Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) (No. 2) Regulations 2019

Debate between Lord Thomas of Gresford and Lord Beecham

Monday 18th March 2019 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, this is a necessary rectification of the earlier regulations. Subject to what has already been expressed, we have no objection to it.

[Lord Beecham (Lab)]

My Lords, I join my colleague in the House of Commons, and others in your Lordships’ House, in welcoming these amendments which meet concerns raised by family law practitioners, as mentioned in the Explanatory Memorandum. They were concerned about the prospective narrowing of the jurisdiction for financial remedies and the type of remedies which would be available.

This raises the question of what consultation took place before paragraphs 14 and 16 of the EU maintenance regulation were originally amended. To be fair, the Government have been persuaded by family law practitioners that the concerns raised were valid, hence the revised amendment in this statutory instrument, but surely adequate consultation in advance of drafting it would have avoided the need to amend it. What consultation, if any, took place? What assurances can the Minister offer that this scenario will not be repeated?

This is not quite the MoJ equivalent of the fantasy ferry projects subscribed to by the former Lord Chancellor, Chris Grayling, but it is rather disturbing. It comes, after all, only some seven weeks since the original regulations were approved by both Houses, and just over four weeks since they came into force.

The Law Society is content with the changes, which effectively revert to the relevant Hague conventions and some English law extant before 2011. I am glad that the Government have recognised the problem, just about in time, and made the necessary change. However, it underlines the need for proper consultation before laying new regulations to comply with the fate which appears to await the country.

Services of Lawyers and Lawyer’s Practice (Revocation etc.) (EU Exit) Regulations 2019

Debate between Lord Thomas of Gresford and Lord Beecham

Tuesday 15th January 2019 Lords Chamber

[Lord Thomas of Gresford (LD)]

I congratulate the Minister on his timing. This is part of the no-deal preparations along with the fake travel jam, the lorry jam in Dover and the hiring of ferries with no ships, but it is a bit late now, with about half an hour to go to the vote, to frighten the horses any further. It is extraordinary that parliamentary time should be spent in debating a statutory instrument of this nature. It is applicable only if the UK leaves the EU without reaching an agreement. The effect of that is to throw the United Kingdom on to World Trade Organization rules for general agreement on trade and services.

If that were to happen, the most-favoured-nation rules would come into operation prohibiting preferential treatment of any signatory state above another. The whole purpose of this statutory instrument, therefore, is to reduce EU and EFTA lawyers currently practising in this country to the level of the lawyers of third-party countries from around the world whose rights to practise and establish in England, Wales and Northern Ireland, absent a trade deal, are absolutely minimal, if they exist at all. As the noble and learned Lord said, this SI affects about 700 lawyers currently registered with the Solicitors Regulation Authority, 17 registered with the Bar Standards Board and some five EU lawyers registered in Northern Ireland. The other side of the coin, however, which would be of concern to the legal profession, is that the EU will obviously seek reciprocally to reduce the rights of United Kingdom lawyers practising in the EU to those WTO rights.

One of the most important differences between the WTO regime and the existing EU framework is the practice areas in which foreign lawyers are allowed to provide services in Europe. While the directives allow EU, EEA and Swiss lawyers to practise host member state law, including EU law, it is not possible under the current GATT schedule for commitments of the EU, which limits third-country lawyers to providing legal advice in home-country law and public international law, to practise in EC law.

While it is possible in theory for individual member states to grant higher levels of access to foreign lawyers, in practice most member states have not gone beyond these GATT commitments. It follows, therefore, that British lawyers will lose a number of significant rights: rights to provide legal advice on EU law; the right to requalify in host member states; and rights of audience in domestic and European courts. Further, according to the settled case law of the CJEU, lawyers from third countries practising in Europe cannot claim legal professional privilege to protect their clients’ interests. Legal professional privilege is not available to them.

It is not surprising, then, that in 2016 the Law Society of Ireland received nearly 1,400 applications from practitioners to requalify in Ireland. Those were British lawyers, mostly from antitrust, competition or trade law practitioners, based in London or Brussels. Last week the Irish Taoiseach specifically said that they were looking at Ireland taking business in legal services away from the United Kingdom. This statutory instrument, therefore, risks unnecessary conflict with the EU legal profession. There will be no reciprocity. Even if there were a no-deal withdrawal from Europe, surely there would have to be an agreement to retain an open market for legal services allowing mutual rights to practise across the borders. You will see no trace of that in the political statement that accompanies the withdrawal agreement. As the noble and learned Lord, Lord Thomas of Cwmgiedd, pointed out last week, we are in a competitive position. Commercial courts where the proceedings are conducted entirely in English have opened up already in Paris and Amsterdam. The noble and learned Lord said that they are being actively promoted as a much better alternative to the United Kingdom because their judgments will be recognised and enforceable across the EU and because of the certainty of their position.

If the EU does unto us what we are doing to it by this statutory instrument, British lawyers will have no rights of audience in these new English-speaking courts. That is a most curious result. Instead of spending time abolishing the rights of European lawyers to practise in this country, the Government might spend time in negotiating mutual rights to practise to replicate the current position. There is nothing, as I have said, in the political declaration that points to such negotiations. I ask the noble and learned Lord: where are we? Have there been any talks on this issue?

[Lord Beecham (Lab)]

My Lords, I refer to my professional interests, although my firm has not been engaging in EU law. I want to thank in particular the Law Society and the Bar Council for very helpful briefings on an important and complex issue. The provisions of the statutory instrument appear to be acceptable, inasmuch as it will still be possible for EU-registered lawyers to be admitted to the solicitor’s profession or to practise under their home title. Can the noble Lord give any indication of the numbers—the proportion of those whom we have heard are already practising in this country who would be likely to continue under this new regime? Is there any estimate of the impact of the change on the likely numbers of those who will be able to continue? What estimate have the Government made of the impact on UK lawyers currently practising in the EU? Is there any information about the likely impact on them? Can the Minister clarify what is meant by the reference in the Explanatory Memorandum to the,

“alternative examination routes open to third country qualified lawyers”,

and indicate how many applicants are expected to take that course of action? What will be the position of EU lawyers currently engaged in litigation in the UK who do not choose to be admitted to the UK professions by the end of the transitional arrangements on 31 December 2020? Will they, for example, have to withdraw from cases still under way on that date?

Crime and Courts Act 2013 (Deferred Prosecution Agreements) (Amendment of Specified Offences) Order 2018

Debate between Lord Thomas of Gresford and Lord Beecham

Wednesday 9th May 2018 Grand Committee

[Lord Thomas of Gresford (LD)]

My Lords, this is a perfectly acceptable amendment to the schedule to remove the anomaly that now exists. It is a moment, however, to consider the value and use of deferred prosecution agreements. As the noble Baroness pointed out, only four such agreements have so far been approved by the court, and only three of the judgments in those cases have as yet been published. However, those cases have made it possible to find some clear principles that should be applied. Sir Brian Leveson, President of the Queen’s Bench Division, put it this way: a deferred prosecution agreement,

“is a reward for openness”.

The first essential is co-operation with an investigation. The sooner a company comes in and self-reports, the more it has to be rewarded for. The SFO will look at what work has already been done to investigate, how thoroughly it has been done and how data has been dealt with—in a way that does not tip off potential suspects leading them to delete that data altogether. Secondly, the company must be committed to reform. This may mean removing senior staff responsible for the criminality and instituting changes in procedures. The SFO must be in a position to go before a judge and argue that the default position of a prosecution can be displaced in the specific case and that a deferred prosecution agreement is justified. The judge has to give his approval to this.

