Whole-life Sentences
Lord Thomas of Gresford Excerpts(11 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
My Lords, first, I am grateful to the noble and learned Lord for setting out the chronology very accurately. The right to review was there until 2003. Whether its removal was by an oversight, I do not know, but removed it was. All that I can say about the court’s judgment I said in my Answer—we are analysing it and will provide a considered response in due course.
Lord Thomas of Gresford
Are the Government aware that the suggestion made by the noble and learned Lord, Lord Lloyd, was part of the judgment of the British member of the court, Judge Mahoney, who unreservedly subscribed to the conclusions and reasoning of that judgment? Ought not the Government give extra weight to the views of the British judge in that regard?
Lord McNally
My Lords, I am not sure whether in an international court one would take cognisance of one judge over another—I am not sure of the protocol of such courts. I do know that it was a considered judgment that merits careful study by the Government, which is exactly what we are doing.
Prisoners: Indeterminate Sentences
Lord Thomas of Gresford Excerpts(12 years, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
My Lords, the noble and learned Lord’s figure on the release of IPP prisoners is roughly correct; I do not think it is until Thursday that we release the full figures, but his estimate is not far out. That compares with 300 releases in 2011, 97 in 2010 and 53 in 2009. I hope he will acknowledge that the abolition of IPPs in LASPO and the greater flexibility that we are now employing in trying to manage the IPP sentences are going in the right direction. I acknowledge that it is a slow process. I will take back to my right honourable friend the Lord Chancellor the noble and learned Lord’s point about the power that was given in the LASPO Act, but even if that power were exercised the Parole Board would have to take public safety into account in making its decisions.
Lord Thomas of Gresford
My Lords, at its conference in 2012 the Prison Governors Association passed a motion overwhelmingly welcoming the ending of what it described as the “iniquitous” IPP system. It also said that unless some action is taken either to resource appropriate interventions to reduce perceived risk or to review the Parole Board criteria on what constitutes risk to the public, existing prisoners will face disproportionately long sentences. What action have the Government taken?
Lord McNally
My Lords, I think the key word is “risk”. The fact that these prisoners were given IPP sentences indicates that it must have been in the mind of the judge imposing the sentence that they posed a significant risk to society that had to be dealt with before they could be considered for release. That was the intention behind IPPs and that must remain uppermost in our minds when deciding the future of these prisoners. However, we are bringing in accredited courses, which may help to make the point that they are available for these prisoners. Other interventions such as work, education and employment may also provide evidence of reduced risk. NOMS is investing in interventions that have the most beneficial impact in reducing risk, and priority for those programmes is given to IPP prisoners.
Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2012
Lord Thomas of Gresford Excerpts(12 years, 11 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Thomas of Gresford
My Lords, I only wish to raise one point, on guidance notes for police commissioner candidates. I want an assurance from the Minister that those guidance notes will be translated properly into Welsh. He may, or may not, know that there was considerable embarrassment following the elections to the Welsh Assembly last May when there was no proper translation into Welsh. As a result of that, one candidate did not divulge that he held a post that, between the previous election and that election, had disqualified a candidate from standing in those elections. He, being Welsh speaking, had only read the Welsh-language version and, accordingly, there was no problem. But another candidate, who did not speak Welsh, could only have read the English guidance notes, and he was disqualified by the Welsh Assembly although he was successful in the election.
Lord McNally
My Lords, I am assured that the Electoral Commission is responsible for publishing guidance, but I say to my noble friend that I will check with the commission on whether it plans such a Welsh-language edition. I cannot believe that it will not, given the normal practice in such elections, but I will make inquiries and write to my noble friend with, I hope, suitable assurances.
Crime and Courts Bill [HL]
Lord Thomas of Gresford Excerpts(13 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
Yes, my Lords, it is part of the general process of reform at both the tribunal level and in other parts of the judiciary. So there will be employment judges from now on.
Lord Thomas of Gresford
Perhaps I may help my noble friend by illustrating the kind of particular business there could be. In the old days it was not so much a tap on the shoulder as a ring-round by the Lord Chancellor’s Department to find someone who could go and do particular cases on very short notice. I recall being asked to go to Leeds with the inducement that I could stay in the judges’ lodgings—not much of an inducement, I may say—to try three large medical negligence cases. They said, “Don’t worry, they’ll all settle”. In fact, they all stood up. That is the sort of instance when counsel on both sides are all ready to go ahead on a fixed date but there is no High Court judge to take it. Everybody assumes that the cases will settle but they do not.
Lord McNally
Not for the first time when I find myself out on the thin ice, my noble friend supplies a plank for me to walk back to dry land. I thank him for that intervention.
Crime and Courts Bill [HL]
Lord Thomas of Gresford Excerpts(13 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Falkner of Margravine
I say to the noble and learned Baroness that if that non-transparent process that she describes, which sounds like the old game of clubbing together to fix it all up, is indeed accurate, there should be no reason for the amendment. In that case, if it is all so chummy, why not have the Lord Chancellor sit on the panel?
The power to veto seems to contradict Section 3(6)(a) of the Constitutional Reform Act 2005, which places a statutory duty on the Lord Chancellor to defend the independence of the judiciary. Not for the first time, one part of an Act—the duty to defend the independence of the judiciary—sits uneasily with the process as defined. Moreover, the process requires the Lord Chancellor to put his reasons in writing. I have already commented on that. It would be far better in increasing transparency and enhancing accountability for the Lord Chancellor to be a member of the selection commission —listening, participating and evaluating the candidate being questioned, without a veto over the appointment—than, after the fact, disagreeing with the selection commission.
In conclusion, I touch on the point made that either a very powerful Lord Chancellor would sit on the commission panel and influence it to go in the direction that he wanted; or, if the Government got their way, that the Lord Chancellor, having sat on the selection panel, could not persuade the panel of his views on an individual candidate and would be deeply dissatisfied because he did not carry the selection panel with him.
I argue that his potential for dissatisfaction would be greater if he had not exercised the veto and was therefore stuck with someone he found it difficult to work with. In fact, it could be said that he would take greater responsibility for working with a candidate with whom he did not entirely agree if he were on the selection panel and had been overruled. He would have been part of the decision-making, he would have been there and heard the argument why the majority of the commission wanted to go in a certain direction and would therefore have to suck it and see. On that basis, I have a lot of sympathy with the Government on the amendment.
Lord Thomas of Gresford
My Lords, going back some 25 years, I remember being warned in 1987: “You realise, don’t you, that Mrs Thatcher has never appointed anybody as a High Court judge who has been overtly political?”. I was about to stand for the 1987 election. I stood; I lost for the eighth time; but that did not dissuade me. My point is that then, how the system worked was completely opaque. You did not know what recommendations were being made. You did not know when you had scored a black mark. I recall a close colleague once seeing his file in the Lord Chancellor’s Department, which said in terms that he had fought and lost eight elections as a Liberal candidate—he was so close a colleague that he had been mixed up with me. I am sure that that held him back for a long time from obtaining the appointment that he ultimately did.
I was slightly shocked to hear that we still have a non-transparent system whereby the Lord Chancellor is consulted and becomes involved in the appointment of judges, although there is nothing formal about it. I did not know that. It is opaque. The Bill makes it absolutely transparent that the Lord Chancellor will play a part, and I think it is very good that he should. He should listen to other people who are high in the profession and to what a lay person thinks of a particular appointment. His view may change. I do not think that the Lord Chancellor would necessarily dominate such a selection committee, certainly not if he has a political angle. There may be a toing and froing of views within that committee but we will know that it is happening because he is on it. Consequently it will be a far more satisfactory system than what we have heard is happening now: the Lord Chancellor, without it being in any statute, is involved in some way. That is wrong and I think that the Bill is preferable.
Lord Falconer of Thoroton
I was rather appalled by the mischaracterisation by the noble Lord, Lord Thomas of Gresford, of what the noble and learned Baroness, Lady Butler-Sloss, said. My experience as Lord Chancellor, when not making the appointments, was that I remained regularly in touch with the judiciary. If I had not remained regularly in touch with the judiciary on issues such as the funding of courts and the difficulties that the judges were facing, I would have regarded myself as not performing my job as Lord Chancellor correctly. If you are a Lord Chancellor—or now, Secretary of State for Justice—who does not know the leadership of the judiciary, that would be a very bad thing. Indeed this idea expressed by the noble Lord, Lord Thomas of Gresford—that it is in some way a sort of secret-sounding basis—is wrong. I am sure that his misunderstanding was not deliberate. He was looking back to a time 20 years ago when he was looking for a position.
This side of the Committee supports the amendment tabled by the noble Lord, Lord Pannick. We earnestly ask the Government to think again about this provision. Perhaps I may explain why we take that view. The basis of the settlement reached and approved in the Constitutional Reform Act 2005 was that the time had come for the appointment of judges to be clearly depoliticised. The justification for the process that then existed was that although the Lord Chancellor was Labour or Tory and appointed by the Prime Minister, he nevertheless had especial independent roles that made it possible for a political appointment to appoint the judiciary.
We in the then Government took the view, supported by the Liberal Democrats and endorsed by both Houses of Parliament, that in a period of time and a generation where people had to have complete confidence that the judiciary was not being appointed on a political basis, there needed to be a structure in which people would have confidence that you were appointed on your merits as a respected judge. That was the basis of the constitutional settlement reached. Those who considered it in detail were of the view—and I agreed with this view—that the state, the Executive, had to have a stake in the appointment of judges so that there was part of the Executive in Parliament that would defend the system and defend the appointments. That is why the Lord Chancellor has the power to veto some appointments and to reject others.
It is incredibly important for the standing of the judiciary and the separation of powers that that essential separation—that essential constitutional settlement—not be affected. The proposal made by the coalition goes right to the heart of that constitutional settlement. Bringing the Secretary of State into the process would not even have the redeeming feature of the old-style Lord Chancellors, which is that they had an independent role as a judge as well as being a politically appointed Minister. What Ken Clarke said about his role—my noble friend Lady Jay has quoted it—exactly reflects what the constitutional settlement envisaged; namely that he should be a member of the Cabinet with a particular statutory duty as imposed in Section 1, but essentially a political Minister without anything else to distinguish him from other Ministers in the Government. The two roles that we are talking about here are the president of the Supreme Court and the Lord Chief Justice. The president of the Supreme Court is probably the most important judge for the whole of the United Kingdom. The Lord Chief Justice is undoubtedly the most important judge for England and Wales.
The proposal envisages that the commission appointing the president of the Supreme Court should consist of one person who is not legally qualified, one judge of the court, one member of the Judicial Appointments Commission for England and Wales, one for Scotland and one from Northern Ireland, and, if he chooses, the Lord Chancellor. I know Ken Clarke well and admire him greatly. I have absolutely no doubt that, in a group such as that, he would have no difficulty in ensuring that his choice was obtained. The noble Lord, Lord McNally, is shaking his head, but I tell noble Lords that Ken Clarke’s choice would prevail. It would not just be a matter of appearance; it would be a matter of actuality. Go forward in time and imagine someone not of the ethical quality and standard of Ken Clarke as Lord Chancellor. For example, there is the example given by the noble Baroness, Lady Kennedy of The Shaws: “I don’t want the best lawyer; I want the person who is most against the Human Rights Act”. That is a perfectly conceivable position for a Lord Chancellor to take.
