Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Wallace of Tankerness and Lord Newton of Braintree

Monday 12th March 2012 Lords Chamber

[Lord Newton of Braintree]

My Lords, will the Minister acknowledge that part of the reason for introducing the Office of the Immigration Services Commissioner was the poor quality of the advice that people were getting at these tribunals from people who simply did not know what they were doing? The new service was designed to ensure that they would get proper advice, and we should think very carefully before going back to the preceding regime.

[Lord Wallace of Tankerness]

My Lords, we are not proposing to abandon the regime. As the noble Lord, Lord Bach, pointed out, immigration advice is tightly regulated by the OISC, to which complaints can be made.

Substantial savings are required. The change that we propose will save an estimated £20 million a year out of a total of £90 million spent in this sphere of law. It is important to show a balance; it is not just a case of taking immigration cases out of scope. Cases affecting some of the most vulnerable people will remain in scope. I do not for a moment doubt the motivations behind the amendment. However, I assure noble Lords that the matter has been given careful consideration. My noble friend Lord Boswell asked about complex law being kept under review. He will be aware that the power to add, within scope, that has been proposed for Clause 8 is a safety net that could be used if, in the light of experience, the somewhat apocalyptic scenario described by the noble Lord, Lord Bach, came to pass. Of course, there will be a post-implementation review after five years.

I hope that noble Lords will recognise that in a very difficult area we have sought to strike the right balance in cases that are particularly demanding and that particularly affect asylum seekers, such as cases of domestic violence and where people are being held in detention, and that we are addressing some of the most difficult cases in the immigration field. However, we had to draw the line somewhere. It could never be in the right place for all noble Lords. I can only assure them that it was done with some care and thought, and ask the noble Lord to withdraw his amendment.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Wallace of Tankerness and Lord Newton of Braintree

Monday 5th March 2012 Lords Chamber

[Lord Wallace of Tankerness]

In fairness to my noble friend, it is a good question, which I have asked myself. The answer, as I have tried to indicate in my earlier elaboration of the structure of the Bill, is that we are not trying to recreate a non-departmental public body. Consideration of whether it would be possible to incorporate the words “independent” or “independence” into Clause 4 as proposed would require us to consider very carefully whether that might inadvertently affect the proposed structure, but in no way does it detract from the heart of this matter. In respect of individual cases, the director of legal aid casework will in no way be subject to the influence or interference of the Lord Chancellor.

We need to try to get that structure right while allowing for the provisions that will be there, as my noble friend picked up and as the noble Lord, Lord Hart, indicated, in the part of the amendment that refers to direction and guidance. If that is combined with the very clear protection given—the freedom from any interference by the Lord Chancellor in individual cases—that gets the structure right without inadvertently affecting the proposed architecture of the Bill.

We seek to supplement this. The new clause that the Government propose in Amendment 5 is intended to provide a statutory requirement for the director to produce an annual report for the preceding financial year, detailing how the director has carried out his or her functions during that time. That would naturally include detail of the director’s interaction with the Lord Chancellor and how the Lord Chancellor’s directions and guidance had been used to guide decision-making over the reporting period. A noble Lord asked whether the director would have a voice. There will clearly be an opportunity for a voice because it will be his or her report that is submitted and subsequently presented to Parliament.

I hope that noble Lords will be reassured that this additional measure will provide further transparency in relation to the director’s functions and help to demonstrate that the prohibition as to interference in individual cases has been and will be adhered to. These are important safeguards to ensure the independence of the director.

[Lord Newton of Braintree]

I am sorry to interrupt the Minister but I have a number of questions at this stage along with a mounting sense of absurdity and unreality. Am I not right in thinking that in the ordinary course of events any civil servant has to be the servant of the Minister whom he serves? That is my general assumption. Secondly, if this civil servant is not to be in that position, does he not in effect become a non-departmental public body in his own right, as an individual? Thirdly, was it not the position of this Secretary of State on the Public Bodies Bill that these are decisions that he ought to take as Secretary of State? That was the whole purpose. My noble and learned friend, for whom I have huge admiration and who usually does terribly well on sticky wickets, has not kept the ball out of the wicket on this occasion.

