that, if the centres can no longer do the work that is taken out of scope, many if not most of them will simply shut their doors and go away? The consequence of that, my noble friend will, I am sure, recognise.
Lord McNally
Throughout the passage of this Bill, assertions are made about what is going to disappear and the nightmare of a country without CABs—to quote my noble friend. Unlike the noble and learned Lord, Lord Goldsmith, I cannot airily, as he did in his intervention, say, “£20 million? That is not enough. Perhaps we should put another nought on the end”.
“Report reviewing claims for clinical negligence
(1) In discharging his functions under section 1(4) above, the Lord Chancellor shall have regard to the report of a review under this section.
(2) The Lord Chancellor must, before the end of the period of one year beginning with the day on which this Act is passed, appoint an independent person to review generally claims for clinical negligence and means of improving the modes, procedures and outcomes relating to the same.
(3) The review must address, in particular,
(a) the accessibility, cost, effectiveness, openness, fairness, proportionality and speediness of such claims, and(b) any other matters the Lord Chancellor considers appropriate.(4) After the person appointed under subsection (2) has completed the review, he or she must compile a report of conclusions.
(5) As part of their conclusions the reviewer may propose such voluntary scheme or schemes as he or she shall see fit.
(6) In this section “claims” shall mean claims and complaints made by patients receiving services provided in the United Kingdom and commissioned in England in respect of a liability in tort or contract owed in respect of personal injury or loss arising in connection with breach of a duty of care owed to any person in connection with the diagnosis of illness, or in the care or treatment of any patient of an NHS body, a primary care or independent provider.
(7) The Lord Chancellor must lay before Parliament a copy of the report compiled under subsection (4).”
Lord Phillips of Sudbury
My Lords, this amendment is in my name and those of the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Faulks. Both much regret that they cannot be here to join the debate. The noble Lord, Lord Faulks, is a practising Queen’s Counsel who concentrates on work in the field of clinical negligence. The renown of the noble and learned Lord, Lord Woolf, needs no repetition.
Clinical negligence cases are perhaps as—or more—difficult and complex than any in the field of litigation. They tend to be extremely slow, expensive and to some extent unfair in the way that they unwind. The position under the Bill is that clinical negligence claims are taken out of scope, although the House will know that there is an amendment yet to be resolved which would keep the independent specialist or expert medical reports within scope. The importance of medical reports in clinical negligence claims cannot be exaggerated. Medical evidence is the vital linchpin around which such claims revolve. They establish whether there has been medical negligence and whether there is causation between the condition suffered by the would-be claimant and the event purportedly giving rise to it. Upon the expert medical report depends: first, whether a solicitor will take the case on a conditional fee agreement; secondly, the terms of the conditional fee agreement, because obviously if the solicitor does not like the sniff of the case he or she will maximise their benefit under the agreement; and, thirdly, the cost of insurance which is now almost an essential part of any clinical negligence claims because they are uniquely expensive. That, too, will depend of the expert report. Even with insurance, the cost implications of these claims are fearsome. Some may remember that in debates last week I referred to a case from south Wales referred to me by the NHS legal team there. A case taken under a CFA resulted in the claimant getting damages of £4,500 but the costs and expenses were over £98,000.
The point of this amendment is really to have a long, cool look at the whole of the clinical negligence scene to establish whether—and, if so, how—we might better conduct this vexatious class of claim. I will refer briefly to a 2003 report by the chief medical officer for England, the consultation document Making Amends, which drew particular attention to the slowness, complexity and cost of these claims. Sadly, I do not think that much has come of the Making Amends consultation.
In this field, the Welsh are streets are ahead of us. In 2002, the Welsh NHS report on alternative dispute resolution was produced. It led in 2005 to the setting up of a pilot project called the Speedy Resolution Scheme—again confined to clinical negligence claims. In 2006, the NHS Redress Act was past, which empowered the Welsh Assembly to set up its own redress regime. This was referred to—and still is—as “putting things right”, and was a root and branch review that led last year to the NHS Concerns, Complaints and Redress Arrangements Wales Regulations 2011, which is still in the process of unwinding. Another aspect of the regulations comes into effect in April. In between that, there were additional measures.
Lord McNally
My Lords, I would hope to persuade the Opposition not even to support the principle of this amendment, which says:
“The Lord Chancellor must, before the end of the period of one year beginning with the day on which this Act is passed, appoint an independent person to review generally claims for clinical negligence and means of improving the modes, procedures and outcomes relating to the same”.
We would prefer to stick to the process established by the previous Government, which put in place post-legislative scrutiny of Acts of Parliament. The aim is to complement the Government’s internal departmental scrutiny with parliamentary scrutiny, principally by committees of the House of Commons, to provide a reality check on new laws after three to five years.
As set out in the Cabinet Office guidance, these reviews normally take place within three to five years of Royal Assent. The responsible department must submit a memorandum to its departmental Select Committee, which will then decide whether it wishes to conduct a fuller post-legislative inquiry into the Act. Of course, the House will be free to debate the committee’s findings should it choose to conduct a review into the Act. In addition to this post-legislative scrutiny, the impact assessment for the specific policies in the Bill is accompanied by a post-implementation review plan. It is intended to review each policy between three and five years after the implementation date.
Noble Lords may also be aware that the Government have conducted a public consultation this year on how lower value cases should be dealt with more efficiently in the county courts. We are working closely with the National Health Service Litigation Authority to consider whether a lower value scheme similar to that which is currently operating for low-value road traffic accident cases would work for lower value clinical negligence cases. At the same time, we are actively considering the Government’s response to the consultation and will publish the response in the near future. In the light of these remarks, I hope that my noble friend will withdraw his amendment.
Lord Phillips of Sudbury
Before my noble friend sits down, could I be perfectly clear about what he said at the start of his response? Is he saying that there will be a formal review of clinical negligence in the course of reviewing the whole of this Act, as it will become?
Lord McNally
Yes. If it did not, presumably we would bring forward primary legislation to correct it, but that is the parliamentary process.
Lord Phillips of Sudbury
My Lords, I thank the Minister for his reply. I was going to say that I thanked the noble Lord, Lord Beecham, for what he said—I sort of do. I will not play legal games with him at this time of night, but if this is brought back I will certainly read carefully the points that he made.
As for the Minister’s reply, my sense is that the review that I am calling for in Amendment 99A is far more particular and focused than any review that would come forth under the general review of this legislation, not least because clinical negligence has only a very limited part to play in it. Further, the Bill deals with the scope of clinical negligence in terms of legal aid, not with the detailed functioning of clinical negligence litigation. I would like to read what the Minister has said and perhaps have a conversation with him before Report in order to see whether there is any point in persisting with the nub of this amendment. I beg leave to withdraw the amendment.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Phillips of Sudbury Excerpts(12 years, 10 months ago)
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Lord Howarth of Newport
My Lords, should not the governing principle be that every single one of our citizens, regardless of their income or personal resources, should have available to them legal advice and representation should they find themselves in a situation of dispute and where they have a reasonable case to pursue through legal channels? Is that not a fundamental liberal principle? The noble and learned Lord, Lord Scott of Foscote, articulated it very finely and much better than I can, but this has to be our benchmark.
Of course, I recognise that this group of amendments is designed to salvage what can be salvaged and to limit damage. However, we ought to differentiate quite carefully between the purport of the amendments in this group, because they are not all saying the same thing. I support Amendment 24, tabled by my Front Bench, because the effect of it would be that no further areas could be taken out of scope other than by new primary legislation. The way that Parliament deals with secondary legislation does not provide adequate opportunity for debate about very important and contentious matters. Therefore, it would be a proper safeguard that there could be no further attrition of legal aid—we would not take any additional areas out of scope—without Parliament thinking deeply about it, taking care about it and being fully aware of what it is doing.
On the other hand, Amendment 24 would allow areas to be brought back into or added to the scope of legal aid by order. That is acceptable because you are not taking away people’s legal rights, you are enhancing them, and there must be a presumption in favour of that as a matter of principle and that Parliament would therefore not be required to give such proposals the same intensive scrutiny as it ought to give to proposals to take areas out of scope. I agree with my noble friend Lady Mallalieu that there may very well be instances where Parliament would wish to act fast to bring an area back into scope. Therefore, Amendment 24 is preferable within the group.
Perhaps the Minister will again defend the Government’s breach of liberal principle in taking whole areas out of scope of legal aid with the argument that it is imperative to save public expenditure. I noticed that the Lord Chancellor, in that very interesting article he wrote in the Guardian just before Christmas, said that:
“Legal aid in England and Wales costs vastly more than other common law variants—twice as much per head as New Zealand’s system for example”.
However, I understand that the cost of civil legal aid in New Zealand is not significantly higher per head. It is of the same order as it is in England and Wales, and it is in fact in the criminal legal aid area that the New Zealand system is so much more economical—they spend less per head on criminal legal aid but not on civil legal aid. However, although the Government justify what they are doing by reference to the comparison with New Zealand, they have not chosen to seek economies in criminal legal aid, but in civil legal aid. The Government need to examine these figures and, I hope, explain their economic rationale rather more fully than they have so far.
I am sure the Minister has had the opportunity to see the study entitled Unintended Consequences: the Cost of the Government’s Legal Aid Reforms by Dr Cookson of King’s College, London, in which he examines the possible knock-on effects—the higher spending that may be incurred for other government departments and indeed for the Ministry of Justice—as a result of the polices in this Bill. The Minister has been extremely helpful to the Committee in writing to us very fully to explain why the Government have adopted the policies that this Bill would enact. If the Minister would be kind enough to write to us with a detailed refutation of the arguments that Dr Cookson, a distinguished academic, has put forward in criticism of the Government’s case that it will be making a net saving to public expenditure, I am sure that that would be very helpful.
I am very far from saying that the sky should be the limit in terms of what we spend on legal aid. I would entirely agree that where there is waste, it should be taken out. However, the assault should be on waste, not on scope. If the principle is that every citizen should have equal access to the law, then it is not proper for the Government to say, “But if the conflict or dispute that might be litigated is in one particular field, then the citizen is not to have access to the law for a dispute of that kind”. It is fine to do all you can strenuously to reduce unnecessary costs, but do not breach the fundamental principle.
I would finally say that while it seems to be almost common ground around the House that it is necessary to reduce the legal aid bill, with respect, it is an absurd proposition to say that we cannot afford what we are spending. I repeat: we do not need to spend every penny of it, because there may well be waste in the system and it may be possible to reform it to make it more economic while maintaining access to justice. However, to say that a total of £2.2 billion spent on legal aid, which is only 1 per cent of the social security budget, is something that as a country we cannot afford—a country that prides itself on being a liberal society, and on the rule of law—seems to me to be wrong. This is a moral and a political choice, not a matter of economic exigency.