Lord Falconer of Thoroton
I think that there is a misunderstanding here. As I understand it, the noble Baroness is saying that when the veto is used it is kept secret. It is not, so there is no question of gossip. The Lord Chancellor is willing to use that veto where appropriate. I have no problem with that and it does not cause difficulty. In the proposed system, there would be no transparency about the role that the political Minister had played; indeed, it would be assumed that he or she was the person who had dominated the process. It would profoundly undermine the settlement. At the moment, I can see no benefit from it. I have not had the pleasure and privilege of reading the letter that was sent to the noble Baroness, Lady Prashar. I have heard the speech of the noble Baroness, Lady Falkner, which was very persuasive in many respects. However, I am unable at the moment to see the basis for departing from a constitutional settlement that is intended to ensure the sanctity of the process. It is an independent process in which one is judged on one’s merits, and it keeps politics out of it except for the exercise of a transparent veto.
Lord Thomas of Gresford
Would the noble and learned Lord not agree that it was not the best moment in the appointment of the judiciary, and that it does appear that political influences were coming into the question of who was to be appointed? Would it not have been better for the difficulties and the problems between the Lord Chancellor and the appointments commission to have been sorted out in a committee, such as that proposed in this Bill?
Lord Falconer of Thoroton
Game, set and match to this side. As I understand it, the noble Lord is asking whether it is so wrong that people might think that political influences have been brought to bear on the appointment, because the Lord Chancellor, performing a constitutional role, says explicitly “I don’t want”, or “I am thinking of vetoing”, the choice that has been made on legal merits. As I understand it, the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Falkner of Margravine, are saying, “Let’s keep all the political influences secret”. The noble Lord is shaking his head; I am not sure what he has in mind.
Lord Thomas of Gresford
I am not saying that. I am saying that had the Lord Chancellor been able to discuss in a committee—such as that is proposed—the merits of the particular candidate, we would not have had something which did not do the judiciary any good.
Lord Falconer of Thoroton
If the Lord Chancellor said “I want this candidate” and persuaded everybody, none of that would have been apparent. People would doubt the independence of the appointment from the political situation, or the political influences on the position. Do not be under any illusion; if the Lord Chancellor proceeds with this proposal, those people who have had dealings with the constitutional settlement will think that he is, without properly understanding it, going against the basis of the constitutional settlement which the noble Lord, Lord McNally, worked so hard to get through. As he said on Monday, the noble Lord, Lord Goodhart, was one of the main Liberal Democrat architects of the constitutional settlement, as was, as he also acknowledged on Monday, the noble and learned Lord, Lord Woolf. What on earth is the reason for so undermining the political independence of the judiciary?
For these reasons we support the amendments that are being made. If, as I think is unlikely, they are put to the vote today, we will support them. I earnestly ask that the Minister reconsiders the Government’s position on this, and the Lord Chief Justice’s position. It would be a really bad idea if people thought that a Conservative or Labour Secretary of State for Justice, not the Lord Chancellor, had appointed the Lord Chief Justice and the president of the Supreme Court.
Lord McNally
Try me. I think that the issues that have been raised are such that it would be better to have another run at them on Report.
Lord Thomas of Gresford
My Lords, before the Committee sat I informed the noble Lord, Lord Pannick, that I was fairly relaxed and neutral about his amendment. However, the more I have listened to the argument, the more I have come down on the Government’s side. I recall the very unseemly row when the former Lord Chancellor’s veto was exercised in relation to an appointment, and I believe that I put down a Parliamentary Question. I think that he reversed his decision before I got the Answer, but I certainly tabled a Question about it. There was a furore at the Bar and I was approached by many people to do what I could to defend the reputation of a person who was considered to be the best judge in a particular division. It was extremely unseemly and the Lord Chancellor backed down. What did that say? He had given his veto and then he withdrew it and the appointment went ahead. All these matters should have been sorted out but not in such a public way as to damage the reputation of the person concerned and damage the reputation of the Lord Chancellor, if it needed to be damaged any further. It did not resolve the situation.
I have heard the debate and, as I understand it, the Lord Chancellor does have discussions behind the scenes with the Appointments Commission. That is what was said in terms by the noble Baroness, Lady Prashar. I do not think that that is right. I think we should have an open system. She said that it was open and transparent. It was not—I did not know about it, although I was sufficiently involved to put down a Parliamentary Question about the matter in issue.
Lord Falconer of Thoroton
How would the discussions between the Lord Chancellor and the other members of the committee that the noble Lord envisages be transparent?
Lord Thomas of Gresford
The fact that it is happening is transparent. That is where the argument can be held and not in public, which damages people’s reputations. The noble Lord said that the Lord Chancellor will always have his way. What sort of a pushover does he think these people in the commission are that they will simply bow down to a political figure? I do not believe that the chairs of the Judicial Appointments Commission in Northern Ireland, Scotland, England and Wales are going to follow a political lead because the Lord Chancellor does not like someone on political grounds. He may have some knowledge that does not involve the politics of the matter and that would persuade the other members of the commission, but I do not think that he would persuade them on political grounds, which is what the noble and learned Lord, Lord Falconer, said. He nods. Perhaps he was a very persuasive Lord Chancellor in private.
Lord Falconer of Thoroton
Under the new system, I would have the power. That is the point.
Lord Thomas of Gresford
He had the veto, although I do not think that he ever exercised it.
Lord Falconer of Thoroton
I never exercised the veto, although my successor considered it and everything was open.
Lord Thomas of Gresford
Why did he exercise it? We do not know. Did he say so at the time? He did not say, “For political reasons I do not want that person as the head of the division”. He did not give us his reasons. It was not discussed with anybody. He just vetoed that appointment and it was unfairly damaging to the person concerned.
Lord Pannick
I am grateful to the Minister, who says that he has been listening. I am sure that he has been, and I have listened to what he has said. I will certainly want to reflect, as I am sure the House will, on what the Minister described as a very important debate—and he is right. This goes to the heart of the relationship between the Executive and the judiciary. The Minister said that it is important to keep the Lord Chancellor in the process because the Lord Chancellor is responsible to Parliament and these are appointments at the very apex of the system. The Minister is right and no one disputes that the Lord Chancellor must have a role. The question is whether that role is best fulfilled as a member of the appointments commission.
The Minister and the noble Baroness, Lady Falkner of Margravine, emphasised that the veto is a nuclear option. There are two points to make about the Lord Chancellor’s existing powers. First, the fact that the veto is so difficult to exercise in political terms is highly material to the influence that the Lord Chancellor currently has. We need to be very careful about expanding the political role of the Lord Chancellor, or at least the political potential for involvement, through an appointments commission process. The second point, which has been made very forcefully by noble Lords who know how the system works, is that the Lord Chancellor at present does not just have a veto which is difficult to exercise. He can and does make his views known to the appointments commission during the process of consideration for appointment to these posts. There is nothing improper or secret about that. It is not a question of nudges and winks. It is called consultation. Plainly, the Lord Chancellor is entitled to be consulted by the special appointments commission that is going to appoint to these highly important posts. If the current system has defects, the alternative proposed by the Government is far worse, for all the reasons that have been pointed out, and no more transparent.
I will certainly reflect on this debate and I am sure the whole House will want to reflect on the matter and return to it on Report. I hope that the Government will reconsider this question over the summer and I am sure that if, as we have been told today for the first time, it is the Government’s intention that the Lord Chancellor will sit on the appointments commission, it is highly desirable that the Bill expressly makes that clear so that we all know what the Government intend on this matter of fundamental constitutional concern. For the moment, I beg leave to withdraw this amendment.
Baroness Bottomley of Nettlestone
This has been a most exhilarating debate. I hope that the Minister will be able to use this experience to talk to other colleagues in government about why, for example, a non-executive director on a board has to have annual re-election once over 70. Recently, an Oxbridge college appointed a principal who is 72 and the articles of association had to be changed. I declare an interest because the late Lord Bingham’s son is the best person who works for me in my professional activity so I am, of course, brainwashed in this regard. I never thought of the Lords as pioneers of radical equality measures but I feel that this debate has great potential for professional groups across the economy and society, and certainly across government.
Lord Thomas of Gresford
My Lords, I support the amendment for all the reasons that the noble Lord, Lord Pannick, gave. However, I would suggest an alternative. If we are not going to go to 75, the alternative is to appoint judges to the Supreme Court who have not gone through the processes of the High Court, the Court of Appeal and so on. We have the power now, apparently, to appoint people to the Supreme Court who have not been in the Court of Appeal. It was interesting that, on Monday, the noble and learned Lord, Lord Lloyd of Berwick, said, “Of course, members of the Supreme Court will have come from the Court of Appeal”. I do not think that that is necessary. I think that the pool should be broadened. There are people in academic life and lawyers at the Bar who would be appropriate as members of the Supreme Court. The age of 70 is ridiculously low. If it is to stay at that, people should be appointed in their 50s—early 50s perhaps—to the Supreme Court without having to go through the cursus honorum required at present.
Lord Falconer of Thoroton
My Lords, I strongly support the amendment for the reasons given by the noble Lord, Lord Pannick, the noble and learned Baroness, Lady Butler-Sloss, the noble Baroness, Lady Jay, and the noble Lord, Lord Thomas of Gresford. It is an important amendment on a matter that is already causing difficulty. The loss of the noble and learned Lord, Lord Collins, from the Supreme Court was a direct result of the reduction in the retiring age. The Government now have an opportunity to do something about that, because this is a legislative opportunity.
Crime and Courts Bill [HL]
Lord Thomas of Gresford Excerpts(13 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Thomas of Gresford
Perhaps I may be permitted to intervene on this matter. The lifestyle of a High Court judge is of course very different from that of a circuit judge. High Court judges sit half the time in London and half the time on circuit. Circuit judges do what they are entitled to do; they sit on circuit. Looking after a family is far easier if you are a circuit judge than if you are a High Court judge.
Lord Falconer of Thoroton
I will not intervene on his intervention, but the noble Lord is wrong.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Thomas of Gresford Excerpts(13 years, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Howarth of Newport
If I may be allowed to finish my sentence, I would be grateful if the Minister would be willing to help us understand why the Government felt it appropriate to make that claim. As I have now finished my sentence, it is with pleasure that I give way to the noble Lord, Lord Thomas.
Lord Thomas of Gresford
The noble Lord suggested that the Liberal Democrats have changed their tune. The noble Lord will recall that in Committee, on Report and on Monday I said that this amendment meant nothing and added nothing to the Bill. I was supported by my noble friend Lord Lester, who said it was just water.
Lord Howarth of Newport
That may be the view of the noble Lord and his noble friend. It is not the view of the noble Lord, Lord Pannick, and those of us who supported him on two occasions in inviting the other place to think again about this matter.
Lord Wigley
My Lords, I also welcome the Government’s shift on this matter. I am sure it is one that will give the noble Lord, Lord McNally, considerable satisfaction, given the family dimension and his understanding of this condition. It will, I hope, be of considerable benefit to many thousands of sufferers and their families. I join in congratulating the noble Lord, Lord Alton. I am aware of his campaigning ability from many years in another place. We campaigned sometimes together and sometimes on opposite sides. When one was on the opposite side, my goodness, one knew one had a contender to deal with. The diligence that he and other colleagues across parties have applied to this issue will be of considerable satisfaction to the groups of campaigners who represent sufferers and their families.
