Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Faulks Excerpts

Monday 21st November 2011 Lords Chamber

[Lord Faulks]

My Lords, the intention behind Parts 1 and 2 of the Bill is to restore some balance to our civil litigation system. The system should provide access to justice but should not be so distorted that it provides a source of excessive profits to lawyers and a small industry of parasitic organisations which have been spawned by the current arrangements. Whether there is indeed a compensation culture does not matter very much. In fact, successive government investigations have suggested that there is no such thing. What, however, is indisputable is that the litigation process has been disfigured by the whole machinery of referral fees, crude advertising and cases which too often become about legal fees rather than the underlying dispute. The case for reform is clear. But does the Bill go too far?

The noble Lord, Lord Pannick, is quite right: we should see the whole question in historical context. When legal aid was introduced in 1949, it came shortly after the establishment of the national health system and reflected the national mood. However, we should beware of golden-ageism. We should also be careful of drawing too close a parallel between patients and litigants. Welcome though the provision of legal aid was, there gradually developed a system in which only those who were very rich or had legal aid could afford to litigate at all.

It was to restore a sense of balance that the Court and Legal Services Act 1990 brought in some modest changes allowing conditional fees to provide access for what has now become known as the squeezed middle. There was a view that these changes did not go far enough, hence the Access to Justice Act 1999, which unleashed the changes now to be redressed by the Bill. The provisions of that Act allowed for the recoverability of success fees up to 100 per cent and large ATE premiums which were effectively unchallengeable. This has meant that defendants have suffered an unfair disadvantage in litigation. I remind the House, as did the noble and learned Lord, Lord Davidson, that not all defendants are multinationals or emanations of the state.

The Jackson report, about which the noble Lord, Lord Hunt of Wirral, spoke so clearly, was the remarkably detailed and comprehensive response to these problems. It forms the basis of Part 2 of the Bill. I am broadly if rather cautiously in favour of these changes. I am concerned that some meritorious claims by the victims of industrial disease and even of environmental disasters may not now be viable. I will leave other noble Lords to develop arguments in these areas. However, a fundamental point ought to be made about Sir Rupert Jackson's report. It assumed the continuation of legal aid.

I want to concentrate the remainder of my remarks on clinical negligence. I should declare an interest as a practising barrister who has been instructed for defendants and claimants in this area of litigation. Many noble Lords will consider that we should retain the status quo, which allows legal aid at least where children are concerned. I have considerable sympathy for this view. The retention of legal aid for clinical negligence is supported not only by the NHSLA, as has been referred to by the noble Lord, but by Sir Rupert Jackson himself. In a lecture to the Cambridge law faculty in September this year, he said,

“of all the proposed cutbacks in legal aid, the removal of legal aid from clinical negligence is the most unfortunate”.

Although I would prefer to keep legal aid for seriously injured children as it is, it should at least be retained for the costs of investigation. Let me give a specific example of where injustice will follow if the current Bill is not amended. In cases of brain-injured children there are often considerable difficulties in establishing whether there has been a breach of duty, and sometimes greater complications still in establishing causation. Even the most experienced solicitors in the field will need expert opinions from obstetricians, midwives, neuro-radiologists, paediatric neurologists and/or neonatologists. Under the existing system, the LSC, which carefully monitors expenditure, allows for considerable legal and medical costs involved in forming a view on whether a case can go forward.

Without legal aid I cannot see how a brain-damaged child and his or her family can begin to pursue these cases. The cost of an ATE premium will be beyond the means of almost all litigants. Even large firms of solicitors will not be able to carry the expenditure, particularly where the advice may often be not to proceed further. Someone who is possibly the victim of clinical negligence has the right to know whether the immense cost and heartbreak involved in bringing up a disabled child can be mitigated by an award of damages. The provision of legal aid at modest rates is essential to allow them to do so.

For reasons that will be developed in Committee, the so-called exceptional funding provisions, which seem to be directed at Human Rights Act cases, are no answer. In this connection perhaps I may refer the Minister to the case of Powell v United Kingdom in 1990, decided by the European Court of Human Rights, which makes it clear that medical negligence cases will very rarely, if at all, involve violations of the convention. I am afraid that I am also wholly unsatisfied by the Government's proposal in Clause 45 that there will be some modification of the rules to allow the recoverability of ATE premiums in respect of expert reports. Where is there any evidence that such a market can simply be created by the Government in this context?

The only other response is that CFAs should be enough. For the reasons that I have given, I cannot see how anyone in this situation will be able to obtain a CFA, particularly if the profitability is to be so reduced. It is interesting that the existing LSC funding code, which specifically identifies investigative help as being of,

“vital importance in clinical negligence cases”,

also provides that,

“the potential to obtain a Conditional Fee Agreement will not be a ground for refusal of Investigative Help for a clinical negligence case”.

So even if a CFA could be obtained, it is not a very impressive reason for declining legal aid in these cases, particularly when legal aid is granted only where the solicitors are franchised and thus experienced in the field. That is a point of fundamental importance to access to justice. I profoundly hope that the Government will make changes to put the matter right.

