Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Jonathan Djanogly and Elfyn Llwyd(12 years, 7 months ago)
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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.
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.
Oral Answers to Questions
Debate between Jonathan Djanogly and Elfyn Llwyd(12 years, 11 months ago)
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Mr Djanogly
With my honourable colleagues on the criminal side of the Department, I am looking at many areas in which to speed up court processes. Indeed, the speed of the magistrates court process has increased dramatically since we came into power.
Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)
That is all well and good but what the Minister does not say is that people who need debt, welfare benefit or housing advice will now be out of scope, as he well knows, and that that will have a knock-on cost. This is simply short-termism. On the definition of domestic violence, he also knows that far more people will be litigating in person, which will also be a waste of money.
Mr Djanogly
I must put the right hon. Gentleman right: we are not ending debt advice or advice in some of the other areas he mentioned. In fact, we will still be spending some £50 million on social welfare advice.
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Jonathan Djanogly and Elfyn Llwyd(13 years ago)
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Mr Djanogly
I welcome the hon. Member for Darlington (Mrs Chapman) on the occasion of her first outing at the Dispatch Box.
Most of what was said by the hon. Member for Hammersmith (Mr Slaughter) concerned the scope of civil legal aid, and was therefore not directly covered by the new clauses and amendments. It would have been good if he had discussed all the amendments that he had tabled, but he could not even do that. However, he certainly showed us once again that he knows how to spend taxpayers’ money, but not how to save it. He mentioned only one saving, when he said that he would have proceeded with criminal contract competition to save money rather than cutting social welfare law. Criminal competition in line with Labour’s model would have secured a very small reduction in the £180 million spent on police station advice—a reduction of only about 10%—which is not really enough. The hon. Gentleman will have to say where else he would make cuts. When Labour tried to address contracting, it failed, and it had to pull its contracting proposals in 2009.
Amendment 123, to which the hon. Member for Hammersmith spoke, is intended to alter the provisions in relation to the independence of the director of legal aid casework. That subject was debated substantially in Committee, but having heard the hon. Gentleman speak about it again, I still fail to understand the rationale behind the amendment, and, as I will explain, I consider it unnecessary. Let me briefly explain the role and key functions of the director, and also explain why I believe that independence is important and why it is already enshrined in the Bill.
Under the provisions, the Lord Chancellor is obliged to appoint a civil servant as a statutory office holder who will be responsible for making funding decisions in individual cases, as well as funding decisions in relation to exceptional case applications under the Bill. The statutory office holder is to be known as the director of legal aid casework. The Lord Chancellor is also obliged to provide civil servants to assist the director in carrying out their functions.
Under the new structural arrangements, clause 4 is potentially the most important provision. It ensures that the director has independence in making funding decisions, and is free from any political interference in making those decisions. That independence is enshrined specifically by subsection (4), which the hon. Member for Hammersmith wishes to delete, and which prohibits the Lord Chancellor from giving guidance or directions in individual cases. There are provisions in the clause that oblige the director to comply with directions given by the Lord Chancellor and to have regard to guidance issued by the Lord Chancellor, but crucially they cannot relate to individual cases.
The protection of the director against interference in individual cases is an important safeguard. The Bill already establishes the director in a way that maintains and protects the director’s independence of decision making. The director is a separate office from the Lord Chancellor created by statute. I therefore believe that the Bill already establishes a proper role for the director, free from any political interference in individual cases. I therefore urge the hon. Gentleman to withdraw the amendment.
Mr Llwyd
On a point of order, Mr Deputy Speaker. I want to ask the Minister whether progress has been made on introducing a clause that would allow an appeal against the granting of bail. A concession was given in Committee, and several Members have tabled amendments, but we will not reach them today. Will the Minister update us?
Mr Djanogly
I would dearly have loved to reach the provisions relating to bail, and I think the right hon. Gentleman should ask the official Opposition why we have not done so.
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Jonathan Djanogly and Elfyn Llwyd(13 years ago)
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Mr Djanogly
My right hon. Friend makes a good point. High levels of successful appeals perhaps show that too many cases are going before the tribunals in the first place. The other day, I saw a figure of about 80% for special educational needs tribunals, which was not very impressive either. I can also tell him that I am personally engaging with Ministers in the Home Office, the Department for Work and Pensions and the Department for Education with the specific intention of getting them to work with the Department of Justice to improve their initial decision making. I am pleased to say that they are all are working with us, and that they want to make the system better. This is a matter of significant concern to me, not least because I would like to see fewer appeals relating to my Department coming through the courts and tribunals.