I want to raise a couple of points with the Minister. I note with interest that the definition of diffuse mesothelioma used here is the one that was incorporated in the Pneumoconiosis etc. (Workers’ Compensation) Act 1979. Another dimension of what he mentioned a moment ago is the fact that there are still people who cannot trace their employers or pinpoint which employer was responsible at the time at which the disease may have developed. That is the case for a number of diseases. The 1979 Act, as noble Lords will remember, arose largely from the position of slate quarriers, but many other workers were affected in the cotton and pottery industries and some in the steel industry.
I am not going to reopen the debate that we lost the other night. We lost that one, and so be it, but there will be some cases in which there is suffering that is not covered by any other provision. When the review is undertaken, I hope that some consideration can be given to whether there are other cases of industrial workers who have suffered loss of health, and in many cases loss of life, and do not have an avenue through which to get compensation. If they do get compensation, they should not have that compensation unreasonably eroded. I hope that can be taken on board by the DWP. I understand that the noble Lord, Lord Freud, the Minister in the DWP who may be handling this, also has a good understanding of the suffering that arises from these conditions, so hopefully we can make progress.
Finally, this may be a lesson for us in this House to try and try again. We could have abandoned this the other night without insisting on the amendment that we put through to the other place. We did not and that is what enabled progress to be made on this occasion. There may be other instances when we need to be equally tenacious and determined in order to make sure that the other place gives adequate attention to a subject and that progress such as this can be made.
Lord Thomas of Gresford
I add my congratulations to the noble Lord, Lord Alton, on all the very hard work that he has put into this matter. I also pay tribute to the work of the Greater Manchester Asbestos Victims Support Group, in particular to Tony Whitston, who has lobbied so hard on behalf of victims; and there are other support groups, such as the Merseyside support group, which have lobbied just as hard.
I argued on Monday that success fees ought not to be claimed by solicitors in this type of case. I was pleased to hear the Minister in another place, Mr Djanogly, say yesterday:
“this is not an issue of causation. I heard Lord Thomas speak in the other place yesterday, and I very much agree with what he had to say, which was essentially that in cases in which causation is not an issue, there is—in many respects—no reason why solicitors should have a success fee for that type of work”.—[Official Report, Commons, 24/4/12; col. 831.]
I was strongly supported on Monday by my noble friend Lord Faulks, and I am grateful to him for the concern that he has shown on this issue. An objection was made by the noble Lord, Lord Bach, that it was impossible to guarantee that solicitors would not charge a success fee against their clients’ damages.
I interjected that if public opinion saw it as an abuse, no doubt the Lord Chancellor would step in to deal with it by way of regulation. There is another way in which this issue could be approached. I suggest to Mr Whitston, his excellent organisation and other similar support groups that he should draw up a list of solicitors who have indicated to him that they would not charge a success fee when, ultimately, the new regime for CFAs is introduced for mesothelioma sufferers. The support group could receive applications from solicitors to be put on an approved list and satisfy itself that firms that are accessible to victims in those industrial parts of the country where the disease is most prevalent—shall we say Newcastle, Leeds, Manchester, Birmingham, Bristol and, of course, the industrial areas of north and south Wales?—are geared up and competent in this area of work. Sufferers from mesothelioma turn to the support groups, and if they had a list of solicitors who had undertaken not to charge success fees against the damages they receive and who they are satisfied are competent, that would be a great way forward.
Lord Wigley
I follow the point that the noble Lord made the other night; I well understand it and have some sympathy with it. Clearly, if the sort of provision he is suggesting were to be made, it would be very helpful. Does he feel that it should be limited to mesothelioma, because there are many other cases of compensation in which it is equally unreasonable that there should be a deduction of up to 25 per cent from the compensation?
Lord Thomas of Gresford
The noble Lord will recall that on Report, I referred not only to cases of mesothelioma that Mr Tony Whitston drew to our attention from the Brymbo steelworks in Wrexham but to cases of pneumoconiosis that I have known. He is a slate quarry person; I come from a colliery area and I know of the long-term suffering of those victims. With mesothelioma, that could be done now and could be extended to other diseases in due course.
The support groups would be uniquely placed to monitor the service that such firms gave to mesothelioma sufferers, who could report back on their experiences to both the support groups and their successors. That is the answer to those who say that solicitors will not do this work at all unless they are cosseted by success fees. It spreads the work around the country to areas that are particularly concerned with this disease, where experience could be built up by firms of solicitors. It may discourage any idea of focusing litigation of this type in the City of London branch offices of firms that then claim to be paid at City of London rates. Anecdotal evidence suggests that that happens in some CFA cases.
As my noble friend Lord Faulks said on Monday, there are lawyers who are dedicated to achieving the best result for their clients and not so much for their fees. I have no doubt that they would flock to be placed on an approved list and forbear charging a success fee at all. I hope that such an approach will appeal to the Minister, the Lord Chancellor and the Ministry of Justice.
Lord Bach
My Lords, I begin by congratulating the Minister on being a member of the luckiest Government there can ever have been in the history of Parliament. The odds against drawing three votes on crucial amendments, two on Report and one at this stage of proceedings so that the Government win the vote, as it were, must be immense. He has managed to do that and I congratulate him on it. I just hope for his sake and the Government’s that their luck does not begin to run out.
On this issue, the Minister also deserves some congratulation if, as I suspect he did, he played a part in persuading his fellow Ministers, and the right honourable and learned gentleman the Lord Chancellor, that there had to be some give or concession. If he played a part in that, I congratulate him and think that he has served the House well in that regard.
I, too, want to compliment those outside the House. As the noble Lord, Lord Alton, stressed, the co-ordinator of the Greater Manchester Asbestos Victims Support Group, Mr Tony Whitston; Mr John Flanagan, the Merseyside equivalent of that organisation; and many others outside have worked incredibly hard to make sure that people who do not always have a very loud voice have had a say in Parliament—or rather in this House of Parliament. It is absolutely clear that when these matters were raised in the House of Commons when this Bill was first taken through, they were completely dismissed. It was only when the Bill came to the House of Lords that the noble Lord, Lord Alton, with his usual courage and zeal, managed to raise these matters, with the help of the noble Lords, Lord Avebury and Lord Wigley. Eventually, at the very last minute, he got a concession from the Government.
I pay tribute, too, not only to those I have mentioned but to the noble Baroness, Lady Doocey, the noble Lord, Lord Avebury, and the Conservatives who abstained in the vote on Monday night. Had they not played the part that they did, the amendment in the name of the noble Lord, Lord Alton, would not have gone through. I remind the House that it won by nine votes. If it had been lost there would have been no review or concession; there would have just been rejoicing in the Ministry of Justice. It was as close as that. It is because of the bravery of those who were prepared to abstain or vote against their own Government that we are here today congratulating the Government, quite rightly I am sure, on their concession.
Seriously, it is a good concession and we know, or trust, that the review will be genuine. We look forward to playing our part in making sure that the sufferers of this terrible disease get a fair deal when the Government have had their review. Not only the noble Lord, Lord Alton, but all of us will be watching very closely to see how developments move forward in this very vexed field. As for this House, for once it can congratulate itself.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Thomas of Gresford Excerpts(13 years, 2 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Pannick
My Lords, as your Lordships have heard, the amendment that noble Lords approved on Report by a majority of 45 votes would state the purpose of legal aid: to promote access to legal services within the financial resources that are made available by the Lord Chancellor and subject to the other provisions in Part 1 of the Bill. The amendment had its origins in a recommendation from your Lordships’ Constitution Committee, of which I am a member, and was tabled by noble Lords from all sides of the House—the noble and learned Lord, Lord Woolf, the noble Lord, Lord Hart of Chilton, who is also a member of the Constitution Committee, the noble Lord, Lord Faulks, from the government Benches and, of course, me.
The amendment echoes the wording of Section 4 of the Access to Justice Act 1999, which is the current statutory provision. It is similar to the statutory provisions that have been found in earlier legislation from 1949 onwards. The other place disagreed with this amendment after a debate that was restricted to 27 minutes—a point made by the noble Lord, Lord Higgins, a few moments ago. Those 27 minutes to which the other place was restricted concerned not just this amendment but two others approved in this House after Divisions and to which we will come. They concern the very important subjects of the independence of the director of legal aid and the mandatory telephone gateway, which we will discuss later this afternoon. All those subjects had to be dealt with in 27 minutes—hardly the thorough consideration that the Minister suggested in his opening remarks.
The Minister in the other place, Mr Jonathan Djanogly, and the Minister today have made four main points. The first, which was emphasised in the other place but has not been mentioned today, is that financial privilege was applied to the amendment. Your Lordships will know that financial privilege in the other place does not prevent your Lordships asking the other place to think again about an amendment. Financial privilege simply requires that the amendment be varied in this House from the original amendment. That is why the amendment now before this House is not exactly the same as that which was approved on Report.
I do not want to make this a debate about financial privilege but I hope I may be excused for saying that I know that many noble Lords were as surprised as I was that financial privilege was applied to Amendment 1. The original amendment made it very clear that access to legal services would come within the resources made available by the Lord Chancellor and in accordance with the rest of Part 1, and therefore that amendment had no financial implications whatever.
Your Lordships may also be interested to note that when I made these points to the authorities in the other place and I asked for a brief explanation of the reason for financial privilege being attached to this amendment, because neither I nor the others responsible for tabling this amendment could understand the point, I was told that no reasons are given for the decision on financial privilege. Again, I doubt that I am the only noble Lord who finds it very regrettable that this House should be told that financial privilege controversially applies to an amendment but noble Lords are not told why that is so.
However, that is a side-show. In any event, the amendment now before your Lordships responds to financial privilege, and it does so by making it clear beyond any possible doubt that the question of what financial resources to make available is a matter for the discretion of the Lord Chancellor and the Lord Chancellor alone. That is what the amendment says beyond any question. It also makes it clear that its terms and effect are subject to the provisions of this part—in other words, subject to the restrictions in the Bill on what topics are within the scope of legal aid.
Lord Thomas of Gresford
Can the noble Lord explain what this amendment therefore adds to the provisions in the Bill? That is what puzzles me.
Lord Pannick
I was coming to that. If the noble Lord will have a little patience, that was the second point made in the other place. My first point, which I just want to complete, is that, with great respect, I do not accept that this amendment has any financial implications whatever.
The second point made by the Minister in the other place was that made just now by the noble Lord, Lord Thomas of Gresford. What is the point of this amendment? The view taken by noble Lords on Report was that now that legal aid is to be confined by this Bill, it is absolutely vital that we retain in the legislation a statement of principle that the purpose of legal aid is to promote access to justice within the available financial resources. That is important for this reason. The Government are proposing to limit legal aid by reason of current financial constraints and Parliament is accepting that. However, we all hope and expect that the economy will improve and, when it does, Clause 9(2) gives the Lord Chancellor a power to modify the substantive provisions of Part 1 to bring matters back within scope. When the economy improves, the case for relaxing the temporary limitations on legal aid should be considered by reference to principle, and the principle is that stated—I hope uncontroversially—in this amendment, which is to Clause 1 of the Bill. It is vital that this principle is not forgotten by reason of the temporary financial constraints under which we are all operating, and I can think of no better way of preserving the principle than setting it out at the beginning of the Bill. I happily give way to the noble Lord.
