Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Alton of Liverpool Excerpts

Monday 23rd April 2012 Lords Chamber

[The Chancellor of the Duchy of Lancaster (Lord Strathclyde)]

The Motion before the House is that we should deal with amendments that have come back from the House of Commons. If noble Lords wish to have a debate about process and procedure in the House of Commons, they can table questions and debate the issues. This is not the time for that; this is a time to deal with the amendments that we have before us.

[Lord Alton of Liverpool]

My Lords, before leaving that point, it was the Minister who raised the question of procedure and who said that these matters had been thoroughly dealt with in another place. The fact remains that the issue of mesothelioma, which was quite properly raised by the Minister’s noble friend Lord Higgins, was not debated on Second Reading, in Committee or on Report at all in another place. Had it not been for the amendment that your Lordships passed, it would not have been debated at all in another place. To give it only one hour at that stage and for it again to be timetabled is indicative of the need to reform not this place but, in light of what we heard earlier, the other place.

[Lord McNally]

The four interventions, interestingly, have all come from ex-Members of the other place.

Motion A and Amendment 1 in the name of the noble Lord, Lord Pannick, described by him on Report as a purpose clause, reflect that which features in the Access to Justice Act 1999. Amendment 1 would place a duty on the Lord Chancellor to secure within the resources made available and in accordance with Part 1 of the Bill that individuals have access to legal services that effectively meet their needs.

Despite what was said in the House of Commons by the shadow Justice Secretary, the basis for the Government’s opposition to this amendment has been clearly explained in this House. While I am grateful to the noble Lord for this new amendment, I am afraid that it has not addressed the issues with the original Amendment 1, and the Government oppose the new amendment on the same substantive grounds as we opposed the original construction. In addition to those issues which I will turn to in a moment, Amendment 1B would remove the duty in Clause 1(1) for the Lord Chancellor to secure that legal aid is made available in accordance with Part 1 of the Bill.

On Report I spoke at length about the technical issues with incorporating provisions of the Access to Justice Bill, where only excluded services are specified, to this Bill, where included services are specified. The Bill before us today, if enacted, will represent Parliament’s clear intention as to which services are to be capable of being made available to people by way of publicly funded legal aid services, and therefore to meet their needs in that regard. Any benefit of such a provision akin to that in Section 4(1) of the Access to Justice Act is simply not present in the context of this Bill. Further, both amendments conflate access to justice as a constitutional principle with the provision of legal aid. Access to justice means access to the courts, and does not mean access to a publicly funded lawyer whenever one is sought.

A further duty to provide unspecified legal services must also, in part, serve to muddy the waters and create uncertainty in respect of the services which might be funded under the Bill. It was said by the noble Lord when moving his original amendment that, as a result of the qualifications in it, the amendment,

“does not impose an independent duty which trumps the specific contents of Part 1”,

and that it,

“does not require any further expenditure by the Government”.—[Official Report, 5/3/12; col. 1559.]

I am afraid that we cannot agree with this analysis. By virtue of introducing a new duty on the Lord Chancellor, a potential cause of action must be created where such a duty is said to have not been met. Therefore, by definition, the Lord Chancellor must be at risk of being compelled to provide additional, and as yet unidentified, services to meet that duty or the duty would be a redundant one. This risk is heightened by the fact that both amendments refer to legal services, which are far broader than the legally aided services that the Bill is intended to provide. I acknowledge that this is the first time for the House to hear that observation. Such a scenario would entirely frustrate the Government’s intention of bringing certainty and clarity to the range of services that can be funded under legal aid. The amendment also has the potential to create a great deal of unhelpful and unnecessary litigation as the boundaries of that duty are tested in the administrative court.

The Bill’s purpose is clear, as are the Lord Chancellor’s duties under it. Therefore, I ask that this House does not insist on its Amendment 1. The Commons has decided against it and in my opinion the amendment in lieu from the noble Lord, Lord Pannick, will elicit the same response. Therefore, I urge the noble Lord to withdraw his Motion.

