Assisted Dying Bill [HL]

Debate between Lord Phillips of Sudbury and Lord Howarth of Newport

Friday 16th January 2015 Lords Chamber

[Lord Phillips of Sudbury (LD)]

My Lords, this is in the nature of a probing amendment. On the first day in Committee your Lordships decided overwhelmingly that a person may only obtain an order subject to the consent of the High Court, Family Division. You do not need to be a lawyer—I am a very long-in-the-tooth lawyer—to know that applications to the High Court of any sort are apt to be expensive. In respect of what could be an extremely tense, complex and contested application under the Assisted Dying Act, as it will be, the issues to be dealt with by a judge could be both numerous and difficult of deliberation. It is not impossible that members of the family might wish to be heard on such an application. At all events, I put it to the Committee that we cannot legislate on this important measure knowing that access to its provisions will be confined to the better-off.

Most people, particularly those lacking in confidence and articulacy, will not be able to bring an application of this sort without legal assistance. If they want to intervene in the proceedings, similarly they will not be able to do so without legal assistance. That of course means expense—sadly, very considerable expense. I therefore tabled this amendment with a simple objective, which is to make the Bill democratic and fair—a Bill of equal access—and I hope that it will commend itself to the Committee. I am well aware that there may be defects in its phrasing—

[Lord Howarth of Newport (Lab)]

My Lords, before the noble Lord concludes, he has indicated his expectation that the level of cost will be pretty significant. Can he give us in very broad terms an assessment of what the range of probable or likely cost might be?

[Lord Phillips of Sudbury]

The short answer is no. Lawyers charge very different amounts. A city lawyer charging £500 or £700 an hour is rather different from a country lawyer charging £100 or £200. It will also depend, as I said, on the complexity, but one is talking of thousands, not hundreds, of pounds. That is about the best I can do on that. However, as I said, I hope that the principle will commend itself to the Committee and that necessary changes to the drafting of my amendment can be dealt with prior to the next stage. I beg to move.

Serious Crime Bill [HL]

Debate between Lord Phillips of Sudbury and Lord Howarth of Newport

Tuesday 8th July 2014 Lords Chamber

[Lord Phillips of Sudbury (LD)]

My Lords, I strongly support what the noble Baroness, Lady Smith of Basildon, said. The issue—if you can call it an issue as it is a series of issues—in relation to cybercrime could scarcely be of greater importance to our society. It is not just an economic crime of the greatest potential but a crime in all dimensions.

The only reservation I have about the amendment is whether it goes far enough. Besides having to deal with the strategy in relation to cybercrime, I would hope for something in the report about the extent of the implementation and enforcement of the laws we are passing and the laws we have already passed. It has become a commonplace in this House to remark upon the fact that we pass laws as if there is no tomorrow but fail again and again to implement the laws we pass. I therefore hope that the report will deal with that crucial aspect of the so-called strategy.

I am not clear as to whether we are in this group also now discussing whether Clause 37 shall stand part of the Bill. We are not? Right.

[Lord Howarth of Newport (Lab)]

My Lords, when I first studied the Bill and saw that there were clauses relating to cybercrime as well as substantial parts focused on the problems of drugs, I thought that the sections on cybercrime would have something to offer on the development of the Government’s strategy to deal with our immense problems with drugs. However, I cannot see that there is any connection between these different parts of the Bill. That is a disappointment.

Will the Minister share with the House some of the thinking of the Home Office as to how it proposes to address the rapidly developing and immense problem of drugs-related cybercrime? As I noted at Second Reading, the internet has transformed the marketing and distribution of drugs, whether they are proscribed or whether they are new psychoactive substances that are not proscribed. It is now far easier for those who produce these substances and those who sell to be linked up with those who are interested in consuming them. Social networking has intensified this ease of communication. For example, I understand that it is not at all uncommon when party invitations are distributed by means of social networking that the message will contain a link to the point at which particular fashionable, newly arrived substances can be obtained.

This problem presents huge challenges to policing in terms of protecting the safety of all people, particularly young people. The Government and law enforcement agencies must be thinking very hard indeed about this. It would be helpful if the Minister would say, were he to accept my noble friend Lady Smith’s amendment, what he would expect to see in these annual reports on the subject of drugs-related cybercrime. We have social networking, which uses relatively familiar and accessible networks of communication, but there is of course the dark web. The Home Office must again be pondering and working very hard indeed to find ways in which it can even know what is going on on the dark web, let alone to police it. These are hugely important issues, and perhaps the noble Lord would share his thoughts on them with us.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Phillips of Sudbury and Lord Howarth of Newport

Wednesday 18th January 2012 Lords Chamber

[Lord Howarth of Newport]

My Lords, the speech of the noble Lord, Lord Best, was well worth waiting for. This is a very important and valuable group of amendments and I endorse the arguments so powerfully stated by the noble Lords who have spoken. Under the Government’s proposals in the Bill, legal aid will no longer be available for damages claims in relation to tenancy disputes; for example, disrepair. CLG tells us that more than 40 per cent of private rented dwellings do not meet the decent homes standard. Tenants will still be able to get legal aid to seek injunctions to get the work done, although only where there is serious risk of harm to the health or safety of the household. So there is a very high threshold for one to get legal aid for an injunction of that kind.