Lord Phillips of Sudbury
My Lords, I would very briefly reassert the fundamentalism of access to the law. Equality before the law is one of our basic claims. If in fact it does not exist, it damages not only the law and the rule of law but democracy itself.
This group of amendments is interesting. Amendment 22, moved by the noble Lord, Lord Faulks, which leads the group, simply removes subsection (2) of Clause 8, which will mean that any change in the scope of legal aid would have to be by primary legislation. Our amendment, spoken to by my noble friend Lord Thomas of Gresford and to which my name is added, seeks to even things up by saying that not only can the Government omit or change by deletion the scope of legal aid, but can add to it. The third position is that of the noble Lords, Lord Bach and Lord Beecham, who in their amendment reverse the tables, saying that you cannot remove from scope but you can add to it.
I must confess that I would, if the world were a perfect place, prefer the first amendment, Amendment 22, which would require all changes in scope to be by primary legislation. However, living on a pragmatic globe, I suspect that the best we may do is at least to have equality as between diminution of scope and addition to it. Hence Amendment 25, which incidentally is mirrored by Amendment 23, spoken to by the noble and learned Baroness, Lady Butler-Sloss.
I would just add this point, which has not been sufficiently clarified or emphasised. Whether something is in or out of scope is not, in my book, most significantly a question of finance. If we are the most legislated democracy on earth—do not forget that we pass about 14,000 pages of new statute law a year—it behoves us, in this Parliament above every parliament, to ensure that what we do has fairness of application in the real world. Above all, I put it to my noble friend Lord McNally that there has been a unanimity of view from those who have contributed to this debate that, as things stand, the exclusions from scope are going to cut so deep that the consequences will be social and political unless they are reversed speedily. For that reason alone, if I were sitting in the seat of my noble friend, I would want to be able to add back speedily. I promise him that if this Bill goes through as drafted, scandals will arise, which the Government will want to rectify swiftly. Therefore, I hope that the Government will move on this.
Lord Carlile of Berriew
My Lords, my name is one of those that have been put to Amendment 30. I set no particular store by this amendment, save to say that it is one of the attempts to deal with the issue that has been eloquently described by the noble and learned Lord, Lord Lloyd, and by my noble friend Lord Faulks, with whom I agree entirely.
Looking around the Committee this afternoon, I see a dozen or so Members of your Lordships’ House who had to deal with constituency surgeries on a regular basis while in another place. The noble Lord, Lord Wigley, who earlier spoke very eloquently, has had the same experience as me of dealing with constituency issues in quite a remote rural part of Wales. Clinical negligence relating to perinatal damage does not choose its location. It is just as likely to arise in rural Montgomeryshire or in rural Caernarvonshire. Indeed, I have certainly seen people in years gone by who have come to a constituency surgery devastated by what they believed had happened to their child while the child was being born in a neighbouring hospital. In the case of Montgomeryshire, this was almost always over the border in England, but that may be beside the point.
The people who come with these problems are often not only overwhelmed by the care of their children, but also by the future they face: the lifetime of having to look after a damaged child to whom of course they are generally entirely devoted and to whom they will give the whole of their life or the child’s life—whichever lasts longer. They are often, too, people from poor circumstances. In many cases, they have no experience of dealing with lawyers and are frightened of lawyers. They have read in the newspapers that the medical profession—and I hope I will not offend any of my many friends who are distinguished members of the medical profession—is chronically defensive in its approach to allegations. They will not be aware that the chair of the National Health Service Litigation Authority has made it clear that, in her view, legal aid for clinical negligence should continue because it is a way of ensuring that medical practice is carried out responsibly and with reasonable care.
It may be that in some big cities there are firms of solicitors who would take on cases of this kind pro bono, at least in the first stages, because they can afford to carry that excess. However, that does not apply in the small towns of rural Wales and the shire counties of England. People whose child has been damaged at birth may only know of, let alone know, one solicitor, who may be in a small practice somewhere in their neighbourhood. It is right that people in that situation be able to at least explore bringing legal action to see whether there is a course of action that may be effective in relation to the injury that has occurred to their child. In some cases, if disbursements can be expended on expert evidence, it will be shown that there is a strong case of negligence, and most of those strong cases will be settled in due course—often for very large sums of money.
The proposals in the Bill run the risk of depriving parents in that situation of the remedy which they will discover only if they and their solicitors are allowed to spend the money to obtain expert reports as early as possible. There are amendments which suggest that there should be co-operation over expert reports and that other measures should be taken to limit the costs. I applaud those proposals. I suggest to the Minister that the Government include, in any concessions that in my judgment they will be bound to make in due course on this subject of perinatal injury to children, ways of ensuring that money is not wasted on a multiplicity of expert reports, but that the right reports are obtained as early as possible. In my judgment, the case for legal aid at the early stage of potential perinatal damage claims is absolutely unanswerable. The Government would be seen to have lost their human face if they refused to amend the legislation to reflect those concerns.
I say to the Minister, however, that perinatal negligence is not the only area in which were legal aid to be removed great injustice would be caused. One can think of endless examples of poor negligent treatment in hospital which result in devastating injuries: the loss of limbs, the loss of eyes, brain damage, and so on. They fall into the same broad category as the perhaps emotive example of perinatal injury. I therefore suggest to Ministers that they should consider permitting legal aid to continue in cases—I do not say that this formulation is perfect but it reflects the spirit of what I mean—where a severe injury has occurred in a clinical setting. If those involved in such cases were permitted to receive legal aid, the injustice envisaged in the amendments would be resolved.
ATE insurance and CFAs have their place, which may be in some of the types of cases I referred to—but not right at the beginning. As the noble and learned Lord, Lord Lloyd, said clearly, the cost of insurance premiums for even quite small cases is out of proportion to the claim. Potential claimants dealing with severe injuries that occurred in a clinical setting may not be able even to contemplate the prospect of whatever element of cost they might face through the insurance system. It does not provide an answer to all cases.
I urge my noble friend to answer sympathetically the huge burden of representations that have been made by those who have knowledge and experience of conducting these cases or experiencing their consequences directly. They make an overwhelming case.
Lord Phillips of Sudbury
My Lords, my name is on Amendment 30A, along with that of my noble friend Lord Faulks, who spoke clearly and persuasively to it, and that of the noble and learned Lord, Lord Woolf, who apologises for his inability to be here today. He sent me a note in which he rather pithily justified the contents of the amendment—which, it has to be said, is more modest than the one so eloquently moved by the noble and learned Lord, Lord Lloyd, at the start of the debate.
The noble and learned Lord, Lord Woolf, made two points. He stated that,
“in many cases a report”,
from an expert,
“will be sufficient to produce a settlement … where this is not possible, its contents will enable solicitors to decide whether the case can or cannot be taken on a C.F.A.”.
These are two great virtues. Even those in this Committee who have had nothing to do with clinical negligence claims—I congratulate them because these cases are grisly affairs and perhaps the most unsatisfactory and anguish-making aspect of litigation—will know that the expert’s report is absolutely crucial to everything to do with the case. It currently determines whether you get legal aid, and, as the noble and learned Lord, Lord Woolf, said, in future if the reform goes through it will determine whether you get effective coverage under a conditional fee agreement.
I will give the vivid example of a case notified to me by Emma Braithwaite, a solicitor with the National Health Service Wales Shared Services Partnership. Noble Lords may not know that Wales is way ahead of us in trying to find a via media between conflicting issues in clinical negligence cases. Amendment 99A attempts to address the general picture. This particular case was finalised by the payment of damages by the NHS of £4,500. The costs, which NHS Wales had to pay, were £95,897. Roughly half the amount—£44,000—went on legal fees. The case was conducted under the conditional fee system. The balance was mainly experts’ fees.
The case was always small; it was never a case in which large damages would ever be contemplated. The initial offer from the NHS was £3,000, which as I said, settled on £4,500. In a nutshell that explains why we will spend more time on clinical negligence than many who are not lawyers can readily understand. However, it makes it absolutely clear that we need to introduce effective, practical reforms that will make this whole area of litigation fairer, cheaper and speedier. That is why Amendment 30A is in this group.
Lord Phillips of Sudbury
The noble Lord made a perfectly reasonable criticism of one aspect of this amendment. First, he commended the NHSLA, but does he not accept that the amendment says,
“a list maintained by the NHSLA and AVMA”,
which is an independent body that exists to see fair play done?
Lord Howarth of Newport
I am second to none in my admiration, indeed my gratitude, for AVMA, which helped me and my family at a very difficult stage of our lives. I am deeply appreciative of them. If the list of expert witnesses was to be maintained both by the NHSLA and by AVMA, rationally speaking that is a list that should command confidence. None the less, in the emotionally fraught circumstances of a dispute, particularly where a baby has been damaged at birth or where some other catastrophic injury has taken place, it is asking a lot to expect people to trust witnesses and reports that are to be commissioned—the noble Lord’s amendment would require that—by the NHSLA.
Lord Phillips of Sudbury
Does my noble friend not understand that a poor litigant simply cannot afford any ATE premium in order to get to the point of knowing whether there is a claim to be made?
Lord Wallace of Tankerness
My Lords, the point that we are making is that while the ATE insurance premium is being abolished generally, in the event of a CFA being agreed in a case of clinical negligence, the Government are retaining the recoverability of ATE insurance premiums. These are very rarely paid up-front. I understand that it is almost an insurance of insurance. If the claimant loses, the premium will not be recoverable from the claimant. It is often the case, too, that if it has been recovered from the other side, there is an increase at that time to take account of those cases in which the insurers will not get their premium.
Lord Phillips of Sudbury
I need to answer that; I do not think that is right. The position of a poor claimant is that they cannot afford to put themselves in hock for the premium. It is all very well saying that they can pay it later, but if they lose they have to pay it.
Lord Wallace of Tankerness
My Lords, I think the position is that if they lose they do not pay it. That is what we are retaining in cases of clinical negligence. In short, poor people will not have to pay up-front for the necessary expert reports in clinical negligence cases.
Lord Phillips of Sudbury
My Lords, I am in entire agreement with what has been said by my noble friends Lady Doocey and Lord Newton and the noble Baroness, Lady Lister of Burtersett. I should be very grateful if, in responding on these amendments, my noble friend Lord McNally would tell the Committee whether in respect of later amendments that seek to ensure proper funding for CABs and advice agencies there is going to be a positive answer, because that will have a major effect on my whole approach to this part of the Bill.