Lord Thomas of Gresford
But is not the effect of putting this at the beginning of the Bill precisely what the Minister said—that is, it leaves it open to lawyers to bring applications for judicial review and to ask judges to determine whether the financial situation has so improved that the provisions for legal aid should be extended? Is this not just making more work for lawyers?
Lord Thomas of Gresford
I regret that I have to disagree with the noble and learned Lord, Lord Woolf—I very rarely do. However, there is a statement of principle in Clause 1: it is that the Lord Chancellor must secure that legal aid is made available in accordance with this part. That is a very simple, short statement which would cause no judge any difficulty whatever in interpreting the provisions of the Bill. I said in Committee that the amendment then proposed was meaningless and added nothing to the Bill. I say precisely the same of the amendment as redrafted.
The amendment adds nothing, except this. I could be a very devious lawyer, and I might have a case for which I thought some funding was needed. So I might apply to the director of legal aid for special funding, knowing well that the case for which I am requesting funding is outside the legal aid scheme. The director of legal aid might say, “There is nothing special about this; I am refusing it”. I might then make an application by way of judicial review to the court, and I would get legal aid for that: judicial review carries legal aid. So I would get my money by making an application to the court for judicial review to say, “Look at this provision which the noble Lord, Lord Pannick, argues for: it is broad; it is wide; the circumstances of the country have improved; it is only reasonable that the director of legal aid should now grant me the funding that I need, or that the category of law with which I am now concerned should be brought within scope”. That is just one case. Other cases could then be brought forward in the same way.
Lord Woolf
Will the noble Lord explain how the risk to which he has just referred would be any greater than that which already exists in the words of Clause 1(1)—that the Lord Chancellor must secure that legal aid is made available in accordance with this part?
Lord Thomas of Gresford
It says in terms that it must be in accordance with this part. As the Minister has explained, the Bill as drafted says what is in scope. The Access to Justice Act 1999 set out what was not in scope.
Baroness Butler-Sloss
I am no expert in administrative law. However, my recollection is that that requires leave of the judge. If it is as spurious a case as the noble Lord has suggested, I would have thought that it would be likely to be rejected and that very little legal aid, if any, would be involved.
Lord Thomas of Gresford
Why should one run that risk? Why should one have applications for judicial review being made based on the amendment as currently drafted? This adds nothing to the Bill. All it does is open an avenue for satellite litigation which should not be permitted.
Lord Carlile of Berriew
My Lords, it would be a great disappointment to your Lordships’ House if you were to find that there was unanimity on these Benches. I am not going to disappoint your Lordships: there is not.
I agree entirely with the noble Lord, Lord Pannick—particularly in relation to the second and third parts of his speech—and also with the noble and learned Lord, Lord Woolf. In answer to my noble friend Lord Thomas of Gresford, I would say that Clause 1(1) contains absolutely no statement of principle whatever, whereas Amendment 1B does contain a statement of principle, albeit within the financial limits set by the Bill.
What I really wanted to do is say a few words about financial privilege. I suspect that there will be other noble Lords who were once Members of another place who, like me, have sat on the Reasons Committee. It is the Reasons Committee that drafts the reasons why the Commons do disagree with your Lordships' House. It sits in a room just behind the Speaker’s Chair. That room is known as the Reasons Room. Behind that Alice-in-Wonderland title lies an Alice-in-Wonderland process. In the Reasons Room, the Reasons Committee—which does not produce a Hansard record, or certainly did not do so in my time—produces reasons that, by and large, are presented on a piece of paper and nodded through. That seems to me to be what has happened here. The reason that is given is that,
“it would alter the financial arrangements made by the Commons”.
That is a statement of predictive certainty. What we have heard from my noble friend the Minister suggests that there might be a possibility at some stage in the future that some kind of judicial review action might, not would, have some effect on, not alter, the financial arrangements made by the Commons.
I echo the words of the noble and learned Baroness, Lady Butler-Sloss, about the process of judicial review. Every judicial review application goes in the first instance, on an entirely paper procedure, before a judge of the administrative court. As it happens, most applications—about 80 to 90 per cent—are refused on the papers and there is practically no expenditure upon them at all. I cannot see any circumstances in which it is more likely that judicial review proceedings would continue as a result of including this amendment in the Bill as compared with the Bill as it stands. As my noble friend Lord Thomas said, the Bill as it stands contains the potential for applications being made for judicial review against the exceptionality provisions and against a ruling that legal aid should not be given. What is proposed here hardly increases that risk.
Lord Carlile of Berriew
I will give way in a moment; I shall just finish the sentence.
If the other place has got its reasons wrong then surely we are entitled to question those reasons in this House, and if the burden of the debate justifies it, to ask the other place to reconsider, on the basis that it has got its reasons wrong. I will give way to my noble friend now—but he does not want me to. I am glad that I have answered his question. I have nothing further to add.
Lord Elystan-Morgan
My Lords, the whole exercise of this House examining the reasons given for rejecting an amendment from this place turns on the supposition in the first instance that the other place has in a mature, reasonable and well informed way applied itself to all the relevant issues. I therefore take very much to heart the submissions made by way of preliminary argument by the Minister. It is his case that the other place has done exactly that: namely, that it has looked in a fair, reasonable and mature way and has comprehensively dealt with those issues. I think that his argument is utterly fallacious in that respect.
Lord Thomas of Gresford
Before using a word such as that, does the noble Lord not agree that there is a constitutional convention that—
Lord Elystan-Morgan
It is exactly on the question of constitutional convention that I seek to address this House now. The Minister’s case, in so far as it refers to the Government having carefully considered the situation, is amply made out. I am sure that battalions or squadrons of legal eagles have been burning the midnight oil looking carefully at every word, comma and expression in these matters. I have no doubt that that has been done thoroughly and comprehensively.
However, has the other place thoroughly and comprehensively considered this matter? There has been a double guillotine. First, there was a guillotine in dealing with the issue because it could not be raised at Second Reading, in Committee or on Report. There was a second guillotine in the meagre ration of time—27 minutes—allowed for this amendment and two or three others. You would not hang a dog on such a procedure.
Therefore, on that basis, I make no apology for raising what I consider to be a fundamental constitutional point. We are dealing with the rejection by the House of Commons of a matter on which the time taken presupposes that its consideration could not have been mature and comprehensive. In addition, we have the reason given on financial privilege. I am as sure as I am that financial privilege cannot apply to this case because the very thing that it avoids doing is increasing the burden on the public purse. If I am right—as I understand it, that has been the rule since the end of the 17th century—it is not a financial privilege matter. Therefore, we have two constitutional issues. One is the lack of time and it being ridiculously limited in the other place. The second is the reason advanced; the very basis for refusing it cannot be sustained in argument.
Perhaps I may also challenge in a respectable, and I hope friendly, way the noble Lord’s contention that those of us who have had experience—in my case, it was a very long time ago—as Members in the other place are in some way tainted and disqualified from making contributions in this House on this matter. Is he saying that we should be silent? If this House is anything at all, it is a first-class reviewing Chamber. Is he saying that, as a reviewing Chamber, this House should not comment on such matters? If it does not comment on such matters, it does not deserve to be a reviewing Chamber or a court of Parliament at all.
Lord Morris of Aberavon
My Lords, I add my support to the noble Lord, Lord Alton. As constituency MPs, many of us saw cases to do with this very issue and the difficulties that some of our constituents had in establishing liability after years of contact. I added my name to the noble Lord’s original amendment and heard his speech then, which set out the case admirably. I congratulate him on continuing to expose such an injustice. At this late hour, all I wish to say is that my support continues and I hope that the noble Lord will succeed.
Lord Thomas of Gresford
My Lords, why success fees should be claimed at all by lawyers in this type of case just defeats me. The problem is in identifying the insurers of a particular firm that may have exposed the sufferer to asbestos many years before. I am delighted to hear that discussions are afoot on setting up a scheme akin to the Motor Insurers’ Bureau, whereby insurers come together to meet the damages and costs of a sufferer who cannot identify a particular insurance company behind his former employer. I hope that comes to pass. If it does, it will cure a lot of problems. It is obvious when a person suffers from mesothelioma; you do not have to prove that someone is suffering from this condition.
As a result of the Supreme Court’s decision last year, it has to be shown only that an employer has exposed an individual to asbestos in the past for that individual’s claim to succeed. The statistics show that these cases settle. What does that mean? It means that the fees of the lawyer are not at risk; he will have his ordinary fees paid by the insurer. Therefore, why should he get a success fee over and above that? On Report, I proposed that there should certainly be no success fee payable if a case settles before steps are taken to bring it to trial. I ask the Minister to take this into account when regulations are drawn up under what will be Section 46. The lawyer is not at risk. He has done nothing to earn more than the fees that he can properly charge. We did not have success fees in the past. We acted for people and, if we lost, we did not charge them. When we won, we got our costs and the expenses that we had paid from the other side, properly taxed. That was how the system worked.
I hope that the Government can bring in a combination of the Motor Insurers’ Bureau scheme for this type of case and couple it with regulations that say that no success fee should be charged when a case settles. That would do a great deal to alleviate the problems of which the noble Lord, Lord Alton, speaks. He is right. I stand along with Ian Lucas, my Member of Parliament in Wrexham, who as a lawyer says, “We didn’t come into this profession in order to take money from injured people”. I think that only a heartless claimant’s solicitor would charge a success fee in cases of this nature.
Lord Howarth of Newport
My Lords, I have no doubt at all about the sincerity of the noble Lord, Lord McNally, and the compassion for victims of mesothelioma that he expressed at the outset of his speech. None the less, he felt that he must advise the House to reject the amendment so powerfully moved by the noble Lord, Lord Alton of Liverpool.
I say to the Minister that there is no virtue for the Government in dogmatic consistency. I believe that they would do themselves good and, much more importantly, they would do a great deal of good for those diagnosed with mesothelioma, as well as their families and dependents, if they would agree to make an exception in this instance. If they were to do so, it would not create a permanent anomaly, and in the short term I do not believe that it would undermine the central principles of the Government’s reforms because they are absolutely secured in the legislation that Parliament will pass. In any case, the Minister need not fear because this is a category of cases that is going to reduce in number over time. Mesothelioma is, I understand, exclusively associated with exposure to asbestos. All too belatedly the terrible damage that asbestos can do to human health was recognised, and for some time due to regulations and industrial practice there has been no further exposure of people to this hazard. We can foretell with confidence that this category of cases will dwindle and, I think, disappear. Therefore, the Minister need not worry that there will be a permanent anomaly. I say to him that he does not need to persist in a doctrinaire position which runs counter to his own very real human sympathies.
Lord Bach
My Lords, it is the Opposition’s view that there should be no moneys taken from victims’ damages in these cases. That is the basis of our view. So we speak in favour of the amendment that has been so well moved.
There is a great feeling across this House that we have to protect victims of industrial disease and ensure that they and their families are not victims once again of reforms that are there to deal with dodgy whiplash claims and motor insurance premiums. In another place, as we heard this evening, there was a very powerful and intelligent debate on this subject. Those who often express the view that debates in this Chamber are always of a superior nature to those of another place should read Hansard carefully and look at what took place in that very short hour towards the end of Tuesday last week. It was a very good debate.
