Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Thomas of Gresford Excerpts(13 years, 5 months ago)
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Lord Thomas of Gresford
My Lords, I am glad to follow the noble Lord, Lord Martin, in what he has just said because I am concerned about the relatives of the victims of this terrible disease. We were addressed here in one of the committee rooms in the House by the Greater Manchester Asbestos Victims Support Group. One of the people who came with that group was Mrs Marie Hughes, who comes from my home town of Wrexham in north Wales. Her husband had worked as a youth in the Brymbo steel works, which is close to the town, but had gone into teaching and died of this disease at the age of 57 when he was head teacher. It had afflicted him a great deal later. I am very familiar with the Brymbo steel works, as was, because I worked there briefly during vacations as a young man.
What she told us about the effect of the disease upon her husband was that while attempting to come to terms with his diagnosis and his bleak prognosis he underwent gruelling, unrelenting and debilitating courses of chemotherapy, intensive radiotherapy and invasive surgery in the form of an extrapleural pneumonectomy, which involved the removal of a complete lung, half the pericardium and half the diaphragm in a desperate effort to delay the cancer’s ultimate grasp. He lived in constant pain and it was a vain attempt to improve the quality and extend his life. By the final three months, tumours had also developed on his spine, resulting in paralysis from the chest down, and all this while fighting to breathe. That is the effect of this disease on an individual who suffers it, years after he had been exposed to asbestos. Of course, from diagnosis to death is quite a limited period with mesothelioma: it is only about nine months, leaving behind a widow and a family who have to live with what has happened to their loved one.
I am very much in support of the amendment that the noble Lord, Lord Alton, has moved with such great force, and the supporting speeches, because I have seen the effect on a widow of this terrible disease.
Lord Bach
My Lords, I am proud to have been allowed to put my name, as an opposition Front-Bencher, on this amendment, which has been moved so well by the noble Lord, Lord Alton, and spoken to so well by all the other noble Lords.
Industrial disease and exposure to toxic substances; employers acting negligently, in breach of their duty to employees, and often causing them great harm; and then outlawing and ensuring redress for these violations speak to what I consider the historic mission of the party I belong to and of the trade union movement. I know they are subjects that are of huge interest and concern to many people beyond that.
Health and safety in the workplace is something that we in these Houses of Parliament should be as proud of as we were of banning slavery. Instead, this year the Prime Minister chose for his first speech a comment that hoped that this was the year that killed off the health and safety culture forever. He cited a case where a teacher made children wear safety glasses to play conkers—a myth that the Health and Safety Executive cites as a prime example of the kind of mischief played by some to denigrate health and safety.
Health and safety in the workplace has nothing to do with conkers. Lack of health and safety has led to tens of thousands of avoidable deaths in the workplace. These amendments would ensure that in these cases—they have been described in detail and I am not going to go into that detail—employers pay their full redress and employees who have been harmed get their full restitution.
These are serious cases. There is no compensation culture here. Whereas motor claims increased by 43 per cent between 2007 and 2011 to nearly 800,000—which is why we on this side back my right honourable friend Jack Straw’s campaign—employer liability claims were down by 6.6 per cent to one-tenth of that. No one is faking mesothelioma, or coal lung. This is as far from the problems of undiagnosable whiplash as we can possibly get.
Industrial disease provides the most emotive and powerful examples of how health and safety is something we have had—and still have—to fight for. Despite the fact that we know so much about the clinical aspects and the impact on individuals, communities, and families, asbestosis is still being fought over in the courts. Insurers, sometimes not to their credit, are still fighting liabilities. Why is there this difference between these highly contested, difficult-to-prove cases that we have been debating tonight, for which people have been fighting year after year and, on the other side, clinical negligence? Why is there no sympathy from the Government for what are pretty analogous cases?
Do they not deserve a deeper consideration of the economics of bringing these cases? If the argument is proportionality, of course there are problems with proportionality when you are fighting some of the entrenched vested interests, such as the insurance lobby, and companies for which it is difficult to prove ownership and liability years after the event. We are at risk of abandoning these cases and these victims, not because they cannot bring the cases any more, but because they will not find lawyers to bring them. These are families and widows of workers who were exposed through no fault of their own.
I have in front of me the comments of a lady, Mrs King, whose husband died of mesothelioma. She says, “My husband died of mesothelioma as a consequence of asbestos exposure during the course of his employment. David and I received considerable assistance from the Derbyshire asbestos support group”. She arranged to see her constituency Member of Parliament. She received letters from her Member of Parliament, and wrote to him as well. I have to say that that Member of Parliament showed real concern in those letters about the tragedy that she had undergone. I pay tribute to him for the sympathy which he genuinely showed.
However, the exchange of correspondence, in Mrs King’s view, raised a number of points. The first was that the Member of Parliament seemed to accept that, in certain aspects, we are going to an American-style system. Mrs King’s view is that is not a good thing. That relates to a successful claimant having to pay some of their damages in costs. Secondly, the Member of Parliament, according to Mrs King, said that if a claimant loses the claim he will pay no legal costs at all. She points out that that is wrong: the losing claimant would pay disbursements. Thirdly, the Member of Parliament says it is not about whether claims will be brought, but about what lawyers get paid, and who pays those costs. Mrs King’s comment is that there must surely be genuine borderline cases today that will not be brought tomorrow because lawyers will not take the risk of not being paid.
Fourthly, Mrs King comments that the Member of Parliament says that defendants with a very strong defence pay out because of the costs they may incur if they lose. Mrs King does not understand that. She asks why they would settle in a case where they have a strong defence: if they have a strong defence, they will not lose. Lastly, the MP says that he may be cynical, but lawyers will not bring cases because they will not be paid as much as they are now. Mrs King thinks that that misses the point, the point being that lawyers will not bring cases at all if they run the risk in difficult, but genuine, cases that, if they lose, they will not get paid at all.
The Member of Parliament is in fact the right honourable gentleman the Lord Chancellor. As I say, he showed great sympathy for Mrs King and her predicament, but those were his responses and I suggest, respectfully, to him and to the Minister, that they are out of touch and do not meet the seriousness of the situation that has been described in Committee tonight.
Mrs King finishes by saying, “The chances of people like me or my husband being able to get justice would all change under the Government’s proposals. Even if my case has reasonable chances of success, I will struggle to find a lawyer to take it on unless it is virtually certain to succeed. The lawyers think the risk of losing is too great for the amount they will get paid for taking that risk. They simply will not take the case on”. That is the nub of this particular argument: people who have suffered a great deal will find that they will not be able to have their cases argued because of changes that are made. What I think that everyone who has spoken in this debate so far wants to see from the Government is a bit of flexibility, because these cases really stand out on their own.
Lord McNally
This is not only about public funds, but it is about how you create—to use this term again—an architecture for this type of litigation that squeezes out from the system the inflation that went to the lawyers. That was identified by the Master of the Rolls, by the Lord Chief Justice and by Lord Justice Jackson. In trying to respond to that problem, I am fully aware of the hard cases, and I have spent most of the afternoon dealing with them. Of course hard cases are difficult to argue, but that is the central issue that we are trying to address. To succeed, we will have to stand firm against some of these hard cases, I am afraid.
Lord Thomas of Gresford
The issue really is this: should all cases be treated alike? Well, Lord Justice Jackson did not treat all types of litigation alike. For example, he specifically recommended that clinical negligence should stay within legal aid, for various reasons that we have gone through that I do not need to repeat. Nor did he suggest that all his proposals should be limited to personal injury cases; he thought that they should be broader but they could vary, depending on the particular circumstances.
The reason for that is that risk varies. For road traffic accidents, nine out of 10 cases will be won because it is fairly easy to determine in a road traffic accident who is at fault, to what degree and so on, and the quantum follows thereafter. In clinical negligence cases, three out of four cases will be lost, so the risk is very different. That is why Lord Justice Jackson decided that clinical negligence should remain within the scope of legal aid. We are not involving government money or public money here; what we are trying to discuss is what constitutes a fair balance in a particular category of case, which can vary from case to case. I do not think that we should approach this on the basis that there is an architecture that should apply to every particular type of claim that is ever brought.
In mesothelioma cases, for example, we are not so much concerned with the fact that the person has the disease; what we are concerned with, as the noble Lord will appreciate from the very moving story that he told about his own family, is causation. That is the issue in this type of case. You can easily show that someone has died as a result of this disease, but what caused it, when, how and whether the case has been brought within a reasonable period of time are at issue. Very often, that requires not the sort of expenditure on medical reports that you get in clinical negligence cases; it often depends on expert reports on where the asbestos was, how it was dealt with and whether there was a likelihood, which passes the threshold of more likely than not, that that particular presence of asbestos in the workplace at a particular time caused the disease from which, as in the case that I cited, many years later the particular individual dies. We can therefore see that in some cases it is a medical issue, while in some cases it is causation, but they differ—and it is quite legitimate for the Committee to consider the different type of case, as we have in our discussion of judicial review, for example. In our debate on the next set of amendments, I shall come on to the question of environmental law, where very different issues arise compared with other types of litigation. We are not looking for an architecture to involve everything; we are looking for what is right in a particular category of cases. I propose in a moment, when this amendment will I hope be withdrawn, to enlighten your Lordships a little about environmental law.
Lord Alton of Liverpool
My Lords, in his peroration the Minister relied on the phrase “squeezing inflationary costs out of the system”—a point to which the noble Lord, Lord Thomas, referred. The only people who will be squeezed as a result of this are those who suffered previously and who have fatal diseases. I cannot see the argument that the Minister put before the Committee this evening in the terms in which he has expressed it. As he implied at the end of his remarks, this is not about legal aid or public money; on the point about causation that the noble Lord referred to a moment ago, this is about people’s right to have access to the justice system, and not then to have to hand over any damages that they win. This is about people who have demonstrated successfully in the courts that they have become victims and who then have to hand over a quarter of the damages that they receive to pay for the action that they have been able to bring successfully.
The Minister showed enormous sensitivity to this issue as he described his own family circumstances to the Committee. When he reads the debate further overnight, he may want to reflect on some of the points that have been made. He was accused earlier of not showing flexibility. I understand the pressures placed on any Minister having to oversee a Bill of this kind, but we are only in Committee. I hope that he will share with his right honourable friend the Lord Chancellor the debate tonight and will look particularly at the questions raised earlier on by me and others about the costs involved to the public purse in not accepting these amendments. The reverse arithmetic and accounting to that which he has advanced at the Dispatch Box this evening would seem to apply, and in his refutation of the argument he did not deal with that point.
The Minister also implied that all lawyers would somehow be winners—that they would be the ones putting the inflationary pressures into the system. I remind him of the case that I cited today and at Second Reading of Norman Jones, the president of the Liverpool Law Society. This is a lawyer who is not part of a huge legal practice; he made it clear that under this dispensation it would be impossible for him to have fought the case that he successfully brought with CFAs through all the courts, right up to the Supreme Court. He would not have been able to bring that case. It is because of cases of that kind and the adverse effects on the victims as well that the Minister should reflect on this matter before Report.
During the debate, we have heard invoked the names of victims. Mrs King was mentioned by the noble Lord, Lord Bach, Marie Hughes by the noble Lord, Lord Thomas, and the Minister mentioned Betty, a member of his family. We have heard also of good lawyers; the noble Lord, Lord Martin, mentioned Frank McGuire, and vividly described his own experiences on the factory floor. We have heard about campaigners. The noble Lord, Lord Avebury, who has battled on this subject since the 1970s, and the noble Lord, Lord Wigley, both referred to Nancy Tait.
The noble Lord, Lord Bach, said to us that employers should have to make full redress and employees full restitution. He said that no one is faking mesothelioma. He also reminded us of the canards of the so-called health and safety culture, and of the compensation culture. The noble Lord, Lord Wigley, said that access to justice should not be the preserve of a few.
