Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Cormack Excerpts

Wednesday 7th March 2012 Lords Chamber

[Baroness Butler-Sloss]

My Lords, I invite the House's attention to Amendment 45, which is rather oddly placed in this group and which, I suggest, stands separate. It relates to family proceedings in which, I remind the House, the welfare of children is paramount under Section 1 of the Children Act. I have identified a very limited and specific issue, where the child has suffered or is at risk of suffering significant harm. The purpose of the phrase “significant harm” is that it relates to that part of legislation covering children which deals with care proceedings. There are circumstances where the serious risk to a child does not emerge with the social worker but in private law proceedings.

Under the Bill, all private law cases, other than domestic violence, are expected to go before a mediator to try to settle a very large number of them, as I sincerely hope will happen, but not all cases are susceptible of mediation. Among those not susceptible of mediation are cases where the mediator finds there is a serious risk to the child. That may be because issues have arisen more than 12 months ago, so that legal aid will not be available. Trained mediators may pick up a situation where one of the parents has a major personality problem or suffers from mental health issues. Unless there is a decision by a court, there will almost certainly not be legal aid. The amendment asks that the mediator can alert the appropriate authorities to grant legal aid where the child is at significant risk. Otherwise, there may be no opportunity for legal aid to be granted. The two parents will battle their way, floundering in the Family Court, while the child remains at significant risk until a judge or magistrates are able to pick up the case at a very much later stage. I must warn your Lordships that the courts will be utterly clogged by litigants in person. It will probably be many months before this sort of case is heard by a judge or magistrates as a private law case. It will not have been picked up by social workers at all, and the child will remain at risk.

I have had discussions with the Lord Chancellor about this matter and I know that his people have been looking at it. They do not see it as a serious a risk as I am afraid I do, and I very much hope that in due time your Lordships will support the amendment.

[Lord Cormack]

My Lords, I shall not detain your Lordships for long. I do not suppose that a single Member of this House would dissent from the proposition that the hallmark and guarantor of a free society is the rule of law. The theme that has run through this debate in many powerful and some exceptionally moving speeches has been simply that you cannot have the rule of law if access to the law is denied to some of the weakest in our society. That is the theme of this debate and it has come out time and time again. I was deeply moved by the very brave—I use that word deliberately—speech of my noble friend Lord Newton, but others have emphasised the point and added further to it.

If, when the Minister replies, he cannot give us a totally satisfactory answer, I very much hope that he will at least say that he will return to this matter at Third Reading, having had conversations with some of those who have made such valid and pertinent points. I do not include myself among them; I do not begin to compare in expertise with the noble and learned Baroness, Lady Butler-Sloss, or others. I hope that when it comes to Third Reading we shall have a measure that shows that the weakest have not been neglected or denied that access to the law which is their right as much as it is ours.

[Lord Judd]

My Lords, further to that very important point just made by the noble Lord, Lord Cormack, perhaps I may make one observation on which I hope the Minister will be able to give a convincing reply when he responds to this debate. Government have frequently been caught up in discussions about the legal implications of the UN Convention on the Rights of the Child. Invariably Ministers have, without any equivocation, said that central to the Government’s position is the principle that the rights of the child must come first. Can the Minister please explain to the House how the provisions of this proposed legislation further that objective?

--- Later in debate ---

[Lord Cormack]

My Lords, I am delighted to follow the noble Lord, Lord Clinton-Davis. We entered another place on the same day in 1970; we have been friends ever since; and I have admired the way in which he has fought against real difficulties and played such a part in your Lordships’ House.

I was glad to add my name to the amendment that was so movingly spoken to by my noble friend Lady Eaton. Unlike her and, I suppose, most of your Lordships here, I have not had that personal experience involving a child in my own family. When I heard what she had to say, I felt all the more thankful that my children and grandchildren did not face those problems. However, as a constituency Member of Parliament for 40 years, I came across many sad cases that were similar to her own. They were dissimilar in only one respect, and that the one to which she referred—almost always the parents did not have the means to deal with the problem on their own.

No compensation ever adequately compensates for loss of limb or for any other severe disability. However, when one is dealing with clinical negligence, it is crucial that we treat all children, whatever the problem, in a similar way. My noble friend Lady Eaton made that point with quiet passion, and it was all the more effective for that.

I have a great respect and affection for my noble and learned friend the Minister who will reply to this debate. After the histrionics of the previous debate, I say to him that there cannot be a Member in your Lordships’ House who does not have sympathy with a Government who are faced with a pretty dire financial situation and looking carefully to see where they can make savings and cut costs. We all appreciate that and do not need to be lectured on the subject. Equally, however, we in this House all have a duty to try to look at things with a degree of objectivity which is devoid of the acerbity of party politics which so often dominates debates in another place.

In my 15 months in this House the two things that have endeared it to me more than any other place are its collegiate atmosphere and the way that we genuinely respect each others’ differences of opinion, even though we may all have deeply held personal political opinions and prejudices. However, we have before us an essentially modest amendment. I know not whether the amendments which the House has just been passed will drive a coach and horses through the Bill. I suspect that they will not and that we will have a chance to deliberate on these matters on another day. This amendment certainly does not do that, nor does it pile any degree of extra expenditure on government.

I take no delight in not supporting my Government. I was not able to support them on the previous two amendments, and I should very much like a response from my noble and learned friend that will enable me, with a tolerably light heart, to go into the Lobby with him if a Division is called. I very much hope that one will not be called. I hope that he will be able to accept the spirit of Amendment 31, even if he cannot accept the precise wording.

Those of us who have served in politics for a long time—and I saw the noble Lord, Lord Wigley, who I deliberately call my friend, nodding a moment ago—know that it is difficult for Back-Benchers in another place or Peers in this place to devise an amendment that will be absolutely acceptable in the precise terms in which it appears on the Marshalled List. However, I hope that we will have from my noble and learned friend a response that accepts the spirit of this amendment, and the amendments spoken to earlier, so that we can move on without clash and division and underline the fact that all of us are keen that there should be equality and fairness of treatment to everyone in this country. Although this Government, and every Government, have to act within severe constraints—there is nothing new in that—let us hope that we can recognise the Government’s dilemma while asking them in turn to recognise that there is within this amendment, so splendidly spoken to by my noble friend Lady Eaton, a real point of principle that deserves a most sympathetic response.

[Baroness Turner of Camden]

My Lords, when the Bill was first published it led to a great deal of correspondence from all sorts of quarters, including the Bar Council and many other bodies that were deeply involved, because the Government proposed to remove clinical negligence in its entirety from the scope of legal aid. They asserted, as I understand it, that most claimants would receive representation under a conditional fee agreement—that is, from a no-win no-fee lawyer. However, if implemented as drafted, the Government’s proposed reforms to civil litigation funding laid out in Part 2 will deny access to justice to all but those with the most clear-cut cases.

Clinical negligence claims raise complex issues of liability. The risks of taking on such cases on a no-win no-fee basis can therefore seem very high indeed, so claimants will find it difficult to find representation. I therefore support what the noble and learned Lord, Lord Lloyd, had to say in support of his amendment, because it provides for obtaining the expert reports that would of course be necessary and says that they should retain legal aid. But, on the other hand, I find myself more in support of the next amendment in the group, Amendment 15, which would provide the cost of legal proceedings in relation to clinical negligence. That is important, and we have heard why from a number of contributions to the debate. I therefore hope that we can persuade the Government that what we are saying in Amendment 15 is sensible and that they will accept it.