Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Wigley Excerpts

Wednesday 14th March 2012 Lords Chamber

[Lord Phillips of Sudbury]

My Lords, I started in a Suffolk solicitor’s office in the late 1950s. As was common then and now, a lot of preliminary advice, particularly to people who could not pay anything, was given by junior members of staff. Ever since, I have been imprinted by early recollections of how difficult it is for some people to give instructions at all. Later, I became non-executive director of a company that ran the first telephone helpline in the country, and observed first-hand, as one might say, how that worked. Of course, a great many people in the present age feel perfectly comfortable with telephones. Provided that there is no cost factor, to which the noble Baroness, Lady Grey-Thompson, referred, that may prove an adequate way to give instructions. However, we know that there are many, even now, who are not comfortable with telephonic communication and for whom, if the matter they are seeking advice on is painful to them or arouses great emotion, it is not a satisfactory way to try to impart instructions.

If one thinks of poor people—perhaps I should not have said poor people, because they can be highly articulate, but inarticulate people and those who cannot begin to analyse their problem and do not know quite what it is—the telephone is unlikely to be an effective means to impart information without which the adviser cannot hope to help them to best effect. We are all wholly aware of the Government’s need and wish to save expenditure on legal aid, but I put it to my noble friend that this is the falsest of false economies. Anyone who has given such advice will readily say that the cost in the adviser’s time is released when the client is in front of them, when they can help the client, who is often confused or emotional, to give them the precious information without which they cannot hope to do a satisfactory job. On cost grounds, the savings assumed for the telephone helpline as an exclusive channel of advice are misconceived. More importantly, I think we all agree, so it does not need emphasising any further, that justice cannot be done if there is no alternative to deliver advice by face-to-face means.

I end by saying that where the person needing help is poor, confused and deprived, the notion that one should add to that catalogue of disadvantage the inability to access the only advice that will work for them—face-to-face advice—would be a terrible indictment of our claim to be a democracy where we are equal before the law.

[Lord Wigley]

My Lords, I shall speak briefly in support of Amendment 119, moved so persuasively by the noble Baroness, Lady Grey-Thompson. The amendment removes the provision contained in Clause 26 for the Lord Chancellor to make legal advice services available by telephone gateway or other electronic means. It would instead place a duty on the Lord Chancellor to ensure that individuals eligible for legal aid advice are able to access that advice in the forms most suited to their needs, including initial face-to-face contact.

Clause 26 is perhaps one of the most controversial elements of the Bill and has attracted widespread criticism from disability groups and campaigners. The clause contains provisions to establish a compulsory telephone gateway and to make this gateway the only method by which advice in certain categories of law is available. These proposals will in effect disfranchise individuals with learning difficulties or disabilities that impair their ability to communicate efficiently from being able to access advice. As Scope has pointed out, many legal aid clients experience complex and multifaceted problems that would be difficult to explain over a telephone, while those with limited English or with language or speech problems may be deterred from seeking advice at all. Common sense suggests that cases that are not dealt with at an early stage will be more costly to resolve at a later stage.

The proposals represent a retrograde step that would put up shocking barriers to equal access to justice. The Government acknowledged this in their own impact assessment, recognising that:

“Disabled people … may find it harder to manage their case paperwork through phone services. They may also find it harder to communicate or manage any emotional distress via the phone”.

What is more, as pointed out once again by Scope, these proposals could end up costing the Government more money, as opposed to making savings. The impact assessment published in June 2011 predicted modest savings of about £1 million to £2 million, while a study compiled by the Legal Services Research Centre found that advice provided over the telephone can unnecessarily prolong cases, as was mentioned a moment ago, and thereby make them more difficult to resolve.

In summary, Clause 26 adds further stress to already distressing situations and risks excluding vulnerable individuals from accessing legal advice altogether. The proposals go against the principle of equality of arms before the law and, frankly, display a cavalier attitude towards the needs of those with disabilities or impairments. Individuals with disabilities should be treated with the utmost respect and dignity in all areas of society. It is our duty to ensure that they are not disfranchised by a scheme that aims to provide justice on the cheap.