Motion A1 (as an amendment to Motion A)

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Moved by

[Lord Alton of Liverpool]

Leave out from “House” to end and insert “do insist on its Amendment 31”.

[Lord Alton of Liverpool]

My Lords, before the vote on 15 March on Report, a cross-party group of 18 Members of your Lordships’ House signed a letter urging us to defend the rights of mesothelioma victims. The House subsequently voted by a majority of 31 in favour of that amendment, which enables victims of asbestos to keep 100 per cent of their much-needed compensation. The amendment adds nothing to the public purse—that is why there is no financial privilege claim against it—but it seeks to support terminally ill victims of mesothelioma and their families.

All sides of your Lordships’ House have agreed that such cases are, as the Minister has just reiterated, not part of a compensation culture. No one has been able to give any examples of fraudulent or frivolous claims, and nothing that the noble Lord has said today would dispute that. Indeed, at no stage during our proceedings has he ever either asserted or implied that. However, I was concerned to see that the Minister in another place, Mr Jonathan Djanogly, in disputing this amendment, said that the current regime,

“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”.—[Official Report, Commons, 17/4/12; col. 265.]

I wonder what the noble Lord has to say in contradicting that assertion made in another place. The Minister there was challenged to name one case where a mesothelioma victim had taken an unreasonable or vexatious case to court. He chose not to do so. On reflection, I am sure that he would want to reconsider linking bogus claims to the issue of mesothelioma.

The Minister then said two other things which I ask the noble Lord, Lord McNally, to ask his right honourable friend the Justice Secretary, Mr Kenneth Clarke, to ponder. One was the suggestion that people dying of mesothelioma should be “watching the clock”, which is a phrase that was used in the other place—in other words, policing what lawyers are charging. He said that,

“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”.—[Official Report, Commons, 17/4/12; col. 268.]

I suspect that when you are dying, especially from a debilitating and excruciatingly painful disease, you may have other things on your mind than watching the lawyer’s clock. As one widow put it:

“Mesothelioma sufferers are in constant pain and always fighting to breathe, they suffer horrendously and they and their families are traumatised at what the future holds”.

She also said:

“Whilst you are trying to cope with the physical and emotional trauma that comes with the words, terminal illness you cannot contemplate the extra worry and anxiety that claiming compensation would bring”.

It is also erroneous to suggest that everyone has relatives to fight their corner for them. Even if they do, should that be their primary concern when a loved one is in the last few months of their life? It is not the job of someone dying of mesothelioma to become the Government’s regulator or watchdog, watching the clock or challenging exorbitant legal fees. That is the job of regulators, not victims of a lethal industrial injury.

The Member for Wythenshawe and Sale East, Mr Paul Goggins, who kindly shepherded this amendment in the Commons, asked with great clarity:

“How can the Minister expect such victims and their families—people who have received the diagnosis and know that they are going to die—to shop around for the cheapest possible lawyer when they need every ounce of their energy to fight their disease?”.—[Official Report, Commons, 17/4/12; col. 278.]

Although our amendment was rejected in the Commons, it once again enjoyed all-party support and the government majority was one of the smallest since coming to office. That underlines the crucial role of your Lordships’ House in scrutinising legislation, especially on a day when the House is once again being told that it must be reformed. It is worth noting, as I did earlier in an intervention following the remarks of the noble Lord, Lord Higgins, that this issue was not even debated in earlier Commons stages. Our Lords amendment gave the Commons its first opportunity to consider an exception for those who had no chance of surviving their illness and little hope of seeing justice done in their lifetime. It is not a bad illustration of what one national newspaper described as “the conscience role” frequently played by this House and how it scrutinises and examines details of legislation and its effects. When an issue of this importance, affecting thousands of terminally ill people can be overlooked at Second Reading and then caught by a guillotine at Committee and Report stages, leaving it completely undebated, that raises some serious questions about which House is most in need of reform.

