Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Howarth of Newport Excerpts

Wednesday 7th March 2012 Lords Chamber

My present position is to support my noble friend Lady Doocey, particularly having heard the speech of my noble friend Lord Newton, who has great experience in these matters at a very senior level, unless we hear from the Government Front Bench that there is significant movement on this issue.

[Lord Howarth of Newport]

My Lords, we have heard admirable and powerful speeches. The noble Lord, Lord Newton, said that he was not going to get emotional, but his speech was moving as well as entirely persuasive.

Aside from the constitutional case, the moral and practical cases for keeping welfare benefits within scope of legal aid are overwhelming. We are moving into a period of major change in the social security system. A situation in which errors in the administration of the benefits system are likely to increase and, at the same time, the possibility of redress is to be reduced cannot be one that we can look forward to with any satisfaction or confidence. It is liable to create confusion, misery, damage, alienation and additional cost. There are going to be severe reductions in benefits and at the same time there will be the move towards the introduction and implementation of universal credit, which Ministers have been pleased to tell us represents the greatest transformation in the welfare system since Beveridge. I have seen very varying estimates of the number of people who may be affected by this between 2013 and 2017 but it could, I am told, be up 19 million.

The CPAG handbook, which sets out the regulations and the case law, consists of 1,620 pages and is going to have to be almost entirely rewritten. It will be a period in which there will be immense pressures on people in need and on decision-takers. Those decision-takers will typically be junior officials, and it is no particular criticism of them to anticipate that the error rate in their decision-taking will rise. It always has risen with significant changes in the benefits system. Therefore, the need for advice, assistance and representation is going to be acute. It will be a period of turmoil in which the rules will be almost continuously changing. For example, in the case of housing benefit, there are the present rules but there is to be a new set of rules that will come in in March 2013, and then there may very well be revisions to follow in 2014 or 2015 following the review that the Government have agreed to undertake.

Very sensitive and very controversial decisions are going to be taken as a new body of case law is developed. Let us consider the situation of disabled children. A child who is categorised as disabled will see their weekly benefit fall from £56 to £27 a week. On the other hand, a child who is categorised as severely disabled will see a modest increase in their benefit from £74 to £76 a week. Depending on which side of that definitional line the child falls, there will be a difference of £49 a week in household income, and that is an enormously important difference. There are going to be numerous households and families who are bitterly disappointed and, indeed, desperate in consequence of decisions that are taken in this regard. The tribunals will make these decisions, but surely it is wrong for parents not to have legal advice to enable them to decide whether they ought to challenge such decisions.

Alternatively, let us take the case of jobseekers. A new rule is to be introduced that if a jobseeker fails “for no good reason” to apply for or accept a particular placement, he or she may be sanctioned by the loss of universal credit for up to three years. That is a draconian sanction. In such a circumstance, the decision-maker and the claimant may have very different views about whether the reason the placement was declined was good or not. Can it be right to deny people three years-worth of benefit and, at the same time, deny them legal advice to enable them to judge whether they should contest that decision? There are other instances that I could give arising out of the prospective changes but I want to be brief.

I think that withdrawing legal aid from people in such situations is excessively harsh; indeed, it is reckless. A better thrust of reform would be to improve the quality of decision-taking. I just point out that the availability of legal aid enables well founded challenges to be made where there may be systemic flaws in the system, and it is for the benefit of the Government and of the administration of the system that people should be able to make these claims.

The amendment moved by the noble Baroness, Lady Doocey, is a good one, I think, but I prefer the amendment that I look forward to my noble friend Lord Bach moving, which would take things rather further. I do not know whether Amendment 101 in the name of the noble Lord, Lord Shipley, will be moved, but I do not support it. It would allow the Ministry of Justice to provide discretionary funding here and there. I think that amendment is unnecessary because, as I understand it, the department already has such discretion, and, secondly, it is insufficient because we simply cannot rely on the use of such discretionary funding to ensure that people have the help that they should have.

I very much look forward to the speech of my noble friend Lord Bach and I hope that the House will approve Amendment 12. I also hope that it will approve Amendment 11.

[Lord Alton of Liverpool]

My Lords, I am a signatory to Amendment 12. I am very happy to support the sentiments expressed by the noble Lord, Lord Howarth, and I support what the amendment says about extending this to the Second-tier Tribunals as well as the First-tier Tribunals, which are mentioned in the amendment by the noble Baroness, Lady Doocey. We have known each other longer than either of us would care to recall. I know that this is not some passing fancy on her part. She has had a lifelong devotion to the cause of disabled people. She spoke with great eloquence and conviction in Committee and she has been courageously persistent in our proceedings to raise this matter today. In the long and distant past, I worked for five years with children with special needs. Many of us in the House—the noble Lord, Lord Howarth, is one—have had personal experience of people with disability and know, as one noble Lord said earlier, some of the most vulnerable people in society. Surely how we protect and treat them is a test of how civilised we are as people.

Four out of five cases heard in the First-tier Tribunals relate to people who are disabled. Despite what the noble Lord, Lord Carlile, said, he is right to say that disabled people are as capable as anyone else in dealing with their own affairs, but 78 per cent of those receiving advice before going to a tribunal were more likely to win their appeal than those who did not. Clearly, having professional, legal advice pays off. Who would we take that advice away from; who would we take this professional care and help away from? Disabled people will be left to their own devices. Inevitably, that will lead to more social exclusion and innumerable negative results.

