Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Newton of Braintree Excerpts

Wednesday 7th March 2012 Lords Chamber

[Lord Newton of Braintree]

My Lords, my name is to the amendment, along with those of the noble Lords, Lord Pannick and Lord Bach. I intervene at this early stage partly for that reason and partly to support many of the points that my noble friend made without reiterating them.

We need to bear in mind that this proposed change to legal aid does not take place in a vacuum. It takes place at a time of great actual or potential turbulence—or at least change—in the benefits system, arising to some small extent in respect of housing from the Localism Act, and to a much greater extent from the Welfare Reform Bill. I do not want anyone to think that I am opposed to the Welfare Reform Bill. I had some reservations about parts of it but, like every other group in the House, I support its basic thrust. However, we ought to be absolutely clear that you cannot have change on that scale in the social security system without a lot of gainers, a lot of losers and a lot of people who will want to test, question and seek advice on the changes that affect them if they feel aggrieved.

There are many such changes. There is the housing benefit cap. There is the benefit cap, which is probably less serious in this context because fewer people are supposed to be affected. A huge number of disabled people and carers will be affected. In the area of housing benefit, many tenants will be affected by what is known as the spare-bedroom tax. These are not trivial numbers. The DWP’s estimate, given to me by the Minister, of the number of people affected by the housing benefit cap—the bedroom tax, if I may use a tendentious phrase—is 670,000. The number of people potentially affected by changes to the disability and carer allowances in the Welfare Reform Bill is of the same order if the figures I remember being given in Committee are right. Therefore, we are talking about potentially well over a million people.

If I was still an MP, I would be a bit worried. That is an average of around 2,000 people per constituency. They will all have relatives, some of whom will be affected and many others of whom will be upset by what is happening or could happen to their relatives. They will not all have a great grievance but there will enough of them who do. They will be bewildered and in some cases frightened, as we know from the e-mails we all received over the Welfare Reform Bill. They will not know where to turn but they will know that they need advice and help from somewhere. Let us not underestimate the scale of the impact of this change.

My second point, in what I hope will not be too long a speech, is: does it matter? There has been something of a flavour to Ministers’ comments that the only things that matter enough in this area to warrant a continuation of legal aid are those that threaten life or liberty—for example, orders under the Mental Health Act—or highly specialised areas such as children’s special educational needs and several other children’s issues. I pay tribute to the Government for the fact that they have recognised some of those points. However, there has been a slight flavour that welfare rights and welfare benefits generally did not quite rank in this league. There has been a sort of flavour that it is only a bit of money after all, although I do not think that anybody has actually said it. However, no one who has been Secretary of State for Social Security would harbour the illusion that the £10 or £20 a week that people could lose—for example, under the housing benefit cap if they have a spare room and do not move—is a trivial sum. It may not be a great amount to all of us in this House, but there are a lot of people in this country to whom £10 or £20 a week makes a great difference to whether they can heat or whether they can eat. I do not want to exaggerate this matter or get emotional about it, but some people will be frightened at being hit by some aspects of these changes and they will need somewhere to turn to.

I wish to quote a couple of points from the letter that the noble Lord, Lord Pannick, wrote on behalf of all four of us. I stress that the letter was written on behalf of all four of us. I had agreed it; I just was not present to sign it. It states:

“81% of all cases heard in the First Tier Tribunals relating to benefits are for benefits relating to disability … in 2009/10 an appellant at the First Tier Tribunal that received advice before going to the Tribunal was 78% more likely to win their appeal than an unadvised appellant”.

Then there is another point to which I may come back in a moment: namely, that nobody believes that the savings the Government have claimed for these proposals will actually be realised. The CABs, the Law Society and the report produced by King’s College all reckon that a lot of theses savings are illusory and that the knock-on effects on other government departments will be substantial but have so far been completely unquantified.

My third main point is about the effect of all this on the places where people can and do turn for both direct and indirect help: namely, the citizens advice bureaux, which are universally admired and supported, and are valued in this House and the other place, and a whole variety of law centres and other big society advisory services throughout the country. The CABs have just published a report which I hope everyone will read. I do not wish to quote the whole of it, just a bit from the introduction and the conclusion. In between there are a lot of case studies. The introduction states:

“Specialist advice has become a core part of the CAB service. Our frontline caseworkers and managers have told us that the impact of the proposed changes to legal aid on specialist services will be devastating. The overwhelming majority say that it will be impossible to provide a specialist service, whilst over half say that it may be impossible to continue providing any advice service at all … And it's not just the Citizens Advice service that will be affected - law centres, independent advice agencies and some solicitors' firms will find it difficult to continue to operate”.