By sending this amendment back to the Commons, it finally allowed a one-hour debate to occur last Tuesday, although the Member for Scunthorpe, Mr Dakin, was at the very beginning of his remarks when the guillotine fell and we never got to hear what he wanted to say on behalf of his constituents. Other honourable Members of the House of Commons also hoped to speak but were unable to do so.

In the Division which followed, Conservative and Liberal Democrat Members of Parliament were among those who voted for the amendment. The speech by Tracey Crouch, the Member of Parliament for Chatham and Aylesford, who previously worked in the insurance industry, is especially noteworthy. She said:

“It is not my insurance background that drives my real interest in this issue; it is on a constituency basis that I care most. Medway has been highlighted as a hot spot for mesothelioma, which is unsurprising given that the towns have historically provided the industrial hub for Kent, and that the Chatham dockyard was one of the biggest employers for many decades”.

Supporting her, Andrew Bingham, Conservative Member of Parliament for High Peak commented on the all-pervasive nature of this pernicious disease. He said:

“My constituency, like that of my hon. Friend, has a higher than average incidence of mesothelioma. We have no shipbuilding, but there has been significant employment in other asbestos-related industries across the High Peak.—[Official Report, Commons, 17/4/12; col. 271.]

Unsurprisingly, with 30,000 deaths thus far, and many thousands more to come, many honourable Members talked about their own experiences in dealing with asbestos-related cases, and there was a series of very well made speeches. Mr Andy Slaughter, the Member of Parliament for Hammersmith, reminded the House of Commons that it is misleading to suggest that victims would be better off as a consequence of a 10 per cent uplift if some victims were to lose up to 25 per cent of their damages. He said:

“The Government have refused to reduce base costs for lawyers, which would be the obvious way to stop inflated costs. Instead, they are going after victims’ damages. The beneficiaries of all this will be the defendants and their insurers. They will have significantly reduced liabilities if they lose”.—[Official Report, Commons, 17/4/12; cols. 269-70.]

Tracey Crouch said:

“I note the Association of British Insurers is warning that mesothelioma sufferers might not benefit from those reforms if the amendment goes through. I do not believe that, and I want to issue the counter-warning that, on fatal industrial diseases such as mesothelioma, the Government will be judged on what they do to help victims, whether through financial or other types of support.—[Official Report, Commons, 17/4/12; col. 272.]

I spoke to Tracey Crouch earlier today and she told me that if we send this amendment back to the House of Commons she will persist in championing it. The reason why Members feel so strongly was summed up very well by Mr Ian Lucas, the Member of Parliament for Wrexham. He is a lawyer and said:

“I am a solicitor, and I did not go into the law to take damages away from a dying person, pending the outcome of a claim”.—[Official Report, Commons, 17/4/12; col. 275.]

Finally, in resisting the amendment in the Commons, Mr Djanogly said that if it were passed,

“claimants in mesothelioma cases would have an advantage over others”.—[Official Report, Commons, 17/4/12; col. 268.]

An advantage over others? It is hard to think of many advantages enjoyed by victims of mesothelioma. That was an ill-judged and insensitive remark.

The Minister argued that it would be unjust to single out one class of claimants for exemption. Of course it is never possible to do what we would like for everyone—I fully accept that—but does that mean that we can never see the difference between one category of victims and another? Is there not a difference between someone lodging a claim for whiplash and someone who has contracted a terminal illness? Are we really incapable of prioritising or seeing grounds for exceptions, as we have now, for instance, in medical negligence cases—and rightly so?

Noble Lords should recall that mesothelioma has attracted more legal challenges to limit liability for compensation than any other disease. Exceptionally, mesothelioma has a latency period of up to 60 years. It is a fatal disease; there is no cure. No industrial disease places claimants in such difficult circumstances when facing the stress of taking legal action.