The hon. Member for Brighton, Pavilion (Caroline Lucas) talked about domestic violence, immigration and legal aid. She also talked about people who fall outside the domestic violence immigration rule, such as EEA nationals. As I mentioned earlier, we are looking at cases of EEA spouses who have suffered dramatic abuse. The right hon. Member for Dwyfor Meirionnydd mentioned immigration judicial reviews. I think that he accused the Government of putting appellants into a Catch-22 situation because legal aid would not be available for immigration appeals or for some judicial reviews. I can tell him, however, that people will still be able to appeal immigration decisions themselves and, as is often the case at the moment, they will still be able to get legal aid for a subsequent judicial review, as long as it is not on exactly the same or substantially similar issues, or on a removal direction. As I said earlier, we are making various exceptions to the exclusions, which will include ensuring that, when there has been no possibility of an appeal, legal aid will remain for judicial review.
My right hon. Friend the Member for Bermondsey and Old Southwark raised various points about immigration, and I will write to him about those. He specifically mentioned children, as did other hon. Members, so I shall briefly address that point. In most immigration cases, a child’s interests are represented by their parent or guardian. Most cases in which a child is unaccompanied involve an asylum claim, and legal aid will remain for those cases as at present. Unaccompanied children with an asylum or immigration issue would have a social worker assigned to them, whose role would include helping the child to gain access to the same advice and support as a child who was permanently settled in the UK. They could also offer assistance with filling in forms and explaining terms, and give emotional support. Legal support in such immigration cases may be found, if needed, from law centres and from pro bono legal representation. The Refugee Council provides services for separated children, which can include litigation friends.
A number of hon. Members asked how we justified plans that could disproportionately affect women. That question has also been asked in relation to disabled people, ethnic minorities and people who live in rural areas. The equalities impact assessment, published alongside the Government’s response to consultation, sets out our analysis of how the reforms will affect people with protected characteristics as set out in the Equality Act 2010. We have identified the potential for the reforms to have a greater impact on some groups, but we believe that those impacts are proportionate, and justified by the need to meet our objectives, including the pressing need to make savings from legal aid. We are also keeping discrimination claims relating to a contravention of the Equality Act 2010 within the scope of legal aid, which we consider will make a significant contribution to the fulfilment of our public sector equality duty.
The hon. Member for Stretford and Urmston asked about the removal of legal aid in many family cases, which she said would remove access to justice from many people. She asked how that could be right. Legal aid will remain available for family mediation and private family law cases, including private law children and family proceedings and ancillary relief proceedings. We want to encourage more use of such mediation. In ancillary relief cases, courts will be able to make orders for payment against a third party or a party who has the means to fund the costs of representation for the other party. Removing costly and often unnecessary legal aid does not mean removing access to justice. Litigants in person already feature in the justice system. Judges and magistrates currently assist litigants in person without compromising their impartiality, and we expect that to continue.
Finally, I was asked whether we expect all cases to be resolved through mediation. As I said earlier, the answer is categorically no. Cases involving domestic violence and child abuse, and emergency cases will still not be required to go through mediation. In addition, exceptional funding will be available when necessary for the UK to meet its international and domestic legal obligations via a proposed scheme for excluded cases. On that note, I rest my case.
Amendment 10 agreed to.
Mr Elfyn Llwyd
I beg to move amendment 80, page 99, line 21, leave out ‘other than’ and insert ‘including’.
Mr Djanogly
That is hard to say, because it depends on the extent to which children will come within the scope of exceptional funding, but we believe that the figure for exceptional funding will be £6 million, and that a significant proportion of that would be related to children’s claims. I will return to that.
The figure does not account for the NHS Litigation Authority paying after-the-event insurance premiums for policies covering the cost of expert reports in some cases. My hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips) made that point very well. Based on figures published by the compensation recovery unit on claims settled, clinical negligence cases made up just over 1% of personal injury claims in 2010-11.
While Opposition Members were speaking, a thought came to my mind. Clinical negligence forms about 1% of the wider personal injury market. The last Government ended legal aid for personal injury claims, except in relation to clinical negligence. I am looking for help from Opposition Members because it is bizarre to hear them defend their position with such vehemence and conviction when their party scrapped 99% of this category. Let me develop the point.
Labour Members seem to be saying that if a drunk driver hit someone and caused brain damage, the injured person would not get legal aid. But if the same victim were brain-damaged to the same extent by a negligent doctor, they seem to be saying that that person should get legal aid—[Interruption.] If I have missed something, I am all ears. The hon. Member for Kingston upon Hull East (Karl Turner) may want to explain why I am wrong. The Opposition must find some consistency in their position.
Mr Djanogly
The injured person could make a claim, but so could the person who suffered clinical negligence. The point is, as the hon. Gentleman knows, that the position is inconsistent.