Secondly, we have been told again and again that we have to do these things for economic reasons, but I hope that, when the Minister replies, he will respond to the points made by the noble Lord, Lord Carlile, about the so-called economic savings that might be brought about by these measures. As the noble Lord, Lord Newton, has told us in his remarks, it is highly questionable. There is empirical research—an academic study—by King’s College. In its report, United Consequences, it flatly repudiates and rejects the idea that savings will be made. Citizens Advice says that every pound spent on welfare benefits potentially saves the state £8.80. I certainly would want to hear from the Minister that he repudiates those findings before the House reaches a conclusion on these questions; what analysis he has made of those reports; and how, therefore, we can justify doing this on purely economic, austerity measure-based arguments of the kind that we have heard so much about during our proceedings.

The third point, which was touched on by the noble Lord, Lord Newton, and to which others have referred, is about who will pick up the pieces subsequently. Many of us have received a copy of the Citizens Advice report, Out of Scope, Out of Mind—Who Really Loses from Legal Aid Reform. That states:

“When Government consulted on the proposed changes to the scope of civil legal aid, 95 per cent of respondents did not agree with the proposals”.

It goes on to say:

“Official data shows that 80 per cent of social welfare cases achieve positive outcomes for clients, which can involve savings for other services”.

That backs up the point I made a moment ago. The report concludes:

“However, it is also clear that they would not have achieved these positive outcomes on their own. If they could be empowered to help themselves without specialist advice, casework and support from legal aid, then every CAB would rejoice, but that is not the reality. It will be a massive failure in the justice system if they are abandoned”.

It will be a massive failure in the justice system if they are abandoned. That is what we are being asked to vote on today and I hope that the House will support the noble Baroness, Lady Doocey, and the noble Lord, Lord Bach, when we decide on these matters.

--- Later in debate ---

[Lord Carlile of Berriew]

My Lords, I want to give my noble and learned friend the Advocate-General a brief moment of ministerial bliss during this debate—there have not been many so far. I speak to government Amendment 68. My noble friend Lord Faulks and I and others have argued that clinical negligence should be available for severely disabled infants—at least for those who suffered neurological damage, which may of course result in physical damage, and often does, either before birth, at birth or shortly after. It is a great pleasure to see Amendment 68. It has been the result of some negotiation, but I should say that the Government have been very willing negotiators at all times on this issue.

I recognise that there will be understandable disappointment if legal aid is not extended in the same way to all clinical negligence relating to infants, even that which does not involve neurological damage, and disappointment that legal aid is not being automatically scoped into all clinical negligence. Like the noble Lord, Lord Clinton-Davis, I am old enough to have been involved in clinical negligence cases and seen the advantage of legal aid, particularly for those of poor means.

I raise one issue with my noble and learned friend on which I would be very grateful for a specific response. It is about other clinical negligence and exceptionality. Many of us have pored over Clause 9, entitled “Exceptional cases”, although if one reads the text of Clause 9, it is ambiguous whether it applies only to exceptional cases or, potentially, to a largish cohort of cases that fall within Clause 9(3)(b)—that it is appropriate to grant legal aid,

“in the particular circumstances of the case, having regard to any risk that failure to do so would be”,

a breach of convention or enforceable EU rights. I have in mind where there may be a number of claims of a similar nature—for example, a group of 100 claims arising from the negligent use of a particular drug. One has only to say the word thalidomide to understand how that can arise. I believe that a similar situation could arise in our age, just as it did then.

I would be grateful if the Minister would confirm that, were such a cohort of cases to exist, it would not be excluded from exceptionality by reason of being a cohort or group. If one looks at the decided cases in which the word exceptional or exceptionality has been interpreted by the senior courts, it is generally understood to refer to singular cases. We can envisage a plurality of cases of the kind I described, which may give rise to a risk of a breach of convention or other EU rights.

[Lord Howarth of Newport]

My Lords, I, too, welcome the concession that the Government propose in Amendment 68, in so far as it goes, to allow legal aid to be available in cases where infants have suffered perinatal injury. As the parent of a child who suffered perinatal injury, I can only welcome it. I simply ask the Minister on what argument of principle he extends legal aid to that group of people but not to others whose lives may be ruined through the experience of clinical negligence.

[Lord Wigley]

My Lords, I shall speak briefly in support of Amendment 13, proposed by the noble and learned Lord, Lord Lloyd of Berwick, and Amendment 15, tabled by the noble Baroness, Lady Grey-Thompson, both of which would go some way to bring civil legal proceedings relating to clinical negligence back within the scope of the Bill. I welcome the comments made by the noble Lord—my friend, outside the political arena—Lord Cormack and by the noble Lord, Lord Carlile, on the cases that he has been following up. I shall be very interested to hear the replies to them.

Having campaigned with the noble Lord, Lord Ashley of Stoke, on the question of thalidomide, many years ago, those comments ring bells. We must ensure that, in drawing up a strict structure which is meant to avoid exceptions, other than those provided for specifically, we do not lose the possibility to secure justice for people who may be, as the noble Lord, Lord Carlile, rightly said, in the same position in this day and age.