Justice: Civil Litigation Reform
Lord Thomas of Gresford Excerpts(14 years, 3 months ago)
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Lord McNally
My Lords, I will certainly not bluff the House that I am able, with no legal training, to assess the noble and learned Lord’s suggestion. These are still proposals, and his intervention will be reported back to the Lord Chancellor. If his suggestions have merit—and coming from that source, I have no doubt that they do—I am sure they will be given full consideration before we bring forward our final proposals.
Lord Thomas of Gresford
My Lords, centuries of English law produced a position whereby, in civil and criminal cases, it was a principle that the lawyer should not have a personal interest in the outcome of the case. In other words, he would be paid whether he won or lost. That was mitigated to ensure that there was proper access to justice by the introduction of the legal aid scheme. It was on that principle that during the previous Government’s period we on these Benches opposed the introduction of no-win no-fee schemes.
It is interesting to look at this Statement to see what are now said to be the problems resulting from the change from the basic principle that we had had for so long. The Statement refers to,
“the perverse situation where fear of excess costs forces defendants to settle, even when they know they are in the right”.
The proposals are also said to,
“begin to restore proportion and confidence in our system of justice”.
What has happened in the mean time, over the past 10 or 12 years, is that advertising has been allowed to proliferate and non-lawyers have collected and farmed claims. By advertising, they have drawn to themselves hundreds and thousands of claims and have then farmed them out to various firms of lawyers. All these ills have done nothing to improve the lot of the claimant who has been injured or who has a grievance that he wishes to be resolved.
It is because I have such a basic objection to no-win no-fee that I cannot completely endorse these proposals, but they are undoubtedly an improvement on what has gone before and they redress some of the problems that have arisen. Success fees and insurance premiums are recoverable; that is to say that I as a claimant can insure myself against losing the case and then charge the insurance premium, which I know can be tens of thousands of pounds, to the defendant, provided that I am successful. I can do that not if the case goes to court but if the case is settled at some stage, so the cost of litigation has been a huge problem that has faced defendants and insurance companies.
Another problem that arises because of that is that a plaintiff has very little interest in the amount of costs in the case. He is insured against paying the defendant’s costs, he will recover if he wins and if he loses, and he has none of his own costs to pay. It has been very damaging to permit no-win no-fee cases to go in the way that they have. The proposal to ensure that claimants have an interest in the result and are restrained from allowing their lawyers to run up massive bills of cost, as proposed, is something that I, unlike the noble Lord, Lord Bach, think is a way forward.
The second part of the Statement dealing with the consultation paper on the improvement and efficient delivery of civil justice is also to be welcomed. The proposals to give greater jurisdiction to small value cases, for small claims cases to be heard through the simple small claims process and to increase the threshold for going to the High Court are all to be welcomed.
Lord De Mauley
I draw my noble friend’s attention to the fact that Statements are supposed to be the occasion for brief comments and questions.
Lord Newton of Braintree
My Lords, I apologise. I was thinking it was a debate.
Data Protection (Subject Access Modification) (Social Work) (Amendment) Order 2011
Lord Thomas of Gresford Excerpts(14 years, 3 months ago)
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Lord McNally
The draft order before us today amends an order made in 2000 with regard to the data protection rights of individuals in the context of social work. Specifically, the order brings the data protection obligations of the Children and Family Court Advisory and Support Service in Wales—CAFCASS Cymru—into line with those of its counterparts in England.
The purpose of the draft order is to ensure that officers of CAFCASS Cymru are exempted from the requirement to disclose personal data to an individual—known as a “data subject” in the Data Protection Act 1998—when they consider that to do so would be likely to prejudice the conduct of social work by causing serious mental or physical harm to the individual or a third party. As a result of an order made in 2005, CAFCASS Cymru’s counterparts in England can already use this partial exemption when replying to requests for personal data made under Section 7 of the Data Protection Act 1998. In 2000, when the DPA came into force, the Government brought forward such an exemption by order, which could be relied upon where the disclosure of the information would prejudice the carrying out of social work by causing harm to an individual or a third party.