Honourable Members on all sides of the Chamber spoke with passion, knowledge and experience about this subject. Not least was Ms Crouch, a former insurance executive, who criticised both her Minister and the Association of British Insurers for their stance on these amendments. Indeed, as I understand it, she has spoken to the noble Lord, Lord Alton, today and has also put out a press release. I am delighted that a number of Members of Parliament on all sides who spoke in that debate are listening to our debate this evening.
I could also mention Mr Andrew Percy who represents Brigg and Goole, which noble Lords will know is famous for its historic shipbuilding past, and Mr Andrew Bingham, the MP for High Peak, an area that also has a high incidence of asbestosis. They spoke against the Minister’s proposals and, to their credit, voted in the Opposition’s Lobby. Their concern was perfectly understandable. Why on earth, with absolutely no savings to the state, are we reducing the amount of money that victims get from those who harm them, while handing that money to lawyers or insurers instead? Those Members on all sides who voted were not persuaded by the stupid assertions—if I may call them that—of the Minister in the other place that industrial disease sufferers should be treated in the same way as an organised gang faking whiplash injuries for payouts or someone lying about a slip or a trip on a pavement crack. Again and again, the other place heard stories of horrific suffering of victims—and the fact that you simply cannot fake cancer of the pleural linings, peritoneum or cardiac sheath.
The history of asbestos-induced diseases—and, indeed, general industrial diseases—is not a proud one for the insurance industry. It knew for decades that asbestos killed before it acted and only then at Parliament’s promptings. Insurers have fought cases—to the death—trying to get out of paying just awards to genuine victims. There is a long history of insurers fighting claims until after the death of the claimant. It is in part thanks to their tireless lobbying that compensation levels in England and Wales are not by any standard generous in cases of this kind. They are forensically calculated to reflect pain, suffering and loss of amenity and costs of past and future losses. They are far less than victims receive in comparable jurisdictions. For example, Mealey’s Litigation Report in 2007 maintained that the average jury award in the United States for mesothelioma was $7.5 million—the average award here is £65,000. Of course, the differences between jury and judge-calculated awards and our judicial systems apply, but there is a huge difference.
No one could argue that the damages victims of this disease receive are very great; they should certainly not be eaten into in the way that this Bill, if allowed, would permit. We start from a low baseline before we even consider docking damages to prevent these claimants coming forwards.
Lord Thomas of Gresford
Does the Minister not support my argument that it is better that there should be no success fees at all, rather than that success fees should be claimed against the insurers, which is what this amendment amounts to—in other words, a continuation of the current system? Does the Minister not agree that in these cases, which are easy to prove once you establish the insurer, success fees are really irrelevant?
Lord Bach
I am grateful to the noble Lord again for calling me the Minister—it is a couple of years, I think, since that was the case. I take his point though; it is a serious point. I am not convinced that lawyers who take up these cases, if this Bill in its present form becomes law, will not take success fees. In fact, I am pretty certain that they will. I cannot see why they would not. It may be a shame, but in the reality of the legal world, if they are entitled to take success fees, they will do so.
Lord Bach
I certainly do not have the experience of the noble Lord in this area of the law, but with the greatest respect I ask whether his view is not as speculative as mine. We just do not know, but I would have thought that the history of legal proceedings of this kind is that where success fees are available they will be sought. Maybe not always up to 25 per cent, but they will be sought.
Lord Thomas of Gresford
Surely it would be for the Lord Chancellor to amend the regulations that he has to make to prevent success fees being charged in these circumstances.
Lord Bach
That may be what the noble Lord, Lord Thomas of Gresford, would suggest to the Lord Chancellor that he should do, but is there any indication that that is what will be done? Will regulations be put before Parliament that say it is forbidden to take a success fee in a case of this kind? If so, will not the Lord Chancellor run into exactly the same sort of problems that critics of this amendment raise here against the noble Lord, Lord Alton, and me? Will that not be the position?
Lord Thomas of Gresford
Not if there is an abuse, as the noble Lord suggests. If claimants’ solicitors in cases which are not difficult to prove start charging success fees, which the Lord Chancellor or public opinion decide is simply not acceptable, then the Lord Chancellor will have the power to stop it.
Lord Bach
It may not be difficult to prove, and I understand what noble Lords say about that. But there is a history, I have to say, of insurance companies taking an extremely long time to agree to settle cases of this kind. For whatever reasons—and I do not want to go though them tonight in this House—it may be that a case will take quite a considerable period of time, even if, at the end, liability is not denied. I want to stop soon and allow the Minister to respond.
Lord Bach
My Lords, this House dislikes the Bill. I am referring not only to the 11 defeats and two draws that the Government sustained on Report or the defeats today but to a wider feeling that Part 1 in particular is mean-minded, picks on the poor, disabled and vulnerable and is not worthy of this country’s traditions and its legal system. This view is held virtually throughout the House. There were more than 50 speakers on Second Reading, but it is difficult to recall anyone who spoke up for Part 1.
I believe that many Conservatives are offended by the way in which the Government have picked on the poor and the vulnerable. It is against their traditions and they are unconvinced that there are any savings to be made by decimating social welfare law, particularly as the Government have consistently refused to give figures, in spite of committees asking them to do so.
I also believe that the Liberal Democrat Benches are offended by the taking out of scope debt, employment, immigration and, if the Government have their way, welfare benefit cases. If they had been in opposition now, I venture to suggest that they would have opposed Part 1 of the Bill with all their might, yet somehow, with some brave exceptions, which I will not name, they have been cajoled into voting for exactly the things with which they disagree most. The Minister is a liberal and humane man and I occasionally feel sorry for him, too. He has been obliged to put forward, particularly in relation to Part 1, nonsense after nonsense in support of his arguments.
Of course we welcome the Government’s amendment concerning upper court appeals. It was always ridiculous that claimants at an Upper-tier Tribunal—the Court of Appeal or the Supreme Court—should not automatically get legal aid to argue their case, which, as the Minister has just reminded us, can be only on a point of law. The Government knew all along that it was ridiculous and the Minister, to his great credit, never tried to argue seriously against it. We were always going to get this concession at some stage. I do not want to be difficult about the concession; we are grateful for it and for any part that the Minister may have had in getting it.
However, the position is still deeply unsatisfactory with regard to First-tier Tribunal appeals. Last Tuesday, in the other place, an extraordinarily unconvincing pantomime took place between the right honourable and learned gentleman the Lord Chancellor and the honourable Member Mr Tom Brake. I should explain to any noble Lords who do not know who Tom Brake is that he is the Commons equivalent of the noble Lord, Lord Thomas of Gresford. That is meant as a compliment to him.
The Lord Chancellor hinted tantalisingly—using expressions such as “if we can solve the problems”, “if we can find” and so on—that an arrangement might be reached whereby a lower-tier judge could certify a point of law and give legal aid to a claimant. I do not think it unfair to describe that arrangement as vague, unthought-out, superficial, strictly back-of-an-envelope stuff and, as we know, arranged very much at the last minute. Amazingly, however, it resulted in the said honourable Mr Brake immediately withdrawing an amendment that he and others had moved—not unlike my amendment today, as it happens. I am afraid that no one was fooled by this last-minute arranged minuet of an agreement. In a boxing match, it was a clear fixed fight, with Mr Brake going down to a knockout by arrangement in the second round.
Lord Thomas of Gresford
That is absolute rubbish. I say now—I would say it in a speech later—that it is not worthy of the noble Lord, Lord Bach, to attack Tom Brake in that way when he is not here to answer for himself. I am proud to be an associate of Tom Brake, who leads on legal matters in the House of Commons from the Back Benches, as I do here. He very bravely put forward that amendment and achieved a great success in getting the concession that he did, which I will develop at a later stage.
Lord Thomas of Gresford
My Lords, I am very pleased to welcome the government amendment in lieu, which follows very closely the amendments that the Liberal Democrats put down, both in Committee and on Report, for ensuring that there is proper legal support for appeals on a point of law to the Upper Tribunal, the Court of Appeal or the Supreme Court. The Government are to be congratulated on taking that step.
The lacuna in the amendment that I moved in Committee and on Report was that legal points might arise at First-tier Tribunal hearings. It was to that end that my colleague Mr Tom Brake put down an amendment in order to clarify that, or to try to obtain a concession from the Government in relation to that, when the matter came before the Commons. A number of points have been made about it. About 80 per cent of cases, maybe more, before the First-tier Tribunal are decided on the facts: whether a person has sustained a particular injury, whether that injury disables him from doing a particular job or whatever. It covers a wide range of possibilities, but it is usually a factual issue.
However, from time to time a point of law arises. Now, there is no difficulty whatever in identifying what a point of law is. The best illustration that I can make is the famous case of Donoghue and Stevenson—the snail in the ginger beer bottle. For the purposes of coming to a conclusion on the law of negligence and how it should develop, the House of Lords, in considering that case from Scotland in the 1930s, assumed that the claimant’s facts were true; namely, that there was a snail in the ginger beer bottle that the claimant drank. Accordingly, all the argument was based upon that assumed fact. As a result, the law was clarified and developed, and is the foundation of the law of negligence to this day. When the case was remitted to the Scottish court to determine the facts, it was discovered that it was impossible to prove that there was a snail in the ginger beer bottle at all. Consequently the claim was, I think, settled, or it may have failed, but that is the distinction. A point of law is when you have a difficulty in coming to a conclusion, even if the claimant’s facts are true.
The First-tier Tribunal will frequently be faced with mixed facts and law. That is to say, it will have to determine what the facts are and, in that light, consider whether there is any legal problem in the statutory provisions—any point of law—which has to be decided as well before the claimant gets his compensation, allowance or benefit, or whatever it may happen to be. So there is no problem. Every day, in every court and tribunal, points of law are being disclosed, discovered, analysed and dealt with. Indeed, you cannot appeal from the First-tier Tribunal to the Upper Tribunal unless there is a point of law that the First-tier Tribunal identifies. Similarly, in going from the Upper Tribunal to the Court of Appeal or the Supreme Court, there has to be a point of law, so there is no problem—as there appeared to be among certain minds in the other place—as to what a point of law is.
The problem that one has to face is: can an unrepresented applicant determine himself whether there is a point of law? There are two answers to that. First, any tribunal with a legally qualified chairman will perceive that there is a point of law involved in coming to a conclusion on the case, so it is in the hands of the chairman of the tribunal to determine whether a point of law arises. If it is unexpected, he can stop the case there, adjourn it and give legal aid for the case to be argued properly by a lawyer who is familiar with the statutory provisions. There is then equality on both sides. However, there is another approach. In the criminal context, if I am prosecuting and the defendant is representing himself when appearing in court, and if I as the prosecutor—the qualified lawyer—realise that a point of law arises which the unrepresented defendant has not realised, it is my professional duty to tell that defendant in a criminal case, “Look, there is a point of law in your case, which you should mention to the judge. Let’s have a discussion about it”. It is my job to bring it out.