It does not need repeating that cutting legal advice in relation to social welfare claimants is, on the face of it, utterly bonkers. First, the people seeking that advice are the most vulnerable in our society. I wonder how many people who are now in this Chamber have ever sought assistance under the Social Security Contributions and Benefits Act 1992 or the Welfare Reform Act and so on. There is a whole forest or jungle of social security law, and I ask anyone in this Committee who thinks that, because it is for the common man it is simple, to have a look at any of the legislation. It is a nightmare. I have given a bit of legal advice in law centres in my time. It was a nightmare when I did it as a young solicitor but it is a treble nightmare now. Someone said recently that the CAB advice manual for social security law ran to a couple of hundred pages, but it now goes well into the thousands.
Lord Phillips of Sudbury
I am most grateful to the noble Lord, Lord Bach. There are 7,500 pages, and the devil of it is that a lot of these statutes interrelate. In many cases, finding a way through this stuff is, believe me, a job for a lawyer and not a job for the harassed citizen. Do not let us be carried away by the telephone helpline. It will help in all sorts of cases but in very many it will not. That is because, first, the complexity will outrun the knowledge of the person on the phone. Of course, the answer is that they should then refer the person to someone else, but I have to tell your Lordships that these advice lines—and I have experience of them too—are very powerful instruments. The second reason is that it is a commonplace that people find it very difficult to explain the facts and so on in relation to these social security measures face to face, let alone down a telephone line.
Therefore, I hope that we will be honest with ourselves and that the excellent civil servants, the excellent Bill team and the excellent Front Bench spokesmen will recognise that this is not territory with which we are familiar. I suggest that we need to be a little humble before we say categorically that the status quo after the Bill comes into force will be sufficient to enable hard-pressed, often bemused and sometimes desperate people to access the benefits that we have legislated for them.
Baroness Howe of Idlicote
My Lords, let us face it, the next group of amendments covers almost exactly the same area as this one. I shall reserve what I was going to say until we reach my amendment in that group. However, in view of the comments made by my noble friend Lord Wigley about running all these Bills together simultaneously, I wanted to point out that—believe it or not—in the Moses Room this afternoon, going on in parallel with what was going on in this Chamber there was a Motion about jobseeker’s allowance. Aspects of the Welfare Reform Bill and the legal aid Bill are interwoven in an appallingly complex way.
We have just heard from the noble Lord, Lord Phillips, a very clear case as to why the whole exercise is going to be costly. I agree with the sympathetic point he was making for the Government: any change made to these forms of welfare help is almost by definition bound to involve extra cost and extra complexity, because it is yet another layer added to the thousands of pages that have to be understood by the professional expert. Then, one appears to be busily taking away, or making it much less easy to access, the professional help we have had in the past. There is also the point made that the CABs, which have been so marvellous in the past, are going to be shorter and shorter of money. The whole thing is becoming really worrying and I hope that the Government will reflect on this.
Lord McNally
I never even suggested that. However, I am suggesting that we are talking about processes where the response of the Opposition, and sometimes my noble friends, seems to be yet more lawyers, yet more litigation—
Lord Phillips of Sudbury
I thank my noble friend for giving way, but I must just reply. First, the whole point of my alarming case was to show how desperately needed reform was. Secondly, it was to support the amendment because were aid available to get expert reports right at the beginning, you would know at the outset whether the case was a runner and some of these crazy expenses would be knocked out.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Phillips of Sudbury Excerpts(12 years, 10 months ago)
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Baroness Turner of Camden
My Lords, I, too, support the amendment, which is about unintended consequences. The Government should be grateful that it has been raised at this stage of debate on the Bill because unintended consequences are often a problem with legislation introduced by the Government. In this case, I have had the benefit of the Law Society’s parliamentary brief, which is excellent and has already been referred to by my noble friend Lord Bach. The Law Society has produced evidence mainly concerned with family welfare and clinical negligence. It points out that this measure is designed to save £239 million, but the unintended extra costs are likely to be £139 million.
Frankly, I am interested in the Bill mainly from the standpoint of a former trade union official. My union, of course, provided advice across a whole range of issues to its members and supported them in the courts where need be. In particular, we were concerned about accidents at work. When we look at accidents at work, we are concerned not only about the physical and actual costs; there is also the question of other serious effects. If the threat of litigation in workplace accidents and diseases were reduced, health and safety at work would be significantly undermined, leading to an increase in avoidable accidents. Without recourse to the courts or with reduced compensation, injury victims would be much more reliant on state welfare and supplementary benefits. That point has been made by the TUC in respect of the possibility of accidents at work and support for them being diminished as a result of the Bill unless we have the examination that has been recommended strongly by a number of speakers and is recommended in the amendment.
I do not know whether the Government feel that individuals who would otherwise be facing the consequences of accidents and so on should put up and shut up. Fortunately, many people are simply not prepared to do that and will seek all sorts of other ways in which their cases can be pursued if they are blocked from following them via the court route. That is not a very good idea either because it can lead to all sorts of other problems for people who feel that they have a case but also feel that their way forward is blocked because they cannot get access to a hearing in court.
For these reasons, it is very important that we get the Government to have a very clear look at what the unintended consequences would be from what they suggest in this Bill. It has been spelt out by a number of speakers in this debate this afternoon and I hope that it will be taken very seriously indeed by the Government.
Lord Phillips of Sudbury
I am not sure whether I am speaking for these amendments or against them. I started the day at 3 o’clock our time having breakfast in Doha, and was rather choked when eating my toast when I read in the Gulf Times about the King’s research into the financial effects of parts of this Bill. I am sure that my noble friend the Minister will ponder those extremely hard.
I wanted to say a brief word about the important matter raised by the noble Baronesses, Lady Lister and Lady Howarth, and many others, of the prospect of many more of our fellow citizens having to represent themselves before courts and tribunals. I started life as a young lawyer in a country general practice, spending a great deal of my time in magistrates’ courts. My principal was part-time clerk to five country courts. All I can say is that you really do not need a pre-impact assessment of the effect on a would-be proponent or accused, whether before a magistrates’ court or a tribunal. You do not need to do any research to know the effect of having to go into battle without any legal help. That is particularly acute, obviously, with less confident and articulate people, but it is not confined to them. My experience is that you never know how many people are deterred from taking or defending proceedings because they cannot have legal assistance, because of course they just do not tip up; they do not pursue their claim or defend the claim made against them.
I know that my noble friend has thought long and hard about this and has a very difficult task in dealing with parts of the Bill, but the other thing that is easily forgotten is that if someone thinks that they are going to be opposed on the other side by a lawyer, that really is a finisher for the course that they adopt on those proceedings. I make those points merely to try to help the deliberations of the House.
Lord Elystan-Morgan
My Lords, I find myself in agreement with practically everything that has been said in this debate. The amendments go to the very heart, core and kernel of the Government’s thinking on this part of the Bill. I would even put the matter higher than most noble Lords have put it. They have put it that there are unintended consequences that now have to be considered. I would put it rather higher than that and say that, in dealing with the sensitive and almost sacrosanct area of the administration of justice and with the question of seeking to save funds at a time when they are desperately needed by the public purse, it is nothing short of reckless to proceed in circumstances where there is no certitude of success in either of those matters.
What is recklessness? Assuming that one takes a fairly lay interpretation, it is a situation in which a risk is created and the person creating that risk either closes his or her mind completely to the risk created or, appreciating that the risk is there, still takes it. That is recklessness. I hope that I do not use intemperate language in this or any discussion in this House. It is right that the Government should ask themselves, in a situation in which the onus of proof is so immense in relation to the area of the administration of justice and saving money for the public purse, whether sufficient consideration was given to as many of the risks as can be quantified—and I appreciate that some of them are very difficult to quantify.
Lord McNally
We will discuss this point at a further stage of the Bill. I compare that intervention by the noble and learned Baroness with her earlier one which was more broad-brush in its general condemnation. We will discuss the other areas when we come to them.
I will speak also about the issue of litigants in person, on which Amendment 195 focuses. I heard what was said, in particular by a number of noble and learned Lords—I do not think that the noble Lord, Lord Phillips, qualifies as learned.
Lord McNally
Even after 15 years I am never sure who is gallant, who is learned and who is—like the noble Lord, Lord Phillips—just experienced.
Unrepresented litigants have always been a feature of our legal system. Judges make efforts to assist them by explaining relevant procedures and what is expected. We accept that the reforms are likely to lead to an increase in the number of litigants in person. We conducted a full review of the available literature on litigants in person, which was published alongside the consultation response. The review found that the evidence available on litigants in person tended to suggest a mixed impact on the length of proceedings where litigants in person were involved. It is also important to point out that there will be significantly increased numbers not going to court at all. We estimate that there will be 10,000 additional mediation cases as a result of our decision to prioritise this area. This will offset the additional burdens on the courts from dealing with litigants in person.
We took into account this issue in the impact assessment and the equality impact assessment, published at the time of consultation. One assumption we made in calculating costs and savings was the increase in unrepresented litigants. We are now considering how best to provide the support and training needed to those who assist unrepresented litigants, as well as to the litigants themselves. This will include looking to simplify the forms of guidance available to those using the courts in person and to improve the information we offer to members of the public through the new online content of the Directgov website. The ministry is considering the Civil Justice Council’s recent report and is liaising with the council on how best to take forward its recommendations for dealing with litigants in person.
The current system of post-legislative scrutiny achieves the right balance and value in effective scrutiny for both Parliament and the Government. Therefore, I urge the noble Lord to withdraw his amendment. We have had a very good debate. It had some elements of Second Reading and took just under three hours of the second day of Committee. I hope that noble Lords will believe me when I say that we are listening and that we will have further thorough, specific debates. However, the amendment takes us too far back to first principles on a Bill that has gone through the other place and has had its Second Reading in this place.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Phillips of Sudbury Excerpts(12 years, 10 months ago)
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Lord Beecham
I am glad to have given the Minister the opportunity to buy one group of amendments and get another free. I am sorry that he has not accepted the offer. He twice used the pregnant phrase that this does not “preclude” consultation. If I may say so, that is a very negative way of looking at the responsibilities of the Lord Chancellor and a rather worrying phrase. It is not a question of not precluding; the Bill should lay down what is expected of the Lord Chancellor and what he should do.
The Minister has repeatedly objected to the substitution of “must” for “may” in my amendments. The word “must” is in Clause 1, which states:
“The Lord Chancellor must secure that legal aid is made available in accordance with this Part”.