[The Lord Bishop of Chichester]

My Lords, I, too, support the amendment. Quite a number of people find it quite hard to find their own voice and need the support of a friend. As a priest I know how many of the clergy spend a lot of time accompanying people and enabling them to speak for themselves: not providing a voice for the voiceless but enabling the voiceless to find a voice. It seems that a lot of people are simply not able to put their own case individually over the telephone and need to have friends and supporters with them. It seems essential that this alternative means, the face-to-face interview, is available for those people so that they can have friends and advocates with them.

--- Later in debate ---

[Baroness Butler-Sloss]

My Lords, I apologise for not being present at the beginning of this debate. My name is on the letter and I want to underline my support for it. As a judge, I was involved with a number of these extremely sad cases, particularly at the Court of Appeal. The letter has been very helpful in setting out what is needed. I apologise to the noble Lords, Lord Alton and Lord Avebury, for not having heard most of what they said, but I have a shrewd idea that it was said extremely well.

[Lord Wigley]

My Lords, I support Amendment 132AA and wish to speak to the group which is associated with it, standing in the names of the noble Lords, Lord Alton and Lord Bach. I do so enthusiastically as I indicated in Committee. Whereas the noble Lord, Lord Thomas, may well have arguments in certain cases in relation to the legal processes that he outlined, I come to this from the point of view that compensation should be available in full to people, reflecting their suffering and the condition they have had, and that any legal fees should be other than the sum allocated as a response to that suffering. If this group of amendments is not accepted, the House will no doubt hear the noble Lord’s proposals in a later group of amendments. The scope not only of Amendment 132AA but also Amendment 132AB, which goes wider and covers a number of other equally distressing and deserving conditions, means that they can be supported when it comes to a vote if it does indeed come to a vote.

These amendments would have the effect of exempting cases involving claims for damages for respiratory illnesses following exposure to harmful substances from the range of changes proposed in Clauses 43, 45 and 46 of the Bill. The case for doing so was covered extensively in Committee but, unfortunately, the Minister has not so far moved towards accepting the changes that we hoped he might accept at that stage. A couple of weeks ago, at a St David’s Day dinner, I found myself sitting opposite a widow from my home area of Caernarfon. She had lost her husband to asbestosis six years ago. She described what he and they, as a family, had suffered. She received a modest sum of compensation. However, she told me that she had been following our debates in Committee and doubted that she would have got that compensation under the changes that are coming through. My goodness, if that is the effect that they will have on people who have suffered in that way, we have to make sure that the Bill is watertight and looks after people who have suffered as a result of the work that they have undertaken.

If Clause 43 is agreed unchecked, success fees under a conditional fee arrangement will no longer be recoverable from the losing party in all proceedings. Instead, in cases where claims are made against an organisation as a result of illness due to negligence, the fee will be recovered from damages awarded to the injured person, sometimes substantially eroding those damages. Likewise, if Clause 45 is agreed as it now stands, “after the event” insurance premiums will no longer be recoverable from the losing defendant and will also be taken out of the damages awarded to the injured party. Similar changes are proposed in Clause 46, which prevents organisations recovering their insurance premiums from a losing party. Unsuccessful cases involving more than one claimant can be highly expensive if there are multiple defendants whose costs need to be covered in the event of the case being lost. Without recoverable insurance premiums, these cases simply will not, in practice, be able to proceed.

Many organisations, including the Association of Personal Injury Lawyers, have been at pains to make it clear that damages are awarded for the pain and suffering caused by prolonged and debilitating illnesses. As I said earlier, damages were never intended to pay towards legal costs. Making an insured person or their family suffer an erosion of the financial compensation to which they are entitled on top of the physical distress they have endured is neither just nor dignified. It is wrong that the Government are intent on ploughing ahead with these changes without making exceptions where they are due.

In Committee, the Minister spoke of the Government’s overarching aim as being,

“to create an architecture which squeezes inflationary costs out of the civil justice system”.—[Official Report, 30/1/12; col. 1433.]

