Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Howarth of Newport Excerpts

Tuesday 10th January 2012 Lords Chamber

[Lord Faulks]

My Lords, most Members of this House would approve of the idea of having good-quality expert evidence in cases. In the area in which I practise there have been considerable strides forward in that regard. Although the noble Lord, Lord Beecham, speaks of hired guns and undesirable practices, it should be known that much has improved in this area, not least thanks to the major contribution of the noble and learned Lord, Lord Woolf, the CPR, the exchange of experts’ reports, experts’ meetings and a sensible control of the questions that are asked, so I would not like the House to get the impression that the world is a jungle where experts are concerned. Litigation is much more orderly than it was and the noble and learned Lord, Lord Morris, is quite correct that good experts often produce settlement and good results.

While I certainly applaud the sense the amendment, which is to encourage good-quality experts, the reason why they are sometimes not available is not simply because of money. There are difficulties simply in finding the right experts for the right cases because they have other commitments. Let us take paediatric neurology, for example, an area that is particularly important in clinical negligence cases. Very few are available, and they are very often not available for many months. In other words, there are factors that are not easily within the reach of any form of legislative provision. While approving the general spirit of the amendment, I would countenance some wariness in enshrining this in any legislative form.

[Lord Howarth of Newport]

My Lords, as everyone who has spoken has said, it would self-evidently be a false economy and prejudicial to justice if the Government were not willing to spend the money that they genuinely need to spend in ensuring that the expert evidence required is available to the courts. I ask my noble friend Lord Beecham, who moved the amendment, and the Minister—if, as he surely must, he agrees with the thrust of the amendment at least—what their views are on the appropriate methodology under the amendment. Does my noble friend consider that there should be some sort of standing body independent of the Ministry of Justice that would have the task of keeping this issue under continuous review and to report from time to time? I would have thought that it would be a continuing necessity for the Lord Chancellor to have the benefit of such advice so that he can be sure that the taxpayer is not being asked to spend more than is genuinely necessary under this head, but equally to be sure that sufficient resources are being provided. How does my noble friend or the Minister envisage that this function should be carried out? Perhaps they could say something about the practicalities of ensuring that that takes place, as that would be helpful.

[Lord Walton of Detchant]

My Lords, I had not intended to speak on this issue, except to give brief support to the amendment that has been tabled by the noble Lord, Lord Beecham, which he expounded so very clearly. My own personal experience of giving expert witness in neurological cases over many years, not for a long time but many years ago, has led me to give warm support to this proposal. It is fair to say that we heard comments a moment ago about expert witnesses in the field of paediatric neurology. This is an extremely difficult and sensitive area, particularly in cases of alleged child abuse when views have been taken by different experts on very good scientific evidence who have come to totally opposing opinions about the nature of the problem.

On the other hand, looking back on personal experiences, I have to say that the mechanism that I was familiar with many years ago has not been explored sufficiently. When I was involved in giving expert evidence in cases of head injury in miners, I remember receiving letters jointly signed by the then National Coal Board and the National Union of Mineworkers, saying that they would accept my report as being binding on both parties. That kind of agreement in advance of court hearings in cases of alleged negligence or industrial injury could be used very much more readily.

--- Later in debate ---

[Lord Pannick]

My Lords, I, too, support the amendment. The case for the Bill depends on two factual premises. The first is that the Bill will save large amounts of public money. The second is that it will not cause the damage to access to justice for vulnerable groups that is feared by critics because there will be other means of providing advice and information. Each premise is highly contentious and each depends on assertion rather than evidence. Therefore I find it very surprising that the Government conducted no serious analysis of the facts relating to the impact of the Bill on these two vital matters before bringing the legislation before Parliament. Since the work was not carried out before the Bill was presented, surely it is vital that an independent assessment is carried out before it is implemented and brought into effect.

As I understand it, there will in any event be a substantial period of time between Royal Assent for this Bill and the bringing into effect of its main provisions. The amendment will not in any way commit the Government to accept the contents of the independent report. The report will be information that will be before the House and the other place when a commencement order is brought forward, so I, too, support this amendment. I very much hope that the Minister will be able to give a more positive response to the concerns that have been expressed on this amendment, and will be expressed in relation to other amendments that we will be debating today, than he felt able to do on the first day in Committee on this Bill.

[Lord Howarth of Newport]

My Lords, my noble friend Lord Bach is quite right to table an amendment requiring that the Government make an impact assessment before the commencement of this legislation. The Lord Chancellor wrote an article in the Guardian on 20 December in which he said:

“Access to justice is a fundamental part of a properly functioning democracy … Those most in need must be helped where they face serious injustice”.

Those are fine professions of principle, but I do not think that Guardian readers should assume that all will therefore necessarily be well.