In some ways, this is a mirror image of another debate that I am involved in, with other Members of your Lordships' House, on the health Bill. Many of us, including some on the government Benches, have been trying to secure that the Secretary of State for Health has the duty to provide health services. That aspiration is one which, in respect of legal services and legal aid as defined in the Bill, is embodied in the government's wording.
Given that, it is not enough for the Minister to say that the LSC has those powers now. After all, the LSC effectively disappears. The Lord Chancellor becomes the authoritative body for the provision of legal services. It seems to me sensible and in fact desirable to protect the Lord Chancellor from succumbing to the temptation not to consult properly or to do things in perhaps a rather rushed or narrow way either of his own volition or at the behest of the Treasury or other organs of government, looking, for example, to make savings very quickly and perhaps very radically. I dare say that that may not be the intention of the present Lord Chancellor but it would be better to protect him from the possibility of judicial review, to which the noble Lord, Lord Carlile, referred, in the first place by providing a clear responsibility.
I was rather worried by the Minister’s reference to market forces. This is, I suppose, a reference to the sort of Tesco law that we are beginning to see happening. It rather worries me that, particularly in relation to Amendment 104, which deals with the criminal justice aspect, market forces might be deemed to be fit and proper effectively to run the legal aid service, whereas in the particularly important area of public policy and justice there is no requirement to consult such responsible bodies and persons as the Lord Chief Justice, the Director of Public Prosecutions and the three legal professions. I do not think it is good enough just to say that any Lord Chancellor would do this. One would hope that that would be the case but I am not sanguine enough to accept that it is proper in dealing with these matters to leave it to the potential good will of a future Lord Chancellor.
I would hope that the Minister would recognise that there ought to be a duty here. It is something that, in the absence of any movement before Report, we will have to come back to, as we might with regard to some of the other aspects to which he referred—in particular, the issue of charging for accreditation. I can see some case for making charges but I can also see a strong case in the realm of the voluntary sector for a different scheme. I give way to the noble Lord.
Lord Phillips of Sudbury
Does the noble Lord not take some solace from the view expressed by my noble friend Lord Carlile and the noble Baroness on the Cross Benches that a Minister who ignored the obvious consultees would be susceptible to an effective judicial review? Is that not the best assurance that the noble Lord needs in order to rely on the present wording?
Lord Phillips of Sudbury
My Lords, I speak to Amendments 14 and 16, where my name is coupled with those of my noble friends Lord Thomas of Gresford, Lord Carlile of Berriew and Lord Macdonald of River Glaven—I am sure that the Committee will recognise that we are four hardened lawyers. I concur entirely with what has been said so far. There is no question but that the world we live in is more and more a legalised world, where law and politics are often hard to disentangle. Therefore, the need for absolute independence—not only actual independence, but perceived independence as well—must surely be to the benefit of all concerned, including the Government themselves, because if the director of legal aid casework is thought by the media to be in the pocket of the then Lord Chancellor, what good does that do anyone?
I shall add something that is a difficult point to make because I would not for one second wish any negative conclusions to be drawn vis-à-vis the Lord Chancellors whom we have had since the reform. As noble Lords will remember, in the late 1990s, holding that great post was made no longer the monopoly of a senior judge. I believe now, as I believed then, that there are some disadvantages attached to that constitutional change. I believe that it is possible to conceive of a Lord Chancellor who is not in all truth well equipped to deal with the issues implicit in this part of the Bill. That is another reason why I think that all the amendments in this group are to be supported, including Amendments 14 and 16.
I would also quickly add that Sir Bill Callaghan, who is chair of the Legal Services Commission, which is about to be abolished, has warned in very strong terms against there being any possibility of political influence on the difficult decisions that the director of legal aid casework is bound to have to take as time goes by. I think that we should listen to what that gentleman, who has been through this mill, is saying. It is a point of view supported not just by the Joint Committee on Human Rights but also strongly by my professional body, the Law Society, and, indeed, I think, by anyone else who has taken the trouble to consider this matter.
I end by briefly sketching out the purport of Amendments 14 and 16. Amendment 14 explicitly requires the Lord Chancellor to make available independent assistance to the director of legal aid casework in the work that he or she has to do, and Amendment 16 stipulates that the Lord Chancellor not only cannot give binding directions or guidance on individual cases but cannot do that in relation to arms of the state. The amendment makes it clear that there cannot be any direction or guidance in relation to,
“the Crown, Government department, executive agency or non-departmental public body”,
where any of those is a party.
I will rest my case at that, except to say that, having reviewed the Bill and the amendments down tonight—and we may want to look at this again on Report—I really wonder whether it is wise in these circumstances to allow the Lord Chancellor to direct the director of legal aid casework as to how he or she shall carry out his or her function other than in respect of a specific case. As far as I can see, although the directions to be given by the Lord Chancellor have to be published, they are not subject to any oversight by this place. In the extremely sensitive world of law, prosecution and legal aid, that power of direction seems dangerous. I hope that my noble friend will take all these amendments to heart and come back to us at the next stage with a concession that deals with the central issue.
Lord Phillips of Sudbury
I am sorry to interrupt my noble friend’s flow, but surely for him to argue, as he just has, that all is well on the independence front because Clause 4(4) states that the Lord Chancellor cannot direct the director of legal aid casework in individual cases is small comfort given that it leaves intact Clause 4(3), which enables the Lord Chancellor to give directions, which the director must comply with, on anything to do with the director’s functions except in an individual case. A whole wide sea of discretion is given to the Lord Chancellor by that provision, which goes to the heart of the independence of the director.
Lord McNally
The noble Lord is repeating the thrust of a number of contributions that I have heard today. My response indicates the Government’s position at the moment. Again, along with this response will be the comments that he and other noble Lords have made. Let us see where we go from there. It is an important safeguard to ensure the director’s independence in carrying out his or her functions in relation to individual cases, which in the Government’s view is not improved or added to by the amendment.
Amendment 14 seeks to amend Clause 4(2) by removing reference to other persons who may be provided to the director under arrangements to assist in the discharge of functions under Part 1. Again, this is an unnecessary amendment. To the extent that independent persons are envisaged under the new scheme, the current drafting of Clause 4(2) does nothing to prevent such individuals being engaged. The amendment also may have unintended consequences that could serve to undermine the efficient operation of the new scheme. Were this amendment to be accepted, it would limit the range of those individuals who could be engaged to assist the director to either civil servants or independent persons. It may of course be that the director will in future only ever need the assistance of civil servants and independent persons to discharge their functions. However, we cannot be sure with any certainty that this would be the case in all eventualities in the future.
The current formulation of “or other persons” provides the requisite flexibility to meet any future scenario, including the provision of independent persons. Accordingly, Amendment 14 merely limits the pool of people that might be available to assist the director, with potentially problematic unintended consequences for the operation of the scheme.
Amendment 15 to Clause 4 is intended to alter the provisions in relation to the independence of the director of legal aid casework. As I hope to explain, we believe the amendment, again, is unnecessary. I will briefly set out for the benefit of noble Lords the role and key functions of the director and why I believe that independence is important and why it is already enshrined in the Bill. Under Clause 4, the Lord Chancellor is obliged to appoint a civil servant as a statutory officeholder who will be responsible for making funding decisions in individual cases, including funding decisions in relation to exceptional funding applications under the Bill.
The statutory officeholder is to be known as the director of legal aid casework. The Lord Chancellor is also obliged to provide civil servants or other persons, or both, to assist the director in carrying out their functions. The director must make determinations in legal aid cases in accordance with the provisions of Part 1 of the Bill.
Under the new arrangements, Clause 4 is potentially the most important. It ensures that the director has independence in carrying out functions and is free from any political interference in making decisions in relation to individual cases. This independence is enshrined by the specific provisions within this clause, specifically subsection (4), which the amendment would delete. Subsection (4) prohibits the Lord Chancellor from giving guidance or directions in relation to the carrying out of the director’s functions in relation to individual cases.
There are provisions within Clause 4 that oblige the director to comply with directions given by the Lord Chancellor about the carrying out of the director’s functions, and to have regard to guidance issued by the Lord Chancellor about the carrying out of those functions, but crucially such guidance and directions cannot relate to the carrying out of the director’s functions in relation to individual cases. This protection of the director against interference when carrying out their functions in relation to individual cases is an important safeguard.
I would like to assure noble Lords that the protection of this independence is a fundamental tenet of the new arrangements, which provide the necessary safeguards that are required to make the new arrangements work. It should be noted that the director is a separate office from the Lord Chancellor created by statute. As I have said, under Clause 4(4), the Lord Chancellor cannot give directions or guidance to the director about the carrying out of the director’s functions in relation to individual cases. That is a very explicit assurance about independence. The protection offered by Clause 4(4) extends to anyone, including civil servants, to whom the director may delegate his or her decision-making functions in accordance with Clause 5 of the Bill. I believe that the Bill already establishes a proper role for the director, free from any political interference in relation to the carrying out of his functions in relation to individual cases.
I now turn to Amendment 16, which seeks to amend Clause 4(4) by specifying a category of case in relation to which the Lord Chancellor cannot issue guidance or directions. As I have said already, Clause 4(4) provides the director of casework with statutory protection against interference in individual cases; to seek to specify classes of case in a clause that bars interference in any individual cases cannot in my view add anything to the existing provisions. The Government’s policy has been consistently that proceedings where the litigant is seeking to hold the state to account by judicial review are important and should generally be retained within the scope of civil legal aid. This is expressly covered in paragraph 17 of Part 1 of Schedule 1 to the Bill. As with other areas within the scope of civil legal aid, in a judicial review case that is within the scope of civil legal aid, the director’s functions under Part 1 of the Bill are to decide whether in each particular case the individual qualifies for funding.
Lord Phillips of Sudbury
Is one to read Amendment 18 as meaning that on any appeal from a refusal there will be an oral hearing, or is it possible that the initial appeal could be dealt with on paper? That might be a great deal quicker and cheaper in the first instance. One could then reserve an oral hearing for the really difficult cases.
Lord Bach
My Lords, I hope that I am correct in saying that our intention is that there should be a process whereby written applications can be made, but always with the provision that there can be an oral hearing in certain circumstances. The noble Lord makes a good point. I beg to move.
Lord Phillips of Sudbury
My Lords, this cannot pass. It must be in Hansard that on this occasion, rare though it is, lawyers acted pro bono.
Lord McNally
As I say so often, I am not a lawyer—thank God.