In the Rolls-Royce case, which is the largest of the cases so far, the judge commented that his first reaction to what was put before him had been that if the company was not to be prosecuted,

“in the context of such egregious criminality over decades, involving countries around the world, making truly vast corrupt payments and, consequently, even greater profits then it is difficult to see that any company would be prosecuted”.

Rolls-Royce had not self-reported, but it co-operated. It was its co-operation that enabled the SFO to take the matter before the court. What the company did report, when tasked with it, was far more extensive and of a different order to what may have been exposed without the co-operation that it provided. I hope that the committee of this House carrying out post-legislative scrutiny of the Bribery Act, which has just been formed, will give an opportunity to examine DPAs and how they should be used with great care.

[Lord Beecham (Lab)]

My Lords, four agreements in between four and five years does not strike me as a particularly impressive figure. I appreciate that the Minister may not be able to answer several questions today, but perhaps she can answer them subsequently by letter. How many cases were considered but not proceeded with? On the four cases to which she referred, what financial penalty was imposed on the relevant companies? In addition to such financial penalties, were proceedings taken against individuals, which is clearly a separate matter? On the companies that were subject to the provisions, what changes may have been made within those companies, assuming things have gone wrong not necessarily with the companies’ full understanding at the time? How many cases have been investigated and not proceeded with, and was such a decision made because there was no case to answer or for other reasons—for example, lack of financial capacity in the company to pay any penalty?

What is the present caseload of the relevant department for these arrangements? Are any cases currently under consideration and, if so, roughly how many? How long will it take for such matters to be resolved? In other words, is there likely to be rather more than an average of one a year in future? If not, are the Government satisfied that the regime is proving effective, and what further steps might be taken to make more use of the provision now that it will be brought up to date?

Crime and Courts Act 2013 (Commencement No. 18) Order 2018

Debate between Lord Thomas of Gresford and Lord Beecham

Wednesday 9th May 2018 Grand Committee

[Lord Thomas of Gresford (LD)]

My Lords, I suggest that it is unwise to introduce this commencement order before the result of the pilots is known. I gather from what the Minister just said that the first pilot ended in March but its findings will not be available until the summer and that there is still a pilot operating within the City of London.

We are familiar with electronic monitoring. It has been used to date to ensure compliance by an offender with the terms of a community order, a suspended sentence or a licence to enable a prisoner to be released. Standalone monitoring of this sort is a significant step further. The proposal is to use GPS tracking to monitor an individual’s movements, not against the prohibitions that will be set out in a court order or on release on parole, but generally. It is therefore highly intrusive, as I think the Minister acknowledged in what she said. It goes beyond what is necessary for rehabilitation or the protection of the public.

That point is perhaps emphasised even more by what we were told: that the monitoring will not be in real time—I think I understood that—but be retrospective. In other words, it is not an immediate form of surveillance but means that a probation officer will look back to see what his client has been doing rather than keep a watch over him. It is perhaps less objectionable if it is not immediate surveillance, but it may be rather more effective to use the resources that will be involved in this new system for rehabilitation rather than for tracking offenders in this way.

If this statutory instrument were brought forward after completion, evaluation and publication of the pilot projects—because we have no idea of the results of those pilot projects—it would be possible to assess whether the right balance has been struck. What are the Government going to do to bring those results before Parliament and give us notice of them? Will they give an undertaking not to seek the approval of both Houses before that is done? Otherwise we are faced with the verdict first and the trial afterwards. We want to know what the trial says so that we can comment on it and see whether this statutory instrument should be opposed when it is brought before the House.

[Lord Beecham (Lab)]

My Lords, we have some experience of monitoring of this kind of a rather unfortunate nature—I am thinking of G4S and its very poor record in bygone years. I wonder, first of all, who is to be carrying out the job: is it going out to tender or are people already lined up for it? Who has conducted or is conducting the trials at present? What is the cost involved in the work that is being undertaken? Is it a matter for the individual authority, probation service or whatever to commission this? What system will there be to get feedback at a national level about the success or otherwise of the scheme as it goes forward?

Presumably the Government will wish to be satisfied with the trials and that the system is working but, of course, we have to take a longer view about its working, not simply that it is mechanically working but that, in time, it is yielding the results that the Government seek for helping people to, if I may put it this way, stay on the straight and narrow and live a responsible life. That will take presumably some time. How long has the current exercise of trying out the system been going on for? Can the Minister enlighten us a little about where that has taken place, how many people have been put through it and with what result? I am certainly not minded to oppose the process but, given the rather unfortunate past regarding similar arrangements, I think there is a need to look very carefully at what is happening and to get a report back in the not-too-distant future. Can the Minister indicate whether there will be an annual review and report of how the scheme is working? That would be helpful both at the national and appropriate local levels, so that we can see the system is working both mechanically, as it were, and in terms of its intentions to help people stay out of difficulty and obey the law. Will there be oversight of that kind and, ultimately, reports about how the system is working in practice?

Neighbourhood Planning Bill

Debate between Lord Thomas of Gresford and Lord Beecham

Committee: 4th sitting (Hansard): House of Lords
Wednesday 8th February 2017 Grand Committee

[Lord Beecham]

I beg your pardon—it is grouped with this on the paper I have here. I will not make that point now but will deal with it when we get to that group. I beg to move Amendment 129A.

[Lord Thomas of Gresford (LD)]

My Lords, I speak in support of the noble Lord, Lord Beecham, on Amendment 129A. I also speak, as a member of the Delegated Powers and Regulatory Reform Committee, to express our surprise that there was no provision even for consultation, with the Welsh Assembly, when proposed changes to an Act or secondary legislation are made. As I understand it, if it is an Act, there would normally be a legislative consent Motion; if it is secondary legislation, a consent Motion. That was the original provision, and I assume it is still the same. The noble Lord, Lord Bourne, fortunately, is an expert in this field.

I can only assume that this is an accidental omission, as I cannot see any policy in it. It seems to me ludicrous that a Secretary of State could, with a stroke of the pen, without any consent in Wales and without any consultation, simply amend the Act. I shall speak further on the clause stand part debate in a moment.

Justice and Security Bill [HL]

Debate between Lord Thomas of Gresford and Lord Beecham

Tuesday 17th July 2012 Lords Chamber

[Lord Thomas of Gresford]

I think that is too narrow a definition of the Pepper v Hart principle. I seem to recollect that when this Bill was first discussed and promulgated, the Government were intending not to use the test of the interests of national security but what was in the public interest. That was thought to be extremely wide. The leader of my party and my noble and learned friend’s party, apparently—at least he claimed—fought for its reduction to the interests to national security. Where the public interest stops and national security begins is a fine line, or perhaps it is a fuzzy one, but it is up to the Minister to give to a judge who has to consider applications of this sort positive guidelines as to what the Government have in mind now they have reconsidered the original purpose of their Bill.

[Lord Beecham]

My Lords, the noble Lord, Lord Hodgson, is too modest in proclaiming that this is a simple amendment, since it goes to the heart of the whole principle of Part 2 of the Bill, which changes—potentially fundamentally—the approach to the operation of civil justice, though not of course criminal justice, in the provision of a system permitting, in circumstances that we are debating, material to be kept from one of the parties and utilised under the closed material procedures.

It is worth reminding ourselves of some of the concerns that have been expressed. I am particularly interested in the briefing submitted by the Northern Ireland Human Rights Commission, as it comes from a part of the country that has confronted security issues to a very considerable degree and has suffered considerable harm over the past few decades from activities that all of us would deplore and which would probably come within the compass of any definition of national security.

Nevertheless, the Northern Ireland Human Rights Commission in considering the Bill proclaimed that it was,

“regrettable that despite some modifications to the proposals in the Green Paper, and the declaration under clause 11 … of the Bill”,

concerning these matters, there remain,

“the risks to the right to a fair trial under Article 6”,

of the European Convention on Human Rights, and Article 14. The commission goes on to say—and this matter was referred to in Second Reading—that the Government have,

“yet to make an evidence based case as to how the current Public Interest Immunity provisions have failed to protect national security interests and therefore why a system of CMPs is needed at all”.