Those are grand words indeed but they cover a multitude of sins. As the noble Lord, Lord Alton, remarked, the only people who will be squeezed as a result of these changes are those who are already suffering from fatal diseases and their families. That does not sound like justice to me.

In Committee, the Minister also assured me that a number of possible routes of redress would be made available for individuals who had contracted diseases such as mesothelioma and asbestosis through schemes operated by the Department for Work and Pensions. We have heard reference to this but, as yet, I have seen no further detail on how these schemes may work. In the mean time, we should proceed on the basis that they are not there yet. However, I would welcome any clarification that the Minister might give and will listen carefully to what he has to say.

I support not only the group of amendments spoken to by the noble Lord, Lord Alton, but support very strongly Amendment 132AB in the name of the noble Lord, Lord Bach. It is relevant to a group of industrial diseases such as pneumoconiosis, silicosis and associated lung diseases, which are certainly of considerable importance to me and the community from which I come.

If these clauses are agreed unchecked, individuals who have suffered harm and distress will be dealt a further blow and access to justice will be severely undermined. It is perhaps futile to press the Government to agree to changes that they have already so utterly dismissed out of hand. However, I urge noble colleagues to support these amendments and to argue the case that individuals already suffering due to negligence should not face further hardship.

[Lord Newton of Braintree]

My Lords, may I briefly split up the Cross-Benchers, albeit in support of everything that they and most others have said? I have a couple of prefatory remarks. I cannot quite share the enthusiasm of the Liberal Democrat and former Liberal Democrat Benches for the anniversary of my noble friend Lord Avebury, although not because I do not have the highest regard for him. However, I was in the Conservative research department at the time and it was a major culture shock, which did not tempt me to join the Liberal Party. It could yet happen of course, but not today.

The Minister may be glad to hear my other prefatory remark. This will probably be my last foray on the Bill because, in general, I regard Part 2 as being above my pay grade. I have been reinforced in that view by the speech of the noble Lord, Lord Thomas of Gresford, which left me feeling—I hope he will not find this too rude—as though I had been enveloped in fog.

I spoke on this matter at an earlier stage and I do not intend to repeat myself. I simply endorse some points that have been made. In an earlier incarnation, when I was Minister for Disabled People, I was also the Minister for the Industrial Injuries Advisory Committee, so I know a bit about industrial diseases, including respiratory diseases such as this one. While they all have their problems and the scheme has its offerings, this disease is pretty unique for reasons that the noble Lord, Lord Alton, has outlined so clearly with his medical knowledge. This was reinforced by what the noble and learned Baroness, Lady Butler-Sloss, said about her experience of seeing and being involved in such cases. We cannot dismiss that.

I said earlier that we need to recognise that this disease is not only terrible but moves very fast. Someone gave the figure of nine months. To repeat something that I said earlier, we also need to acknowledge that this is one of those cancers—it is effectively a cancer—that is still growing. It is not diminishing. There is a long time fuse on exposure to asbestos. We have known about it for a long time and action has been taken; when asbestos is found, there is great expenditure on getting rid of it. However, there are still more cases to come than there have been because of that long fuse. One way or another, it is a pretty special case. I just do not like the idea that it can be dealt with only under CFAs, with the consequences that were so eloquently outlined by the noble Lord, Lord Alton.

This is not part of the mischief of exploiting whiplash injuries. It is very much sui generis and needs to be treated as such. The notion that someone who has just been told that they have nine months or less to live will engage in a lot of frivolous legal activity is far fetched in the extreme.

The noble Lord, Lord Thomas of Gresford, referred to all sorts of other ways of getting compensation, including schemes that the Government have and the possibility of a rival to the Motor Insurers’ Bureau. We are talking about people with nine months to live. It will probably take nine months for them to find out where to start under some of those arrangements, let alone to get some compensation. In any event, what we are offered here are not the alternatives that the noble Lord, Lord Thomas, outlined. They are not here and would have to be worked up. What we have is what is in the Bill. We need to look at that with care and, once more, we need to ask the House of Commons to think again.