There was a question about how the independent funding adjudicator system is working. Some 11,560 reviews were received in 2010, of which about 3,500 were subsequently appealed to an independent funding adjudicator at a cost of about £18 per case. The total cost of these appeals was just over £63,000, so it appears to be a very cost-effective scheme. I hope that the noble Lord will withdraw his amendment.
Lord Howarth of Newport
My Lords, I understand that the Government are increasing funding for mediation by two-thirds, which is something that the Lord Chancellor has made considerable play of. But are the Government not at risk of putting rather too many eggs into this basket, particularly with the removal of legal aid, which is normally available in family dispute cases? Those on low incomes will be more or less forced into mediation. But you cannot force people to go to mediation. It will not work and, as my noble friend Lord Beecham has said, there is the danger of considerable inequality of power between the two parties whose dispute is being mediated.
I join other noble Lords in asking the Minister to look positively at the suggestion in the amendment tabled by the noble Lord, Lord Thomas of Gresford. It may be useful to provide some funding for collaborative law. It may well be that the legislation should reflect the positive view that the Government take of the availability of this means of resolving disputes in a variety of circumstances.
Lord Phillips of Sudbury
My Lords, my name is on this amendment. As persuasively put by my noble friend Lord Thomas of Gresford, it seems to be an unarguable proposition. The only fiddling point I would make about calling it “collaborative law” is that it is not the law that is collaborative but the process. It might be better to call it “collaborative resolution”, but that is a detail. I hope very much that my noble friend will feel that this is an advance.
Lord McNally
My Lords, we are approaching the witching hour, as the opposition Whip moves stealthily to consult the government Whip. I do not want to give any clues as to whether this is going-home time, but if it is I am very grateful to my noble friend for ending our evening on a matter on which there is some hope of collaboration. I do not want to raise his expectations too much, but I agree with the noble Lord, Lord Beecham, that this concept, which is new to many of us, seems to have great potential. Again quoting from the noble Lord, it appears to be adaptable and flexible. It now has the not inconsiderable badge of approval from the noble and learned Baroness, Lady Butler-Sloss, as an admirable scheme run by an admirable organisation. Like book reviews, I am sure that Resolution will have that as a strap-line.
How does this fit in with what the Government are trying to do? In response to the points made by the noble Lords, Lord Beecham and Lord Howarth, I should say that we have never seen mediation as a cure-all. The Lord Chancellor has made it very clear that he wants to wean us away from almost automatic litigation at the taxpayers’ expense, which is one of the attractions of mediation. The collaborative law concept certainly has its attractions.
As the noble Lord, Lord Beecham, pointed out when he quoted from Resolution, the MoJ has said that the Bill as it stands does not exclude the possibility of funding collaborative law in the future. Clause 7 refers to funding,
“mediation and other forms of dispute resolution”.
The amendments are accordingly unnecessary in so far as they set out to make it possible, as opposed to requiring, for funding to be made available for collaborative law. However, given the reduction in the budget that we need to make and the additional costs of involving two lawyers, as would be required for collaborative law when compared with mediation, we cannot commit to the additional resources required to fund collaborative law at this stage. We would not, however, rule it out at some time in the future.
I should like to make one other point. The Government understand that some mediation cases are complex and need additional legal support. We will be providing further legal advice in such family cases where an agreement reached through mediation needs to be turned into a court order, with an independent fee set at this level of service at £200. This is in addition to the £150 fee for legal advice accompanying mediation as originally proposed, and taken together this means that there will be considerable scope for publicly funded legal advice to accompany mediation, especially in more complex cases.
As I have said, I cannot take out the chequebook this evening so far as collaborative law is concerned, but I assure my noble friend that by putting this on the agenda, as it were, there is no doubt that it will play a part in future. Again, as the noble Lord, Lord Beecham, has said and as I have said a number of times from this Dispatch Box, legal services are on the move and I can very well see that the concept of collaborative law or collaborative resolution, if my noble friend Lord Phillips has his way, may well play a part in the future. At this time of night, however, I ask my noble friend to withdraw his amendment.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Phillips of Sudbury Excerpts(12 years, 11 months ago)
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Lord Phillips of Sudbury
My Lords, I declare an interest as president and founder of the Citizenship Foundation, which is the principal educator about the law in schools in this country. We work with more than half of all primary and secondary schools and try to give young people a sense of what it is to be a citizen of the modern, highly complex state. I commend the noble Lord, Lord Bach, for bringing forward this amendment and, indeed, I commend the Minister and the Government for an imaginative clause. I do not think that a clause such as this has appeared in legislation before, and I wholly commend it.
I have only a couple of points to add to what the noble Lord, Lord Bach, said in moving his amendment. The first is that we still live in a system where ignorantia legis neminem excusat, which is all very well if you know Latin and if you know a bit of law, but the average man or woman in the street, let alone the average pupil in any of our schools, is understandably, predictably, woefully ignorant of this extraordinarily complicated society and state that we have given birth to, principally, I have to say, in these Houses of Parliament. I have mentioned before, and I have to mention again in relation to this amendment and this clause, that we have a larger corpus of statute law than any democracy in the world by far and, of course, we are supposed to be a common law system, so it is not as if it stands on its own.
I believe that one of the principal causes of civic disaffection, if I can call it that, in this country, which I think is present and apparent on all sides—and I do not refer just to the riots a few months ago, I refer also to the declining turnout at elections and the declining inclination of people to stand for office in local government and so on—has everything to do with how people, not even consciously, feel that somehow we carry on here in total disregard of them out there. They never get asked, and they never get told, unless there is an election on, when all candidates are deeply keen to engage with the public at large. We have to do something about this. I am delighted to see that this clause is here. I shall be interested to hear what the Minister and other noble Lords say, but I would have thought that the importance of doing something about this is so pressing and so little understood that to have a requirement here rather than a discretion would, on balance, be desirable because there is no time to lose.
I shall give one small example of what a desert there is of accessible information about the law. It is that the Citizenship Foundation publishes the Young Citizen’s Passport, which is a passport to the law that will affect young citizens when they leave the school gates or, indeed, before they leave them, to do with housing, sex, contract and so on. The Citizenship Foundation has sold 2 million copies of this booklet, and that is not a small number. I suggest that that gives an indication of what a thirst there is for accessible, practical information about issues of law that are not voluntary for anybody, but are compulsory for everybody. I wholeheartedly support this amendment.
Lord Bach
We spent quite a lot of money on it, and planned to spend more. I think that that is as far as we can take it tonight, but if the noble Lord can supply the figures, if there are any, that would be helpful to the Committee.
I want to thank all noble Lords who have spoken in this fairly short debate. I particularly want to praise the noble Lord, Lord Phillips of Sudbury, for his role in the Citizenship Foundation. As my noble friend Lord Howarth pointed out, it is wrong to congratulate him this week if citizenship is no longer to play the role that it has done in the curriculum. I suspect that the noble Lord, Lord Phillips, will have more to say on that, perhaps even now.
Lord Phillips of Sudbury
My Lords, I would simply like to make clear that the noble Lord, Lord Howarth, was right up to a point: the issue is not decided. There is everything to play for. I say to anybody in this Chamber who thinks that it would be a bad step, please get your pen out and write to Mr Gove.
Lord Phillips of Sudbury
My Lords, I want to make one point and one point only but I hope to do so forcibly. If it is mandatory for those seeking assistance to go through a telephone gateway, we will cast adrift a significant minority of our fellow citizens who will never use a telephone gateway for the sorts of problems with which they are confronted. It is a small but significant group, and it would be an irony if the most needy people in our society were the very ones who were, in effect, cut off from access to legal help when they most needed it.
I say this from a considerable amount of personal experience working for the Samaritans and for one of the London law centres, and from my life as a young solicitor in a general practice and, indeed, as the director of the first national legal telephone helpline. I emphasise to the Minister that the problem really is not at all obvious. It is a commonplace that the younger generation today is phenomenally computer literate and so on, but there is still a small group of people who are totally lacking in self-confidence and in an ability to analyse their own problems, and they are fearful of being made fools of on a telephone. I could go on describing this group. I quite accept that for the majority of people what is currently proposed is fine but, as my noble friend Lord Shipley and others have said, we must, whatever else we do, have a second route into legal help which does not cut off that most needy group.
Lord McNally
I thank noble Lords for their comments. A number of points have been raised. The helpline is an 0845 number. However, callers can text or call to request a call back at minimum cost, and the call back will be entirely free. There is also an online form which can be sent to the helpline at no cost. The helpline is a confidential service and the legal advice given will be protected by legal professional privilege.
I hear what my noble friend Lord Phillips says, although it is ironic that one of the experiences that he quotes is that of the Samaritans, whose service is based on the telephone. I hear that there will be this needy section of society but I suggest that the range of services mentioned by my noble friend Lord Shipley will capture these people. There are also health visitors and local councillors. If there are such people in our society and if they are disabled in this way in the broader sense of that word, they will get advice. I really think that it is taking the argument too far to say that there must be a system that can identify the individual who is so afraid of the modern world that he will not engage. No system on earth can cover that.
I am not being flippant about what we are addressing now but, when we were involved with broadcasting issues, noble Lords would make a great fuss about some mythical pensioner, who lived in the West Riding, had a nine-inch Bush television and would ask whether she would be able to get the television stations when we switched to 625 lines from 405. We can always take things to the extreme, but the people who were mentioned by my noble friend Lord Phillips and others are those who will be given other sources of advice to enable them to go through the gateway.
I will deal with the issues raised by the noble Baroness, Lady Grey-Thompson. She asked how records will be kept. Recordings and case records will be retained for six years after the contract with the provider has expired. If a caller calls on more than one occasion, the operator will hold on to the information held. She asked whether an advocate can ring on behalf of a client. All clients will be assessed on a case-by-case basis and a caller identified as being unable to give instructions, or to act on advice given, will be referred to a face-to-face advice service and there will be provision for a third party to call a gateway on a client’s behalf.
We have taken on board the issues of people with learning difficulties or mental health issues. Where a client who lacks capacity contacts the specialist telephone advice service, or the adviser believes that they may lack capacity, the advice provider will need to follow relevant professional standards. However, the specialist advice service will be able to discuss the details of the case with an authorised third party.
The noble Lord, Lord Shipley, raised the question of whether the operating service may not correctly diagnose a problem. Only where the operator service is fully satisfied that it has correctly diagnosed that a case is out of scope will they make a decision. If there is any doubt, they will refer the matter to a legally trained specialist. The noble Lord, Lord Bach, asked how people will know how to ring the helpline. We will be developing a communication strategy between now and 2013 when it will come online. That was also a question asked by the noble Baroness, Lady Grey-Thompson. That information about the line will be appropriate and specifically targeted to routes that individuals currently use to find out information.