The commission affirms that it would appear that the Government are,

“prepared to sacrifice fair trial protections and wait for litigation to be brought by those alleging”,

a breach of Article 6,

“rather than ensure adequate protection from the outset”.

It advises that,

“the proposals are not likely to satisfy the requirements of Article 6 … in a significant number of cases”.

That is a fairly trenchant critique of the proposals. The commission concludes that the Government have,

“failed to demonstrate the need for the Bill’s provisions … The move from evoking a CMP on public interest grounds to national security grounds has been reported as an acceptable narrowing of the original proposals. Human rights law accepts national security as grounds for qualifying rights. However, NIHRC expresses concern that ‘national security’ remains a broad term that might still be relied on too readily by Government and in a manner that is not consistent with its human rights obligations”.

The briefing refers, as the noble Baroness, Lady Manningham-Buller, referred, to the national security strategy, with its references to pandemic diseases and,

“natural hazards along with increases in organised crime are listed as threats to national security”.

It concludes that the Government are,

“yet to be sufficiently definitive about what it means by national security for the purposes of requiring a court to permit a CMP in a civil case. The risk is that what is now claimed to be a ‘fix’ for a limited number of civil cases”—

and that is the Government’s case; the extent to which it is likely to be limited to very few cases is supported by Mr Anderson—

“becomes a ‘fix’ increasingly relied on by Government to obstruct scrutiny and attempts to seek redress”.

The commission’s are not the only concerns that have been expressed about the issue of definition. In evidence from the special advocate to the Select Committee, Mr McCullough stated that,

“there is the possibility that national security could be very broadly defined, unless some reassurance as to its scope were given. On one view at least, anything, or almost anything, involving international relations might be argued, and one could envisage being argued by the Government, as to have an impact on national security”.

Of course, as has already been indicated, it is not really possible to be definitive about what constitutes national security and what does not. It would be impossible to be conclusive because, as noble Lords have indicated, circumstances change and threats change, and it would be foolish to prescribe a definitive list. The noble Marquess, Lord Lothian, said of national security that you know it when you see it. The question is, in these circumstances, who is “you”? The Government may take a view; others may take a different view. Although these matters are difficult, we have to try to evolve a system that will give some guidance to those who operate the system and, indeed, those who may ultimately have to form a judicial position on individual cases.

--- Later in debate ---

[Lord Thomas of Gresford]

As I understand it, the court did not accept the argument.

[Lord Beecham]

My Lords, I am grateful to the noble Lord for a clear explanation of something which, I am afraid, I approached with complete bewilderment. I simply did not know the point he was aiming at. I do now and I am persuaded by his argument. I hope that the noble and learned Lord will be sympathetic to the case he has made because it is convincing and consistent with the approach to the Intelligence and Security Committee. Given that precedent, I would have thought not that it would damage the interests of the security services, but rather that it would strengthen the role of the courts and uphold the principles that Members across the House seek to maintain in terms of the operation of the justice system. I hope that the noble and learned Lord will accede to his noble friend’s plea.

[Lord Wallace of Tankerness]

My Lords, I am grateful to my noble friend for bringing forward this amendment. He rightly points to two pieces of legislation which govern the security and intelligence agencies, the Security Service Act 1989 and the Intelligence Services Act 1994. As my noble friend has indicated, they place an obligation on each of the agency heads to prevent the disclosure of information obtained by the agencies except on certain limited grounds set out in those Acts. In particular, the disclosure of information is permissible where necessary in the proper discharge of the functions of the agencies. Information held by the security and intelligence agencies will include information and intelligence from human source reporting, and therefore is essential to the agencies’ operational effectiveness and the protection of national security.

As I understand it, the concern behind this amendment seems to be that these provisions would prevent the agencies complying with their disclosure obligations in civil proceedings. However, it is our view that the amendment is unnecessary. The agencies take their disclosure obligations very seriously. In England and Wales, if the claim is a civil damages claim, for example, Part 31 of the Civil Procedure Rules will generally apply. Standard disclosure requires parties to disclose the documents on which they rely—documents which undermine their or another party’s case and documents which support another party’s case. If the claim is for judicial review, all public authorities are subject to a duty of candour which requires the public authority, when presenting its evidence, to set out fully and fairly all matters that are relevant to the proceedings. Naturally, part of considering these disclosure obligations is the question of whether PII should be claimed or, if Parliament passes Part 2 of the Bill, whether the Secretary of State should apply for closed material proceedings. In a case where the agency is being sued for civil damages or someone is applying for judicial review, it is part and parcel of the proper discharge of an agency’s function to defend actions taken in the discharge of its functions. I therefore believe that the amendment is unnecessary.

My noble friend has made reference to paragraph 3(4) of Schedule 1 concerning the ISC provisions. This paragraph reflects a provision in the Intelligence Services Act 1994 which treats disclosure by the agencies to the ISC as necessary for the proper discharge of their functions. It may be asked, as my noble friend did, why this provision is needed there and not in the context of civil litigation. It is simply because it is right to make it clear, as existing legislation does, that disclosure to the ISC is permitted.

My noble friend may well be raising a case where it is a question of third-party disclosure. He mentioned a case of Evans v Ministry of Defence and, on the intervention of the noble Lord, Lord Pannick, I understood him to indicate that that argument did not win the day. It is a case that I wish to consider in the light of what my noble friend has said. If the effect of this amendment would be to treat the disclosure into any civil proceedings, regardless of the identity of the parties or the subject matter of the proceedings, as somehow part of the proper discharge of the agencies’ functions, that would conflict with the agencies’ need and ability to operate in secret. This is vital to maintaining the trust and confidence of those with whom they work; or, as was said in the previous debate by the noble Baroness, Lady Manningham-Buller, information may come from a particular agent, and the secrecy of that is important. I am thinking in particular of proceedings that do not at all involve the agencies and where a request for disclosure is made. It is right that in these circumstances the courts consider whether disclosure would be necessary for the proper discharge of an agency’s functions before an order for disclosure is made.

I have indicated to my noble friend that I will look at the Evans case. Based on what he said, I am advised that it may be similar to and consistent with the arguments that the agencies made in the Omagh bombing case—namely, that Section 22A is a bar to third-party disclosure, and that it was for the courts to decide. I hope that he hears that the agencies take seriously the requirements of disclosure in civil proceedings under Part 31 of the Civil Procedure Rules. On that ground I urge that the amendment is unnecessary and ask my noble friend to withdraw it.

Justice and Security Bill [HL]

Debate between Lord Thomas of Gresford and Lord Beecham

Wednesday 11th July 2012 Lords Chamber

[Lord Thomas of Gresford]

My Lords, the closed material procedure applies when a court is, under Clause 6(1),

“seised of relevant civil proceedings”.

Clause 6(7) defines “relevant civil proceedings” as,

“any proceedings (other than proceedings in a criminal cause or matter) before … the High Court … the Court of Appeal, or … the Court of Session”.

CMP applications can be brought only where a disclosure of material would be damaging to the interests of national security. However, can such applications be appropriate in habeas corpus proceedings or judicial review involving the liberty of the subject or claims for wrongful arrest against the police or prison officers? Not even the United States goes that far. As my noble and learned friend will be well aware, the habeas applications in the Guantanamo cases have a special procedure whereby sensitive material is released to security-cleared advocates acting on behalf of the applicant. Then the court, in such special procedures, can give permission to those security-cleared advocates to discuss specific matters or questions laid out by the court with the client.

