Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Beith Excerpts

Wednesday 29th June 2011 Commons Chamber

[Mr Clarke]

No, I am sorry. I respect the right hon. Gentleman, but I must move on.

I have said that ordinary citizens find the civil law a rather nightmarish experience when they resort to it. Thanks to the present scope of legal aid and the way in which the no-win, no-fee system operates, many people and, in particular, many small businesses live in fear of legal action. I accept that access to justice for the protection of fundamental rights is vital for a democratic society—something on which I will not compromise. However, our current legal aid system can encourage people to bring their problems before the courts when the basic problem is not a legal one and would be better dealt with in other ways. The scope of legal aid has expanded too far. It cannot be right, for example, that the taxpayer is forced to pay for legal advice to foreign students whose visa applications are turned down. There are many other examples.

Our legal aid system also faces a completely unignorable problem of affordability. I have listened to arguments in the media today challenging that, but we have by far the most expensive system in the world, after Northern Ireland, where I am sure the same problem will be tackled. It costs £39 per head of population in this country, each year, compared with £8 in, for example, New Zealand, which has a similar system of law. In any circumstances our system would need reform; in the country’s current financial crisis reform is imperative.

I have some advice for Labour Members. I do not usually give gratuitous advice, but I think the Labour party is facing one of the problems that we faced in 1997. It should find the courage to admit that it made some mistakes and left some things in a mess. It has been acknowledged by my opposite number, the right hon. Member for Tooting (Sadiq Khan), that, on Labour’s watch:

“Playing tough in order not to look soft made it harder to focus on what is effective”—

wise words. I thought, when we set off on this process of consultation, I had the widespread support of many Opposition Members. I ask the right hon. Gentleman to reflect on the way in which he started his consideration before he gets on with the rest of the debate.

In fact, when Labour was in office, its strategy for our prisons and our courts was legislative incontinence combined with kneejerk populism. On prisons, the Labour Government made the mistake of being unable to make proper provision for the demand for places that they stimulated. Overcrowding devoured the very budgets that should have been used productively to cut reoffending and improve public safety in a lasting way. What was the final result that we all remember? They had to reduce the release point from two thirds to halfway through the sentence. They then had to resort to the financial chicanery of keeping the cost of building prisons off the balance sheet—the so-called Carter prisons. Finally—the ultimate absurdity—they had to let out 80,000 prisoners early, before the end of their sentence, to offset the cost of the allegedly tougher sentences that they had imposed. That is why we need reform now—to reverse that nonsense.

On wider justice matters, the Labour Government proved little better at getting a grip. They had 30 consultations on legal aid from 2006; they did not act decisively, put the system on a sustainable footing or address the litigiousness to which its excessively widely available funding contributed.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

My right hon. and learned Friend has had a consultation, to which I hope he has listened, particularly in respect of criminal negligence affecting children with multiple injuries that may have resulted from birth. It is not clear to me yet that the Government have found a way of ensuring that that very deserving and small group of people will have access to justice and to the settlements that they need.

[Mr Clarke]

We have addressed clinical negligence, a large part of which is now conducted on a no-win, no-fee basis. That is the way we should proceed. Clinical negligence cases of the kind to which the right hon. Gentleman refers are especially expensive and it is quite difficult to decide whether to proceed with them, so we are making special arrangements, particularly for the expensive medical reports that have to be obtained before a case can properly be decided on. We are making arrangements to make the insurance reimbursable in those cases. I would also like to see a system developed by the NHS litigation authority and the best of the practitioners to exchange expert medical reports at a very early stage, so that we can avoid unnecessary litigation about whether a tragic disaster to a newborn baby was actually a natural tragedy or the result of negligence, and so that such cases need not drag on for the many years that they can take to go through the courts. I accept that that is a special case, and we considered it carefully during the consultation. We made quite a lot of changes during the consultation, some of which were referred to dramatically in outside comment.

--- Later in debate ---

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

The Bill deals with two important issues on which the Justice Committee has reported. Sentencing was at the core of our report on justice reinvestment towards the end of the previous Parliament, and it has been the subject of several reports on Sentencing Council guidelines. The Government’s legal aid proposals were also examined in detail in our March report.

The content of the Bill was originally the product of two major and conflicting factors: the need to respond to the financial crisis and the Lord Chancellor’s determination to make the criminal justice system more effective in preventing crime and more cost-effective in the use of resources. We recognise the financial circumstances and we welcome the willingness to think radically. Recently, however, the Bill got ambushed, and some of its content and a lot of its presentation—not to mention its title—were the subject of No. 10’s preoccupation with getting favourable tabloid headlines. Evidence-based policy does not tend to prevail in those circumstances. It is not clear, for example, that the knife crime provisions will add anything to the existing practice of the courts, which take threats involving knives very seriously, and rightly so. Personally I am not so concerned about the dropping of the 50% discounts, which had nothing to do with encouraging appropriate sentencing. The problem is, however, that, although it was unlikely ever to achieve the £100 million of savings that were canvassed for it, the Department is now expected to find alternative savings to replace them.