I should explain that, even without this exemption, in certain situations data controllers may be able to rely on the principle that information shared with a social worker was given in confidence. Therefore, it might not be fair, or even lawful, to release the information, as to do so would be in contravention of the first data protection principle in the DPA. However, the social work exemption in the 2000 order gave a strong, certain and very explicit legal basis to withhold information and ensure that social work is not prejudiced. The schedule to the 2000 order listed those organisations and functions to which the exemption could be applied. This important exemption—the subject of our debate today—ensures that individuals’ rights to see their personal data do not inadvertently prevent social work from being carried out effectively.
With that background in mind, I will turn to the reason for the order before us today. In 2005 an order was approved by Parliament which added certain functions of CAFCASS in addition to those in the 2000 order. The 2005 order allowed CAFCASS to apply the social work exemption in appropriate cases. As Members will know, CAFCASS works with children and their families who are involved in family proceedings, and advises the courts on what it considers to be in the child’s best interests. Matters in which CAFCASS may become involved include where parents are separating or divorcing and cannot agree on arrangements for their child. The role that CAFCASS officers perform means that they routinely process information related to social work.
On 1 April 2005, the functions of CAFCASS in Wales were devolved to the Welsh Assembly, making CAFCASS in Wales—CAFCASS Cymru—a separate organisation to that of CAFCASS in England. Unfortunately, this was not taken into account at the time of the 2005 order, and therefore CAFCASS Cymru has not been able to apply this exemption, although its counterpart in England has. As a result, the intention behind the 2005 order that this exemption should apply across England and Wales, as agreed by Parliament, has not been fulfilled. It is important that this inconsistency in the subject access regime between England and Wales is rectified and that CAFCASS Cymru is able to use this exemption as was originally intended.
CAFCASS Cymru has told us that, between 2007 and 2009, there were 23 cases where it would have considered using this exemption, had it been available. In these cases, CAFCASS Cymru relied on the principle, mentioned at the start of my remarks, that there would have been a reasonable expectation that information that children share with a family court adviser would remain confidential and therefore would not disclose the information because it could give rise to an actionable breach of confidence. However, this approach has not been tested, either by the courts or by the Information Commissioner. The extension of this exemption to cover CAFCASS Cymru will provide it with parity and will ensure a stronger, more certain and explicit legal basis to withhold information if CAFCASS Cymru considered that this would be likely to prejudice the carrying out of social work, by causing serious harm to the physical or mental health of a child.
I want to emphasise here that the Government take the issue of individuals’ rights to access their personal data very seriously. Just as we have made clear our commitment to transparency in terms of public data and official information, we are also committed to upholding people’s rights to see what information is being processed about them in both public and private sectors. Indeed, the Ministry of Justice’s recent call for evidence sought views on how the current subject access regime is working. Responses to this confirmed that individuals see this as an important right and that data controllers by and large take their responsibilities in this area seriously. But there can be no doubt that in certain, specific circumstances, such as those we are considering today, releasing information may not be in the interest of an individual, or indeed of others, including the children of the individual concerned, or those involved in protecting them.
I should make clear to noble Lords that a right of appeal remains for those individuals who believe that a subject access request has not been complied with fully. As with any subject access request, there is a right of appeal through the courts under Section 7(9) of the Data Protection Act. Alternatively, individuals may approach the Information Commissioner, who may investigate whether the data controller has complied with the obligations under the Act. In addition, this order, should it be agreed, will add employees and contractors of CAFCASS Cymru, acting in their professional capacity, to the list of “relevant persons” in the 2000 social work order, as is the case with CAFCASS in England.
Section 7 of the Data Protection Act acknowledges that there may be times when the personal data of another person may be released as the result of a subject access request. In most circumstances, the data controller will need to seek the consent of that other person or assess the reasonableness of disclosure before giving out the data. However, the personal data of a “relevant person”, as defined by the 2000 order, is not subject to these conditions of consent or reasonableness. This means that CAFCASS Cymru must disclose personal data given by its employees in the course of their professional duties if this is required to provide the data subject with personal data under the terms of a subject access request. Consent and the reasonableness test are not factors in the disclosure.