Under the current arrangements, as the noble Lord, Lord Best, explained, bad landlords know that the longer that they delay in carrying out the repairs, the greater the damages that they will have to pay. Therefore, the current arrangement, whereby legal aid is available for damages suits for disrepair, constitutes an incentive on landlords to carry out the repairs relatively promptly. Without the availability of legal aid for such damages claims, the pressure on landlords not to let their properties fall into disrepair will be removed.

Illegal eviction, actual or threatened, is a horrible reality for all too many people. Under the Government's proposals, legal aid will be available only to secure an injunction for the tenant to be reinstated to the property from which he has been illegally evicted. Again, as the noble Lord said, it is most likely that tenants will not want to go back to a tenancy with that same landlord. They will want to secure recovery of their possessions but they will not want to go back to that landlord. Under the Government’s proposals, the worst landlords will be able to get away with the worst behaviour and their victims will not be protected and will not be able to obtain compensation. The availability, through legal aid, of damages claims against bad landlords is a deterrent against bad behaviour; and the aggravated and exemplary damages that are, from time to time, awarded because the court takes a particularly severe view of the behaviour of a landlord are a most important deterrent. We will not be able to see that working in the future.

These problems are all too extensive. Environmental health officers testify to the fact that there are too many bad landlords and that many of them behave with the peculiar ruthlessness with which unfortunately people tend to act in housing matters; 90 per cent of environmental health officers say that they have personal experience of landlords harassing or illegally evicting tenants. The proportions of people availing themselves of private rented accommodation are rising at the moment. The Localism Act encourages local authorities now to place homeless households in the private rented sector. The benefits cap and the cuts to local housing allowance will drive families lower down the scale of the private rented sector towards the bottom end. It seems bizarre that legal aid will not be available to people facing housing problems until they are actually on the precipice of losing their homes. It is obvious that early intervention to deal with the underlying causes is a sensible policy to prevent the underlying problems deteriorating. It is both kinder and more economic.

Removing welfare benefit and debt cases from the scope of legal aid will mean, as my noble friend Lord Stevenson pointed out, that we will see a compounding effect of people getting deeper and deeper into trouble until they face homelessness. Under the Government's proposals, only then will they be able to get legal aid to help extricate them from the crisis that they have been allowed to get into.

This policy will increase insecurity and distress among tenants. It will add to the pressure on tribunals and courts, as the noble Lords, Lord Shipley and Lord Best, told us. It will increase costs to the taxpayer because of the consequences of the distress and of the problems that will be without remedy.

The Minister prayed in aid time and again in debates on different parts of this foolish and iniquitous Bill the requirement of the Treasury that the Ministry of Justice should make its contribution to reducing the deficit. The Treasury will certainly not be swayed by the pathos of vulnerable people finding themselves in greater difficulty than they need be in, but it should be swayed by the prospect of increased costs being shunted around Whitehall so that we end up with no reduction of the deficit but possibly an increase in it. I very much hope that the Treasury will review the policy that is proposed in the Bill before we get to Report. I hope that it will look at the arguments and figures put forward by Dr Cookson of King’s College. The central case on which the Minister relies—that all this, miserable though it may be, is inescapably necessary in order to reduce the deficit—is profoundly flawed. I hope that on Report we will see major government amendments to the Bill.

[Lord Phillips of Sudbury]

My Lords, after three excellent speeches I will make only one point, following directly from the last point made by the noble Lord, Lord Howarth. What I may perhaps call the Cookson report—the King’s College report—quantifies certain knock-on costs. What it does not do is look at indirect knock-on costs. For example, in a case such as the one my noble friend referred to when he moved the amendment of somebody not getting timely advice and as a result finding that he and his family were on the street with the local authority having to pick up the problem and provide housing, along with the welfare fallout and so on, the indirect costs were not included in the figures of the King's College report. That makes the self-interest of the Government in listening to and agreeing the amendments in this group all the more acute.

