Legal Aid, Sentencing and Punishment of Offenders Bill

Jonathan Djanogly Excerpts

Tuesday 17th April 2012 Commons Chamber

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

I beg to move, That this House disagrees with Lords amendment 1.

[Mr Deputy Speaker (Mr Nigel Evans)]

With this it will be convenient to discuss the following:

Lords amendments 3 and 4, Government motions to disagree, and Government amendments (a) and (b) in lieu.

Lords amendment 5.

Lords amendment 24, and Government motion to disagree.

[Mr Djanogly]

Lords amendments 1 and 24 impinge on the financial privilege of this House. I ask the House to disagree to them and will ask the Reasons Committee to ascribe financial privilege as the reason for doing so. Notwithstanding that, the House now has the opportunity to debate the substance and effect of the amendments, and shortly I will state the Government’s full reasons for rejecting them. Before I start, I remind the House of the statement that I made on Report on 31 October 2011 relating to my declaration of interests. It can be found at column 626 of Hansard, and I confirm today that it remains accurate. I ask the House to agree to the Government amendments in lieu of Lords amendments 3 and 4, which relate to the director of legal aid casework.

I turn to the Lords amendments. Access to justice is of fundamental importance to our legal system and to this Government, but our legal aid system is by any measure extremely expensive and sometimes prone to aggravating disputes unnecessarily by pushing them into the courtroom. The question for the Government has never been whether to reform it but how, and our approach is one with a principled basis of focusing scarce resources on the most urgent and serious cases while seeking a broader shift to earlier resolution of disputes. We have always been happy to accept amendments that deliver on those principles, so it should come as no surprise that the Bill is much revised. The Government have listened and made significant concessions, and I am grateful to the other place for its concern to improve the Bill.

In another place, Lords amendment 1, tabled by Lord Pannick, was said to identify the aims of the legal aid system in our society. It would place a duty on the Lord Chancellor, reflecting the provision in section 4(1) of the Access to Justice Act 1999, to secure within the resources made available and in accordance with part 1 of the Bill that individuals have access to legal services that meet their needs effectively. However, clause 1(1) already sets out a clear duty on the Lord Chancellor to ensure that legal aid is made available in accordance with part 1 of the Bill, so the Government are concerned that the amendment replicates what is already in place.

Worse than mere duplication, technical problems with the amendment risk muddying the waters, creating legal uncertainty and undermining the Bill’s clear purpose. Unlike the clear duty in clause 1(1), which relates to legal aid made available under part 1 of the Bill, with legal aid being defined in clause 1(2), Lords amendment 1 would impose a duty in relation to legal services. Despite the purported qualifications in the words in brackets, it can be read as imposing a wider duty on the Lord Chancellor than that intended under the Bill, in that it risks imposing a duty on him to fund legal services beyond the realm of legal aid provision.

We believe that there are potential additional costs attached to the amendment, which would create uncertainty. It runs contrary to the policy intention of creating certainty through the unambiguous description of services in schedule 1 and the clearly defined circumstances in which exceptional funding is available. Both the uncertainty that would be created and the possible costs are undesirable outcomes.

The problem with the amendment is that it conflates the two important but separate principles of access to justice and the provision of publicly funded legal advice. It could be understood in the context of the 1999 Act, which, because it was drafted on an exclusionary basis, specifies what services cannot be funded under civil legal aid but leaves rather vague exactly what the Lord Chancellor is responsible for funding. However, the Bill is carefully drafted on an inclusionary basis, which means that it is explicitly clear about what services can be funded, thereby representing Parliament’s view on services that should be provided under legal aid to meet people’s needs.

Lords amendment 1 risks providing the basis for myriad new legal challenges seeking to widen the scope of the Bill. The central purpose of our legal aid reforms is targeting resources where they really matter, not providing work for lawyers. We cannot accept an amendment that might prompt endless legal dispute and judicial review.

Lords amendments 3 and 4, which were tabled by Lord Pannick, and the Government’s Lords amendment 5 all concern the director of legal aid casework. Lords amendments 3 and 4 are born out of concern that the director’s decisions will be subject to political interference from Ministers. I reassure the House that the Government absolutely agree with Members of the other place that the Lord Chancellor should have absolutely no involvement in a decision about legal aid funding in an individual case. However, we ask the House to reject Lords amendments 3 and 4, because they would have the unwelcome effect of preventing the director from being appointed as a civil servant.