A concern was raised in another place about how relevant persons will be protected from harm by having to release their personal data to others. It is important to remember that this draft order would allow CAFCASS Cymru to withhold information if social work was to be prejudiced by causing harm to the individual or any third party. This could include those who work for CAFCASS Cymru. CAFCASS in England, which must already adhere to this when replying to subject access requests, has told us that it is not aware of any harm caused to employees. In all cases so far it is only the name of the employee that has been released and it is highly unlikely that the individual making the request will not already know the name of that person—most likely to be a social worker—who has been dealing with their case. As such, it would probably raise more suspicion if the name of the employee in question was redacted and therefore the name is almost always released. Officials in CAFCASS Cymru have said that their approach would be similar to that of CAFCASS in England. Again, this provision would bring CAFCASS Cymru into line with CAFCASS in England to ensure consistency in the two bodies' approach to releasing personal data.
The principles about the need to maintain a strong subject access regime while protecting individuals were agreed by all parties in 2005 and these principles still hold firm. In any case, there is no reason why they should apply in England but not in Wales. Including CAFCASS Cymru in the list of organisations able to apply the exemption will not only protect individuals and ensure that social work can be carried out effectively; it will also ensure coherence and consistency between the organisations in England and Wales, and correct the error made in 2005. I therefore commend this draft order to the Committee.
Lord Thomas of Gresford
My Lords, I would not necessarily agree to the principle that something that applies in England must necessarily apply in Wales. That is the whole point of devolution, which I am sure that the noble Lord has foremost in his mind. However, I support this provision.
The noble Lord referred to the call for evidence. He made a statement in July 2010 about the call for evidence, which he said was to be,
“assessed and used to inform the UK’s position in negotiations on a new EU instrument for data protection, which are expected to begin in early 2011”.
He also said that there would be a,
“Post-Implementation Review of the DPA, with a view to publishing a full impact assessment by the end of the year”.
Have those time limits been complied with? I was not able to find anything to indicate that they had. What is the position in relation to the negotiations with the EU for a new instrument in this field?
EU: Police and Justice
Lord Thomas of Gresford Excerpts(14 years, 5 months ago)
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Lord McNally
The answer to the last question is the former. The length and complexity of the noble Lord’s supplementary questions indicate why the Government are sensibly taking great care to study and consult on these matters, particularly with the committees of both this House and another place, and as he rightly said, my right honourable friend David Lidington has made it clear in a Statement to the House that when the decision is to be made on these matters, there will be a full debate and vote in both Houses of Parliament.
Lord Thomas of Gresford
Does not my noble friend agree that to scrap the co-operation in surveillance, pursuit, arrest and extradition that exists with European countries in areas such as drugs, international fraud and trafficking would be simply daft?
Lord McNally
I will have to check carefully whether “daft” is a parliamentary term, but I would have thought that such a course of action would be somewhere in that range of description.
Crime: Murder
Lord Thomas of Gresford Excerpts(14 years, 5 months ago)
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Lord McNally
My Lords, the noble and learned Lord is referring to the Nuffield Foundation report Public Opinion and Sentencing for Murder. I know that because he was generous enough to send me the report, which, in my reading, shows that there is a good deal of public confusion about the law of murder. Perhaps there is a need for greater education and explanation. The blunt fact is that the Government considered these and other proposals in the recent, or not so recent, Law Commission report on the matter. However, they came to the conclusion that the time was not right to take forward such a substantial reform of our criminal law.
Lord Thomas of Gresford
The noble Lord has referred to public confusion about the law of murder. Does he accept that a thoroughgoing review and reform of the law of murder, including the abolition of the compulsory, mandatory life sentence, would be a jewel in the crown of the coalition Government if it could be achieved in the next five years?
Lord McNally
I hear what my noble friend says and I am sure that many in the Government will concur with that assessment. Proposals to act now were given consideration, but we came to the conclusion that the time was not right to take forward such a substantial reform of our criminal law.
Bill of Rights
Lord Thomas of Gresford Excerpts(14 years, 5 months ago)
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Lord McNally
The noble Lord is quite right. There is a commitment but, having looked at this matter, we feel that the Good Friday agreement commitment should be honoured separately and not as part of this exercise.
Lord Thomas of Gresford
In his first Answer, the noble Lord referred to building on the European Convention on Human Rights. Will he assure us that if there is to be a replacement of the European convention by a British human rights Act, it will contain all those provisions and additional provisions as we see necessary for the circumstances in this country?
