Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Thomas of Gresford Excerpts

Monday 21st November 2011 Lords Chamber

[Lord Thomas of Gresford]

My Lords, one of the three great universal lies is, “I am from the Government and I am here to help you”. I assure my noble friend Lord McNally that we are from the Liberal Democrat Benches and we are here to help him. I hope that by the time we have finished this process that will not turn out to be the fourth great lie.

Many aspects of this Bill are very welcome. The sentencing provisions demonstrate the enlightened views of the Lord Chancellor, who sees great merit in improving the system of retribution and reform by community sentences, not to mention the many millions of pounds that it will save in keeping offenders out of our great universities of crime. One client said to me not so long ago—he was a man of excellent character before he went to prison—“I don’t need to work again. After what I’ve learnt in here over the last six months, my future is made”, so that is one less on the jobless list. It is true that in this Bill the old devil is peeping out from the provisions for mandatory sentencing, but we shall deal with that in Committee. My noble friends Lord Dholakia and Lady Linklater will speak further on these matters shortly.

Once again, parts of this Bill have not been debated by our elected representatives and have passed through on the nod. I single out particularly the new crime of squatting. Are current civil powers of kicking out squatters and letting them go on their way not enough? Must we punish the homeless with fines and imprisonment as well? My noble friend Lady Miller of Chilthorne Domer, who wished to make this point today, is unhappily not with us but she will address this issue in Committee. This is certainly not hating the sin but loving the sinner; it is hating the sinner because of the chaotic person he usually is.

I declare an interest in that over the past 50 years I have made my living from legal aid, and I am proud to say so. The system has been due for revision and change for some years. It is a basic principle that:

“In the determination of his civil rights and obligations—

a person who can afford it—

“is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.

I am sorry, I made a mistake; Article 6 of the European Convention on Human Rights actually states that “everyone” is entitled to a fair trial.

The legal aid provisions of the Bill are not designed to increase access to justice; they are meant to save money. That is fair enough. Those lawyers who have grown sleek and fat on the rich pickings of advising the sick, the disabled, the unemployed, the homeless and the immigrant have no need to go to WeightWatchers; they can now slim effortlessly. The matrimonial courts and the welfare and immigration tribunals of this country will resound not with the arguments of dry-as-dust lawyers any more, but with the arguments of good, honest, grievance-holders who will present their concise cases with style and precision and smoothly win their way to justice. Those of us with practical experience of the court system have just the smallest hesitation in applauding.

In welfare, immigration and benefit law, one principle stands out, and it is a principle to which my noble friend Lord McNally referred in his opening remarks—that of equality of arms. There has to be equality of arms between the state and its offshoots and any person in dispute with the state. At the very least that requires legal advice, assistance and advocacy in the Upper Tribunal on appeals from the social entitlement and the immigration and asylum chambers of First-tier Tribunals to the Upper Tribunal and appeals from there to the Court of Appeal and the Supreme Court. It also means a focus on better decision-making at first instance in these areas and a far less adversarial and more co-operative climate where litigants appear in person in front of First-tier Tribunals.

For the moment, I shall say little about areas of law that are removed from the scope of legal aid, save that the argument to retain clinical negligence within scope is, in our opinion, overwhelming. The Lord Chancellor takes power to remove further areas of the law out of scope, but takes no power to return into scope those areas where, as we reluctantly predict, the courts and tribunals will quickly grind to a halt.

I must make this point too; we on these Benches are not committed to smaller government, and when the economy improves we will look to ensure that access to justice in all areas is guaranteed. However, if financial necessity demands savings, it is essential that advice services to the public are fully supported. My noble friend Lord Shipley will expand on that, but it seems to me that if the Government are stipulating that the only gateway to legal aid is initially through the Community Legal Advice helpline, they should think again. The legal advice centres, citizens advice bureaux and other voluntary advice organisations, whose very existence is threatened by the cuts in legal aid, are a national resource not to be lightly cast aside. Rather than expanding the CLA helpline, the Government should fund these organisations to use their considerable expertise and local knowledge in providing the independent telephone and e-mail advice, which will certainly be required.

In the course of the Bill, I intend to focus on the changes promoted to conditional-fee agreements and after-the-event insurance in Part 2 of the Bill. My noble friend Lord Phillips and I were hotly opposed to the alterations contained in the Access to Justice Act 1999 on the principle that a lawyer ought never to have a financial interest in the outcome of a case. I shall table amendments to continue that fight against the creeping advance of third-party litigation funding, which used to be called maintenance and champerty, to introduce regulation into a completely unregulated field.

However, we have to sort out in the present provisions of the Bill not only the principle of whether the success fee and after-the-event insurance premium should be deducted from the damages of a claimant who has been injured by the negligence of the defendant, but the uncertainty introduced by the proposals for qualified one-way costs shifting, to which the noble and learned Lord, Lord Davidson, referred. The unintended consequences of the present proposals include much more satellite litigation: the destruction of after-the-event insurance in claims other than personal injuries, such as in environmental law where we have international obligations under the Aarhus convention, and in other complex and different cases where the ordinary man faces an industrial or commercial giant or the intransigence of local authorities. The concept of abolishing referral fees is to be welcomed, but it is another area that must be fully explored and the real abuses rooted out.

We are here for the long haul, and in Committee and at later stages we shall wish to put many things to the noble Lord, Lord McNally. We look forward to those stimulating encounters.