I must remind the House that we are abolishing the Legal Services Commission to improve the administration of legal aid, not to create greater fragmentation of responsibility and accountability.

Clause 4 provides protection to the director by creating, in clause 4(4), a statutory bar on the Lord Chancellor’s involvement in funding decisions by the director in individual cases. The Lord Chancellor may not give directions or guidance to the director about the carrying out of the director’s functions in relation to an individual case. In addition to that protection, the Bill imposes a duty on the Lord Chancellor to publish any guidance and directions that he issues to the director.

Lords amendment 5, which is a Government amendment, goes further by requiring the director to produce an annual report for the preceding financial year on the exercise of their functions during that period. That annual report will be laid before Parliament and published. We consider that further offer of transparency to be an important safeguard.

I am aware that the question of directorial independence was one that exercised the other place considerably. It is because we agree that that is a vital issue that we are happy to put the matter beyond doubt. That is why I am asking the House to agree to the Government amendment in lieu of Lords amendments 3 and 4. That will reinforce the protections already set out in clause 4(4) by requiring the Lord Chancellor to ensure that the director acts independently of the Lord Chancellor when applying directions and guidance given under clause 4(3) in relation to an individual case. That provides additional assurance on the director’s independence without compromising common-sense administrative arrangements designed to improve control and accountability.

Finally, Lords amendment 24 concerns the provision of advice over the telephone, on which I am afraid I cannot agree with many of the sentiments of the other place. The effect of amendment 24 would be to weaken a key measure to modernise the system and bring it up to date. The aim of the telephone gateway is to route access to legal aid, in the first instance, by the phone. That is not only much more efficient, enabling calls to be properly triaged, but simpler to access and generally of higher quality.

[Fiona Mactaggart (Slough) (Lab)]

Has the Minister done any studies on the effectiveness of telephone advice lines for people whose first language is not English?

[Mr Djanogly]

We have, and if one were to call the telephone hotline, one would be able to speak in any of 170 different languages, which is more languages than one would find used in a high street solicitor’s office.

[Simon Hughes (Bermondsey and Old Southwark) (LD)]

It is fine for hon. Members to use telephone hotlines, but what about those with mental illness, special educational needs, learning difficulties or no English? What will happen to ensure they get legal advice and do not give up before they can get anywhere?

[Mr Djanogly]

I confirm to my right hon. Friend that it will be possible for all such people to have face-to-face advice. If the people who take the call, who are expert in finding out whether a person needs face-to-face advice, feel that people need face-to-face advice, they will get it. I am not just speculating. We know that that is the case because a modern, phone-based service currently exists, namely the Ministry of Justice community legal advice helpline. Its record is one of excellent public service. In 2010-11, more than half a million calls were made to it. More than 90% of respondents to the last survey who subsequently received advice from the specialist service found it very helpful.

Concerns have been raised about accessibility. However, contrary to the claims of those opposed to the reforms, phone-based advice has been shown often to be more convenient and accessible than face-to-face advice, particularly benefiting those living in remote areas or those who have a physical disability.

[Yvonne Fovargue (Makerfield) (Lab)]

Will the Minister accept that currently, the CLS gateway is a choice—people can choose to use the phone system or to have face-to-face advice? For people under stress, who cannot bring themselves even to open an envelope with their bills in, face-to-face advice is often the most appropriate route.

[Mr Djanogly]

I simply disagree that face-to-face advice will be appropriate in all cases of disability—quite the opposite. In many cases, people with disability would prefer to use telephone advice.

Such advice is also high quality. Contrary to the assumption that face-to-face advice is always better, specialist telephone advice providers are currently required to meet higher standards than their face-to-face counterparts. That will continue under the new contracts required to implement the Bill.

Under our plans, an individual seeking advice will simply need to ring the community legal advice helpline. They will be greeted by a trained operator who will assess whether they are eligible for legal aid or not. Their goal will be to ensure that people get a high quality, accessible service that delivers the right help, either by transferring them to specialist telephone advice providers or face-to-face providers if telephone advice is not appropriate, or by signposting them to other possible support if their issue does not fall within the scope of the legal aid scheme.

[Mr Adrian Sanders (Torbay) (LD)]

We know from our own experience as Members of Parliament that many of our constituents insist on coming to see us in our offices and working face to face, because that is how they can best get across their grievances. Why are the Government insisting on denying people the right to see somebody face to face?