I suggest to the Government that when it comes to tribunals, anybody representing the state—the Government or a government department—in a tribunal should be under a duty, which regulation should point out, to inform an unrepresented applicant if that state representative appreciates that a point of law arises. This is so that before they even get before the tribunal, the state representative will have told the litigant or applicant in person, “Look, my friend, you have a point of law in this case, which you must mention to the tribunal judge. If you don’t do it, I will”. That is the tradition of the legal system, and it must apply even when the state is represented not by lawyers but by representatives of the department in question. I urge upon my noble friend that he takes that on board and ensures that there is such a duty, as there is elsewhere, for lawyers to point out to the unrepresented applicant that there is a point that he should take.
I am very pleased that points of law will be properly dealt with under the government amendment. I hope that the moves that the Lord Chancellor makes to ensure that, where a point of law arises in a First-tier Tribunal, a case is either by agreement put forward for legal aid or the tribunal chairman will stop the proceedings and adjourn them until the point can be properly argued. In my view, that is the way in which all the fears that have been expressed on the position of the unrepresented applicant will be dealt with.
Lord Low of Dalston
My Lords, I supported the amendment tabled by the noble Baroness, Lady Doocey, on Report, so I have no hesitation in supporting the more limited amendment moved so fully by the noble Lord, Lord Bach, this evening. I hope that the House will ask the Commons to think further on this matter. I will say something about the substance in a minute, but I am glad that the noble Lord, Lord McNally, has emphasised the question of financial privilege because I want to say another word about that, if the House can bear it.
I come at this from a slightly different angle. There has been a change in the composition of the House of Lords in the past 10 years. I am not referring to the reduction in the number of hereditaries but to one that has been rather less remarked; namely, the appointment of so-called people’s Peers by the Appointments Commission. I am not greatly enamoured of the term “people’s Peers” but, for once, it may perhaps point to a reality that is worth observing—the links that those Peers, not being just the great and the good and the beneficiaries of political patronage, have with the diversity of civil society, which is something that the Appointments Commission has been keen to foster. They have been appointed for the distinctive contribution that they make and their ability to devote sufficient time to the work of the House. That last is an expressed criterion of appointment. I would not want to make too much of this, and I certainly do not wish to disparage other Peers, but the so-called people’s Peers have been specifically appointed on merit for the time, perspective and expertise that they can bring to the work of the House, including that of scrutinising legislation, and for their ability to reach and give a voice to parts of society that are not always reached.
That is part of what makes the Lords more accessible in some ways than the Commons. It is this House and not the other place that has been widely seen as speaking for the vulnerable and dispossessed in our consideration of the Welfare Reform Bill and this Bill. The House has done itself a deal of good. This may not be election but it adds a measure of legitimacy, or at least detracts somewhat from the air of illegitimacy, which is said to attend this House. We all know that the Commons has primacy in matters of supply, but I am sure that I speak for my colleagues when I say that this blanket resort to the claim of financial privilege as a ground for the summary negation of weeks of the very work we were appointed to this House to perform sits very ill indeed with the job description on which we were appointed to this place. It seems to me that it is the Commons’ heavy-handed use of the claim of financial privilege and not the existence of the House of Lords that deserves to be likened to what is going on in Syria or an affront to democracy.
The noble Lord, Lord Martin, whom we all greatly respect, and the noble Lord, Lord McNally, whom we also respect, say that the assertion of privilege is a completely objective matter decided on impartially by the Speaker and his advisers and has nothing to do with the Government. The Speaker may be the conduit through which these claims are asserted but, with the greatest respect, as the noble Lord, Lord Howarth, has indicated, if you believe that the Government have nothing to do with it, you will believe anything.
Scholars differ about the extent of financial privilege but Dr Jeff King, a senior lecturer in law at University College London, said:
“The Lords has the clear right not to accept the Commons assertion of privilege without a protest”.
Lord Thomas of Gresford
My Lords, there is something ironic in the desire of the noble Lord, Lord Cormack, to maintain legal aid for children as a child might be very much better off pursuing a claim by means of a conditional fee agreement as things stand at the moment. I shall explain.
My noble friend Lord McNally has on two separate occasions during the Bill’s passage outlined fully the Government’s intention to introduce a supplementary legal aid scheme, which was part of the Access to Justice Act 1999, passed by the party opposite, whereby there would be an automatic 25 per cent deduction from the damages recovered by a claimant who is legally aided. As things stand, if a child succeeds under legal aid in obtaining damages, 25 per cent of those damages will be taken by the state under the proposed supplementary legal aid scheme, which will be used to fund other applicants for legal aid automatically. Under a conditional fee agreement, the solicitor who acts on behalf of the child claimant will be entitled to recover his fees, if he can establish the case, from the other side. But when it comes to the success fee, under these proposals, it will be recoverable from the damages of the child and limited to 25 per cent of those damages.
A success fee cannot exceed 100 per cent of the lawyer’s normal fees that he recovers from the other side, so it may never come anywhere near the 25 per cent of the damages that the child recovers. Under a conditional fee agreement, the success fee is related to the amount of the fees, not the amount of the damages. There is not a 25 per cent deduction from the child’s damages automatically. That is just a cap to prevent a success fee from going to an extreme amount. Consequently, it may be that the legally aided child, who will have an automatic 25 per cent reduction of his damages, will be in a worse position than one under a conditional fee agreement. I do not think that that point has properly sunk in. It is for that reason that I look to the Government, perhaps not tonight but at some time if regulations come forward for the supplementary legal aid scheme, to exempt children from the 25 per cent reduction proposed under that scheme. As things stand, 25 per cent will be taken off. For those reasons, I do not think that the amendment proposed by the noble Lord, Lord Cormack, assists the children that he wishes to help.
Lord Beecham
If I understand the noble Lord, Lord Thomas, correctly—he is obviously more conversant with the Access to Justice Act 1999 than I am—provision is contained within that Act for regulations to be made—
Lord Beecham
I was about to say precisely that. It was never implemented so it is open to the Government to lay regulations that would require that 25 per cent deduction. It is equally open to them to do what their predecessors did and not lay such regulations or make that deduction. I am entirely at one with the noble Lord in saying that that deduction should not be made, but that is the situation at the moment.
With respect to the noble Lord, I do not think that his argument takes us very far at all. The Opposition support the amendment proposed by the noble Lord, Lord Cormack, despite the fact that it appears to contain a grammatical error. It refers to,
“clinical services which took place at a time when the individual was child”.
There is an indefinite article missing somewhere. However, that is a trivial point. The substantive point is one that was made effectively by the noble Baroness, Lady Eaton, when we debated this on Report. In the debate on the amendment that was discussed on that occasion, she talked of the figures involved in legal aid expenditure for children. She pointed out that legal aid for clinical negligence claims involving children cost the Legal Aid Fund some £4.6 million, of which £3 million was spent on precisely the cases of neonatal injury to which the Minister referred and to which the Government have responded by restoring them within scope. Therefore, as the noble Baroness pointed out, the net saving would amount to £1.6 million for the Legal Aid Fund.
It is time to dispose of some of the shibboleths about tough decisions and the like. Apparently it is not a particularly tough decision for the Department for Communities and Local Government to spend £250 million on weekly bin collections. It seems to me and to the noble Baroness, Lady Eaton, and presumably the noble Lord, Lord Cormack, a very tough decision to deny legal aid at a cost of £1.6 million to children under the age of 16 who suffer clinical negligence other than through the limited but welcome concession that the Government have made in respect of the injuries to which we have referred.
I also remind your Lordships of the view of the National Health Service Litigation Authority, which I quoted last time and will quote again. It stated:
“We have serious concerns over the proposal to withdraw legal aid from clinical negligence claims. Whilst we have seen an upsurge of claims brought under Conditional Fee Agreements … in recent years, we question whether CFAs are likely to be readily available to fund many of the more serious claims currently brought via legal aid”.
That view was about clinical negligence claims at large. Therefore, one might think that those concerns would surely apply to claims for children under the age of 16.
This does not remotely impinge on the huge problems that the Minister constantly reminds us of in relation to deficit reduction and the like. It is an almost trivial sum of money. By no conceivable stretch of the imagination could it be justified by financial privilege, which is the cover under which the Government approach this amendment. Let us be clear about financial privilege because it has been bandied around today and on previous occasions. Of course the Commons has the right to assert financial privilege, which is an objective process as far as the Clerks and the Speaker are concerned. However, it does not stop there. The Commons can waive financial privilege. If the Government wished for financial privilege to be waived, it would pass almost without opposition and frequently does. It is often waived. The Government choose not to waive it in connection with this and the other matters to which we have referred. It is a fig leaf behind which Ministers hide. I hesitate to convey an image of Ministers brandishing fig leaves; that would be an unwelcome variation on a theme. However, it is a pretty feeble and diminutive fig leaf for any Minister to hide behind. It is not an adequate defence for what they are doing.
I repeat: the figures show that the potential savings are minimal. Undoubtedly, justice will not be accessible for too many young people except in an expensive form potentially through a conditional fee agreement—even allowing for how the noble Lord, Lord Thomas, described it. I very much hope that the House will build on the Government’s welcome concession with this small additional financial burden and extend justice to those who need it.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Thomas of Gresford Excerpts(13 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Lord Speaker (Baroness D'Souza)
My Lords, I remind your Lordships that if this amendment is agreed to I cannot call Amendment 2 for reasons of pre-emption.
Lord Thomas of Gresford
My Lords, I am grateful to my noble friend for the amendment. He knows that we on these Benches raised this issue before Second Reading. It is necessary to have flexibility brought into the Bill for two reasons: first, because economic conditions may improve and it may be possible to revert to a more generous legal aid scheme; and, secondly, because those of us with experience of litigants in person know they can clog up the courts and that, consequently, it may be necessary for urgent amendments to Schedule 1 to introduce legal aid to enable people to be legally represented. It is not fully appreciated by the public that legal representation shortens cases and leads to justice, rather than litigants in person trying to fight their own cause.
Lord Bach
I thank the Minister for the concession that the Government have made today. The clause as it stands before we pass the Government’s amendments should never have been in that form when the Bill was published and was always crying out for amendment. Indeed, members of my party in the Commons did their best to ensure that that happened. I am grateful to the noble Lord, Lord Thomas, and other noble Lords for persuading the Government that the clause needed changing. I shall not, of course, press my amendment; I will not move it.
I know the Minister and all other noble Lords will agree that the House seems somewhat empty today because our noble friend Lord Newton of Braintree is not with us in our deliberations. He took an active part in all the debates on the Bill for many months and, even though we could all see that he was not in good health, insisted on coming here, speaking his mind and voting in the way his conscience told him to vote. He took a real interest in the Bill and—I know all noble Lords will agree—it was a delight and privilege to work with him. It does not seem right or just that he is not here listening and speaking his mind. Having said that, I thank the noble Lord for the concession.