Thankfully, the baby has not been thrown out with the bathwater. The Lord Chancellor is still pursuing his objective of making community sentences strong and effective enough to win more confidence from both the judiciary and the public. Furthermore, payment by results will, as part of the reform of the probation service’s vital work, continue—we will be reporting on that subject shortly. We are also getting rid of the disastrous indeterminate sentences and replacing them with life sentences in the most serious cases.

The Bill could, however, have begun a process leading to the commissioning of prison and probation services more locally and by the same body. Until we do that, we will not encourage rational sentencing. Resources will not be available for things such as drug treatment and intensive supervision if they are automatically taken up by the constant expansion of the prison system. Members have a responsibility to use money effectively to prevent crime—that is what we are engaged in—and not to give people the answer that seems the most obvious one. We have a responsibility to prevent them from suffering from crime in the future by spending money as effectively as we can.

The Committee recognises the need to contain and reduce spending on the world’s most expensive legal aid system, but it has serious concerns about some of the groups affected. We suggested alternative ways of making savings, including better court and case management and restrictions on legal aid for judicial review—we welcome the Government’s moves on aspects of that latter point. We were particularly concerned that citizens advice bureaux and neighbourhood law centres would be flooded by demands for legal advice without the resources to help, so we welcome the Government’s initial response to the transition fund and debt advice. However, more will be needed. We welcome the agreement to secure savings in the wastefully inefficient administration of the Legal Services Commission, and we agree with the wider objective of discouraging unnecessary litigation. We are also glad that the Government have responded to our concerns about the definition of domestic violence.

The Government have missed an opportunity in not taking up our recommendation on the “polluter pays” principle. If Departments faced a financial penalty for having too many decisions overturned on appeal, they would change their behaviour and public money would be saved. The Government’s response concentrates on individual cases. This is an overall proposal under which, if Departments rose above a certain threshold, they would have to pay money out of their budgets. That is the only way we will effect the behavioural change and get the right decisions first time.

As I have indicated, I have particular concerns about clinical negligence cases in which determining liability is a complex problem, particularly those concerning children with serious handicaps arising from birth injury. The Under-Secretary of State for Justice, the hon. Member for Huntingdon (Mr Djanogly) wrote to me about this and said that the Department was discussing with the national health service litigation authority and other stakeholders how the commissioning of reports could be improved with joint reports, and the Secretary of State has also referred to that. However, I understand from my discussions with the NHSLA that that is not proceeding or is not proving to be practical. I hope that the Minister, when he winds up, will explain what is happening on that front. The other element in the Government’s attempt to deal with this problem was retaining after-the-event insurance for cases of this kind, but it is not clear to those who understand the system that there would be a viable market in after-the-event insurance in such a narrow field, when it has been abolished in other areas.

The Bill introduces some of Lord Justice Jackson’s proposals but not others. The proposals are a package, so if bits of them are missed out there is a real danger that they will not achieve the intended effect.

[Jonathan Evans (Cardiff North) (Con)]

Does my right hon. Friend share my concern, which has also been expressed by the right hon. Member for Blackburn (Mr Straw), about the absence of proposals on referral fees, which have been properly described as a “scandal”? They were a scandal at the time of the miners’ compensation scandal, which resulted in 27 law firms being disciplined. Does he think that that is a missing part of the Bill?

[Sir Alan Beith]

Yes I do, and I was just coming to that as my final point. First, just let me complete my earlier point by saying that the absence of qualified one-way cost shifting leaves an imbalance in the implementation of the Jackson proposals. It is not even clear from the Bill precisely what the Government are doing.

Finally, let me address what I, too, have described as the scandal of referral fees under which insurance companies and some other bodies, such as trade unions, make money from selling the details and claims of the victims of accidents. It will not be enough merely to ban referral fees, because the Government and the industry must deal with a system of fees that has a fundamental fault. If there is a system of fees in which a lawyer can still make a profit from a relatively small claim having paid hundreds of pounds for the privilege of pursuing that claim, then we have to address the fixed costs as well as the referral fees.

[Heather Wheeler (South Derbyshire) (Con)]

rose—

[Mr Kenneth Clarke]

rose—

[Sir Alan Beith]

I must conclude, so I shall give way only to the Secretary of State.

[Mr Clarke]

The reason why we did not deal with that part of Jackson was because the Legal Services Board had taken it on itself to review the future of referral fees. We now have its report and the Under-Secretary of State for Justice, my hon. Friend the Member for Huntingdon (Mr Djanogly), and I are considering referral fees. I take on board what my hon. Friend the Member for Cardiff North (Jonathan Evans) and the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) have been saying.

[Sir Alan Beith]

I am grateful to the Secretary of State. I know no one who agrees with the Legal Services Board’s conclusions, but I hope that the matter will be considered urgently to see whether the Bill can be used to complete the process of dealing with what is undoubtedly a scandal, which puts up costs for our constituents.

The Bill is part of a necessary process of reform in both sentencing and legal aid, but it needs a great deal of work before it leaves this House and a great deal of monitoring when it comes into force.

[Several hon. Members]

rose—