Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Howarth of Newport Excerpts

Tuesday 24th January 2012 Lords Chamber

[Baroness Turner of Camden]

My Lords, I, too, support my noble friend’s amendment. The Government have not got their act together on this. We are told that these rights are being taken out of scope because there are other means of dealing with them. Well, the other means of dealing with them, of course, are via the arbitration system, but it is not very long ago since we debated in this House a set of proposals emanating from another wing of government, the Business Secretary, which were designed to weaken employment law on arbitration.

It was proposed that in future a dismissed employee should have to pay a fee before getting a case to an arbitration tribunal. And then, when the employee came before an arbitration tribunal, he would not face the kind of arbitration tribunal that we are used to for dismissal cases, with lay members from both sides of industry sitting on it—oh, no. In future, there would be no relatively friendly environment in which an individual could make a submission, perhaps without being legally represented, but a judge sitting on his own. In other words, it would be a much more legal system, and this legislation makes provision for no legal aid to be provided. That is totally unsatisfactory.

On the one hand, you have a Government saying, “Well, there are other means of dealing with the situation through a non-legal system”; on the other, they are doing everything possible to make it difficult for someone who has been dismissed unfairly, as they feel, to take their case to an arbitration tribunal instead of the law. This is absolutely unsatisfactory and I really do think that the Government have to re-examine their policies in this regard. It is totally unfair to individuals who believe that they are doing a good job of work, who become dismissed and who feel that they have a case, and there is nowhere for them to take it.

[Lord Howarth of Newport]

My Lords, I, too, support the amendment. It must make practical sense to put employment cases back into the scope of legal aid. Worryingly, we face the prospect of rising unemployment. We could see significantly rising unemployment if there were to be a disorderly collapse of the euro. Let us hope that that does not take place, but the interaction of global economic circumstances with the Government’s deliberate policies to reduce employee protection in the interests of liberalising the labour market could result in significant numbers of people becoming casualties. While the Government might argue that the overall economic process will be benign in the interests of this country, it is unquestionable that these circumstances may be malign in the interests of individuals.

In a process of economic adaptation, it is extremely important that, as a society, we take decent and proper care of those who may be the casualties of it. It must be a basic right that people should have legal aid to ensure that they are well advised and that, where necessary, they are represented and their cases can be well made in employment tribunals. What they are personally suffering is a product partly of events and partly of policy, and all of us have a responsibility to ensure that, in times of great economic difficulty, no more people suffer in these processes of change than is truly necessary.

If someone has a genuine right to bring a case against unfair dismissal or some other aspect of their employer’s treatment of them, and they are not supported to make that case, it leads to a sense of injustice. A sense of injustice pervading society in a context of economic stress and social strain cannot be something that the Government want.

If we look at the implications for individuals, again, surely Ministers do not want people to suffer unduly or to incur the costs to the public purse that one can foresee occurring. If someone loses their job, as my noble friend Lord Bach has pointed out, they are liable to become reliant on benefits and could be on the start of a slippery slope that leads to debt, homelessness, the destabilisation of family life, and physical and mental ill health, all of which carry costs to society and to the public purse which surely the Government would wish to avert.

I do not know whether it is the case—it has been suggested to me that it is—that the Government have received advice from those responsible for the conduct of the employment tribunals that it is a mistake to take employment cases out of the scope of legal aid. It would be helpful if the Minister could advise the House whether the Government’s policies have been endorsed or criticised by employment tribunals and whether they have been advised that it would be wiser not to take this course.

For all the reasons that noble Lords have put forward and those that I have suggested, I hope that the Government will accept the amendment. If they are unable to accept it today, I hope they will look carefully again at this area of reduction in legal aid before we come to Report.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, in many cases professional advice by representation is not actually available. I have already said that I do not for a moment deny that the advice that people get in the preparation of a case is valuable—of course it is—but we get back to the issue of looking at the competing priorities for funding from a limited pot. We have said that cases involving life, liberty and homelessness are more important priorities. We are looking, too, at circumstances in which the tribunal is itself intended to be a forum in which people could much more readily access such things informally, without the need for, or recourse to, lawyers. When I was a law student, the idea was still alive and fresh. That difficult choice was made against a background where there are other sources of advice available—I shall not list them again—and in the context of a tribunal that is intended to facilitate those who do not have representation. I do not shy away from it being a difficult choice, but it was made against other competing priorities.

I was about to take the point that the noble Lord, Lord Howarth, and the noble Baroness, Lady Turner, made. We have mentioned other proposals that have been on the airwaves. A different department is responsible, but I will ensure that these concerns are drawn to the attentions of BIS, and will respond to the more specific points when it is possible to draw them to the attention of the department whose responsibility they are. I think that I am right in saying that in some cases the consultation has not been completed.