[Mr Djanogly]

In many cases the support that my hon. Friend’s constituents receive will be better received over the telephone than face to face. Crucially, the staff concerned will be trained not just to help the caller identify the nature of their problem, whether it is in scope and whether they qualify financially, but to assist with the prior issue of whether they need support in accessing the service. That could include the operator calling them back to reduce the cost of the call, a third party, such as an available family member, assisting the caller with the call, or a very good telephone translation service, if a person has limited or no spoken English. With 170 languages available, a better service will be delivered than someone could possibly get in a law firm’s offices.

[Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)]

The hon. Gentleman said at the commencement of his remarks that this measure was about targeting resources a bit better. The Government’s impact assessment says that they might save between £1 million and £2 million under this unfortunate scheme. However, the cost will be three times that amount, in terms of people being let down, losing their homes, not being able to receive assistance, and so on, along with all the other problems that will flow from this. The cost will be far more than £1 million to £2 million.

[Mr Djanogly]

The right hon. Gentleman’s points go more to scope, which is not the subject of this debate, than the telephone service.

Some in the other place raised concerns about the gateway being mandatory and what that means for access by particular categories of vulnerable callers. However, that is precisely why we are applying the gateway in a limited number of areas—debt, discrimination and special educational needs—but not community care, which we have agreed should not be available initially. It is also why we are building in strong safeguards. Not only will there be an exemption for emergency cases, those in detention and under-18s, but even where a case is in scope and not in those groups, face-to-face advice will always be available where deemed to be required. Although those seeking advice in the three areas of law will be required initially to contact the helpline to apply for legal aid, callers eligible for legal aid who cannot give instructions or act on advice given over the telephone will be referred to face-to-face advice. I should also emphasise that, in response to concerns raised in another place, a review of the implementation of the mandatory gateway, including the operation of the gateway in the three areas of law, will be undertaken, and the report of that review will be published.

In all those areas—a duty to provide legal aid, the independence of the exceptional funding scheme and the operation of the gateway—the Government’s priority is to protect access to justice while modernising the service and ensuring that it is affordable. We agree with the need to underline the independence of a funding decision in an individual case. However, we cannot accept measures that would create legal confusion about what services the scheme provides, nor can we agree that it is unreasonable to ask claimants in three areas of law to access the service by the simple expedient of ringing a phone line—a modernisation entirely familiar from other walks of life.

I ask hon. Members to support the Government on all these amendments.

[Sadiq Khan (Tooting) (Lab)]

We have the first set of knives at 5.30 pm, so we will have had less than 26 minutes to discuss the four amendments from the House of Lords in this group, and we will have less than five hours in total to discuss the 11 amendments passed in the other place—the 11 defeats for the Government.

Let me deal first with Lords amendment 1. This 23-word amendment was supported by a number of prestigious Members of the other House, for whom I have a great deal of respect. Some are Cross Benchers, some are members of the Justice Secretary’s party and some are members of my party. Many Government peers voted with Lord Pannick in the other place when he pressed the amendment to a Division, which was won with a majority of 45. The amendment was carefully drafted; indeed, I should point out that none of the technical deficiencies pointed out today was raised by Lord McNally when he responded in the other place.

The speakers in the debate in the other place included the former Leader of the House of Commons and former Cabinet colleague of the Justice Secretary, Lord Newton of Braintree, who sadly recently passed away. His last contribution in Parliament was on this Bill, and he spoke powerfully against many bits of part 1. I would like to echo the tremendous tributes that have been paid to him in the other place recently, as I am sure would all Members of all parties in the Chamber.

The Bill, as drafted, contains no duty on the Lord Chancellor to provide the services that the Bill permits. Lords amendment 1 would ensure that he had to meet the needs of citizens within “the resources available” and the scope of legal aid, as defined by the Bill. It would quite simply be a statement of legislative purpose at the outset of the Bill. The wording in the amendment has been included in legal aid statutes since the first Act in 1949. Even given the understandable budgetary constraints on the Government, a clause such as this would show that the Government recognised that legal aid was regarded as an essential element of access to justice. It would be modest and sensible, and it would not cost the taxpayer anything, but it would enshrine an important constitutional principle in part 1 of the Bill.