We recognise that many clinical negligence cases involve serious issues, but for most a conditional fee agreement will be a suitable alternative to public funding. According to NHS figures for 2010-11, 82% of clinical negligence cases, where the funding method is known, were funded by means other than legal aid. That is the current position. We therefore consider that legal aid is not justified in such cases, and that our limited funding would be better targeted at other priority areas, such as those involving physical safety, liberty and homelessness. However, we have proposed an exceptional funding scheme to ensure that some individual clinical negligence cases will continue to receive legal aid when failure to do so would be likely to result in a breach of the individual’s right to legal aid under the Human Rights Act 1998 or European Union law.
In considering whether exceptional funding should be granted, we will take into account the client’s ability to present their own case, the complexity of the matter, the importance of the issues at stake, and all other relevant circumstances. As I said to my hon. Friend the Member for Hastings and Rye (Amber Rudd), our impact assessment estimates that we will continue to spend some £6 million of the £16 million that we currently spend on representation in clinical negligence cases.
Oral Answers to Questions
Debate between Jonathan Djanogly and Elfyn Llwyd(13 years, 10 months ago)
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Mr Speaker
I appreciate the comprehensiveness of the replies, but greater economy would facilitate progress.
Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)
Does the Minister appreciate that those who practise welfare law have traditionally not been highly paid, and does he realise that swathes of firms are likely to disappear? Who will stand in that breach, because those who are most in need are the least likely to be helped in those circumstances?
Mr Djanogly
We believe that a cultural change is needed. We need to move away from the immediate rush to lawyers and courts, whether through mediation or, if a court alternative is required, a conditional fee arrangement, rather than legal aid. Much more should be made of those alternatives.
Courts Service Estate
Debate between Jonathan Djanogly and Elfyn Llwyd(13 years, 11 months ago)
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Mr Djanogly
My hon. Friend the Member for Burton (Andrew Griffiths) secured an Adjournment debate in July, and I think he accepted the need to make savings, but urged Ministers to consider the wider impacts. There is a high density of county courts in Staffordshire and west Mercia. Burton sat for 199 days in 2009-10, and there are no members of the judiciary based permanently at the court. Although facilities are adequate, closure would mean that Her Majesty’s Courts Service would not be liable for an additional investment of around £450,000. None the less, I would of course be delighted to meet my hon. Friend to discuss the matter further.
Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)
The maintenance figures used by the Minister to justify closures in Wales were wildly inaccurate. On the second attempt he got them wrong again, and on the third attempt they were wrong yet again. He is using fairytale figures to support his arguments. The closure of Pwllheli magistrates court—which was vehemently opposed by the Lord Chief Justice, the presiding judge and everybody who knows anything about that area of Wales—leaves my constituency with one court to serve a patch that measures 100 miles north-to-south and 100 miles across. Is that local justice?
Mr Djanogly
Having considered the matter, we believe that local justice will be maintained in the hon. Gentleman’s constituency. The fact of the matter is that Pwllheli magistrates court has a very low utilisation rate—29% in 2009-100—offers limited facilities for victims and witnesses, and is only partially disability-compliant. The work undertaken at that court can be easily accommodated in the recently purpose-built Caernarfon criminal justice centre, which offers far superior facilities for all court users.
Oral Answers to Questions
Debate between Jonathan Djanogly and Elfyn Llwyd(14 years, 4 months ago)
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Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)
5. How many representations he has received (a) in favour of and (b) against his recent proposals to close a number of magistrates courts; and if he will make a statement.
The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)
We are four weeks into a 12-week public consultation process. As such, the responses to each of the 16 consultation papers have not yet been collated and analysed. This will happen once the consultation closes on 15 September. However, I can confirm that, as of 15 June, there had been 20 letters to Ministers in this Department from hon. Members and Welsh Assembly Members regarding the proposals. Two Adjournment debates on the consultations have also been held.
Mr Llwyd
I am grateful for that detailed response. I have the great pleasure and honour to represent the good people of Dwyfor Meirionnydd, which is 100 miles from north to south and 90 miles from east to west. It currently has two magistrates courts. Under the Government’s plans, however, that will be down to one, making a complete and utter mockery of any idea of local justice. May I ask the Minister to think again and consider carefully—and I mean carefully—all the consultations and replies he gets? In the meantime, will he ask his right hon. and learned colleague, the Secretary of State for Justice, to extend the consultation period, because in my 20 years in this place I have never known a serious consultation to take place during August?
Mr Djanogly
The hon. Gentleman says we should think again, but we are thinking—we are in a consultation process, to which he is entitled and welcome to make comments. There is one court in his constituency on whose closure we are consulting. It is envisaged that work from this court will be transferred to Caernarfon magistrates court, which is approximately 20 miles away. The court in question has a very low utilisation rate, at just 28.9%. It sits two days per week in one courtroom and its facilities are generally considered to be inadequate.