In habeas corpus proceedings, the onus is on the respondent to the writ to justify the restraint of the applicant. Blackstone cites the first recorded use of habeas corpus in 1305, during the reign of King Edward I. He explains the basis of the writ in these terms:

“The King is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted”.

I am always conscious of the Magna Carta Lords who look down on our proceedings in this Chamber. At Runnymede nearly 800 years ago, they insisted that:

“No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed”.

Are actions against the police for wrongful arrest to be defeated by secret evidence? Let us take the example of someone arrested on a bus for smoking a fake cigarette. He brings proceedings against the police for wrongful arrest. Those acting for the police go to see the judge in secret and say, “We had a tip-off from the security services. We cannot tell the claimant in this particular case. You must strike his claim out or find in our favour”—or whatever. Is his claim then to be defeated? I suggest that that would be quite contrary to the basis of habeas corpus and the protection of freedom of the individual as we have known it for centuries.

In my submission, the Government should define much more closely the relevant civil proceedings in which CMPs may be applied for. We have been talking all day but only in the context of civil claims for damages brought in the High Court in the ordinary way. We have not discussed habeas corpus and matters of that sort. I suggest that they should be specifically excluded. I beg to move.

[Lord Beecham]

My Lords, I have some sympathy with the suggestion of the noble Lord, Lord Thomas, that habeas corpus proceedings should fall within the civil proceedings provisions of the Bill. I am less persuaded by the argument to include any action against the police. It would probably seem wrong to exclude these specific actions from the procedures, not least in the light of the Crime and Courts Bill, with the creation of the National Crime Agency, the extension of powers to the border agency and the like, and the possible involvement of ordinary police forces under the auspices of the NCA in matters which could go to issues of terrorism or other aspects of national security.

The noble Lord may have a point about habeas corpus and it would be interesting to hear the Minister’s response to that, but I do not think that the Opposition could necessarily support the amendment as it stands. There is the problem that we will refer to later about definitions of national security and the like, which possibly offer a more fruitful way of narrowing the scope of the provisions of the Bill. Having said that, I entirely concur with my noble and learned friend’s view. Anything that I say on subsequent amendments or indeed in relation to this amendment is without prejudice to the stance that we take, but we are yet to be persuaded of the case for closed material procedures in the first instance. All the discussions that have taken place so far, and that we will continue to have in relation to this part of the Bill are subject to that distinct reservation. We are not, therefore, conceding the point when we look to see what ultimate fallback provisions might be desirable and necessary if it is the wish of your Lordships’ House on Report to go forward with the Bill in much the condition that we now find it. We will be looking to discuss amendments and we hope that the Government will respond positively to some of them but in relation to this amendment we will be commending the latter part to the Minister’s attention.

[Lord Wallace of Tankerness]

My noble friend’s amendment seeks to narrow further the contexts in which a CMP can be used. I hope I can demonstrate to your Lordships that the Bill is already very narrowly drafted and that the amendment could remove justice from those who are entitled to it. The Bill as drafted allows CMPs to be used only in relation to information damaging to the interests of national security, only in the High Court, Court of Appeal or Court of Session, and not in a criminal cause or matter.

The amendment would mean that CMPs could not be used in any action against the police or law enforcement agencies, or any action seeking a person’s release from detention. Where such cases involve information that cannot be disclosed for reasons of national security, this amendment would not allow judges to reach a judgment based on all the facts. Claims relating to national security should, surely, be capable of being heard, rather than material being excluded by way of public interest immunity, regardless of whether the defendant is the police or a government department. As was reflected in the comments of the noble Lord, Lord Beecham, the police play a vital role in national security in, for example, counterterrorism investigations. There may be many civil cases which would involve the police—it would not necessarily be directed against a Secretary of State—and it would be unfortunate if they were to be excluded from the possible use of CMPs. Judges should be able to come to a judgment on the full facts in any case relating to national security.

The Bill is designed to increase justice for claimants and defendants in all civil cases where national security means that, otherwise, information could not be put into open court. This amendment would take that justice away from claimants who bring a national security case against the police or law enforcement agencies, or where, as my noble friend explained, the case is about a person’s release from detention. Cases about a person’s release from detention in the UK will generally be in the context of a criminal cause or matter where CMPs are not available, but should this not be the case, it is important that all of the material is before the court, if possible, rather than being excluded by PII.

My noble friend gave a quotation about habeas corpus going back to the reign of King Edward I. I hope that I do not strike too nationalistic a tone, but north of the border, Edward I is not seen as a fount of justice and liberty. That apart, my noble friend raises a serious point. It is our considered view that in the context of habeas corpus cases it is vital that the court is in possession of relevant material before making a decision to issue a writ. Without all of the relevant information, it may not be possible for the court to come to the right decision.

I know that noble Lords are concerned that the nature of the types of cases covered by this amendment creates a greater need for transparency, and that, indeed, in some circumstances, such as proceedings into potential violations of Article 5 of the European Convention on Human Rights, there is a requirement for transparency. The argument that public confidence requires fully open proceedings in such cases is an understandable one, but I believe that these concerns can be addressed through our current proposals. Nothing in this Bill is incompatible with the ECHR. My noble friend has raised a serious point about detention. I will reflect further on it, but our approach is that it is important, even in these cases, that all the material, if possible, is made available to the court before a decision is made, rather than some of being excluded through PII. I will reflect on what he has said, but our view is that we have struck the right balance. I hope that on that basis he will be able to withdraw his amendment.

Crime and Courts Bill [HL]

Debate between Lord Thomas of Gresford and Lord Beecham

Monday 2nd July 2012 Lords Chamber

[Lord Beecham]

My Lords, I reiterate that the Opposition support the thrust of the Government’s policy. We are glad that the Government have accepted the recommendation of the Delegated Powers Committee about requiring the affirmative procedure. We share the Government’s view that it is important to develop understanding of the judicial process and to promote public confidence in the justice system to which, in our view, their proposals would contribute.

The Minister referred to a triple lock. There is, in fact, a quadruple lock because, as she said in the latter part of her reply, the judge or tribunal can determine what can be shown on the occasion of the trial. That is fundamentally important. We all agree with the horror expressed by the noble Lord, Lord Thomas of Gresford, at the prospect of anything like the Norwegian experience being replicated in our courts. It is clear that that would not happen under these proposals. However, I hope I will not be accused of scandalising the judiciary if I point out that it is not necessarily just the parties to a case that might play to the camera. There was a Judge Pickles—I do not think he was related to the Secretary of State of the same name—who acquired a certain reputation for playing not to the camera but to the media during his judicial career and, emphatically, afterwards. I do not think any of our present judges would follow that course. I am sure they would resist the temptation to do so.

[Lord Thomas of Gresford]

I hope that we do not get to the American situation where lawyers come out on to the steps of the court and make submissions about the way the case is going and so on. That is something that the profession should stop. I do not know that it is necessarily a matter for the Government.

[Lord Beecham]

I entirely agree with the noble Lord but, as the noble Lord, Lord Pannick, pointed out, the profession would be in a position to stop that at both levels. It would clearly be very undesirable for that to happen. It is clearly also incumbent on the media to behave responsibly, but we expect that of the media and all too often find them wanting in that respect. However, I think the framework here would be adequate to deal with that situation.

I am caught between two views of Amendment 147ZC. The noble Baroness, Lady Hamwee, would prefer that the word “undue” was removed so that the amendment would read,

“filming shall not be permitted if it would cause prejudice to any person involved in the proceedings”.

The noble Lord, Lord Pannick, would prefer all reference to prejudice to go. That suggests that perhaps my formulation is better balanced than either of the other propositions. Fundamentally, how far to permit broadcasting will be a decision for the judge taking into account the interests of all parties present. We have to have confidence that the judiciary will discharge that duty.