In fact, the amendment does not go as far as the House of Lords Constitution Committee wanted to go. Lord McNally stated:

“I also accept that the duty that the amendment would place on the Lord Chancellor would be qualified by the reference to the duty being subject both to the resources available and to the provisions of Part 1.”—[Official Report, House of Lords, 5 March 2012; Vol. 735, c. 1569.]

It is therefore unclear how on earth the Government can claim financial privilege in relation to this amendment, or, more pertinently, why they are so unwilling to accept it. We shall oppose their attempt to overturn Lords amendment 1.

Lords amendment 24 seeks to ensure that the telephone gateway that the Government intend to create will not be mandatory, as proposed in the original Bill. This is important for many vulnerable groups, such as those with mental health issues or communication problems. The other place voted by a majority of 28 to support the amendment tabled by Baroness Grey-Thompson to remove the provision of a mandatory telephone gateway and the delivery of legal aid services exclusively by telephone. It is particularly disappointing that the Government are seeking to overturn this amendment as well. Without it, the Bill will give the Government wide powers to make legal aid services available exclusively by phone or other electronic means. For the avoidance of doubt, we accept that telephone advice might suit many people; we are not against its use. We are, however, against it being the only way of getting initial advice. This goes to the matter of access to justice, and the Government just do not get it.

It has been emphasised many times in our debates on social welfare law that it is often the most vulnerable in society who rely most on the support of social welfare—for example, those with learning difficulties, mental health issues or communication problems. Some in those groups already suffer from chaotic lives and find it hard to communicate complex, multi-faceted, challenging problems. I wonder how many of the Ministers on the Front Bench conduct their surgeries exclusively by telephone. Those people’s problems can be further compounded by having to explain them and seek advice over the telephone. Many do not have a landline, and others cannot afford the cost of using their mobile, with waiting time eating into their scarce credit.

The Government appear to agree with that. In response to a question about the impact assessment from my hon. Friend the Member for Slough (Fiona Mactaggart), the Minister did not give the entire information. The Government’s own impact assessment highlighted the fact that the disabled, and those whose first language is not English, would find this a particularly hard way of engaging with the legal aid system. I fear that the result will be that many vulnerable people are deterred from seeking support.

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Exception in respiratory (industrial disease or illness) cases

[Mr Djanogly]

I beg to move, That this House disagrees with Lords amendment 31.

[Madam Deputy Speaker (Dawn Primarolo)]

With this it will be convenient to consider Lords amendment 32, and Government motion to disagree.

[Mr Djanogly]

The Government recognise that mesothelioma is a truly terrible disease—a terminal illness that has a devastating impact on the families of its victims—and we are wholly committed to doing everything we can to help its victims to achieve justice and get the support that they deserve. The Lords amendments seeking to exempt mesothelioma and industrial disease cases from our reforms to no win, no fee agreements in part 2 of the Bill are not the right way to advance the cause of sufferers.

[Ian Lucas (Wrexham) (Lab)]

Will the hon. Gentleman give way?

[Mr Djanogly]

Perhaps the hon. Gentleman will give me a chance to put forward our opposition to the amendments.

First, the amendments are unnecessary. The legal climate in which mesothelioma cases can be brought has wholly changed in recent years, and nothing in our proposals should prevent cases from being taken or those affected from receiving appropriate damages. Secondly, in making an exception to our change to the no win, no fee conditional fee arrangements regime, the amendments would create inconsistency and damage the wider goal of our reforms—to restore sense to the costs of litigation, which have been substantially increased by the way in which no win, no fee cases operate, largely to the detriment of defendants.

[Ian Lucas]

How can appropriate damages be recovered by mesothelioma victims if a proportion of those damages is to be taken from them to cover the cost of legal fees?

[Mr Djanogly]

This is not a question of whether mesothelioma sufferers receive adequate legal support but of how much their lawyers get paid for providing it. We are saying that that must be more reasonably assessed, and that is the point of our reforms.

Let me remind hon. Members that the current regime of no win, no fee conditional fee agreements was meant to promote access to justice but has frequently ended up as something of a racket allowing risk-free litigation for claimants, inflated profits for legal firms, and punitive additional costs for defendants.

[Nia Griffith (Llanelli) (Lab)]

Can the Minister tell us of one case in which a mesothelioma sufferer has taken something to court that did not deserve to go there—one case in which a sufferer from this horrible disease, which leaves them dying in a horribly painful way, has in any way abused the system?