It is moving to reflect on the comments of the late Lord Newton of Braintree, who was one of the key supporters of this amendment. Lord Newton, a former Secretary of State, Minister for disabled people and Leader of the House of Commons, referring to victims of asbestos exposure, said:

“I have some experience of claims relating to that disease—or rather to mesothelioma … I think there is a real case for wondering whether we should not maintain assistance to that group of people … this condition is what you might call very slow burn. Exposure to asbestos that occurred very many years ago may give rise much later to mesothelioma, one of the nastiest forms of cancer”.

He concluded by saying:

“I hope my noble friends on the Front Bench will not consider that this amendment would have a scattergun effect but that it is well targeted and deserves careful consideration”.—[Official Report, 30/1/12; col. 1359.]

In a letter to the Times from my noble and learned friend Lady Butler-Sloss, the noble Baroness, Lady Finlay, the noble Lords, Lord Beecham and Lord Avebury, and myself and others, we remarked on the creation of an exceptional injustice if this amendment is not supported. We said:

“Asbestos victims should not, and financially cannot, subsidise other claimants’ access to justice, nor can they afford to defend test cases run by rich insurers”.

The letter urged Parliament,

“to protect asbestos victims from a gross injustice”.

Following the Commons debate, I am glad to say that the noble Lords, Lord McNally and Lord Freud, held talks last week with the right honourable Member for Wythenshawe and Sale East, Mr Goggins, and me. They are actively trying to find ways forward and I welcome that. As one can imagine, we were treated with characteristic respect and understanding. The movers of the amendment made it clear to Ministers that we are looking for a constructive outcome. If it comes to a Division, I hope that the House will continue to support the amendment while we continue to seek an agreed way forward. Society owes a huge debt to those who are now losing their lives to this terrible disease. Thousands of people will lose their lives in decades to come as a result of criminally negligent exposure to asbestos long after the dangers were known to government, industry and health and safety enforcement agencies. I hope that noble Lords will join me in keeping this issue in contention until a just solution is achieved. I beg to move.

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[Lord McNally]

As I made clear in my opening remarks, my noble friend Lord Freud hopes to be able to make a Statement on this by the summer. The House, the insurance industry and sufferers from this disease should understand that we mean business on this. We are addressing this with a real sense of urgency. Whatever happens regarding this amendment, given the plight of sufferers from this disease, they deserve fairness and speed in settlement for the many reasons that have been put forward.

The noble Lord, Lord Howarth, said that there is no virtue in dogmatic consistency and he even had the strong support of my noble friend Lord Carlile in that. Certainly, there is no virtue in dogmatic consistency, but we need to consider the integrity of the legal system as a whole and fairness between different claimants. There are two parallel debates. There are the necessary Jackson reforms of legal costs, which will apply across the board, and the need to move with speed to get a system that deals with the problems of mesothelioma victims as quickly as possible. We can only make our impact assessments.

My noble friend Lord Carlile asked whether we thought that the Jackson reforms will prevent sufferers’ access to justice. We do not believe that. We would not have brought this forward if we had thought it. The point was made about success fees. I repeat that they are not compulsory. As my noble friend Lord Faulks has pointed out, there may be some proper, healthy competition among lawyers that will address the question of success fees.

It is not the responsibility of somebody suffering from a terminal illness to watch the clock as far as costs are concerned. It is the responsibility of government. The Jackson reforms take that responsibility away from claimants. Not just in this particular case but in the broad there was no responsibility on litigants or their lawyers to watch costs. That was the weakness of the whole system. The Jackson reforms put some emphasis back on to the responsibility to watch costs—not on somebody suffering from a terminal illness but through the reforms that we are putting through across the board in this area. For a claimant who does not have to pay a success fee, the 10 per cent uplift could mean more compensation than he or she would otherwise have got. I make no firm claim on that. It is not a question of being callous towards the sufferers. On the contrary, the Government are taking very speedy action to try to get in place an agreement which I am sure we all agree should have been in place many years before.