Both the noble Lord, Lord Howarth, and the noble Baroness, Lady Grey-Thompson, asked whether helpline operators will be legally qualified. The answer is no, because they do not offer callers legal advice. They are fully trained to identify key words from a client’s description of a problem to ensure an accurate diagnosis. That means that the client can then be passed on to the appropriate legally trained adviser who is able to give advice on the relevant point of law.
The noble Lord, Lord Shipley, and the noble Baroness, Lady Grey-Thompson, asked about qualifications. Gateway operators are fully trained. Telephone advice specialists are required to have the same level of qualification as their face-to-face equivalents.
I am well aware from the debate that noble Lords have concerns about the mandatory single gateway and the Government are seeking to give assurances about those concerns. Amendment 4 relates to Clause 1 and would affect the introduction of the mandatory single gateway as set out in the Government’s consultation response on legal aid reform. It is essential that the Government should seek to provide legal aid services in a cost-effective manner that meets the needs of their clients. However, this amendment seeks to fetter the Government’s flexibility to do so by placing the specific duty on the Lord Chancellor under Clause 1 that for those people eligible for legal aid, those legal aid services must be available in a range of forms and that this must include face-to-face advice. This would preclude the possibility of providing, subject to exceptions, legal aid services in certain areas of law only through specialist telephone advice services. This amendment would also conflict with the provisions in Clause 26(1) and (2), which provide that the Lord Chancellor’s duty at Clause 1 does not, where an individual qualifies for legal aid, include a duty to secure that services are made available by the means selected by the individual. The Lord Chancellor may discharge that duty by arranging for services to be provided by telephone or by other electronic means.
The Government explained in their consultation response their intention to implement a mandatory single gateway, based on the community legal advice helpline, initially in a restricted number of areas of law. Clients in these areas would generally be required to apply for legal aid over the telephone or other electronic means, and would then, if they qualify for legal aid, be offered legal aid advice only over the telephone or other electronic means. The areas of law concerned are debt, in so far it remains in scope; community care; discrimination—in other words, claims relating to a contravention of the Equality Act 2010—and special educational needs. There would be an exception to using the mandatory single gateway to the four areas of law covered by the gateway. These would be emergency cases; instances where the client had previously been assessed by the mandatory single gateway as requiring advice face-to-face within the last 12 months and is seeking further help to resolve link problems from the same face-to-face provider; and clients who are in detention, including prison, a detention centre or a secure hospital, and children, defined as those under the age of 18.
In the legal aid consultation response, we also explained that where clients access the community legal advice helplines through the mandatory single gateway in those four areas of law, we expect that those who qualify for legal aid would normally be transferred to the community legal advice specialist telephone adviser. However, both gateway call operators and specialist advisers will assess the specific needs of all callers on a case-by-case basis. This assessment will be based on the personal circumstances of the client and the nature of the issue about which they are seeking legal assistance. Generally speaking, the key consideration is whether the individual client or someone on their behalf will be able to give instructions and act on the advice given. But where it becomes clear that legal representation will be necessary, clients will be given the option to see a face-to-face provider.
Where it is determined that face-to-face advice will be more appropriate for the caller, they will, where possible, be given a choice of face-to-face advice provider either from a list of suitable advice providers or a specific suitable provider known to the client. The Government do not believe that there will be any significant delay to an individual receiving the help they need or any increased bureaucracy caused by the introduction of a gateway. In some cases—for example, where a client does not know which provider will be able to help—we believe that telephone advice is likely to be quicker even where a referral is to a face-to-face provider. The Government believe that the diagnostic and routing service offered by the gateway will be of value to many.
Amendments 114 and 116 would require that where legal aid services are provided by telephone or other electronic means, those services should be provided solely by a not-for-profit sector. I recognise and value the important role that not-for-profit organisations play in delivering advice at the local level. I also recognise the concerns of many noble Lords about not-for-profit organisations and the future provision of advice services. However, seeking to create a type of monopoly for not-for-profit organisations is not the way to address this.
As noble Lords will be aware, it would not be possible for the Government to commit to awarding contracts for telephone services solely to a specific sector, as any services commissioned by public bodies are subject to EU procurement rules. However, not-for-profit and charitable organisations can and already do bid for contracts to provide specialist telephone advice under the existing community legal advice helpline. At present, six of the 15 contracts for specialist telephone advice through the helpline are held by not-for-profit or charitable organisations. Future contracts will continue to provide opportunities for such organisations to bid to deliver specialist telephone advice services through the helpline and the telephone gateway. Of course, such organisations are also able to bid for the telephone operator contract for the helpline. The amendments would also mean that the criminal legal aid telephone advice service, CDS Direct, could be provided only by the not-for-profit sector. Not-for-profit organisations do not currently provide telephone criminal legal aid advice and I am not aware that they wish, or are currently equipped, to do so.
Related to general concerns about the future provision of face-to-face advice services is the decision to limit the initial scope of the telephone gateway to four areas of law, which will have a more limited impact when compared with the original proposal set out in the consultation paper. The Government are confident that implementing the telephone gateway in limited areas of law will enable better monitoring of the impact on clients and providers in order to inform future decisions about any further expansion of the gateway.
On future civil legal aid advice provision more generally, the Government are committed to ensuring that people continue to have access to good-quality, free advice in their communities. This is why the Government have launched the advice services fund and a review of free advice services. They have set aside £20 million—I say to the noble Lord, Lord Beecham, that it is the same £20 million; I am not announcing yet another £20 million—to support the not-for-profit sector in the short term. The fund will provide immediate support to not-for-profit advice service providers in England to deliver essential debt, welfare benefit, employment and housing advice services. The details of the fund were announced on 21 November by my honourable friend Nick Hurd MP, the Minister for Civil Society.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Phillips of Sudbury Excerpts(12 years, 11 months ago)
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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 Clinton-Davis
My Lords, I would like to ask the Government a simple question. What do the Bar Council, the Law Society and the organisations concerned with poverty with regard to legal services have to say? Have the Government taken the trouble to consult these organisations? The noble Lord says that they have. So what is their reply? They remain obdurately opposed to the principles that the Government are putting forward today. I unhesitatingly support the amendment. Pretty well all the speeches in the Committee—whether from the Conservative, Liberal Democrat or these Benches, and on the Cross Benches—have expressed opposition to what the Government are trying to do and support for what the amendment stands for.
I also unhesitatingly support the remarks of the noble Lord, Lord Carlile. He has spoken very bravely, and has been supported by several noble Lords who share his profession. A bevy of Silks have announced support for the proposition advanced by the amendment. I got involved with legal aid from pretty well the very beginning, because of a very simple notion—I thought it was imperative that ordinary people should be able to advance their cause and, where they are impaired from doing so, they should be supported by the state. That was my view then. The amendment sets out very clearly, within the constraints that are necessarily imposed upon us, the basic principles that we should preserve.
It is vital that individuals should have access to legal services, where their rights are being seriously impaired or are not being properly advanced—subject always to the provisions of the 1999 Act. There is a serious risk that both of these will occur, separately, under the changes to legal aid provision now being contemplated. I am surprised that any person of any sensitivity—and I think that the noble Lord, Lord McNally, would fall into that category—would support such changes. I have always had great admiration for the noble Lord—I do not know why, as he has done his best to impair that decision on my part. It is not a question of party prejudice at all; it is a question of downright decency and that is what I support today.
Lord Phillips of Sudbury
My Lords, one could be in danger of being slightly sentimental about the Access to Justice Act. Some in this Chamber will remember it very well and opposed it very strongly. I called it the “Exit from Justice Act”. However, I recognise that legal aid is a sort of Cinderella of the welfare state and is a very difficult service to defend in terms of public opinion, for reasons that I advanced at Second Reading and which I do not propose to repeat. However, I will just say that I am, always have been and always will be, passionately committed to the legal aid scheme. Without an effective legal aid scheme the legislation we produce in this place can be viewed as cynical. To legislate rights knowing that a large number of those for whom they are intended do not have access to them must be a form of cynicism. Having said which, the Government are placed in an extremely difficult position, and there is no jibbing the fact that all departments of state have to bear some part of the cuts which the Government have determined are essential for our economic well-being. I am one who concurs with that judgment.
Lord Clinton-Davis
There must be some restriction. I unhesitatingly support the legal aid system but there has always been an understanding, has there not, that the amount of resources which are available must be consonant with what we can afford?
Lord Phillips of Sudbury
The noble Lord has just made the case for the Government rather succinctly. That is the argument; what I am saying is that if you put the qualifying phrase,
“within the resources made available”,
into Clause 1, then everything is subservient to it. At the moment, the legal aid cost rises and falls—it usually rises but occasionally falls—according to the demands of the citizen upon it within the scope of legal aid availability. As I say, with this phrase in it the Government could say at the start of the year, “We are not paying out more than blank pounds for legal aid”, and that would be that.
Lord Goldsmith
Perhaps I might say to the noble Lord that I was concerned about precisely that point. I look to the noble Lord, Lord Pannick, and indeed to the Government, but I hope that the answer is in the requirement that it should be secured,
“in accordance with this Part”,
and that that therefore means that those things which I, too, hope will be in the Act at the end of this Bill’s passage will have to be secured, and will not be subject to any monetary qualification. I hope that that is the answer as it was part of my reason for taking the view, after my hesitation, that I would support the amendment.
Lord Phillips of Sudbury
I refer the noble and learned Lord to the fact that the sentence within the brackets which qualifies the obligation of the Lord Chancellor to secure includes the words,
“within the resources made available and in accordance with this Part”.
If they are in conflict—namely, that the resources made available are insufficient to meet the demands of this part of the Bill—then we are in a bit of a muddle, are we not?
Baroness Kennedy of The Shaws
My Lords, my starting point was the same as that of my noble and learned friend Lord Goldsmith, in that I, too, felt very alarmed that this amendment seems to be too concessionary because it was acknowledging too much on the resource front. However, I acknowledge now that it pins down the question of whether there is a constitutional issue here. If there is, it has to cut across all the areas of law.
I was always battling the previous Government over their cuts to legal aid because of what they meant to quality. What concerns me about the Bill is that it takes whole sections of law out of the purview of legal aid so that medical negligence is not included, and nor are family matters unless there is domestic violence. It is the business of creating whole areas that are not covered by legal aid that is a source of alarm to me, and that is met by the amendment. If you are committed constitutionally to access to justice, you cannot create whole areas that are excised from legal aid. That is how I would read it now.
