Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Turner of Camden Excerpts

Monday 21st November 2011 Lords Chamber

[Baroness Turner of Camden]

My Lords, this is a very complicated Bill but it is obviously being introduced as part of the Government’s plan to cut costs. The problem is that it involves the possible loss of rights of poor and vulnerable people—human rights to which they are entitled as members of a civilised society. It has been suggested to me that the proposals contained in the Bill represent the most seismic shift in civil litigation in living memory.

The Legal Services Commission, which is concerned with the provision of legal aid, is to be abolished. The Lord Chancellor will now have a duty to provide civil and criminal aid, and in order to do so he will have a director of legal aid casework, who will, of course, have staff. Why it should be necessary to do away with one body and its staff and replace it with another is by no means clear. What is clear, however, is that there will be a range of services for which legal aid will not be provided. Most of these deal with the type of problems that can cause stress, trauma and often damage to ordinary people during their normal working lives. The Government seem to believe media accusations that we have become a “compensation culture” even though the noble Lord, Lord Young, who originally provided advice to the Prime Minister in these areas, said that this was a myth.

Much of the Bill has been justified by the claim that means other than legal action can resolve many difficulties. This is disputed by many organisations that have made representations to Peers on the Bill. Some of the areas likely to be adversely affected by the provisions of the Bill are family courts and legal aid casework. This is a problem because often the future of children may be at stake. Children are often the victims of family break-up. Actual domestic violence may be eligible for assistance, but the degree to which assistance will be available is not clear. Again, there are many problems because much domestic violence takes place in a family environment. I understand that local authorities have some responsibility in such cases, but, again, it depends on regulations and what these will be is far from apparent. Many of the problems involved have been fully explained by my noble friend Lady Gould of Potternewton.

Cases involving housing will not be covered, except where homelessness is threatened. Welfare cases, particularly disputes about benefit entitlement, are also unlikely to be covered. Citizens advice bureaux have already expressed concern about the provisions of the Bill. They have often been complimented by Ministers for the work that they do, much of which is concerned with debt counselling and welfare counselling. The benefits system is complicated and individuals often do not know what their entitlement is, and so they do not claim it. Then complications arise, with the necessity for claims to be pursued. However, the CABs are facing cuts in provision, to the extent of £350 million in the first year. They say that these cuts will interfere with their ability to do the job which they are appointed to do.

An issue which causes much concern is the failure to cover clinical negligence. Almost all the organisations that have made representations to us have raised this. The Bar Council has protested. Removing legal aid for clinical negligence would remove access to justice for the most vulnerable people. Legal aid for clinical negligence cases costs £17 million out of a legal-aid budget of £2.2 billion, so it is a relatively small amount of money.

Another area of concern is that of personal injury. Many personal injury cases are funded by conditional fee agreements, which are commonly known as no-win, no-fee. These normally allow for a success fee to be claimed by the claimant lawyer in a successful case and that is usually paid for by the losing defendant or the defendant's insurance company. A clause in the Bill will prevent the success fee from being recovered from the losing defendant and the fee will instead be taken out of the damages awarded to the injured person. An injured person will not therefore receive the full compensation to which he or she is entitled. It really seems as though the Government are anxious to make it as difficult as possible for an injured person to secure compensation for his or her injuries. Moreover, the Government's plan is to make injured people pay for some of their legal costs when someone else has injured them in the first place. As many such people are elderly or infirm that seems very unfair.

As far as I can see, employment cases are not to be regarded as eligible for legal aid. The Government apparently take the view that means other than legal ones are available; no doubt they are referring to the arbitration system. However, recently a government statement about employment law indicated that charges would be made to the dismissed employee before his or her case could be heard by the tribunal. Reference has been made to a fee of £1,000. The tribunal will not consist of lay representatives from both sides of industry but there will now be a judge sitting alone; in other words, a more legal system, but of course no legal assistance.

I hope that the TUC is paying attention to all this. Ordinary workers need the trade union movement more than ever. Unions have a record of successfully representing members and they also now provide a fairly comprehensive legal-aid service to members. But this is an unfair Bill and, unless we succeed in amending it, many people will suffer undeserved stress and trauma in incidents for which they have not themselves been responsible. We must do what we can to prevent that.