Lord Thomas of Gresford
My Lords, when I first looked at the Bill, I was pleased to see how much vulnerable adults and children are protected by the provisions of Schedule 1. One has only to look at the paragraph headings to see the protection that is given: for example, “Care, supervision and protection of children”, “Special educational needs”, “Abuse of a child or vulnerable adult”, “Working with children and vulnerable adults”. All these groups will remain within the scope of legal aid. Further headings comprise: “Mental health and mental capacity”, “Facilities for disabled persons”, “Inherent jurisdiction of High Court in relation to children and vulnerable adults”, “Unlawful removal of children from the United Kingdom”, “Family homes and domestic violence”, “Victims of domestic violence and family matters”, “Mediation in family disputes”, “Protection of children and family matters”, “Children who are parties to family proceedings” and “EU and international agreements concerning children”. Over and over again the emphasis is placed on keeping the needs of children and vulnerable adults within the scope of legal aid. I look forward to hearing from my noble friend what proportion those headings represent of all the cases involving children. Those children’s and vulnerable adults’ issues will continue to be within the scope of legal aid.
There is one aspect of Amendment 3 with which I entirely agree—I spoke about this in Committee and on Report—which is that legal aid should be maintained for a review or appeal on social welfare issues and for,
“civil legal services relating to an appeal to the Supreme Court”.
That is so for children, but my position is that it is important that legal aid for appellate processes should be available to all adults and children.
I listened with a great deal of sympathy to the exposition of Amendment 4 by the noble Lord, Lord Cormack, but he should bear in mind that conditional fee agreements with one-way costing, which is the new way in which conditional fee agreements are to be entered into, will be available for people who are not covered by legal aid, and the new changes will be much more acceptable. For example, there will be protection against the defendant’s costs for a losing claimant—a losing child or adult. They will not have to pay those costs. We have discussed those issues at length. The noble Lord should also bear in mind that the Government have announced that if you are legally aided and you obtain damages in a personal injury case, 25 per cent of those damages will be taken for the supplementary legal aid scheme to fund other people who are deserving of legal aid. Therefore, entitlement to legal aid will not mean that a person gets their damages in full. It is probably better in many of these cases to have a conditional fee agreement as it has been refashioned than it is to receive legal aid. I am sure that that is the way in which the legal profession will go.
Baroness Eaton
My Lords, I speak in support of the children’s amendments moved and spoken to by the noble Baroness, Lady Grey-Thompson, and my noble friend Lord Cormack. I should like to add my thoughts on Lord Newton, who kindly supported the amendment. I know that we will all miss his integrity and compassion in all our debates, particularly around these sensitive subjects. I also thank the noble Lord, Lord McNally, because I and other noble Lords have had a number of conversations with him, and he has been most gracious in his dealings with us. However, I still find myself in the unhappy position of being unable to support the Government’s intention to remove the clear and straightforward right to legal advice for children under 18 generally, and for all children who are injured in clinical negligence cases.
The Bill as it stands draws a distinction between, on the one hand, any child who suffers brain damage as a result of medical negligence before the age of nine weeks, and, on the other, any child suffering injury of any other kind caused by medical negligence—including a child who suffers from brain damage when they are nine weeks and one day old. Let me tell noble Lords about a Plymouth boy who suffered brain damage at the age of one when doctors at the Frenchay Hospital in Bristol failed to follow up a suspected aneurysm. Months later, he suffered a devastating bleed in his brain, which would have been avoided if the correct procedure had been followed. The boy will require care for the rest of his life; he cannot talk and will never be able to work. A settlement with North Bristol NHS Trust at the High Court in November 2011 will help to provide care for the rest of the boy’s life. He is now 10. The case could not have been started without legal aid, which would not be available if the Bill were to pass unamended.
I simply do not see how children who have been injured in these often heartbreaking circumstances can be divided into two groups in this way. We would allow legal aid for a baby suffering brain damage at birth, but deny legal aid to a baby suffering brain damage in hospital at the age of one. Or we would prevent a child who has been paralysed from seeking help. Just imagine two babies at two weeks old in the same hospital. One is brain damaged and the parents can seek support on their behalf, while the other is paralysed and the parents cannot get legal aid.
Are we really saying that a brain-damaged child who can walk needs more care and support than a child who has to be carried to the bathroom and turned in bed during the night? The severe difficulties facing the child’s parents will be exactly the same in both cases. They will be desperate for help. They will want to know whether they have a legal case and, first and foremost, they will be giving their child the day-to-day care and love that all parents must, whatever the difficulties.
Are we really going to ask half of those parents to appeal to the director of legal aid casework to see whether their child qualifies for legal aid as an exceptional case—as if that would be a satisfactory way to organise legal aid for children even from the Government’s point of view? I ask noble Lords to consider the expense, bureaucracy and delay that will result from such an approach.
I have highlighted medical negligence but, as a former leader of a local authority, I could go through each subject heading and make a similar case. The simple truth is that children are defined as minors in law because they cannot represent themselves and sometimes need protection and redress from their families and from the state. It is not good enough to suggest that a social worker can apply for their legal support as an exceptional case. Social workers are not legal executives and have no legal training. Inherent in that suggestion is a misunderstanding of the nature of the legal actions that may be taken. In most cases, the child will be challenging a decision or action taken by the local authority. Do we really believe that every social worker will apply for a child to have legal aid in cases which challenge his or her decisions or those of his or her employer?
All of us in this House understand that in a healthy democracy, it must be possible to challenge the state, particularly where children are concerned. We also understand that there are lots of terrible cases where children’s voices have not been heard, which is why we need to ensure that they can take independent legal advice that is accessible directly, not via a social worker or any other arm of government.
I support the amendments because I believe that they will save an enormous amount of trouble and wasteful expenditure for the Government, whom I support. I want to help the Government to pull back from what would be a regrettable and avoidable mistake, and they will save a great deal of anxiety for parents who are already coping with more than anyone should have to bear.
Lord Judd
My Lords, the noble Baroness is to be congratulated on having persevered so well and firmly with this cause, right up to Third Reading. I remember in my early days as director of Oxfam that I was in north-west Brazil where, having travelled overnight in a rickety bus, I arrived in this very poor town. Around the tower of the church, there was a banner in Portuguese which said, “Prison bars will not prevent the truth escaping”. When I, together with the field director, probed to try to find out what had happened and what was wrong, evidently a greedy land grabber had been bribing the judge with cattle and the judge had repeatedly ordered these people off their land. They had no social insurance—nothing. They had no means of surviving but to go on farming the land they traditionally farmed. In the end, because they resisted, he threw them and the local secretary of the peasants’ association into prison for good measure.
I had gone with my colleague to discuss agriculture—wells, tools, seed and irrigation—but what became very clear was that these people were preoccupied totally with justice. They wanted to have some resources to be able to go to the regional court and put their case before it. I can remember us sitting over some beer and doing some rough calculations, and reckoning that we could find a bit of money to help support them to go off to the regional court. One of my best moments in those formative years as director of Oxfam was when I heard at headquarters in Oxford that having taken their case before the regional court, the local judge was in prison and they were back on their land.
I tell this story because I have repeatedly found in my work with the Third World that what holds people back is a lack of justice and fairness, and what they are wanting is a fair crack of the whip. If this is true within the context of their own societies, when we move into a globalised society—with the vast power of the biggest international companies and the almost limitless resources that they have at their disposal for legal undertakings, cases and the rest—the case becomes even more obvious. I am very unhappy with this whole Bill, and have been from the beginning, because it is about limiting access to justice when surely a cause in a civilised society is to increase access to justice. If we have a serious commitment to the people of the Third World, as the Government keep demonstrating that they want to have, nothing is more important than ensuring that they can get access to justice. I really will be very despairing if the Government, even at this 11th hour, cannot respond to what the noble Baroness has argued.
Lord Thomas of Gresford
My Lords, I have huge sympathy with the claimants in the Trafigura case, who received £30 million in damages, and if I thought that access to justice for people in their position were being blocked by this Bill I would be entirely with the noble Baroness. Unfortunately, the costs in that case were £100 million, reduced on taxation to £40 million. I do not feel particularly proud of a legal system which produces such a disparity between the damages that were actually received by the claimants and the lawyers who acted on their behalf.
Lord McNally
The noble Lord will have to wait and see. One thing is certainly true: I have made every effort to make sure that defamation is not engulfed in a tsunami from Leveson. If we really want to reform defamation and not get caught up in a much wider privacy law, what I am trying to do is the way forward. Stunts like dividing the House tonight will show that, on this Bill, the noble Lord is still more interested in short-term political gain than in making progress.
Lord Thomas of Gresford
As a member of the committee that has just reported, I should remind the noble Lord that it advised against a privacy law.
Baroness O'Neill of Bengarve
Before the Minister finishes winding, will he explain to the House why he does not think that these exemptions—the noble Lord, Lord Lester, may be entirely right—are the right way to go? Does he not think that two successive changes in the regime are the very worst thing for litigants in this area? In so far as we are leaving the Bill as it is, one change will happen now and another will happen down the road if there is legislation on defamation.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Thomas of Gresford Excerpts(13 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Goodhart
My Lords, I agree entirely with what the noble Baroness, Lady Deech, has just said. Referral fees have for some years been a serious problem in almost all circumstances and have caused a great deal of trouble and unnecessary expense. It is not a case where, as the Labour Party has just proposed, it should be treated just as a matter where two firms are in business. This is a matter that requires to be removed.
Lord Thomas of Gresford
My Lords, in my youth I appeared for insurers and unions, and I did not pay anybody to get those cases. We competed on quality. The competition was there so that unions and insurers would send their work where they thought that they would get the best service, not where they thought that they would get the largest fee. It is insidious for fees to be paid to purchase cases from any organisation, whether it is a union or even the finest charity. It is not right that unions and charities should fund themselves in this way. The noble Lord has made the case from the point of view of unions and charities being funded. One has to look at it the other way round. Why should firms of solicitors or even barristers’ chambers—I have heard rumours about this—get work on the basis of how much they pay a person referring cases to them? It is a practice which has to stop.
Lord Monks
My Lords, I support my noble friend in this amendment. Referral fees are one aspect of the Bill that will affect union legal services adversely, along with changes to “after the event” insurance and conditional fee agreements. These three issues will make union legal services much more difficult and expensive to operate. Inevitably, fewer cases will be taken. Last year, unions assisted something like 50,000 individuals with cases. There was no charge on the public purse for that assistance. It was done through people’s membership of the union. Many people who were very ill or injured in some way were helped considerably. When this Bill becomes law, essentially, that will become more difficult.
I have checked which unions use referral fees and which do not. Two of the major unions use them and the rest do not. The two which use them do not use them to fund the Labour Party, which is the allegation that is around. As my noble friend explained, the political fund of the unions is completely separate. A separate contribution is made to that. It is registered under the Trade Union Act 1984, which was put through by the noble Lord, Lord King. You make a voluntary donation which is separate from your union membership fee and it is separately accounted for.
The suggestion that referral fees are used by unions to fund the Labour Party is totally wrong. The whole purpose of referral fees where they are applied has been to support the expansion of union legal services to make good some of the defects elsewhere in the justice system. I hope that the House will bear that in mind when it considers this amendment.
Lord Beecham
My Lords, let me make it clear that I do not for a moment charge the Minister—or indeed the Government—with conceiving of this as in any sense aimed at trade unions. It is a by-product of policy. Let me also remind your Lordships that referral fees are only banned—certainly at the moment, under the terms of this Bill—in respect of personal injury claims. For any other kind of arrangement, referral fees are apparently acceptable—not, however, in the context of personal injury claims.