There are two things I want to say pre-emptively before the Minister stands up to reply. First, one of the things that is always said by the Minister responding on issues like this about legal aid is, “Look how many lawyers have spoken”, as though somehow or other we are the beneficiaries, we are all in this great trade union and we are basically protecting a closed shop. I say to the noble Lord, Lord McNally, known to us all as a decent and fair man, that it is not surprising that lawyers will by and large be the people who speak on this. We know from our work in the courts that it is the poor who will be disadvantaged. It has been my experience while acting in the courts that the disadvantaged will always be those with few resources. We have to make provision for them. That is what access to justice is all about; we know that from our experience. This is nothing to do with protecting the interests of lawyers.
Secondly, on looking for cuts, I have always said to the Government, and I said it to the previous one, that there are other areas where we can make savings. It has always been a source of amazement to me that when the Government need lawyers—for example, when Treasury Counsel sought representation for different government departments—they are not paid at legal aid rates; they are paid at commercial rates. They are paid the sort of money that the corporate sector pays its lawyers. If we want to save money, we should be making serious savings in what government departments pay lawyers for representation. It was always a source of amusement to me that when the Hutton inquiry took place and the Prime Minister at the time, Mr Blair, needed representation, it was to Mr Sumption that he turned—one of the most expensive barristers around. I do not think that it was Mr Blair’s own purse that paid the bill; it was the taxpayer. I would like to see the Government making cuts with regard to the lawyers that they choose to represent them and that pocket of money distributed to those who really need representation—the poorest in our society.
We are concerned that there is a constitutional issue here. Whole areas of law should not be taken out of the purview of legal aid.
Lord McNally
There is absolutely no logic in what the noble Lord has said, with the utmost possible respect—I think that is what you say to each other when you are insulting one another. Lord Justice Jackson may well have a perfectly reasonable opinion that legal aid should not be cut, but it does not follow that, if it is cut, it will not remain the most generous system in the world. There is a non sequitur in what was said. Lord Justice Jackson says that he does not want the present system cut, which is fair enough but, if the system is cut, it will remain the most generous legal aid system in the world.
Lord Phillips of Sudbury
Does my noble friend at least accept that we legislate vastly more than any free democracy in the western world? We have between 200 per cent and 400 per cent more statute law than any free state that I have yet discovered.
Lord McNally
I have no idea whatever whether that figure is correct. I am not even going to promise to write to my noble friend about that. Yes, I think both members of the coalition came into government determined to legislate less and I am sure that, if and when power changes, any new Government will come into power wanting to legislate less. However, you get into a department and find that it has two or three Bills that it has just been waiting to get on to the statute book, or some campaigning organisation, probably chaired by my noble friend Lord Phillips, has a ready-made Bill to get on to the statute book as soon as possible.
First, perhaps I can deal with the calumny from the noble Baroness, Lady Mallalieu. I am not a Home Office Minister; I am a Ministry of Justice Minister. We benefit from that subtle division of responsibilities carried out by the previous Administration, which has so benefited government. Just as my noble friend Lord Carlile emphasises the liberalism of his approach, I make no apologies for approaching these matters as a social democrat. I look at these issues through those eyes, including that raised by the noble Lord, Lord Ramsbotham. It is extremely important that in reforming our justice system, we keep rehabilitation in the forefront. It is important to make clear that we will have a vigorous system to prosecute justice and punish offenders. However, if we carry on casually allowing the upward rise of our prison population into six figures, it will be a self-defeating process. Unless we attack the rehabilitation of offenders to stop the horrendous reoffending rates, as the noble Lord, Lord Ramsbotham, has often championed, we will be doomed to be spending increasingly more on punishment in a justice system with no real help to society at large.
This has been a philosophical debate. The noble Lord, Lord Howarth, set the tone in a speech which, as my noble friend Lord Thomas of Gresford pointed out, was wonderful in its rhetoric but brought us to why there was not universal support for the Pannick amendment. It suggested that the Government might have to take some account of the resources available. The noble Lord, Lord Howarth, went back to Magna Carta, quoting Lord Bingham and others. I have beside my bed a copy of his The Rule of Law, which is a guide for any lay innocent Justice Minister. We have to accept the fact that Governments and departments have to meet budgets and that they cannot find blank cheques and never have been able to.
I went to see the noble Lord, Lord Hutchinson of Lullington, who, sadly, can no longer attend the House and has taken leave of absence. Jeremy Hutchinson is now 96, but was one of the group of lawyers who helped to bring in the 1949 Act. He said rather wistfully, “We thought that we were bringing in a National Health Service for law”. In a way, I can understand that that is a noble aspiration. However, as successive Governments have shown, it is one that must be constrained by the economic realities of the day. Therefore, we are having to make choices—and sometimes hard choices. Perhaps I may again quote my right honourable friend’s article in the Guardian:
“The logic is simple: to determine carefully which types of cases most urgently merit scarce resources, to encourage people to use non-adversarial solutions to their problems where appropriate, and to speed up and simplify court processes where they are not”.
That is the philosophy of the Bill and it is what we are attempting to do. It is unfair when people use language suggesting that we are taking an axe to a whole system of justice. I know from my contact with the Lord Chancellor that that is not his intention.
The noble Lord, Lord Hylton, asked me about our approach to non-adversarial solutions. As the Lord Chancellor indicated in the Guardian article, we are looking to increase funding for family mediation. The Government are committed to increasing it by £10 million, which would fund an extra 10,000 cases.
I hear the speeches from my own Benches and am always interested when someone like my noble friend Lord Carlile makes an intervention followed by praise for courage from around the House. I draw his attention to the line in George Bernard Shaw’s “Saint Joan”:
“Woe unto me when all men praise me!”.
Actually, I am a little bit old fashioned. I believe that the real courage is in standing up and saying, “I support the Government. I think that this is a very good Bill and I intend to vote for them tonight”.
Lord Phillips of Sudbury
My Lords, I agree with every word that has been spoken so far. I say to my noble friend the Minister that it is easy for those who have never been involved in what one might call social security law to underestimate the extent to which so-called ordinary citizens can be completely baffled and often frightened by their engagement with it, certainly if one is talking about appeals; it is important for the Minister to note that the amendment, to which my name has been added, is only in respect of appeals on points of law. I ask him to contemplate how he would feel, with all his self-confidence and eloquence, if he had to go before any of the tribunals mentioned in Amendment 2,
“welfare benefits, employment, debt, housing, immigration, education, and asylum”,
although heaven forfend that the Minister should appear before a tribunal in relation to asylum. Seriously, however, it is not reasonable to demand a citizen even to decide whether he or she has a point of law which can be taken before a tribunal. It is simply unrealistic. One could almost say it is cruel to pretend that we are creating rights for those citizens most in need when they cannot even get advice and representation on points of law at appeals.
Finally, I shall quote from the National Association of Citizens Advice Bureaux briefing that has been sent to us all because I am sure that we all share a huge admiration for Citizens Advice. The association says that it agrees with the arguments made covering legal assistance in the Upper Tribunals, which share the jurisdiction of the High Court and follow complex procedural rules to hear appeals on points of law; and that most often it is either public bodies or large corporate employers that use these tribunals to appeal decisions made in the claimant’s favour in lower tribunals, and they instruct legal counsel to do so. It is important to realise that it is not Mr Jones or Mrs Brown appealing, but the public body they have worsted at the tribunal appealing against the order made in their favour. If these people are denied the right to legal representation, what sort of justice is that? It is not justice and I hope that, with regard to this amendment and the others in the group, the Government will consider and agree to this change.
Lord Williamson of Horton
My Lords, on an amendment such as this it is important that we look first at the substance. This is an important and substantive amendment, and in general I think it is a very good one. However, it is also important to look at the text. I have one point on the text which, if I may, I shall put via the Minister to the mover. The reason I do so is that the coverage is very wide; that is to say, the amendment covers employment, housing and education —not just other welfare services but a whole range of things that go very wide. My question concerns the phrase,
“in dispute with the state”.
To a lawyer that may be absolutely clear, but as a non-lawyer I am not clear about what is covered in terms of important bodies like local authorities and so on. They are part of the state, but are they fully covered? Such a range of things is listed here that I would like some clarification on that.
For example, what about a state-owned bank which is in dispute with its staff about employment? Is that or is that not covered? I do not want to make too much of this point because it is not a substantive one on the main objective but, if we have an amendment before us, it is quite important to understand what the intention of the mover is in relation to its coverage.
Lord Bach
That is what I mean—in case there is any misunderstanding about it. I can see how that could be misinterpreted.
As the noble Lord, Lord Thomas of Gresford, said, with his Amendment 2, to which he spoke along with his later amendments, Amendments 29 and 78, we get down to the nitty-gritty. I want to talk briefly about Amendment 19, which is in my name and that of my noble friend Lord Beecham. It is the first outing of what I think will be a very important issue in this Committee, which is what should happen to scope of legal aid in particular areas of social welfare law.
The noble Lord, Lord Thomas of Gresford, and the others who spoke in favour of his amendment have been too gentle with the Government on this issue. It is absolute nonsense that there could be any question that anyone who gets to the second tier, the Court of Appeal or even, heaven forbid, the Supreme Court, on a point of law—for example, on a welfare benefits issue—should not have legal can not afford their own lawyer to conduct their case, and I very much hope that the Government put it in the Bill in order to take it out. It is inconceivable that John Smith, as it were, could turn up alone at the Supreme Court with his case and be faced with the Supreme Court justices and the very experienced and brilliant counsel representing the other side. I cannot think of any other Government, of any persuasion, ever having thought of doing anything like that. I am quite sure that the Government of whom the noble Lord, Lord Newton, and the noble and learned Lord, Lord Mayhew, were distinguished members would not even have dreamt of suggesting that someone should appear on their own at a case like that without the benefit of legal aid. I very much hope that we do not hear too much more about it.
Some vital case law—on welfare benefits, for example—has been decided at the higher courts as a consequence of the claimants concerned having been properly legally represented. Big social security test cases which reached the higher courts by way of the appeals process include 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. The idea that cases of that kind, or even those that are less important, should be conducted by a claimant in person is absurd. So I hope that the Government will accept Amendment 2 without cavil. Whether the wording is right is not a matter for tonight, but it is the principle that matters.