[Lord Howarth of Newport]

I put another question to the Minister, although I am very grateful for his answer to that one. He himself suggested that we are no longer in a golden age, if ever we were, in which tribunals were easily accessible and user friendly. Will he say whether the department has received representations and advice from the employment tribunals on this matter and, if so, what it was? Did those tribunals endorse the removal of employment cases from the scope of legal aid?

[Lord Wallace of Tankerness]

I think that I asked whether someone could come to my aid and give an answer to that question. Perhaps if I talk slowly, that may be possible. Failing which, I may be able to intervene on the noble Lord, Lord Bach, if he responds to this amendment, or I will have to resort to writing to the noble Lord. Frankly, I do not know the answer, but I shall try to find it out for him.

[Lord Howarth of Newport]

While the Minister awaits advice, will he tell us about the processes that led to the drafting of the impact statement? A number of us have argued that there will be knock-on consequences for the public purse to the budgets of other departments and the wider economy from taking these cases out of scope. What examination have the Government made of the cost implications elsewhere for their own policies, which the Minister keeps telling us he is applying only under duress, to save money on the legal aid budget itself? The justification offered by Ministers for this is that it is essential to contribute to the reduction of the deficit, and this is how they are going to contribute to the reduction of the deficit. Many of us simply do not believe that the net effect of these policies will be to reduce the deficit—it will be to increase it. What calculations have the Government made about that?

[Lord Wallace of Tankerness]

As the noble Lord acknowledged, the question goes wider than this particular case. I remember dealing with or at least considering the matter in relation to an earlier amendment last week. While it is often said, I do not think that any substantive evidence has been given that the cost to the public purse will be greater as a result of these policies. Certainly, if part of the purpose is to ensure that the deficit was addressed, it would not make sense to rob Peter to pay Paul, or whichever way round it is. The Government’s view is that in the totality there is benefit and that this will make a significant contribution to the reduction of the deficit. I apologise to the noble Lord, but despite the extended debate I still do not have the answer to his question.

--- Later in debate ---

[Lord Beecham]

My Lords, this amendment speaks to the question of consumer law and seeks to restore it to the scope from which it is removed by the Bill. Consumer law covers a multitude of cases but in particular contract law, consumer credit and professional negligence proceedings.

In 17th century terms, I view the noble and learned Lord as a Roundhead—or in view of his provenance, perhaps as a Covenanter—rather than as a Cavalier. However, I am afraid that “cavalier” is the only word that I can apply to the Government’s attitude to access to justice in this and other contexts. That attitude is well illustrated by the airy dismissal of the views of those whom they consulted on whether consumer law should be kept within scope. The Government carried out a consultation exercise and reported:

“Of those respondents who commented on this aspect of the proposals, almost all were opposed to removing these cases from scope”.

Two of the grounds that were raised are relevant for today’s purposes. The response stated that,

“some respondents argued that consumer cases should be retained, in particular professional negligence cases where negligence may have resulted in serious consequences for the client … in some professional negligence cases clients would need expert reports to prove negligence and without legal aid individuals would not be able to afford these”.

The Government concluded:

“Having considered the responses … we confirm our intention to remove consumer and general contract cases from the scope of legal aid. Whilst there are some difficult cases, in particular professional negligence cases, these are still essentially claims concerned primarily with recovering damages, and that means that we consider that their relative importance is generally low, compared, for example, with issues of safety and liberty”.

That is a classic case of an argument reductio ad absurdum. To say that life and liberty are more important than contract law or divorce is axiomatic: it does not advance the argument one whit. The Government also said, as we are so used to hearing in debates on this Bill:

“There are other sources of advice available in relation to consumer matters, for example, from Trading Standards and Consumer Direct”.

Here I ought to declare a non-pecuniary interest as an honorary vice-president of the Trading Standards Institute.

The Government continue:

“There may be alternative non court based solutions in some cases, for example, through regulators and ombudsmen”.

I am rather surprised that they did not add Which? and the helpful columns in the Guardian and weekend newspapers while they were at it. However, that is a considerable oversimplification and an underestimate of the problems which people face. Professional negligence is not merely confined to the recognised professions of solicitors or accountants, for example. Even members of the Bar can be sued for professional negligence, and that has been the case for some time. The conduct of financial advisers, like that of some other professions, might result in considerable loss to people. There is also the builder who botches the job or the architect whose design is defective. All these matters can affect many people and involve them in considerable financial loss.