Sadly, this is not a problem that will go away. That is one of the reasons why I believe that we need a sense of urgency in our approach to this. Although we are now fully aware of the dangers of asbestos, this insidious disease can strike 20, 30 or 40 years after exposure. Therefore, there is a need not for a complicated, expensive, lawyer-based system of compensation, but for a system that will address the needs of sufferers. I am sorry that I cannot help more in relation to making it an exception. Horrific as the disease is, it is not an exception to the way in which the justice system should work. We should have a system in which lawyers get a proper return for the job that they do and in which those deserving compensation receive proper compensation. It is not a case of grabbing 25 per cent of that compensation. Competition and even some morality might drive that out of the system. Even bigger than that is the prize that the Government are seeking: a system that is not lawyer-based but one that is based on need, clearly agreed with the industry. As I have assured the House, we hope to make a Statement by the summer and we hope to have a system in place that brings speed and fairness to the sufferers of this disease. I ask the House to reject the amendment and to support the House of Commons resolution.

[Lord Alton of Liverpool]

My Lords, I am grateful to all noble Lords who have participated in this debate and in the earlier debates. The Minister has, with his usual courtesy, dealt with the arguments that have been put forward today. I reiterate my thanks to him for the time that he has spent with me, with Mr Paul Goggins last week and with the noble Lord, Lord Freud. He has said a number of things this evening on which the House should reflect, one of which was about the new scheme that it is hoped will be brought in in future and which will be a lot less reliant on lawyers. If we can achieve that, I think that there will be consensus in your Lordships’ House that it will be a very significant and purposeful step forward and it is certainly one that I will wholeheartedly support. The noble Lord, Lord McNally, has told us that that announcement will be made in the summer. However, it will require primary legislation, which is not before us, so there will be at least another 18 months from the time of the announcement before anything is on the statute book.

In the course of this evening’s proceedings, there has been dispute between different lawyers and different Members of your Lordships’ House about the practical effects of the law as now drafted on victims of mesothelioma. Pending the announcement in the summer and the new legislation that might come, I beg your Lordships not to play Russian roulette with the lives of people who have a terminal illness. I beg you not to be drawn into either side’s arguments about how this might work out and not to take chances but to preserve, as the noble Lord, Lord McNally, said the amendment would do, the status quo and keep things as they are at the moment until such time as we have something better to put in its place.

Success fees have been mentioned a great deal during the proceedings. The noble Lord, Lord Faulks, said that many lawyers would not want them, the noble Lord, Lord Thomas, said that they should not take them, and the Minister said that they would not be compulsory. However, the Bill provides for lawyers to take, if they wish, up to 25 per cent in compensation. They can take that as their payment, not for the base fee—they will get that anyway—but in addition to the base fee if they are successful in pursuing a case.

I agree with what the noble Lord, Lord Thomas, said earlier that it would be better if such a system were entirely swept away, but it has not been. If we are to wait for regulation, how do we know whether those regulations will be put forward by the Government or whether they will be successful? I do not think that we should do this on a wing and a prayer.

The noble Lord, Lord Avebury, thanked me for my persistence but, 40 years ago, in 1972, the noble Lord issued a pamphlet championing people who were suffering from mesothelioma. Thirty thousand people have died from the disease over the years. As the noble Lord, Lord McNally, has just intimated, probably the same sort of number will die before this is all over.

We are often accused of being preoccupied with fringe issues, but in a week or so, we shall have Workers’ Memorial Day. Surely, this evening, it would be fitting for us to recognise the sacrifice that workers have made in the service of their companies and this country in many heavy industries. This does not affect just those who have worked in heavy industries as even those who washed the clothes of people working in those industries have contracted this awful disease. Surely this is something on which we can raise our voices tonight, knowing that there are Members in another place who wish to pursue this further in the House of Commons and who were denied the opportunity to do so at earlier stages. Many of the issues that we have been debating this evening, which are new, should have been debated in Committee in another place much earlier on. We have been reassured that there are no financial questions. This is not about austerity; it is not about fraud; it is not about ambulance chasing; and it is not about a compensation culture. However, it is about elementary justice. I hope that your Lordships will agree with my Motion. I wish to test the opinion of the House.