It is worth remembering that the mesothelioma death rate in this country is the highest in the world. That is why I do not think that the noble Lord, Lord Avebury, was overstating the case when he said that what we are doing is intolerable. He said that it is unconscionable, mean-spirited, callous and immoral. Although it is my intention now to withdraw this amendment, I give notice that it is also my intention to return with these amendments on Report if we are unable to make progress on this issue. With the leave of the Committee, I beg leave to withdraw the amendment.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Thomas of Gresford Excerpts(13 years, 5 months ago)
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“Funding
(1) The Lord Chancellor may make funding available for the obtaining of civil legal services on matters not included in Schedule 1 where it appears to the Lord Chancellor that the provision of such services would promote efficiency, the saving of costs or the attainment of justice.
(2) The Lord Chancellor may make arrangements for such purposes by—
(a) funding public bodies, law centres, citizens advice bureaux and not-for-profit advice and support agencies to facilitate the provision of such services; and (b) supporting the delivery of such services through the provision of grant in aid to providers of civil legal services, including any consortia or partnership arrangements with public bodies, into which they may choose to enter.”
Lord Thomas of Gresford
My Lords, this is an extremely important amendment, which I hope that the Government will accept. The other side of the coin when legal aid is taken away, particularly in the area of social welfare law, is that there must be some provision for advice to people who require it in that field—in others as well, but certainly for those concerned with welfare benefits and the like.
In this country, a huge amount of work is done, a lot on a voluntary basis, by citizens advice bureaux, law centres and other not-for-profit advice and support agencies. I want an assurance from the Minister that those organisations will fill the gap, that they will be properly funded and put on a secure footing for the foreseeable future to provide the advice that is clearly needed in those areas. Consequently, my Amendment 99 is to give the Lord Chancellor power to,
“make funding available for the obtaining of civil legal services on matters not included in Schedule 1 where it appears to the Lord Chancellor that the provision of such services would promote efficiency, the saving of costs or the attainment of justice”.
What I have specifically in mind is the funding of law centres, citizens advice bureaux and not-for-profit advice and support agencies.
I know that the Government have committed some £20 million for the support of Citizens Advice, but I understand that to be on a one-off basis. At the same time, we receive information that the Cabinet Office is working on schemes to provide some permanent support in this area. Citizens Advice has two sides: a side dealing with general matters, normally done by volunteers, and a side dealing with specialist matters. The specialist advice in Citizens Advice comes from generally qualified lawyers who are funded precisely by the legal aid that is about to be withdrawn if Schedule 1 to the Bill finally goes through. That is the focus. What will happen? Will people be left to stumble around in this incredibly complex area of social welfare law? Will they have any guidance and help when it comes to the new provisions that are being introduced under the Welfare Reform Bill, or what? That is what I want to hear from the Minister tonight. I beg to move.
Baroness Mallalieu
My Lords, I support this amendment as far as it goes. We are all worried about who will fund organisations such as law centres, which at present are largely reliant on legal aid. Clearly, many of them will go under if there is not some alternative form of funding. What troubles me about the amendment in its present form is that there is absolutely no break on the way in which this Lord Chancellor—or a future Lord Chancellor—may choose to hand out the money. I should like some requirement on him to consult and some way of knowing that a distant Lord Chancellor—of course, not the present one—could not operate for reasons of political expediency, or simply on a whim to withdraw funding from an organisation which, for example, might be involved in action against the Government. Although I welcome the amendment in its present form, I think that it needs more added to it.
Lord McNally
Throughout the Bill, we have tried to restructure legal aid so as to deal with the most vulnerable in our society in a way which we think is fair. My noble friend Lord Phillips referred to the squeeze being put on CABs by local authorities. There have been squeezes on local authorities and on the Ministry of Justice. The country is having to readjust to a considerable degree to what is available for many good causes, and that is why this debate is reoccurring in Committee.
As I say, I recognise the general concern about the future of such funding. I hope I can reassure the House by making it clear that the Government value the services provided by the not-for-profit sector and are committed to ensuring that people continue to have access to good-quality free advice in their communities. That is why the Government have launched the advice services fund and a review of free advice services. The Government have set aside £20 million to support the not-for-profit sector. That is about the seventh time of announcement but, to provide clarity for the noble Lord, Lord Beecham, I say that it is still the same £20 million. This fund will provide immediate support for the not-for-profit advice service providers to deliver essential services in debt, welfare benefit, employment and housing advice. An announcement on the fund and review was made on 21 November by my honourable friend Nick Hurd MP, Minister for Civil Society, in the other place.
It is important to recognise that legal aid is only one of several funding streams that not-for-profit organisations receive and that the future sustainability of the sector is a cross-government issue which this Bill cannot be expected to solve on its own. Accordingly, alongside the advice services fund, the Cabinet Office is conducting a review into local advice provision, looking at the funding environment for these services, likely levels of demand and how government can play a positive role. The Cabinet Office will work with other departments that either fund advice services or whose activities have an impact on advice services, such as my department, the Department for Business, Innovation and Skills, the Department for Work and Pensions, the Department for Communities and Local Government, and the Treasury.
The House may also be reassured to know that both the Prime Minister and the Deputy Prime Minister are taking a keen interest in these reviews. Stakeholder events with representatives from the sector, to gain their input into the review, have already been held by the Cabinet Office. I urge the House to await the conclusions of that review, which is expected in the spring. My officials are working closely with colleagues across government to support this important work. I hope this will reassure the Committee that I and my colleagues in government are united in our efforts to support the not-for-profit sector while it adapts to difficult changes in the funding landscape. I therefore urge the noble Lord to withdraw his amendment.
Lord Thomas of Gresford
My Lords, I am grateful to all noble Lords who have spoken in the debate and I accept all the criticisms that have been made as no doubt very well founded. In his reply, my noble and learned friend—
Lord Thomas of Gresford
No—but you will be by the time I have finished.
In his reply my noble friend said that we must await the conclusions of the group that is looking into this matter, which has already taken advice, as I understand it, and carried out various consultation processes. I want to know when it is going to report. I have discovered that in government departments the spring can turn quickly into the summer. The Bill will be through this House by the middle of March and we would all be much happier if we were assured by that time that the future of the CABs, the law centres and so on is secured to give precisely the advice for which the grant was announced in November—for welfare, for employment and so on—as the noble Lord said.
I am anxious that the group should get a move on and that we should receive these reassurances so that we can be confident that the gap that will arise through the withdrawal of legal aid will, to a degree, be filled. I understand the position of the noble Lord, Lord Bach. He does not want anything to interfere with the general thrust that everything in social welfare law should go back under Part 1. Indeed, voices on my Benches have made exactly the same comments, including me. However, if that is not to happen we must be sure that there is a source of advice in these very important areas which will be available to the citizens of this country. At the moment, I ask leave to withdraw the amendment.
“( ) For the purposes of subsection (1), “financial resources” shall include all the realisable property of the individual subject to a restraint order under section 41 of the Proceeds of Crime Act 2002 (restraint orders) and subsections (4) and (5) of that section are hereby repealed.”
Lord Thomas of Gresford
My Lords, when we were dealing with the previous amendment concerning the voir dire, as it used to be known, my mind went to happier days in Hong Kong, where the voir dire was brought to its artistic zenith. Voir dires could go on for six weeks or months. We have avoided all that in this country ever since. I was also reminded that in those days in Hong Kong to take legal aid was, as far as criminals were concerned, rather infra dig. Normally, they were funded from the resources that were available to them. That is the real purpose of the amendment.
Clause 20 is concerned with determinations about an individual’s financial resources. A determination that a person qualifies for legal services cannot be made unless it is thought that the individual is eligible for the services. All that I am concerned to do is add in to those financial resources all the realisable property of the individual. However, as happens these days in this country, the realisable property of the individual is frequently subject to an order of the court that freezes those assets where they are.
Consequently, we have what I regard to be an absurd situation whereby legal aid is granted to people of huge means because their assets are frozen. They can be unfrozen by an application to the court so that school fees can be paid. They can also be unfrozen for the purposes of civil cases but not of criminal cases. I was discussing this with the noble and learned Baroness, Lady Butler-Sloss, yesterday, and she said, “I made orders all the time on applications in the Family Division for assets to be unfrozen so that legal fees could be repaid”. She was amazed to discover that that was impossible in criminal cases.
About 50 per cent of the criminal legal aid budget goes on 1 per cent of the cases, and it is in those 1 per cent where assets have been frozen. That is a great resource. As I understand it, the policy behind the refusal to permit those assets to be unfrozen is twofold. First, the Treasury thinks that it will get its hands on the assets at the end of the day, and therefore for them to be unfrozen to pay legal fees seems an unnecessary waste of what it will get in the end. Of course, it does not consider that it is funding the Ministry of Justice, which has to pay out the legal aid. My other thought is that that provides a route for the laundering of money by dishonest solicitors.
As to the first, the objection taken is quite unfounded. On the second issue, the question of—I have forgotten my train of thought for the moment.
Lord Thomas of Gresford
Solicitors. It is perfectly possible for a solicitor to apply to the court, as happens in civil cases, with a cost schedule which indicates how much his costs will be and what reasonable rates he will charge, and for the judge to make an order to control the whole process to permit the release of funds to fund the criminal defence. To my mind, this is an area which the Government should seize on as reducing the burden of criminal legal aid. It is unlikely that all the assets of the individual will be recovered in an application under the Proceeds of Crime Act. Accordingly, the sooner that the Ministry of Justice gets its hands on the money—in the sense that it does not have to pay out legal aid—the better.
I hope that my noble friend will take the issue seriously and address my proposals. I beg to move.
Lord Carlile of Berriew
My Lords, I shall start by making a few comments about my professional experience and then look at the broader picture. In recent years, the bulk of the publicly funded work I have done at the Bar has been in very high-cost cases, as they are called—very large fraud cases. I have seen a procession of those cases in which substantial funds have been restrained and not used for the costs of the case. Confiscation proceedings have followed in those cases where there have been convictions. In some cases, they have been long drawn-out. The funds have rarely been confiscated in full.
In one case I can think of, the confiscation proceedings lasted two or three years and, in the end, the defendant was returned £30 million, I believe, because the wrong procedures had been used by the prosecution. In another case from my experience in recent years, a defendant who was later sentenced to nine and a half years’ imprisonment and made the subject of a confiscation order in excess of £130 million remained, throughout the period leading up to and during the trial and for a considerable time after—as far as his family was concerned—living in one of the finest apartments in central London, worth many millions of pounds. Nobody was able to lay a hand on any of it. By the time the confiscation proceedings were over, such a miasma of transactions existed that that substantial property was immune from any confiscation. There are current cases, about which colleagues have told me—and without referring to any of my own current cases—in which a similar picture may emerge. This is an issue on which the Bar Council, of which I am an elected member, as I said in an earlier sitting, has given a great deal of attention. I should say that on this subject at least it might be worth listening to the Bar Council. Senior members of the Bar act for the prosecution and defence in every one of these cases, bar a very few.
The intention of the Bar Council in proposing amendments, believe it or not, was to save legal aid funding and to create a situation in which people’s own money, subject, of course, to proper controls, was used to pay for their own defences. It would create a situation in which a defendant, who at present may be able to relax while public money is expended on abuse of process hearings, dismissal hearings, disclosure hearings, and all kinds of satellite proceedings, costing him nothing, may have to control the spending on his defence. It seems a very sound principle that the defendant who has resources should have some control over the spending on his or her defence.
Furthermore, restraint orders are on the increase, as the General Council of the Bar has pointed out to the Government. In 2009-10 the CPS made 1,549 restraint orders. That had increased to 1,641 by 2010-11. The estimated value of assets under restraint in 2010-11 was as much as £744 million, every penny of it being money available to be spent on criminal defence but not so spent. Any legal advice and representation in those cases is charged to the legal aid fund. These are cases which, on the latest available figures—from 2005—caused the expenditure of more than 50 per cent of Crown Court legal aid, although the cases amounted to only 1 per cent of the cases. The average cost per case for those cases in 2003-04 was £2.6 million, with the average trial lasting 67 working days. These are very big cases, which are being unnecessarily funded from public funds.