[Mr Djanogly]

Let me repeat what I said: this is not a question of whether the person making a claim has a valid claim but of how much his lawyer gets paid. That is what we are looking at, and that is where the system needs reform. To be clear—I say that because I have heard that some hon. Members are not clear about this specific point—I emphasise that under our proposals the client’s lawyer’s costs will still be recoverable from the losing other side.

However, clauses 46 and 48 abolish the recoverability of the success fees and insurance premiums that have pushed up prices for everyone.

[Helen Jones]

Is the Minister aware that the lead asbestos case was very complicated and took six years to get to the Supreme Court? Does he really think that lawyers will take those kinds of cases without an assurance that their costs will be met?

[Mr Djanogly]

As I have just said, lawyers’ costs will be met in the usual way. What we are talking about is the success fee. That is where the problem has come into the system.

[Helen Jones]

Will the Minister give way?

[Mr Djanogly]

No; if the hon. Lady listens, I will answer the question.

Our reforms are intended to redress the unfairness that exists in our civil litigation system between claimants and defendants. They will move conditional fee agreements back to the position that they were in before the Opposition’s disastrous reforms in the Access to Justice Act 1999. Our proposals are premised on the similar treatment of classes of cases, based on the costs or difficulty of bringing a claim. The Lords amendments would introduce a new unfairness between claimants, based only on the type of disease or illness, and essentially dependent on whether it was caused in the workplace.

[Andrew Percy (Brigg and Goole) (Con)]

A number of my constituents who worked on the docks in Goole and in power stations have been affected by this illness. There seems to be a lot of confusion in this debate. For simplicity’s sake, will the Minister say whether my constituents who worked at the docks and who are suffering from this awful disease will receive more or less money in compensation under the Government’s proposals than they receive at the moment?

[Mr Djanogly]

That will depend on the arrangements that they make with their lawyers. Under the new system, for the first time since the Opposition’s reforms which did so much to create a compensation culture in our country, the client will have an interest in what their lawyer is being paid. Until we get back to that situation, there will be an ongoing ratcheting of costs, which is not in the interests of such claims.

The Opposition’s Lords amendments rate one sort of claim above another. Somehow, a mesothelioma claim is automatically more worthy than a personal injury claim. The Government simply do not accept that. I acknowledge the concern in the other place, which underpinned Lords amendments 31 and 32, that the new arrangements will prevent lawyers from being willing to take mesothelioma cases and leave claimants out of pocket, but I believe it to be mistaken.

[Toby Perkins (Chesterfield) (Lab)]

The Minister says that a mesothelioma claim is not, by definition, more serious than a personal injury claim. That obviously depends on the personal injury claim. However, every single mesothelioma claim is a serious matter. Will he at least acknowledge that there is a difference between all mesothelioma claims and some personal injury claims?

[Mr Djanogly]

All non-clinical negligence personal injury cases, including respiratory disease claims, have been out of the scope of legal aid since 2000—let us acknowledge that—under changes introduced by the last Government. Although some expert reports may be required in respiratory disease cases, the Government are not persuaded that they differ substantially from other personal injury cases in a way that merits the retention of the recoverability of after-the-event insurance premiums.

[John Woodcock (Barrow and Furness) (Lab/Co-op)]

The Minister may be aware that Barrow is the constituency with the second highest number of mesothelioma suffers in the country. Does he not understand how insulting and potentially distressing it is to those sufferers to be branded as part of a compensation culture?

[Mr Djanogly]

As I said, this is a question of what lawyers get paid. I am in no way assessing the vulnerability of the individuals whom the hon. Gentleman mentioned.

I point out to the hon. Gentleman that significant steps have been taken in recent years to lower the barriers to bringing compensation claims for these disastrous diseases. A fast-track procedure for mesothelioma cases has been introduced in the High Court. Over the past few years, various legal changes, including primary legislation such as the Compensation Act 2006 and judgments of the Supreme Court, have removed many of the hurdles for sufferers of respiratory diseases in bringing claims.

The legal climate in which such cases are brought has been transformed in recent years. Judgments of the Supreme Court have removed many hurdles, and a judgment only last month means that victims of this dreadful disease who are able to trace an insurer will now be paid and not miss out on compensation. As I said, a fast-track procedure has been introduced to ensure that claims are dealt with as quickly as possible.