I hope that there can be a degree of consensus in the approach to the vitally important process of improving the Bill. That would be much easier to achieve if the party opposite were to acknowledge in the course of debate that it too would have made significant, if not wholly identical, changes to the civil litigation system. Would it really have ignored the Jackson recommendations? Was it really happy with some of the grotesque results of the legislation that it brought in?

This momentous legislation is a necessary corrective to the unsatisfactory system. It reflects the economic times in which we live. There are changes to the Bill which we need, not least in the definition of the Lord Chancellor's duties to which the noble Lord, Lord Pannick, referred—I support his proposed amendment in that regard—and the role of the director of legal aid casework. In scrutinising this legislation it will be vital to ensure that access to justice is not a meaningless mantra. It is a critically important part of what it means to be British.

--- Later in debate ---

[Lord Elystan-Morgan]

My Lords, I wish to use the time available to me to speak to Parts 1 and 2 of the Bill, that robustly harrowed area in respect of which we have heard the most distinguished and powerful contributions already.

Unless a Government of the future pass a one-clause Bill to abolish legal aid completely, the contents of this Bill and the proposals surrounding them must constitute the most savage and most deadly attack upon the institution of legal aid in the 62 years of its existence. The Government have pleaded three justifications for those proposals. The first is that we live in a society that is overindulgent with eccentric litigants, that legal aid is wasted and, even worse, that in some way or another it encourages and stimulates utterly irresponsible litigation. The second is that, in the context of legal aid, there is every alternative possible that can ameliorate and mitigate any loss that would otherwise exist. Furthermore, they say that, in any event, it is a system that will be greatly improved by the proposals in the legislation.

A few questions should be asked about those propositions. First, is there a litigation culture that menaces the community in which we live? I doubt it very much. I draw all my experience from some 50 years in the law as a solicitor, a barrister and a judge. I have seen many cases of legal aid. There may well be some one would doubt it was utterly reasonable to have granted legal aid—what else would you expect in an imperfect world? But for each one of those, I can think of a dozen cases for which one would think it would have been proper for a litigant to have been granted legal aid.

The first point that I would wish to make in challenge to that proposition of overindulgence and creating a culture of litigation is to be found in the report by the noble Lord, Lord Young, some few months ago, entitled if I remember rightly, A Community and a Safe Society.

[Lord Faulks]

My Lords, it was Common Sense, Common Safety.

[Lord Elystan-Morgan]

I am most grateful and obliged to the noble Lord. In that report, the noble Lord, Lord Young, made it perfectly clear that the conclusion that he came to, from all the evidence that he had heard, was that there was no such thing as a litigation culture in society but there was in the minds of tabloid editors. Of course, there are eccentric litigants. Let us just think of how poor the reports of the law of tort and the law of contract in the 19th century would have been were it not for eccentric litigants. However, they were rich and they were certainly not on legal aid. That is what we have to consider. There is no evidence whatever that we live in a situation where legal aid has stimulated a culture of litigation.

Secondly, we ask whether the effects of what we see now are going to be destructive or benign. So much has been said here today that it needs me only to ask that particular question for it to be answered. It is perfectly clear that the whole foundation, the whole ethos, of legal aid is being challenged and attacked. In those situations, the scope of the cuts and the very nature of the deprivations are such that it is inevitable that there will be very considerable destruction. There will be no legal aid generally, but only in that cluster of sparse areas referred to in Schedule 1. Six hundred thousand people who are now eligible for legal aid will be taken out of that system. There will be no legal aid for private family cases apart from domestic violence—and it seems that the gateway to that has already been deliberately created as a massive obstacle course for likely applicants.

Thirdly, I look to the question of whether amelioration is possible. I doubt it. No doubt mediation has its part to play. Even if we had an army of persons trained, skilled and experienced in mediation—and I hope that some day we might very well come to that; a great deal might be done—some cases, especially family cases, as I well know, could take days but would otherwise be utterly impossible. Again, so much has been said about no-win no-fee to make it obvious that, although that may fill some of the gap, a huge and yawning chasm will still remain.

Lastly, I ask a question about the cost to the Exchequer. In its third report on legal aid, the House of Commons Select Committee on Justice expressed amazement that there was no comprehensive study of the knock-on effects. These knock-on effects will show themselves in one of two ways: either people will retreat from defending or asserting their rights altogether, or there will be a knock-on effect in massive expenditure in other departments.

It has been calculated by the CAB that for every £1 that is spent on legal aid, £2.34 will be spent on housing, £7.18 on employment, and £8.80 on benefits. Where is the gain? What is the gain commensurate with the anguish, the loss and the injustice? At Second Reading of the Bill in the other House, the Secretary of Justice said:

“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”.—[Official Report, Commons, 29/6/11; col. 986.]

It is not by their words but by their deeds that they will be judged, as far as this matter is concerned.