It seems to me that there ought to be some guidelines on the way that this is approached, perhaps embodied with the wording of the amendment or something of an improvement upon it. Perhaps the Government would wish to consider that matter when we come to Report. In the mean time, I think there is broad support for these proposals, which we welcome, and I beg leave to withdraw the amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Thomas of Gresford and Lord Beecham

Monday 23rd April 2012 Lords Chamber

[Lord Thomas of Gresford]

My Lords, there is something ironic in the desire of the noble Lord, Lord Cormack, to maintain legal aid for children as a child might be very much better off pursuing a claim by means of a conditional fee agreement as things stand at the moment. I shall explain.

My noble friend Lord McNally has on two separate occasions during the Bill’s passage outlined fully the Government’s intention to introduce a supplementary legal aid scheme, which was part of the Access to Justice Act 1999, passed by the party opposite, whereby there would be an automatic 25 per cent deduction from the damages recovered by a claimant who is legally aided. As things stand, if a child succeeds under legal aid in obtaining damages, 25 per cent of those damages will be taken by the state under the proposed supplementary legal aid scheme, which will be used to fund other applicants for legal aid automatically. Under a conditional fee agreement, the solicitor who acts on behalf of the child claimant will be entitled to recover his fees, if he can establish the case, from the other side. But when it comes to the success fee, under these proposals, it will be recoverable from the damages of the child and limited to 25 per cent of those damages.

A success fee cannot exceed 100 per cent of the lawyer’s normal fees that he recovers from the other side, so it may never come anywhere near the 25 per cent of the damages that the child recovers. Under a conditional fee agreement, the success fee is related to the amount of the fees, not the amount of the damages. There is not a 25 per cent deduction from the child’s damages automatically. That is just a cap to prevent a success fee from going to an extreme amount. Consequently, it may be that the legally aided child, who will have an automatic 25 per cent reduction of his damages, will be in a worse position than one under a conditional fee agreement. I do not think that that point has properly sunk in. It is for that reason that I look to the Government, perhaps not tonight but at some time if regulations come forward for the supplementary legal aid scheme, to exempt children from the 25 per cent reduction proposed under that scheme. As things stand, 25 per cent will be taken off. For those reasons, I do not think that the amendment proposed by the noble Lord, Lord Cormack, assists the children that he wishes to help.

[Lord Beecham]

If I understand the noble Lord, Lord Thomas, correctly—he is obviously more conversant with the Access to Justice Act 1999 than I am—provision is contained within that Act for regulations to be made—

[Lord Thomas of Gresford]

It was never implemented.

[Lord Beecham]

I was about to say precisely that. It was never implemented so it is open to the Government to lay regulations that would require that 25 per cent deduction. It is equally open to them to do what their predecessors did and not lay such regulations or make that deduction. I am entirely at one with the noble Lord in saying that that deduction should not be made, but that is the situation at the moment.

With respect to the noble Lord, I do not think that his argument takes us very far at all. The Opposition support the amendment proposed by the noble Lord, Lord Cormack, despite the fact that it appears to contain a grammatical error. It refers to,

“clinical services which took place at a time when the individual was child”.

There is an indefinite article missing somewhere. However, that is a trivial point. The substantive point is one that was made effectively by the noble Baroness, Lady Eaton, when we debated this on Report. In the debate on the amendment that was discussed on that occasion, she talked of the figures involved in legal aid expenditure for children. She pointed out that legal aid for clinical negligence claims involving children cost the Legal Aid Fund some £4.6 million, of which £3 million was spent on precisely the cases of neonatal injury to which the Minister referred and to which the Government have responded by restoring them within scope. Therefore, as the noble Baroness pointed out, the net saving would amount to £1.6 million for the Legal Aid Fund.

It is time to dispose of some of the shibboleths about tough decisions and the like. Apparently it is not a particularly tough decision for the Department for Communities and Local Government to spend £250 million on weekly bin collections. It seems to me and to the noble Baroness, Lady Eaton, and presumably the noble Lord, Lord Cormack, a very tough decision to deny legal aid at a cost of £1.6 million to children under the age of 16 who suffer clinical negligence other than through the limited but welcome concession that the Government have made in respect of the injuries to which we have referred.

I also remind your Lordships of the view of the National Health Service Litigation Authority, which I quoted last time and will quote again. It stated:

“We have serious concerns over the proposal to withdraw legal aid from clinical negligence claims. Whilst we have seen an upsurge of claims brought under Conditional Fee Agreements … in recent years, we question whether CFAs are likely to be readily available to fund many of the more serious claims currently brought via legal aid”.

That view was about clinical negligence claims at large. Therefore, one might think that those concerns would surely apply to claims for children under the age of 16.

This does not remotely impinge on the huge problems that the Minister constantly reminds us of in relation to deficit reduction and the like. It is an almost trivial sum of money. By no conceivable stretch of the imagination could it be justified by financial privilege, which is the cover under which the Government approach this amendment. Let us be clear about financial privilege because it has been bandied around today and on previous occasions. Of course the Commons has the right to assert financial privilege, which is an objective process as far as the Clerks and the Speaker are concerned. However, it does not stop there. The Commons can waive financial privilege. If the Government wished for financial privilege to be waived, it would pass almost without opposition and frequently does. It is often waived. The Government choose not to waive it in connection with this and the other matters to which we have referred. It is a fig leaf behind which Ministers hide. I hesitate to convey an image of Ministers brandishing fig leaves; that would be an unwelcome variation on a theme. However, it is a pretty feeble and diminutive fig leaf for any Minister to hide behind. It is not an adequate defence for what they are doing.

I repeat: the figures show that the potential savings are minimal. Undoubtedly, justice will not be accessible for too many young people except in an expensive form potentially through a conditional fee agreement—even allowing for how the noble Lord, Lord Thomas, described it. I very much hope that the House will build on the Government’s welcome concession with this small additional financial burden and extend justice to those who need it.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Thomas of Gresford and Lord Beecham

Tuesday 20th March 2012 Lords Chamber

[Lord Beecham]

My Lords, let me make it clear that I do not for a moment charge the Minister—or indeed the Government—with conceiving of this as in any sense aimed at trade unions. It is a by-product of policy. Let me also remind your Lordships that referral fees are only banned—certainly at the moment, under the terms of this Bill—in respect of personal injury claims. For any other kind of arrangement, referral fees are apparently acceptable—not, however, in the context of personal injury claims.

That really illustrates whence this proposal comes from. It comes from the unacceptable activities of those who have perhaps been promoting spurious claims—and we will come at the next amendment to the kind of techniques that some of these firms and outfits adopt to encourage claims in a way that fosters this myth of the compensation culture. That is the genuine motivation of the Government; what they are doing to deal with it goes too far.

I do not recall having jousted in legal terms with the noble Baroness, Lady Deech, 50 years or so ago when we shared adjoining desks at the Honour School of Jurisprudence, but I will joust a little with her, if I may, this afternoon. She first of all asserts that it would be an incentive for firms not to do the job properly. I do not know what possible basis she can have for saying that. A solicitor’s job is to do his best for his client. In a sense, there are two clients when one is acting for somebody referred by an organisation. Far from it being the case that there is no incentive to do the job properly, there is a greater incentive to do the job properly when one has a connection with a potential source of work—whether there is a referral fee or not —because, of course, one does not just lose and upset one client: one potentially loses a whole stream of work. In fact, therefore, the converse of her proposition is actually true.