It is true that it is difficult to assess the impact of removing welfare cases from the scope of legal aid. The Government’s own impact assessment stated:

“Any significant change in case outcomes may be associated with social and economic costs if this leads to wider economic and social issues arising (for example, relating to health, housing, employment or offending). There may then be associated costs to the Ministry of Justice, other government departments or public bodies or to society as a whole”.

That somewhat tortuous prose perhaps betrays the embarrassment of the authors of that document. It acknowledges that there are indeed risks of the kind that we fear. However, it goes on to claim that there is not enough evidence to quantify or further examine those costs for any area of legal aid and therefore the implication is that the attempt should be abandoned.

I cannot accept that. It seems to me that where you have very real risks to the well-being of individuals and families as well as to access to justice, every effort should be made to continue to identify the hazards and the potential costs of the policy of taking welfare out of scope. If, indeed, it proves impossible to measure with any reasonable exactitude, and at the same time common sense tells us that the dangers of the policy are great, then surely the proper conclusion is to abandon the policy. Since I do not think that the Minister is going to tell the Committee at the end of this debate that he is going to abandon the policy, I think we must support this amendment.

My noble friend’s amendment prescribes the approach that should be taken by those who are making the impact assessment. He itemises categories of vulnerable people. He is right to focus our concern on particular groups of people so that it should be possible for the Government and the wider public to understand what the impact of this policy would be on particularly vulnerable groups at moments in their lives of exceptional vulnerability.

I have two concerns about my noble friend’s amendment. The categories that he has selected are not sufficiently comprehensive. Women, for example, are specified, very rightly, but what about men who find themselves dealing with bad employers, bad landlords or bad benefits decision-makers? Indeed, is there not a risk that my noble friend’s amendment might be discriminatory in this regard? Who does my noble friend mean by “young people”? We know that 22 per cent of 18 to 25 year-olds are facing terrible difficulties as they cannot find jobs in this economy. In contrast to the much more fortunate situation of the baby boomers—most of us—this generation has to seek work that, for many, is simply not there. If they flag in their search for work, they are liable to fall foul of the JSA regulations. If they do that, they may come to the view that there is not justice in this society. There are no jobs for them, no benefits for them, and no legal aid to ensure that they have redress where they may have a legitimate legal case. If that happens, they may lose respect for our society and its institutions. My noble friend is right to anticipate that the policy may indeed increase the risks of crime and anti-social behaviour.

My other concern about my noble friend’s amendment is that these categories overlap. I think we are all familiar with the remarks of the tribunal judge Robert Martin, the president of the Social Entitlement Chamber, who said in response to the Government’s consultation:

“The principal flaw in the Government’s approach is the reliance on thematic categories of law as proxies for determining who is in need. These categories only have a loose association with real lives and real problems”.

Disability, discrimination, unemployment, debt, relationship breakdown and ill health chase each other around and tangle with each other. In picking on particular categories of case where legal aid will cease to be in scope, the Government are attempting—unrealistically and dangerously—to unbundle the reality of people’s lives. My noble friend, constrained by the structure of the Government’s own legislation and policy, is driven in his amendment to do the same.

I think it was the noble Lord, Lord Newton, who said in an earlier debate that actually what is needed is a combined impact assessment. It is estimated that not less than 135,000 people will be affected by the withdrawal of welfare cases from the scope of legal aid, more than half of them disabled people. We need a really searching analysis to try to discover what the impact of the totality of these policies will be on the totality of their lives. However, the Government do not want to do that. The Green Paper stated:

“We consider that these issues”—

these are financial issues for people in poverty—

“are of lower objective importance … than, for example, fundamental issues concerning safety or liberty”.

Ministers are at risk of finding themselves in a philosophical quagmire if they attempt to specify what is of “lower objective importance”, but I do not really mind about that. Common sense and common sympathy tell us that extreme poverty means inability to provide basic needs, malnutrition and prejudice to physical and mental health. Is that not fundamental?

Whatever the objective justification, I believe that the policies are reckless, especially given the huge incidence of erroneous benefits assessments and of successful appeals against those assessments. For example, in the case of appeals against a refusal to award DLA, I understand that the success rate for people who are accompanied and supported at their hearing is 60 per cent. The error rate in benefits assessments is well nigh certain to rise with the transition to universal credit, employment and support allowance and personal independence payments. Especially the policies are reckless at a time of economic blizzard, when the Government’s response to the economic blizzard is draconian cuts, some four-fifths of which fall on the poor.

I cannot but feel that Ministry of Justice policymakers live in another world. The Green Paper told us, with an apparently straight face, that,

“the accessible, inquisitorial, and user-friendly nature of the tribunal means that appellants can generally present their case without assistance”.

We are reminded by Justice for All, a campaigning consortium of a large number of immensely respected voluntary organisations in our country, that the DWP issued 8,690 pages of advice to its decision-makers in 2009. It is not only the regulations that have to be understood but the case law.