A defendant accused of serious fraud may, for example, have £1 million on deposit in a bank account, frozen under a restraint order. An order may be made for the funds to be unfrozen to pay his children’s private school fees. I was involved in a case recently in which exactly that happened. The defendant was unable to fund his own defence but he was able to fund his son’s school fees at one of the best public schools. My noble friend Lord Thomas of Gresford has contrasted the criminal situation with the civil courts. He described the reaction of the noble and learned Baroness, Lady Butler-Sloss, to what he had told her and she certainly represented the civil court position correctly.
The Government’s response to the Bar Council’s proposal, and that of some of your Lordships, has been to argue, at least so far, that the sums restrained need to be preserved in the hope that, at some point further down the line, a confiscation order may be obtained on conviction. In November 2011 several national newspapers ran stories on revelations that at the end of March 2011, the sum of money outstanding in purported confiscation orders was £1.26—wait for it—billion. That made the front page of the Sun. I suggest to my noble friend that the hope that some money might be recovered is no substitute for meeting the up-front costs of the defence via the legal aid bill.
When confiscation orders are made, they are not used to fund legal aid but are channelled to other government departments; they go into the general Exchequer pot. This does not reflect the strain placed on the legal aid budget by high-cost fraud cases. Therefore, this seems to be—if I may be forgiven a vernacular phrase—a complete no-brainer. It is a way of saving the legal aid fund—to use another such phrase—shedloads of money. I say to my noble friend: let us wake up and do it.
Lord McNally
As I said, we are in confessional mood tonight. The Government are currently considering a related proposition under which the value of restrained assets might be taken into consideration in the Crown Court means test. Until that proposition has been considered fully, we believe it premature to suggest an amendment to the Proceeds of Crime Act.
This has been an interesting debate. We have heard what the noble Lord, Lord Bach, said in apology for previous omissions by his own Government. As I say, we are looking at the value of restrained assets in the Crown Court, but at the moment we believe it premature to suggest an amendment to the Proceeds of Crime Act and I therefore ask my noble friend to withdraw his amendment.
Lord Thomas of Gresford
The problem is that my noble friend the Minister has not explained why people are allowed recklessly to dissipate criminal assets in civil cases. Why do you have one rule for civil cases, when you can use what are described as criminal assets although they are not necessarily so, and another rule in criminal cases? What is happening at the moment is that defendants are recklessly dissipating legal aid. That is the point and that is why legal aid is so high in criminal cases—it is being recklessly dissipated. My noble friend Lord Carlile explained how it can be done: you can have application after application; you can have little trials within trials; you can have satellite litigation; and the case can run on and on for months.
In the old Stafford Assize Court, which possibly the noble Lord, Lord Bach, has visited—
Lord Thomas of Gresford
Good. I have appeared there on a number of occasions too—not against the noble Lord, Lord Bach, I have to say. There is a plaque on the wall that commemorated what was then the longest jury trial in Britain. It was 23 days and they put a plaque up because it had lasted so long. Now 23 days is peanuts as far as any serious case is concerned. They go on for months and months: application after application; disclosure of this, disclosure of that, and so on; recklessly dissipating legal aid funding that could be available for social welfare law or for all the other things that have been excluded—
Lord Carlile of Berriew
In his closing remarks, perhaps my noble friend would like to reflect upon what the noble Baroness, Lady Buscombe, said. In the last group of amendments there was some discussion of post-legislative scrutiny. It is now something like nine years since the Proceeds of Crime Act was passed and I am not aware of any post-legislative scrutiny on this issue. Might this not be the occasion for some creative post-legislative scrutiny?
Lord Thomas of Gresford
I should hate to say who should be there in sackcloth and ashes, but clearly things went wrong and the reasons that were given by the Government of the day proved to be without foundation. The situation is simply a disgrace. The quicker the Government move to carry out this review that they are having in the Crown Court, the better.
I shall withdraw this amendment, but I can assure my noble friend the Minister that I shall be pounding on his door about it while this Bill is going through and, if nothing happens, thereafter.
Lord Beecham
My Lords, the Bill provides for regulations to enable the Lord Chancellor to require a person who qualifies for legal aid to pay an amount exceeding the costs of the civil legal aid services provided. I confess to bewilderment, frankly, at the notion that, in these circumstances, a legally aided person should be obliged to pay an amount greater than the cost of the services—it is almost turning that aspect of legal aid into a profit-making concern. There is no rationale in the Bill for why that should be the case. Litigants do not ordinarily pay more than the assessed costs of a case unless they have incurred some kind of penalty in so doing. The only analogy, when we come to Part 2 of the Bill, is of a success fee having to be paid, effectively, by a litigant. However, in this clause it is not limited to a successful litigant; it simply allows for a prescribed amount in excess of the assessed costs of the civil legal aid services. I simply do not understand whence this derives.
The noble Lord, Lord Thomas, has tabled an amendment which questions the principle and provides for an element of discretion in these matters. However, the Minister has to explain, with respect, why it is that recipients of legal aid should be expected to pay more than the costs that they have incurred. I beg to move.
Lord Thomas of Gresford
I thought there was a printer’s error here: that is why I inserted “not”. It is not a matter of principle; I could not imagine that the Government would require someone’s contribution to exceed the costs and put money into the hands of the Lord Chancellor. I do not see any reason for that and I await the explanation with interest.
Lord McNally
This had better be good. Amendments 112 and 113 would prevent anyone in receipt of civil legal aid being required to pay an amount for that legal aid which exceeds the amount of the legal aid itself. We intend to use the powers in subsection (3) to establish a supplementary legal aid scheme which will provide an additional source of funding to supplement the legal aid fund. As indicated in our response to the consultation on legal aid reform, under this scheme 25 per cent of damages obtained by successful legal-aided parties, other than damages for future care and loss, will be recovered by the legal aid fund. The supplementary legal aid scheme will apply to successful damages cases where the successful party is legal aided, including any out-of-scope cases which are funded through the exceptional funding scheme.
The provision at subsection (3) is not new. There is already an equivalent provision in Section 10(2)(c) of the Access to Justice Act 1999, which allows for the establishment of a supplementary legal aid scheme whereby a legal-aided person makes a payment exceeding the cost of the services received. The power has not been exercised to date but, as we have made clear, we intend to do so in the future, so it is important that the Bill retains the provision to enable this.
At a time when the public purse is constrained, the funds recouped by the supplementary legal aid scheme will help to put legal aid on a sustainable footing and therefore help support the funding of civil legal aid cases. Besides creating a valuable additional source of funding for legal aid, in setting up the supplementary legal aid scheme we are addressing the interrelationship between legal aid and the proposal for reform to the cost of civil litigation put forward by Lord Justice Jackson and reflected in Part 2.
We want to ensure that, so far as it is possible to do so, the recovery level of damages by the supplementary legal aid scheme is consistent with the Jackson reforms to ensure that conditional fee agreements are no less attractive than legal aid. We have therefore selected a recovery level of 25 per cent of all damages, other than those for future care and loss. This mirrors the maximum level of damages that a solicitor will be able to claim from a successful client under a conditional fee agreement in a personal injury case. Under the Jackson proposals, there will also be an increase of 10 per cent in non-pecuniary general damages such as damages for pain and suffering and loss of amenity in tort cases for all claimants. This will help claimants to pay their CFA success fee or supplementary legal aid scheme contribution.
With that explanation, I hope the noble Lord will agree to withdraw his amendment.
Lord Thomas of Gresford
I will read what my noble friend said with great care. For 12 years, this power that he said was in the 1999 Act—introduced by a previous Government but never mind—was never used. My mind immediately flicked back to a case that I once had. I use legal language that lawyers will understand: I once had a case in which a young girl lost the skin from her leg in a motorcycle accident. All the skin was stripped off. Now the Government want her to pay for somebody else. She presumably gets general damages of £30,000. The Government would take a fair portion of that because she had the temerity to apply for whatever it is—legal aid. They then want to keep the extra for somebody else. That seems quite wrong in principle. I am not surprised that it is in the 1999 Act, though with the coalition Government in power I would expect an entirely different approach.
Freedom of Information Act 2000
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Lord Thomas of Gresford
My Lords, “Transparency”, said Sir Humphrey Appleby cynically,
“afflicts all incoming administrations. It used to be called ‘open government’, and reflects the frustrations they felt when they were in opposition and could not find out what was going on, combined with an eagerness to discover and publicise the deception, distortions and disasters of their predecessors … But it does not last beyond the first few months. As time passes they realise they have more to lose than to gain from public knowledge of what they are up to. Each month increases their tally of catastrophic misjudgments, pathetic deceptions, humiliating retreats and squalid compromises. They very soon come to understand that sound and effective government is only possible if people do not know what you are doing”.
I am grateful to the noble Lord, Lord Hennessy, for introducing this debate. It is to the credit of this Government that they have maintained the commitment in the coalition agreement to build on the Freedom of Information Act and to,
“extend transparency to every area of public life”.
The Act has been in full operation for upwards of seven years. When it was introduced, local authorities recorded information in a more traditional way. The right to data now being introduced will ensure that public authorities make electronically stored data readily available in a reusable form. I spent 10 minutes this afternoon looking at complaints about the potholes in the road outside my home in Gresford, which are published on the local open website and was happy to realise that, in the past six months, my very good local Lib Dem councillor had managed to resurface the whole of that area.
The Act has been extended, as the noble Lord, Lord Hennessy, said, and proposals in the Protection of Freedoms Bill will extend it to companies owned by a number of authorities. There are real social and economic benefits, apart from for the writing of history, to be gained by enabling businesses, non-profit organisations, volunteers and others to use freely the datasets held by public authorities for social and commercial purposes.
For my own part, I would extend the provisions of the Act to private companies carrying out public work paid for by the taxpayer. I agree with the Public Accounts Committee which said recently in its 44th report published last July:
“Transparency on the full costs and benefits of PFI projects to both the public and private sectors has been obscured … commercial confidentiality should not restrict the ability of the public, Parliament and decision makers to access information”.
I hope that the Minister will be able to comment upon that view; I am sure that Sir Humphrey would not agree.
Legal Aid, Sentencing and Punishment of Offenders Bill
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Baroness Mallalieu
My Lords, I wonder what on earth could, in fact, be a valid reason for objecting to the spirit of the amendments in this group, in particular the one proposed by the noble Lord, Lord Faulks. If, as I fear, some parts of the Bill remain unchanged by amendment and legal aid is withdrawn from some areas, it is almost certain that it will be shown in due course that legal of aid was essential for the smooth running of our benefits systems, our legal system and our society. I suspect that there will be a public sense of unfairness when the extent of the proposed cuts is more widely known. I suspect that at that stage there may need to be, as others have already said, some rapid amendment to the existing system.
Who knows whether our economy may once again prosper? Further money may be available to spend, not just on more lavish opening ceremonies for the Olympics, royal yachts or high-speed railways but on the needs of people who are poor and disadvantaged. It is surely not beyond the bounds of possibility, as history has often shown, that a new field of law will develop rapidly and that legal aid will need to be extended to a different category that has not been anticipated to require it. Flexibility, as others have said, so that further primary legislation, which is costly and time consuming and inevitably involves considerable delay, can be avoided, ought surely to be embraced by the Minister with enthusiasm. I look forward to seeing it in a moment.
Lord Thomas of Gresford
My Lords, the problem for many lawyers is that we so often look into the past. Common lawyers in particular try to piece together what has happened before. Consequently, we tend always to look for evidence to support our interpretation of events. I certainly share that problem, but I have also had some experience of running an independent local radio company. During that time I realised the great difference between businesspeople and lawyers. Businesspeople have to take decisions about the future, and they can do that only on limited information.