The second of the noble Baroness’s points which I seek to rebut is that this deprives people of choice. A union member or a member of a charitable or other organisation does not have to use the organisation that is recommended or go to one that pays a referral fee. They have the same choice as anyone else. But they may choose to rely on their own organisation, trade union or otherwise, having established from its experience that a particular firm or firms are capable of carrying out the work. The choice, however, remains with them. The noble Baroness has been on the website and discovered the Labour Party’s scheme. Let me tell her and the House how much that scheme has raised: nil, nothing, not a penny. It is about as vibrant as Monty Python’s parrot. It is redundant. It is a dead scheme. It has never been activated, so that issue need not distract your Lordships’ House.

Before I conclude, I should make one other point in relation to charitable organisations. The ones I have mentioned operate on a referral-fee basis. There are three of them and I think there may be others, although perhaps that is a little beside the point. I liken the process to another aspect which is certainly something that political parties and many charities operate, and that is an affinity card with a bank, where a percentage of one’s expenditure when using the card goes to the organisation. In precisely the same way that it could be alleged—I think wrongly—that as referral fees increase costs in the legal system, so by definition an affinity card must push up the costs in relation to financial services. It is an analogous situation.

I feel strongly about this—

[Lord Thomas of Gresford]

My Lords, drawing on his long experience, can the noble Lord tell us when referral fees first reared their head? I do not recollect them 20 or 30 years ago. Does he know when they began?

[Lord Beecham]

To the best of my recollection, they have appeared in the past 10 to 12 years. I have not myself been heavily involved in the practice in which I was a senior partner for the past nine years, much to its relief and mine. Having had our debate and despite the pleas of the Minister, I wish to test the opinion of the House.

--- Later in debate ---

[Lord Thomas of Gresford]

Amendment 154YUA would add the need for reports to the amendment moved by the noble Lord, Lord Ramsbotham. Although I welcome the abolition of IPPs, I am still concerned about those who have served their tariff but have not been released. The best way of dealing with that is to keep a very close eye on what happens to them. Under my amendment we would know every six months the number of IPP prisoners remaining in custody after their tariff date has expired, the arrangements made for them to complete their courses, the proportion of such prisoners who have already completed their courses, and the number of outstanding applications to the parole board for release. One would hope that within a foreseeable period, perhaps two years, one would see that there was no need for a report because there were no IPP prisoners left in this category. That is the purpose of my amendment, and I look forward to my noble friend’s response.

[Lord Beecham]

My Lords, I support the amendment in the name of the noble Lord, Lord Thomas. He identifies a useful process and an obligation on the Government to ensure that cases are properly considered and that there is a reasonable way of reporting back on them.

Although I sympathise with the amendment moved by the noble Lord, Lord Ramsbotham, I do not find the content of it particularly persuasive. The amendment would require the Secretary of State to delegate the responsibility for implementing release plans without saying to whom the responsibility should be delegated. That would be odd in primary legislation. The requirement to report within a year of enactment on all cases seems to be too restrictive, given that unfortunately under the previous Government there was a backlog in working with such prisoners, and it is not at all clear how much work would be involved and what resources would be required to deal with the current numbers. It is not really acceptable for the timescale to be in the Bill in this form.

Having said that, if the noble Lord were minded to look seriously at the propositions—and I would certainly commend the thinking behind them if not necessarily the precise formulation that reaches us in the form of the amendment tabled by the noble Lord, Lord Ramsbotham—that could be brought back for consideration at Third Reading. The direction of travel is right but the precise route is somewhat questionable. I hope that the Minister will think sympathetically about the underlying approach of the two noble Lords whose amendments are before the House.

[Lord McNally]

My Lords, we return to the issue of dealing with IPP prisoners. I must say to the noble Lord, Lord Beecham, that I do not think there is any doubt about the direction of travel. I am dubious about whether we need the kind of prescriptions in both amendments. Ministers are here to be questioned by Parliament. I do not think that there would be any problem in finding opportunities to check on progress, but let us see.

The Government, through the National Offender Management Service, have already made significant improvements to increase the supply of rehabilitation interventions for this group. One of the main criticisms of IPPs was that people became trapped in them in a kind of Catch-22; they had to fulfil certain requirements to be considered for release but the facilities and channels to get these qualifications, improvements and records were not there. Better use is already being made of sentence plans to prioritise interventions for existing IPPs where the need is greatest, and work is under way to ensure that programmes can be delivered more flexibly, supporting greater access and the inclusion of offenders with more complex needs such as learning difficulties.

In addition, a new specification for offender management, which will provide for the prioritisation of resources based on risk, will take effect from April 2012. Once embedded, this will result in the improved targeting of rehabilitative interventions for IPP prisoners. We are using a range of measures to improve the progression of these prisoners through their sentence, including improvements to assessment, sentence planning, and delivery and parole review processes.

I wrote to the noble Lord following Committee about the work that NOMS is doing to improve support for these prisoners, and I summarise the key points here. First, we plan to issue a prison service instruction that will require effective and realistic sentence plans to be put in place for all offenders on the new extended sentence and for IPP prisoners already in the system.

On the administration of support for IPP prisoners, there are already appropriate structures in place within NOMS to carry out this work. The Indeterminate Sentence Prisoners Co-ordination Group is the NOMS body responsible for co-ordinating the management of all indeterminate sentence prisoners—that is, lifers as well as IPPs. The group’s purpose is to develop and promote the most effective means of managing this group of offenders and to ensure that resources are directed effectively. For example, the group has mandated work to improve the speed of allocation to open prison and identify ways of increasing capacity in the open prison estate for the IPPs, and has co-ordinated the introduction of a new centralised system for organising their transfer.

On the specific amendment, I should make it clear that, as legislation currently stands, it would not be possible for the Secretary of State to produce or delegate anything other than sentence plans for these offenders that may or may not result in progress to a quick release on licence. Statutorily, only the Parole Board can actually direct the release of IPP prisoners on the basis of risk criteria. Amending that situation would be a substantial change to sentences that have already been imposed and would require primary legislation. In Committee, I made it clear that the Government do not believe that that would be appropriate. On the proposal that such plans should be delegated, I noted that it would be unusual for legislation to go into this type of detail about the administration of executive duties.

My noble friend Lord Thomas of Gresford proposed a requirement for the Secretary of State to report regularly to Parliament on IPP prisoner parole status and interventions. Information on the number of IPP prisoners whose tariff has expired is published in the quarterly offender management statistics published by my department. The Parole Board’s annual report publishes comprehensive data on its IPP application workload and backlog. I must resist the requirement to report on programmes in individual cases, as this would be hugely difficult to achieve. Offender managers will regularly review and update sentence plans.

Our recent research suggests that while the Parole Board will take account of the completion of accredited programmes when considering whether to direct the release of an IPP prisoner, this is only one part of the evidence that it will consider. Research shows that the parole process is targeted on the individual, and only programmes specific to the individual’s needs that are successfully completed and show some impact on the prisoner are likely to be taken as evidence of sentence progression. Simply counting completed courses will not be good evidence of how prisoners in general are progressing.

I hope that I have said enough to reassure the House that we have already put effective measures in place to support these prisoners’ progress towards release while keeping paramount our concerns for public safety. We have not introduced these reforms to the IPP system simply to see them fail. The biggest incentives for making sure that our reforms work are for the Ministers who brought them in, and we will be pleased to be judged by our results. I hope that both noble Lords will withdraw their amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Thomas of Gresford and Lord Beecham

Monday 12th March 2012 Lords Chamber

[Lord Thomas of Gresford]

My Lords, I move the amendment in a probing manner. I am concerned about a statement made by the noble Lord, Lord McNally, in Committee that involves setting up a supplementary legal aid scheme with a proposed deduction of 25 per cent from the damages of people who are supported by legal aid.

So much time has been spent in the course of the Bill in fighting to get areas of litigation back into scope that it is ironic that if those efforts were to succeed and damages awarded in any particular case, they would be immediately subject to a 25 per cent deduction for the purposes of setting up a fund from which other people would receive legal aid. It is a tax on their damages.