A key outstanding barrier is identifying the employer’s liability insurer when an employer no longer exists, and the Department for Work and Pensions continues to work with stakeholders to see what more can be done to address that. Overall, however, cases are much less difficult to undertake than in the past, and there is no reason to believe that legal firms will stop bringing them, even under the new arrangements, or that they will be particularly expensive.

[Kate Green]

Does the Minister not accept, though, that some cases will now simply go unrepresented and unpursued, and that victims will instead have to rely on the Government’s own compensation scheme, in which the average payment is £16,000? This change will be an expensive choice for the Government, because it will lock people out of access through the courts.

[Mr Djanogly]

Decisions are made about such cases now, and even under the existing system, if there are large sums involved, ATE insurance companies want to know the likelihood of losing. A lawyer also has to make such an assessment. As things stand, the balance is not right, and we want to rebalance the situation.

Partly as a consequence of what I have said, I do not believe we should accept the view that critics sometimes advance that our reforms will leave victims of this terrible disease out of pocket. It is true that under our plans individuals will pay legal costs out of their general damages. Crucially, though, damages for future care and losses are protected, and general damages are being increased by 10% to offset a success fee capped at 25%. It is of course entirely up to the lawyer whether any success fee is taken from a claimant’s damages at all.

[Mr Andy Slaughter (Hammersmith) (Lab)]

Even if damages for future care and losses are protected, the average life expectancy for advanced mesothelioma has been disclosed as being about nine to 12 months—so that is a great comfort. How can the Minister seriously tell the House that there will be no loss of damages given that the 10% uplift, which is very indistinct, is compensated for by a 25% loss of damages? We should not blame the lawyers, we should blame the Government, who are taking damages away from mesothelioma and asbestosis victims.

--- Later in debate ---

[Mr Djanogly]

I am actually saying quite the opposite. I am saying that damages are going to be increased, not decreased.

The aim of our reforms is to end the current situation whereby legal firms can get away with charging what they want because the claimants do not have a stake in keeping an eye on the bill. At a time when the cases in question are becoming easier to bring, we should not accept amendments that would reduce pressure on legal firms to cut their fees. Instead, our focus should be on cutting inflated margins, not making exemptions for one type of disease.

I understand claimants’ fear of being left liable for high defendant’s costs should they lose, but under our reforms, we are protecting personal injury claimants from the risk of paying such costs, including in industrial disease cases, by introducing qualified one-way costs shifting.

[Helen Jones]

Even if I accepted the Minister’s argument about plaintiffs keeping an eye on fees, which I do not, how would someone with no legal training who was dying of mesothelioma be supposed to keep monitoring their lawyers’ fees?

[Mr Djanogly]

People entering into a conditional fee agreement have a relationship with their lawyer, and it is quite right that someone who employs a lawyer has some idea of what is on that lawyer’s clock and what they are charging. That is very important. If someone is sick, they will have family who can help them through their sickness.

The Government are determined to see more proportionate costs in civil litigation, with greater fairness in the risks borne by parties. Without our reforms, high and disproportionate costs in civil litigation would continue. Moreover, if the Lords amendments were accepted, claimants in mesothelioma cases would have an advantage over others who may be suffering from equally debilitating conditions. That cannot be justified.

[Mr Slaughter]

I will be as brief as I can, because a number of my hon. Friends also wish to speak to the two amendments on industrial diseases. If appropriate, Madam Deputy Speaker, I shall say a brief word about the Lords amendment on metal theft as this is the only opportunity to do so—[Interruption.] In that case, I shall deal with it later.

The first amendment ensures that victims of respiratory industrial diseases—for the main part asbestos-induced diseases such as mesothelioma—will not have their damages taken away by lawyers and insurers. The second ensures that victims of industrial diseases as a whole are treated in the same way.

The Government plan to allow claimants’ lawyers to take up to 25% of industrial disease victims’ damages and for the victims’ insurers to take an uncapped additional amount. The current system says that the losing defendant or their insurer should pay the costs of bringing that case. They are still highly contentious and contended cases. Some 60,000 people in Britain will develop mesothelioma over the next decades because of past exposure, and almost 40,000 have died thus far—the highest levels in the world. The Association of British Insurers continues to obstruct victims of asbestosis in high-profile, Supreme Court cases to try to absolve insurers from paying out. After a recent ruling in favour of victims, the Insurance Times headline read, “Disappointment at pleural plaques ruling”.