Parliamentary Voting System and Constituencies Bill
Lord Thomas of Gresford Excerpts(14 years, 5 months ago)
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Lord Knight of Weymouth
My noble friend Lady Smith of Basildon asks a fine question, which I had not previously thought of. However, I am sure that the Minister will have done so, will not need to think on his feet at the Dispatch Box and will be able to give us a precise answer.
On the question about the timetable, it is highly pertinent whether it coincides with the Boundary Commission review period to agree the boundaries for the next general election. If it does not, which arrangements will stand the test of time in respect of prisoners getting the vote?
Lord Thomas of Gresford
The noble Lord has eschewed acting on behalf of the interests of prisoners in his constituency. Who acted on their behalf in the absence of the noble Lord? To which agency was it left to represent them in any of the problems that a Member of Parliament might normally address in any constituency?
Lord Knight of Weymouth
My noble friend can help me in a moment, once I have had a chance to help myself. The noble Lord, Lord Thomas, raises a question that is right at the heart of the legal case as I understand it and as interpreted by the BBC. John Hirst, who took the case to the European Court said:
“I’d read books that said if you want to change something you start up a pressure group, and then you put pressure on MPs and then you get things changed in parliament. Well that’s alright if you’ve got the vote and you’ve got some clout behind you. When you’re a prisoner, the only thing you can do if you want to complain and no-one listens is riot and lift the roof off—which isn’t the best way of going about things. Because we didn’t have a vote, there was no will in parliament to change anything”.
That is at the root of why he brought the case and, I guess, why he won it.
If a prisoner who had been a constituent of mine, or whose address was in my constituency, had written to me with a case when I was a Member of Parliament, I would have taken it up on their behalf, but I was unwilling to do so for people who happened to be resident in my constituency at Her Majesty’s pleasure. That was most difficult in respect of the large number of foreign nationals who were in Verne prison in my constituency. It was very difficult for them to get anyone to listen to them. It would have been a significant resourcing issue for me if word had got around the prison that they had a local MP who was willing to do all their legal work for them.
Lord Thomas of Gresford
Never mind the resources—is the noble Lord saying that he was happy that there were people in his constituency, whether they were there at Her Majesty’s pleasure or whatever, who had no political representation or access to Ministers through a Member of Parliament? Was he happy that people who had no home addresses that they could give to the constituency MP where they had formerly lived were left without any resource or recourse at all?
Lord Thomas of Gresford
Does the Minister agree that if the noble Lord, Lord Knight, is right, the absence of a vote is not the only problem that prisoners have to face? If they do not belong to any particular constituency, they have no parliamentary representation and nobody who can act on their behalf in dealing with the Government.
Lord McNally
Each Member has to make their own decision. It is interesting, though, going back to another issue—
Legal Aid: Family Courts
Lord Thomas of Gresford Excerpts(14 years, 6 months ago)
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Lord McNally
My Lords, that is certainly the intention. What we are trying to do is to get a change in culture so that people in family cases do not automatically go to law. Some of the points that the noble Baroness raised are worth examining. For example, in a case where there is not a balance of resources, the courts will be able to ask the wealthier of the two parties to deposit resources, which will mean a greater equality in advice. The basic thing about our reforms is that we do not believe that family justice is best carried out by state-funded litigation.
Lord Thomas of Gresford
Is my noble friend aware of the concern of the family Bar that the cuts in legal aid will disproportionately affect ethnic minority lawyers with the result that, in 10 or 20 years’ time, there may be a lack of diversity in judges appointed to the Family Division?
Lord McNally
My Lords, it is difficult to assess the full impact at the moment, but it is certainly true that, in many of the firms that have been dealing with family law, ethnic minorities are better represented. However, I think that it is too early to say that the impact to which my noble friend has referred will come about.