In this instance, the Government have had to take a decision; it has been forced upon them. To adopt a phrase first used by the noble Lord, Lord Elystan-Morgan, 50 years ago, “The Visigoths were at the gates”. It was therefore necessary to decide how best we can cut the deficit and how, in this instance, legal aid should share that burden. This is an issue which I think I raised with Ministers before the Bill came here—I certainly referred to it in my Second Reading speech—and I have had further discussions since. When taking decisions about the future, one has to have flexibility when the future happens. One has to be able to adopt what was decided at one moment in accordance with experience.
This is an instance of that. Some of the prognostications that we have heard from the lawyers around this place—and there have been a lot of “mays” and “what is likely to happen” and so on from lawyers—might happen in the future, in which case the provision of legal aid will have to change. The changes might be positive and legal aid granted more widely. It is therefore essential that the Lord Chancellor has the power to add back into the scope of legal aid matters that prove not to be profitable in the way that the Bill envisages. There are not the alternatives that the Minister speaks of for dealing with various legal issues and the very important question of access to justice. That is why I am speaking to Amendment 25 in my name. This is a very positive way in which the Minister can demonstrate that the Government will be flexible in this area, will listen to the concerns that are voiced in the Chamber and will adapt the Bill accordingly.
Lord Scott of Foscote
My Lords, I support strongly the amendment proposed by the noble Lord, Lord Faulks, and the other amendments in the same spirit. It is important in considering the merits of the amendments that we bear in mind the purpose of a civil justice system. I suggest that a country is not entitled to regard itself as civilised unless it has a proper, workable system for the administration and attainment of civil justice. I spent my professional life working in the civil justice system. Of course, the criminal justice system has its own imperatives, but a civil justice system whereby individuals can obtain remedies or resist attempts to obtain remedies against them is of critical importance if our country is to retain the status that it has earned over many years of being a civilised country in which it is a pleasure to live.
Lord Howarth of Newport
I am second to none in my admiration, indeed my gratitude, for AVMA, which helped me and my family at a very difficult stage of our lives. I am deeply appreciative of them. If the list of expert witnesses was to be maintained both by the NHSLA and by AVMA, rationally speaking that is a list that should command confidence. None the less, in the emotionally fraught circumstances of a dispute, particularly where a baby has been damaged at birth or where some other catastrophic injury has taken place, it is asking a lot to expect people to trust witnesses and reports that are to be commissioned—the noble Lord’s amendment would require that—by the NHSLA.
Lord Thomas of Gresford
My Lords, I hope the Government do not think that this debate is special pleading, as the noble Baroness, Lady Mallalieu, feared. There are a number of reasons for that. First, clinical negligence—at the moment, exceptionally in personal injury cases—already attracts legal aid. It is currently within scope. Secondly, there are considerable difficulties in proving clinical negligence. When a car accident happens, almost anyone, given proper evidence, can determine who is responsible. Clinical negligence is a very different field. It is very difficult to prove causation. If you can prove causation—that the condition of the claimant has been caused by the clinician concerned—you then have a further hurdle to surmount: whether that clinician has exercised the proper standards of care as known at the time.
I vividly remember a case in which I was involved where it was established that the arachnoiditis was caused by an injection into the spinal cord by a clinician. Arachnoiditis affects the limbs of a person and causes considerable paralysis. We could establish causation, but by the standards of the time it could not be shown that the injection was negligent.
The third matter that I draw to the Committee’s attention was referred to by the noble Baroness, Lady Finlay—that there is currently quality control in the provision of legal aid in clinical negligence cases. There are panels provided by the Law Society or Action for Victims of Medical Accidents, and it is only to solicitors who are on those panels that legal aid certificates will be granted. That ensures that there is a proper approach to the issues that arise in clinical negligence cases, and a proper conduct of those cases. For all those reasons, this is not special pleading; clinical negligence deserves consideration quite separately from all the other matters that we are raising under the first schedule.
I would like the Government to consider at what level legal aid can be granted. The noble Lord, Lord Faulks, and my noble friend Lord Carlile referred to the possibility that legal aid should be granted in serious cases that have an impact upon the lives of people. For example, if a case is worth only £4,500, which has been referred to, that may not be one in which public money should be involved—certainly not to the extent of £95,000. However, if, as so often happens, the lives of people and members of their families are altered for good, surely a humane society should provide legal aid to cover the cost of litigation in those circumstances?
Lord Beecham
My Lords, this has been a very thoughtful debate, and that owes much to the fact that so many of those who have participated have experience, either legal or medical, of cases of this kind. They are certainly among the most difficult that either clinicians or lawyers have to deal with. The noble Lord, Lord Wigley, referred to the rather alarming statistic that 10 per cent of National Health Service patients in any year suffer from clinical negligence. That ought to concern all of us, especially those with responsibility for the health service.
However, it is also right to point out that this does not give rise to a spate of litigation. In view of the numbers of people who must suffer from clinical negligence, the fact that only around 10,000 or 11,000 cases a year receive legal advice, and of those only about 3,500 proceed to receive legal aid for representation, completely contradicts the assumption that there is a compensation culture—certainly in this area of law and, many of us would argue, generally. There is no compensation culture. However, it is a measure of the scale of the need for representation that of the successful legal aid cases—some 1,500 cases adjudicated in, I think, 2009-10—the average period during which these cases were pursued was as long as 55 months. That might partly be a reflection of the complexity of the evidence, or partly of the fact that you cannot really settle a case until the prognosis becomes clearer, until a client’s needs are defined, particularly in the case of children who suffer perinatal injuries or other forms of clinical negligence. Obviously their future lives cannot be predicted with any certainty at too early a stage. However, it also owes something, as the noble Lord, Lord Thomas, pointed out, to the reluctance of authorities—the NHS bodies and, I suppose, private bodies—to admit liability.
Lord Wallace of Tankerness
My Lords, I think the position is that if they lose they do not pay it. That is what we are retaining in cases of clinical negligence. In short, poor people will not have to pay up-front for the necessary expert reports in clinical negligence cases.
Lord Thomas of Gresford
The problem is that you cannot get a conditional fee agreement unless you have a case, and you cannot get insurance unless you can show that there is a case. In clinical negligence, you do not have a case unless you have the medical reports. That is the problem. The Government’s solution, as put forward in Clause 45, does not solve the problem at all.
Lord Wallace of Tankerness
My Lords, we certainly believe that going down this road will mean that poor people do not have to pay up-front for their necessary expert reports. Indeed, that is why we draw a distinction between our reforms as they affect clinical negligence and the reforms that affect claims for damages in other areas.
We are working closely with the NHSLA and other stakeholders to discuss how the commissioning of these reports can be improved so that joint expert reports can be commissioned wherever possible. That would involve the NHSLA commissioning and sharing expert reports on liability with claimants at an early stage. There is a lot of agreement that that is what we should be doing—trying to get it at such an early stage. That, in turn, will help to encourage the early notification of claims.
My noble friend Lord Faulks and the noble Lord, Lord Wigley, expressed some concern about whether there would be a market for ATE insurance if it was not recoverable in other areas. We certainly recognise that these concerns about the funding of medical expert reports have been expressed, but the reality is that claimants usually take out ATE insurance. We expect the ATE market to adapt to the new arrangements. As my noble friend Lord Faulks accepted—although he queried whether it should have been done earlier, rather than during the passage of legislation—a working party has been set up to consider the recoverability of ATE and to ensure that premiums for expert reports reflect the risks involved. ATE insurance brokers have been asked to contribute to this working group. It is a concern to which we are alert and one that we seek to address.
Furthermore, we wish to reassure the Committee that we will be introducing qualified one-way cost shifting, which will be available in personal injury claims and, therefore, will by definition apply in clinical negligence claims. Qualified one-way costs shifting will mean that, in the majority of cases where damages for clinical negligence are sought, the claimant is not at risk of having to pay a winning defendant’s costs. We have therefore protected the claimant’s interests to ensure that they are not denied access to justice for fear of having to pay the defendant’s costs if they were to lose.
One of the main areas of concern in respect of expert reports is those cases concerning babies who suffer obstetric brain injury. This has been reflected in a number of contributions. While we consider that in most clinical negligence cases funding will be available through a combination of conditional fee agreements and ATE insurance, we have always recognised that there may be obstetric injury cases with high disbursement costs, which are currently funded by legal aid but for which it may be difficult to secure conditional fee agreements.
My noble friend Lord Faulks expressed concern as to whether the provisions in Clause 9 with regard to these exceptional payments, which we will debate later, would be fit for purpose and meet the task which we wish them to achieve. It is because of this that we have sought to make funding available. The safety net would be in the form of an exceptional funding scheme, which will ensure the protection of an individual’s rights to legal aid under the European Convention on Human Rights as well as those rights to legal aid that are directly enforceable under European Union law. In considering whether exceptional funding should be granted in cases engaging Article 6 of the European Convention on Human Rights, the director will take into account general jurisprudence set out by the European Court of Human Rights on Article 6. The jurisprudence takes into account the following relevant factors: the ability of the client to present his or her own case; the complexity of the matter; the importance of the issues at stake; and all other relevant circumstances. It is important to put this into context. Our impact assessment estimates that we will continue to spend £6 million of the £16 million we currently spend on clinical negligence cases on exceptional funding cases. We estimate that the vast majority of this £6 million—
Lord Wallace of Tankerness
We do not wish to inflict the scenario which my noble friend indicates. The scale at which we believe the exceptional funding will be used is indicative of our expectation that exceptional funding will be available to assist these very profound cases. No one is disputing the seriousness of this. However, the amount of money that is being made available is not insignificant by any stretch of the imagination—£6 million out of the £16 million that is sought to be saved overall—which indicates that this measure is not just incidental but tries to address very directly the proper and sensitive concerns that have been raised.
Lord Thomas of Gresford
My noble and learned friend referred to Clause 9 and to exceptional cases. He will be aware that a specific category of special exceptional cases is delineated in that clause: namely,
“advocacy in proceedings at an inquest under the Coroners Act 1988”,
where there is a “wider public interest determination”. Are the Government prepared to consider whether in this very sensitive type of case there could be a subsection inserted into Clause 9 which deals with the very difficult issue of clinical negligence instead of leaving it under the broad wording of subsection (2)?
Lord Bach
I am grateful to the noble Lord as he is absolutely right about the social and financial costs of abolishing this sort of legal aid. It is impossible to say what they will be, but they will be huge, which I should have thought was fairly obvious.
The outcomes that we have talked about in this debate are not beyond the realms of probability, nor can anyone say that they would be unexpected. It is up to us in this Committee, and in the House perhaps on a future date, to decide whether the outcomes that have been described would cross the basic line of British decency that it is our obligation to defend. As part of that decision-making, we must look at whether these particular cuts are economic in the first place. Would they achieve even the Executive’s highly limited narrow goals of saving money?
The ministry plans to remove entirely funding for welfare benefits from scope. It claims that that will save £25 million a year. That sum normally goes to dealing with 135,000 cases per year. The advice is delivered, not altogether but pretty much through third-sector not-for-profit agencies such as Citizens Advice, law centres and many other advice centres. Advice goes to those seeking reconsiderations of decisions by the DWP and related agencies and to those appealing decisions before the First-tier Tribunals and then the Upper Tribunals. We have heard who receives the advice. Women are disproportionately users of this advice, as are ethnic minorities. As the noble Baroness indicated, 69 per cent—a very high percentage indeed—of those receiving advice are ill or disabled in some way.
