Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Woolf Excerpts

Monday 21st November 2011 Lords Chamber

[Lord Woolf]

My Lords, it has been a privilege to be able to hear this debate so far. If my arithmetic is correct, I have heard 14 speeches, and I am in the happy position of saying that there is nothing which has been said so far with which I disagree. I include in that the speech for the Government introducing this Bill, by the noble Lord, Lord McNally, in case it is thought that there was an implied exception.

I have two reasons for saying that this Bill has special relevance to me, with regard to the two inquiries which I carried out when I was a serving judge. The first inquiry related to access to justice, a subject about which we have heard quite a considerable amount so far. The second was the inquiry into riots in our prison system caused by overcrowding, a problem which, alas, is still with us today.

The inquiry into access to justice was over a decade ago, and it is not surprising that it should need looking at again after this period. I for one was very pleased when the Master of the Rolls invited Lord Justice Jackson to make his report. I do not think anyone can doubt that this difficult task was undertaken by Lord Justice Jackson, as the noble Lord, Lord Hunt, has indicated, in an exemplary manner. He had a huge amount of material to marshal, and he did so and made recommendations of which, I suggest, on the whole this House could make favourable use.

The inquiry was needed not only because more than a decade had elapsed since my attempts to improve the situation, but also because it was clear that reforms which were made, for which I bear no responsibility, were causing the system to become unbalanced. The conditional fee—for which the noble and learned Lord, Lord Mackay, is rightly to be congratulated—initially helped to obtain access to justice for those who were not able to use the court because they were neither poor enough to qualify for legal aid, nor wealthy enough to dine at the Ritz. That section of the community, which was a large section, at the time of my report was not receiving access as was necessary. However, while those changes initially worked well, the noble and learned Lord, Lord Irvine, thought, rightly or wrongly, that further changes were needed if the conditional fee arrangements were to work as hoped. The problem was that there were doubts as to whether they gave lawyers enough assistance to take on the really difficult cases because of the need for payment of an uplift fee, which it was hoped could be smaller than ultimately proved to be the case.

In addition, it was found that insurance was necessary. This is because the costs for a claimant if he was unsuccessful could be very substantial, and so we had the after-the-event insurance. This, from one point of view, was beneficial; but it had the effect that a claimant who had paid the after-the-event insurance premium was left substantially out of pocket. Therefore, it was ordered, first, that the uplift to which I referred should be paid by an unsuccessful defendant; and secondly, that the premium to which I referred should also be paid by an unsuccessful defendant. The practical consequence was that a defendant who was unsuccessful could end up paying four sets of costs: first, the costs he incurred himself; secondly, the costs of the claimant who won; thirdly, the uplift, which could be up to 100 per cent; and, fourthly, the insurance premium. I say to the House with absolute confidence that there were many defendants who regarded the total burden as wholly inappropriate, to the extent that they had no option other than not to contest cases that they otherwise would have.

Since I ceased to be Chief Justice, I have earned a living—here I declare an interest—by conducting mediations on occasion. I have found that some defendants reach settlements in the course of mediation that they would not otherwise have done because of the deterrent effects of the combination of four sets of costs. While one was very anxious that justice should be done for claimants, it must also be done for defendants in the same position. This is something that requires attention. In due course we will have to consider whether the proposals made in that regard will get us back to a situation where there is a fair balance between both parties in litigation.

I emphasise what was drawn to our attention by my noble friend Lord Faulks: namely, the fact that Lord Justice Jackson was not directly involved with the question of legal aid. He was not asked to report on it. I suggest that if the system is to be amended in the way proposed by the Bill, it is regrettable that he did not have an opportunity to look at the matter objectively and independently in the way that was needed. I fear that his report could be a victim, as I consider I was because I was only shown part of the picture of where change will take place.

In the Cambridge lecture of 5 September last to which my noble friend Lord Faulks referred, which I read with interest, Lord Justice Jackson gave an indication of his views on the matter. He said:

“Let me make it plain that the cutbacks in legal aid are contrary”—

and I emphasise “contrary”—

“to the recommendations made in my report”.

Again, I encourage the House to accept that view. Lord Justice Jackson went on to state that if the position were to remain as is now proposed, an additional exception should be made to the cuts in legal aid. He said:

“On the assumption that it is decided not to maintain civil legal aid at present levels, the question may possibly arise as to whether any particular area of civil legal aid is particularly important and should be salvaged from the present cuts. My answer to that question is that of all the proposed cutbacks in legal aid, the removal of legal aid from clinical negligence is the most unfortunate”.

I hope that the House will pay attention to that remark. I see the time that I have already taken and I apologise for speaking for two or three minutes more. I would like to say something else with regard to Part 3.

I am the chairman of the Prison Reform Trust and I am grateful to my noble friend Lady Howe for her comments, which are based on research done by that trust, and which deserve considerable attention. There are matters on which the Government are to be congratulated. They have been mentioned by other Members of the House and there is no need for me to go over the same ground.

However, I submit that when we now know the problem with IPPs, it is extraordinary that the House should be asked to accept a more modified form of IPP. The one thing we want to avoid is people being in custody longer than they should be. Although the Bill repeals IPPs, it is, understandably, not retrospective. We have a deplorable situation in our prisons today, where thousands of prisoners who might be able to be safely returned to the community cannot be, because unfortunately the Parole Board is not in a position to deal with their cases due to the resources available to it. That will continue for some time. Surely it would be possible to change the procedures for those prisoners to obtain release? There is nothing in the Bill about that.

With that indulgence from the House, I conclude my remarks. I hope that there will be many amendments with which I can be associated that will improve this Bill in the spirit identified by the noble Lord, Lord Faulks.