We argue in our Amendment 19, which is a probing amendment designed to find out what the Government feel about it, that the law should go wider and that there should be no question of taking out of scope reviews of welfare benefits. The amendment would ensure that individuals seeking to defend their fundamental economic and social rights had the advice that they needed to be able to present their cases and understand the processes that they would be subject to. Our amendment would allow the applicants to get advice before going to a tribunal. The First-tier Tribunals were set up, as we have heard, to consolidate the various tribunals that adjudicate on administrative matters of the state. Admirable work has been done and is being done to try to make First-tier Tribunals as user-friendly as possible—I praise the noble Lord, Lord Newton of Braintree, for having played a big role in this, as well as Lord Justice Carnwath, whom we should congratulate on being elevated to the Supreme Court today.
Lord Phillips of Sudbury
The noble Lord’s mention of Lord Justice Carnwath put me in mind of a fact which none of us has so far mentioned but which I invite him to endorse, which is that the amount of court and tribunal time wasted by having unrepresented appellants has a cost attached to it.
Lord Bach
I agree with the noble Lord and I shall say a little word about that before I sit down.
Admirable work has been done in the First-tier Tribunal to make it as friendly as one can. However, it is impossible—and the Minister has heard this from around the Committee today—to square the circle in that those tribunals still fundamentally are ruling on matters defined and decided through laws, rules and guidance, which is sometimes pretty heavy, that often carry criminal sanctions if violated. It is quite clear when one looks at official statistics on the First-tier Tribunals that the Government are wrong when they say that tribunals can be accessed without advice. You are twice as likely to win an appeal if you have had some basic advice rather than no advice at all. The Minister's team has kindly provided information that allows us to quantify the increase in likelihood of winning an appeal if the appellant has been advised. This is to the First-tier Tribunal. For some types of cases, such as employment support allowance, you are more than twice as likely to win. Given that it allows people to return to work, seeing thousands of cases that would have been won with advice is surely wrong headed.
Public Bodies Bill [HL]
Lord Phillips of Sudbury Excerpts(12 years, 12 months ago)
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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.
Baroness Fookes
My Lords, when I last spoke in this Chamber it was on the occasion of the debate in advance of Remembrance Sunday introduced by my noble friend Lord Selkirk. In that debate, I expressed my grave dismay at the then prospect of the duties of the chief coroner being distributed between departments and various officials.
I spoke, and speak now, from a very precise position. I am honoured to be the president of the War Widows Association of Great Britain. Its members know above all others what it is like to suffer the loss of loved ones and to go through military inquests. Over the years, they told me in no uncertain terms how difficult it was if a coroner was inexperienced in dealing with inquests, the nature of the war scene and the military ethos. To put it bluntly, the Ministry of Defence could pull the wool over the eyes of coroners not experienced in wartime matters. As time went on and certain coroners became expert, life became very much easier. My concern when the last Bill, now an Act, went through was that there should be coroners who had experience and had been properly trained to deal with this particular aspect of the coroner’s duties. Therefore, one can imagine my dismay when this was apparently thrown out of the window and it was decided not to take it further.
I am therefore very pleased indeed that wiser counsels have prevailed, and I know that many have been involved in the persuasion. I am grateful to the Government for largely, if not entirely, rescuing the whole coronial system. I think it would be churlish not to offer my sincere thanks for this particular mercy. Since I feel I am getting a bit aged to be a rebel, I am also relieved that I have been spared that tonight.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Phillips of Sudbury Excerpts(13 years ago)
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Lord Phillips of Sudbury
My Lords, this Bill is another monster piece of legislation—234 pages long—amending no fewer than 34 other statutes and repealing parts of 20 statutes. I rather concur with the suggestion made by my noble friend Lord Goodhart that it might have been more manageable were we to have taken this in two bites. Certainly, the complexity of this measure will tax all of us to the limit and, I fear, the Minister beyond endurance. Having heard the noble Lord, Lord Pannick, mention the speech made by Sir Hartley Shawcross on 15 December 1948 in moving the Second Reading debate of the Legal Aid and Advice Bill, I cannot resist quoting the first two sentences, the first of which illustrates the gulf of style that separates then from now and the second of which is a rather pithy encapsulation of what the Labour Government were then trying to do. I wish that I could put on his accent, but he said:
“If I might translate a respected expression from the promissory and ephemeral field in which it has been misemployed of late into the sphere of intended enactment, I should be inclined to call this Bill a charter. It is the charter of the little man to the British courts of justice”.—[Official Report, Commons, 15/12/48; col. 1221.]
With that, we can all concur.
Like the noble Lord, Lord Clinton-Davis, I have been a solicitor for more years than I dare to remember. But I came into the profession in the 1950s fired—I have to be frank—with a certain idealism that the 1949 Act had brought justice within the reach of every man and woman. I fear that I still persist in that ideal, although one has to confess that over the intervening years the legal aid scheme has run down and down. There is one reason above all for that—it is not a popular scheme with the great British public. It is if you take advantage of it but it is not in general. I am afraid it is assumed that anything that is good for the legal aid scheme is most of all good for lawyers and we are the least popular branch of the entire establishment. In my view that makes it more essential that we defend the legal aid scheme.
I accept and want to make clear, especially to my noble friends on the Front Bench, that it must have been most difficult to put this measure together in a circumstance where all departments of state are having to take their share of unpopular and unwished for cuts, but which are, none the less, I believe, necessary. However, two broad matters, both of which have been referred to by other noble Lords in this excellent debate, have to be faced by the Government and have to be satisfied if this Bill is to go forward without doing far more damage than good.
The first matter is simple, yet complex, and it has been referred to many times; that is, the boast in this country of equality before the law. Is it not something which enables us to sleep soundly that the judges are not corrupt and that the law is designed with the best of intentions? Again, if we are honest, we have to accept that year-by-year—it does not matter which Government are in power—we legislate more and more benefits for the disadvantaged, the poor, the unable and so on. It is a large slice of every party manifesto. Religiously and properly we legislate and enact those good intentions. But we all know full well that those rights are not enjoyed by a large minority of those for whom they are intended. There is no access to those benefits. Why? Above all, it is because the law relating to access is a jungle. If you think that only tax law is a complicated jungle, just have a look at welfare law.
I believe that if we legislate rights and benefits for our less advantaged citizens, knowing that they will not be taken advantage of because we do not have the wherewithal to enable the people who need those benefits to access them, we are engaged in an organised hypocrisy. We undermine this place and democracy. We add to citizen disenchantment and to a social context which I believe is one we should all worry greatly about—a context which I suggest showed at least one aspect of itself in the riots a few months ago.
I am apologetic to my noble friends on the Front Bench because I appreciate that they are in a position that I am not, but I cannot resist saying, as an old lawyer who has spent his life standing up for legal aid—I formed the Legal Action Group with others in 1971—that I cannot go along with a situation where we pretend that we are doing good to our fellow citizens when we know we are not and we know why we are not. Yet in this Bill we are doing exactly that.
To take but one example, we are excluding welfare advice from legal aid henceforward. Can anyone imagine any aspect of our law which more needs help and advice than welfare law? I cannot. Citizens Advice has 400 main offices and 3,300 satellites. It deals with 2.1 million advices every year and welfare law problems are a major part of that. Yet that will be taken out of scope. Law relating to social security, debt, housing, immigration, community care and employment will be taken out of scope, although not totally. However, welfare will be. Citizens Advice calculates that at present the advice given in those areas by the CABs and the approximately 50 law centres that still exist, but which are declining, costs £25 million plus to the Exchequer. If this Bill is enacted as currently drafted, that sum will be down to £5.5 million. But as others have said, no serious attempt has been made to calculate the downstream impact in just financial terms, let alone in terms of pain, suffering, disenchantment and cynicism.
Recently, the Ministry of Justice stated:
“The lack of a robust evidence base means we are unable to draw conclusions as to whether wider economic and social costs are likely to result from the programme of reform or to estimate their size”.
What are we doing? We know the suffering, the disenchantment and the cynicism that will follow. We have made no attempt to calculate the financial costs in social or other terms. We know that these problems come in clusters and that if a man is not given advice on a housing problem because it is now out of scope, that may lead to an eviction order in a court, which in turn will lead to a plethora of social security and welfare engagements, such as children—you name it. Tens of thousands of pounds could be involved for the saving of a piece of advice by a CAB or a solicitor—God bless him if he is still doing this type of work. Let us not forget either that the cost of this work is by the standards of most solicitors puny. It is a £150 fixed fee for every case that they take on. A City solicitor charges £150 for 10 or 15 minutes of his precious time.
I could go on but time is against me. I hope that when we get into the details of this Bill, we will be able fairly and squarely to face up to the on-the-ground realities so that we emerge with a Bill that does justice to the Government’s needs and aims but also does justice to justice.
Young People: Politics
Lord Phillips of Sudbury Excerpts(13 years, 2 months ago)
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Lord McNally
I have heard this bubbling away on the other Benches. I will certainly look into it. I know of no reason why it is not available in the Printed Paper Office. I assumed that it was available immediately. Indeed, if I may say, one of the things that I would like to see is legislation in this House that would make every Member of this House interested in boundaries and elections.
Lord Phillips of Sudbury
My Lords, I first declare an interest as the founder and president of the Citizenship Foundation, which works with over half the state’s schools in trying to educate the citizens of tomorrow. It is at present part of the Government’s policy—albeit it is out to consultation—to remove citizenship as a compulsory component of our education. Would he not accept that today’s democracy is fiendishly complicated; the output of Parliament is unbelievably complicated; and if we really want young people—particularly less self-confident and less able young people—to identify with democracy, take an interest in it and own it, we cannot afford at this point of all times to abandon citizenship?
Lord McNally
I pay tribute to my noble friend’s commitment to the concept of the teaching of citizenship and note what he says about the importance of keeping it on the curriculum. As he says, the matter is out for consultation, and I suggest that the Citizenship Foundation put in some weighty evidence on the matter. I am sure that it will.
Personal Injury Lawyers
Lord Phillips of Sudbury Excerpts(13 years, 4 months ago)
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Lord Strathclyde
I really do not think that the Opposition should have two goes; it is the turn of my noble friend.
Lord Phillips of Sudbury
Will my noble friend please take even more account of the fee-farming industry that has grown up in this country, which encourages indiscriminate and, I have to say, false claims because neither the fee-farming company nor the solicitor who purchases the case from the fee farmer ever sees the client? Without that, there is no constraint on dishonesty.
Lord McNally
My Lords, it is almost 15 years since I first asked a question on this. I have always had my doubts about claim management companies. There are more than 3,000 of them at the moment; 450 of them have had their authorisation cancelled by the claims management regulator, and I would like to see a lot more of them cancelled.