As for who gets more complex advice—that relating to grounds for appeal—the published data for First-tier Tribunals show that of the 50,000 or so benefits-related cases heard a year, 90 per cent relate to disability-related benefits. That is hardly a surprise. For all its sins, jobseeker’s allowance is a simple entitlement for which to calculate eligibility. When there is a degree of subjectivity in deciding on the impairment caused by disability, agencies are more likely to make mistakes and thus require decisions to be appealed.
What does the advice funded by legal aid deliver? Colleagues in another place tabled a series of Parliamentary Questions to establish the percentage of people who win their appeals before tribunal with and without advice. The figures provided by the ministry show that in 2009-10 in welfare benefits-related cases, people were 78 per cent more likely to win if they had advice than if they did not have advice. For ESA the figure was even higher. People appealing employment support allowance decisions were more than twice as likely to win with advice than if they did not have advice. I point out what is obvious: those winning appellants are all legitimate claimants. They are not scroungers; they are not feckless—for the main part they have probably suffered some form of disability. They have been denied their rights by an emanation of the state, by the Executive, and they are legitimately challenging that decision.
Lord Thomas of Gresford
It is just habit. Would the noble Lord agree that his statistics suggest that where there is advice, meritorious claims are brought forward and money and time are not wasted by tribunals in hearing litigants in person?
Lord Bach
I agree absolutely. It seems to follow because the people who practise this kind of law—and we know that they are not particularly well-paid lawyers—are very careful, on the whole, to give advice on the position in law and not necessarily what the claimant wants to hear. It is right that people with hopeless claims do not go forward and those with meritorious claims do go forward—as they should do.
These are legal problems—let us make no mistake about that. The truth is that the welfare benefits field, as we have heard all round the House from great experts, is very complex in many cases and people need help with these matters before they can decide the right thing to do.
Judge Robert Martin, the head of the Social Entitlement Chamber of the First-tier Tribunal, gave evidence to the Justice Committee inquiry some time last year. The 7,500 pages I referred to in an intervention are the reference material that was issued to the tribunals and which is now spread over six volumes. He made that point to the Justice Committee. He was asked by the chair, the right honourable gentleman Sir Alan Beith:
“Will it bring more people into the tribunal because they have not been advised that their case has no chance of success in the tribunal”?,
which I think is the question the noble Lord, Lord Thomas of Gresford, asked me. Judge Robert Martin said:
“Yes, because a general public awareness of tribunals is very low. Very little is put into public education of the law and how to seek redress for grievances. There is this risk that we will see many people who have been drawn to the tribunal believing it is the most appropriate forum to solve things, whereas it may be just a mistaken conception about the tribunal”.
He continued:
“Legal help is so important in that triage function of sifting out cases which can be redressed but not through the tribunal or the court, and assisting those cases where the tribunal or the court can assist to have the case prepared in a way that maximises the chance of success”.
That gives the answer from someone who is, as it were, at the coal face. He went on to say:
“With the removal of legal help, we will have to spend a lot more time explaining simply what the tribunal is about rather than getting to the heart of the matter”.
This Bill is at its worst in this particular part. I argued at Second Reading—and I argue again today—that it is unconstitutional in that it removes access to justice for a large number of citizens, it is immoral because the state should not try to save a fairly small amount of money by targeting the poor and the disabled by removing their legal rights, and it is financially crazy because the savings will be non-existent. As benefits mistakes are not remedied, the problems will grow and the cost to the state will explode.
We are very proud of our legal system in this country and we encourage, quite rightly, foreign citizens to litigate their cases in British courts. They do so because of the extreme fairness and expertise of the British legal system from top to bottom. It is ironic, is it not, that we should be asking foreigners to litigate their serious cases in our courts because of the greatness of our system, while at the same time we seek to reduce some basic rights in law for our own citizens who are the least able to look after themselves?
Legal Aid, Sentencing and Punishment of Offenders Bill
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Baroness Howe of Idlicote
My Lords, as another non-lawyer, perhaps I may join in very briefly. I have listened to everything that has been said on this point, and what the noble Lord, Lord Phillips, said is particularly important. The Lord Chancellor has a different role. He might not have all the legal discipline of a lawyer, if he is not a lawyer.
I should like to make another point on the importance of independence that people are unfolding at this time. It illustrates the extent to which, if we cram everything into such a short space of time and so many Bills overlap—I am thinking about the Welfare Reform Bill and this Bill—it tends to leave us all wondering just how many amendments should be grouped together and whether they are being given the proper consideration that they should have. I very much support the intentions behind this group of amendments.
Lord Thomas of Gresford
The issue that concerns me in Clause 4 is subsection (3). Under subsection (4):
“The Lord Chancellor may not give directions or guidance about the carrying out of … functions in relation to individual cases”.
That is fair enough, but he must,
“comply with directions given by the Lord Chancellor about the carrying out of”,
his “functions”, and he must,
“have regard to guidance given by the Lord Chancellor about the carrying out of”,
his “functions”.
What does that mean? Does it mean, for example, that the Lord Chancellor can phone the director or call him into his office and say, “Now, look here, you’ve got far too many of these judicial reviews going through in relation to government business. I am not telling you about any particular case, so I am complying with subsection (4). But when it comes to subsection (3), would you please bear in mind that my guidance is that we have got too many of these cases? The judges are complaining. The lists are full.”? What exactly is intended by Clause 4(3)?
Lord Bach
My Lords, we have heard short but very impressive speeches on this very important group. Clause 4 is particularly important and it is absolutely vital that the Government get this right. We want to help them get it right all across the House. I hope that the Minister will have some freedom of manoeuvre on this matter, which is, in the end, a matter of some principle.
Perhaps I may start by commending the Government for bringing the Legal Services Commission inside the Ministry of Justice. When we were in power, we set up the Magee committee to produce a report on whether that would be an appropriate thing to do. It seemed to us at the time, and clearly to this Government, that there were a number of very good reasons why it is not satisfactory for the Legal Services Commission not to be an agency of government. In our view, it is appropriate that it should be and we commend the Government for doing that.
The problem always—it would have been as much a problem for us as it is for the present Government—is with the words “independence” and “perception of independence”. The Minister will know, as all of us know, that many interested people outside this House are very concerned about the drafting of Clause 4 and whether it meets what the Government clearly intend. No one is accusing them of bad faith here. Clause 4(4) shows that they clearly intend that this should be a system that works fairly and well. As the noble Lord, Lord Thomas of Gresford, pointed out, the wording is extraordinarily ambivalent and ambiguous, certainly as regards the relationship between subsections (3) and (4). The Government need to look at it again, and, I would argue, it probably needs to be redrafted.
I do not know whether noble Lords have had the opportunity to see an interesting, short note from Justice on this topic. Mr Roger Smith, who I think is well known to a large number of people who are interested in this issue and who has huge experience in this field, makes a very good point as to why this present drafting is not satisfactory. He says on what I think is an important part of the argument that:
“The provision will be most objectionable where the Director makes a decision to refuse legal aid for judicial review against his own minister. However justified that might be on the individual facts, it would be argued that the Lord Chancellor is being a judge in his own cause. Indeed, it may well be”—
this is the clever point—
“that interest groups are motivated to make exactly that accusation, regardless of the substantive worth of their application, precisely to obtain more publicity for their cause”.
As an example, among many others that could be referred to, he has shown where the Government have to tread extraordinarily carefully to make sure that independence is real and is perceived to be real. I therefore ask the Minister to be sympathetic and to look very carefully indeed at how this clause is currently drafted.
Lord Thomas of Gresford
I wish to add further concerns, having heard the Minister’s reply. I understand that the director would have to follow directions and guidance given on matters of merits and eligibility. Standards would have to be set as to what has to be satisfied, and eligibility in relation to finance is something that the Lord Chancellor would be concerned with. But I have some concerns about the emphasis on individual cases as opposed to a category of cases.
We sought in Amendment 16 to take one category of case—namely, cases against the Government or government agencies, or whatever. The Lord Chancellor ought not to be able to interfere in any category of case that is within the scope of Part 1 of the Bill. He should not be able to say that there are too many of these cases and we have to cut down, and the wording leaves that open.
Another matter that concerns me is exactly what is intended. The Minister used once the expression “an executive agency”. What is that? Is it a body within the Ministry of Justice or is it to be set up separately? Is it to be staffed only by civil servants or is it to be able to recruit its own people to it? What is the relationship of the executive agency headed by the director to the Ministry of Justice? We are very familiar with the concept of the Director of Public Prosecutions and the sometimes rather fraught relationship between the DPP and the Attorney-General, who is responsible for the director’s decisions in a parliamentary sense but not necessarily able to give him directions or control him in any way. So the independence of the DPP is a very interesting model which I would have thought the director of legal aid casework ought to follow. That means having an executive agency recruiting its own people and a constructive tension between the director and the Lord Chancellor, or whoever the Minister of Justice happens to be at the time. I would like to probe the concept a little further at this stage. What is this executive agency? How will it be staffed? What is the relationship between its director and the Minister of Justice? It may be that I am posing these questions at the wrong stage in this debate. If my noble friend is not able to answer these questions at the moment, I am sure he will explain them to me at a later stage.
Lord McNally
I can do no more than suggest that the noble Lord reads the Bill, because it sets out the structure for carrying out this function within an agency which is within the Ministry of Justice and staffed by civil servants appointed on the criteria which have stood us in good stead for the past 130 years. Again, as with the other contributions to this debate, I will take those matters back and see whether there are areas that can be better clarified to give my noble friend the assurances that he requires.
Lord Bach
My Lords, I hope that I am correct in saying that our intention is that there should be a process whereby written applications can be made, but always with the provision that there can be an oral hearing in certain circumstances. The noble Lord makes a good point. I beg to move.
Lord Thomas of Gresford
My Lords, I wish to speak to Amendment 96 in my name. We take the view that the appeal to the First-tier Tribunal against a refusal of legal aid is a little excessive. However, we take the point that was made by the noble Lord, Lord Bach, a moment ago that the European convention requires that there should be an appeal process. We note that in Clause 11, headed “Determinations”, there is a provision in subsection (5) that regulations,
“must make provision establishing procedures for the review of determinations … and of the withdrawal of such determinations”.
That is fine, but we do not think that the review should be carried out by someone else within that executive agency about which I was talking a moment ago. We believe that an appeal should be made to an independent panel.
Your Lordships will recall that on Second Reading or on the first day of Committee I was involved in a clash over who had the longest involvement in legal aid. I recall that legal aid applications and appeals were very well dealt with by an independent panel of local solicitors within the area. It was all devolved. You did not have to come to London or attend a First-tier Tribunal in whatever building that tribunal sat. The matter was dealt with locally by people who understood the locality and probably knew the solicitor who was appearing before them to make an appeal, and had some idea how far they could trust that individual and how experienced he was.
Lord Woolf
As someone who was a member of such a committee, I should say that it also included members of the Bar. In view of what is happening to legal aid, members of the Bar may well be interested in performing this function.
Lord Thomas of Gresford
These events occurred long ago when I was in my solicitor phase. I was called “Mr” in those days. It was only when I became a barrister that I became “Esquire”, and later I became “learned”. These are the progressions one makes within the profession. Looking back to my early days, I think that the noble and learned Lord, Lord Woolf, is quite right: barristers were members of the panel that considered these applications. It was a perfectly satisfactory method of appeal, which was independent of the Government who were providing the funds. I envisage an independent panel to review the director’s decision, not an in-house person but people who could be referred to more cheaply than the First-tier Tribunal to which the noble Lord, Lord Bach, referred. I commend that process as opposed to the one put forward by Her Majesty’s Opposition.
Lord Carlile of Berriew
My Lords, having inherited a number of returns from my noble friend Lord Thomas of Gresford when we were both barristers outside London many years ago, I share the memory of the effectiveness of those committees, including the gloss placed on it by the noble and learned Lord, Lord Woolf.