The noble Lord, Lord McNally, said in Committee that that was in order to make it no more attractive to have legal aid than to have damages subject to a success fee payable by a successful claimant limited to 25 per cent of his damages to date of trial. There is a difference. The whole purpose of changing the success fee, the burden of payment in conditional fee agreements, from the defendant to the claimant, and for it to be a charge on his damages, was so that there would be competition between solicitors for the business of the claimant at the outset. A solicitor might say, “There will be no success fee payable with me”, or, “My success fee will be limited to 12.5 per cent of the damages, not 25 per cent”. That is a better position than that of a legally aided person, who will have a whole 25 per cent taken out of his damages in any event. When is the supplementary legal aid scheme likely to come into being? I know that there was similar provision in the Access to Justice Act 1999, but under the previous Government it was never brought into effect.

The other matter that concerns me is that the provision could be brought in by secondary legislation under the negative procedure. That would mean that it would be subject to no or very little debate in Parliament and imposed on us. My second concern is to ensure that if such a scheme is to be introduced in future, it should properly be brought under the affirmative procedure so that we have a chance to debate and consider it before it comes before the House for approval.

Those are the reasons why I have tabled the amendment, and I await enlightenment. I beg to move.

[Lord Beecham]

My Lords, this is another case of déjà vu. In Committee, I congratulated the noble Lord, Lord Thomas, on his amendment. He was absolutely right then; he is absolutely right tonight. I hope that, having heard the noble Lord again, the Minister will acknowledge that he has made a very powerful case on both limbs—the principle and the procedure to which his amendments are addressed. I hope that the Minister can give a satisfactory reply that will not lead to those deductions being made, still less by the defective procedure, which, as the noble Lord has amply demonstrated, would be quite inappropriate.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Thomas of Gresford and Lord Beecham

Wednesday 7th March 2012 Lords Chamber

[Lord Beecham]

My Lords, I remain disappointed in that response. There is potentially a huge range of claims that might be made. Some of them are minimal and perfectly capable of being disposed of in the way the noble and learned Lord referred to. Other are clearly of a different order altogether. Negligence advice from a solicitor, accountant, architect or other professional person can be very costly to individuals who may not be able to afford litigation. Even if they recover using CFAs, they will potentially lose a significant slice of the amount they have already lost. I do not think that is just, and it again reinforces the impression that the Government are giving that they are content with, effectively, a two-tier system of justice from which many people will be excluded. It is most unfortunate, but clearly in the circumstances and in the light of the time, there is not much point in seeking to test the opinion of the House. Accordingly, I beg to leave to withdraw the amendment.

[Lord Thomas of Gresford]

Before the noble Lord sits down, I may say that he is developing a very fine line in insulting jibes. I did not hear any mention of Brown in anything that he said in presenting his submission or in his reply.

[Lord Beecham]

I do not quite understand the relevance of that observation. I mentioned Brown. I am sorry if it offended the noble Lord. Mr Brown has offended a great many people.

--- Later in debate ---

[Lord Thomas of Gresford]

My Lords, I moved this amendment in Committee. It is concerned with people who tragically are in a vegetative state and require an application to the court for the withholding of nutrition and/or treatment. I said everything that I needed to say in Committee and I wait to hear what further thoughts the Minister may have had. I beg to move.

[Lord Beecham]

My Lords, I congratulated the noble Lord on moving this important amendment in Committee, where he raised a particularly moving case. I congratulate him on raising the matter again on Report. I hope that the Minister will produce a satisfactory answer.

In Committee I raised a different point—perhaps not as clearly as I might have done—based on advice that MIND provides for patients. The point was not in relation to treatment for a mental health disorder, which of course would be covered by the Mental Health Acts and which the noble Lord, Lord McNally, pointed out would remain within scope. However, there may be a question regarding someone who suffers from a mental health disorder but whose treatment is for a physical problem, not for that disorder. The MIND briefing to patients states:

“Specifically, the laws in Part IV of the MHA on treating people without consent, only apply to treatment for mental disorder. They do not apply to the treatment of physical disorders unless it can reasonably be said that the physical disorder is a symptom or underlying cause of a mental disorder”.

A situation may be arising there in which the provision of legal advice would not be within scope because it is not for treating the mental health disorder.

I appreciate that an off-the-cuff answer might not be immediately available on that point, and I may have got it entirely wrong. However, such a situation strikes me as a possibility emerging from this briefing. So while I would certainly encourage the Minister to endorse the amendment of his noble friend, I would also ask him to undertake to look at the point that I have raised and, if necessary, to bring something back at Third Reading.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Thomas of Gresford and Lord Beecham

Wednesday 7th March 2012 Lords Chamber

[Lord Thomas of Gresford]

Although the organisation questions, it is hardly saying something that is contrary to what I have said. I have said that if everything went wrong and worst-case scenarios arose, the amendment accepted by the Government, which would permit bringing these matters back into scope, would be extremely important.

[Lord Beecham]

It would be extremely important if the Government acted on it. We do not know that they will. While the noble Lord claims credit for the amendment, he was not quite so enthusiastic when it was being debated in Committee at the instigation of this side, but that is a little beside the point. The litigation authority states clearly:

“Overall, we are strongly in favour of retaining legal aid for clinical negligence cases using current eligibility criteria”.

In that phraseology, it echoes the words of Lord Justice Jackson.

Welcome as the government amendment is, they anticipated some discussion about it because they also questioned whether the scheme would cover only cases of the most severe brain damage or whether it would extend also to claims for moderate brain damage and shoulder dystocia, or to children whose mental faculties are spared but who have serious physical disabilities. We know that we are dealing only with a limited number of perinatal cases, as movingly explained by the noble Baroness, Lady Eaton. Again, it would seem that, on balance, the litigation authority, although it welcomes no doubt the progress made so far, would not be content with leaving the situation as it stands.

Of course, the case of Sophie Tyler was very moving. It is interesting that her solicitor said:

“This is an important case which has allowed our client to access justice and secure the lifetime of future care she needs but it would not have been possible without the support of legal aid”.

That is a very important observation. However, there are many other kinds of claim which arise out of different types of clinical negligence and with different effects. While the number of adverse incidents has now risen to 1.15 million, there are some 2,500 clinical negligence claims in what is a called a “serious category”. Of those, 12.5 per cent result in death; 17 per cent lead to unnecessary operations or amputations; 8 per cent lead to damages to nerves or senses; and 2.9 per cent lead to cancer. So 50 per cent of six major categories overall are not of the kind that would be covered by the government amendment.

In these circumstances, it is quite clear that a substantial number of people will not be able to access legal aid. Despite the assertions of the noble Lord, Lord Thomas, it must be questioned whether the conditional fee system would be an answer to that and, in particular, whether that would not in itself increase the costs to the National Health Service.

[Lord Thomas of Gresford]

Perhaps I may point out to the noble Lord, and my noble friend the Minister will confirm this, that I raised the issue of increasing the powers of the Lord Chancellor before Second Reading. If he would like to consult the record, he will see that my amendment, to bring areas back into scope, was tabled on the very first day that amendments could be put down. The amendments put down by the Labour Party were many days after that.

[Lord Beecham]

My Lords, some nerve damage is being sustained by the noble Lord. Let us, however, concentrate on the issue, which is rather more important than claiming credit for amendments; namely, the future of patients who undergo clinical negligence and who have claims. We have heard much talk about equality of arms in litigation. I fear that what the Sophies of this world may face is more akin to a farewell to arms. That is the danger we face if legal aid is not extended.