My only other point was made by all three preceding speakers but is worth emphasising. The noble Lord, Lord Best, drew an analogy with Somali pirates. He talked of a small minority of exploitative landlords. That is absolutely fair; it is only a small minority of private landlords. However, they are concentrated among poor tenancies. If we throw our minds back to Rachman, we will remember that his tenants were among the poorest in London. That was no accident. Landlords who are of that evil mind know that poor tenants are least able to protect and stand up for themselves, and most easily harassed. Again, it is an issue of self-interest on the part of the Treasury to recognise that. If it does, it will see the sense of the amendments in this group without getting into morality and justice.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Phillips of Sudbury and Lord Howarth of Newport

Wednesday 18th January 2012 Lords Chamber

[Lord Phillips of Sudbury]

My Lords, I shall speak in favour of Amendment 60, for which the noble Lord, Lord Ramsbotham, has made a strong case. I expect the Minister may say that, ipso facto, an abuse of power is unlawful. The problem is that if that is the argument, the way that sub-paragraph (6) is drafted apparently provides a complete definition of the phrase “abuse of power” in the context of paragraph 19, and the totality of that definition is in sub-paragraph (6)(a) and (b). It seems necessary to include the word “unlawful” although, as I say, it seems manifestly obvious that any public authority acting unlawfully is, by definition, abusing its power.

I would also be grateful if the Minister could tell us whether the word “deliberate” here means the same as “intentional”. I rather assume that it does, but some explanation is needed of why the normal terms—“intentional” or “with intent”—have been changed in this instance to “deliberate”. Does the definition as drafted exclude the careless exercise of power on the part of a public authority because there is a difference between a reckless or careless exercise of power and one that is deliberate or intentional? I hope that the noble Lord will refer to those points when he sums up. As I say, I am happy to support this amendment.

[Lord Howarth of Newport]

I, too, would like to say a word in support of the amendments tabled by the noble Lord, Lord Ramsbotham. He has raised very important points. Surely, what he has argued for is self-evidently right in principle. As the noble Lord suggested, public authorities are almost by definition powerful in relation to citizens. It is, of course, incumbent on all public authorities to act lawfully. Ignorance of the law on the part of a public authority should be no excuse for that public authority any more than it is on the part of the citizen. Therefore, the amendment of the noble Lord, Lord Ramsbotham, would repair an omission in the drafting. Otherwise, it would be possible under the Bill as drafted for the public authority to say, “We did not realise. We did not mean to do this. It was not intentional. It was not done knowingly”. Or it could tell lies, but it will be caught that way. If the public authority said that it was sorry and that it had made a mistake of law, it certainly seems to me that the citizen ought to be entitled to some redress.

Amendment 61 in the name of the noble Lord, Lord Ramsbotham, is also very valuable. From time to time a number of us may be rather concerned at the readiness and apparent arbitrariness with which people seeking immigration status can be detained. It must be beyond question that deprivation of liberty, whether or not it was deliberate or dishonest, is a harm. Therefore, it is surely right that the two amendments that the noble Lord has proposed should go in the Bill. They make evident good sense and they are proper.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Phillips of Sudbury and Lord Howarth of Newport

Monday 16th January 2012 Lords Chamber

[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.

--- Later in debate ---

[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.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Phillips of Sudbury and Lord Howarth of Newport

Tuesday 10th January 2012 Lords Chamber

[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.

Fixed-term Parliaments Bill

Debate between Lord Phillips of Sudbury and Lord Howarth of Newport

Monday 21st March 2011 Lords Chamber

[Lord Phillips of Sudbury]

I have slightly lost the noble Lord’s argument. Is he arguing in favour of a bare majority or a 75 per cent majority?

[Lord Howarth of Newport]

I have two amendments, to enable the House to consider both possibilities. I am not sure that we need to legislate at all. We could simply proceed on the traditional basis that a 51 per cent vote was required. However, in the context of a Bill creating fixed-term Parliaments, we perhaps do have to specify in law that a majority of one would be sufficient to trigger an early general election. I am not very happy with that, but I am not very happy with the two-thirds requirement, for the reasons that I have indicated. Therefore, I have suggested that the House might like to consider a different figure to provide a safeguard against exploitation of this particular escape-hatch which would give the Government of the day an opportunity to escape from the ordinary provisions of the legislation on fixed-term Parliaments. For these reasons, I have tabled the amendments. I beg to move.

Identity Documents Bill

Debate between Lord Phillips of Sudbury and Lord Howarth of Newport

Tuesday 21st December 2010 Lords Chamber

[Lord Howarth of Newport]

Does the noble Lord agree that this is about expenditure and not about revenue raising? It is a relevant distinction.

[Lord Phillips of Sudbury]

My understanding of the conventions is that we have no right to impose expenditure on the Commons and this is an expenditure provision—an expenditure of £30 per card surrendered. However, that is another matter on which we must have absolutely clear advice. It would be folly for us to go ahead today—

--- Later in debate ---

[Lord Howarth of Newport]

My Lords, the noble Lord, Lord Waddington, suggested that we should resolve this matter by a vote. I am not entirely clear whether it is the position of the Minister that the House should not be entitled to vote because the Government are claiming financial privilege.

[Lord Phillips of Sudbury]

Perhaps I may intervene briefly because I—