I would like to point out a parallel that exists today. Those of us who from time to time undertake very high-cost criminal cases have to apply for permission to the Legal Services Commission to do certain aspects of preparation. If the commission refuses permission, for example to obtain an expert witness’s report or to make photocopies of original documents—believe it or not, it can descend to that—there is a committee made up of practising lawyers who determine whether that permission should be granted, and it works very well. If the committee decides against the applicant, he or she has the opportunity to apply for permission to apply for judicial review. That involves a paper process, initially before a judge. If permission is refused, it is open to the applicant to have an application heard before the full court, but it is far from universal that that is done.
We therefore have in the existing provisions for very high-cost cases something very similar to that described by my noble friend Lord Thomas of Gresford. I suggest to the Minister that this would be a practical way of dealing with this appeal problem that would cover the concerns of the noble Lord, Lord Bach, those who have signed his amendment and those of us who have signed my noble friend’s amendment.
Lord Thomas of Gresford
We come to Clause 7, “Civil legal services”. These services,
“include, in particular, advice and assistance in the form of … representation, and … mediation and other forms of dispute resolution”.
My amendment simply inserts “collaborative law” after “mediation”. Noble Lords may ask what it is. I am very grateful to the organisation Resolution for drawing it to my attention, and I am very keen on it.
It is perhaps inevitable in the House of Lords that one goes back over the years. Getting divorced these days is no problem; it is all done on paper. There is no Queen’s Proctor, confession of adultery or anything like that; one just signs a piece of paper. It is the children, the house and the funds that create the difficulty. Collaborative law is different from mediation. In mediation, the parties go in front of a mediator who listens to what they have to say. They may not be represented and may shout at each other. Statistics show that something like 60 per cent of attempts at mediation fail. People who are at each other's throats and ready to kill each other should not be put in proximity to argue in front of a mediator; it is not easy for the mediator or for everybody else.
The collaborative family law process is a relatively new way of dealing with family disputes. Each party appoints their own lawyer. However, instead of the lawyers conducting negotiations by letter or phone, they meet to work things out face to face. Therefore, each antagonist has a lawyer at their side throughout the process and receives legal advice as they go. The aim of collaborative law meets the Government's aim of resolving family disputes without going to court. Both parties meet their respective lawyers, discuss the different options and processes available and decide to attempt the collaborative process. Then a four-way meeting is set up—the two parties plus their lawyers—and at the first four-way meeting the lawyers make sure that both parties understand that they are making a commitment to work out an agreement without going to court. They all sign an agreement to that effect.
Lord Thomas of Gresford
My Lords, I have to confess that I am disappointed with my noble friend’s response and I shall certainly return to this issue on Report. The Government have to appreciate that they are taking family law out of scope, which means that there are going to be couples who are at each other’s throats. There are various ways in which they can resolve their problems. They can say, “He hit me on one occasion. It is domestic abuse, so I want legal aid”. All the fears that have been expressed by the Government of people pushing domestic abuse up the agenda in order to get legal aid and thus making it more difficult to settle will become prevalent.
Here is a system where, on a fixed fee, issues of finance, housing and children can be settled, which is exactly what we as solicitors used to do. We would pick up the phone and talk to the opposing solicitor in order to sort things out without having to go to court. If you do not have a system like this to resolve issues, inevitably it is going to cost more. As I say, there will not necessarily be made-up allegations of abuse, but the little disputes that have occurred in a marriage may perhaps be tarted up just enough to make it possible for legal aid to be involved. You are then into an expensive system. I will therefore return to the matter on Report and I shall continue to advocate this very excellent system. I am pleased to see that the noble and learned Baroness, Lady Butler-Sloss, is involved. So far as I am concerned, the process has been given the seal of approval. For the moment, however, I beg leave to withdraw the amendment.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Thomas of Gresford Excerpts(13 years, 6 months ago)
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Baroness Howe of Idlicote
My Lords, we have heard legal speeches from the top lawyers in this country, and no one should fail to recognise that. In particular, as my noble and learned friend Lady Butler-Sloss said, this is a very modest amendment that clearly takes account of the situation that we are all in. However, those of us—and there are many in this Chamber—who sat through Committee on the Welfare Reform Bill know very well where the needs are. There are needs other than those who are disabled or have special needs. As we heard, I think a couple of days ago, there are those who suddenly hit crises and need help.
Above all—from the way I look at these things; I wish we knew more—I support my noble friend Lord Ramsbotham’s plea for rehabilitation. One should consider the amount of money that we could save if we actually addressed the point about early intervention and all the matters that are now rising to the top of the list of things that are accepted but to which we are still not prepared to give the resources that are needed.
I also realise that there are difficult loyalties between members of the coalition. One or two of your Lordships have made their position clear, and I admire them for it. It is difficult to vote against your party. I almost beg the Minister to realise that the amendment would meet his and the coalition’s needs and should be accepted.
Lord Thomas of Gresford
My Lords, I have been involved with legal aid for longer than anyone except my noble friend Lord Phillips. I started in 1958.
Lord Thomas of Gresford
I can go from 1958 to last Friday on doing legal aid work. I do not know whether the noble Lord can follow me on that, so I have some experience of legal aid. I have filled in the forms and appeared in various tribunals and courts, and I have sometimes appeared pro bono with the assistance of legal aid granted by panels of solicitors who control that sort of thing. However, I am afraid that the amendment does not say anything. That is my concern. It states:
“The Lord Chancellor must secure … that individuals have access to legal services that effectively meet their needs”.
That is a fine statement of principle, except that it is qualified in two ways: first, by the words,
“within the resources made available”,
and importantly by the words,
“in accordance with this Part”.
That can have meaning only if we look at what is in this part of the Bill, not just at this precise moment but by the time we have finished dealing with it.
Your Lordships have seen the Marshalled List and will appreciate the number of amendments in my name that make it clear that I am not satisfied with the settlement put forward by the Government within the resources that are made available. The noble Lord, Lord Clinton-Davis, asked what the Bar Council, the Law Society and all the NGOs say. They speak with one voice and accept the need for reductions. They accept that case, and so do I. It is an unhappy position and I wish it were otherwise.
In my Second Reading speech, I said that I hoped that the Government would commit themselves to saying that we are not here to squeeze government expenditure for all time but that when the economy improves we can widen the use of resources that will be available at that time.
Lord Clinton-Davis
What the Government are proposing will cost much more, because of various things. What does the noble Lord have to say about that?
Lord Thomas of Gresford
I will say something about that in our debate on Amendment 2. I entirely agree. I think that the Government are making a mistake in welfare law and that cutting legal advice and assistance for people at the bottom end of society will cause more problems than it solves; it will not achieve the savings that the Government think it will. That is my case. Your Lordships have only to look through the Marshalled List of amendments to see that, time and again, I seek to rejig Part 1 in a way that I think will make more sense while attempting to save the Government the money that they must save to meet the deficit in this area. That is why, to be honest, I am not concerned about this amendment. As I said, it does not say anything; it just concerns what resources will be necessary to meet what will be in this part of the Bill when we have finished with it.
Our decisions in Committee should not be about piling back in everything that has been taken out. We are living in a different world. There are different needs. Society has changed. From getting on for 60 years of experience, I think I know what those needs are. I hope, with your Lordships’ assistance, to go through it all piece by piece, detail by detail, and point out to the Government what they should rethink.
I can make a speech about principles. Good God, I have done rhetoric all my life—I am a Liberal Democrat. I listened to the noble Lord, Lord Howarth, earlier. He made a fine speech, and I agree with every word, but what it had to do with the Committee's proceedings I was not quite sure.
We want to get away from rhetoric and down to the nuts and bolts of the Bill to see what solution we can come out with at the end. That is why I shall support my noble friend if this is taken to a vote and ask my colleagues to come with me to support the Government at this stage. It might be necessary later in our proceedings to hammer home certain points that we have not yet discussed, but I respectfully suggest that it is not necessary to defeat the Government on this amendment.
Lord Beecham
My Lords, I must begin by declaring some interests. I am an unpaid consultant with the firm of which I was senior partner for 30 years, in the course of which I engaged in legal aid work in the fields of personal injury law, family law and criminal law. I was also one of the founders of the citizens advice bureau in Wallsend, near the town in which I live, and I was instrumental in securing a law centre in Newcastle. I also have to declare a paternal interest, as my daughter practises in the field of housing and employment law at the Bar.
I congratulate the noble Lord, Lord Pannick, and his co-signatories on tabling the amendment. I confess that I share some of the reservations expressed by other noble Lords about the qualification included in the amendment. I am tempted to say that if my noble and learned friend Lord Goldsmith is satisfied, I must be satisfied. In all events, I am open to persuasion by the noble Lord, Lord Pannick, whom, with his display of forensic skill and general persuasiveness, I have never heard without being utterly persuaded. I am sure that he will persuade me and others of your Lordships that the amendment is on the right lines. The reference to Part 1 is predicated upon changes that I think many of your Lordships would like to see to the scope of the Bill.
The key issue for Parts 1 and 2 is that of access to justice, as fully explained by the noble Lord, Lord Pannick, in his brief opening remarks. There are two parts of the Bill with somewhat different purposes. Part 1 deals with legal aid, which is what we are dealing with today. Part 2 deals with litigation funding and is based on the recommendations of Lord Justice Jackson. Taken together, they mark a fundamental change in our system of justice. We will debate the Jackson proposals in Part 2 later. Many will see merit in many of his proposals.
Lord Pannick
My Lords, this has been a lengthy debate that has touched on a large number of very important issues. In responding, perhaps I may briefly take the attention of the Committee back to what we are debating: the terms of Amendment 1. With all due respect to the Minister, I simply cannot understand his objection to the amendment. It is not a matter of legal complexity, it is not a matter of legal expertise, and it is certainly not a matter of philosophy. Surely the amendment identifies in terms that I hope are clear and uncontroversial the aims of the legal aid system in our society. It recognises that the provision of legal aid must be within available resources, so it does not cut across the Minister's understandable desire to save money. There is no question of the amendment requiring a “blank cheque”, which was his phrase in answering criticisms of the Bill. Surely a statement of constitutional principle such as this is absolutely vital at the start of a Bill of this nature.
I suggest to noble Lords that the Government's refusal, through the Minister, to recognise a simple, and I hope uncontroversial, statement of principle in Clause 1 is deeply troubling in what it tells the Committee and the world outside the House about the Government's approach to legal aid and to the more detailed provisions that we will come to debate in Committee.
Lord Thomas of Gresford
Perhaps the noble Lord would outline what is meant by,
“in accordance with this Part”.
Lord Pannick
I will come to the noble Lord's concern that the amendment does not go far enough. My point is that if the Government are not even prepared to recognise the principle that the Bill should seek to secure, within the resources available, individuals’ access to legal services that effectively meet their needs, why should the Committee support the detailed reductions in the scope of legal aid that we will come to debate?
Lord Pannick
I will deal with the noble Lord’s point if he will be patient; I prefer to deal with it in the course of my remarks and not at this precise moment. The Minister said that the amendment was unnecessary. I say with respect that that ignores the need for a statement of constitutional principle to assist the Lord Chancellor, the director, the courts and the public. The Minister suggested that these matters were inherent in the role of the Lord Chancellor. What, then, is the objection to putting the statement in the Bill?
The Committee heard support for the amendment from all sides of the House, and I am grateful to all noble Lords who spoke. The only noble Lords who spoke against the amendment, apart from the Minister, were the noble Lords, Lord Phillips of Sudbury and Lord Thomas of Gresford. Each was concerned that the amendment did not go far enough: that it was either anodyne or positively dangerous in cutting down on the possible provision of legal aid. I say to each of those noble Lords, and in particular to the noble Lord, Lord Thomas of Gresford, that his comments, with respect, ignore the provision that has been on the statute book since 1999: Section 4(1) of the Access to Justice Act 1999, the terms of which are echoed in this amendment. Under all Governments since 1999, that has been the state of the law, and Section 4(1) refers both to “the resources made available” and to provision,
“in accordance with this Part”,
so I cannot understand the objection to including those same phrases in Amendment 1.