After mentioning various cases, the conclusion states that if these cases,

“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”.

I shall conclude quickly, but I should like to make just one other point. The Government have, in a way, acknowledged that there may be a need to support other advice services, but we still have no real idea how that is to be done. We have had a promise of a one-off £20 million, which is not a lot in this context. A review is going on which has not yet been completed and whose results we do not know. We have no serious commitment from the Government as to what they will do when they have the results. The nearest we have to that is a comment on the King’s College study to which I referred, which states:

“We are committed to the not for profit sector and have committed £20m this year to improve the efficiency and effectiveness of advice services, but this does not mean that the Government will meet all demand in the future”.

I would not want to back off from supporting the amendment on the basis of a vague promise that something along those lines might be done. It is a classic case where we are entitled to ask another place to take another look, and that is what I hope we will do.

[Lord Carlile of Berriew]

My Lords, in the background to the undoubted need to cut legal aid for economic reasons, it is undoubtedly fair to take as a starting point the Government’s realistic decision to continue to fund judicial review for welfare benefit decisions. In their 2010 Green Paper, the Government gave examples of where judicial review would be used, and is used, for benefit cases. I quote:

“As with other areas of law, funding for judicial review will continue to be available for benefits cases. Such cases are likely to occur where there are delays in making decisions on applications for benefits, or delays in making payments, or whether there has been suspension of benefits by authorities pending investigation”.

None of those examples of judicial review is based on the merits of the case in question; and the problem with judicial review is just that. Where legal aid is available for judicial review in benefits cases, it will not avail a single potential litigant when the decision taken is simply wrong, the evidence has been mis-analysed and misapplied, and the factual decision is unsustainable. That is not what judicial review is for.

Bearing that in mind, I have had to think hard about the balance between wishing to help the Government to fulfil their aims to cut legal aid in a realistic way and those determinations of principle and conscience that some of us have held to for quite a long time. I applaud the measured and economical way in which my noble friend Lady Doocey moved the amendment. She has great experience in dealing with these issues and enormous knowledge of them. Over decades, she and I, and a number of others on these Benches, have attended debate after debate within our party in which the sort of principles that she espoused have been affirmed, reaffirmed and re-reaffirmed.

--- Later in debate ---

[Baroness Finlay of Llandaff]

My Lords, I sense that the House is getting to the point where this debate needs to draw to a close, so I will not go over the points that I was going to make at length, except to point out that there is a moral case and a financial case for both the first two amendments in the group. The moral case is that people are particularly vulnerable when they are in the hands of clinicians, their vulnerability being the reason that they need a clinical intervention. Therefore, closing down access to justice or compensation when things go awry seems particularly wrong.

I have a further point to make on allowing clinical negligence to come back into scope. The financial arguments, as already laid out by the noble and learned Lord, Lord Lloyd of Berwick, and in the report of King’s College London, indicate that on financial grounds alone both these amendments make sense. To repeat the figures given by my noble friend Lord Wigley, the cost to the public purse is estimated to be £28.5 million, as opposed to the £10.5 million that the Ministry of Justice hopes to save by this measure. We have heard a lot about the need to save money.

There could be unintended consequences from this calculation of increased, not decreased, expenditure. The intention behind the Government’s amendments is to be welcomed but I fear that there will be complications in, for example, trying to work out the dates of a pregnancy if a scan is not done in the first trimester. Women’s periods are notoriously unreliable as a method of establishing dates in a pregnancy, and arguments about whether it is one day or another will make life extremely difficult.

I end by pointing out that in his report Lord Justice Jackson said that of all the proposed cutbacks in legal aid, the removal of legal aid in relation to clinical negligence was the most unfortunate. He went on to state that if—in his view, wrongly—legal aid for clinical negligence was cut, then removing legal aid for expert reports would not make sound sense.

[Lord Newton of Braintree]

My Lords, I wonder whether I might be allowed to intervene from this Front Bench position without people feeling that I have fallen victim to delusions of grandeur of one kind or another.

I wish to make three points. First, I support the general thrust of the arguments that have been put forward by the noble and learned Lord, Lord Lloyd, the noble Baroness, Lady Grey-Thompson, and my noble friend Lady Eaton. I shall not elaborate but I think that they have made excellent points which need to be considered.