Asbestosis is not the only problem, which is why the other place made two amendments. One amendment was specific to respiratory disease and the other encompasses serious industrial diseases. These are not slips and trips, minor accidents at work or road traffic whiplash cases; they are diagnosable medical conditions that can, with difficulty, be proved to have resulted from a breach of duty by an employer. Symptoms include deafness, blindness, spinal degradation, leukaemia, cirrhosis of the liver caused by exposure to chemicals, organ damage, loss of limbs and more.

The diseases are the by-product of hard and often manual work over decades. They are inflicted on people who have spent their lives contributing to the economy of this country in heavy industry, manufacturing and public services. Many of the diseases do not manifest for years—they are the legacy of our heavy industries and of our proud traditions of manufacturing. In time, modern industries will cause diseases as yet undiagnosed.

The Minister has repeatedly said in debates on the Bill that the aim of part 2 is to fix the “compensation culture” or to lower motor insurance premiums, but whose car insurance is affected by mesothelioma sufferers getting their full and just compensation?

Eighteen noble lords from all parties and none signed a letter supporting the amendment. I shall not name them all, but I should mention Lord Alton and Lord Bach, who moved the amendments in the House of Lords, Lord Avebury, and the late Lord Newton, who spoke so powerfully to the amendments. They demonstrated the depth of feeling that the Government should be so crass as to treat mesothelioma sufferers in the same manner as those affected by whiplash. As the noble Lord Avebury said:

“Unscrupulous claimants may be able to fake road traffic injuries, but not mesothelioma or asbestosis. It is impossible for the victims of these horrible diseases to launch a frivolous or fraudulent claim, and it is unconscionable that people on their deathbeds should be mulcted of thousands of pounds out of the damages that they are awarded by the courts.”—[Official Report, House of Lords, 14 March 2012; Vol. 736, c. 313.]

The Government contend that that is not relevant and that they are trying to get people to shop around for the best rates, but who, diagnosed with mesothelioma, with perhaps months to live, will shop around for the lawyer that takes the least damages from him—the so-called skin in the game so beloved of the Minister? On average, cancer caused by asbestos exposure kills in about 12 months. General damages are, on average, about £65,000. The victim’s lawyer will now receive up to 25% of that sum. The after-the-event insurer, who insures the claimant in case his action fails, will take an unlimited sum for the premium. Because insurance companies fight mesothelioma cases to the end—often until after the victim dies—such cases are inherently risky to bring, and the cost of insuring the claim can be huge.

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[John Woodcock]

It is an honour to follow such a powerful and brave speech from the hon. Member for Chatham and Aylesford (Tracey Crouch). She spoke incredibly well on the subject.

I wish to speak briefly in support of Lords amendment 31, and I hope that the Under-Secretary of State for Justice, the hon. Member for Huntingdon (Mr Djanogly) will listen carefully. I also hope against hope that he will reconsider his decision, because the sight of him sitting there laughing while this subject is being discussed, and labelling victims in my constituency and across the country who suffer horribly as being part of a compensation culture and a racket, does a gross disservice to those people, and ultimately to the Government he represents.

Let us be clear—as the Bill stands, individuals who have contracted horrific and rapidly life-shortening diseases could now be required to pay the cost of bringing their case out of the damages they receive rather than have the defendant meet the costs. This represents a major change to the underlying principles of criminal damages cases in the UK, creating the potential for unlimited costs to be borne by successful claimants. In extremis, it could lead to a defendant, having successfully proven that their employer’s negligence has left them with an almost certainly fatal disease, being left with a bill to pick up for bringing the case.

[Mr Djanogly]

It is important to get this right. The particular disease falls within the Government’s proposals to introduce one-way cost shifting, which will mean that losing claimants will not pay defendants’ costs.

[John Woodcock]

As the shadow Minister has made clear, it does not cover disbursements. The Minister has not been able to set out a proper case. He has tried to claim that compensation will go up as a result of these reforms. Frankly, all the people looking at this—I see the Minister nodding his head now—do not agree. Given the level of concern and alarm expressed by victims who contract the disease incredibly quickly, many thousands of people are left wondering when they are going to be struck, and the families left behind cannot understand the Government’s attitude towards this incredibly difficult subject.