Lord Thomas of Gresford
I do not think the noble Lord has grasped what I was saying. The amendment states,
“in accordance with this Part”,
but we have not determined what this part will cover. As the noble Lord realises, I have put down many amendments to Part 1 in an attempt to rejig what will be in scope and what will not. He is inviting the Committee to accept,
“in accordance with this Part”,
at the very outset before we have decided what is going to be in it.
Lord Pannick
With great respect to the noble Lord, I am inviting the Committee to accept that whatever the Bill is at the end of proceedings in this House and in Parliament as a whole, it is vital to have at the outset a statement of constitutional principle. This amendment is entirely without prejudice to all the amendments that we will be debating, considering, and perhaps voting on, many of which I support, but that is an entirely distinct question from the issue that we are now debating, which is the constitutional principle about what goes into the Bill. I was particularly grateful to the noble and learned Lord, Lord Goldsmith, for his support on this point, and I respectfully agree with what he said.
I am not going to test the opinion of the House today—I am going to take the advice of the noble Lord, Lord Newton of Braintree—but I very much hope that the Minister will be able without a vote to recognise that the opinion of the House is very strongly in favour of this amendment for all the reasons that have been expressed in Committee today. I am sure that the Minister will recognise that if there is no movement on this issue—an issue that I and many other noble Lords regard as absolutely fundamental—the House will return to this matter on Report, and it is clear, I suggest, that the Minister and the Government will face a substantial rebellion on their own Benches. For the present, I beg leave to withdraw the amendment.
“( ) The Lord Chancellor must secure equality between the state and any party in dispute with the state in the provision of services of advice, assistance and representation for appeals on any point of law in the fields of welfare benefits, employment, debt, housing, immigration, education, and asylum.”
Lord Thomas of Gresford
My Lords, we are now coming to what I regard as the nitty-gritty of this Bill: what is going to be in scope and what is not? What is to be provided for? I have focused in particular on the area of welfare law, which I think is of extreme importance in our deliberations. I am speaking to Amendment 2, and, as your Lordships can see, to Amendments 29 and 78. They are concerned with the provision of legal aid in the appeal system in the tribunals. I have other amendments set down which I hope will address what I consider to be a very important part of our deliberations: how do you provide advice and assistance to people before they ever get into the tribunal system? When they are faced with a problem and they want a resolution of it, to whom do they go? I have amendments down which will deal with that part of the matter.
It seems to me to be a fundamental principle that if you get to the Second-tier Tribunal and then to the appeal courts beyond that and if, as will undoubtedly happen, the Government are represented by counsel and solicitors ready to argue the point in front of those experienced tribunals, under the principle of equality of arms, which is a very important principle under the European Convention on Human Rights, it is very important that the applicant—or appellant, as he will have become—should be fully represented as well. It would be quite improper, wrong and a breach of the convention if we were to have litigants in person in front of the Second-tier Tribunal and beyond seeking to put their case forward and to argue law as well as fact.
I sometimes have the feeling that the Ministry of Justice is living in the past. At one time, when the tribunal system was set up, it perhaps—I am not convinced of it—did not require experience, skilled advocacy and the putting together of a case. However, with all the legislation going through that my noble friend Lord Phillips of Sudbury is concerned about and with the new Bill on welfare law, it is clear that there are going to be some very important issues of law to be discussed at that level. Therefore it is quite simply a statement of principle in Amendment 2 and of practicality in the two other amendments to which I have referred that I urge upon your Lordships for your consideration. Equality of arms is vital to justice, and nowhere more so than in the field of welfare law. I beg to move.
Lord Newton of Braintree
My Lords, I shall intervene briefly. My remarks, such as they are—I hope they will not be long—apply also to quite a number of other amendments for which I shall not be able to stay, some of them in the name of the noble Lord, Lord Bach. At Second Reading, I indicated that I have a lot of sympathy with many of these concerns, not least those in the field of welfare, for exactly the reason that my noble friend Lord Thomas of Gresford has just outlined. At one and the same time, we are passing—or the Government are proposing that we should pass—significant changes in the welfare area affecting hundreds of thousands of people and we are seeking to reduce the scope for people to have legal aid or support of one kind or another in challenging some of the decisions that will then be made. I think I referred to it at Second Reading as a sort of pincer movement in that respect and I see no reason to change that judgment now.
That leads me to make two or three points. First, we really need something that we have not had, which is a combined impact assessment of the effect of the various pieces of legislation on poor and vulnerable people. We have not had it. This is not joined-up government and it is very difficult to make a judgment about what we collectively as a Parliament are doing to these people in those circumstances. That is aggravated by what has been acknowledged in this debate, which is that the Government do not know—I do not know whether the Minister will accept these words—what the financial effects of these measures will be, although we all know that there will be effects in increasing costs for other departments. The Government say that they cannot quantify them but I do not think that they would deny that they will be there. If they cannot quantify them, but cannot deny that they will be there, the savings figures are potentially meaningless.
Even within the Ministry of Justice, which I assume has costed the consequences, the extra costs of claimants, litigants and appellants defending themselves will almost inescapably drive up the costs of the Tribunals Service. Has that been measured? Is it taken into account in these savings figures? These are the questions to which we have to have answers. I do not want to see these amendments pressed to a Division tonight any more than I did the previous one, but they enable us to say that we need to know what we are doing before we can make a judgment in these matters.
I cannot stay for too much longer for reasons which I hope the House will understand but there are all sorts of things that one could say. Mediation was referred to earlier as well as alternative forms of advice in one way or another. Again, we need to know just what the position is. I should make the point that mediation has absolutely nothing to do with social welfare. You cannot have mediation about whether you are entitled to a benefit or not. You either are or you are not, although I accept that mediation may have a part to play in some other areas about which we are concerned.
In any event, we keep hearing talk about more cost-effective ways—I do not know the exact phrasing—of assistance, advice and so forth. But as has been said and as was illustrated in the debate on the CABs not much more than a week ago, most sources of advice are being squeezed either by this Bill—for example, the effect on law centres and other advisory services depending on pro bono work or legal aid work from lawyers—or by the squeeze on local authorities, which is putting the bite on CABs. We then hear talk about this, that or the other amount of money being available, but it is far from clear whether the Government know whether the availability of other forms of advice is going up or down and whether the measures will have any significant effect in either direction. We need to know more about all this before we can make a sensible judgment. I am very grateful to my noble friend for having raised this issue, even though I hope that he will not press it further tonight.
Lord Bach
I agree with the noble Lord and I shall say a little word about that before I sit down.
Admirable work has been done in the First-tier Tribunal to make it as friendly as one can. However, it is impossible—and the Minister has heard this from around the Committee today—to square the circle in that those tribunals still fundamentally are ruling on matters defined and decided through laws, rules and guidance, which is sometimes pretty heavy, that often carry criminal sanctions if violated. It is quite clear when one looks at official statistics on the First-tier Tribunals that the Government are wrong when they say that tribunals can be accessed without advice. You are twice as likely to win an appeal if you have had some basic advice rather than no advice at all. The Minister's team has kindly provided information that allows us to quantify the increase in likelihood of winning an appeal if the appellant has been advised. This is to the First-tier Tribunal. For some types of cases, such as employment support allowance, you are more than twice as likely to win. Given that it allows people to return to work, seeing thousands of cases that would have been won with advice is surely wrong headed.
Lord Thomas of Gresford
Rather than saying that cases would have been won, would the noble Lord not use the expression “gained access to justice and obtained the benefits to which they were entitled”?
Lord Bach
In my legal career and otherwise, I have always given way to better phrases used by Welsh lawyers and certainly by the noble Lord, Lord Thomas of Gresford, and I do on this occasion too. Access to justice is rather important because you cannot win if you do not have access to justice. One of the worries is that the Bill will ensure that there is no access to justice for many who have had it up until now.
The reason for marked disparities is that appealing on welfare benefits inevitably requires, as my noble friend Lady Lister and the noble Lord, Lord Newton of Braintree, have just mentioned, an understanding, whether we like it or not, of complex statutes and rules and guidance that govern how the state evaluates an individual's eligibility for legal aid. Had legal aid not been present in 2009-10, if we apply the success rate for those without advice to those who did receive advice, 51,223 people in total would have lost their appeals. The long-term cost of supporting those people is incalculable. Never mind Second-tier, Court of Appeal and the Supreme Court; to take out of scope advice on a review to the First-tier Tribunal is unfair and wrong.
The effect of people not being able to exercise their rights is again frankly explained in the Government's own impact assessment. The Government say that the changes may lead to:
“Reduced social cohesion … Increased criminality … Reduced business and economic efficiency … Increased costs for other Departments … Increased transfer payments from other Departments, in particular higher benefits payments for people who spent their savings on legal action”.
In welfare benefit cases, it is not enough to have legal aid at the Second-tier Tribunal upwards. In fact, if you do not have it earlier you are unlikely to ever get to the Second-tier Tribunal or above. Advice is needed when seeking to review, for example, DWP decisions before the First-tier Tribunal. It does not have to be expensive or sophisticated legal advice, but it has to be legal advice.
If advice is given at that stage, hopeless cases, as has been said, can be got rid of. First-tier Tribunals would not be so clogged up in the future. The Committee will remember what Judge Martin of the Social Entitlement Chamber said about unrepresented defendants—that at least 10 per cent of time is wasted in explaining what is going on. Proper cases can therefore go ahead quicker. In particular, many legal issues can be sorted out by the advice that is currently given so that the wrong can be put right before the tribunal ever gets involved.
That is what the present system does, although not perfectly. Lots of people do not take advantage of it and sometimes it does not work, but more or less it works pretty well. People get their advice, which frankly does not cost very much money and lawyers certainly do not get rich on it. The truth is that many cases no longer have to go anywhere near a tribunal. It does not encourage courts or tribunals: it actually avoids courts and tribunals. That is why it is slightly ironic that the Lord Chancellor said today in his Guardian article that legal aid’s,
“broad scope means that problems are dragged straight to the courtroom that could often be solved earlier and more simply elsewhere”.
That comment is not his finest: I would go so far as to say that it is rather absurd. The type of legal aid that he seeks to abolish is exactly the type of legal aid that he should be encouraging and reinforcing because it avoids courts and tribunals rather than encouraging them. In fact it often has some sort of mediating effect, and we know that mediation is an important and proper part of the Government's policy in this field.
The Minister has described himself today as a social democrat and someone who has a copy of The Rule of Law by his bed. If he is a person of that sort, he must see the argument that has been put in the Committee tonight.
Lord McNally
This is another moment in history. I have been heckled for mispronunciation by the noble Lord, Lord Prescott. I stand corrected. The exceptional funding scheme will provide an important safety net for cases in which an egregious inequality of arms would lead to an obvious and unlawful unfairness in proceedings.
We have had to make difficult choices about legal aid. Our reforms to the scope of the scheme are designed to refocus civil legal aid on the most serious cases in which legal advice and representation is justified. In social welfare law, education and immigration, we are reducing the availability of legal aid; but it will remain for cases with the highest priority, and we will continue to spend £50 million on social welfare law.
As I said in the other debate, I realise that noble Lords will want to study some of the things that I read out at speed while referring and cross-referring to parts of the Bill. I think my noble friend indicated that he will withdraw his amendment, and I hope he will, although I am making no promises of massive change. One of the crunch parts of this Bill as it passes through the House will be whether we rightly judged which areas we are withdrawing from the scope of legal aid. The Lord Chancellor and my colleagues in government are confident that we have made the right decisions, hard as they have been in some cases; so, as I say, I hope that the noble Lord will, at this stage, withdraw his amendment.