There is a hierarchy of amendments before us tonight. Of course I endorse the Government’s amendment, as far as it goes. Equally, we support the amendment of the noble and learned Lord, Lord Lloyd. However, for us the best amendment—because it effectively embraces both the others—is that tabled by the noble Baroness, Lady Grey-Thompson. We wish her well should she decide to test the opinion of the House at an appropriate moment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Thomas of Gresford and Lord Beecham

Wednesday 1st February 2012 Lords Chamber

[Lord Thomas of Gresford]

I am sure that my noble friend would agree, however, that protective costs orders are matters of discretion for the judge who hears an application, and that the threshold is extremely high. In his particular case, he obviously advanced matters of considerable public interest that were much wider than only the issues in the litigation that affected his clients. So a protective costs order can be applied for in such cases. However, I was involved in the case following the flooding of houses at Aberfan that occurred as the result of the spoil banks placed there after the disaster. In that sort of case, where individual householders were affected, protective costs orders would not have met that threshold.

[Lord Beecham]

My Lords, at the risk of being accused of unqualified one-way sycophancy, I must again congratulate the noble Lord, Lord Thomas, on the clarity of his presentation of this complex issue. Although I somewhat dissociate myself from the preamble to the substantive part of his speech, I entirely concur with his amendments. At this stage, I should also express my thanks to the learned counsel whose advice has instructed me in a matter about which, hitherto, I knew nothing. Aarhus meant absolutely nothing to me up till now. It seems that I may have shared that failing with Her Majesty's Government. We shall see from the Minister’s reply whether that is a correct inference or not.

The noble Lord referred to the ClientEarth case in which the Aarhus Convention Compliance Committee observed that the cost rules pertaining in the United Kingdom placed it in systemic breach of Article 9.4 of that treaty. The committee concluded that we had not as a country adequately implemented our obligation to ensure that procedures are not prohibitively expensive. Counsel's opinion, to which the noble Lord referred, identified two particular issues. The first is that of uncertainty. The second is the sheer amount of the defendant’s costs that might fall on unsuccessful claimants. The noble Lord referred to the case of Barr and Biffa waste company, which arose from a complaint about odours emanating from a landfill site, where the costs were indeed nearly £3,250,000.

Lord Justice Jackson has much to say about those issues. His remedy is, as the noble Lord pointed out, a move to qualified one-way cost shifting. He gave six reasons for his conclusions, which are germane to the thrust of the amendments. He said:

“This is the simplest and most obvious way to comply with the UK’s obligation under the Aarhus Convention in respect of environmental judicial review cases”.

He continued:

“For the reasons stated by the Court of Appeal on several occasions, it is undesirable to have different costs rules for ... environmental judicial review and... other judicial review cases”.

His third reason was that the requirement for permission,

“is an effective filter to weed out unmeritorious cases. Therefore two way costs shifting is not generally necessary to deter frivolous claims”.

They simply do not arise. His fourth point was that,

“it is not in the public interest that potential claimants should be deterred from bringing properly arguable judicial review proceedings by the very considerable financial risks involved”.

He pointed out that:

“One was costs shifting in judicial review cases has proved satisfactory in Canada”.

His final point, which goes to the issue raised by the noble Lord, Lord Lester is that the protective costs order regime,

“is not effective to protect claimants against excessive costs liability. It is expensive to operate and uncertain in its outcome. In many instances the PCO decision comes too late in the proceedings to be of value”.

So with respect to the noble Lord, the protective costs order regime is not, in the view of Lord Justice Jackson, an answer to the difficulty.

--- Later in debate ---

[Lord Thomas of Gresford]

My Lords, before the noble Lord does what he is going to do with his amendment, I just make one comment. He said that the Minister was on his own. When I was a young solicitor, I would have given my eye teeth to secure some union work. I did some at the Bar, but it was very difficult in a small firm to compete with a large firm, as I am sure the noble Lord will agree. If I thought I had to pay money to the union to get their work, that would have made it considerably worse. The money that is paid to the union by the lawyer is ultimately reflected in the hourly rate that the lawyer charges to his client—it eventually falls on the client, or on another client. It is not just disappearing or being absorbed by the large firm.

[Lord Beecham]

Not all firms are large firms, and it will not surprise Members to know that my firm was not—and is not—a large one. However, we have had that kind of relationship. The profitability of firms conducting litigation of this kind is not high in any event, even without the question of referrals. I do not think that there are the kind of consequences that the noble Lord assumes to be the case. Equally, organisations with members seeking to derive the best service that they can for their members ought to be free to do that. I repeat that I do not think this Bill is at all on the right lines in what it is seeking to do. I again respectfully direct the Minister’s attention to the peculiar circumstances that subsection (8) proposes.

I was going to finish by commending again the amendment tabled by the noble Lord, Lord Pannick, about solicitor-to-solicitor arrangements. He made a very strong case there, and I regret that the Minister seems to have just dismissed it out of hand. Certainly—

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Thomas of Gresford and Lord Beecham

Monday 30th January 2012 Lords Chamber

[Lord Thomas of Gresford]

Before my noble and learned friend leaves this issue, he knows that my concern is that this amounts to a dialogue between Government and the Civil Procedure Rule Committee, with no input from Parliament whatever, and no guidance to the Civil Procedure Rule Committee on how it should proceed and what the parameters are. What I was seeking to do, in broad terms, with my amendment was to introduce certain specific things—for example, that the word “unreasonable” should not be used in these procedure rules, but we should revert to familiar territory, such as “frivolous”, “vexatious”, “abusive of process” and “fraudulent claim”, actually spelling out where a judge should have a discretion and where he should not. “Unreasonable” has such a broad meaning that it would put any litigant off if he were to be told by his solicitor, “We will take this case forward, but you have got to appreciate that, at the end, the judge may look at it and say that your conduct is unreasonable”. What does that mean?

As I endeavoured to show in my remarks, in explaining that concept in the report Lord Justice Jackson used the term “fraudulent, frivolous”, although he did not use “vexatious”. I am seeking clarity. The Civil Procedure Rules will come out of the air from somewhere and will not have any proper parliamentary scrutiny. They will have been drawn up as a result of discussion between the Executive and the Civil Procedure Rule Committee, which is entirely made up of judges and lawyers. I would have thought that there would be a constitutional position. It is more serious than anything else in the Bill.

The Civil Procedure Rule Committee should have guidance, as elsewhere in this Bill it does. Over and over again in the Bill, we come across regulations being made by the Lord Chancellor. There is specificity about that. But this position is highly unsatisfactory. If the Minister cannot put something in the Bill in the way in which he has described, what assurances will Parliament have that the Civil Procedure Rule Committee will act in accordance with certain principles?

[Lord Beecham]

I absolutely agree with everything that the noble Lord has just said. This is a fundamental change in the way in which litigation is to be conducted. It should not just be referred to a wholly unaccountable, although no doubt extremely worthy, group of people on the rules committee. Obviously, they are very eminent but they are not accountable, in the sense that the normal framework would be, to approve changes of this significance. Perhaps, as he develops his reply, he would deal with the point of restricting this significant change to personal injury cases when Lord Justice Jackson advocated it across the piece. Perhaps he would care also to reflect on a point made when colleagues and I met the Association of British Insurers no less, which, for example, said that it did not support means testing for qualified costs shifting at all. But, as I understand it, that is to be part of the scheme—if that is what presumably the rules committee, since it will not be part of the Bill, will say.

The noble Lord is absolutely right to raise these issues and I hope that the Minister will take this back and think again about how matters are to be progressed given the significance of the change.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Thomas of Gresford and Lord Beecham

Tuesday 24th January 2012 Lords Chamber

[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.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Thomas of Gresford and Lord Beecham

Monday 16th January 2012 Lords Chamber

[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.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Thomas of Gresford and Lord Beecham

Tuesday 20th December 2011 Lords Chamber

[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.