It is certainly possible to obtain some alternative advice. On Monday, my noble friend Lord Stevenson spoke to an amendment about debt. He is the chairman of an organisation called Consumer Credit Counselling Service, which offers advice in the realm of consumer credit. However, that is not face-to-face advice and anything more complex has to be referred on. My noble friend advised me that that organisation tends to refer matters to the citizens advice bureaux. There is an assumption on the part of the Government that the capacity of organisations such as the citizens advice bureaux, law centres and other bodies is capable of infinite expansion. Apparently, they will be able to undertake the very large volume of cases which will henceforth be denied legal aid or legal advice. However, not only will it be impossible to obtain legal advice from solicitors, but when the very funding of those organisations through government grant for legal advice and assistance will also be cut, they will have a massively increased demand and a diminished resource with which to meet that demand, unless they obtain a soupçon from the £20 million which the noble Lord, Lord McNally, has waved about as being available for some indefinite time to assist in dealing with these problems. That is an extremely unsatisfactory solution to the problem because it is no solution. It is interesting that the Government do not specify in any detail their assessment of the availability of these possible alternatives, simply relying on the fact that there may be alternative non-court based solutions.

The really worrying feature, which again underlines the unsatisfactory nature of the Government’s attitude to this and other cases which we will be considering and have already considered, is summed up in their response to the consultation when they say:

“Although there may be exceptions, in our view the individuals bringing these cases are not likely to be particularly vulnerable compared with, for example, those in the mental health category”,

for which, in fairness, provision will be made. But, again, that is a comparison which has no significance at all, and it is not the comparison that the person who is denied access to justice will make. He or she will rightly make the comparison with somebody who has the means to afford that advice and representation. We are creating a two-tier system of justice, one in which you can buy your way in if you have the means and another in which you will effectively be denied it if you do not have the means. In areas such as this where significant harm can be inflicted on individuals—admittedly, that is not physical harm but pecuniary harm, stress and distress—it does not seem appropriate to deny them the access which the very modest funding that is involved currently allows.

The Government should look at this matter again. Over recent years, Governments of both political persuasions—perhaps one should now say of all three—have championed the cause of consumers. We are talking now about predatory capitalism or responsible capitalism and the rest of it. We ought to be looking at the bottom of the scale of providers, if you will, and at how people can be best enabled to pursue remedies against those who inflict harm on them, because this Bill does not assist in that respect. I beg to move.

[Lord Howarth of Newport]

This is another important amendment and I would like to support my noble friend Lord Beecham, who has moved it. If the Government suggest that caveat emptor is a sufficient answer to the case made by my noble friend, they would be wrong. If the Government say that it is simply up to the consumer not to buy shoddy goods or not to avail themselves of shoddy professional services, it will not do—particularly in the provision of services.

Professional self-regulation is not always all that it ought to be. Although we should always guard against the assumption that things are not what they used to be—a view that we are a little bit liable to become attached to in your Lordships' House—none the less, I think it is fair to say that the professional ethic has become somewhat attenuated over recent decades. We see, for example, the advertising of professional services in ways that we did not in the past. We see the marketisation of professional services, arising in part out of contracting out, and the general widespread extension of market values and market practices, which in many cases have led to greater efficiency and greater availability of services. However, they also carry the risk that those who offer these services may become a degree less scrupulous when the ethos is that of the market.

People find themselves beset by parasitic professionals. The purveyors of subprime mortgages may have been the most offensive instance in recent years that one can imagine, but there are many other cases. It will not do to leave the ordinary citizen vulnerable to predatory, grubby and dishonest so-called professionals. The issue of equality of arms that arose in the previous debate on employment law arises here, too, because the ordinary citizen may come up against professionals, or those who represent them, who are highly articulate, able to speak the jargon of a specialised field and can afford expensive advice. It must be an elementary principle that there is access to justice on sufficient equal terms to enable citizens who have been poorly, dishonestly or improperly served by professional advisers to have some remedy.

[Baroness Howe of Idlicote]

My Lords, I have some sympathy in this area. I also have a great deal of sympathy with what has been said on previous amendments, because there is a distinct grouping of those who have the means to cope with their own cases and those who do not. In this particular case, consumer law has been a matter that we have only recently begun to take an interest in—indeed my noble kinsman was the first ever Minister of Consumer Affairs. I remember that I was immediately enthused because I thought that it would make him much more interested in all the goods and facilities that I might be interested in buying. I have to admit that it did not quite work out that way. He was much more interested in the number of ounces and proportions described on the back of a product, and so on.

Nevertheless, on the other point made by the noble Lord who moved the amendment, we have concerns about the organisations that protect the consumer. Which? is obviously an important organisation, as are CABs in other areas also. If their funds are going to be cut in the way proposed, we will have problems. As I said, I have sympathy in these areas. I hope that what has been said will be taken into consideration, because there will be serious consequences in certain cases. In the most serious cases there will be facilities to represent them—or at least I certainly hope so—but people in cases which are not recognised because no legal advice has been available will lose out. As has often been said, that will lead to increased costs to the state.