Youth Justice Board
Lord Thomas of Gresford Excerpts(14 years, 7 months ago)
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Lord McNally
That is extraordinary from someone who has held the position that the noble and learned Baroness has held. The straight answer is that, because the board is coming into the Ministry of Justice, the responsibility will be that of the Lord Chancellor and Secretary of State for Justice. That is very clear. However, within the Ministry of Justice, we are in a transition period. We are going through this along with the Youth Justice Board, which is co-operating very effectively in the transition. When those lines of responsibility are cleared and when the legislation has cleared Parliament, we will be able to go ahead with implementation and those lines will be clear. As I said, I acknowledge that the system of youth justice has moved from being a Cinderella organisation in the 1990s to one that has been extremely effective, but we are now removing that layer of national control to ensure that there is proper, local responsibility by devolving responsibility to youth offending teams. That was also part of the initial plans that the previous Government put in place.
Lord Thomas of Gresford
Will my noble friend consider, in the medium term, investigating the way that youth justice operates and replacing youth courts with something along the lines of the children’s panels that operate very successfully in Scotland, in which the magistrates sit down together with parents and social workers to try to work out the proper solution for the individual offender?
Lord McNally
That is the kind of constructive suggestion that I hope will come forward from the Green Paper that my department published yesterday. The Green Paper shows that we have been successful in establishing youth justice as a priority in our system, as the paper has a distinct chapter on youth justice. There is an invitation to all parts of this House—and indeed to all bodies—to feed in constructive views. This is not the end of the youth justice story. The Youth Justice Board has been a successful chapter and we intend to carry on with that work. We will study ideas that come from the Scottish and Northern Irish systems.
Rehabilitation and Sentencing
Lord Thomas of Gresford Excerpts(14 years, 7 months ago)
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Lord Thomas of Gresford
My Lords, from these Benches, I welcome wholeheartedly the change in emphasis from warehousing prisoners to rehabilitation. I am grateful to my noble friend for putting forward these proposals in the way that he has. I am disappointed that the indeterminate sentence is not to be abolished completely, but I am encouraged by seeing that it is to be restricted. It has been used far too greatly without the proper resources behind it to enable the 6,000 people currently held on these sentences to earn their release.
There is one matter that I shall raise with the Minister to have his response. Has he considered veterans’ courts? They have been set up in the United States for a period of two years to deal with the specific problems of those who have served their country but have found themselves in prison because of the experiences that they have undergone. Proportionately fewer veterans go to prison, but of those a greater proportion are in prison for sex and violence offences. Their needs must be addressed in a special way, as they have been in the United States. Perhaps I may commend to my noble friend the report of the Howard League, Leave No Veteran Behind, which was published last month, to make sure that those who have served their country are properly attended to by the system.
Lord McNally
My Lords, I take on board what my noble friend said about IPP. It is true that there has been an increasing focus and an increasing public concern about the number of our veterans who seem to end up in our criminal justice system. I have not looked at the American example to which he referred, but that is exactly the kind of constructive suggestion that we hope this Green Paper will bring forward. My department is in contact with the Ministry of Defence and the Royal British Legion about these issues. I hope that we can take forward measures to help veterans who find themselves on the wrong side of the law or in prison. The Royal British Legion already has a system of visiting, advising and counselling for veterans who find themselves in this situation. We have got to give this priority and I assure my noble friend that we will.
Legal Aid
Lord Thomas of Gresford Excerpts(14 years, 7 months ago)
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Lord McNally
My Lords, I think the noble Lord gives the clue to his question. As he said very honestly in his response to the original Statement a couple of weeks ago, when in government, the Opposition were planning cuts in legal aid. Whenever one makes cuts, one has to draw the line somewhere, and the Opposition are rightly leaping to the defence of people on the wrong side of that line. We have made a decision in terms of making savings in the legal aid budget and we have done so in a way that we believe targets help to the most vulnerable.
Lord Thomas of Gresford
My Lords, over the past year, more than 300 specialist citizens advice bureaux caseworkers have dealt with 40,000 welfare benefit cases, 60,000 debt cases, 9,000 housing cases and 3,000 employment cases. These specialist CAB caseworkers have been paid for using legal aid funding. Will this continue?
Lord McNally
No, my Lords, but what is clear is that the citizens advice bureaux provide advice. The problem that we faced—and the previous Administration faced it too—is that legal aid is being used to cover a wider range of advice and help which can be better funded and supported in other ways. My honourable friend Jonathan Djanogly is having meetings with representatives of Citizens Advice in the next week. We will be looking at ways of helping citizens advice bureaux and other non-legal providers of advice.