On average, those who successfully pursue claims for mesothelioma see compensation in the order of £65,000. Under the unamended Bill, their lawyer could receive 25% of that. On top of that, their after-the-event insurer could take an increased premium, and because mesothelioma claims are risky, those premiums can be very high indeed.

From my own constituency, I have seen the appalling impact of mesothelioma on the lives of those who suffer and their families. The industrial tradition of Barrow and Furness means that shipyard workers are particularly affected because of the historic use of asbestos in ship construction. This has left the town, as I said in my intervention, with the second-highest mortality rate from this disease among males anywhere in the country—topped only by West Dunbartonshire, which is, of course, another shipbuilding area. These people served their country through the fine ships they built to defend our shores. They were failed by successive Governments, and this Government now have a duty to address that wrong. That is why sufferers have pushed and pushed for better compensation, and that is why it would be a travesty for this House to vote today to reduce the payments they can get.

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[Mr Llwyd]

I agreed with everything the hon. Member for Wrexham (Ian Lucas) said. His views are shared by many Members on the Opposition Benches—and one or two on the Government Benches as well, I am sure.

I want to speak briefly to amendments 31 and 32. I am sure I am not the only MP who has received many representations on the important issue in question. Lawyers should not skin people who are dying. I was a lawyer—both a solicitor and a barrister—and I would be ashamed of taking back as much as possible from the damages claims of people who may not have long to live. That is disgusting, but there is a very real worry that the Government are creating that problem in attempting to address what they call the compensation culture. Many of us do not recognise that such a culture exists, but even if it does, it involves petty claims such as whiplash injuries and people tripping up, or pretending to trip up, on pavements. In trying to sort out that problem, the Government are creating a problem for industrial injuries cases.

Under clause 43, a success fee under a conditional fee arrangement will not be recoverable from a losing party in all proceedings. Instead, it will be paid out of the damages of the injured person, meaning they may lose 25% of their damages.

[Mr Djanogly]

I should address this point as it has been raised about half a dozen times. The 25% is a maximum. Because under the current system people will always pay the lawyers the maximum, Members seem to be assuming that under the new system the maximum will still be claimed, but under the new system people will be encouraged to pay their lawyers less, not the maximum.

[Mr Llwyd]

Well, that is what a person such as the Minister thinks will happen, as he believes in the market ideology. He was a commercial lawyer, and never got his hands dirty as some of us have had to do over the years.

Clause 45 removes the recoverability of the after-the-event—ATE—insurance premium from the losing defendant. Therefore, that premium will in many instances be taken out of the damages awarded to the injured party. The amendments passed in another place would exclude industrial disease claims from these provisions, thus allowing the claimants to keep 100% of their compensation. We must uphold those changes and exempt such individuals and therefore prevent what would be a glaring miscarriage of justice.

Industrial disease cases are utterly different from road traffic claims. Cases centring on diseases such as asbestosis and mesothelioma are complex and require intensive research before liability is admitted. As a result, fraudulent industrial disease claims are almost an impossibility. Because of their complexity, such claims cannot be dealt with by inexperienced litigators, but if there is neither the uplift required to allow a solicitor to take a case on a CFA nor a recoverable ATE premium, many experienced solicitors will be unable to take on cases where the chance of recovering their costs is low without the client having to pay them from their damages. That is particularly true of low-value cases in which the additional liabilities may dwarf the amount of damages awarded, leaving the claimant worse off than when they started.

The potential for injustice, I am afraid, is huge. The defendant in such cases is often a multi-million pound organisation with access to teams of lawyers. It is also worth noting that after-the-event insurance also pays for additional expenses such as medical reports, without which industrial disease claims would fall at the first hurdle. Thus, without expert reports, which are necessary to prove liability, and the support of experienced solicitors who know this area of law thoroughly, claimants will simply be unable to proceed with their cases.

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[Mr Speaker]

I am grateful to the hon. Lady for her point of order. The Minister is welcome to respond if he wishes, but he is not under any obligation to do so.

[Mr Djanogly]

indicated dissent.

[Mr Speaker]

No, he is not going to respond.

The hon. Member for Warrington North (Helen Jones) will know that I came into the proceedings relatively late, and in those circumstances it is not for me to act as umpire on the matter, which would be wrong. However, her observations, sincerely expressed, have been noted, and all I would say is that each and every one of us in this place is responsible for his or her own behaviour and for the impression that we give in the conduct of debate. Let us leave it there for tonight.