Lord Thomas of Gresford
My Lords, I thought I detected in the last few sentences the possibility of some movement in this area, but despite that the final sentence was a killer. I am very disappointed with my noble friend’s response to what I considered to be an overwhelming case. If you cannot get legal aid for the Second-tier Tribunal, the Court of Appeal and above, as of right, we really are in a very parlous position. I assure my noble friend that I shall press him on these matters in the future. I thank all noble Lords for their participation in this debate and say to your Lordships that the state in Amendment 2 is widely defined to include local authorities, government organisations and so on. That is quite well understood when we deal with the concept of equality of arms.
While I listened to my noble friend’s summing up, I was reminded of the one person I know quite well who appeared as a litigant in person in the Divisional Court and won—my noble friend Lady Walmsley. The authority concerned went to appeal, where she was represented by a leading counsel, who is now a High Court judge, and by my son, who is a Queen’s Counsel in his own right, and lost. Fortunately her costs were all paid by the authority concerned. It takes an exceptional person to be able to take a case before a judge as a litigant in person and argue it through. The Government have underestimated just how exceptional that person has to be. For the moment, and subject to what I shall say at a later date, I beg leave to withdraw this amendment.
Justice: Pre-trial Publicity
Lord Thomas of Gresford Excerpts(13 years, 6 months ago)
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Lord McNally
My Lords, I think that the response to the noble Baroness’s question reflects concern in all parts of the House about this matter. There are a number of problems with the operation of the contempt laws which are set out in detail in the Law Commission’s Eleventh Programme. Since 1981, when the Contempt of Court Act was enacted, the world of publishing has evolved considerably in terms of technology and the structure of the media, and the internet is now a significant influence in this area. That is why we have referred the matter to the Law Commission. In no sense should this be taken as our kicking it into the long grass or as the Attorney-General not appreciating the real public concern about these matters.
Lord Thomas of Gresford
My Lords, some in the press take a gamble with pre-trial publicity that the suspect will be charged and convicted, after which there will, of course, be no proceedings. In the McCann and Jefferies cases, they then became completely contrite and settled the claims without any question. Should they not lose a day’s edition as a result of circumstances as bad as that? Can we not have measures that will really bite on the press when it goes astray?
Lord McNally
My Lords, my noble friend’s idea is an interesting one. I understand—just a thought—that an editor has not been sent to prison for contempt since 1948. The Attorney-General, who has been alive to this matter, said in a lecture at City University on 1 December that, in his opinion, the press has been pushing at the boundaries and in a sense has subtly been seeking guidance on what is acceptable. I hope that the Attorney-General’s action has given it suitable guidance that we take this matter very seriously.
Public Bodies Bill [HL]
Lord Thomas of Gresford Excerpts(13 years, 7 months ago)
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Lord Maclennan of Rogart
My Lords, I join my noble friend in expressing appreciation of the way in which our colleague and noble friend Lord Taylor of Holbeach handled this Bill at an earlier stage. His careful consideration of the points that this House was making has considerably enhanced its quality. I do not dissent from the view that the Bill was ill-considered when it first reached us. Indeed, it is an exemplification of the point made by a number of committees of this House on the necessity for pre-legislative scrutiny in matters of such importance.
A change that is particularly welcome is the nature of the scrutiny of the orders that will be brought forward in secondary legislation in consequence of the Bill. I am happy to see that that has remained, enabling further consideration to be given to some of the particular proposals. I am also glad that the Government have given further thought to the future of S4C and have included in the Bill a duty requiring the Secretary of State to ensure that sufficient funding is available. There was widespread concern in Wales that the original proposal would result in a serious contraction of Welsh language broadcasting. It is to be hoped that this change, which I gather has been welcomed all round, will remove that anxiety.
The RDAs were a particularly remarkable happening which, like the changes, were introduced even before the legislation was before the House. It is too late to cry over that spilt milk, but it may be said that the work done by the RDAs, including scrutiny of the European Union regional development funding and where it should be directed, must be done with effectiveness. I hope that the new arrangements for that will be reported with openness and frequency to enable Parliament to consider how successful those changes have been. On the face of it, they were rather remarkable changes to have been made without much prior consultation. What happens to European funding in particular is not a matter that is considered only by us, but will be considered by European Union institutions to see whether the money has been properly spent.
This House has proved its effectiveness and capability, its broadness of vision and its particular knowledge in preparing to tackle some of the outstanding problems that the Bill generated. I cannot think of legislation that has been given more careful or extensive attention that the one before us today. That it was worth while is manifested by the amendments that my noble friend has announced, and which were broadly approved in another place, and which by and large—indeed, almost universally—are to be welcomed. I hope, however, that such legislation will never be introduced again so soon after a general election, bouncing Parliament into decisions of such fundamental importance over such a broad spectrum of our national life.
Lord Thomas of Gresford
My Lords, I would like to underline what my noble friend has said about Sianel Pedwar Cymru. It has caused considerable delight in Wales that the Welsh authority will now have the funding from the Government without compromising the status and editorial independence of the channel, which gives so much entertainment in Wales.
Lord Berkeley
My Lords, could I ask the Minister to explain further the purpose of Amendment 55, which adds Dover Harbour Board to Schedule 5? It is a bit extraordinary to include one port from among 120 or so in this country, most of which are trust ports. I declare an interest as a commissioner of a trust port in Cornwall. Why add one port to a list including the Environment Agency, British Waterways Board and all these other bodies that we have debated, on the basis that the local MP thought that it was a good idea? Is this a precedent for local MPs around the country to come up with ideas for privatisation or mutualisation of their ports, and to come before the Ministers saying “Let us add this to the list and have fun”? As the Minister said, there is a perfectly good route for privatisation of ports in the Ports Act 1991. I would be grateful if he could explain the purpose behind this amendment.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Thomas of Gresford Excerpts(13 years, 7 months ago)
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Lord Thomas of Gresford
My Lords, one of the three great universal lies is, “I am from the Government and I am here to help you”. I assure my noble friend Lord McNally that we are from the Liberal Democrat Benches and we are here to help him. I hope that by the time we have finished this process that will not turn out to be the fourth great lie.
Many aspects of this Bill are very welcome. The sentencing provisions demonstrate the enlightened views of the Lord Chancellor, who sees great merit in improving the system of retribution and reform by community sentences, not to mention the many millions of pounds that it will save in keeping offenders out of our great universities of crime. One client said to me not so long ago—he was a man of excellent character before he went to prison—“I don’t need to work again. After what I’ve learnt in here over the last six months, my future is made”, so that is one less on the jobless list. It is true that in this Bill the old devil is peeping out from the provisions for mandatory sentencing, but we shall deal with that in Committee. My noble friends Lord Dholakia and Lady Linklater will speak further on these matters shortly.
Once again, parts of this Bill have not been debated by our elected representatives and have passed through on the nod. I single out particularly the new crime of squatting. Are current civil powers of kicking out squatters and letting them go on their way not enough? Must we punish the homeless with fines and imprisonment as well? My noble friend Lady Miller of Chilthorne Domer, who wished to make this point today, is unhappily not with us but she will address this issue in Committee. This is certainly not hating the sin but loving the sinner; it is hating the sinner because of the chaotic person he usually is.
I declare an interest in that over the past 50 years I have made my living from legal aid, and I am proud to say so. The system has been due for revision and change for some years. It is a basic principle that:
“In the determination of his civil rights and obligations—
a person who can afford it—
“is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.
I am sorry, I made a mistake; Article 6 of the European Convention on Human Rights actually states that “everyone” is entitled to a fair trial.
The legal aid provisions of the Bill are not designed to increase access to justice; they are meant to save money. That is fair enough. Those lawyers who have grown sleek and fat on the rich pickings of advising the sick, the disabled, the unemployed, the homeless and the immigrant have no need to go to WeightWatchers; they can now slim effortlessly. The matrimonial courts and the welfare and immigration tribunals of this country will resound not with the arguments of dry-as-dust lawyers any more, but with the arguments of good, honest, grievance-holders who will present their concise cases with style and precision and smoothly win their way to justice. Those of us with practical experience of the court system have just the smallest hesitation in applauding.
In welfare, immigration and benefit law, one principle stands out, and it is a principle to which my noble friend Lord McNally referred in his opening remarks—that of equality of arms. There has to be equality of arms between the state and its offshoots and any person in dispute with the state. At the very least that requires legal advice, assistance and advocacy in the Upper Tribunal on appeals from the social entitlement and the immigration and asylum chambers of First-tier Tribunals to the Upper Tribunal and appeals from there to the Court of Appeal and the Supreme Court. It also means a focus on better decision-making at first instance in these areas and a far less adversarial and more co-operative climate where litigants appear in person in front of First-tier Tribunals.
For the moment, I shall say little about areas of law that are removed from the scope of legal aid, save that the argument to retain clinical negligence within scope is, in our opinion, overwhelming. The Lord Chancellor takes power to remove further areas of the law out of scope, but takes no power to return into scope those areas where, as we reluctantly predict, the courts and tribunals will quickly grind to a halt.
I must make this point too; we on these Benches are not committed to smaller government, and when the economy improves we will look to ensure that access to justice in all areas is guaranteed. However, if financial necessity demands savings, it is essential that advice services to the public are fully supported. My noble friend Lord Shipley will expand on that, but it seems to me that if the Government are stipulating that the only gateway to legal aid is initially through the Community Legal Advice helpline, they should think again. The legal advice centres, citizens advice bureaux and other voluntary advice organisations, whose very existence is threatened by the cuts in legal aid, are a national resource not to be lightly cast aside. Rather than expanding the CLA helpline, the Government should fund these organisations to use their considerable expertise and local knowledge in providing the independent telephone and e-mail advice, which will certainly be required.
In the course of the Bill, I intend to focus on the changes promoted to conditional-fee agreements and after-the-event insurance in Part 2 of the Bill. My noble friend Lord Phillips and I were hotly opposed to the alterations contained in the Access to Justice Act 1999 on the principle that a lawyer ought never to have a financial interest in the outcome of a case. I shall table amendments to continue that fight against the creeping advance of third-party litigation funding, which used to be called maintenance and champerty, to introduce regulation into a completely unregulated field.
However, we have to sort out in the present provisions of the Bill not only the principle of whether the success fee and after-the-event insurance premium should be deducted from the damages of a claimant who has been injured by the negligence of the defendant, but the uncertainty introduced by the proposals for qualified one-way costs shifting, to which the noble and learned Lord, Lord Davidson, referred. The unintended consequences of the present proposals include much more satellite litigation: the destruction of after-the-event insurance in claims other than personal injuries, such as in environmental law where we have international obligations under the Aarhus convention, and in other complex and different cases where the ordinary man faces an industrial or commercial giant or the intransigence of local authorities. The concept of abolishing referral fees is to be welcomed, but it is another area that must be fully explored and the real abuses rooted out.
We are here for the long haul, and in Committee and at later stages we shall wish to put many things to the noble Lord, Lord McNally. We look forward to those stimulating encounters.
Coroner Service
Lord Thomas of Gresford Excerpts(13 years, 8 months ago)
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Lord McNally
A Government is allowed to look at an issue, examine widely, listen, consult, and then make a decision in the context of the financial circumstances it finds at the end. My right honourable friend the Lord Chancellor has decided that the immediate appointment of a chief coroner is not justified in the present circumstances. After listening to the various representations, we left the title of chief coroner in Schedule 5 to the Bill when it returned from the other place, and that will allow this House, the other place and the outside organisations to judge whether we are still able to carry through the bulk of the 2009 Act without the chief coroner. We believe we can, and by our deeds you can judge us.
Lord McNally
The Coroners and Justice Act 2009 provides for the Lord Chancellor to issue statutory guidance about the way in which the system operates, specifically in relation to bereaved families. We plan to revise the charter when we implement the coroner provisions in the Act and at that stage we will give the revised charter the status of statutory guidance.