[Lord Wallace of Tankerness]

I do not agree that the person would become a non-departmental public body in his or her own right. My noble friend raises an important point because, as has been indicated on a range of issues, guidance will be given and criteria set. There will be a framework; there will be a responsibility for the Lord Chancellor; but the crucial point—and there is concern across the House on this—is that in individual cases there cannot be that level of interference. We believe that that is secured by the provision in Clause 4(4) that it would be unlawful for the Lord Chancellor to interfere in a way that undermined that freedom of decision-making in individual cases. More than that, other measures in the Bill provide for transparency to show that that is not being in some way undermined.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Wallace of Tankerness and Lord Newton of Braintree

Monday 30th January 2012 Lords Chamber

[Lord Newton of Braintree]

My Lords, given that this is Committee, perhaps I may intervene again. I forgot to say, because I stood up in some haste, that the numbers point is interesting, as a consequence of what I call the slow burn, where a lot of cases that are appearing now relate to injury caused many years ago. My understanding is that cancer is one of the few whose incidence is, if anything, increasing rather than decreasing, because of the delay from the time of causation in such cases coming through. I think I have got that right, but whether I have or not I am delighted that the noble and learned Baroness, Lady Butler-Sloss, joined us in support of this point.

[Lord Wallace of Tankerness]

My Lords, perhaps I may deal with Amendments 121, 122, 129, 130, 134, 136A, 136B, 151, 152, 156AA, 156AB and 156C together. All seek to exempt certain types of cases from the Government’s reforms of no-win no-fee conditional fee agreements—CFAs. My noble friend Lord Newton described some of these amendments as being parts of a blunderbuss approach. I think that the noble Lord, Lord Beecham, described it as a bit of a shopping list. I shall come on to the issue relating to mesothelioma sufferers.

The amendments clearly stem from concerns that individuals may be unable to afford to bring certain personal injury cases. My noble friend Lord Newton of Braintree anticipated later amendments in the group beginning with Amendment 137A, which will be moved by the noble Lord, Lord Alton. I recognise that other issues arise such as the difficulty in trying to track down previous employers. I know that my noble friend Lord McNally will respond to that group of amendments and bear in mind what my noble friend Lord Newton said. When I was a Justice Minister in Scotland, I remember the plight of many mesothelioma sufferers, who were trying to get the process expedited so that their cases could be brought to court because many of them had a very short life expectancy. I certainly recognise the importance of those cases and I am sure that there will be a fuller debate on the back of the amendments to be moved and spoken to by the noble Lord, Lord Alton.

The difficulty with the other amendments in this group, as my noble friend Lord Newton said, is that when taken together they do not leave very much of the original intention of the Bill. With regard to recoverable or non-recoverable success fees being shifted to the defendants, it was pointed out in the previous debate that such fees have led to an escalation of costs. A plaintiff does not have the same interest, or may have no interest, in seeking to contain costs in those circumstances. One amendment relates to situations in which the defendants are public authorities. Some people have to pay the price of these additional costs. In motor insurance cases, we pay them through increased premiums. Council tax payers will no doubt bear some cost when escalating costs are picked up by public authorities.

The changes that we are bringing about will lead to costs becoming more proportionate. Equally, claimants will still be able to bring necessary and meritorious claims, and receive damages when they are due. However, as with privately paying clients, claimants on CFAs may have to pay some of their legal costs out of damages recovered. However, as I have indicated, we are introducing a number of measures that will help claimants to pay their solicitors’ success fees. The point was well made by my noble friend Lord Thomas of Gresford, in response to the previous debate, that in many cases no success fee is charged and some solicitors may have a selling point: “We will litigate for you, and no success fee will be charged”. That is more than likely to happen.