That really illustrates whence this proposal comes from. It comes from the unacceptable activities of those who have perhaps been promoting spurious claims—and we will come at the next amendment to the kind of techniques that some of these firms and outfits adopt to encourage claims in a way that fosters this myth of the compensation culture. That is the genuine motivation of the Government; what they are doing to deal with it goes too far.
I do not recall having jousted in legal terms with the noble Baroness, Lady Deech, 50 years or so ago when we shared adjoining desks at the Honour School of Jurisprudence, but I will joust a little with her, if I may, this afternoon. She first of all asserts that it would be an incentive for firms not to do the job properly. I do not know what possible basis she can have for saying that. A solicitor’s job is to do his best for his client. In a sense, there are two clients when one is acting for somebody referred by an organisation. Far from it being the case that there is no incentive to do the job properly, there is a greater incentive to do the job properly when one has a connection with a potential source of work—whether there is a referral fee or not —because, of course, one does not just lose and upset one client: one potentially loses a whole stream of work. In fact, therefore, the converse of her proposition is actually true.
The second of the noble Baroness’s points which I seek to rebut is that this deprives people of choice. A union member or a member of a charitable or other organisation does not have to use the organisation that is recommended or go to one that pays a referral fee. They have the same choice as anyone else. But they may choose to rely on their own organisation, trade union or otherwise, having established from its experience that a particular firm or firms are capable of carrying out the work. The choice, however, remains with them. The noble Baroness has been on the website and discovered the Labour Party’s scheme. Let me tell her and the House how much that scheme has raised: nil, nothing, not a penny. It is about as vibrant as Monty Python’s parrot. It is redundant. It is a dead scheme. It has never been activated, so that issue need not distract your Lordships’ House.
Before I conclude, I should make one other point in relation to charitable organisations. The ones I have mentioned operate on a referral-fee basis. There are three of them and I think there may be others, although perhaps that is a little beside the point. I liken the process to another aspect which is certainly something that political parties and many charities operate, and that is an affinity card with a bank, where a percentage of one’s expenditure when using the card goes to the organisation. In precisely the same way that it could be alleged—I think wrongly—that as referral fees increase costs in the legal system, so by definition an affinity card must push up the costs in relation to financial services. It is an analogous situation.
I feel strongly about this—
Lord Thomas of Gresford
My Lords, drawing on his long experience, can the noble Lord tell us when referral fees first reared their head? I do not recollect them 20 or 30 years ago. Does he know when they began?
Lord Beecham
To the best of my recollection, they have appeared in the past 10 to 12 years. I have not myself been heavily involved in the practice in which I was a senior partner for the past nine years, much to its relief and mine. Having had our debate and despite the pleas of the Minister, I wish to test the opinion of the House.
Lord Thomas of Gresford
Having read the amendment as drafted, I was confused as to whether the mistake was a technical mistake, a mistake of law or a mistake of fact of the basis upon which the order was made. It is not clear from the wording here that the latter is the proper meaning. I am heartened to hear from the noble Baroness, Lady Lister, that she has received a communication from the Ministry of Justice saying that mistake does not mean the slip rule, which is a very familiar concept to lawyers. It may not be familiar to the bailiff who is knocking on the door. It is important that my noble friend should make it quite clear that a mistake of fact is needed; in other words, that if the magistrates’ court had been aware of the particular circumstances of the individual at the time that the warrant was to be enforced, it would not have made that order. If that is what it means and the Minister says so from the Dispatch Box, I would be satisfied with that. If that is not what it means, we need to discuss the issue further.
Lord Ramsbotham
My Lords, I speak in support of government Amendment 152ZA and also speak on behalf of my noble friend Lord Rix who unfortunately is unable to be present because of his wife’s ill health. I thank the Minister for the extremely productive meeting that we had, which has been mentioned. The points that my noble friend has asked me to raise arise out of the amendment which came after that discussion in support of what was said.
The context of this is the duty of the court to explain sentences in ordinary language, which we raised in Committee. The Minister admitted that the phrase would ensure only that most people could understand an explanation. While we welcome the amendment and believe that it has the ability to extend comprehension of the effect of a sentence on all parties concerned, which is an important development, we are still not certain that it covers the point about ordinary language. On that, we would like some clarification. We believe that the Criminal Procedure Rule Committee could offer a similar safeguard, but we are not sure about where that safeguard extends and how wide it is. Will the Minister clarify how confident she is that the committee will make rules regarding the need to go beyond ordinary language in certain circumstances? Will it actually make these rules? To what extent are the rules made by that committee binding on the court? The concern is that if the rules are merely guidance, they might not be put into practice, despite the best intentions of the Government and the committee.
Will the Minister tell us about the time scales? When will the committee be empowered to make such rules and when might they be enforced? Are we looking at something imminent? Will it depend on when the Bill is passed? Finally, what opportunities will there be for Members of both Houses to scrutinise the implementation of these measures in the future? If they are rules of the committee rather than something in the Bill, it is more difficult for us to monitor them. They have an enormous effect on the people whom we mentioned in Committee and their ability to understand the process of law.
“( ) The Secretary of State shall report to both Houses of Parliament every six months thereafter—
( ) the number of IPP prisoners remaining in custody after the tariff date in each case has expired,( ) the arrangements made for such prisoners to complete their courses,( ) the proportion of such prisoners who have already completed their courses, and( ) the number of outstanding applications to the Parole Board for release.”
Lord Thomas of Gresford
Amendment 154YUA would add the need for reports to the amendment moved by the noble Lord, Lord Ramsbotham. Although I welcome the abolition of IPPs, I am still concerned about those who have served their tariff but have not been released. The best way of dealing with that is to keep a very close eye on what happens to them. Under my amendment we would know every six months the number of IPP prisoners remaining in custody after their tariff date has expired, the arrangements made for them to complete their courses, the proportion of such prisoners who have already completed their courses, and the number of outstanding applications to the parole board for release. One would hope that within a foreseeable period, perhaps two years, one would see that there was no need for a report because there were no IPP prisoners left in this category. That is the purpose of my amendment, and I look forward to my noble friend’s response.
Lord Beecham
My Lords, I support the amendment in the name of the noble Lord, Lord Thomas. He identifies a useful process and an obligation on the Government to ensure that cases are properly considered and that there is a reasonable way of reporting back on them.
Although I sympathise with the amendment moved by the noble Lord, Lord Ramsbotham, I do not find the content of it particularly persuasive. The amendment would require the Secretary of State to delegate the responsibility for implementing release plans without saying to whom the responsibility should be delegated. That would be odd in primary legislation. The requirement to report within a year of enactment on all cases seems to be too restrictive, given that unfortunately under the previous Government there was a backlog in working with such prisoners, and it is not at all clear how much work would be involved and what resources would be required to deal with the current numbers. It is not really acceptable for the timescale to be in the Bill in this form.
Having said that, if the noble Lord were minded to look seriously at the propositions—and I would certainly commend the thinking behind them if not necessarily the precise formulation that reaches us in the form of the amendment tabled by the noble Lord, Lord Ramsbotham—that could be brought back for consideration at Third Reading. The direction of travel is right but the precise route is somewhat questionable. I hope that the Minister will think sympathetically about the underlying approach of the two noble Lords whose amendments are before the House.
Lord McNally
My Lords, we return to the issue of dealing with IPP prisoners. I must say to the noble Lord, Lord Beecham, that I do not think there is any doubt about the direction of travel. I am dubious about whether we need the kind of prescriptions in both amendments. Ministers are here to be questioned by Parliament. I do not think that there would be any problem in finding opportunities to check on progress, but let us see.
The Government, through the National Offender Management Service, have already made significant improvements to increase the supply of rehabilitation interventions for this group. One of the main criticisms of IPPs was that people became trapped in them in a kind of Catch-22; they had to fulfil certain requirements to be considered for release but the facilities and channels to get these qualifications, improvements and records were not there. Better use is already being made of sentence plans to prioritise interventions for existing IPPs where the need is greatest, and work is under way to ensure that programmes can be delivered more flexibly, supporting greater access and the inclusion of offenders with more complex needs such as learning difficulties.
In addition, a new specification for offender management, which will provide for the prioritisation of resources based on risk, will take effect from April 2012. Once embedded, this will result in the improved targeting of rehabilitative interventions for IPP prisoners. We are using a range of measures to improve the progression of these prisoners through their sentence, including improvements to assessment, sentence planning, and delivery and parole review processes.
I wrote to the noble Lord following Committee about the work that NOMS is doing to improve support for these prisoners, and I summarise the key points here. First, we plan to issue a prison service instruction that will require effective and realistic sentence plans to be put in place for all offenders on the new extended sentence and for IPP prisoners already in the system.
On the administration of support for IPP prisoners, there are already appropriate structures in place within NOMS to carry out this work. The Indeterminate Sentence Prisoners Co-ordination Group is the NOMS body responsible for co-ordinating the management of all indeterminate sentence prisoners—that is, lifers as well as IPPs. The group’s purpose is to develop and promote the most effective means of managing this group of offenders and to ensure that resources are directed effectively. For example, the group has mandated work to improve the speed of allocation to open prison and identify ways of increasing capacity in the open prison estate for the IPPs, and has co-ordinated the introduction of a new centralised system for organising their transfer.
On the specific amendment, I should make it clear that, as legislation currently stands, it would not be possible for the Secretary of State to produce or delegate anything other than sentence plans for these offenders that may or may not result in progress to a quick release on licence. Statutorily, only the Parole Board can actually direct the release of IPP prisoners on the basis of risk criteria. Amending that situation would be a substantial change to sentences that have already been imposed and would require primary legislation. In Committee, I made it clear that the Government do not believe that that would be appropriate. On the proposal that such plans should be delegated, I noted that it would be unusual for legislation to go into this type of detail about the administration of executive duties.
My noble friend Lord Thomas of Gresford proposed a requirement for the Secretary of State to report regularly to Parliament on IPP prisoner parole status and interventions. Information on the number of IPP prisoners whose tariff has expired is published in the quarterly offender management statistics published by my department. The Parole Board’s annual report publishes comprehensive data on its IPP application workload and backlog. I must resist the requirement to report on programmes in individual cases, as this would be hugely difficult to achieve. Offender managers will regularly review and update sentence plans.
Our recent research suggests that while the Parole Board will take account of the completion of accredited programmes when considering whether to direct the release of an IPP prisoner, this is only one part of the evidence that it will consider. Research shows that the parole process is targeted on the individual, and only programmes specific to the individual’s needs that are successfully completed and show some impact on the prisoner are likely to be taken as evidence of sentence progression. Simply counting completed courses will not be good evidence of how prisoners in general are progressing.
I hope that I have said enough to reassure the House that we have already put effective measures in place to support these prisoners’ progress towards release while keeping paramount our concerns for public safety. We have not introduced these reforms to the IPP system simply to see them fail. The biggest incentives for making sure that our reforms work are for the Ministers who brought them in, and we will be pleased to be judged by our results. I hope that both noble Lords will withdraw their amendment.
Lord Thomas of Gresford
My Lords, I believe that I should reply first. The Minister’s response was encouraging. He said that Ministers were here to be questioned. I shall make a note in my diary to put in a Written Question every six months, asking for the information—or something like it—that I seek in the amendment. It is very important that a close eye is kept on those who remain under an IPP sentence but whose tariff has expired. I beg leave to withdraw my amendment.