The second is to build on what was said by my noble friend Lord Cormack and, even more so, by the noble Baroness, Lady Mallalieu, about one striking aspect of the speech of the noble and learned Lord, Lord Lloyd, and indeed the note he had sent me. Had I had the temerity to intervene in the winding-up of the previous debate or had I wished to elongate my speech in that debate, I would have said that those of us who were supporting it were not hell-bent on increasing the deficit and raising the debt. The key point is that we just do not believe the Government’s figures. No one outside the Government believes that savings are going to be made on the scale that the Government claim, and in many cases we think that the deficit is going to be increased. We now have this concrete example of where the figures are wrong, and I hope that the House will bear that in mind.

Finally, one thing that sticks in my mind from this whole exercise is a seminar at which we heard from someone who had been severely damaged by clinical negligence, along with his wife. Victory in that case had enabled the wife to go on looking after the man and for him to go on having as normal a life as possible in a severely disabled state. I just ask myself how much the state saved in that one case, where the husband and wife would not otherwise have been able to go on in those circumstances. How much had been saved in terms of many years of residential care or much more extensive support from the social services department? In my view, these are the things that have not been factored into some of these calculations, and there are many others. Although not strictly related to this amendment, every child taken into care costs £36,000 a year. These are the costs that have not been factored in. I think that we are owed some better answers than we have had so far, and I hope, without much expectation, that we will get some better answers tonight.

[Lord Faulks]

My Lords, I take note of the indication from the noble Baroness, Lady Finlay, that the House may have heard enough but I hope that noble Lords will bear with me for a little while. I spoke on this subject at Second Reading and on a previous occasion and I should remind the House that I have spent much of the past quarter of a century working on these clinical negligence cases. I remind myself of that also, lest I should be guilty of any lack of detachment on these difficult issues.

I remain enthusiastic about legal aid. A well organised legal aid scheme with proper controls over funding, franchising of solicitors to ensure relevant expertise and a rigorous approach to the funding of individual cases is a highly worthwhile aspiration. Unfortunately, we have rarely had a scheme like that. In saying this, I do not wish in any way to denigrate the contribution of the many public-spirited lawyers who practise in the field, but too much has been spent on cases which have failed or were not really worth while even had they succeeded. It is perhaps something of an irony that clinical negligence—latterly, at least—has been a far more effectively funded area of the law than ever before. By “effectively”, I do not just mean in terms of the size of the funding; I simply mean the efficiency in the way that specialist lawyers conduct this litigation.

Not all claims have been funded by legal aid. In some there are difficulties of eligibility, and others have preferred to go the route of CFAs. These provide greater flexibility and, of course, greater profit. On the previous occasion, the Minister pointed out that more than 80 per cent of clinical negligence cases are taken under CFAs, so this remains, at least in theory, an option for the future. However, it is of course a much less attractive option. As the noble Baroness, Lady Turner, pointed out, there is no ATE insurance and success fees are limited to 25 per cent of past losses and general damages. This is particularly so with complex cases, where investigative costs are particularly expensive and may ultimately prove irrecoverable if the case fails to get off the ground or fails in the end.

I have not been, as a number of noble Lords will be aware, entirely uncritical of this Bill. In particular, I was anxious to ensure that there was a reiteration in Clause 1 of the fundamental principle of access to justice, and I was concerned that there should be additional steps to underline the independence of the director of legal aid casework. Unfortunately, my views did not coincide with the views of the Government. One reason I felt able to support those amendments was that they did not involve any government expenditure but reflected what I thought were important principles about the justice system.

However, with this group of amendments we are now concerned with areas that involve government expenditure, although quite how much, I accept, is very much open to debate. The financial situation requires there to be cuts and the Government have taken the perfectly reasonable view that the legal aid budget must bear its fair share. I remain somewhat unconvinced by the stance taken by the party opposite, which seems to be that civil legal aid would have been left entirely alone by it and, for the most part, CFAs as they currently are represent a satisfactory situation.

The Government have had to take some hard decisions in cutting back on expenditure on legal aid. Surely we are acknowledging that and are engaged in scrutinising this Bill in an attempt to limit the damage rather than simply pretending that there are limitless funds available for legal aid. Perhaps I may join the noble Lord, Lord Carlile, and congratulate the Minister and his officials on their response to the concerns that I and other noble Lords expressed about the position of brain-damaged babies. The Government have put down this most welcome amendment. I genuinely believe that this is a thoughtful and appropriate concession and an indication that the Government are trying to address some of the very difficult situations which this legislation throws up.