We must also remember that there will be a 10 per cent increase in general damages for non-pecuniary loss such as pain, suffering and loss of amenity. There will be a cap on the success fee at 25 per cent of damages awarded but, significantly, that will not apply to damages for future care and loss in personal injury cases. That will help to protect a claimant’s damages.

We have already discussed qualified one-way cost shifting. That will mean that losing claimants in personal injury cases who act reasonably will not have to pay a winning defendant’s costs, which in turn will reduce the need to have expensive ATE insurance products. Amendment 156AB is intended to ensure that the changes to the ATE insurance arrangements under Clause 45 do not come into force until the QOCS regime has come into force. I assure the Committee that we intend the package of reform to come into force at the same time.

On Amendment 156C, Clause 46 prohibits membership organisations from claiming the costs incurred by self-insuring against risk. That point was made by the noble Baroness, Lady Turner, in our previous debate. As I understand it, under the Access to Justice (Membership Organisation) Regulations 2005, bodies are listed by the certification officer. Trade unions represent an important number of those bodies, but a number of others have also been listed under Section 30 of the Access to Justice Act 1999.

As has been said on many occasions, the Government have decided to abolish the recoverability of ATE insurance premiums, and believe that this change should apply equally to arrangements for membership organisations. Retaining the recoverability of ATE insurance premiums for membership organisations would create an unfair advantage and mean that defendants in claims brought by members of such organisations would continue to be liable for significant additional costs in such cases and be placed at a disadvantage.

Lord Justice Jackson made no formal recommendations in reference to member organisations. In such a compendious report, one may wonder why not. Nevertheless, in his response to the consultation, he supported the Government’s proposal that changes to the recoverability of ATE insurance premiums ought to apply equally to the arrangements for membership organisations in order to remove any unfair advantage. That view was shared by 63 per cent of respondents to the consultation, who thought that retaining recoverability of the self-insurance element for membership organisations would create an unfair advantage. It is to ensure that that unfair advantage does not occur that we resist the amendment, and I invite the noble Lord to withdraw it.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Wallace of Tankerness and Lord Newton of Braintree

Tuesday 24th January 2012 Lords Chamber

[Lord Newton of Braintree]

My Lords, since this seems to be a harry-the-Minister moment and I need to make up for yesterday, can I put a couple of questions to my noble and learned friend that I would like him to think about while he is waiting? First, in my considerable experience of tribunals generally, employment tribunals have always really thought that they should be courts. They behaved much more like courts than any other form of tribunal. Indeed, the Administrative Justice and Tribunals Council was so called because the employment tribunals insisted that they were not administrative justice and wanted “tribunals” in the title, reflecting their feeling of difference. Perhaps he could comment on that.

Secondly, and linking with this legal aid point, I picked up on the words of the noble Lord, Lord Pannick. I take the point about priorities, and I am not going to say that the other things which he mentioned are of lower priority than this. I had a constituency case, years ago, where somebody was up against one of the big banks, with QCs all over the place, so to me the question is: is it fair, just and right that people should be left without advice and assistance when they are up against that sort of might? I am not sure that the answer is yes.

[Lord Wallace of Tankerness]

My Lords, the lesson of this is to get an answer quickly so that you do not get other questions accumulating. I know that my noble friend has considerable experience from his time in dealing with tribunals. I cannot remember what his exact role was, but I know that he was very much involved and I remember meeting him when he had that role and I was in another Parliament. As I indicated, over the years it has perhaps become much more formalised but we should not lose sight of the fact that the intent of the tribunals system generally, no matter what they might want to call it, is to have a forum in which people can much more readily come and put their case forward than one with all the formality of the court. Indeed, as I indicated, that was part of the thinking as to why we are dealing with the tribunal system. Perhaps the necessity of it is, let us say, that there was a less compelling argument as to why these cases should therefore be brought within scope than would otherwise be the case.